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- Being a good bragger (but stopping short of narcissism)
- You know about story-telling, but do you know to wear red?
- Simple Jury Persuasion: The ‘Scott Peterson Effect’—Displayed remorse and conviction
- Your brain is a liar: It will find what it wants before it even starts looking
- Contempt for Gen Y: It’s everywhere—including law firms!
- Simple rules, beer pong, hysterical laughter & jury questionnaires
- Can you assess juror morality by counting tattoos?
- Biased hearts, biased cameras and biased verdicts
- Simple Jury Persuasion: “How likely are you to…”
- How a picture can be worth less than a hundred words
Being a good bragger (but stopping short of narcissism)
It’s tough to toot your own horn without seeming arrogant and narcissistic. We don’t all have the charm to pull that off (although Mac Davis did). We know from the research that narcissists may make a good first impression but their ‘charm’ quickly wears off once we truly see them for who they are.Yet, you want to be able to present your achievements and let others know what you have accomplished.
So how can you brag without being written off as a blowhard narcissist? We have researchers to thank for giving us a recipe. The key to avoid looking like a narcissist is to provoke a question from your audience—like “how do you win every case you ever take on?” or “How do you manage to look forever young?” or something predictable like that. The key is context.
Here’s the researcher’s recipe for effective boasting:
- You want your conversation partner to bring up the topic. If they don’t, you can raise the topic but they need to ask you a question.
- If they ask a question, you can then happily boast without being seen as a braggart. If they don’t question and you offer your boast anyway, you will likely not be seen positively.
So you can market your strengths and accomplishments to others. You just need to get them to ask questions!
You know about story-telling, but do you know to wear red?
By now we all know to tell jurors a story. Articles like this one from Neuromarketing Blog are really not news to us. Tell a story and your sales pitch (or your argument) is more persuasive. Ho-hum. Old news. But here’s some news you may not know.
Wear red.
Why? When? And isn’t that too bright for the courtroom? So many questions.
Here’s what the research says. If you are a woman, and have a jury of mostly men that don’t seem to be buying your case narrative—you might want to wear red to court. Male jurors tend to like you better. They will think you are more attractive. But (get this) they won’t have any idea why! It’s like a secret weapon. And given that it’s usually tougher to be a female litigator (see here and here) you deserve this persuasive edge.
Obviously, it doesn’t hurt to have a good case theme and good facts. But for an extra persuasive oomph—go for red!
Simple Jury Persuasion: The ‘Scott Peterson Effect’—Displayed remorse and conviction
While re-reading a summation of research on jury decision-making, I ran across this finding that brought Scott Peterson to mind. This doesn’t happen often for me—although I hear some women dream of marrying violent criminals. Evidently the allure of marrying a notorious man (the ultimate ‘bad boy’) remains powerful.
But, I digress. The important thing is not the (likely disturbed) women who want to marry notorious and violent men—but the lack of remorse seen by jurors (and courtroom cameras) from Scott Peterson. A young, beautiful and very pregnant woman was killed. Shouldn’t we have seen remorse? Sadness? Grief? Is this why Scott Peterson was convicted?
The research in this area is somewhat counter-intuitive. A literature review completed in 2001 came to some conclusions about the display of remorse in capital murder trial defendants:
- Defendant display of remorse was not related to final penalty outcomes (and most jurors reported the defendants were not remorseful).
- Indirect non-verbal displays of remorse implying the defendant took responsibility for actions were seen as more credible by jurors than direct verbal statements.
- Best predictor of penalty outcome was the defendant’s attitude toward the trial process itself. If the defendant was seen as uncaring or nonchalant, disdainful or contemptuous—they were more likely to receive the death penalty.
So, in essence, it’s better for your defendant to not say s/he is remorseful but to appear sincerely remorseful non-verbally. Jurors may think they are secretly observing true remorse if they see it but don’t ‘hear’ it. “Walk the walk…”
Some interesting (perhaps related) research finds that if we ‘overhear’ information, we find it more persuasive than communication directed at us. If ‘they’ didn’t know we were listening, it must be true. Those Dean Witter ads in which crowds of people crave the juicy information gleaned from eaves-dropping ran for years. It’s possible, that jurors surreptitiously observing non-verbal remorseful behavior would be more convinced than if they heard the defendant directly express remorse. It follows the notion that we believe the inadvertent moment of candor more than a rehearsed statement.
If your defendant appears to mock or disrespect the courtroom proceedings—it does not bode well for them (unless perhaps they have unusually powerful family connections which frighten the jurors).
Devine, D., Clayton, L., Dunford, B., Seying, R. and Pryce, J. (2001). Jury Decision Making: 45 years of empirical research on deliberating groups. Psychology, Public Policy and Law, 7(3), 622-727.
Your brain is a liar: It will find what it wants before it even starts looking
Brains are pretty amazing. And the research on how our brains affect us comes out so fast it’s hard to keep up with–so we’re simply giving you a post with a hodge-podge of research findings. Prepare to be amazed (or perhaps amused).
Farnam Street blog reminds us that we tend to put more stock in things we already believe than in things that disconfirm/disprove our pre-existing beliefs. When I was in graduate school it constituted the snarky observation that we tend to “draw the curve before we plot the data”. We know what we are looking for, and it leads us to find it (more often than it is actually there). That might also explain why we “sharply and persistently” disagree with scientific experts on complex issues from climate change to disposing of nuclear waste. We think we know better. And who can we trust more than our own selves?
Well, here’s the bad news. We shouldn’t really trust ourselves. Our brains are inveterate liars. They trick us and make us believe things are true that are simply likely not true. (What a wonderful excuse—“It wasn’t me that lied, it was my brain…”)
- Ever been in a group that results in you experiencing a lot of pain and discomfort? Like a running group or a fitness boot camp? The more pain and discomfort or willpower it takes to endure a group experience—the more likely we are to say we really like that group. The worse it is, the more we say we like it! We have to have some way to explain why we would do that to ourselves. Perhaps this explains the bonding often seen among jurors on lengthy and difficult trials.
- Even when we sort of know someone is being insincere when they flatter us, we like it so much that we tend to do more of what they want then we would if not insincerely flattered. Hmmm. How about this? “This jury is one of the brightest groups I have ever seen—I’m sure you won’t be misled by vapid rhetoric—you want the real facts.”
- Ever said “time flew by” and therefore assumed you must have been having fun? Faulty logic for sure but also your brain lying yet again. The researchers in this study lied to participants about how much time had passed in their completion of a dry and boring task and the participants thought they must have enjoyed it since they thought the time had flown. “Gee. We thought that testimony on accounting rules would take only two hours but can you believe this? He talked for six hours!” (Maybe that one wouldn’t work so well….)
- We believe we know that cell phone towers affect us negatively with “rashes, headaches, nausea and disrupted sleep”. We even have symptom remission when we travel away from the tower. Oddly enough, the cell phone tower in this particular lawsuit was turned off and could not possibly have been causing the reactions experienced by a community of people with simultaneously lying brains.
- Our brains lie to us in ways that make us feel horribly self-conscious; enraged and aggressive; cognitively lazy; spiteful in the form of shadenfreude; and make us afraid of rampant mind-control turning us into zombies.
The point of all this is that our brains process things idiosyncratically. What I see/hear is perhaps not what you see and hear. You want to be sure that your case narrative communicates the same things to all (or at least most) of your jurors. Even though we see what we believe, we are also aware that we make mistakes. Join the jurors in their initial misimpression, and guide them to clarity and accurate understanding. Don’t provoke jurors to disagree with you. Get your brains all on the same page.
Contempt for Gen Y: It’s everywhere—including law firms!
While every upcoming generation is regarded as flawed by their elders, it seems Gen Y is seen especially negatively. A recent article at In These Times focuses on whether Millennials are cursed. According to sources cited, “everyone born since the mid-1970’s” is “coddled, overexposed and overindulged”. Having grown up with reality TV, they want to be instantly famous. Paradoxically, they also “reflect a new sense of existential aloneness and a desperate need to be recognized”. They are, in other words, narcissistic and disconnected. Or perhaps, they are torn between narcissism and empathy. The jury is out.
A blogger (Valley Girl with a Brain) who defines the Millennials as those born between 1980 and 1995 lets her peers know that she watched 60 Minutes and learned that “Mr. Rogers lied” and they really “aren’t that special” and “there is no perfect job”. And she worries about whether her decision to go back to graduate school was a really special bad decision.
So are Millennials truly that much more narcissistic and disconnected than the rest of us were at that age? David DiSalvo at True/Slant blog says there are not really strong differences between us. We are all embracing technology. We agree on ‘green’ technologies. We believe in diversity. Younger people are more open to increased security measures (with X’ers and Millennials saying “bring it on”!). We are all more accepting of gays and lesbians. We say we don’t much care for reality TV. We are, in truth, much more alike than different.
As we work in litigation advocacy, we hear a lot of negativity directed toward younger jurors and younger lawyers (especially new law school grads). Their work ethic (seen as poor by older attorneys) is blamed for their trouble in finding jobs. If they were not so lazy, the opinion seems to go, and if they did not want instant success, they wouldn’t have such a tough time finding work. It is, in short, their own fault they are unemployed. They have bad values.
Turns out that is likely untrue. A new editorial in the LA Times points out that from 2004 to 2008, the legal field grew less than 1% on average (and the same growth rate is predicted until 2016). The number of likely attorney positions opening per year is thus 30,000. US law schools are graduating 45,000 new JDs every year. Fully one-third of US law school graduates will likely not find employment as attorneys.
It isn’t ‘bad values’ for newly minted attorneys. It’s a bad job market. Perhaps instead of being critical, we should start looking at ways to be inclusive—all the way from enrolling a sensible number of students to law schools each year to finding room for talented graduates in traditional law jobs and non-traditional positions.
Simple rules, beer pong, hysterical laughter & jury questionnaires
What do beer pong and voir dire have in common? Apparently, quite a lot! That’s what the Mass Torts blog concluded with regard to Mark Bennett’s Simple Rules for Better Jury Persuasion article in the most recent issue of The Jury Expert.
We think Mark’s a pretty creative guy and we’ve pointed our readers to his blog a number of times: here and here for example. And we like his rules. They are catchy, easy to read, fun, and likely pretty effective (since they mirror much of what we recommend!). We liked Mark’s simple rules so much, we stole the idea from him for our series on Simple Jury Persuasion. The persuasion literature is huge. Our series is meant to give you a taste of it and see how we apply emerging research findings and random thoughts to the litigation advocacy.
So we thought we’d give you a few amusing excerpts from recent juror questionnaires since Mark’s used up all the funny rules for better jury selection. It takes a LOT of preparation to make the actual work of jury selection/voir dire simple and even fun! And when you are bleary-eyed at 11pm from poring over juror questionnaires for hours and know you have hours and hours to go, every little bit of amusement goes a long way!
- Question: What is your occupation?
- Answer: I am a frozen food stalker at Wal-Mart.
- Watch out frozen food!
- Answer: I am a frozen food stalker at Wal-Mart.
- Question: Have you heard anything about this case prior to today?
- Answer: I am a physician and I will side with the physicians. I know everything about this situation and I know all the doctors involved. I know how sleazy the defense side behavior was. I am very busy.
- Hmmm…I would say she doesn’t want to serve!
- Answer: I am a physician and I will side with the physicians. I know everything about this situation and I know all the doctors involved. I know how sleazy the defense side behavior was. I am very busy.
- Question: Is there any reason you should not serve on this case?
- Answer: I have issues. I could bring a note from my psychiatrist.
- It’s okay judge. Let her go!
- Answer: I have issues. I could bring a note from my psychiatrist.
At 2am, these sorts of comments are hysterically funny. And by 4am, they are likely to make you cry with laughter. It’s tedious work. Painstaking. And that’s why we like the humor and engaging style of Mark’s 16 Simple Rules for Better Jury Selection. We hope you like it too.
Can you assess juror morality by counting tattoos?
Maybe you can. While ink on the skin doesn’t mean what it used to (see our post here) it still is a concern for many among us. Body art/ink has become mainstream as evidenced by its presence among a wide cross-section of the population. Even the very educated have tattoos. One of the blogs at Discover Magazine’s website recently uploaded a variety of ‘science’ tattoos which decorate the bodies of scientific researchers. Very amusing.
But parents worry. And so do litigators choosing juries. What do those tattoos mean? There’s research for that! Thanks to researchers at Texas Tech, parents and litigators everywhere can know what those tattoos mean. In essence, tattoos are like real estate: “The key factors are density and location, location, location”.
Here’s what they did:
Researchers counted the number of tattoos and piercings (and noted just where on the body the markings or piercings were located) and then assessed ‘deviance’ (in the form of marijuana use, occasional use of other drugs, being arrested for a crime, cheating on college work, binge drinking, and/or having multiple sex partners).
And here’s what they found:
Those who had 4 or more tattoos, 7 or more body piercings or piercings of their nipples and genitals (which hopefully will be difficult for most parents and litigators to assess) were more likely to report deviant behavior.
To a very significant degree, tattoos and piercing is a sign of style and fashion, rather than rebellion. Researchers concluded that the growing acceptance of body art means those with truly deviant tendencies have to go a step further (multiple tattoos or nipple piercings) to maintain their sense of social distance. You have to try harder to make it clear that you are an outsider. So you might be able to assess social alienation and disenfranchisement by counting tattoos, but take it easy on wondering about the ones you can’t see.
Biased hearts, biased cameras and biased verdicts
A recent Gallup poll found that Americans are twice as prejudiced against Muslims as we are against any other religious group. This poll was conducted between October 31st and November 13, 2009 (with the Fort Hood shootings by a US-born Muslim military doctor occurring on November 5, 2009). However, the findings are not that far afield from negative attitudes toward Muslims found since the September 11, 2001 terrorist attacks. ‘We’ don’t know many actual facts about the Muslim religion—but we don’t like or trust ‘them’.
Other recent reports include the finding that we are prejudiced toward migrants, in part, because they are awkward for us to think about. That is, thinking about someone who was born in one country and lives in another country now is tiring for us (and presumably we don’t like that).
Asian consumers reportedly thought their face-recognition cameras were faulty until they realized the camera thought they had their eyes closed because the cameras had apparently only been tested on white people. Similarly, surveillance cameras could not track the face of a black man but could track a white woman. Manufacturers say they are “looking into this”.
Racial bias emerges in many places you don’t expect it. And some where you do expect it. We’ve blogged about race and racism a lot: here and here and here. And a new study reports that racial bias also has relationship to how much help we think victims need.
Researchers at Kansas State University examined attitudes toward victims of Hurricane Katrina one year after the hurricane. They looked at measures of conservatism, empathy and racism. What they found is disturbing but not particularly shocking. In the study, the racial biases of participants led them to underestimate the help people need. In other words, the more racist the participant was, the less help they thought the victim deserved.
This has immediate applicability for litigators. When your client has been wronged, racist attitudes on the jury affect the verdict. We’ve seen this first-hand and we recommend this strategy among others. The bottom line is this: do not assume race doesn’t matter in your case. Race always matters. The question is how and in what direction. Don’t go to trial without knowing.
Simple Jury Persuasion: “How likely are you to…”
Researchers have found that the mere act of posing a question such as “How likely are you to buy a Starbucks coffee today?” increases the likelihood that the person asked will do just that. It’s called the ‘mere measurement effect’. By simply having the question posed, we are likely to fulfill it positively. And what is powerful is that we do not see the question as intending to persuade us (therefore, we do not attempt to resist).
The researchers puzzle over the ethical implications of this finding for survey research (what if by simply asking people how likely they are to engage in risky behavior, you actually increase the probability that they will?). We are more interested in the application of this finding to jury deliberations.
- How likely are you to speak up in deliberations?
- How likely are you to insist that the reasons for the jury’s verdict don’t include [sympathy/race/emotion, etc.]?
- How likely are you to carefully consider the evidence presented?
- How likely are you to listen carefully for contradictions in testimony that alert you to a lack of truthfulness?
- How likely are you to be the sort of juror you would want deliberating in a case that you might file for yourself?
The possibilities are endless. Like any valuable tool, you do not want to over use it. But when you want something to happen and don’t want the jury to resist your directive—wield the ‘mere measurement effect’.
How likely are you to try this strategy?
Williams, P., Fitzsimons, G. J. and Block, L.G. (2004). When consumers do not recognize ‘benign’ intention questions as persuasion attempts. Journal of Consumer Research, 31, 540-550.
How a picture can be worth less than a hundred words
We are big fans of visual graphics. They condense complex ideas into digestible images. They help the layperson understand technical jargon in ways that make sense to them. Visual graphics help us to see that our fears are not necessarily in sync with the facts (as you see in this visual on the true odds of airborne terror). A good visual gives us perspective and information that informs us quickly and thoroughly.
And similarly, if we can see a video of a person (even for only 100 milliseconds) we can infer facial expression more accurately than we can in a still photograph. The video gives us context for our interpretation. Given these pieces of information, you might think that a picture or graphic is always better than words to communicate information. And if you think that, you would be wrong. Very wrong. How could you imagine such a thing?!
A new study reported by Research Digest blog provides an example of when we do better with text than graphics. In the hospital. Those graphs and charts are apparently often misinterpreted by harried and distracted staff! Researchers conclude that if those graphs were replaced or supplemented with short passages of text conveying the same information—fewer mistakes would be made.
It reminds me of a birth trauma case I recently consulted on that involved questions about proper interpretation of fetal monitor strips. One problem was that there were no strips. The entire system was digital—you read it on a monitor. The complication is that in order to see the pattern that has evolved throughout the labor, or through the last hour, you have to page back and back and back… and you can’t flip back and forth as easily. The image becomes less clear.
In the life and death decisions often made in hospitals, we want our medical professionals to make the most informed and accurate decisions they can. This study would indicate we should make sure medical professionals accurately interpreted graphic information in hospital charts and that their choices for intervention were consistent with those charts.
van der Meulen, M., Logie, R., Freer, Y., Sykes, C., McIntosh, N., & Hunter, J. (2010). When a graph is poorer than 100 words: A comparison of computerised natural language generation, human generated descriptions and graphical displays in neonatal intensive care. Applied Cognitive Psychology, 24 (1), 77-89.
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