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Archive for November, 2010

An accepted truism is that a sad jury awards lower damages from a disempowered sense of hopelessness, and an angry jury awards higher to ‘send a message’. It is never good for the plaintiff when a case concludes with sad and hopeless jurors heading off to deliberate. You end up with “It’s horrible but it’s just one of those things” sorts of reactions from jurors that sound a death knell to hopes of financial recovery.  Often, liability is clear, but their sense of hopelessness has undermined the damages awards.

New research examines this issue by looking at what they call “emotional blunting”. The authors look at how anger experienced first blunts the experience of sadness and how sadness experienced first blunts the experience of anger. This may, as they point out, have direct implications for the courtroom.

A defense lawyer may attempt to elicit sadness in a jury. In so doing, not only could the appraisal tendencies of sadness result in jurors experiencing less anger when considering the defendant’s actions, but also (and more importantly) the blunted anger experience likely would lead the jury to hold the defendant less responsible for his or her actions and thus to recommend a lesser penalty than it otherwise would. Alternatively, the prosecutor could elicit anger in the jury, which could subsequently prevent the jury from feeling sadness and acknowledging the situational factors associated with the case. This blunted sadness could thereby cause the jury to hold an innocent victim wrongfully accountable for a crime. (p 4)

Following several pretty complex analyses of experiments, the authors conclude this:

If you are sad and see that sadness as caused by external events, anger over the events is blunted and you are less punitive.

If you are angry and justify that anger as being caused by the actions of another, subsequent sadness is blunted.

Put another way: how much emotional blunting occurs (and therefore how punitive you are) appears to be a function of whether you attribute blame to a ‘situation’ (e.g., something that happened) or a ‘person’ (e.g., someone caused this to happen).

To achieve anger—put a face on it.

Winterich KP, Han S, & Lerner JS (2010). Now That I’m Sad, It’s Hard to Be Mad: The Role of Cognitive Appraisals in Emotional Blunting. Personality and social psychology bulletin PMID: 20876386


Voir Dire Strategy: Who’s the Libertarian?

Wednesday, November 17, 2010
posted by Rita Handrich

Concepts like authoritarianism have been studied intently for decades. But what about Libertarianism? We think we know about Libertarians from examining the writing of libertarian intellectuals and politicians—but that isn’t very scientific or reliable. Recently Iyer, Koleva, Graham, Ditto & Haidt (2010) published a paper that surveys the issues thoroughly.  Here we summarize a few of the highlights from the entire paper (which is certainly worth your time to review).

Our American societal stereotype since the 1950’s seems to be that Libertarians are conservative on economic issues but liberal on social issues. Given that Libertarians make up between 10 and 15% of the population with as many as 44% in the general population endorsing Libertarian ideals when presented separately from the label “Libertarian”—it makes sense that we learn as much about them as we can. Oddly enough, there have not been large-scale studies of Libertarians in the general populations. Until now. Fear not, gentle trial lawyer, thanks to Iyer, et al., we have a study looking at 152,239 citizens [of which 10,566 self-identified as Libertarian] to identify “the morality” of the elusive Libertarian potential juror.

Much historical research has focused on the differences between conservatives and liberals. These groups are often presented as two ends of a political spectrum. Iyer, et al. attempted to explore just where on that continuum Libertarians would fall. What they concluded was that Libertarianism is not simply a point on the liberal/conservative continuum—but rather a group all its own with a “unique pattern of moral concerns”.

So what does this mean for litigation-relevant attitudes? A lot. Here are specific findings of interest:

Libertarians tend to be male.  And they score lowest of any group on measures of empathy.

“They are therefore likely to be less responsive than liberals to moral appeals from groups who claim to be victimized, oppressed, or treated unfairly.”

“…libertarians look somewhat like liberals, but assign lower importance to values related to the welfare or suffering of others.”

“…libertarian independence from others is associated with weaker loving feelings toward friends, family, romantic partners, and generic others… Libertarians were the outliers.”

“…libertarians appear to live in a world where traditional moral concerns (e.g., respect for authority, personal sanctity) are not assigned much importance.”

Self-Direction was the most strongly endorsed value for all three groups, but for libertarians the difference was quite large. If libertarians have indeed elevated self-direction as their foremost guiding principle, then it makes sense that they see the needs and claims of others, whether based on liberal or conservative principles, as a threat to their primary value.” 

“…they care about liberty, and not just their own liberty. Like conservatives, they endorse a world in which people are left alone to enjoy the fruits of their own labor, and in which nations are not tied down by obligations to other nations. They also exceed both liberals and conservatives (but are closer to liberals) in endorsing personal or lifestyle liberty.” 

libertarians will rely upon reason more – and emotion less – than will either liberals or conservatives.” 

The full paper is filled with illustrative charts and intriguing studies done on morality over the past 40 years. It’s a welcome addition to what we know about Libertarians—even when the sample is self-selected and cannot be said to be truly representative of the general population. It’s a terrific start.

What we’ve found in our own pretrial research over the past decade and a half is that Libertarians are very unpredictable.

What they say in discussion groups is often the opposite of what they write down on questionnaires and jury charges.

Their take on case facts are often highly idiosyncratic and mediated by unpredictable perspectives.

They may take a cause on and then continue arguing it even if they don’t really believe it simply “on principle”.

Libertarians can be polarizing in a deliberation room.

And that may be the most important information of all. There are times when you want a polarizing force in the jury room and there are times you do not. Choose carefully. But we caution you to not “bet the farm” on a self-identified Libertarian juror.

Iyer, R., Koleva, S.P., Graham, J., Ditto, P.H., & Haidt, J. (2010). Understanding Libertarian Morality: The psychological roots of an individualist ideology. SSRN


Why “Information is Beautiful”

Monday, November 15, 2010
posted by Douglas Keene

The graphic illustrating this blog post is from our favorite infographic site: Information is Beautiful. The graphic is titled: The True Size of Africa. It’s amazing when you think about it. How many words and explanations are depicted in this single illustration?

We’ve written before about the power of graphics in persuasion.  The folks at Information Is Beautiful don’t write about it—they do it! Here’s another one on who’s suing whom in the telecom/tech industry!

Do what we do! Bookmark this terrific site.

Comments Off on Why “Information is Beautiful”

PsyBlog continues their exploration of research on persuasion techniques and we will continue to monitor their posts and translate those relevant to the realm of litigation advocacy. [Their first post was on how “light” swearing makes you more persuasive. We figured you knew better than to try that one in court!] This time, they explore what you should do when someone says ‘no’ to you.

They review well-known strategies to gain compliance: the “door in the face” technique; the “foot in the door” technique; and the “placebo information” technique. [This is the strategy of asking someone “Can I use the copier before you, because I have to make some copies?”. Studies back in 1978 found it resulted in 90% compliance.]

Then they discuss the “why not” technique wherein if someone says “no”—you come back with “why not”? Once the person refusing your request offers their objections, you attempt to rebut their reasons for refusal. The researchers found that the “why not?” technique performed better than any of the other techniques (i.e., foot in the door; door in the face; or placebo information). PsyBlog thinks the reason it works is due to cognitive dissonance. That is, we feel uncomfortable refusing a request when our [alleged] reasons for refusal have been rebutted.

So what does this mean for litigation advocacy?

First, we would beg to differ with PsyBlog (and we really like PsyBlog, really we do!). Our read of why the “why not” technique works is that people are notoriously poor at identifying and verbalizing their rationale for making various decisions [and here]. We see this in focus groups routinely. Mock jurors will passionately express support for one side or the other but when they are asked “why” they support their favored party in the lawsuit—they cannot say.  It is more of a feeling that a ‘knowing’, and they are notoriously prone to flipping their position. Particularly, they especially cannot (or will not) say if their reason for support is related to some sort of bias. In focus groups, we do a number of things to attempt to invite participants to reconsider their automatic responses. One strategy we’ve blogged about is to raise the flag of self-awareness and encourage participants to be the best version of themselves as they consider the facts.

Second, when it comes to the “why not” technique—we think there is a place for it in the courtroom providing you don’t confuse argument with persuasion. You do not want to challenge jurors and thereby harden their resolve against your case, your client or yourself.  You want to invite them to reconsider their judgment. “If you are thinking my client should not prevail, I would ask you, ‘why not’?” And then, you give as many rebuttals to the potential “why not’s” as you can identify. You invite. You do not demand. And by doing that, you promote thoughtfulness about your position and your client.

Boster, F., Shaw, A., Hughes, M., Kotowski, M., Strom, R., & Deatrick, L. (2009). Dump-and-Chase: The Effectiveness of Persistence as a Sequential Request Compliance-Gaining Strategy Communication Studies, 60 (3), 219-234 DOI: 10.1080/10510970902955976


Justice is blind. People are not.

Wednesday, November 10, 2010
posted by Douglas Keene

My heart didn’t break, but it was wounded recently. And partly, I was wounded by my own naïveté. I am supposed to anticipate bias, and I didn’t see it coming.

I was working on a mock trial project that was essentially a messy contract dispute, with a side order of hurt feelings among the parties, and deep feelings of betrayal. The issues were bound to arouse reactions, but not the reactions that caught me off guard.

There were two different deliberation groups following a lengthy fact presentation, and I went to Room 2 to make sure they were settled into their tasks when a mock juror came tensely walking out of the room, telling me that he was going to join the other deliberation group. “Not so fast” I said, “Why? What happened?”

It took a bit of time to figure it all out, because no one wanted to discuss it, but it seems that the departing juror noticed that another juror had a distinctly ethnic name. The name was ‘Yasmin’*, and it belonged to a young woman. The older male juror (mid-40’s, white, college graduate) approached her as the deliberation group was gathering, and started asking her questions. She was evidently polite, initially, until he started pressing her with questions about her, her family background, her ethnicity, national origin, et cetera. She declined to answer his personal questions, and he wouldn’t stop. What she told me later was that she has learned over the last few years that his questions were code language for “What is a Muslim doing here?”

I didn’t see it coming. This woman was a sophisticated Ivy-league graduate and as western in appearance as the man who was annoying her. The guy wouldn’t leave her—or the questions—alone. She finally had to be rude to him to make him stop, and he was so put out he wanted to leave the group. The effect on the group was so chilling that they spent a half-hour recovering from the pall it cast on the room. Finally, the group got to work and we learned from them what they were there to teach us. But those two people never so much as looked in the direction of one another for three hours.

After the group, I spoke with the attorneys, one of whom was, ironically, a young Muslim woman, of an equally sophisticated and American style. She told me that it happens to her regularly. People learn that she is Muslim, and suddenly the entire conversation shifts.

“Even lawyers that I have known for years—graduates of prestigious law schools—ask me ‘Why are you building that mosque near Ground Zero?’ Its as if they check their brains at the door. None of us live within 500 miles of New York.”

We write—in this blog, in our articles, and in CLE papers—about bias of all kinds. The insidious nature of it is sometimes hard to anticipate, especially when it is so completely irrelevant. But we are living in an age when otherwise sane and reasonable Americans feel entitled to badger and harass someone merely on suspicion that they are guilty of being the child of their parents. Being Muslim is the irritation to them. Not because these American men feel threatened by these slender young women, but because they believe they are entitled to intrude. These women are unequivocally American—well educated, dressed out of an American fashion magazine, and speaking with the accent of someone from middle-America. What would a newly-minted citizen have faced? What do those who are poor, uneducated, or less empowered experience? The same maltreatment that other ethnic groups have faced, to be sure.

So, questions beg for answers. What does it say about the composition of your trial team? Of your jury? Of your client representatives? I hesitate to ask these questions because I don’t want a harassed segment of our society to be marginalized further. But as the insightful young lawyer told me:

“I know from experience to expect it. Not paying attention to assumptions jurors make about me is just foolish. I am not going to change my name or pretend I am someone I’m not. Some people are going to care about it. And I need to care about it on behalf of my clients.”

And so we all need to keep it in mind, but how? You need to assume that a member of your trial team, witness list, or a client who ‘appears’ to be Muslim is going to be viewed negatively by some. That doesn’t mean that you should exclude them on that basis, but it has to be dealt with in voir dire, as we have discussed at length here and here. You need to gently offer those who are biased to identify themselves, and get them disqualified. It can be done. Once into the case, special attention has to be given to making your client ‘just like us‘. You might also consider having the witness talk about the special challenge of being a Muslim American at this point in time, and how it is still worth it, for the sake of what America means to them.

The young lawyer was right, and my heart sank for a bit. While nobly objective of her, this exchange illuminated an injury to justice. And it isn’t clear how long this wound will take to heal. In the meantime, we need to go forward armed with strategies for keeping this most human form of wrong-doing in check.

*Name changed to maintain anonymity.