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We’re always on the lookout for research findings that can give us an edge when it comes to jury selection. These sorts of findings are often counter-intuitive and not the sort of thing you would figure out on your own. As a public service (and because it’s sort of fun) we present the latest of our research scavenging.

Juror empathy: There are times when you want jurors who are high in empathy. Say, for example, you have a plaintiff horribly injured or a defendant who will suffer irrevocable harm if a verdict is awarded for the plaintiff. Rather than inquiring specifically about empathy—just listen. People who talk in a more melodic (or “sing-song”) voice or cadence are higher in empathy.  Sometimes you want them. Sometimes you don’t. Proceed accordingly.

Juror bias against Arabs: This is a tricky one. If your client is Arabic or Muslim, you have an uphill battle. No surprise there.  A recent article in the APA Monitor finds that there seems to be a tendency for religious bias to be involved in trials involving Arab defendants but there is little to no controlled research to examine anti-Muslim biases. What we would say here is this: be very careful. Talk to jurors about implicit bias and how associations made by opposing counsel with terrorist acts can bias them against your client without their conscious awareness. Talk to them about how to minimize this bias within themselves.

There is more we’ve seen lately. This is a sampling to get you started thinking about the novel applications of research findings you see reported in the mass media on a daily basis. What does it potentially mean for voir dire?

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We wrote about this back in May but another publication has picked up the Ugly Criminals paper. This paper asks if appearance (attractive or ugly) results in being either law-abiding or not. Or is it more related to being seen by others as guilty or not. Reading the Ugly Criminals paper, it becomes quite clear that there are some disturbing ways that attractiveness is related to both criminal history and incarceration.

The Fortean Times article questions if anthropometrics is about to make a comeback. (Anthropometrics was originally the practice of measuring criminal’s faces to identify criminal facial traits for profiling.) The authors in the Fortean Times piece suggest that perhaps we should make efforts to understand rather than condemn the unattractive. They also admit they think this is unlikely. Commenters on the Fortean Times website mock the idea that the ugly are criminals. This makes it all the more disturbing that somehow, the unattractive are over-represented in our prisons since juries (made up of individual citizens) often have a hand in sending them there.

So how far has the ‘brain craze’ spread? Pretty far, it would seem. We can (sometimes, at least) understand the application to the law. But how about to career counseling?  Neurocritic blog writes about the Johnson O’Connor Research Foundation (JOCRF). As Neurocritic writes:

“The Johnson O’Connor Research Foundation is a nonprofit scientific research and educational organization with two primary commitments: to study human abilities and to provide people with a knowledge of their aptitudes that will help them in making decisions about school and work. Since 1922, hundreds of thousands of people have used our aptitude testing service to learn more about themselves and to derive more satisfaction from their lives.”

And then goes on to describe an ongoing research project the Foundation is involved in looking at aptitudes and brain areas.  Forty participants in the Foundation’s aptitude testing program were also given MRI’s and the volume of gray and white matter in various brain areas was measured. Ultimately, the authors concluded the sample size gave results that were simply too small to interpret meaningfully.

But that isn’t how the media saw it! Neurocritic goes on to point out that multiple websites picked up this project and presented it in such bold terms as “Brain Scans Could Guide Career Choices“.  It didn’t matter what the JOCRF researchers actually said. The information was sensationalized. (And in truth, Neurocritic blog didn’t make it horribly clear that the sensationalizing was done outside the control of the Johnson O’Connor personnel.)

It’s part of what happens when research is done that hits on a hot topic in the world. Right now, anything about the brain and using the brain to predict our criminality; our career choices; our facial features; and more—is hot. And it obviously is interpreted in ways that sell papers or result in website URL clicks.  Our longing for a rational basis for what we want to believe is pretty powerful.

The stronger our longing to find meaning in the data, the more easily we are misled.  When I was in graduate school there was a geeky joke about people so determined to validate their hypothesis that they “drew the curve and then plotted the data”.  In a world dominated by unsubstantiated reports of sensational rumor selling as science, you can’t be too cautious.  Find out what was really said. In the courtroom, when you show jurors what was really said and how it got distorted and confused—they are often able to dismiss all the hyperbole based on an incorrect interpretation of the facts.  If you want to debunk an appealing theory, you might want to discuss with your witness other examples of how headlines distort facts, and provide anecdotes to the jurors.  But to tell that sort of clarifying story, you have to go beyond the sensational headline of ‘ugly criminals’ or ‘career counseling by brain scan’ and allow for what may simply be a false validation of what we would love to see proved.

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We’ve written about secret weapons for the trial lawyer before. Like the chairs in the jury box and wearing red which turned out not to be for just the women among us! And now, where should more secret weapons come from but the research on moral judgments and especially, the research on disgust.

The Boston Globe just published a piece on how our moral judgments may come not from our religious/spiritual beliefs or from our deeply ingrained values but instead from our visceral reactions to what we see and hear.

Here are some examples:

  • If you are more easily disgusted by bugs, you are more likely to see both gay marriage and abortion as wrong.
  • If the room you are sitting in smells bad, you judge both controversial films and a person who didn’t return a wallet more harshly.
  • Washing our hands makes us feel less guilty about our own moral transgressions and making us prone to feel disgust results in us seeing wrongdoing in totally innocuous stories.

The Globe helpfully shares specifics of some initial research on disgust:

The father of modern disgust research is a psychologist named Paul Rozin. In a series of studies in the 1980s and 1990s that read like hidden-camera pranks, he set out to see how powerful the emotion was, and what exactly it was about disgusting things that repelled us. A professor at the University of Pennsylvania, Rozin served people cups of juice that a sterilized cockroach had been dropped into and offered others chocolate fudge shaped like dog poop. He asked whether subjects would wear a thoroughly laundered sweater that had once belonged to Adolf Hitler. In all those instances, most people refused, even though they knew the cockroach and sweater were clean and that the fudge was in fact fudge. They just felt disgusted.

And there’s more there if you’d like to read about ‘fart spray’ or ‘eating your pets’—these are tenure track researchers living out adolescent fantasies. It’s gross. Which is pretty much their point.

And our point, is this: if you want jurors to judge innocuous actions harshly or you want to drive home the point about ‘bad’ behavior—use subtly disgusting analogies, metaphors or expressions. You want to tie ‘disgust’ to the other side. Quietly. Subtly. Let jurors think it was their own reaction. Yes. It is disgusting. But isn’t it interesting as well?

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If only you weren’t so greedy…

Monday, August 23, 2010
posted by Douglas Keene

Two sisters in their eighties have been in the news for years as they keep fighting over a $250,000 lottery win. Theresa Sokaitis (age 80-something) and Rose Bakaysa (age 87) had gambled together for years and drew up a contract to share their winnings after a $165,000 win at a casino in 1995. But in 2004, the sisters had a bitter dispute over $250.00 (or maybe it was $100.00) one had loaned the other and they have not spoken since.

Rose Bakaysa (who won the $250K as her half of a $500,000 winning ticket she purchased with her 84 year old brother, Joseph) says during that 2004 fight they rescinded their gambling partnership. Her sister Theresa Sokaitis says they did no such thing and Rose is obligated to give Theresa half of the winnings. This fight has made it to the Connecticut Supreme Court and continues to this day. (Although the Connecticut Supremes found in favor of the lucky sister, Rose.)

Concurring Opinions blog posts the complete text of a letter Theresa sent to Rose and we post an excerpt below:

Rose,

I hope you get this letter because I have plenty to say. The most important thing is I am so sick over what is happening with you and I going to court. None of this would have happened if you were not so greedy . . . All I know is we should both be ashamed of ourselves. We are sisters. Going to court is not right. All I know is I am entitled to my share of the money and you know it. [snip]

Take care of yourself. Mom would be sick over all of this. It would never happen if you at least shared some of the money with me. Do you think I would have done that to you? Never . . .

See you in court.

Terry

As the sisters fight on, we point to a common counter-factual in Theresa’s (aka Terry) letter to Rose. “If only you hadn’t been so greedy”…

This line of thinking is a consistent one we see in jurors’ reactions to case narratives. We’ve written about this before in the context of helping jurors to see the frame through which you would like them to view your case. In the case of these sisters, there is the issue of a contract dispute but it’s likely secondary to the family relationship that has been severed.

It’s always sad when family matters end up in litigation. We’ve worked on a fair number of family disputes (usually between members of very wealthy families) and the mock jurors reactions are almost always the same. It has never mattered whether it was a dispute over inheritance, family business income, contractual disputes, or a high-stakes divorce. Mock jurors consistently express the same reactions you likely have in reading about the tale of these two sisters.

“This isn’t right. Blood is thicker than money. [?] They should put this behind them and start again.”

“Let’s throw this case out and direct them to a family counselor to repair the damaged relationships.”

“This is just ridiculous. They aren’t really fighting over the money. They’re fighting over their hurt feelings.”

In Texas (and everywhere else) families are important to jurors.  As  we have noted countless times before, jurors want to fix problems and make the world a better place.  There is no resolution to this dispute that will leave jurors feeling that the special bond between sisters is repaired, and that is, of course, what they want to see. While they are intrigued by the drama, they are ultimately heart-sick at the toxicity and finger-pointing. Jurors don’t feel good about being moral arbiters between family members.

As  an advocate for your client, you have a very fine line to walk.  Like the mothers before King Solomon fighting over the child, they want to see who is more open to higher values, to compromise, and healthy rapprochement instead of naked greed.   Jurors are going to watch you to see if you (and your client) are about grabbing the money or about what is fair and right.

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Is it wrong to want an 8-foot chicken?

Friday, August 20, 2010
posted by Rita Handrich

Since some of you cynics imagine this to be a trick question, you’re thinking it probably depends on the definition of ‘want’. For more than 5 years, I have wanted, ruminated about, and considered how I could fit this chicken into my life. Would the neighbors complain about it peering over their fence? Would my HOA have a fit? Would it make me smile every time I saw it?

The chicken lives in Brenham, Texas along Highway 290 between the Dairy Queen and Michael’s Taxidermy. Every time I drive to Houston, I pass the chicken (yes, I know it’s really a rooster, but in my mind, it’s a chicken). I always think “I want that chicken” but I never stop. This week I stopped. And the chicken is not for sale until the price of metal in Mexico stabilizes. I want the chicken even more now that I know I can’t have it. They offered a 4-foot chicken and even a 2-foot chicken for a whole lot less than the 8-foot chicken will cost. But it wouldn’t be the same. Sometimes, only the real 8-foot chicken will do.

It’s beyond reason—my chicken fixation. Like the way sometimes attorneys choose to take on cases that really are not good ones. I remember a case we did a focus group on a number of years ago—a motorcyclist not wearing a helmet and ending up with a horrible head injury. His spouse said “he was responsible—he wore a helmet every time, except this time”. The mock jurors thought he knew better and this is what happens. I wonder what made the attorney choose that case?

Or the case of the high school teenager (a very good girl) who met a boy (who was actually a young man pretending to be a high school senior) on a social networking site and secretly met him (knowing her mother would not approve) and she was raped. Her mom thought the social networking site was responsible. Jurors thought the girl had made a bad choice and painful as it was, this was a natural consequence.  What we predicted, and what the focus group told us, was that the jurors were distressed by the failure of parental supervision.  That one was easier to see in terms of attorney investment: a horrible outcome and fears about how social networking sites were playgrounds for predators. But jurors saw it differently.

We’ve seen the newer research on how bad many lawyers are at predicting case outcomes and therefore, on choosing cases. But why is that? The researchers say women are better at it then men and that there are specific case patterns that make it tougher. While those things may be true—perhaps there are also some individual/internal factors at work.

I think sometimes we don’t want to believe we made a really bad decision. Or we are blinded for various reasons in our own history. So I was thinking about why I want this chicken. What are the motivations or early childhood experiences drawing me to an 8-foot chicken? And I thought of Paul Bunyan.

I grew up in Michigan’s Upper Peninsula, close to the border of Canada. We didn’t have 8-foot chickens up there. But we did have a 15-foot tall Paul Bunyan statue near my high school. I considered if the 8-foot chicken was a substitute for a Paul Bunyan. But then I came to my senses. I never, ever, even for a moment, wished for a Paul Bunyan statue in my yard. That would be tacky. But an 8-foot chicken? That’s art.

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