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Archive for April, 2010

It’s easy to miss things when you are traveling or taking depositions or not focused on current events. Honestly, is it safe to go off the grid? We want to make it easier for you to keep up. Here’s a collection of things you may have missed that may (one day) be important for you to know. And, if not, perhaps they will brighten your day and that makes it all worthwhile!

Trust your intuition!

Some years back, a contestant on the Dating Game was the winner of a date with the Bachelorette. His name was Rodney Alcala and he was a pretty good-looking guy although also a bit creepy. Allegedly, the bachelorette refused to go on the date with him. Turns out he has recently been convicted of serial murders. So if you are dating and feel an odd vibe—run!

And if you don’t trust your intuition…

So let’s say you slip and don’t trust your intuition and the next thing you know, you are restrained with zip ties. [Don’t you hate it when that happens?]  There’s actually a tutorial for breaking free. As a commenter said, “you never know when you might need something like that”.

Everyone’s a critic!

You do your best work yet there is always some naysayer who will criticize. But they usually (we hope) don’t call the police! The spring snowstorms of 2010 brought out the artistry in a pair of siblings who sculpted a lovely tribute to Venus de Milo in their front yard. But someone in the neighborhood complained about the snowwoman’s nudity and they had to dress her. Remember when AG John Ashcroft had the statues in the Department of Justice draped?

Staying current on trends

Finally, it’s our job to stay current on trends and so here’s an important one to know about. You may know about the Bedazzler (a tool to make otherwise normal looking garments into something suitable for the Grand Old Opry—with sequins, rhinestones and metal decorations). Well the creative craft crowd couldn’t leave well enough alone. There is a new trend involving hot glue but with nothing to do with garments. It’s called ‘vajazzling’ and involves rounding out a bikini wax with decorative applications of colored crystals. It’s evidently not recommended for health reasons but we don’t think it’s done for health reasons.

Just our effort here at Keene Trial to keep you up to date on what’s happening in the world. In case you missed it. Just know we remain vigilant always.   And while we are all for artistic expression, we are not recommending vajazzling.  Or even Bedazzling.  But unlike John Ahscroft, we trust you to exercise your own artistic sensibilities.

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An illusion of privacy…on the internet?

Wednesday, April 28, 2010
posted by Douglas Keene

We’ve written before about jurors and the internet but wanted to post an update for all of us. We tend to act more freely online. A recent PsyBlog post highlights the fact that the single and the young are more likely to disclose the most on Facebook. They disclose things they would never disclose face to face with a stranger. We would all do well to reconsider what we disclose on social networking sites—although the new Facebook privacy rules may have helped people to review their Facebook settings already. It wouldn’t hurt at all to take another look.

We may act more freely because we think we are somehow anonymous. And that may not be the case!

Consider, for example, the judge in Cleveland, Ohio who is suing a newspaper for $50M claiming it conspired to discover private information with a website. The claim filed by Judge Shirley Strickland Saffold alleges that the website reported the judge may have made anonymous comments on a newspaper’s website about cases in front of her court.

The newspaper says they filed an open records request and determined that the judge’s office computer was on the web site at the time three of the comments were left. “The only thing we did that the public couldn’t do was figure out whose e-mail was associated with those comments in the first place,” Plain Dealer Editor Susan Goldberg said.

We have written, been interviewed, and have spoken at CLE programs frequently over the last couple of years about the need for judges to instruct jurors explicitly about ways internet communications and information needs to be avoided until they are released from trial duty.  Evidently Judge Saffold hasn’t been following our work in this area, or the work of countless courts that have made meaningful changes to jury instructions.  But perhaps the worst example so far this year is from Judge James Oppliger who emailed his fellow judges about his ongoing jury service.

The point is that you never know when that which you believe to be anonymous or private—won’t be! Just ask the policeman whose texting case was just heard by the Supremes.  While Judge Saffold is alleged to have not only made the mistake of assuming anonymity but also of commenting on cases before her court—we would hazard a guess that she certainly will be more careful about assuming anonymity in the future.

And finally, the dark side of social networks. While many would say that social networks often foster negativity and bias (and here and here) there is a new site out there that really is likely to pull negativity. is a place to evaluate friends, colleagues, waiters, service people—in essence, to write about anyone you wish.

According to Anne Fields’ blog, this site is an invitation for those who don’t like someone to simply trash them. And, as one social media expert says “Increasingly, today’s ‘social web’ doesn’t empower people. It empowers hate, exclusion and polarization.”

We all need to ‘be careful out there’ and monitor what we say and how we say it. You may want to think about monitoring your own reputation at a site like StepRep. And, if you’re a judge, avoid commenting on open cases!


We’ve talked before about the importance of teaching jurors how to deliberate and here’s another take on that same topic. The always excellent Research Digest Blog recently did a post on the importance of NOT starting group discussions by sharing initial preferences. In brief, what they say is that doing a straw poll on preferences at the start of group discussion shuts down the following discussion. We simply do not pay attention to the novel information others may share once we have expressed our own preferences.

We see this routinely in deliberations of mock jurors. Those groups who begin deliberations with “Let’s see how close we are…” never have quite the same level of discussion as those groups whose presiding juror invites a consideration of the evidence for and against various charge elements. The implication is pretty clear. As you are educating jurors about the charge (using an enlarged copy of the jury questions)—you can also instruct them on the best way to begin deliberations. If they resist a premature vote they are likely to engage in a more thoughtful and considered verdict.

If, on the other hand, you want a verdict that relies on biases and stereotypes (and sometimes, this is indeed what you will want) then do not instruct them—or actually encourage them to take a straw poll when they get to the deliberation room.  The basis for the vote will shift from being fact-based to being belief-based, and is more likely to produce a more stereotyped, broad-stroke decision-making process. Just be sure you know what style of thinking/deliberating you want!

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My 16 year old announced this to me as I took the first sips of my morning coffee. A year ago, I might have questioned her drama, but this refrain is now familiar to me, possibly triggered by a broken fingernail, stretched-out sleeves in a favorite sweater, or her brother’s swiping the last of the ice cream (an all too common event). So instead, I nodded wisely [read: I mostly ignored her] and drank more coffee while she moved on to other things. And then I checked my email only to find that my teenager is not alone in her angst. Many of us seem to ‘hate everything’.

We track public attitudes as part of our ongoing work to stay aware of changing perspectives in potential jurors. Rasmussen Reports is a terrific source for polling on a wide variety of issues. And this morning (with “I hate everything” fresh on my mind) I saw that:

  • 73% of Americans assume Goldman Sachs committed fraud and 39% of us think the government’s investigation of Goldman Sachs is based on a legitimate concern about fraud.We hate corporations.
  • Instead of growing concern about global warming, fewer of us are concerned that this is a serious issue and more of us think its seriousness is exaggerated. This is unfortunately consistent with a new Miller-McCune report on what seems to be a growing lack of faith in what the scientific community believes. Do we also hate scientists, or is this more accurately a reflection of the worries over jobs, the economy, and a flood of change that feels destabilizing to so many?
  • 54% of us lack confidence in the U.S. banking system. Only 8% are very confident in the stability of America’s banks while 11% are not at all confident.While we maybe don’t hate banks, we don’t like them much.
  • 60% of us say our kids’ textbooks place political correctness above accuracy, while it is hard to believe that 60% of parents have read a public school textbook, much less 60% of the larger public. So I guess this means we must hate liberals, too. This has been widely covered in the news as Texas’ textbooks are being revised to the “right”, some would say “right” off an educational cliff.

And it goes on and on (and on). The promise of change offered by Barack Obama’s historic election to the Presidency of the United States has settled back into cynicism and polarization and we are seeing it in the jury pools. We see it in court during voir dire and we see it in mock jurors as we do pretrial research across the country. We see it in Rasmussen Reports and in my sixteen year old daughter.

“I hate everything” (as with ‘we hate everything’) is generally directed at vague and ambiguous targets like the government, banks, corporations and so on. Your case is about specific people, specific contracts, specific companies and specific acts, yet the toxic and cynical overspill is going to take its toll. It’s long been accepted that our attitudes are more positive toward specific individuals (e.g., “MY congressional representative is good”) than they are towards groups (e.g., “CONGRESS is bad”).

Your focus (even more in the current ‘we hate everything’ climate) has to be on highlighting ways in which YOUR client and THIS company and THIS contract are the shining exception to these difficult times, motivated by good intent (as opposed to greed or evil intent). Jurors can then safely continue to ‘hate everything’ but make an exception for your case.

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Simple Jury Persuasion: The Omega Strategies

Wednesday, April 21, 2010
posted by Douglas Keene

The Omega strategies in persuasion are much less well-known than the alpha strategies (direct persuasive tactics). The Omega strategies are subtle, often indirect and work to reduce the target’s resistance to being persuaded. As we did with the Alpha strategies in last week’s Simple Jury Persuasion post, we’ll list the strategies with brief definitions and then describe how you would use these tactics in the courtroom. Some of them are useful while others are not such a good fit for the adversarial environment of trial.

  • Sidestep resistance (redefine the interaction—you are consulting not persuading). There are multiple strategies you might use to sidestep resistance. Knowles & Linn (2004) offer several of these that seem to fit in the courtroom.

Redefine the interaction: You can reframe the trial process as a sharing of facts with the jury to allow them to weigh and examine the story and determine what the best outcome is for the parties involved.

Minimizing the request: Instead of requesting a large sum of money (or opposing an amount in damages)—break down the damages you want into smaller units and explain ‘why’ that is an important figure.  Then move on to the next element of damages and explain why that one is deserved. And so on. The leap from one smaller request to another smaller request is easier for jurors than a lump sum request.  Research has also suggested that the more lines on a verdict form, the more money is awarded.

Raise the comparison: Instead of asking for the Cadillac damages package—ask for a nice Chevy with lots of extras. Then tell the jurors about the Cadillac package. This makes your very nice Chevy look reasonable in comparison.  Offering choices to the jury conveys to them your trust in their judgment.

  • Address resistance directly (address target’s reluctance by lowering costs, offering guarantees, et cetera)

While this could be risky, it has its place in your strategy toolbox.  And it needs to begin during voir dire.  Talk about why good people could feel reluctant to accept your view, and why that pull needs to be set aside.  Allow them to feel okay about the feeling, and ease their transition to a favorable conclusion.  We have come to believe that it is unlikely that you are going to come up with a point of resistance that some alert juror isn’t already stuck on.  You need to take control of that conversation if you can.

  • Address resistance indirectly (build target’s confidence, self-esteem, self-worth to remove reluctance)

Help jurors understand complex information with clear and paced testimony (including solid visuals to help in cognitive processing). As jurors become ‘more expert’ in trial-specific information, they will feel better about their capacity to process the evidence and less resistant to coming to a decision supportive of your client.  In closing, observe to the jury that some had said during voir dire that they didn’t feel qualified to judge, as they didn’t know anything about engineering, or medicine, or banking… And then remind them that you promised to provide them the necessary information, if they would provide the commitment to learn and the open mind necessary to understand.  Now they have what they need.

  • Distract resistance (distract target to interfere with their focus on counterarguments)

This is the Boston Public or Ally McBeal tactic of courtroom litigation. We don’t recommend this one either. You run the risk of appearing unprofessional or manipulative.  In criminal cases, though, it can be appealing when the stakes are all-or-nothing.

  • Use resistance to promote change (frame message so that resistance to the message promotes change—as in ‘reverse psychology’)

You probably are not surprised that we feel uncomfortable using reverse psychology (“members of the jury, please find for my opponent”) in the courtroom. However, there are also ways you can decrease resistance by simply acknowledging the resistance exists. We blog about this here. In court, you may want to use this idea as follows: “You may struggle to accept this, but…” or “This may be difficult for you to believe but it is true that…”. For some reason, mentioning resistance does not strengthen it but rather diffuses it!

Overall, the use of omega strategies in the courtroom is more complex than using the alpha strategies but may be very worthwhile. We hope you’ll consider these ideas as you plan your next trial.

Knowles, E. and Linn, J. (2004). Approach-Avoidance Model of Persuasion: Alpha and Omega Strategies for Change. In E. Knowles & J. Linn (Eds.). Resistance and Persuasion (pp. 259-282): Lawrence Erlbaum Associates: New Jersey.