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Archive for May, 2010

There was a flurry of media coverage this month when a study was released showing that jurors are more likely to convict unattractive people. While this is not really new information—the interesting part of this research was the finding that jurors who process information more emotionally than rationally were more likely to convict based on looks rather than evidence presented. They also punished unattractive defendants more harshly. The researchers used the example of Ted Bundy in conference presentations to illustrate the role physical attractiveness can play in the courtroom.

“Other Scottish lawyers also fear the “unattractive harshness” effect may play a part in some cases. For example, men accused of rape may sometimes fare better if they are good-looking – with jurors who don’t understand the nature of the crime assuming the defendant “would not need to rape“.”

Even newer research shows that not only do mock jurors in research studies show this pattern—it’s also present in our prisons. If you are shorter, heavier and less attractive, you are much more likely to end up in prison. The researchers (economists) wonder if this is a throwback to biological determinism theories. We would wonder if this is a cruel example of how we (as jurors and as a society) reward attractive people and punish those we see as unattractive.

What to do? Pay attention to this research. It likely won’t do much good to say “Ladies and gentlemen of the jury: My client is not attractive and I do not want you to convict based on that fact.” But you can:

  • Make your client as attractive as possible. We have multiple suggestions for this on the blog.
  • Mitigate bias through persuasion
  • Make your client ‘like’ the jurors. Consider family responsibilities, values reflected in such actions/behaviors as church attendance, community involvement, school involvement, continued education, kindness to others. Anything you can find to make your client the ‘exception’ to the harsh judgment we attach to those we see as unattractive and not ‘like us’.

It is often frustrating to realize your client cannot get an unbiased trial based on facts and evidence alone. All the more reason to plan in a ‘makeover’ and help jurors to see your client in the best possible light. Even if he does have a short neck and wide head.


We hear a lot recently about ‘embodied cognition’. In brief, this refers to the idea that the way in which we think is tied metaphorically to the body. For example, we give someone the ‘cold shoulder’ or we see something as a ‘heavy topic’. Here are a couple of historical and powerful examples:

Pontius Pilate is famous for being the man to sentence Jesus Christ to death by crucifixion. Although he was ambivalent (thinking Jesus was innocent), he gave in to the demanding mob. And after he did that, he washed his hands and said he was innocent of the decision—Jesus’ blood would be on the hands of the insistent mob.

Lady Macbeth could never wash away her guilt over having murdered the King and his two bodyguards. Although she incessantly scrubbed her hands, she was obsessed with the sense that they were still covered in the blood of her victims.

It is strange to think that such old stories would find expression in current day research. But just like the light bulb is the universal symbol of bright ideas so hand washing has deep meaning even thousands of years down the road. Researchers are demonstrating this innate bodily reaction to emotion verbs affect our judgments. Hand washing, long associated with absolving the mind of guilt, can also erase our doubts about everyday choices.

When we make decisions, we look for ways to justify them. And oddly enough, if we can “wash our hands of it” after making choices, we feel better about our choice and feel less of a need to justify it to anyone. “It’s not just that washing your hands contributes to moral cleanliness as well as physical cleanliness, as seen in earlier research” said Lee, a doctoral candidate in social psychology. “Our studies show that washing also reduces the influence of past behaviors and decisions that have no moral implications whatsoever.”

Interesting perhaps. Even amusing. But how can you use this in litigation? Read the study information linked above and see how researchers used hand washing.

  • Let’s say your witness is wracked with guilt even though the data doesn’t support wrong-doing. It may sound odd, but consider incorporating hand washing into your preparation session.
  • Wondering if your case theme is the best one you could have chosen and this uncertainly is keeping you from moving forward? Consider the reasons you have chosen this particular theme and then wash your hands. Move forward.

There are undoubtedly many ways these findings can be used. When behavior has been used for thousands of years to help us move on and provide absolution—there is likely something to it.

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Robert Cialdini is perhaps the most well-known voice of persuasion. He knows how it’s done and how to do it right. He also has a sense of humor and we like that. He explains how Luke Skywalker turned Darth Vader from the pursuit of evil through the use of ‘social labeling technique’.

Luke Skywalker: I’ve accepted the truth that you were once Anakin Skywalker, my father.

Darth Vader: That name no longer has any meaning for me!

Luke Skywalker: It is the name of your true self. You’ve only forgotten. I know there is good in you.

In brief, you assign a label to a person and then make a request of them consistent with that trait. Tybout and Yalch used this technique in political contests to increase the likelihood of voting among citizens (“you are above average and therefore more likely to vote and participate in community events”). Voting was increased almost 10%!

Cialdini recommends use of this strategy to cement relationships with your clients (“we appreciate the trust you have placed in us and we will make good on that trust”). Or to encourage a gifted but tired associate (“you are so hardworking and perseverant—remember the last case where you….”). And, of course, he cautions against using this for evil. Only assign trait labels that are accurate.

As in a comment to the jury—“I’ve been impressed with your attention and consideration of the evidence and I know you will take that same energy into your deliberations”. While Cialdini doesn’t know our readers—we do. And we know you would never use this technique for evil. We sense much good in you…


You’ve done all the depositions. You’ve worked on witness testimony. You’ve fleshed out case narrative. But. Something is simply wrong.  Something is missing. You are stuck. There is nothing fresh or intriguing in how you are thinking about presenting the case. And you just read some new research saying it is possible to literally die of boredom and you are thinking of the headlines when one (or more) of your jurors expires on the spot.

Fortunately for you, there is research that can help you. (I bet you knew we were going to say that.) And this is a bit odd. The old-fashioned incandescent light bulb may be the universal symbol of bright ideas for a reason. Students exposed to a bare light bulb solved problems faster than those sitting under a fluorescent fixture. And the finding is consistent over a variety of studies. So, maybe, if you stare at a bare light bulb, you will suddenly have powerful insights (and neither your jurors or your case will die of boredom).

And there are other ways to trigger creativity as well. Once you change out that light bulb (or remove the lamp shade), try some of the seven different ways to boost your creativity as presented by PsyBlog.

  • They recommend gaining psychological distance; going fast forward in time; making the situation simply absurd; using bad mood; combining opposites; taking the path of most resistance; or re-conceptualizing the situation.

Whichever path you take (the exposed light bulb or cognitive strategies to spur creativity), the idea is to refocus your attention and take a fresh look at your case. You can do this by leaving the office for a while, talking to bright friends or colleagues about your case, running it by family members and seeing what draws their attention—and in other ways as well. Don’t stay stuck. Find a path out and refocus your attention.


We’d guess it’s hard to be a woman in Arkansas. In real estate, it’s location, location, location. And in litigation, it’s venue, venue, venue. So we hear in Arkansas that if a judge calls the female plaintiff (who had an affair while married and pregnant) a ‘slut’ in open court, it doesn’t demonstrate judicial prejudice against her.

Thus, if you can call a woman a slut without being prejudiced, it only stands to reason that women should cover themselves to avoid causing earthquakes—and this is being touted by an Iranian prayer leader. (We knew it was hard to be a woman in Iran.)

“Many women who do not dress modestly … lead young men astray, corrupt their chastity and spread adultery in society, which (consequently) increases earthquakes,” Hojatoleslam Kazem Sedighi was quoted as saying by Iranian media.

This statement led to the organizing of a ‘boob quake’  by an irreverent woman in the United States. The movement caught fire on Twitter and on Facebook and drew attention from several media sources.  Some feminists were ambivalent about the event  but at least one of my nieces participated on Facebook. Times are changing. We used to respond with anger and despair and burning our bras. Now we respond with mockery and baring our bras. Maybe it’s progress for women.

In other news on women, Les Schwab Tire Centers paid $2M to settle a gender discrimination case. A new report by WorkLife Law provides a detailed picture of the current state of FRD (Family Responsibilities Discrimination) litigation, including a 400% increase in the number of cases filed and an average verdict of more than $500,000. And 3 Women Sue Bank of America and Merrill Lynch Over Bias (in salaries and bonuses for men versus women in same positions.

Yup. It’s still hard to be a woman.  But how women respond seems to be changing. We’ll keep watching to see if it’s more effective.