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Archive for July, 2010

We know liars when we see ‘em

Friday, July 30, 2010
posted by Douglas Keene

Or so we believe. We’ve written about beliefs in our individual ability to detect deception a number of times. The truth is, our ability to detect deception is often less than that of chance alone. But that doesn’t inhibit our wish to imagine great skill in detection.  Even when we experience lies big and small—right to our faces—on a regular basis, we still want to believe we have nearly magical ability to spot it.  If this delusion wasn’t so dangerous it would be somehow funny or sad.  But in fact it is hazardous to justice.

We want to believe we can spot liars on sight. Some would say that intensive ‘scientific’ research has brought us closer and closer to ‘scientific’ means of assessing deception. In fact, recently an eye-tracking lie detection method has been licensed to a Utah based company.  Principals in the company say that this product was developed based on intensive research and that it will enable better “national security” among other things.

While most jurors can’t use advanced equipment to identify liars, many of them are attempting to enhance their skills in deception detection by watching TV. The Fox Network show “Lie to Me”  has become a popular television show which many tune in to faithfully.  In fact, many trial attorneys routinely ask jurors what television shows they watch on TV to get a sense of who may have beliefs about the work of the police, investigators and attorneys.

So here’s an interesting finding. A recent study on viewers of Lie to Me found that all watching this TV show did was make viewers more suspicious of others—but it did nothing to improve their detection of deception. Which leads us to a new reason to ask about television shows jurors watch:

  • If you want jurors who are suspicious and prone to see conspiracy about them, you likely want viewers of this TV show on your panel
  • If you want jurors who are not suspicious and prone to see conspiracy about them, you don’t want viewers of this TV show on your panel

We love research. It’s always good for something!

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A pinch of this and a dash of that

Wednesday, July 28, 2010
posted by Rita Handrich

Litigation advocacy (just like cooking) involves a combination of knowledge and intuition that cannot readily be quantified. When those tidbits emerge in the popular literature, we want to recognize them for what they are: jewels you can use to bridge the gap between evidentiary fact and juror acceptance.

It’s okay if you fumble, but watch your manners!

Incivility and rudeness are continuously in the news. We all know (and most of us keep in mind) that being seen as rude by others is not a good thing. Here’s a bit of a new twist: it’s better to be incompetent than to be rude!  When research participants saw (what they defined as ‘rude’) behavior between colleagues they had negative reactions to the company itself. Even when the ‘rude’ person was correcting incompetent behavior on the part of their colleague—observers reacted negatively.

The takeaway here is to pay close attention to your non-verbal behavior in the courtroom (and perhaps elsewhere). What you do (as well as what you say) is being monitored by your jury. They will judge your behavior and words in their decisions on the merits of your case.

Your own non-verbal behavior can bias the jury against your client!

This finding is under the category of “Yikes! That’s kind of scary.” In a Tufts study, researchers found that television viewers were unconsciously influenced by how actors interacted with black colleagues.  To test the hypotheses, researchers blocked out a character to hide race and turned off the sound so that viewers observed only non-verbal behavior of the speakers. Since the bias was unintentional (on the part of show writers), the researchers suggest that simple awareness of this bias might help both actors and directors counteract the effect.

We are not sure about their recommendation since we’re talking about unconscious bias. We’ve written about race and bias a lot on this blog.  But if they are right, and likely even if they are not, the takeaway is to watch how you interact with both your client and members of the jury, as well as your second chair, your support staff, the court staff, and the opposing counsel team. All behavior is important!

Be concrete as opposed to abstract or inferential

This one is an interesting perspective. We hear a lot about jurors “need for cognition” and more recently about jurors “need for affect” in their decision-making/deliberation. While both of these factors are important, it seems it’s also important to focus on the concrete. New research shows consumers who are given concrete information are much more likely to have confidence in the decisions they make on information received.

You want to be sure your presentation includes concrete information for jurors to take to the deliberation room. “Concrete information” refers to information on observable behavior or details. A simple test for whether you are presenting concrete information is whether you can “see the information with your eyes or hear it with your ears”. If yes, it’s concrete. If no, keep looking

Taken together, these findings communicate the importance of being aware you are on display. Your behavior and communication are important parts of case presentation. It isn’t just your client who needs to watch their non-verbals.

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Our legal system assumes jurors will make their decisions without bias. This assumption echoes the ancient words of  Aristotle: “the law is reason, free from passion”. Yet, most of us realize that decision-making encompasses both reason and passion. So how do you take that into consideration as you prepare and then present your case?

Researchers have explored both the “need for cognition” in juror decision-making and, more recently, the “need for affect”. Most of us are more familiar (whether we know it or not) with the “need for cognition” research.

Need for cognition: This refers to how much an individual enjoys and engages in effortful cognitive activities. We hear direct applications of this research in voir dire questions like: Do you enjoy doing crossword puzzles or Sudoku? When trial lawyers ask questions like these, they are examining whether jurors are high in the need for cognition (yes responses) or low in the need for cognition (no responses).

Need for affect: This is a newer concept–and therefore doesn’t have its own Wikipedia page! According to a new article by Desirée A. Griffin and Emily Patty in The Jury Expert, “need for affect” refers to “the motivation to approach or avoid emotion-inducing situations”.

Jurors who are high in need for affect will remember more of an emotion-laden message than they will a cognitive-laden message. Thus, depending on whether you want jurors who will respond to a highly emotional argument (or not) you can use their ‘need for affect’ to make decisions on whom to keep and whom to strike. Griffin and Patty, in their article on need for affect in the courtroom, offer the following as suggested queries for voir dire:

To identify jurors high in need for affect, Griffin and Patty suggest:

1) It is important for me to be in touch with my feelings.

2) I think that it is important to explore my feelings.

3) I am a very emotional person.

4) It is important for me to know how others are feeling.

5) Emotions help people get along in life.

6) Strong emotions are generally beneficial.

To identify jurors low in need for affect, Griffin and Patty suggest:

1) I find strong emotions overwhelming and therefore try to avoid them.

2) Emotions are dangerous – they tend to get me into to situations I would rather avoid.

3) I would prefer not to experience either the lows or highs of emotion.

4) If I reflect only on my past, I see that I tend to be afraid of feeling emotions.

5) I would love to be like “Mr. Spock,” who is totally logical and experiences little emotion.

6) I have trouble telling the people who are close to me that I love them.

Overall, identifying jurors who have a relatively cognitive approach or a dominant emotional approach to decision-making can potentially help your case. We always think it’s a good idea to assess jurors using valid and reliable questions from pre-existing measures.  It just makes good sense, and sometimes it makes all the difference.

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You might think that giving that witness a fashion update, helping them to understand their role in the trial story, and working with them to remove distracting non-verbal behaviors would be enough to go to trial. Not so fast! There is so much more to consider. It seems jurors may intuit much from small (or not so small) witness features that are really not salient to testimony at all. So contrary to the best selling books out there—you really do need to sweat the small stuff. Like what small stuff, you ask? Read on…

Facial scars:

If the opposing witness has a facial scar and yours does not—you might think that would bode well for your side. After all, facial scars are sinister. Or maybe not. Turns out that men with facial scars have more one-night stands and that (some?) women see facial scars as indicative of bravery and health.  We know character matters to jurors. They may end up thinking the scarred witness is more attractive—not to mention both healthy and brave—than your witness.  Or, perhaps, creepy.

Videography angles and focus:

It’s pretty obvious that you want your witness well-lit, shot from a flattering angle and (please) no iced coffee or soda—jurors often think this means the witness is not taking the deposition seriously.  We have a long list of “do’s and don’ts” for witnesses, but overall, depositions are not the time for a refreshing beverage.

New research shows us that when your client has confessed and then retracted that confession—a confession video only trained on the defendant is seen as more convincing/persuasive than one trained on both the defendant and the detective or the detective/interrogator alone. And when there is much detail in the confession—it’s even more persuasive when the camera is trained on the defendant alone. (This is really an interesting piece of research and we’ll blog more on this soon.)

Foreign accents:

Many of us think that if someone speaks English (even accented English) it’s better to have them testify in English rather than in their native language with a translator. That may not be true. New research shows that when someone speaks with an accent—many people believe they are not being truthful. And the heavier the accent, the more we assess them as being not truthful.  When we have trouble understanding someone, we assume they are less than truthful.

While you can make jurors aware of how videography and accents can bias their judgments—it’s likely a bit harder to say “don’t like their witness more because he has facial scars”. The take-away here is that everything matters: the big stuff and yes, even the small stuff. Sweat it all.

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We have an article in this edition of The Jury Expert on the Millennials (aka ‘Generation Y’). There’s been a lot of information floated out there as fact that is simply observation, opinion, and (frankly) made up stuff.  Pretty shocking, eh? As trial consultants and as parents of four Millennials between us, we wanted to collect what is actually known (based on data, evidence and surveys) about this emerging generation. I mean to say—is it possible that I could misunderstand my kids?

What we found was enough for two articles rather than one so you’ll have to wait until September for the next piece (Gen Y in the law firm and in the workplace in general). But you can see the first one, Tattoos, Tolerance, Technology, and TMI: Welcome to the land of the Millennials now.

We were taken aback when we found this article from 1990 at Time.com. This piece is written about Generation X but if you tilt your head just a bit when reading it you can see it is quite reminiscent of what we are now reading about Generation Y (the Millennials) and what we would have likely read back in the late 1960’s about the Baby Boomers. What goes around, comes around. We forget our own youth and immaturity and assume that those coming up behind us are less worthy than we were, have poor work ethics, poor hygiene, and bad values. The only difference is that now, when we write, it’s on the internet (courtesy of Web 2.0) and readily searchable, spreadable, and taken as ‘research’ rather than opinion. W.R. Eilers wrote a terrific blog post on this point back in May, 2010.

What we’ve done in our article on the Millennials is to collect what we really ‘know’ about this emerging generation so that you can know what is truly descriptive of them and what is not. (We include some of the ‘what is not’ as well, just to keep you on top of things!) What we found is captured (without much detail) in our paper’s title. But there’s a lot more to this generation than tattoos, technology, tolerance and TMI and we hope you’ll stop by and read the article and leave a comment to let us know what you think! As always, we make a particular point of what all this information means for you in the courtroom and in voir dire. After all, that’s what we do!

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