Preface: I’m No Psychologist
I’m not a psychologist. I’m a litigator-turned-mediator who writes about my experiences advocating in Court and now mediating for advocates and their clients in a virtual world.
I’ve read “Cognitive Psychology in the Courtroom”, Chapter 2 of the book Litigation and Administrative Advocacy: The Art and Science of Persuasion—co-authored by The Honourable Todd L. Archibald and Shannon S.W. O’Connor—and my review here is from an advocate’s point of view, posing what this chapter can help a trial lawyer do better the next time they stand up to open a case.
What The Chapter Sets Out To Do
The authors make a simple, traditional, and very practical claim.
Persuasion doesn’t start at closing. It starts the instant you rise for your opening statement. The opening lays the groundwork, creates first impressions, and tells the trier of fact how to read what’s coming next. The chapter argues that if you understand how people actually make decisions under cognitive constraints, your opening can be really effective, and you should not waste that opportunity.
The Human Mind in a Courtroom
The chapter explains why the mind’s shortcuts, a.k.a. “heuristics”[1] (it’s ok, I had to look it up too) matter in trials.
Faced with unfamiliar, dense information, people lean on mental tools that usually help but sometimes mislead. In a courtroom, those shortcuts can give the “illusion” of rational judgment when a fallible shortcut has nudged the result. The point isn’t to attack judges or juries. It’s to respect human limits and present a case that is easy to process correctly from the start.
The Five Cognitive Effects
The chapter highlights five predictable effects:
- Anchoring;
- Hindsight Bias;
- The Representativeness Heuristic;
- Framing; and
- Coherence-based Reasoning.
Justice Archibald defines each effect in plain language.
Anchoring is our tendency to take initial information as a starting point and stick too close to it.
Hindsight bias is overrating the predictability of past events once we know how they ended.
Representativeness is slotting facts into a familiar template and ignoring other relevant data.
Framing is how the same choice looks different depending on whether it’s cast as a gain or a loss.
Coherence-based reasoning is the mind’s drive to make a complex choice feel simple by quietly promoting one path and demoting the alternatives.
The upshot for an advocate is obvious. If you don’t plan your opening around these forces, they’ll still be there, working on the decision-maker without your input
Anchoring: Who Sets the Scale Of Your Case?
Anchoring gets special attention, and rightly so, because numbers dominate civil trials.
Judge Archibald walks through the classic “wheel of fortune” experiment to show how even irrelevant numbers pull estimates, then connects that logic to litigation where judges and juries must put numbers on damages, costs, or sentence length. The research shows that even trained decision-makers can be pulled toward anchors they know are legally irrelevant. That should sober every trial lawyer who shrugs off “harmless” references to a number in an opening or a motion that was bound to fail.
The authors then describe a study with 167 U.S. federal judges in a personal-injury scenario. A frivolous defense motion invoking a $75,000 jurisdictional minimum (plainly inapplicable given the injuries) depressed average damages by roughly 29%. Bluntly, the mere presence of that low anchor dragged the awards down, even though the motion should have had no further impact once dismissed. That’s a courtroom reality worth respecting. It tells me that if I don’t set the scale in my opening with a principled, credible number—anchored in proof—an opposing “anchor,” however flimsy, may do it for me.
Hindsight Bias: Forcing Foresight in a World that Knows the Outcome
Negligence is a prospective standard.
Courts judge conduct based on what was known before the accident. Real life trials, however, are run after the accident, and everyone knows it happened. The chapter synthesizes the research well. Once we know the outcome, we unconsciously fold that knowledge into our “predictability” analysis.
Even experienced judges are not immune. In experiments, telling judges that an appeal was “affirmed,” “reduced,” or “a new trial ordered” skewed what they later identified as the “correct” result. In other words, outcome knowledge changes judgment. For an opening, that has a clear instruction to make the trier stand where the actor stood, with the information available at the time, and keep them there.
Coherence-Based Reasoning: Give Evidence a Place to Land
The chapter’s section on coherence-based reasoning may be the most important for trial craft.
People don’t wait to hear every fact before they start leaning one way or the other. As information comes in, the mind fits it into an emerging picture, inflating what supports that picture and downplaying what doesn’t. If your opening plants a simple, credible case theory, later evidence has a place to land and the mind’s coherence-building helps, not hurts, your client.
If you leave that vacuum to your opponent, you’ll spend the rest of the trial swimming upstream.
Representativeness and Framing: Familiar Patterns and Risk Posture
The representativeness heuristic is the courtroom version of “if it looks like a duck, it’s a duck.” That’s a useful shortcut when the pattern is reliable, but risky when it causes the decision-maker to ignore base rates, context, or control. An opening can head this off by supplying the right context early. For example, how often did events like this occur absent negligence, who had real control, what the reliable comparables are, before a loose pattern grabs hold.
Framing is equally practical. How you frame the choice—gain or loss—changes risk posture. Plaintiffs who see a “gain” can become more risk-averse. Defendants who sense a “loss” often become more risk-seeking. An opening that frames the decision cleanly and fairly can reduce that noise and keep attention on the legal test and the facts that matter.
Why the Opening Statement is the Main Event
His Honour treats the opening as the orienting map of the whole trial, not a throwaway preface.
He quotes the British Columbia Court of Appeal in Brophy v. Hutchinson, 2003 BCCA 21[2]on what an opening does. It outlines the case, helps the jury relate the parts of the evidence to the whole picture, and sets the onus-bearer’s path. That is a traditional view of openings, and the chapter embraces it. It also notes the long-standing practice in England where senior counsel opens and junior counsel closes, because first impressions and rapport-building are that important. None of this is nostalgia. It’s practical advice grounded in how the mind works.
So what do you actually do in that opening? The chapter points to the basics that still move the needle. Identify the controlling issue. State a clean case theory and theme. Tell a straightforward story. Use point-first advocacy.
Open how the human brain works. There’s nothing trendy about any of that, and it doesn’t need to be. The cognitive science simply explains why these old tools are still the right tools.
What This Means for Everyday Advocacy
For me, Justice Archibald’s takeaway is direct.
First, set the scale of your case yourself. Don’t assume a court will ignore a bad anchor. Plant a principled one and show why it’s sound.
Second, force foresight. Tell the story from the actor’s vantage point and keep circling back to the information the actor actually had, not what we all know now.
Third, give the decision-maker a coherent path early. That’s not spin, it’s structure. If you don’t offer it, coherence-building will favour the other side.
Fourth, don’t let familiar but misleading patterns drive the outcome. Supply the base rates, the context, and the control facts before the wrong “template” sticks.
And finally, be deliberate about framing. The way you describe the decision changes how people approach risk. Do it fairly and clearly so the legal test, and not a gut reaction, steers the result.
Bottom Line
From an advocate’s perspective, Chapter 2 earns its place in the trial bag. It respects how minds actually work, and it restores the opening statement to where it belongs—front and centre.
You don’t need a psychology degree to use it. You need to build an opening that sets the right anchor, forces foresight, supplies context, frames the choice cleanly, and gives the trier a simple, truthful case theory to organize the evidence that follows.
If you do that, you’re not just speaking at the start of a trial. You’re shaping how the whole trial will be understood.