Primacy, Recency, Ethos, and Pathos: Integrating Principles of Communication into the Direct Examination

Abstract

Advice about how to try lawsuits is easy to come by and much in demand. Perhaps that is true because effective advocacy at trial is an art, not a science; it defies precise measurement or scientific analysis, thus opening the door to a large amount of subjectivity in advocacy training and legal literature. The notion that advocacy is an art form leads to an exaggerated focus on the "artists" -- the advocates at trial -- and the techniques they use before the jury. The stories the artists tell of their triumphs become "war stories," and they are passed down from one generation of lawyers to another until they become accepted as the "right" way to try a case.

Keywords: trial advocacy, examination, empirical data, direct examination