Archive for January, 2010
PsyBlog recently posted about a classic study where researchers examined how attractiveness was related to stereotypes about sociability, humorousness and intelligence. What they found, of course, is that when we believe others think we are attractive—we then appear as more scintillating, sociable and amusing. Their conclusion is that this offers an explanation of why we are different across various social situations.
So imagine you are concerned about how the jury will react to you. You’ve had limited trial experience and you expect that they will figure it out and as you think about it you become increasingly anxious. What the research just described would say about this is that your negative thinking is going to shoot you in the veritable foot.
Instead, visualize how you wish you would present yourself in voir dire. Then do it. Smile. Make eye contact. ‘Like’ the jurors. Appear confident. Show self-effacing humor. Set the tone early on for the jury to see you as likeable, attractive, intelligent and reasonable. As the trial goes on, you are more scintillating and intelligent and entertaining than usual. Which makes you more credible and believable. Hmmm.
Maybe you have a big deposition coming up. A ‘friend’ sent you a videotaped deposition of “how we do it in Texas” and after you stop laughing hysterically you begin to wonder if this is really how you are supposed to depose someone in the Lone Star State. It certainly isn’t what you intended to do. Then you realize that your friend sent it to you to break your anxiety. A friend indeed!
So breathe. Think about your goal. Be grateful that your deposition is not likely to involve fisticuffs with a senior citizen. Be polite and follow your plan.
We are different in various situations. But fortunately we have choices about how we’ll approach different people and situations. Challenge your intrusive anxious thoughts about performance. Play the role of a confident, likable, intelligent attorney a few times and it becomes second nature. It’s who you are. It’s what you do.
Likability. It’s a tough one. Especially in court where you might be a little nervous and there are so many uncertainties.There are some who say “just be yourself” and we would say “well, if your ‘true self’ is likeable, that’s fine” but there are ways the research tells us you can increase your likability. It wouldn’t hurt to try them out. If you’re worried about whether they will seem genuine, test them in a focus group and see what happens. [Note: We have observed people evidently testing these strategies out in bars, but we don’t recommend this. Too many complicating variables… unless your jurisdiction allows you to play music and serve drinks to jurors. If your jurisdiction allows this, please contact us immediately.]
Similarity, praise and compliance
The first finding has to do with similarity and praise. Researchers have found that two factors stand out as particularly compelling in terms of increasing likability: similarity and praise. Robert Cialdini is one of the gurus of persuasion and communication strategies. A real rock star in the marketing world. He reports that feeling similar to others quite literally draws people together. We stand closer when we learn we have similar political views. And we enjoy sincere praise. We all know how that makes us feel closer to the person praising us (as long as we believe they can be trusted). What Cialdini shows us is that praise generates liking and willing compliance with the wishes of the person praising us.
So find similarities between yourself and the members of the venire and praise them for honesty and willingness to respond to your queries.
Smile and the world smiles with you
Ever caught yourself smiling at a coworker or neighbor just because they smiled at you first? Cialdini calls this the principle of reciprocity. We tend to treat others as they treat us.
If you want the jury to receive you warmly, treat them warmly first. Smile.
Get juror’s commitment publicly
While liking is a powerful force, you also want to get jurors to be committed to what you want them to do. Cialdini says there is powerful evidence to show that when we publicly commit to a course of action through the spoken word or in writing, we tend to follow through. We aren’t suggesting that you ask for commitments on verdict issues, which is obviously improper in most jurisdictions.
Attorneys often ask jurors to commit to deliberating fairly and without bias. But what does that really mean? Instead, focus on something they have already done as a ‘first step’ toward a commitment to fairness. Build a bridge between their commitment to what is acceptable, such as fairness or a commitment to the evidence, and the verdict that you attach to it
“During jury selection we discussed the idea of fairness. Of what justice means. Of how the American jury system is the single greatest protection we have as citizens, because it is citizens, neighbors, voters making the decisions. Not politicians or bureaucrats. It is our community. So it leaves us with the challenge of making our community represent fairness in real life, and doing the right thing not just for the people in this court, but for our county, for our state…”
If they have completed a juror questionnaire, refer to their effort made in an attempt to show where the areas where they might have trouble being fair. Praise them for being thorough in their completion of the questionnaire. Frame completion of that task as step one. Participation in voir dire is step two. Listening intently and maintaining an open mind throughout the courtroom presentations is step three. And step four is deliberating fully and with integrity to allow justice to be done.
Similarity, praise, smiles and a call to action based on past behavior. And voila! You are not only more likable, you are more likely to have actively engaged jurors who want to do the right thing.
PsyBlog writes that when we tell a good story about why we think what we do about others we are usually wrong. That is, when we try to describe the factors that are important to us in coming to a conclusion/decision about whether we like someone we usually identify factors that don’t actually matter at all.
In other words, when I think about why I judge a person about something—I am usually wrong.
So when mock jurors say “character doesn’t matter, it’s the facts that matter”—this is why they are wrong. They like to imagine that they are objective, and to them this means a dry assessment of the evidence.
But it is more than that, and their effort at constructing a ‘just world’ is a powerful element. It is frankly pointless to try to stop jurors from doing it—you can’t fight human nature.
The best testimony is a hybrid of important facts and a window into the character of the witness and the parties. Character matters, and if your client is woefully lacking, your challenge is to create a context for their inadequacies that mitigates the impact.
He isn’t insensitive—he is a geek.
She isn’t cruel—she is protective.
Sequence your case narrative so that good character shines through and jurors see that even though your client may have made some bad decisions, s/he is likeable and a well-intended person.
Vaughan Bell at Mind Hacks blog (one of our favorites) discusses an article in the APS Observer on the psychology and power of false confessions. The article itself is a good read that points out the many reasons for false confessions. It then shifts to a discussion of how lay persons and experts modify their own opinions after learning about confessions. In brief (and you really do want to read the full article) they found that lay people (read ‘jurors’) and experts (read ‘expert witnesses’, ‘forensic experts’) change their evaluation of the non-confession evidence (the other evidence presented) and see it as stronger evidence against the accused.
Situationist Blog also comments on this research quoting the primary author saying ““the most common reaction I get from a lay audience is, ‘Well, I would never do that. I would never confess to something I didn’t do.’ And people apply that logic in the jury room. It’s just that basic belief that false confessions don’t occur.”
This is potentially deadly. We ‘see’ evidence differently if we know someone has confessed. The Innocence Project has hard data on the relationship of false confession to wrongful conviction. But what do you say to jurors?
- If you can’t keep the confession out via a motion in limine, you have an uphill climb.
- You can show them evidence of false confessions and how they are coerced.
- You can teach them about the powerfully biasing effects of a false confession.
- And you can tell them about the Innocence Project’s numbers on how often we wrongfully convict based on false convictions. Ask them to look at the evidence. If they didn’t have that confession, would they convict?
Persuasion strategies that have the effect of making a story more attractive or palatable are known in the research as “alpha” strategies. They are the most commonly used and most commonly understood persuasion tools. For example, when a car sales person lowers the price of the vehicle you are considering purchasing–that can be seen as an “inducement” to purchase or an “alpha strategy”. There are other tools however, known as the “omega” strategies that are used to minimize resistance to the offer being given or the story being told.
Eric Knowles, Ph.D. has done a fair amount of research in the omega strategies. As Dr. Knowles concisely states on his website:
“Rather than adding inducements for action, I study how to identify and dispel opposition to change. Resistance can be avoided, minimized, confronted, reframed, acknowledged, distracted, used up, or turned against itself using a variety of effective, inexpensive, psychological techniques. If an action didn’t have resistance, there would be no need for persuasion.”
Not surprisingly, we like to think about Dr. Knowles ‘omega strategies’ in the context of litigation. But we turn them inside out a bit and think about how to use them to either decrease or increase resistance depending on your goal. (We’re funny like that.) Let’s take just one of the omega strategies and show how this can be done in a litigation scenario.
Anticipated feelings of regret: As we make decisions, we are anxious about making mistakes or somehow being disappointed in ourselves over choices we made. Addressing those fears directly can result in either an increase in resistance or a decrease in resistance—depending on your goal.
“The Defendants are saying the Plaintiff will not live to a full life expectancy so why fund a full life care plan? The one thing you can be absolutely sure of is this: No matter how much money you think she will need for care, no matter how long you think she will live—You are wrong! You can’t know for sure, no one can. So in a very real way, the question for you to answer is ‘What mistake would I rather live with? Would I rather run the risk that she exhausts the money she needs to live a life with some dignity, or would I rather run the risk that she will die prematurely, and her family will inherit what she leaves behind?'”
“The plaintiff is right. Ms. Jones has been horribly injured and no amount of money will ever bring her back to the life expectancy she may have had. It’s a very sad thing and we join you jurors and everyone else in this courtroom in feeling the tragedy of her injuries. As a society, we need to care for one another. But as individuals, we are responsible only if we are the cause of the injuries. My client, even though they are a company, is to be treated like a person. Like any person, in any courtroom, seeking justice. It is no more or less than any of us deserve. And the evidence is, that the person that is my client is not responsible for the needs of Ms. Jones. If we are, as a society, let’s gather somehow and have that discussion. But that gathering place should not be this courtroom, and the responsible party is not my client.”
There are other omega strategies, including ‘disruption’ (asking for the unexpected which decreases resistance) and ‘exposing deception’ (“you’ve been fooled by the other side already” which will increase resistance). Using these strategies effectively in litigation requires you to think creatively. Instead of thinking of ways to change the juror’s minds, think of how you can increase resistance to the other side’s case and decrease resistance to your own case.