Archive for June, 2009
We hear regularly about attorneys wanting to do inexpensive focus groups, so they present their case to colleagues, office staff, family members or people from their church. Well, it’s data, isn’t it? Isn’t some information better than none? While you may learn something from this approach, we’re not convinced you get the kind of feedback you need from this approach to pre-trial research. Remember the old saw, “a little knowledge is dangerous”?
A recent Psychology Today blog post discusses how feedback from those who care for us can actually interfere with our learning what we need to know. Most importantly, when negative information is presented, it tends to be presented in a “sugar-coated” way which is easier to hear, but also easier to discount. The blog author concludes that if your Mom tells you you’re wonderful—“don’t let it go to your head”.
Focus groups of strangers (randomly selected to depict the demographics of the venire) won’t love you and they don’t sugar-coat their feedback. They don’t care what the case means to you. What they do offer though is a look at your case unfiltered by love, pride, admiration or sibling rivalry. You will get what you need to hear, even if it isn’t what you want to hear. It’s unpredictable. Not like Mom, not like your friends.
Generally, we’re all for the “test the case any way you can” school of thought. But it can be extremely misleading to rely on that feedback, when it comes from a skewed sample of the venire.
Do it right, and you can have an honest assessment of your case as it strikes real people (who don’t care whether you win or lose):
- You will be able to identify potential landmines in your case.
- You will hear what themes or facts simply get missed by the jurors.
- You will observe how jurors struggle with the evidence and apply their own experiences to help them understand what happened.
- You will hear the metaphors and analogies jurors use to make sense of the case facts.
- You will hear which arguments resonate with jurors and which ones fall flat or are dismissed by jurors as nonsense.
The goal of pre-trial research is to teach you about the weaknesses in your case presentation. Not to hear how wonderful, attractive and articulate you are. So visit with Mom and the family. They love you. But do research with strangers if you want to learn the most you can about your case.
Bias is a funny thing. Sometimes we can see it or feel it because the reaction is so strong it’s hard to ignore. Other times it operates under our radar and we make unconscious assumptions about values, attitudes, intelligence, and worldview based on what we see with our eyes.
Tattoos are a good example of a more subtle bias. We often draw conclusions from the presence of tattoos alone. And tattoos on the face or neck or hands or all over the body are especially prone to setting off our biases. Are those biases correct? Tongue-in-cheek graphic aside, we can’t know if our assumptions are correct until we ask some questions.
The fact that tattoos have dramatically changed in meaning over the last 20 years can’t be ignored. For those under 30 they are commonplace, and even larger designs can be seen in urban offices. For people from less urban locations, or those who have less contact with the tattooed generation, it can be alienating. For those who are attuned to such groups, it can be a bridge.
A highly tattooed juror may be bright, thoughtful, influential and just who you want on the jury. What’s important is paying attention to our gut reaction. I often tell clients that if they dislike a juror for any reason, they have to assume that the juror will perceive it. Peremptory strikes are precious—do you really need to use one because someone has a tattoo? What does the tattoo mean, to you and, more importantly, to the tattoo owner? If you want to strike that juror—why? If it’s only the tattoos, think again. What do you know about that juror that is invisible to the eye? Striking the tattooed juror may be a judgment error based in your own unconscious bias. (Of course, if the tattoos are swastikas on the juror’s forehead, don’t feel obliged to ask them a lot of questions! See our post from May 14, ‘Who’s on your jury’?)
Living life in peace…”
John Lennon’s words on how to get to a better tomorrow have just been verified by researchers. Simply imagining positive interactions with people who are different than us reduces our bias against them. Can it be that simple?
While past research has shown that contact with another racial group reduces bias and that “knowing someone who knows someone” from another racial group can reduce bias also, now we have even more promising research. Researchers had participants imagine positive interactions with an elderly person and with a Muslim person—just for two minutes. And what they found was that bias decreased and positive feelings increased.
In litigation, we know the importance of making our clients “more like” the juries (see our previous blog entry from February 26, “Be More Like Me!”). This research would tell us to find ways to have jurors ‘imagining’ a positive interaction with our client.
- A “day in the life video” that paints a two-minute positive introduction to our client and then shows the jurors what a day in the client’s life is really like.
- Testimony that illustrates the client’s likeability, trustworthiness, positive acts, et cetera.
- Perhaps in a closing statement that asks jurors to close their eyes and imagine how the world would have been different if the facts that they have come to know had not happened. How would the world be different? And how can the jurors make it different going forward from here?
Regardless of ‘how’ it’s done, the lesson from this research is that simply imagining a positive connection makes us less biased. Not a bad idea!
Sonia Sotomayor’s nomination to the US Supreme Court in May 2009 unleashed a storm of controversy based on her remarks on her own judicial decision-making:
“I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life”.
While Rush Limbaugh chastised her for showing “reverse racism” and Newt Gingrich suggested she should withdraw her name from nomination for this “racist” statement, others considered her remarks (taken in context) to reflect a simple truth that judicial decision-making is strongly influenced by the life experiences of the individual judge. The debate over Sotomayor’s comments and whether they reflect bias on her part will likely continue through her anticipated confirmation hearings.
It is intriguing that an invocation of racial identity is viewed as racist. The US is a racial society. There is no way to escape that truth. We have written a white paper (see “articles” section of our website) about how to mitigate the affect of race on juror decision-making. The single best strategy for mitigating racial bias is to discuss it. Discuss racial components of the story, point out how that makes race irrelevant or not, and put it in the past if that is where it belongs. If it is not dealt with and dismissed smoothly, the moderates who have fears of the unfamiliar will not be at ease.
As we have followed the news on this emerging story, we are not sure why this idea is so controversial.
It has long been accepted that jurors make their decisions based on a story narrative of the case based on events from their own lives not found in case evidence.
Most of us would undoubtedly say that when we consider the facts of a story, we apply our own experiences to our judgments of the validity of the story.
Yet, somehow, we assume that a judge would differ? And do we especially assume that a Latina judge would differ? It is curious that the loudest detractors of the Sotomayor nomination have been white males whose personal histories have not been spotless. Do whites have a corner on objectivity and impartial decision-making? Probably not.