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We don’t want education, we want confirmation

Wednesday, February 16, 2011
posted by Douglas Keene

It’s a truism of pretrial research. Well no, actually… it’s a truism of life. We don’t want to have our ideas challenged—we want to be told things that confirm our pre-existing beliefs. It’s why we perform rigorous pretrial research and give our clients feedback on what case themes and narratives arise—both those that work well and those that just don’t work well at all. There are always mock jurors who simply do not listen to the story but, instead, come up with explanations of their own for what happened based on their pre-existing assumptions.

We’ve written about this before but we have never seen research that so eloquently illustrates the reality of believing what we already believe as the new piece out from the great minds at the Cultural Cognition Project (Yale). We think this piece offers valuable information to trial lawyers and appreciate our client Chris R. passing it our direction. Orin Kerr, at the Volokh Conspiracy, offers a succinct summary of the research process.

“The paper reports the results of an interesting study on how a person’s political and ideological worldview impacts how they see facts that have a significant political and ideological valence.

In the study, individuals are shown a video of a protest at a building. Individuals are then asked to say, based on the video, whether the protesters violated a law that that prohibits intentionally interfering with, obstructing, intimidating, or threatening a person seeking to enter, exit, or remain lawfully on the premises.

Now here’s the catch: There were actually two videos, not one. The two videos are identical except that the designers of the study altered the videos to change what was being protested. One video is edited so that the protest is against military recruiters; the second video is edited so that the protest is against an abortion clinic.

The results of the study found that people tended to find or not find liability based on large part on their views of abortion and military recruiting. As the authors of the paper explain:
Our subjects all viewed the same video. But what they saw—earnest voicing of dissent intended only to persuade, or physical intimidation calculated to interfere with the freedom of others—depended on the congruence of the protestors’ positions with the subjects’ own cultural values.” [
Volokh Conspiracy blog]

In other words, viewers of the two videos had differing reactions based on whether they were more sympathetic to military recruitment or abortion rights. We often say that demographics don’t tell us a whole lot about potential jurors but their attitudes and values truly inform us about their likely reaction to a specific case. This research, conducted in a fashion that reflects how the context of a story (and the values it encounters)—contains a key lesson for trial lawyers everywhere.

Make sure what you communicate about your case is what the jurors really hear.

‘They Saw a Protest’: Cognitive Illiberalism and the Speech-Conduct Distinction. Dan M. Kahan, David A. Hoffman, Donald Braman, Jeffrey J. Rachlinski . February 5, 2011, Cultural Cognition Project Working Paper No. 63.

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Here’s a new entry in the embodied cognition research. You remember, it’s the research that leads us to see others as ‘warm’ when we are holding a cup of hot coffee.  There are associations (warm drink = warm person) and there are symbolic meanings (like Pontius Pilate or Lady MacBeth washing their hands to absolve themselves of guilt). And then. Then there are the stereotypes.

Researchers altered photos of faces to make them appear gender-neutral. Then, they had research participants squeeze a ball in their hands while looking at the photos and then categorize the photos as either male or female. Some participants had soft balls and some had hard balls. Participants who had soft balls were more likely to classify faces as female. Those with hard balls were more likely to classify faces as male.

In a second experiment, new participants viewed the same faces but were told to either press down hard or press lightly while circling ‘male’ or ‘female’. You know what happened. The same thing. Hard pressing favored male and light pressing favored female. Because the researchers thought—stereotypes tell us men are tough and women are tender.

So what does this mean for litigation advocacy? Hmmm.

Could it mean if you want your jurors to favor a male party over a female one, you tell them to think ‘hard’ as they deliberate? Or, to accentuate the reverse, would you instead say “The evidence makes clear the truth of these delicate issues”?

Or does it simply mean you could pay attention to the imagery you invoke (hard vs. soft) in order to avoid priming jurors to the opposite side?

The importance of language choice and thematic imagery is important on levels we often overlook.  Sometimes, as Freud said—a banana is just a banana. We can get so caught up in research findings that we lose our spontaneity and lose the ‘magic’ that makes trial advocacy sing.  But ultimately, litigation is about people, not issues.  And shaping a story that directs attention toward the facets of  the case that favors your case is the very heart of advocacy.

Slepian ML, Weisbuch M, Rule NO, & Ambady N (2011). Tough and tender: embodied categorization of gender. Psychological science : a journal of the American Psychological Society / APS, 22 (1), 26-8 PMID: 21106884

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The new issue of The Jury Expert is out. I’ve been editing this publication since May 2008 when we moved from a small association newsletter to a one-of-a-kind litigation advocacy and trial skills journal. If you are reading our blog, you will probably find much to like in The Jury Expert. And, it’s free. Always a good thing.

The Jury Expert is published by the American Society of Trial Consultants. The publication features writing by trial consultant members of the association and summaries of recent research findings from academics and other researchers. All of it is aimed at improving your litigation advocacy. Take a look by clicking here.

In this issue you will find pieces on improving your skills in voir dire; doing trial graphics “on the cheap”; making decisions about bifurcation of trial; considering how jurors are looking at you and how that may have impact on verdict; thoughts on a supplemental juror questionnaire for white collar defense; packing like a pro; and finally, a gift for you in the form of a Favorite Thing.

We know our clients are often interested in reading about improving their litigation advocacy. You can do that here. You can also do it at The Jury Expert. We encourage you to visit now and again and again. We think you’ll like what you see.

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We pray with closed eyes

Wednesday, February 9, 2011
posted by Douglas Keene

We’ve talked about the “look inside yourself” strategy in case presentation before.  It’s a deceptively simple strategy to minimize bias and to help jurors get in touch with their moral center rather than operating blindly on pre-existing assumptions.

Okay, so part of it may be in the delivery by our client Richard– who has a low-key, understated delivery that is powerful in eliciting an emotional reaction from jurors. Even when we know what’s coming, there is something so touching about his use of this tactic with jurors. They are able to both hear the story and see the experiences and losses of his client, in a very personal way.

Recently though, we saw some research featured at Research Digest blog that gave us new insight into why this is effective.  Researchers conducted three studies in which they had participants listen to scenarios with their eyes closed or with their eyes open.

Participants with their eyes closed judged a situation where someone overbilled for hours worked (in order to charge more) as more unethical than did open-eyed participants.

Participants who listened to instructions for a financial game with their eyes closed were more fair in sharing money than those who listened to the same instructions with their eyes open.

And participants with their eyes closed who listened to a scenario where nepotism and self-interest was involved—rated those choices as more unethical than those who listened with their eyes open.

Finally, the researchers found that participants with their eyes closed had visualized the situation more vividly.

The researchers believe that when we close our eyes, we are able to imagine more vividly. The vividness of our imagination is thought to highlight the ethical nature of consequent decisions and to perhaps result in more honest behavior.

What does that mean for litigation advocacy? Well, first off—it means you should revisit our post on how our client uses closed eyes with jurors. And second, it means that if you want jurors (or others) to make decisions carefully and honestly and with utmost attention to ethical issues—have them close their eyes. If, on the other hand, you want jurors to make mitigated decisions based on situational factors, use language that encourages an open, clear-eyed view of the circumstances and all of their implications.

It’s always interesting to see research that enlightens us about how different strategies work.  Strategies that appear simple still operate on deeper levels that bear understanding.   And if you want to be sure you, yourself, are making the most ethical and honest decisions possible—sit back, close your eyes and visualize the situation over which you are making a decision. Cut out the distractions, focus on what is the very best you can be, and you will see the solution.

Caruso EM, & Gino F (2011). Blind ethics: Closing one’s eyes polarizes moral judgments and discourages dishonest behavior. Cognition, 118 (2), 280-5 PMID: 21145538

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If your client is African American, jurors will demonstrate to you that the answer is much more likely to be yes. And the more stereotypically black (with darker skin and wider nose)—the more likely the death penalty will be assigned. Hard to stomach? Yes. Hard to believe? We didn’t think so. But it is pretty disturbing. Let’s look at the research.

Stanford psychologist Jennifer Eberhardt had students rate “how black” different photos of African American males were based on their assessment of facial features, hair and skin color. What the students did not know is that all the photos were of convicted murderers in the Philadelphia area from between 1979 and 1999. All of the men had faced the death penalty. When analysis was complete—and the researchers controlled for other factors such as egregious nature of the crime, aggravating circumstances and the SES of killer and victim—the more ‘black’ the man in the photo looked to Stanford students—the more likely he was to have received the death penalty at his trial.

Further—if the black male had killed a white victim—his likelihood of receiving the death penalty was even higher! When the victim was also black—the ‘blackness’ of the murderer made no difference in sentencing. Specifically, in 44 cases where black males murdered white victims, those who looked ‘less black’ were sentenced to death only 24% of the time while those who looked ‘more black’ were sentenced to death 57% of the time. More than double.

We’ve written a lot about the importance of making your client similar to jurors and issues of racial bias. It’s hard to find a more disturbing and specific example of why this is important in the courtroom. Jurors in capital cases are asked to consider the evidence and circumstances as they assess punishment. Any judgment as to the murderer’s ‘blackness’ would likely take place outside the juror’s awareness. (We hope.)

Our experience in helping trial lawyers mitigate racial bias would say you need to take a look at your client. If your client has more stereotypically African American features—sharing this research with jurors could be a powerful deterrent to a death penalty decision.

Jurors want to do the right thing. In the powerful and stressful demands of a death penalty deliberation—they will (as would we all in similar circumstances) fall back on core assumptions and stereotypes to make decisions. It will happen outside their conscious awareness. Unless. Unless you make them aware and thereby help them consider facts and evidence as they make difficult decisions.

Eberhardt JL, Davies PG, Purdie-Vaughns VJ, & Johnson SL (2006). Looking deathworthy: perceived stereotypicality of Black defendants predicts capital-sentencing outcomes. Psychological science : a journal of the American Psychological Society / APS, 17 (5), 383-6 PMID: 16683924

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