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Archive for September, 2010

An intriguing survey came out recently from the University of Michigan. It’s a study of Americans’ values.

“More than 90 percent of those surveyed agreed that all people deserve equal opportunities in life,” says sociologist Wayne Baker, the project’s principal investigator. “Just about everyone also agreed that respect for people from different racial and ethnic groups, and for people of different faiths, is also important to them.”

In fact, these values are so widely held that they can be said to be American universals , according to Baker, who is a faculty associate at ISR and a professor at the U-M Ross School of Business. [quoted from press release]

So we say we believe in equal opportunity and that respect for varying racial and ethnic groups and for people of different faiths. But do we really show these values through our behavior? The parade of continuing polls showing Americans persist in thinking Obama is a Muslim and the ongoing explosions that continue in the media and often seem to boil down to race (see here for example) would certainly seem to call that into question.

We say these values are important to us but our behavior doesn’t reflect the values we say we hold dear. We see this all the time in pre-trial research. Mock jurors can tell us what they think they think. But almost always, when their decisions reflect bias—they have many ‘reasons’ as to ‘why they think what they think’. Most of those ‘reasons’ don’t hold up to analysis.

It’s a shame. It would be nice if what we say we hold dear was really what we fight to uphold and honor. But it often isn’t.

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Back in October of 2009, we blogged about some new research from Harvard University showing that when we know someone has hurt us intentionally, it makes us furious. We talked about using that knowledge strategically to light the fire of moral indignation in jurors.

Now, some new research comes from Harvard and the work of Fiery Cushman (a new Ph.D. and post-doctoral fellow—hey, btw, congratulations!!). He looks at whether we tend to focus more specifically on intention as we assign punishment and finds that outcome is really central to how punishment is assigned. Situationist blog posts a video of  a Cushman presentation in which he discusses this research. The point is made that “the work has interesting implications for tort law, explaining in part why findings of negligence lead to large compensatory rewards even in the absence of any intentional action”.

Related research has focused on injuries where corporations are to blame. The results of a trial may not “make sense” with the facts and we always recommend pretrial research to examine how a specific set of facts may result in unanticipated outcomes and how a story can be told to minimize bad outcomes. Ultimately, it isn’t that the results don’t make sense with the facts—it’s just that they don’t make sense if you overlook the facts that the jurors found important.

My son is a college freshman taking Introductory Psychology and his comment is “people are just bizarrely complicated”. Apart from the grammar—it’s true. And it’s probably why law students flock to psychology lectures at Harvard and elsewhere.  [It has long been true that the reason that psychology research with undergraduates is considered representative is that the majority of college students (not merely college graduates) take PSY 301.]  People are just complicated. Our reactions don’t always make sense with the facts. Intent is important. Outcome is important. Deep pockets can be important (even though most would agree they should not be). What’s most important though is that you not be caught unawares when your fact pattern hits the complicated members of the jury.


Mark Bennett writes Defending People blog and we stole this line from him. Mark elicited this line from opposing counsel in a jury trial. (And no. This is not going to be a post on what one should never allow to pass from one’s lips during closing argument. That list is simply too long although we would think this line should be included.)

Instead we are turning again to our abiding desire to detect deception. You’ve seen the ongoing efforts to show deception via MRIs submitted to the court for potential evidence. We’ve tried to keep up with it on this blog. But the publication of new work in this area continues faster than we can keep up!

Lower tech efforts to identify deception are also afoot (thankfully!). Bob Sutton of Stanford wrote the (in)famous book on civility at work. Now he is focusing on practices that make for a good boss or a bad boss and blogs about how to tell if your boss is lying.  He cites a really terrific piece in the Economist emphasizing that it is “not just that his lips are moving”!  Sutton summarizes the ways you can identify deception based on comments in conference calls (and provides a link to the original article). The findings are certainly relevant to litigation advocacy and to life in general as they give insight into how we attempt to deceive in high-stakes communication.

We don’t want to be deceived. We don’t want to be tricked. We (above all) do not want to be lied to, believe and be seen as gullible. While we await the magic (high tech) answers promised by MRI purveyors—it is likely a really good idea to keep reading the lower tech research. (Plus it’s a whole lot cheaper!)


The new issue of The Jury Expert is up and we have a second piece on Millennials in it!

When we wrote our original piece for the July 2010 issue: Tattoos, Tolerance, Technology, and TMI: Welcome to the land of the Millennials (aka Generation Y) there was simply too much information to cover both what we really know about the Millennial generation and what the research says about the work ethic and commitment of the Millennials. So we wrote this second piece to cover Millennials at work: Between Coddling and Contempt: Managing and Mentoring Millennials.

Once again, you’ll find a research-based presentation with (we hope!) a minimum of jargon to get in the way of practical application. We’ve covered what the research says and then take a look at what this means for both managers and Millennials themselves. We’ve made specific recommendations for both parties in the new workplace relationship and are open to hearing your comments and reactions either here or on The Jury Expert website.

As two Baby Boomers, it has been fascinating for us to see the parallels between our (admittedly hazy) recollections of our own initial entry to the workplace and the experience of Generation X and now that of Generation Y. It’s tough to see ourselves becoming [an improved version of] our own parents and that is what appears to be the position we Boomers find ourselves in. What is additionally intriguing is that we raised the Millennials. They are our children. We taught them to expect accommodation, to question authority, to challenge the status quo and to do what works for them. And now those birds have come home to roost. To paraphrase an old Jimmy Buffett song “they are the people we never warned ourselves about”. Or to paraphrase my mother when I said I wanted a strong-willed girl child—“I hope you get exactly what you wish for and then you will understand just how much fun that is!”.

Or to paraphrase some old wife somewhere—we made this bed…..


It’s not just you! We’re all nuts

Monday, September 20, 2010
posted by Douglas Keene

Or at least half of us are certifiably nuts. A new paper published in the latest British Journal of Psychiatry says that “Of 8,391 individuals interviewed and their personality status assessed, only a minority (n = 1933, 23%) had no personality pathology”. The authors go on to say that 48% have “personality difficulties” and 21% have a full blown “personality disorder” while another 7% have “complex” or “severe” personality disorders. The sample was drawn randomly as part of the Adult Psychiatric Morbidity Study in Britain. This is a government study of the British population where they ask people to respond to more than 100 questions targeting psychiatric symptoms.

Neuroskeptic (one of our favorite blogs) read this piece and had many issues with the interpretations of the authors. The blog proposes new labels of ‘crap’ and ‘personality disturbance’ to more accurately reflect the results and says that “pathologizing 78% of the population” simply makes no sense at all. Commenters at this blog are similarly appalled. They debate what constitutes “normal” and chafe at the tendency to over-pathologize what is truly simply “life”.  And I, speaking as one psychologist, agree whole-heartedly.  Even a psychologist that follows the news vigilantly can’t accept the pathologizing of normal flaws.

And it makes me think of how we are always asking jurors to apply the standard of a “reasonable person”. What is that?  What does that mean? How do we come up with a standard definition, shared by all, of what precisely “reasonable” is? We cannot. And that means it’s an area ripe for litigation advocacy. Is the ‘reasonable person’ standard pathological?

  • As you plan your case strategy, identify the parts of the story that constitute ‘bad facts’ for the opposition. In deposition, show your distress nonverbally (and do not overdo it). “Wait, he did what?” (with furrowed brow and tilted head). Show the jury with both your verbal and non-verbal behavior that what they are hearing about isn’t “reasonable” behavior.
  • As you listen to opposing counsel during opening statement, during witness examination, during closing statement—in essence, throughout the trial, remember you are on display. When things don’t make sense or when you want jurors to think it doesn’t make sense, shake your head slightly and make notes on your pad or show a paper to co-counsel. Or simply raise an eyebrow as you listen. You want jurors to be watching you for signs of whether the behavior introduced into evidence is “reasonable”.

We cannot define what is “reasonable” but we can show through our verbal and non-verbal actions in the courtroom whether we think something is reasonable or not. The issue ultimately isn’t ‘reasonable’, but rather, ‘is this the same reaction I would have had?’ The gesture, the pregnant pause, the tilt of the head are all aimed at highlighting behavior that a jury might overlook.  Or signaling to the jury that ‘I think that is odd, too’.  Be careful not to over-do your displays. Your behavior must be seen as reflecting sincere reactions as opposed to ‘acting’ for the jurors. Your goal is to help jurors define, in the context of your case facts, what is reasonable and unreasonable so they have notions about that prior to their entry into deliberations.

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