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ABA Blawg 100!

Monday, November 29, 2010
posted by Douglas Keene

We are proud and honored to have been chosen for the ABA Blawg 100 List. It is a list of the top blogs across each of 12 categories. Now the voting is underway for the best blogs within each of the ten categories. We would appreciate your voting for us one more time here.  You only have until December 30 so do it now to avoid the holiday rush! [You'll have to register at the ABA site with your email in order to vote.]

We write this blawg to truly reflect how we think about case strategy, witness preparation, current events and current research–all viewed through the lens of litigation advocacy. Consistent posting, even when we are buried in work, has been our goal. And to our surprise, preparing blawg posts gives back energy in the form of intellectual stimulation and new perspectives on this work that we love. We hope you have found our blog useful, informative, and sometimes even fun! It’s our belief that when you give good things away–you get good things back. A listing in the ABA Blawg 100 is a good thing for sure.

We’ll keep on posting. We hope you will keep on reading! And we hope (naturally) that you will vote for us here to simply reinforce us for working hard.


Rita and Doug


When it comes to jury selection, there are those who say it’s a science. There are those who say it’s an art. And there are those who say jury selection is neither art nor science—it’s more of a hunch or a ‘gut’ feeling. We would say it’s more of an art and an intuitive form of science, and that it requires access to your intuition, ‘gut’, and unconscious biases to a degree that is sometimes unexpected.

We do use background questionnaires (often referred to as SJQs—supplemental juror questionnaires) to attempt to identify attitudes, beliefs and values that are relevant to ultimate verdict choice. But is that scientifically predictive? Not in a statistically reliable way.  SJQ responses are an intuitive peek at who is good for us, who is bad for us, who is willing to consider alternative explanations to their initial assumptions and who is not. And that’s where it segues into art. The process of taking those findings, determining how ‘firm’ or ‘hard’ they are, and thereby translating them into a voir dire strategy is the ‘art’ of jury selection.

And that ‘art’ involves access to your ‘gut’. Some attitudes drive decision-making more powerfully than others.  While there are still some jurors who will espouse substantive biases aloud or in written questionnaires—for years now, we’ve seen racial biases become buried deeper and deeper.  We’ve written a lot about the idea of ‘buried biases’ on this blog.  So it’s intriguing for us when suddenly racism is in the news, front and center via Rick Sanchez and Juan Williams.  Their comments and the reactions of their employers (respectively CNN and NPR) have resulted in a lot of conversation around the country. But there are also recent reports of other prejudices that are instructive when it comes to jury selection or simply maintaining awareness about the nature of bias in the current time.

  • We actually learn to hide our prejudices.  Young kids and old folks are most likely to say biased things. Mean and nasty things. They are talking with their unconscious brains. Older kids and adults learn not to verbalize and even to deny their own prejudices. So those prejudices come out a la Mel Gibson when we are tired and rundown or otherwise allowing our uncensored insides to express themselves.
  • A recent analysis of government data in the UK found that black motorists are 26 times more likely than whites to face stop and search due to racial profiling by police officers. This is not only a UK problem. Here in the US, we see similar issues in New York City and  Arizona,  and other areas as well. Most of these police officers would say they don’t engage in racial profiling. That’s because bias happens below the surface for most of us.
  • A recent study asking about attitudes toward the proposed mosque near Ground Zero in NYC found that if respondents believed the rumors regarding the proposed mosque—they were also likely to have opposition to all mosques. This has direct relevance for assessing bias against Muslims and their role in US society. Interestingly enough, respondents who listened to Fox News were most likely to be aware of the rumors and to believe they were true while those who got their news from newspapers were least likely to believe the accuracy of those rumors.
  • And finally—a truly surprising study result. When economic times are tough, you would think the poor would want more help. But that is not true. As it turns out, when times are tough both the rich and the poor become more conservative in expressed beliefs about government assistance. In short, say the authors, economic inequality is self-reinforcing which makes the gap between the have’s and the have-not’s grow larger.

So while it may catch us off guard if we are not vigilant, bias is everywhere around us. We just try to keep it tamped down within us for the most part. But when we are not thinking or not self-aware/self-censoring, bias rises against others and even against ourselves. We have to stay vigilant and question our own biases—whether our outlook is liberal or conservative. Because bias lives within us all.

We are honored & proud to have made the American Bar Association’s Blawg 100 List. We would appreciate your vote [vote here] for us in the ‘Niche’ category.


It’s like that 1980’s shampoo commercial featuring Kelly LeBrock that seemed so silly.  “Don’t hate me because I’m beautiful…”. And decades later, we find that the sentiment is not only true, but we know it is true and we fear what will happen when others envy us! The research findings that we truly dislike the workplace colleague who always volunteers for every task caused a lot of conversation around the web last month. But there’s more.

We are complex beings. Back in 1939, a researcher noticed something odd while in Polynesia studying ‘fishers’.

“While studying Polynesian fishers, Firth (1939) noticed something odd. When one fisher caught fish and others did not, he would give away all of his catch. If he did not, the others would talk negatively about him back in the village. This sharing behavior was called te pi o te kaimeo, the blocking of envy.” (van de Ven, Zeelenberg & Pieters, 2010, p 1)

Oddly enough, this sort of behavior continues today in multiple situations. Researchers examined two forms of envy: benign envy (where you would like to improve your own standing/position) and malicious envy (where you want to pull down/destroy the standing/position of the envied other).  According to the researchers, if you have a deserved advantage, you will likely be the target of benign envy. If, on the other hand, you are seen to have an undeserved advantage, you will likely attract malicious envy. So they devised experiments to see what would happen. The findings are intriguing: if the object of jealousy thought they were the target of malicious envy—they were much more likely to engage in helpful (“prosocial”) behavior toward the envious person. They would spend time talking and offering advice and they would offer assistance. If, on the other hand, they thought themselves the targets of benign envy—they would not extend themselves to the envious other.

The researchers explained this behavior as a way of maintaining the peace in group interactions. If your advantage or position might cause conflict, taking the time to help others could diminish hard feelings.

This dynamic shows itself in trials frequently.  You have to position your client (whether plaintiff or defendant) as deserving of good fortune, and undeserving of random hardship.  So plaintiffs are shown as the kind of people that communities need and value.  Defendants are seen as well intended and hard working, and undeserving of the shame and the blame.

If they see your client as undeserving, malicious envy could kick in and result in them taking action against your client (in an effort to diminish your clients position/standing). If this is the case, you want to find ways to show that your client’s hard work and efforts resulted in their position/standing so that jurors may experience benign envy but will not react against your client.

We saw this principle in action in a case we worked on where the very wealthy but self-made defendant had indeed engaged in behavior that we expected to result in a negative reaction from jurors. Instead, what happened was that jurors focused on how he had worked hard to be financially successful, his honesty, and his love for family. They forgave him for his shocking transgressions (they saw it as a sign of his ‘humanity’) and admired him for his successes. What could have been malicious became benign.

van de Ven N, Zeelenberg M, & Pieters R (2010). Warding Off the Evil Eye: When the Fear of Being Envied Increases Prosocial Behavior. Psychological science : a journal of the American Psychological Society / APS PMID: 20889930


While we cannot all apologize as well as David Letterman, the importance of a good apology cannot be over-emphasized. We’ve written about apology in the context of litigation advocacy a number of times on this blog.  But now, two researchers have almost simultaneously come up with the same counter-intuitive findings about past bad acts and we think they are important to share. As it turns out, the notion that knowledge of prior bad acts weighs heavily on jurors as they make decisions about guilt is simply untrue (Allen & Laudan, 2010).

Allen & Laudan review the literature and the consistent practice of attempting to suppress information about prior convictions in the US criminal justice system. They assert that these decisions are made based on faulty interpretation of the data and that there is more evidence to suggest that suppressing information about prior convictions may actually lead unwittingly to the conviction of innocent defendants. The authors point to some intriguing statistics from a study completed by the National Center for State Courts:

“Specifically, juries convicted defendants whose priors were unknown to them about 76% of the time and they convicted defendants with priors known to them slightly less than 80% of the time.” [page 7]

“The acquittal rate for defendants with no prior convictions was almost twice as great as the acquittal rate for defendants with priors.” [page 8].

The bad news for defense attorneys [and defendants with a past history of convictions] is that juries are more likely to convict those with prior convictions but they convict whether they know about prior bad acts or not.  In sentencing, though, the prospect that they will view someone as incorrigible or a recidivist is potentially catastrophic.

At roughly the same time, Eugene Caruso published a study illuminating the strange fact that expected future offenses cause more intense feelings than actual past actions. What he found was that more negative reactions and more positive reactions were minimized when related to past events and maximized/increased when related to events that had not yet occurred, but would.

Given the data from the NCSC on what really happens in criminal trials, we know that if you have prior convictions you are more likely to be convicted—but it won’t likely matter if the jury knows about your priors or not. However, Caruso’s findings may shed a more perverse light on potential choices for politicians and corporations as well as white-collar defendants.

Caruso’s findings intimate that past bad behavior will be punished less severely than future misdeeds. Those who wish to behave badly may well find that they can do what they want (even if it has negative consequences—like say a dangerous but profitable modification to production processes) and then apologize if caught—knowing that their punishment, if any, will likely be less severe than if they announce their intentions at the outset.

Allen, R.J., & Laudan, L. (2010). The Devastating Impact of Prior Crimes Evidence – And Other Myths of the Criminal Justice Process. SSRN

Caruso, G.M. (2010). When the future feels worse than the past: A temporal inconsistency in moral judgment. Journal of Experimental Psychology: General


The story of the numbers behind the story

Monday, November 22, 2010
posted by Rita Handrich

One of the writers on this blog chose her undergraduate degree to avoid taking Statistics. The other taught statistics at the graduate university level. But this is not a post about stereotypical gender differences (although it could sink that low…). It is instead about our sense of differences between stories and statistics and the importance of using both to educate and help jurors understand statistics in the context of their own lives (if possible). We think the best way to help statistics-phobic jurors accept both the story and the statistic is to teach them statistics in an accurate but amusing fashion. This is the goal of your expert witness.

There’s a wonderful quote at the Opinionator blog in a post written on the difference between stories and statistics.

There is a tension between stories and statistics, and one under-appreciated contrast between them is simply the mindset with which we approach them. In listening to stories we tend to suspend disbelief in order to be entertained, whereas in evaluating statistics we generally have an opposite inclination to suspend belief in order not to be beguiled.

There are those among us who prefer stories. And there are those among us who require data. There are also those who prefer to have both— “tell me a story and then show me why it’s true”. The comments section at the Opinionator post has examples of all three of those sorts of people writing in. That means this is a post appealing to all sorts of folks.

Your goal at trial is to find a path to tell both of those stories at the same time: the intriguing tale and the facts that support it. You generate the emotional response to a story as well as the emotional comfort that comes from having facts and data that support the story narrative. That’s how you resonate with those who prefer stories, those who prefer statistics and those who prefer a bit of both.