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Archive for October, 2009
Simple Jury Persuasion: Beware what the other side will tell you…
“My opponent will tell you…”. Some variation on this line has been used in movies, novels and in the courtroom—and often with very good effect. Why?
Warning your jurors about the position that someone else will try to convince them of often results in increasing their resistance to persuasion. Researchers in persuasion tell us that when we are warned about what is to come, we immediately begin to engage in what is called “anticipatory counter-arguing” prior to even hearing the message (Jacks and Devine 2000). Instead of their focusing on the crucial argument of the other side when they hear it, they respond to the inevitable opposition theory with “Hey, that other lawyer warned us you were going to say that ! Ahaa!” By letting jurors know what is to come from the other side, you cue them to begin ‘yes-butting’ the other sides’ position very early on.
And, lest you think this tendency is the sole province of younger jurors, there is evidence that resistance to persuasion tends to increase over time, with the middle-aged more likely to have strong pre-conceived notions that enable us to counter-argue opposing positions (Wood 2000).
An early warning can increase jurors’ resistance to persuasion by your opponent.
Jacks, J. Z. and P. G. Devine (2000). “Attitude importance, forewarning of message content, and resistance to persuasion.” Basic and Applied Social Psychology 22(1): 19-29.
Wood, W. (2000). “Attitude change: Persuasion and social influence.” Annual Review of Psychology 51: 539-570.
I know what you did last weekend (and the weekend before)
Social media involvement has become a fact of life. We have profiles on-line with connections to friends, family, colleagues, and people who really are more strangers than friends. While there have been concerns expressed about the potential for privacy intrusion in all this publicly, until now there have only been suppositions. Recently though, a student research project at MIT, Project ‘Gaydar’ was used to identify sexual orientation of students through Facebook ‘friends’. (The comments on this article are an interesting read as well) Other studies (described in the same Boston Globe article) predicted political affiliation, where people lived, their gender, their dog’s breed and whether someone was likely to be a spammer.
Tracking information like this isn’t exactly new. Following up on the Boston Globe story, Mind Hacks describes ‘traffic analysis’ in law enforcement. This is a pre-internet technique used to identify social networks through phone call patterns. Both the Project ‘Gaydar’ work and ‘traffic analysis’ rely on the principle of ‘homophily’—or ‘birds of a feather flock together’. We connect with people who are like us and therefore who are friends are may reveal more than we are intentionally choosing to disclose.
Two tips:
Watch what you do and say on social network sites. What you do on the internet will essentially live forever. What is clever and witty in context can haunt you forever as a sound-byte.
Pay attention to what jurors do and say on the internet. Blogs, social networks, discussion forums, online profiles—all these resources are being used by potential employers and schools to learn more about their applicants. Use them to learn about jurors’ beliefs and biases (either for or against your particular case).
In other words, be careful and be strategic.
“I can see it from both sides”
This is one of the scariest comments uttered during jury selection. The scary part is that it has little meaning, but if you aren’t politely persistent, it can hide the truth. The problem is that “I can see it from both sides” is the cognitive equivalent of “I am still breathing”. Unlike the image to the left, which might be initially awkward to visualize in both forms, the two sides of an issue are pretty easily spotted, especially since the jurors have just been told what the two sides are. What is left unsaid is “I can see both sides, but I like what I see on one side much more than the other”. What the response means is, “I don’t want to have to think very hard about my assumptions or preferences”. Not meaningful, not helpful, and you might be stuck with it. [The implications of this message for voir dire will be dealt with in an upcoming entry in our “Simple Jury Persuasion” series.]
Mock jurors often make this statement in group deliberations as they attempt to articulate the opposing parties’ positions. While they often present a superficial understanding of “both sides”, sometimes their belief that they understand things thoroughly can be pretty shocking.
This past week, I ran across the info-graphic illustrating American political views created by David McCandless & Stefanie Posavec. It is more insightful than the cartoonish format would initially suggest. Their work depicts a wealth of information on values, attitudes and beliefs that normally takes books to communicate. Instead, they offer up a modern version of the pictogram with amazing amounts of information from both liberal/progressive and more conservative points of view.
In a way, this is a lesson for litigators. Simply because of the amount of time you spend on a case, you develop a form of tunnel vision. You see your side. As for the other side? Much harder.
That is why, when preparing for a mock trial or focus group, we recommend that lead counsel takes on the opposing counsel role. It’s the very best way to see things from their perspective, and, in so doing, you also see holes in your own case that were not visible to you before.
The act of taking on the ‘other’ perspective, allows you to both see and hear things differently. A recent study profiled in Science Daily illustrates that how you present/articulate/characterize your side of the story defines precisely who will hear it and who will not hear, or perhaps even distort it. When even experienced litigators are fearful of rolling the dice with a jury trial, it makes a lot of sense to consider that other perspective and craft your case presentation to increase your odds of being heard by both sides.
The image on this post is a famous example of seeing something from both sides—the optical illusion allows you to see either an old woman or a young girl.
Litigation consulting and the meaning of life
I like to work on cases that I care about. Who doesn’t?! Life is more meaningful when we spend it on activity that has personal meaning, right? As a litigation consultant, I am faced with cases with facts that are obviously compelling, as well as others whose appeal is, shall we say, ‘non-obvious’. What my kids ask me, though, is “are you working for the good guys?”
What a simple question. “Are you working for the good guys?” And how complicated. But it is, at bottom, what jurors want to know, too. And it is the challenge of every trial lawyer and every litigation consultant to find a path to “yes” when asked that question. In morally ambiguous cases the answer may become “there are no bad people in this story, it is simply sad.” Or “these are good people who really lost their direction.” But the challenge is to find a way to feel good about them.
My experience working with new attorney clients is that the first time we work together, like any ‘first date’, is a bit tentative. I feel my way around their approach to doing things, and they learn my strategic ideas. The second time is more fluid, as most second dates tend to be. When we have an opportunity to work together a third time, we do it as friends and collaborators.
Several years ago a client/friend and I had a meeting about a new case for which he had sent me the documents for review, and at the beginning of the meeting I said “I really like this case”. He burst out laughing and said that he knew I was going to say that, and he questioned whether I was seeing the case realistically. What ensued was an extremely fruitful exchange of ideas about the risks of the case, the points of attraction, and what it will take for a jury to “like our case”. What he realized (and now, years later, what he has come to expect from me) is that part of my task is to see the path jurors need to take to “like our case”, as well as the detours that will cause them to find against us.
As a determined optimist, I want to believe that a verdict in favor of my clients represents justice. That is what juries want to believe as well, and the job of a litigation consultant is to assist the trial counsel to illuminate that path. If I can’t find a way to make a positive verdict for my client feel like a good thing, I can’t expect a jury to. Juries are extremely good at detecting authenticity. Belief about the merits of our case, even with the conscious awareness of its flaws, is the tightrope we walk every day. Thousands of jurors have told me what they care about, and where the threads of tolerance are woven into the fabric of their beliefs and values. We keep this knowledge foremost in our minds, from discovery to resolution.
So yes, kids. I am working for ‘good guys’. But the opposition might feel that they’re working for good guys, too.
Simple Jury Persuasion: It feels good to get along
There’s a really good reason for obtaining verbal and/or non-verbal agreement from your panel during voir dire. Not only does it begin the process of building your relationship with potential jurors, it is also a means of predisposing them to continue to be in agreement with you as time goes on through the trial.
Here’s how it works: The principle itself is one of “commitment and consistency” (Mills 2000). You can be more persuasive by obtaining what you might think of as ‘small beginning commitments’. This might be around issues such as traffic that morning, finding parking by the courthouse, or even a comment on the weather. You establish yourself as comfortable with them, as caring about their comfort, and you make good eye contact with them.
As you move through your voir dire, you are asking for opinions, asking about agreement from the panel on various issues, and letting them know you want them to feel comfortable with the burden they take on as jurors in a pending trial. Research on persuasion tells us that people like to see themselves as behaving consistently. When you establish a pattern of agreement early on in voir dire, those who will eventually become jurors are more likely to continue to agree with you as long as you are reasonable in your requests/presentation of evidence. (This is why skilled negotiators begin with the ground rules first—to establish that all-important pattern of agreement.)
Agreement in small things can lead to agreement in larger things.
Mills, H. (2000). Artful Persuasion: How to command attention, change minds, and influence people, AMACOM.
It’s not just jurors who are doing it
If you haven’t heard accounts of problems related to jurors and the internet in the past year, you have been living under a rock. The increase in media attention makes it seem like a new problem. However, the internet has played a disruptive role in courtroom activities and jury deliberation since at least 2001 according to the Citizen Media Law Project. And while the legal system’s attention has been largely on jurors, don’t kid yourself! Judges. Parties. Witnesses. Attorneys. People who should know better are using the internet inappropriately. It really isn’t just the jurors.
Last week I had the privilege of participating in a distinguished program at the annual meeting of the American College of Trial Lawyers in Boston regarding the complications of internet use and jury trials. As part of the preparation for that program we at KTC did some extensive research on the role of the internet in the courtroom and prepared a brief paper. Here is some of what we found:
Social media use is most pronounced among those 25 and younger with sharp declines as we age. But don’t assume this is a consideration for younger jurors alone. Fellow panelist Sean Ellsworth, a criminal defense attorney from Miami, related the story of an important trial tainted by juror internet research. When the misconduct by a single juror was brought to light, the judge individually interviewed the entire jury. Of the 12 jurors, 8 had done some form of internet research related to the case, and the age range of the offenders was 20-68!
Social media use is a fact of life for most of us. If a burglar can’t resist checking his Facebook status while in the high-adrenaline process of burglarizing your home, what’s to stop a juror during courtroom tedium?
But it isn’t just jurors! We found examples of judges, attorneys, witnesses and parties in addition to jurors. Ex parte communication, blogging case facts too thinly disguised (as was also discussed on the panel by Boston personal injury attorney Elizabeth Mulvey), Facebook snooping, texting witnesses and more.
Jurors do, of course, misuse the internet by doing research and posting updates to Facebook or Twitter.
So what should be done? Many suggestions have been made (in addition to much hand-wringing). Our review of the literature (popular and professional) suggests the following strategies:
- Revise jury instructions with specific language about electronic devise use. The instructions need to include an explanation of why it is important, not merely a command to resist.
- Remind the jurors at regular and appropriate intervals.
- Tell jurors that part of their oath is to report any sign of juror misconduct by anyone on the jury, including any indication that someone is using the internet in violation of the rules.
- Make it clear that violations of these rules are violations of the law.
- Add voir dire questions that address actual juror internet use.
- Ask in voir dire if jurors would abide by instructions not to use the internet.
- Consider questions jurors will have as the trial unfolds, and include the issues in the examination of witnesses.
- Allow jurors to ask questions. It has the effect of diminishing juror longing for extra information, and allows them to feel like a more active part of the trial process.
Arm yourselves with information to deal more effectively with the challenges. Read the whole paper we prepared. Visit our website and download the article ‘Wired for Justice: The Internet in the Jury Room”.
But they did it on purpose!
We know that when we think someone hurt us on purpose, we are more angry and perhaps even morally indignant. The idea that we were hurt intentionally makes our blood boil (or tears flow). We know this anecdotally. And now, we know it to be scientifically true!
Harvard researchers have found that pain hurts more intensely if we think it is being inflicted intentionally rather than accidentally. The authors use the example of why we stay in abusive relationships—if we presume the hurt is accidental, it’s okay to stay. When we finally realize the hurt is intentional and will continue, we can often muster the courage and integrity to walk away.
This is an intriguing study because it speaks to the heart of telling the emotional story at trial. You want jurors to have an emotional response—a connection to your story, to your client. You want them to ‘want to’ find for your client, and see him or her as a worthy recipient of their support. What this research tells us is that if the pain inflicted on your client was ‘intentional’, jurors may have a stronger emotional response to it. Here is how we might use this research finding to inform practice:
- In a divorce case: S/he purposely deceived your client knowing full well that if these behaviors had been known, our client would have ended the relationship.
- In a contract case: They entered into this verbal agreement with no intention of performance, their intent was simply to delay competitive progress while they worked on their own plans.
- In an intellectual property case: S/he purposely worked with us to take our research findings to a competitor and secretly filed a patent application before ours was filed.
And so on. Your goal is simply to light the fire of moral indignation in the minds of the jurors. You want to answer both aspects of the common juror refrain “it may be legal but it sure isn’t right”. Show them it isn’t right. Show them it isn’t legal. Give them facts to buttress their feelings in deliberations.
Sometimes what feels wrong is still legal conduct. That is unsatisfying to jurors, but they usually want to track the law. But sometimes the law works as it should, and what is wrong is also illegal. When that happens, jurors become engaged on a very personal level. Let them know: “This one isn’t right AND it isn’t legal.”
Simple Jury Persuasion: Make an emotional connection with your jury
We all know that the emotional connection is an important one for attorneys to master in the courtroom. But what are the best ways to make that connection with jurors?
Jurors tell us they don’t like it when lawyers cry. They see it as phony and manipulative. However, making a connection with them is essential if you are to be optimally persuasive. Emotional connections are not about tears and righteous indignation.
Jay Conger tells us that people who are good at persuasion use emotions in two very important ways:
1) “They feel their commitment to the position they are advocating in their heart, mind and gut, and are able to show that to others” and
2) “They have a strong and accurate sense of their audience’s emotional state and adjust the tone and approach of their argument accordingly” (Conger 1998).
While the second item on Conger’s list is hard to gauge in the highly fluid environment of the courtroom—the first is pure gold for the attorney presenting a case. You must prepare to the extent that your commitment to your case and your belief in what you are presenting is reflected in your “heart, mind and gut” and the jury will see your truth. If you are credible (i.e., competent and likeable) the jury will be more likely to hear your story in the way you wish them to hear it.
You connect emotionally to the jury by connecting emotionally to your case.
Conger, J. (1998). “The necessary art of persuasion.” Harvard Business Review 76(3): 84-95.
Beware the ‘expert’
If your mind is empty, it is always ready for anything; it is open to everything. In the beginner’s mind there are many possibilities; in the expert’s mind there are few. –Shunryu Suzuli
Too much knowledge can be a bad thing…
Critics of our jury system often decry the practice of removing people from juries who know too much about specifics relevant to a particular case. Recent years have seen much press coverage about physicians and even lawyers being allowed to sit on juries despite historical concerns that they could unduly influence other jurors. Researchers have indeed found that attitude change (and the willingness to allow attitudinal change) is related to a threshold level of relevant knowledge. At least a little bit of knowledge is a helpful thing.
A little knowledge or even an average amount of knowledge can still result in an individual open to changing their attitude. But having more than the average amount of knowledge (or simply perceiving yourself to have more knowledge—whether you really do or not) becomes detrimental to attitude change. Why? Because having (or believing that you have) specialized knowledge relevant to a particular situation/case results in biased processing—you fall back on what you believe to be true rather than listening to what the facts are and processing more carefully (Fives and Alexander 2001).
We saw this in a product liability case involving an automobile manufacturer. Prior to the case presentation, we measured the amount of knowledge participants in the focus group had about auto repairs and other mechanical areas. What we found was striking: the more people perceived themselves as having knowledge about cars and things mechanical, the more defense-oriented they tended to be. In deliberations they dismissed expert testimony about the frankly technical issues, relying instead in their ‘shade tree mechanic’ level of knowledge about how cars work. Those focus group members who did not have similar levels of self-perceived expertise were more frightened by what had happened and tended to be more plaintiff-oriented.
In this case, knowledge about a relevant case area resulted in a bad juror for the plaintiff case and thus, a good juror for the defense. Beware the self-professed expert with good verbal skills—unless it will work for your case. They will rely less on facts and more on their own beliefs.
Know when you want jurors who know something about your case and when you don’t.
Fives, H. and P. A. Alexander (2001). “Persuasion as a metaphor for teaching: A case in point.” Theory Into Practice 40(4): 243.
Liar, Liar, Pants on Fire!
We all like to consider ourselves good judges of character. Most of us think we are better than the general populace at knowing when someone is lying to us. Unfortunately, even the experts at deception detection are not that great at it. The threshold for detecting deception is about 60% (compared to a coin flip which would be 50%). While the popularity of TV shows like ‘Lie to Me’ may convince jurors otherwise, there is no magic formula for ‘knowing’ when someone is lying (despite assertions that there are ‘detection deception wizards’).
But take heart. Recent research has found multiple behavioral strategies that can be used to identify deception without being a wizard. These are pre-trial, deposition strategies, not on the fly efforts in the courtroom! Unlike Perry Mason, you don’t want to go fishing in the courtroom. You want to reel in your fish beforehand so you know what you have when you are questioning a witness.
To uncover deception, try these three research-based tactics:
1. Ask them to draw
A new study in the journal of Applied Cognitive Psychology shows that liars tended to draw about their story from an “overhead view” while truth-tellers drew more often from a “shoulder camera view”. The authors hypothesize that liars have less time to work out the details of the scene (about which they are lying) and that it’s easier to make something up verbally than it is to first visualize it and then create it on paper.
2. Ask them to tell their story backwards
Aldert Vrij has long done research on deception. His new research focuses on increasing ‘cognitive load’ to identify liars. Vrij says a simple way to do this is to ask the liar to tell their story backwards. Police observers were able to identify 9 signs of deception when stories were told backwards compared to only 1 when stories were told in the correct order.
3. Consider: Are they having to think hard about this answer?
Vrij also suggests that as you are in the interview, you use a more indirect questioning method. That is, consider whether the subject seems to be thinking hard about what they are saying or if they simply seem to be reporting a past recollection.
While these three strategies won’t turn you into a deception detection ‘wizard’, they will likely help you to increase accuracy in observation about who is telling you the truth and, alternately, who is not.
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