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Archive for April, 2011

Harvard Business School’s Working Knowledge website had a really interesting piece on blind spots this week. Essentially what they said was that we simply don’t know what we’re doing when it comes to making decisions. Max Bazerman has a new book (Blind Spots: Why We Fail to Do What’s Right and What to Do about It) and the key concepts are as follows:

Good people do bad things without being aware that they are doing anything wrong.

Motivational blindness is the tendency to not notice the unethical actions of others when it is against our own best interests to notice.

The “want” self—that part of us that behaves according to self-interest and, often, without regard for moral principles—is silent during the planning stage of a decision but typically emerges and dominates at the time of the decision.

Organizations can monitor how they are creating institutions, structures, and incentives that increase the likelihood of unethical actions, while individuals can “pre-commit” to intended ethical choices.

We’ve written a lot about how mock jurors (and real jurors) cannot really tell us why they have strong opinions on specific cases. (See, for example, our blog series on decision-making.) They simply hold those opinions and gentle pushing to uncover ‘why’ generally results in “I can’t put it into words but I know what I think”. What Max Bazerman’s book would say is “No. You really don’t.” and that is very scary when you are about to give your case over to a group of twelve.

We’ve also written about ‘blind spots’ before.  It’s all about learning to be self-aware and learning how your blind spots can trick you into thinking you are making a principled decision when you really are simply not.

So what do you do? Well, for one thing, you do pre-trial research and determine where these blind-spot judgments are likely to emerge. And you may well find what we have found over and over again. Raising self-awareness is not only possible, it’s actually pretty straightforward. And you can do it without shaming or blaming your jurors.


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Polls and Prejudice

Wednesday, April 27, 2011
posted by Douglas Keene

I am fascinated by polls. Part of it is because I work with public opinion at a very intimate level as I observe groups of twelve making decisions. I carefully evaluate the beliefs, assumptions, decision strategies, and conclusions of well over 1000 jurors every year.  Partly, polls give me insight into attitudinal trends and social movements.  And part of it is because it fascinates me to see how slowly what we say are our beliefs change and yet how fast our behaviors and biases change as major events befall us.

What we say drives our behavior (our moral code, our religious beliefs, and other higher plane values) simply does not drive our behavior at all. We’ve written about this phenomenon before when we looked at Americans core values and at racial bias as exemplified by the vitriolic comments on a seemingly innocent style piece on First Lady Michelle Obama.

Yet the polls are [still] out there. And the pollsters say they statistically reflect all of us. Even though increasing numbers of us either don’t have or don’t answer our home phones unless we know who is calling. So here is what reflects “us” recently.

Trump Most Visible Among Possible GOP Contenders

Same-Sex Marriage, Gay Rights

Budget Negotiations in a Word – “Ridiculous”

Majorities of Americans Support Legalizing Medical Marijuana In Their State

Most Previous Obama Voters likely to Vote for Him in 2012 but 17% say they are unlikely to vote for Obama again

Civil War at 150: Still Relevant, Still Divisive

Statistically, pollsters would predict these headlines are likely to reflect my sentiments. They would be wrong. Some do, some don’t. I know this. And I know it’s true of our mock and actual jurors as well. So why do I continue to love to read polls and emerging social sciences research?

Because it’s the best shot we have at keeping a finger on the pulse of our society. There seems to be a trend toward more ‘meanness’ these days. I want to understand why that is and from which direction it comes. Just how powerful are first impressions? And for whom? I need to know. Are young people today really more negative and narcissistic or is the issue that many attorneys are getting older? How pervasive (and how persuasive) are beliefs from watching CSI-type TV shows about the sort of high-tech evidence that will be presented in court? If I fall short, will I lose the case? And if I take fish oil capsules is it really true that I can smoke pot and avoid psychosis?

We have to sift through the results of research and polls to find out what is really sound and reliable information. We used to use polling questions on our background questionnaires to assess mock juror attitudes. We figured since we ‘knew’ they found measureable differences they would do the same with our mock jurors. We don’t do that anymore. Because it doesn’t work. For the most part, the questions are too ‘macro’ to really apply to the ‘micro’ facts of our cases. But we still track them and follow new research findings.

Ultimately, you have to know your audience.  If you understand a little bit more than your opponent about what your jurors care about, what causes worry, and what provides comfort, you have an edge.  When you are dealing with groups of twelve, any edge you can get on understanding human behavior and decision-making as it relates to your specific case is terrifically important. And sometimes it is like striking gold.


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My niece is getting her doctorate in English and always signs her emails with this quote from Hamlet:

This above all: to thine own self be true, And it must follow, as the night the day,
 Thou canst not then be false to any man.” – Hamlet, Act I, sc. Iii

And that’s fine for an English major. But does it apply to trial lawyers? Can you really be “your own self” when presenting in the courtroom? We’ve written a bit about how to present yourself in court and were really impressed with a recent blog post over at From the Sidebar blog.

Dave Walton is an attorney in West Conshohocken, Pennsylvania who was inspired by the 2010 film The King’s Speech to write about his own stutter and his experiences in the courtroom.

“Like a lot of lawyers in large firms, I wanted trial experience, but the opportunities were rare.  A number of years ago, I was lucky enough to get the chance.  I tried a lengthy jury trial and have tried many since. After the trial, a group of jury members walked over to me.  I didn’t know what to expect and was a little nervous.  One juror told me that they really respected me because they knew that I had a stutter.  They stressed that my stutter was minor but that they noticed it and that they talked about it.  The jurors said they admired my courage in being a trial lawyer.  I was surprised and a little embarrassed by the jurors’ comments.  My first thought was, I don’t remember stuttering that much.  As the jurors walked away from me, I realized that I had something that was natural and genuine.  It was an epiphany – my stutter was a great gift.”

It’s a beautiful post and the comments reflect gratitude for Dave’s courage and the inspiration he gives to others. And Dave’s reflection also gives us a good lesson to remember:

I am not suggesting that you should develop a stutter as a form of jury persuasion.  If you do anything fake or insincere the jury will see through it.  Never underestimate a jury’s power of perception.  They “see” everything.  Be yourself.  Everything about you and your personal style can be a strength.  It doesn’t mean you shouldn’t identify your weaknesses and work on them – but don’t obsess about them.  Instead, develop an unshakable strong belief in yourself.

Perhaps two of the most important things you can do to enhance your persuasiveness are to be the best version of yourself and to never ever underestimate the jury’s power of perception. It’s easy to lose track sometimes and to think we are able to trick the triers of fact. They almost always see through us.

We did a mock trial recently with multiple defendant presentations where we were asked to see what the jurors thought of the various attorney presenters. Juror ‘constructive’ comments perhaps gave more than they bargained for:

No eye contact, reading a script.

No facts, pieces of info to sway view. Assumes we can’t think for ourselves.

Very informative, but felt like he was talking down to me at the time.

He made eye contact but lacked the confidence and seemed to lack focus in the middle and the end.

Sometimes the person delivering the facts holds sway over Jurors because they’re more believable. This attorneys acts as if he’s reading instead of being knowledge about the case. It’s like he’s trying to get you to believe instead of the facts speaking for themselves.

His presentation was good just not convincing.

He appears sincere but has weak arguments.

Seemed very nervous and uncomfortable in front of everyone.

He makes me sleepy!

Male used double-speak to try to skew facts and acted as if we were too dumb to know diff. Female tried to “be one of us” and kept winking on key points. Very unprofessional. Please deal in facts and don’t assume I’m too dumb to interpret them.

In fairness, there were a multitude of complimentary comments as well, but as trial lawyers, you have to be worried about striking the wrong note.  About being inauthentic or phony.  Dave’s right. Jurors see everything!  Being prevented by nature from masking this feature of his identity made him real, and made him more credible.  Let jurors see you being sincere and giving them information as opposed to ‘spin’.

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We are likely all familiar with the books touting men and women as being from different planets. Those of us with male and female children have tales to tell of how different they were from birth. But when we grow up, is there any proof we are different in the jury room?

Maybe so. Researchers in the United Kingdom have shown experimentally (for what appears to be the first time) that men and women differ in their assignment to categories. That is, when asked if something like a tomato is a fruit or not—men are more likely to say either yes or no while women hedge and point to shades of gray in the answer.

“The researchers found that men were more likely to make absolute category judgments (e.g., a tomato is either a fruit or not), whereas women made less certain category judgments (e.g., a tomato can “sort of” belong in the fruit category). The women surveyed tended to be much more nuanced in their responses and were 23% more likely to assign an object to the “partial” category.”

Is it a surprise that women are more prone to consider things from both perspectives, where men are quicker to judge?  Obviously, the categorization of tomatoes as either fruit or not is hardly the stuff from which courtroom cases are made. But this research has potential implications for jury selection. Particularly in those courtrooms where voir dire is either very limited or non-existent.

When you aren’t able to know much about your jurors—when you have to make decisions based on demographics alone—this is a worthwhile way to consider gender differences.

If your case is one that looks strong on the face but if considered too carefully can fall apart fast, you may want to choose men who (according to this research) who are more likely to rush to judgment.

If, on the other hand, your case requires thoughtful consideration and a look at the gray areas to find for your client, according to this research, you will want to choose women who are more nuanced in their decision-making.

If you are expecting jurors to make decisions on sentencing your client in a criminal case, this research would indicate that women may be more open to hearing (and being more merciful due to) mitigating circumstances.

If you are prosecuting a criminal case and expect jurors to make decisions about sentencing—this research would indicate male jurors will be more likely to ‘throw the book’ at the defendant in a quick judgment that the defendant is guilty and therefore ‘bad’ and deserving of punishment.

You always want to be careful about not making assumptions based on demographics alone. It simply doesn’t work. But when you have limited information and male and female juror options who visually appear to fit traditional gender stereotypes—this may be one of your best options.

Vickie Pasterski, Karolina Zwierzynska, & Zachary Estes (2011). Sex differences in semantic categorization. Archives of Sexual Behavior.

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Trial attorneys want to pick winners. It’s a form of predicting the future. And lawyers are often pretty bad at doing it accurately.  A new book leads us to think that even dart-throwing monkeys might be better at predicting which cases are winners and which ones are just…not.  [At times we are tempted to apologize for the implications of research (we could have just said that prediction of outcomes is random) but instead we have provided you with a great line for so many occasions, i.e., “Great job—almost as good as a dart-throwing monkey!”  No need to thank us.  Just keep reading our blog!]

What’s that you say? You have years of experience and a strong intuition about what makes a case a winner and what doesn’t? Alas. Many experts have gone before you and marched into the dark abyss of failed predictions. In his new book, Future Babble, Dan Gardner takes us through 40 years of failed predictions on economics, energy, environment, politics, and so much more.  We are fans.

Gardner acknowledges his debt to political scientist Philip Tetlock, who set up a 20-year experiment in which he enrolled nearly 300 experts in politics. Tetlock then solicited thousands of predictions about the fates of scores of countries and later checked how well they did. Not so well. Tetlock concluded that most of his experts would have been beaten by “a dart-throwing chimpanzee.” Tetlock found that the experts wearing rose-tinted glasses “assigned probabilities of 65 percent to rosy scenarios that materialized only 15 percent of the time.” Doomsters did even worse: “They assigned probabilities of 70 percent to bleak scenarios that materialized only 12 percent of the time.”

It’s pretty sobering to realize that our experts have less insight into the future than we like to think. The best we can do is make educated guesses. Gardner distinguishes between fox-pundits and hedgehog-pundits. (Foxes know a lot about many things and hedgehogs know a lot about one thing or one theory and use it to explain the world through a single lens.)

To be a good hedgehog, Gardner says you simply need to do this: “Be simple, clear, and confident. Be extreme. Be a good storyteller. Think and talk like a hedgehog.”  And, according to Gardner, you will be on TV talk shows, be called for comments on current events and likely almost always be very, very wrong.

So, to predict better, draw from many sources of information, consult with your colleagues and persons-on-the-street (preferably different genders and backgrounds) and force yourself to focus on the facts. And remember this—there is a reason we like to make fast decisions on whether an outcome will happen or not:

Gardner also explains why so many of us keep falling for false prophesy: Humans beings hate uncertainty. Gardner offers myriad insights from research in cognitive psychology and behavioral economics that explains how and why we succumb to our desires for certainty. “Whether sunny or bleak, convictions about the future satisfy the hunger for certainty,” writes Gardner. “We want to believe. And so we do.”