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Archive for September, 2009
Simple Jury Persuasion: When to talk about racial bias and when to stay quiet
Common wisdom would say you should always raise issues of racial bias if your client is a member of a minority group. Common wisdom isn’t always right. When walking through the minefield of racial issues you need uncommon insight.
Here’s what we know: Racism is alive and kicking in the US of A. Based on research since the civil rights movement in the 1960’s and 1970’s and the cultural awareness curricula in the 1980’s, racism has not dissipated. Instead, it has morphed into a more insidious form, cleverly called ‘modern racism’.
According to those who write about ‘modern racism’, most majority group members ‘know’ they are not supposed to be biased and they work to appear non-biased. Most rely on cues from the environment to alert them to the expectation that they should behave in a race-neutral fashion. When these cues do not appear, however, majority group members (in most American situations these are also known as ‘white people’, although in social environments dominated by African American, Asian, or Hispanic groups, the dynamic is the same), they will automatically and habitually make decisions that are driven by deep-seated biases.
What this means for you is this: You should overtly raise the race issue when race is not salient to the story itself, and not do so when race is central to your case facts. Granted, this does not make sense. Neither does racism. Racism is driven by deep-seated emotional experiences that are often not accessible to us on a conscious level. Yet, they control our behavior. The heart of the reasoning is that if the racial elements are self-obvious, you don’t need to put the jury on notice to consider it. But if it is less obvious, or even irrelevant, the jury needs to have their awareness of potential bias raised. It has to be done in a non-manipulative way and without being heavy handed, but it has to be done.
We worked on a case where the plaintiffs—a professional couple—had been horribly injured through no personal fault in an airline crash. It was a miracle they were alive. The defendant had acknowledged liability, and all that was left to determine was the amount of the damages. The case was presented to a focus group and the empathy was palpable in the room. These people would never be the same. Their injuries were explained, medical expenses and lost income identified and dismal future prognosis for physical and emotional recovery foretold. Focus group members were angry. Then the day in the life video came up and there was a stunned silence in the room: the plaintiffs were African American! They were also educated, upper middle class, attractive, church-going, upwardly mobile, and well-spoken. These were the type-A workaholics of the American success story, but they were also black. Nothing had changed in their story except that earlier, focus group members had pictured them as like themselves (i.e., white). During deliberations, multiple ‘reasons’ were given for the low awards proffered (most not even covering medical bills).
“They should not be asking for money. They should be on their knees thanking God they’re alive!”
“My mother was injured in a mass transit accident & she never asked for money. I just want to punish them for asking for money.”
“I bet they were having fun getting bumped up to first class before all this happened.”
Race was irrelevant to the case facts. Focus group members had no external cue to tell them to behave in an unbiased fashion. Therefore they automatically extended biased reactions in the guise of non-racist rationales.
In this sort of case, if you are representing the plaintiff, you want to raise the issue of race. Alert white jurors to the expectation that they will fairly consider damages and awards. If race is not mentioned, it will subtly affect the deliberations, even though it will never be mentioned by the jury.
Alternatively, if you are representing the defense, show lots of pictures but say nothing. If the plaintiff attorney does not know to raise the race card, jurors will make their decisions based on prejudices and misconceptions.
Being a litigation consultant can be disheartening at times like this focus group. We were ashamed at the state of our society after this group, and disheartened that as a nation we had not grown more since my Dad marched in Selma, Alabama and we all should have learned better than this. But here we had a situation in which settlement of a case for less than its objective value seemed to make sense. In the wake of these findings, we did the research needed to understand why it happened, and to develop strategies for our clients (who, in this example, were the plaintiffs).
We have undertaken research for our own edification as well as the benefit of our clients numerous times, and after our clients have benefited from the most current analysis, we make these papers available to you at no charge. If you’d like to read the lengthy article we wrote reviewing racial bias at trial, register at our website and download “Juries and Racism: A Failure of Justice“. And scan the other offerings. These are papers that were written for private clients, or for the ABA, AAJ, ACTL, and other CLE sponsors.
“Friending” the Judge
Forty-five percent of employers report they use social networking sites to screen applicants for employment as of August 2009 and even more plan to do so in the near future. And it’s pretty common knowledge that lawyers are using on-line profiles to gather information regarding prospective jurors. But now the tables are turning in an odd way. Attorneys: take note! The judge may want to be your “friend”.
A recent article in the Texas Lawyer tells about three Texas judges and how they use Facebook and other social networking sites to network, solicit campaign support, and “other purposes”. It’s that last part that’s the real clincher. These judges are reading profiles of attorneys, witnesses, and plaintiffs/defendants that share “too much” and could be used in court against them.
We are all figuring out how to use Facebook, Twitter, and LinkedIn as we go about our daily activities. While it is likely never a good idea to call the judge an “evil, unfair witch” in your blog, keep in mind the following as you develop and refine your on-line persona:
- If you are using social networking sites for business purposes, have two sites—one personal and one professional.
- Assume that even your personal site becomes publicly distributed—keep your profiles and content “G-rated”.
- Keep all of your posts suitable for universal consumption– watch what you post, tweet, blog, or text.
- And don’t make my own mistake—double check the “To:” line on emails just before you hit send, not moments afterward.
Sure—it will make you less witty on the web, but it won’t come back to bite you. The line between the personal and the professional is blurred as never before. We don’t have control over how others may use easily collectible information about us. As you think about the growing field of e-discovery—consider what you are putting out there about yourself. It is likely not just Texas judges that are watching.
Preparing the Witness: Sometimes it’s easy (sometimes it’s not)
Two new research studies highlight the potential complexity and also the simplicity of the witness preparation process. What is fascinating about these studies is that they approach the same problem from such different different perspectives. The challenge is in knowing when you may need to use which perspective.
Let’s say your witness is not confident and you need him or her to project an aura of confidence to enhance credibility, likability, and believability. The witness may seem nervous, fearful, or even guilty. What you do depends on your assessment of what results in your witness’ lack of confidence.
Intervention 1: You assess that your witness needs to “feel” or “see themselves” as more powerful. The first new study would say you can help your witness project more confidence by simply having them sit up straight. That’s simple, isn’t it? It can’t be right—it’s too simple, virtually dumb. But the power isn’t merely appearance—confident posture can trick our brain into thinking we are more confident and thus have impact on how we present ourselves. This approach assumes the problem is a simple matter of slightly modifying self-presentation.
Intervention 2: You assess that the witness is deeply shamed about their role in the case, the decisions they made, or how they behaved. Their reaction may be to respond to examination with anger, obfuscation, or guilty ‘deer-in-the-headlights’ paralysis. The second study shows how people who are paralyzed by shame tend to internalize and over-personalize the situation. This is a much more complex issue, but assist the witness to identify external factors that contributed to their decision. This tactic can help the witness shift their perspective from being a “bad person” to being someone who has perhaps done something bad or wrong due to external influences. They can’t run away from their conduct, but they also need to gain some perspective on their role.
We see shame-based responses in witnesses with no reason to be ashamed—from medical malpractice to commercial cases. It’s not the type of case that matters. It’s the type of personal reaction your witness has to a complex combination of case facts and personal idiosyncrasies. The best possible approach may be a combination of the two interventions: address the shame and inoculate the witness against the shame. Then tell them to sit up straight!
“I can look into his eyes and just tell he is lying”
We see this routinely on witness evaluation forms and we hear it in mock jury deliberations. Perhaps the most overt misinterpretation of intuition came almost ten years ago when we were doing a focus group and jurors didn’t like the plaintiff. One of the attorneys (who had done some community theater work) wanted to come out and “be” the plaintiff. She did. She appealed to the jurors and stated her case. She returned to behind the observation mirror. As the door closed behind her, a juror spat out “I thought so before I ever saw her in person but now I know for sure! That woman is on drugs.” She was convinced and she convinced some of the other jurors. Intuition can be a powerful thing.
As a further note on that embarrassing event, I will say that we urged our clients to use deposition excerpts and not live testimony with surrogate actors (even before this). Jurors feel so strongly about the role of character, the power is truly in the messenger as much as the message. But boy, that attorney’s law partners are still telling stories about that mock trial. She will never live it down.
Recently, the Jaycee Dugard case was cracked by a police officer who credited “police intuition” for her suspicion, followed up by investigation and the eventual liberation of an 18 year kidnapping victim of a convicted pedophile. Intuition is powerful. And sometimes it’s right. And other times it is horribly wrong. One recent Texas case garnering a lot of attention across the country seemed to combine intuition with facts in a way that may have resulted in the execution of an innocent man. Intuition can close our eyes to the facts in front of us. In focus groups and mock trials we have tested juror reactions to witness testimony excerpts that run 30 minutes and longer and compared them to reactions to the same witnesses after the first 8 minutes. The scores are nearly identical. What jurors conclude about character, likeability, and trustworthiness crystallizes within the first few minutes. We see things how we want to see them. We make the story make sense.
How can we minimize the role of mistaken intuition in juror decision-making?
- Decide in advance how intuition is likely to affect your case. Do you want snap judgment or considered opinions?
- If a key witness or party isn’t reliably likeable, have lead-in witnesses provide context for the key witness’s quirkiness that makes it more palatable.
- If there are assumptions (aka inaccurate intuitions) that mock jurors attribute to your case or witnesses, establish an identity for your witnesses that accommodates the image and makes it more tolerable.
- When jurors don’t have an explanation for something, they are free to fill in the gaps with incredible flights of fancy. Ensure that your case makes sense and leaves no holes or questions for the jury to fill in without you.
Intuition may or not be a scary thing, but it is very powerful. Intuitive errors flourish when fueled by incomplete or distorted information given to us. Fill in the blanks. Clear up distortions. And then trust the process.
Simple Jury Persuasion: Facts do not believers make
Many from the Baby Boomer generation recall Sgt. Joe Friday’s words on the TV show Dragnet: “Just the facts, ma’am”. And we can’t count the number of times we’ve heard from attorneys that their “facts are persuasive” and they just need to “tell jurors the facts”. It sounds good. Unfortunately, it often isn’t enough.
If you’ve been reading our blawg for awhile, you may have picked up that we are firm believers in using values and beliefs that resonate with jurors to tell your story. Yes, facts are important. The problem is that your facts may be heard differently by jurors than you intend.
Jurors may hear the facts and attribute motivations to your client that exist nowhere but in jurors’ minds. It can be a scary thing for litigators. When jurors in mock trials begin to discuss their theories of conspiracy or collusion based in intuition and hunches—litigators look distinctly green in the dim lighting of the observation room.
Simple Jury Persuasion Rule 2: Facts do not believers make
Many of us have seen the famous Clarence Darrow article on jury selection by identification of religious affiliation, gender and/or ethnicity. This sample quote is but one of what we would now consider egregious assumptions:
“Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both in one, plead your client guilty and go down the docket. He learns about sinning and punishing from the preacher, and dares not doubt. A person who disobeys must be sent to hell; he has God’s word for that.”.
Clarence Darrow was a brilliant attorney. But (ahem) some of his ideas translate over the years better than others. And one of them beautifully illustrates the perspective behind our Simple Jury Persuasion Rule 2:
“Don’t merely give the jury reasons to acquit your client. Make them want to acquit him (sic) and they will find the reasons.”
Eliot Spitzer, Uncivil Behavior & Possibilities of Redemption
This year has been a field day for anyone studying impact of sexual misadventures on the careers of public figures. It’s hard to know what the public cares about when the offense is merely a character flaw. If it doesn’t cost us money, we don’t seem to judge harshly, or at least not for very long.
When Eliot Spitzer, the NY Attorney General, was publicly shamed into resignation and labeled “Client #9″ in a prostitution ring scandal, few thought he had any future in public life. But a recent poll in the Atlantic magazine makes us wonder. Five hundred New Yorkers were asked (on September 1, 2009) if they would vote for Spitzer if he ran for public office again: “15% would vote for him “no matter what”, 39% would vote against him “no matter what”, and 47% said it would depend on what office Spitzer ran for and who else was on the ballot.”
The Atlantic goes on to say that they think a 2010 run for office is a long shot for Spitzer but who is to say what could happen? The public sometimes has a long memory for disgraced heroes and other times we are inclined to overlook past failures.
When Eliot Spitzer fell from grace, we wrote a paper identifying strategies for the litigator with a publicly disgraced client. In that paper, we focused on five basic steps to follow:
- Apologize correctly to mitigate hypocrisy
- Rebut the fundamental attribution error
- Focus on past positives and weigh them against this fall from grace
- Focus on what has been lost and how your client has been affected
- Avoid surprise
You can download a copy of this paper (Client No. 9: Defending Uncivil Behavior) at our website. Scroll to the bottom of the page and register for free access to various papers we’ve written over the past 10 years. We promise we won’t sell, trade or use your contact information for nefarious purposes. We just want to know who is interested in our ideas and we will let you know from time to time when we have new papers on the website.
The complete paper describes what to do in each of these steps and why (based on the recent research) you should do the actions recommended. We think you’ll find it useful.
While the public may be willing to look the other way when a family is victimized by salacious conduct, the rage against fiduciary violations has real sticking power. The findings in our previous paper are as relevant today for the management scandals of today and tomorrow as they were during the Enron scandal (see “Enron Effect: Uncertainty, Mistrust, and Cynicism”).
Simple Jury Persuasion: There is no such thing as “Persuasion”.
We’ve been reading Mark Bennett’s Simple Rules for Jury Selection and wishing we’d thought of that! So we are ‘liberating’ his idea with some simple rules of our own. Once you have your jury (perhaps using Mark’s ‘simple rules’) how do you persuade them?
We spend a lot of time reading the research on persuasion and have determined that we’re not sure we believe in persuasion per se. If it exists, it isn’t in the form most people think of as ‘persuasion’. We have all been working on our world view our entire lifetimes, and by the time jurors are sworn in, they aren’t subject to being swayed by your soaring oratory. The bad part is, “Wouldn’t that be nice!” The good part is, “What a relief—I’m off the hook!” Jurors want to do their own assessment of the case, and they will use their own yardstick to measure. Therefore, rather then trying to persuade them to adopt a new view, spend your time crafting a trial story that connects the case facts with their already-held values and beliefs.
There is no such thing as “Persuasion”
- What the most gifted and skilled advocates do is not “persuade”, but rather they craft a story that connects with the strongly held beliefs of jurors.
- They don’t create arguments or conflicts. They make the points of connection more compelling than the points of division. Egregious behavior isn’t bad because it offends you, it offends because of its impact on the values of jurors.
- So tell the jury’s story while you tell your client’s story. Help the jury to see that what is most important to them is manifest in a verdict for your client.
Over the next year (or so) as we see new research that reminds us of the persuasion strategies we recommend using—we’ll write blog posts about them and categorize them all under “Simple Jury Persuasion Rules”. We hope you enjoy them. We know we’ve enjoyed Mark’s excursions into jury selection!
Update: October 4th, 2009. As we’ve begun to identify our ‘simple jury persuasion’ strategies–we have realized there are too many to be categorized as ‘rules’. So we’ve modified old posts and changed the category to ‘Simple Jury Persuasion’.
I can’t hear you!
In the arena of ideas, blather often wins the first round. The question remains open about who wins the fight.
We see it in the current debates and confrontations over healthcare reform occurring in town hall meetings across the country. We see it in the persistent belief demonstrated during the 2004 election that Sadam Hussein was linked to the terrorist attacks of 2001. Or in the “birther controversy” over whether Barack Obama is really a US citizen.
Despite our best efforts to communicate a clear and persuasive story, we are often stymied by confusion, distortion, and disbelief from our audiences. Because of the work we do, we especially see it during our mock trial and focus group research when attorneys listen to deliberations from behind the darkened glass of the observation room, chewing peanut M&M’s in frustration while saying “I didn’t say that! Where did s/he hear that?!”
After fifteen years of chewing our own M&M’s and trying to understand why it is happening in a specific case, we now have research to tell us why it happens time after time. It turns out, that “for the most part, people completely ignore contrary information”. Researchers from four major research institutions labeled this tendency to ignore contrary information “motivated reasoning”.
In other words, like David Duchovny in the X-Files…we want to believe. In the case of the belief that Sadam Hussein was involved in the 9-11 terrorist attacks, researchers say Americans needed to make sense of the Bush administration’s decision to go to war against Iraq. And these believers were not being duped by propaganda. According to the researchers, they were simply trying to make sense of a current reality: we were at war and there needed to be a reason for it.
So should you just throw in the towel if your story can’t penetrate the pre-existing beliefs of jurors? Maybe not. We certainly hope not. We saw this process in action just last week while doing a mock trial where one of the parties was a financial services industry company.
This industry has certainly not had good press in the past few years and the current state of the economy has not helped their reputations. A recent Gallup poll found that only 28% of Americans view these companies positively. In our group of mock jurors, only 20% viewed the financial services industry positively. Yet, after all the facts were presented, jurors grudgingly acknowledged that while they “wanted to blame” the financial services company, the facts simply would not allow it. In fact, the financial services company was the “hero” of the story in jurors’ eyes. They didn’t like it. But they had to acknowledge it. If a financial services company can be the “good guy” in the midst of a banking crisis, there are ways to make people hear what they don’t really want to hear.
Our Rule #1 of Jury Persuasion: There is no such thing as “Persuasion”.
What the most gifted and skilled advocates do is not “persuade”, but rather they craft a story that connects with the strongly held beliefs of jurors. They don’t create arguments, they build bridges between the case and the values of jurors. They make the points of connection more compelling than the points of division. So tell the jury’s story while you tell your client’s story. Help the jury to see that what is most important to them is manifest in a verdict for your client.
They’ll hear you.
In Praise of Coffee: It’s powerful stuff
There have long been rumors about the benefits of coffee (and of course the risks, but this is all about the good stuff). Drink coffee and lower your risk of diabetes, Parkinson’s, colon cancer and dental cavities! And get this, the more you drink the more protection you have. Somehow I missed this study and have been limiting my caffeine intake. New research out this week means those days may be behind me!
I saw a study this week on how increases in the number of Starbucks in a neighborhood are associated with a decrease in crime. The article cites gentrification as the reason. Hmmm. I wonder. I remember the Starbucks shooter but Starbucks is listed as evidence of gentrifying along with ornamental grasses, three colors of paint rather than two on houses, artists and gelato. Starbucks does our neighborhood analysis for us? So, hello Starbucks and neighborhood pride, goodbye urban decay and violent crime?
Another study out this week talks about how hot coffee can influence how much we think we like someone. A new study in the journal Psychological Science shows that we like people more when we’re holding a hot beverage. The authors link this to our use of metaphorical language such as “she gave me the cold shoulder” or having “warm feelings” toward someone. Maybe a café Americano says “welcome” better than a rum and coke.
While it certainly is true that I am much less irritable after I’ve hit my neighborhood Starbucks, maybe it also means I’m less prone to violence and more genial when I’m sipping my favorite (venti skinny vanilla latte) hot drink. But I’m not sure I buy that coffee is that powerful. Still, I’ll pay more attention to my assessments of others when I have a hot as opposed to a cold drink!
I never knew Hitler had three testicles…
The power of language has always been the heart of advocacy. What is also painfully—if not shamefully true is that something stupid or inane can morph into the stuff of “amazing but true” if you say it long enough and relentlessly enough. The lies that surround Obama’s place of birth as well as the incredible ‘death panel’ nonsense should make this obvious, but of course, social science can be counted on to shore up common sense with baskets of statistics. Consider the following:
In 2007, an article was published in the Journal of Personality and Social Psychology titled: “Inferring the Popularity of an Opinion From Its Familiarity: A Repetitive Voice Can Sound Like a Chorus”. In brief, what this study says is that if we hear something often enough, we begin to believe it is true. At that time, this idea was fairly novel. What a difference a few years makes! Now we can know for sure that when you repeat even untrue ideas enough, they become part of the cultural zeitgeist—and are believed without question.
The danger is this: when we hear a phrase or fact often enough, even when it is immediately rebutted/debunked, it increases our likelihood to recall the false fact in the future, but not remember that it was false. Instead, we remember hearing, for example, that Hitler had three testicles but not that the rumor was totally false. Behavioral scientists call this phenomenon “familiarity breeds belief”. And you don’t want to actively confront these beliefs—that can make them stronger. Seed magazine recently published a really nice article on “Death and the Rumor Mill” that is worth reading to see how arguing with these sorts of rumors can actually strengthen them!
So what does this mean for litigation advocacy? How can you undermine the evocative phrases that take on a unique and short-hand meaning due to media exposure?
- Don’t repeat their phrases! If opposing counsel uses a catchy phrase to describe what your client has done, don’t use that catchy phrase yourself! All that will do is reinforce their message. Come up with your own catchy phrase to give jurors the rebuttal to opposing counsel’s message in the deliberation room. Turn “pro-abortion” into “pro-choice”. Transform “inheritance taxes” into “death taxes”. To understand the importance of this more fully, read George Lakoff’s books (“Don’t Think of an Elephant: Know Your Values and Frame the Debate–The Essential Guide for Progressives”, “Thinking Points: Communicating Our American Values and Vision”)
- Can you pull off a ‘Barney Frank’? Probably not. He has a very safe district, so his amazing rejoinder to an offensive town hall attendee was comparable to aggressively attacking a witness on cross exam when it is clear that the jury dislikes him already. It’s risky, but if you have the ability to communicate non-verbal disbelief without being offensive, it’s a strategy worth using. Then you follow-up on cross-examination in a tone making it obvious you find the testimony difficult to believe. To be effective, you need more than simple logic without drama. You challenge an emotional argument with a rebuttal that balances logic and emotion. And preferably incorporates humor.
- Appeal to jurors desire to not be duped/deceived. “This is simply wrong. Opposing counsel is trying to trick you into believing something when the facts show it is simply not true.”
The problems of false rumors masquerading as truth are not likely to disappear anytime soon. But as we see them rising in the media, we can all be practicing ways to rebut or detoxify them. Practice. When similar issues arise in trial, you stand a better chance of reacting effectively. Or employing them yourself.
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