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Archive for December, 2010

As trial consultants, we are always on the lookout for new nuggets of useful information. Some of them are true wisdom and some… let’s just say ‘not so much’. Generally, we share only the really good stuff with you but sometimes we regress a bit. And this is one of those times. Hang on!

Despite the disturbing news out earlier this year that middle age now begins at 35 and multiple other (obviously erroneous) sources telling us that aging brains are simply not up to par—there is good news for those of us on the other side of 30 (even those of us way on the other side!). The development of face memory doesn’t reach it’s peak until our early 30s.  I bet this is why those of us well on the other side of 30 ponder ‘that person looks familiar’ more often than those under 30. We simply remember more.

2010 also brought us the disconcerting news that money can’t buy happiness (or fidelity) unless it’s above a certain amount of money. Turns out it also can’t buy you sensitivity to others. Members of the ‘upper class’ (rich people) have a much harder time reading/intuiting the emotions of others.

We’ve done an ongoing post topic here at The Jury Room on how hard it is to be a woman. And there are certainly lots of reasons for that. But we’re ending up 2010 with a ray of hope. Women often report ongoing instances of sexist statements/communications in the workplace. Researchers at the University of Nebraska-Lincoln found that women who confront sexist statements in the workplace feel more competent and more capable.

And on that note, we want to applaud Judge Kimba Wood from the Southern District of New York who responded to a male attorney requesting time away if his daughter gave birth to a boy. Judge Wood made a ‘bris exception’ and countered with what would happen if a daughter was born:

“Mr. Epstein will be permitted to attend the bris, in the joyous event that a son is born. But the Court would like to balance the scales. If a daughter is born, there will be a public celebration in Court, with readings from poetry celebrating girls and women.”

Gervais, S. J.,, Hillard, A. &, & Vescio, T. K. (2010). Confronting sexism: The role of relationship orientation and gender. Sex Roles, 63, 463-474

Kraus MW, Côté S, & Keltner D (2010). Social class, contextualism, and empathic accuracy. Psychological science : a journal of the American Psychological Society / APS, 21 (11), 1716-23 PMID: 20974714
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We’ve written before about how what we say is not what we do. That is, our expressed values are not reflected in our behavior. And a new study points that (somewhat depressing) reality out yet again.

Americans lie (breaking the 9th Commandment) about how often we attend church services.  This has likely skewed the data on American religiosity reported by social scientists, and is probably a reflection of the greater perceived social desirability attached to church-going by Americans than by those from other countries. Additionally, it reinforces the idea that we should remind ourselves to not believe everything we hear from our friends, family, and the potential jurors in the jury box. Self-reports are not accurate. And often, we simply do not realize we are not reporting accurately. We simply want to appear to be ‘good’ people.

And it isn’t just self-reports where we report things about ourselves that are not true. We are swayed by both external situations and internal attitudes. And it happens all the time in multiple different situations. This time we’ll talk about two: dirt and politics.

Dirt:

Most of us would say that our values and attitudes are the same no matter where we are. We might be on a flying airplane, a crowded bus, asleep in our own beds. What we think is acceptable or moral for ourselves stays the same. And in believing thus, we would be in error. The field of moral psychology has been garnering increasing attention—most often in the area of disgust.

The flip side of disgust is cleanliness, purity, or the desire to feel pure and clean. Simone Schnall conducts research on the desire to feel clean and pure. She tells us that our value judgments are strongly affected by our surroundings. If you sit at a disgusting table or in a room with a bad odor—you are more likely to say that telling white lies to get a job is wrong than is someone sitting at a clean table or in a sweet-smelling room!

A sour environment breeds less tolerance for misconduct.

Politics:

You may be quite sure that your own political outlook (conservative or liberal) sets you apart from those on the opposite end of the continuum from you— e.g., ‘I am different in politics, so I am different in all ways’. And we are not about to tell you it isn’t true. Liberals and conservatives ‘see the world’ differently. We know that subjectively to be true. It is also apparently literally true. Researchers from the University of Nebraska at Lincoln found this:

In a new study, UNL researchers measured both liberals’ and conservatives’ reaction to “gaze cues” – a person’s tendency to shift attention in a direction consistent with another person’s eye movements, even if it’s irrelevant to their current task – and found big differences between the two groups.

Liberals responded strongly to the prompts, consistently moving their attention in the direction suggested to them by a face on a computer screen. Conservatives, on the other hand, did not.

Why? Researchers suggested that conservatives’ value on personal autonomy might make them less likely to be influenced by others, and therefore less responsive to the visual prompts.
Liberals may have followed the “gaze cues,” meanwhile, because they tend to be more responsive to others, the study suggests.

In other words, the conclusion of the researchers is that liberals are more attuned to others, more responsive and more likely to become involved in interactions with others. Ultimately, this may be a voir dire tip—not for liberalism/conservatism per se but for a window into the likelihood of the individual juror to engage with your story.

The point of all this is simple. We are strongly swayed by factors of which we have little to no awareness. We lie to look good. Dirty or clean surroundings make our report of what we think about behavior vary. And our political perspective influences how we engage with others (or maybe our engagement style determines our politics…).

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Even though we have been hearing about (and writing about) jurors and the internet for a several years now—it was still something of a shock to see the ABA piece identifying 90 verdicts challenged due to jurors’ alleged internet misconduct. We wrote an article on Jurors and the Internet in The Jury Expert back in November of 2009. (And if you haven’t seen the updated version from August, 2010—here it is.) Readers cannot get enough of these articles—and it appears jurors can’t get enough of the internet! Ninety verdict challenges is a lot of activity.

But jurors and the internet are not the only behavior causing mistrials. There’s a very odd story out of the UK about an attorney in the courtroom gallery making faces and rolling his eyes at the jury. The jury was so unsettled by this, they sent a note to the judge:

“We find him very distracting and he is making strange faces all the time. We feel very uncomfortable with him.”

The case ended up in mistrial as it turned out the face-making attorney had unsuccessfully prosecuted the female defendant earlier and she said she was disconcerted by him as well.

Strange things can happen in the courtroom as well as in the jury room. We’ve written before about the importance of teaching the jury how to [and how not to] deliberate. New research would say it’s also important to teach juries how to pick their presiding juror. We know the presiding juror is important, in terms of preventing a hung jury. But, the way a presiding juror is selected may also have impact on the deliberation process.

Eckel, Fatas & Wilson (2010) looked at how leaders are chosen and how that selection process relates to group functioning. They had group members participate in a task where everyone saw each other’s scores. Then they assigned group leaders defining a ‘high status’ leader as someone with a high score and a ‘low status leader’ as someone with a low score. What they found was that when leaders were seen as high-status—group members invested more and participated in the task at hand. When group leaders are seen as low-status—group members de-invest and do not participate.

The implications for what you need to communicate to jurors about how to select a presiding juror are clear:

Talk to jurors about the importance of the presiding juror role.

This defines the presiding juror role as ‘high status’.

Talk to jurors about what makes an effective presiding juror.

This helps them see/determine who would be the best choice.

And perhaps teach them how to deliberate so they can have the best chance at working together effectively.

Keep in mind that this is a strange new role for them, and some practical guidance presented in the right tone could be appreciated.



CATHERINE C. ECKEL, ENRIQUE FATAS, & RICK WILSON (2010). Cooperation and Status in Organizations. Journal of Public Economic Theory, 12 (4)

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.

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Here’s a nice and very simple persuasion tactic first presented at PsyBlog in their ongoing series on 10 forms of persuasion. They cite the recent work of Nicole Mayer & Zakary Tormala (2010) and discuss the natural tendency we have to see the world (and thus describe it) via either thinking (useless or useful) or feeling (pleasant or unpleasant).

Mayer & Tormala identified the preferred style of their research participants and found (not surprisingly) that thinkers were more persuaded by thinking messages and feelers were more persuaded by messages where ‘feel’ was used. So they went a step further to explore what would happen if you had no way of knowing ahead of time whether your audience were thinkers or feelers. Using standard gender stereotypes wherein women tend to be feelers and men tend to be thinkers—they gave both men and women reviews of a particular movie where the review began with either “I think” or “I feel”. And they found that women were more persuaded by “I feel” reviews and men more by “I think” reviews. Thus you can do a quick and dirty head count and see if you are speaking to more men than women and modify your persuasive message accordingly.

When I read about research like this it also raises questions about similar words that carry meaning and commitment, such as “I believe”, “I trust”, “I have to believe”, “I determined”, “I found”, “I discovered”.  They all carry with them a mixture of thinking and feeling, and all will resonate differently with different jurors.  Keep in mind that this tip applies to witnesses every bit as much as it applies to you in argument.  The key is to find language that heightens the credibility of your case in the hearts and minds of the triers of fact.  Ah, the art of advocacy!

This one is simple to apply to litigation advocacy. While you are unlikely to have an all male or all female jury—you can certainly use both forms of persuasive message to appeal to everyone in the jury box.  Know who your audience is, and be aware of what resonates best with them.  “Think” and “feel” are both powerful messages that serve as cues to the listener to tune in a bit more since you are speaking their particular language. Obviously, you are not really changing the actual message content—you are simply modifying delivery and changing the appearance of the message. It’s a small and subtle shift. But likely one your listeners will hear.

Mayer ND, & Tormala ZL (2010). “Think” versus “feel” framing effects in persuasion. Personality and social psychology bulletin, 36 (4), 443-54 PMID: 20363901

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.

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Patent litigation and wonder in East Texas

Wednesday, December 22, 2010
posted by Douglas Keene

We do a lot of patent litigation work and that means driving over hill and dale (or rather, freeway and ranch roads) to places like the Eastern District of Texas for mock trials and focus groups. A few weeks ago, as I drove to Tyler, Texas I turned to the new John Grisham book on my iPod (The Confession).  I had no idea it was based in Texas and it was entertaining to be driving past towns mentioned in the book—Austin, Marshall, Tyler—as I listened to the tale of an innocent man on Death Row. Grisham tells a good story. He has easier material than the IP lawyers.

It can be a real challenge to convert the dry and often technical patent infringement case into a story of relevance and interest to potential jurors. This time though, we were dealing with an actual product many of the jurors had purchased and used. They had opinions. They had feelings. They knew this product and they wanted to understand the lawsuit. And often that is all it takes to help jurors focus on what might otherwise be mind-numbing and sleep-inducing information. The goal, even in especially dry material—is to tell a story that engages.

We had a patent case once where a mock juror kept giggling when a slide was shown with a small section in the county highlighted on a graphic. In his deliberation group, despite his lack of formal education—he was vocal and opinionated and instrumental in shaping group opinion. When asked about his earlier giggles—he grinned sheepishly and said,

“Well, I happen to live on that spot. I know it was an example to illustrate for us how patent holders stake out their property but it just struck me as funny that they were suing for all these millions over my house!”

For him, the personal identification with a pretty obscure technical patent infringement case challenged him to focus and master the information to the extent possible.

In another case, with a small company suing a bigger company for using their product without permission—we saw the opposite of a ‘David and Goliath’ reaction.  Surprisingly, an older African American mock juror got tears in her eyes as she spoke up for “Goliath”.

This company is our future! We can’t let some small upstart take away their ability to create jobs for our children. The country is in enough trouble already.”

It was not what we expected—and that ingredient is the essence of a good story. An unexpected twist or fact or way of expressing a tale that enlightens, engages and enthuses the audience. Which leads us to a final tale from East Texas.

We were telling a story of a company (the plaintiff) suing another company (the defendant) because a third party (let’s call him Joe) had given an idea to the defendant and the defendant (not knowing ‘Joe’ perhaps did not have clear title to the idea) taught some people how to use it, improved on it, and provided consultation on how to use the improvements. So the plaintiff sued the defendant for infringement because we all know ‘Joe’ doesn’t have the money to recover significant damages. Finally, a construction worker mock juror raised his hand:

“Let me get this straight. So some guy steals a drill and brings it to my worksite. I teach him how to use it. And now I get sued for teaching him to use the drill?”

Sometimes, in East Texas, you don’t need John Grisham to have your breath catch in your throat with wonder.

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.

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