Archive for October, 2010
Emily Pronin is a Psychology professor at Princeton. She studies how we tend to see ourselves as different than others and how that leads us to judge ourselves as better than others to our own detriment. Recently, Dr. Pronin did a brief interview with the Washington Post on how our self-awareness blind spots lead us to make poor (or biased) decisions. The article itself was on investment decisions but it has much to teach us about litigation advocacy.
What Dr. Pronin says is that even when we are told about “blind spot biases”, we continue to deny they exist—at least in us! So you can’t simply use witnesses to give examples of this sort of bias because jurors will continue to believe you don’t mean them. Jurors (like all of us) will believe that they are more observant and reliable than the person toward whom they feel critical. You may want to take a leaf from Dr. Pronin’s book. She had her students (who didn’t retain self-awareness of blind spot bias with a lecture alone) read a brief article from 2005 by Gavin Mandel. The article (two pages long) is titled “Unaware of Our Unawareness” and it’s a terrific brief read that you won’t forget. Which is the point.
There are many ways you can educate jurors. We’ve blogged before about ‘third person effect’ and the ‘blind spot bias’ is another variation of that effect. Educating yourself about the ‘third person’ effect or the ‘blind spot bias’ will help you to effectively educate jurors about human frailty, and how to avoid getting tricked by our own human nature.
Mandel, G. (2005). Unaware of Our Unawareness. Science, 308
We love finding names for psychological ‘effects’ that you can remember. Most researchers don’t take us into consideration when they name psychological effects after themselves. It doesn’t help us remember. Take, for example, the Dunning-Kruger effect. The concept is quite amusing. The presentation is entertaining. But the name? So. Reading about the ‘what the hell effect’ was encouraging. You won’t forget this one, even if you can’t remember who came up with it (Janet Polivy).
Janet Polivy studies eating disorders and found the ‘what the hell’ effect when she looked at how eating behavior is changed if you’ve already had “too much” to eat anyway. In essence, what she found is that if we’re dieting and had what we consider a “big” slice of pizza—we’ll go ahead and eat a lot more cookies because ‘what the hell’—it’s too late now.
But this applies to more than dieting. We see the impact of the ‘what the hell’ effect routinely in mock trials and (unfortunately) in the courtroom itself. A witness gets flustered and goes off message. An attorney misspeaks and doesn’t bother to correct it in hopes no one heard it. A juror makes up their mind and stops listening. Or, as we’ve seen over and over when family disputes are litigated—jurors get disgusted and say (in effect) “what the hell, a pox on both their houses”.
Don’t do it. If you find yourself leaving trial with a strong desire to eat cookies or drink too much wine or engage in other behaviors that are self-destructive—it’s likely you are experiencing the ‘what the hell’ effect. Have a cookie. And then stop and assess.
- What would you like to fix?
- What facts need to be reinforced?
- What issue needs to be cleaned up?
- Where and when did you misspeak?
And go back into court the next day and let jurors know. Recall the witness. Explain the misstep. Get back on message. Correct the error. You don’t have to be perfect. You simply have to be honest, thorough and sincere. Jurors will respect that.
There are times when it’s really good to feel good about what you do for a living. Sometimes, that comes from first-hand actions and behavior and sometimes it comes from an affiliation with someone else. This time, we want to just give some well-deserved applause to a couple of fellow trial consultants who have given exhaustively of their lives to see justice done.
Andy Sheldon and Beth Bonora have worked on the civil rights cases in Mississippi as they have been retried over the past number of years. Andy worked on all seven cases. Beth worked on three. What they contributed to was justice and it’s been chronicled in the new film Neshoba: The Price of Freedom. (See the movie trailer here.)
We admire what these two principled and experienced consultants have done. Justice (even forty years delayed) is a powerful outcome in cases that have long been a source of shame and a symbol of our nation’s racism. We hope you’ll visit the current issue of The Jury Expert and read the interview with Andy and Beth on the work, the process, the emotions, the exhilaration, and the fear of working for justice. And look for a location where this limited release film is being shown. You will want to cheer the efforts of the lawyers, consultants, and citizens who would not allow these crimes to be forgotten.
This is getting scary. We live in a time where media (whether television, radio, internet, newspapers or social media) is ever-present. That can be good. And it can be very, very bad. When Americans heard rumors on television about President Obama being a Muslim, they went in droves to the internet to learn more about the rumors. (And naturally, those who were more receptive to a Fox News “fair and balanced” perspective went to those sorts of websites and those who were more receptive to more liberal perspectives—went their own way.) Interestingly, given the financial difficulties of newspapers, those people who read longer, more detailed, and comprehensive stories in the newspaper never bothered to search the web for more information. They were satisfied they had the whole story. If you have not read the entire Slate article on why we believe propaganda—it would be an eye-opening experience.
We’ve been seeing research papers (one after another) reminding us that we choose to believe facts that fit with our preconceived notions and we ignore facts in disagreement. New research (summarized by Douglas LaBier in a Psychology Today blog) is showing that we tend to believe false representations about Obama when we are reminded of ways he is different than us (whether that difference is racial, class, or something else). What is striking about the research is that simply thinking about the category of difference (e.g., race) was enough to get study participants to believe the smear.
“One might say that the research findings confirm what’s not hard to intuit – that perceived differences from an “alien other” can make one receptive to lies or stereotypes. Shrewd, agenda-driven individuals and political movements can easily exploit that. A good example is the current controversy over former House majority leader Newt Gingrich’s recent comments to the National Review Online alleging that Obama is driven by a “Kenyan, anti-colonial” mindset that governs the President’s actions, which he called “authentically dishonest” and “factually insane.”
Gingrich’s comments on the National Review’s website were inspired, he said, by a Forbes article by Dinesh D’Souza, who writes that Obama is essentially channeling the soul of his late Kenyan-born father, an African “tribesman of the 1950s.” D’Souza writes that “This philandering, inebriated African socialist, who raged against the world for denying him the realization of his anti-colonial ambitions, is now setting the nation’s agenda through the reincarnation of his dreams in his son.”
These sorts of messages reinforce the idea that Obama is not like us. He is the other. The outsider. The alien. He does not share our hopes, dreams and visions for the future. LaBier says he is optimistic these strategies will backfire as people begin to realize that we are more similar than different. He cites a piece published in the Columbia Journalism Review as evidence that Americans are beginning to see this manipulation for what it is. We hope he’s right. And in the meantime, we think there are things for you to do in court.
We have long advocated for making your witnesses, your parties and yourselves “like” your jurors. You’ll see that advice repeatedly if you look through our blog posts on witness preparation. It has never been more true. Our society is divided and the media isn’t helping to bring us together. Don’t give up on finding a way to bring jurors together in your courtroom presentation.
Focus on similarities rather than differences to increase the likelihood of a jury finding for a party.
Focus on differences rather than similarities to increase the likelihood of a jury finding against a party.
And if the television and internet distortions and half-truths leave you wanting to tear your hair out in frustration, take a break and read the funniest version of the madness, “Poll: 1 in 5 Americans Believe Obama is a Cactus”, brought to you by “American’s Finest News Source”, The Onion. It is written with the same pseudo-authoritative gravitas used by the other “news sources”, but it will make you laugh instead of cry.
It is a long-held truism that liberals tend to focus on situational explanations for behavior and conservatives focus on dispositional (“a failure of character”) explanations. This tendency is so well documented it has a name: the “ideo-attribution effect”. People who make dispositional assumptions want to punish. People who make situational assumptions want to rehabilitate.
Ideo-attributional dynamics never rest—they are always at work. We can count on it. Except when we can’t. Uh-oh… Morgan, Mullen & Skitka (2010) look at the exceptions to the rule. When can we not count on liberals to see situational factors and conservatives to see dispositional or character factors? Hmmm. It’s much more often than you might think.
An experiment was designed where conservatives (but not liberals) would be motivated to examine situational factors to explain behavior. The first experiment presented the following to participants:
“As you may know, on November 19, 2005 a 13-man Marine unit was attacked by a roadside bomb in a residential part of Haditha, Iraq. The explosion killed one Marine. The Marines suspected five Iraqi men in the vicinity were involved, and ordered them to lie on the ground. The Marines shot and killed them when the men ran instead. The Marines then swept through nearby houses, and killed 19 more people, only one of whom was armed. Among the dead were five women and four children. Although the Marines initially claimed that 15 Iraqi civilians (in addition to the one Marine) were killed by the bomb, and another nine were killed when the Marines returned gunfire, subsequent reports acknowledged that all 24 Iraqi dead had been shot by the Marines. Military lawyers claim that the soldiers were following military rules of engagement and operating under standard protocol. Haditha residents, however, claim that the Marines knowingly massacred innocent civilians.” (p 1244)
As predicted, conservatives endorsed situational factors more strongly than did liberals. The values of “commitments to national security, authority, and patriotism presumably conflicted with blaming the Marines for their behavior and motivated conservatives to make situational attributions in this context”. (p 1245)
The researchers go on (as researchers do) to draw finer and finer distinctions with more complex scenarios—suppose rather than Marines the people involved were Halliburton personnel? Suppose it were not a war-time scenario but a true story involving police accused of wrongly killing a wild cougar roaming densely populated areas of Chicago?
“Individuals—whether liberal or conservative—made stronger situational attributions when their values were inconsistent with making dispositional attributions for behavior. [snip] In summary, people’s causal explanations were shaped by whether their values were consistent or inconsistent with dispositional or situational attributions.” (p 1251)
In other words, context matters. It isn’t a matter of blindly choosing a liberal versus a conservative juror. You need to assess how their values will interact with your case facts to result in a decision that feels consistent to them and resonates with their life experiences and beliefs. As regular readers of this blog know, we think resonating with beliefs and values is the most powerful tool in the trial lawyer’s arsenal. We’ve blogged about it a lot (58 times as of this writing!).
Morgan, Mullen & Skitka (2010) sum it up nicely:
“Although the ideo-attribution effect is robust, the current research suggests that liberals and conservatives do not inevitably see others’ behavior as dispositionally or situationally caused. Rather, conservatives and liberals make dispositional attributions when their values are consistent with doing so but make situational attributions when their values provide the appropriate motivation. People’s attributions are colored by their motivation to arrive at value-consistent conclusions—something that is equally true for those on both the political left and the right.” (p 1253)
Morgan GS, Mullen E, & Skitka LJ (2010). When values and attributions collide: liberals’ and conservatives’ values motivate attributions for alleged misdeeds. Personality and social psychology bulletin, 36 (9), 1241-54 PMID: 20699405