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Archive for June, 2010

I have a gold card. A Starbucks gold card engraved with my name and signifying that I spend altogether too much money at Starbucks. It’s summertime and that changes my winter coffee from a venti skinny vanilla latte to an iced venti skinny vanilla latte. I love coffee.

But I am something of a coffee snob. And I do love me some Starbucks. So I resent it when what I know to be true is debunked. I am not so easily persuaded. After all, I know that coffee does many, many wonderful things. It helps keep us safe and makes us like people more. It slows down the dementia process and who can argue with that as a benefit?  And it reduces mistakes made by shift workers (which would intimate that medical mistakes can be reduced by caffeine!). And in a vein truly near and dear to my heart—caffeine and Starbucks inspires social sciences researchers in their understanding of persuasion.

So I think it’s understandable that I am offended by the recent publication of a study showing that coffee consumption is unrelated to alertness. Please. I think I know if caffeine gives me a boost in the morning. But researchers from England say it isn’t true. They say there is no “net benefit” from drinking coffee. Yeah, sure.  Research probably funded by the ‘Prince of Wales Tea Council’. I considered their ideas because I am open-minded and thoughtful. But it simply isn’t true. (Starbucks executives reading this can find my contact information on our website.  I mean hey—I heard that Gold Cards have privileges!)

Coffee is terrific. It’s good for us.  It keeps us from being snarky about lame research.  This study is as ridiculous as that one saying a Big Mac nutritionally beats out Chipotle’s burritos.

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We hate to be tricked. And we are always looking for sure ways to avoid it. We want magical secrets to detecting deception in others. While jurors want to detect deception on the part of parties and witnesses—trial lawyers want to identify who tells the truth in voir dire and jury selection.

Parlor trick strategies have been around for years and have become part of our collective consciousness about how to detect deception. There are also some research efforts to behaviorally define/detect deception.

In the more academic arena, we’ve been seeing efforts to introduce brain scans (aka fMRI’s or neuroimaging) into the courtroom as scientific evidence of deception for some time now. We’ve blogged about it a number of times, here and here and here.

Recently, Seed Magazine had a terrific piece on the controversy surrounding neuroimaging written by Moheb Costandi (a molecular and developmental neurobiologist turned freelance science writer and a pretty smart guy). He summarizes the evidence for (and not so much for) the use of neuroimaging in the courtroom. He concludes that no, neuroimaging is not built for the courtroom, less due to the technology but because of brains and how they work. We’ve tended to agree with this conclusion but also agree that time may change how we think and what we know about how the brain works. Until then, you stay tuned and we’ll keep watching writers, researchers, inventor-vendors and attorneys who try to push the limits on this fascinating new arena.

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On fears…real and imaginary

Friday, June 25, 2010
posted by Rita Handrich

I have a neurotic dog. He was born that way. He goes outside at night and races back to the patio door looking anxiously over his shoulder for potential assassins in the dark (and fenced) suburban yard. Last year, a mockingbird nested in the yard. The bird took Kirby’s intermittent visits as a personal affront and began to dive bomb the dog repeatedly all across the yard. I waited for Kirby to be afraid to go into the yard. But it never happened. This year, the mockingbird is back. The dog is still here. They race around the yard together—one dive-bombing with malicious intent and the other blissfully unaware of the real threat to his eyeballs and soft tissue.

It’s how many of us live: afraid of possible (but unlikely) threats to our safety (such as the possibility of being stabbed by robots) and blissfully unaware of actual threats in our environment. When we do become aware of actual threats, we engage in complex maneuvers to soothe ourselves. We’ve written about this before—

The important thing is for you to sort out how fear connects to and distorts your case facts. And what kind of jurors are most likely to engage with that sort of fear? And how you can tell the story in such a way that those fears (like the potential canine assassin in my back yard) are dismissed (or at least minimized) and jurors can focus on what is truly relevant.

Much like race, fear is almost always an issue. Pay attention to it.

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You spend years and years in school learning how to communicate and write to get good grades. Then you get out into the real world and discover what worked well in the ivory tower of higher education can really mess you up in the courtroom! And in case you have not yet discovered that—here’s a head’s up!

Researchers tell us witnesses who had been taught about how cross-examination would proceed performed much better on the stand than did witnesses left to manage without instruction. Well, yeah. That makes sense. But here’s where it gets interesting. The issue was not in the process (as in anxiety over performing) but in the language of cross-examination.

‘Lawyerese’ which the authors define as “complex questions, containing multiple parts, double-negatives and advanced vocabulary” throws off the brain’s ability to process information correctly. So, witnesses who had been trained in ‘lawyerese’ were more likely to respond appropriately and less likely to make errors in testimony. Conversely, witnesses who were not taught ‘lawyerese’ “were more likely to work harder to answer the questions accurately and were more likely to become frustrated and nervous in court”. In other words, they benefited more from practicing comprehending questions than they did in rehearsing their answers.

It doesn’t take advanced education to think about which witness would seem more credible to a jury. It’s all part of a witness preparation strategy. You want your witnesses to be prepared for their testimony and that means more than simply running through your plans for direct examination with them. Preparing witnesses should not be an afterthought. Scroll down to the bottom of this page on our website to register to see the articles we’ve written on witness preparation over the years. Begin the process of ‘un-learning’ what got you A’s in the classroom and open the door to good grades for your jurors.

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Got morals?

Monday, June 21, 2010
posted by Rita Handrich

A recent Gallup poll says that 3/4ths of Americans think morals in our country are getting worse. Respondents in the poll blame declining morals on key factors—“a lack of respect for other people and a more general decline in moral values and standards”.  But we judge others harshly as though we are the only ones who actually have good moral values. And we see ourselves as being in the minority. The few and the morally upstanding.  It reminds me of the old saw about fishermen exaggerating their successes— “All fishermen are liars except you and me, and I wonder some about you!”

Gallup isn’t the only one who finds these themes. One segment of the Gallup poll responders pointed (as evidence of moral decline) to the scandals the politically powerful have been entangled in all year long. And a recent Kellogg School of Management study looked at just those people.

Remember the old saying “I am my own worst critic”?  Well, that actually isn’t likely to be true.  Sorry.  The Gallup study examined moral hypocrisy in powerful people. What they found will not surprise those who have read the salacious headlines over the past year: power and influence results in a huge disconnect between our pronouncements of public judgment and our private behavior.  That is, we judge others more strictly and judge ourselves more leniently.

“Those other people are morally deficient and weak. As for myself, I am behaving based on situations and events external to me.”

Toward others, we see it as an internal failing.  Bad wiring, bad genes, moral deficiency.  For yourself, flaws are circumstantial.  You might also think of this as a 2010 version of the old “Do as I say, not as I do”. The long and short of it is, the more power you have, the more hypocritically you think you can behave. It is as though the rules do not apply to you.

  • In litigation, if your client is the one behaving badly—you want to point out as many of the situational factors as you can that drove your client’s behavior.  Take responsibility for the acts, but not a moral failing.  Mistakes are forgiven, but bad character is forever. If it is possible to take responsibility for some bad acts, but not all, try that. Talk about what your client has learned and how s/he will take responsibility to act more honestly and consistently in the future.
  • If you are on the other side—you want to push home the message that these bad acts represent moral hypocrisy of the worst kind—here is someone who asked us to trust them, who made high and mighty moral pronouncements—and then behaved in this dishonest and hypocritical fashion behind closed doors.  “He isn’t like you and me!”

We all believe we are more moral than the rest of us. It’s much easier for the accuser to point a finger and find the bad-actor purposely deceiving and acting badly/nefariously than it is to dig one’s way out of a bad situation after being publicly exposed. Just ask Mark Sanford, Eliot Spitzer, Mark Foley, Larry Craig, Tiger Woods and all the other headliners in the past few years.

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