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As the country becomes increasingly divided (again), we are seeing increasing indications of closed minds on jury panels. This is reflected in the blogosphere and in recently emerging research findings. Sadly, this appears to be a time of seeking to affirm pre-existing beliefs rather than informing ourselves and coming to our own conclusions about hot button issues.

It has become commonplace to think that the news channels prospective jurors watch can tell us about their politics. We blogged about this here and here. So it isn’t surprising when we hear the results of a study in the journal Media, War & Conflict telling us that we don’t seek out television news to inform ourselves, but rather to affirm ourselves. That is, we watch television news shows that support our pre-existing beliefs, rather than those that could challenge those pre-existing beliefs.

Or, as Robin Hansen at Overcoming Bias blog tells us, we are “built to rationalize”. In other words, Hansen says, “our minds often unfairly defend our most deeply held beliefs” and “when we sense such beliefs being threatened, our minds distract us, refuse to comprehend alternatives, and grab onto weak excuses as though they were timber”. It is what we do. We use cognitive shortcuts like stereotypes to help us defend against new information and maintain confidence in our pre-existing beliefs.

So given the resistance of entrenched beliefs to change and the relatively short timeframe of most jury trials, how can you attempt to seat a jury most open to actually hearing your case?

  1. If your case resonates with conservative and/or religious values, you may like jurors who show evidence of dogmatism which is, essentially, being powerfully wed to a particular belief system. These jurors will hear your case and dismiss opposing counsel (particularly if you show them how the other side does not resonate with their strongly held values).
  1. If, on the other hand, your case resonates more with liberal or pluralistic values (the more ‘gray’ areas), you want to identify jurors (for disqualification or peremptory strikes) who will dismiss your case without listening. Look for group affiliations that would indicate the likelihood of dogmatic beliefs.

And for those of you curious about a short-hand way to identify those more open-minded—here’s a tidbit. The same study finding that we seek to affirm rather than to inform through our television news habits, also found something that may surprise you. Those who watch television news on the Al Jazeera English network become less dogmatic! And the longer they watch, the more open they are to opposing points of view. We find that very intriguing. Opposing counsel may well know ‘who’ watches Fox or listens to NPR—but do you think they know who listens to Al Jazeera? Ah, but now you’ll make sure to know.

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We talk a lot about how race plays a role in litigation but we also need to talk about the role of the dominant culture and sub-cultures. In this country, the dominant culture is white. There are subcultures of multiple varieties but members of the subcultures (whether they be Hispanic, African American, Vietnamese or Asian) have special knowledge of both the dominant culture and the subculture because they live in both worlds. This knowledge can be powerful on a jury.

We did a focus group a few years ago where the plaintiffs were an African American family and the grandmother matriarch of the family was deposed on video. The story was a very sad one. Her daughter had died in an industrial accident, leaving young children who were being raised by the grandmother along with their father. Her testimony was stoic and the mock jurors were not impressed with her. They spoke of her lack of emotion and interpreted it as her being in this “for the money”.

And then a thoughtful young Asian male spoke up. “She reminds me of my Grandmother,” he said. And he explained her stoic attitude as one stemming from pride and discomfort in showing emotion to strangers. And the room turned. Jurors wanted to find reasons to like the Grandma. Seeing her seeming distance and aloofness as pride mixed with grief made sense to them. They imbued a young Asian male with knowledge of the African American sub-culture because he said something that resonated with them.

The lesson for the litigator is simple. If you have witnesses or parties who are immigrants, members of ethnic minority groups, or simply present in a fashion that makes them appear odd or uncaring—frame their presentation as a likable and sympathetic characteristic.

  • Establish an identity for your witnesses, both through your opening statement and through testimony that precedes their own.
  • Tell jurors ‘why’ the witness comes across as they do.
  • Have other witnesses testify as to their integrity, warmth, caring, and discomfort in strange environments.
  • Show them caring for family members or grandchildren in a loving way.
  • Show them with pets or in volunteer activities.

Clarence Darrow said a lot of memorable things. One of them was about the main job of the trial lawyer being to help the jury like his (or her) client. His belief was that if the jury likes your client, they will find ways to support your client. We believe that too.

Brumbaugh, A. (2002). Source and nonsource cues in advertising and their effects on the activation of cultural and subcultural knowledge on the route to persuasion. Journal of Consumer Research, 29, 258-269.

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Lighter Skin, More Like Me

Wednesday, February 10, 2010
posted by Rita Handrich

Matthew Harrison has an article on Colorism in the January issue of The Jury Expert. He discusses the role of colorism (or “skin color bias”) in the workplace and then three trial consultants discuss his work in the context of the courtroom. There’s a lot of good information for litigators in the trial consultant responses and we recommend you go take a look if you are interested in learning more about the relationship between skin color and bias (in the workplace or in the courtroom).

It’s a timely piece. As the country becomes increasingly polarized, researchers keep churning out work on our biases and how they result in us modifying how we see others. For example, the Atlantic reports on a study showing that our own partisanship determines how we perceive skin color. The more we believe the person shares our own values and political perspective, the lighter skinned we believe them to be. If we do not believe they share our perspective and values, we see them as darker skinned. (This was measured by asking participants to choose the photo they thought best depicted Barack Obama—a darker skinned photo or a lighter skinned photo.)

Miller-McCune website  also discusses this study and wonders if we are likely to like people less if we see darkened images of them. They cite the infamous photo published by Time Magazine of a skin-darkened O.J. Simpson during his 1994 trial. The racially ambiguous, according to Miller-McCune, are harder to categorize than the clearly white (for example, John McCain) or clearly black (for example, Michael Steele). The very ambiguity may require more cognitive effort on our part to process and we know that ambiguity can be disorienting and confusing.

We’ve said it before. Race and racism is becoming more nuanced. Your dark-skinned client/witness/party/self may be seen more negatively than your light-skinned client/witness/party/self and you need to prepare for that before entering the courtroom.

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Voir Dire Clinic

Monday, February 8, 2010
posted by Douglas Keene

This blog post marks the beginning of a series, the frequency of which will be decided by you.  I was asked, by a very gracious and experienced litigator/reader, if I would weigh in on a voir dire dilemma she recently faced in Federal Court.

There was no attorney voir dire, so she only had the opportunity to submit questions for the judge to ask.  Questions had to be put plainly and directly, and she needed them to be voir dire questions of a sort the judge would consider appropriate.  The results of my analysis and top 3 suggestions are below.

She suggested that this would be an interesting blog series, and I agreed.  Maybe you do, too.  So here is what we’ll do.  If a situation we know of strikes us as being worthy of this treatment, we will offer our own fact pattern as the basis.  But what would be far more interesting is if your ideas and case concerns take center stage.  If reading this brings to mind your own case facts  you would like to see discussed, let us know.  Feel free to modify and obscure the facts to mask the case, and we will not publish the name or venue of the person who submits it.  Try to limit the case description and your view of the primary concerns to about 150 words.   Submit it as a comment to the current blog post, and we’ll take it from there.

We have been writing for years about the fact that we put little stock in persuasion and our belief that the best a fine trial lawyer can do is to build a bridge between the values and preconceptions of the jury and the facts of the case.  A perfect voir dire weeds out the venire members who are disinclined to allow that bridge to be built.  But where are the land mines? Let’s look at the case presented for analysis.

Case: Knicknack Supplies decides to contract for custom work to be done offshore.  They hire Acme Logistics Co.  to arrange for manufacture in China, for which Acme is to receive a fee.  The fees fall grossly into arrears, time passes, and a lawsuit is born.

Quandary: What questions might we submit to the judge to identify jurors who will hold negative views of the Acme Logistics, whose whole business is arranging advantageous offshore manufacture for American companies?  Acme’s counsel is confident that the contract is clearly in Acme’s favor, if only it is not muddied by these negative views.

Analysis: The underlying assumption is that the jury will attribute more of the responsibility for the move offshore to Acme than to Knicknack (which is not necessarily true).  But if this assumption is true, we want to find people whose values are protectionist toward American companies, who feel the strain of the shift toward Asian manufacture, and who are more interested in punishing over the changing job climate than tracking the facts of the case.

Questions:

Who goes out of their way to buy products made in the US whenever possible?

Who feels that it is disloyal to our own country to shift jobs overseas that could be done here, just for the sake of small savings?

Who has no interest in ever visiting Asia?

Discussion:

The first question addresses lifestyle.  Are you willing to work to support the US economy through your shopping choices?  Most people who say this don’t live it, but it is their willingness to say it that is of the greatest interest.  It signifies that they are hardcore.

The second question gets at whether they are looking for scapegoats.

The third question, which might not meet with cheerful endorsement by the judge, is actually very meaningful.  It seeks out those whose minds are closed to any potential merit in understanding others and in a global culture.

So, send us some comments.   Of course there will be many more questions submitted to the court.  What would you add?  Why would you add it?

And on what case would you like input?  Shoot us a comment about this one, and pose a case and quandary for us.  We’ll offer our take on it, and see what our readers suggest for consideration.  This could turn out to be fun!

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The study of rhetoric is rooted in classical Greek philosophy and the mastery of rhetoric/argument was then seen as a desirable skill. ‘Rhetoric’, in modern times, is often used dismissively and seen as meaningless and perhaps manipulative as intimated in the phrase “mere rhetoric”. During the Presidential campaign, President Obama’s gift of rhetoric was often used to minimize the impact of his message—“oh he’s good at talking all right, but what is he saying?”

In the courtroom, you can use the same strategy. Frame opposing counsel’s oratory as ‘rhetoric’ and that becomes a code word between you and the jury for “meaningless and perhaps manipulative”. You, on the other hand, have “reality”—a truthful and honest account. (Just make sure you back up that assertion with some facts.)

Other strategies to underscore your adversary’s verbiage as meaningless rhetoric could include presenting yourself as consistent (where your opponent is inconsistent or ‘flip-flopping’) and producing scientific data to back up your claims (Symon, 2000). These tactics make your own presentation persuasive while throwing doubt onto your opponent’s presentation.   [Because these terms can be culturally loaded due to their use in the political sphere, be careful in choosing your dismissive or laudatory terms.  We recently advised a client to change his description of a wildly creative witness from “rogue” to “an innovator” because of the association with a former governor and budding news commentator.]

Symon, G. (2000) Everyday rhetoric: Argument and persuasion in everyday life. European Journal of Work and Organizational Psychology, 9(4), 477-488.

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