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Archive for June, 2011

Here’s some research that flies in the face of the common wisdom “what is pretty is good”. Most of us have seen (or heard about) the research that says physically attractive people  tend to make better initial impressions on others. It seems that there is some fine print that goes with that adage, and you may have heard the saying “pretty is as pretty does”.  It’s an old-fashioned phrase that means “don’t judge a book by its cover”.  And the message of this new research is similar—don’t expect to skate by on your looks with same sex jurors (unless they have high self-esteem). While the researchers say this effect is documented well in the ‘close relationships’ research literature, they wanted to see if it would hold true in organizational environments when used to determine hire-ability.

In the current research, German researchers attached carefully selected photos to mock resumes. They chose the photos from college yearbooks and the internet, based on the following variables: facial photo, in their 20s, all white, no eyeglasses, and no obesity. (The researchers state they chose all white targets since race can influence impressions of attractiveness.) The photos also did not depict the targets as either sexy or cute—they were simple face shots. Then the photos were rated using an attractiveness scale (although not the ‘hot or not’ scale). Four photos were ultimately selected: one attractive male and female and one less attractive male and female.

The attached resume was identical for all practical purposes and demonstrated the candidate was reasonably well qualified for the job. Only gender and assessed attractiveness varied. Research participants were asked to rate how likely they were to recommend hiring the applicant and then how much they would like to either work with the applicant or become friends with the applicant.

The researchers did a second study using professional actors on videotape with rating checks made to ensure attractive versus unattractive actors. (And no, the actors did not know the purpose of the videotapes so they were not shamed or aggrandized.  Although, it might have become uncomfortable at school reunions…) And finally, they did a third study with photographs again where the real purpose of the study was to look at research participant’s own self-esteem.

And here is what they found.

Attractive applicants were rated more highly by the opposite gender. The same was not true for same-sex attractive applicants. These patterns held true for both male and female research participants.

And, while attractiveness made a difference for those research participants with low and moderate self-esteem, it did not for high self-esteem participants.

In other words, if you have low or moderate self-esteem, you are more threatened by others and more likely to underrate attractive same-sex targets.

If you have high self-esteem you are less threatened and don’t underrate attractive same-sex targets.

We would note the heterosexual bias of this study but want to focus on implications for litigation advocacy. And it’s a tricky one.

First, if you are an attractive female litigator, you might want to play it down a bit in court. Professional attire, competence and a matter-of-fact style can go a long ways with the jury.

There are multiple studies about how female attorneys are perceived and we don’t mean to say it’s fair, we only mean to say, be aware and be strategic.  In fact—we know it isn’t fair, and it shouldn’t be an issue at trial, but we feel obliged at times like this to acknowledge the world as it is.

Second, for women litigators, pay attention to what you can know about the self-esteem levels of potential jurors. Remember that accomplishment in life does not necessarily mean high self-esteem. Look for those who make good eye contact and seem relaxed and open to court proceedings. If you have a negative sense of a female (or male) juror’s reaction to you—trust it.  As I have had to say bluntly to attorneys during jury selection, “It isn’t just discomfort you’re feeling from that juror—they actually don’t like you.”

If you are an attractive male litigator, you also might want to play it down a bit in court. Don’t wear that blue shirt that brings out the color of your eyes. Go more traditional in attire.  Jurors resent feeling manipulated, and you don’t want them feeling competitive with you.

For both male and female litigators, attractive or not so much, focus on being both competent and likeable. Use persuasive strategies to good effect. And appeal to jurors’ best selves.

There are other interesting ideas to be drawn from this research but what is perhaps most important is the role of juror self-esteem in choosing to either elevate or demean people you see, just based on appearance.  And that isn’t pretty.

 

Agthe M, Spörrle M, & Maner JK (2011). Does being attractive always help? Positive and negative effects of attractiveness on social decision making. Personality & Social Psychology Bulletin, 37 (8), 1042-54 PMID: 21636731

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Are women just better for your jury?

Monday, June 27, 2011
posted by Douglas Keene

According to some new research, it certainly is possible. This is one of those research papers with very intriguing but totally unexpected results. And now, they’ve replicated the findings twice according to a recent entry at the Harvard Business Review website.

What the researchers did was to assess intelligence of research subjects and then assigned them randomly to teams. On the teams, subjects were asked to do several tasks (brainstorm, make decisions, solve visual puzzles and solve one complex problem). Based on team performance, they were then assigned ‘team IQs’. The better the team performance, the higher the team IQ.

When the researchers looked at the relationship between ‘team IQ’ and individual members’ IQs, they found something surprising. The ‘team IQ’ had little relationship to the individual IQs of team members.

Further, measures of group satisfaction, group cohesion, and group motivation were also not correlated with the collective team IQ. What was correlated with collective team IQ was (drum roll) the number of women on the team. Teams with more women members tended to score above average on ‘team IQ’. And yes, teams with more men tended to score below average on ‘team IQ’.

That is a pretty stunning finding. The researchers are concerned that we not presume the more women on a small group task, the better. It is possible that the difference is due to “social sensitivity” and not just to gender. And women tend to score higher on measures of social sensitivity than do men. Researcher Anita Woolley describes the group performance in this way:

Many studies have shown that women tend to score higher on tests of social sensitivity than men do. So what is really important is to have people who are high in social sensitivity, whether they are men or women.

What do you hear about great groups? Not that the members are all really smart but that they listen to each other. They share criticism constructively. They have open minds. They’re not autocratic. And in our study we saw pretty clearly that groups that had smart people dominating the conversation were not very intelligent groups.”

So part of what makes a group function better is social sensitivity. And what does that mean for litigation advocacy?

If you want a jury that functions better (works toward a common purpose, collaborates, embraces all opinions) then you want to look for either women or for men who give evidence of social sensitivity.  Since it’s easier to spot women than social sensitivity, you might want to use the gender criterion.  You will likely get more systematic processing (a careful evaluation of the evidence) and a more thoughtful outcome.

But why in the world would you prefer a lower-functioning jury, or one that does not work constructively?  When you need to convince the sub-group of jurors to dig in their heels and not succumb to the wrong-headed views of the majority.  Jury nullification, holdout jurors, and Henry Fonda in 12 Angry Men are all good examples.

If you do not want a well-functioning jury then go for more men, non-traditional women and jurors who are not socially sensitive. You will more likely get processing based on biases (heuristics) and a timely verdict from people who really do not like each other and want to leave the room.

Seriously, the idea of social sensitivity is a really important one for us to consider as we plan for and complete voir dire and jury selection. This is a promising line of research and one we’ll keep a close eye on as it continues.

 

Woolley AW, Chabris CF, Pentland A, Hashmi N, & Malone TW (2010). Evidence for a collective intelligence factor in the performance of human groups. Science (New York, N.Y.), 330 (6004), 686-8 PMID: 20929725

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Expert witnesses often think they don’t need to be “prepared” and that “preparation” is a sort of insult to their professionalism.  “I’ve testified 100 times; trust me, I know the drill”. In truth, experts often need more preparation than fact witnesses and it is exactly because of their professional status. It isn’t about the expert’s knowledge. It’s about the jury’s need to understand what the expert is saying as well as the attitudes individual jurors often have about expert witnesses.

We often hear jurors talking about experts as “hired guns”, “full of themselves” academics whose testimony jurors don’t understand, and as “salespersons” who are overly aggressive. These attitudes can be overcome with some straightforward witness preparation strategies to help the expert communicate at a level that makes sense to and is credible with jurors. These strategies go a long ways toward making your expert optimally persuasive.

Understand when the ‘hired gun effect’ is triggered

Jurors seeing an expert witness as a hired gun is most likely to happen when the testimony is complex and not easy to process. But! The effect disappears when testimony is presented in a language jurors can understand. We often see experts who want to be listened to simply because they are experts. That won’t work.

Being an expert versus being a teacher

The most important thing you can do as you prepare an expert witness is to help them change from being a college professor to being a really good 7th grade teacher. If the evidence is complex, you need basic instruction in life science, not instruction for an advanced student in cellular microbiology. Help the witness see this as something very different from “dumbing down” expert testimony. Rather, you are teaching it to novices in a way they can understand, to help them evaluate evidence as it is presented.

An advocate for the truth, not for a litigant

An effective expert witness doesn’t advocate for one side or the other. A matter-of-fact presentation of information and evidence is best. Keep it conversational—like show and tell.  Lectures from experts draw objections from opposing counsel, but more importantly they bore jurors.

For the attorney: Never ask the expert witness “would you tell the jury…”. Instead use language to show you are in this together with the jurors—“would you tell US” about it.

If your expert is anxious about testifying, they may do well to read the Dvoskin & Guy article cited below. Two excerpts exemplify the content:

“By simply answering questions honestly, telling the court what we know, how we know it, and what we do not know, we will not only abide by our legal oath to be truthful, but also will maintain the credibility that is ultimately the only asset for which we get paid.” (p 202)

“Ironically, declaring one’s ignorance is the pinnacle of credibility. In our experience, jurors are most likely to believe experts who are willing to admit their limitations and ignorance.” (p 209)

These strategies may seem simple but they will go a long ways toward disposing jurors favorably toward your expert witness and thus toward your case. And that’s what you pay the expert witness for—credibility, competence and character.

 

Dvoskin, J.A., & Guy, L.S. (2008). On being an expert witness: It’s not about you. Psychiatry, Psychology and Law, 15 (2)

Cooper, J., & Neuhaus, IM. (2000). The ‘hired gun’ effect: Assessing the effect of pay, frequency of testifying and credentials on the perception of expert testimony. Law and Human Behavior, 149

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Our first use of a story from the NY Daily News is one of the most popular posts on our blog. It was about the nerd defense. So when this story came up about an attorney allegedly using a buxom paralegal to distract the small claims court jury, what could we do? Seriously.

A Chicago lawyer is saying his opponent in a small claims case is using his paralegal’s large breasts to distract the jury.

Attorney Thomas Gooch, who is representing a car dealership, filed a motion last week asking Judge Anita Rivkin-Carothers to force the opposing lawyer’s buxom assistant to sit in the audience, rather than at the plaintiff’s table.

Gooch said lawyer Dmitry N. Feofanov is using brunette beauty Daniella Atencia “to draw the attention of the jury away from the relevant proceedings.” Gooch said he wasn’t carping about Atencia’s decolletage – he just doesn’t think she’s a real paralegal, the Chicago Daily Law Bulletin reported.

“Personally, I like large breasts,” he said. “However, I object to somebody I don’t think is a qualified paralegal sitting at the counsel table — when there’s already two lawyers there — dressed in such a fashion as to call attention to herself.”

Of course, the story does not end here, as it turns out the woman in question is married to the lawyer being challenged.

Gooch’s courtroom opponent, attorney Dmitry Foefanov, shot back saying that his assistant, Daniella Atencia, is not just his paralegal, serving as office manager, secretary, and bill-payer for his one-man law practice as well as being present in court for each of his cases since 2008.  It also happens that Atencia is Foefanov’s wife.

Several years ago I was on the faculty of a trial college for young lawyers, and had the privilege of working with smart, ambitious attorneys from all over the country.  It was a very casual program, and with the exception of a couple of activities, everyone was encouraged to dress casually.  Most of the multi-day program involved presenting witnesses, getting feedback, presenting brief opening and closing statements, and getting more feedback.  But one component involved each young lawyer meeting with one of the trial consultants for review of video tape and discussion of matters related to personal style and communication techniques.  One of the very skilled lawyers was also a stunningly attractive woman.  Very pleasant, smart, with solid potential as an attorney, she brought so much attention to herself by dressing to emphasize her sex appeal that it caused tension in group exercises and, not at all surprisingly, drew both strong attention from the men and dark looks from the women.

I asked her why she did it.  At first she feigned ignorance about what I meant.  Over the next half-hour we discussed the lessons of Allie McBeal, Boston Legal, and the challenges women face in trial law.  She held the view that her attractiveness was a component of her power in social settings, and I agreed.  We talked about the pros and cons of that power, and evaluated the risks.  The conversation was very positive, but too involved to fully explore in this post.  She got over her mortification at being (diplomatically) called out for being sexually provocative, and for the remainder of the college she dressed more like everyone else.  Surprisingly thick glasses instead of contacts, a ponytail instead of carefully prepared hairstyle, and comfortable clothes instead of designer skirts and spike heels.  This drew some whining from other men on the faculty, but raised conversation among the women (who were now willing to talk with the young lawyer in question) about the difficult balancing act they face.  It is not simple.

We have written before about using attraction to your advantage. We have also written about the importance of wearing nothing too long or too short, too low or too tight. And it is a mistake that many female professionals make as they begin to practice. While you don’t need to wear a ‘uniform’ of a dark suit and white blouse—you do need to consider the message you wish to convey.

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After 9/11/2001 we did some research that uncovered a number of questions we successfully used for the better part of two years to identify plaintiff and defense jurors.  And then—just like that—the questions stopped differentiating. The response patterns that were effective in identifying jurors who were good for us or bad for us had changed. And then, last summer and fall, we began to see a return of the usefulness of some of those questions. Oddly, one of the most powerful questions in 2001-2003 has continued to be of no value. It was curious since most of the others (though not all) were back in force. And now we think we know why.

And it’s an old culprit. We’ve written about modern racism before and this seems to be a close relative. Alexander Janus, a sociology graduate student, questions the July, 2010 Gallup Polls showing us that 45% in the US believe immigration should be decreased, 17% believing it should be increased, and 34% saying it should be kept at present values.

According to Janus, when questioned indirectly (to uncover hidden bias) about 61% believe we should cut off immigration to the US. This is significantly different from Gallup’s reported 45% endorsing a cut off to immigration into the United States. Miller-McCune interviewed Janus.

“The most remarkable finding is that levels of opposition to immigration appear to be very similar across the population — much more similar than public opinion polls would lead one to believe. Support for immigration restrictionism is just as high among liberals, Democrats and college graduates as it is among conservatives and less-educated respondents. I estimated that about 6 in 10 college graduates and more than 6 in 10 liberals hide their opposition to immigration when asked directly, using traditional survey measures.”

In his article (cited below) Janus estimates that about 60% of college grads (and more than that many liberals) hide their opposition to immigration when asked directly on traditional measures (like surveys or polls). Janus does indicate he does not discriminate between legal and illegal immigration in his queries and that this should be explored.

So is this another way fears of anti-white bias are being expressed? A recent Atlantic article sheds light on the question.

Americans are troubled by the growing number of minorities. For many Americans, the old division between blacks and whites has been replaced by a new division between native-born citizens and immigrants. This is most apparent in the stark difference in economic outlook between whites and minorities (particularly Asians and Hispanics). Whites are far more pessimistic about their prospects and their children’s prospects — and many mistakenly believe that illegal immigrants are the primary culprit.

Asked what they thought was causing the minority boom, 53 percent of whites said illegal immigration, 29 percent said higher birth rates, and 11 percent said legal immigration. “That has it almost exactly backward,” said Jeffrey Passel, a senior demographer at the Pew Hispanic Center. Since 2000, Passel says, there have been 19.3 million minority births, 8.4 million legal immigrants, and 5.6 million undocumented immigrants.

This widespread misconception stems from a lack of information that’s largely due to both the Democratic and Republican parties’ unwillingness to pursue immigration reform, after years of failed attempts.

And so, to come back to litigation advocacy, what we are likely seeing is a belief that it would be politically incorrect to say you oppose immigration—despite the fact that you would like it to slow or stop. So those attitudes and beliefs go underground—like racism.

If your case involves immigration issues, be sure you specify if that is legal immigration. If you do not specify, we learned pretty clearly that mock jurors assume it is illegal immigration.  Some communities are more tolerant of illegal aliens than are others—know your venue.

If your case involves a different culture or your witnesses are uncomfortable testifying about “private family matters”, help jurors see them in a positive light. They are not “cold and hard and in this for the money”, they are “private and proud”.

‘Immigration’ appears to have taken on a larger meaning. It’s become a code word for “illegals taking things from me and my family”. Much like “family values”, “death panels”, “welfare moms” and so on. Repeating those catchphrases/code words simply strengthens them.

So. Pay attention. Specify legal immigration. Voir dire carefully. You can overcome the bias and negativity. You just have to know what’s been swept under the rug.

 

Janus, A.L. (2010). The influence of social desirability pressures on expressed immigration attitudes. Social Science Quarterly, 91 (4), 928-946

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