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Archive for August, 2011

This is what a good leader does not look like

Wednesday, August 31, 2011
posted by Douglas Keene

Narcissists are often gregarious and social upon first meeting. They make a good initial impression. When I was learning about personality disorders in grad school we used to joke that they are wonderful on first dates, and a nightmare after that. That good first impression wears thin over time and we find ourselves wondering what we ever liked in that person. Unfortunately, leaders are often chosen without close inspection and based on first impressions.

So let’s say you are unlucky enough to have a narcissist as a leader in your organization. How do they perform? Not so well according to new research. Dutch researchers say “narcissist’s preoccupation with their own brilliance inhibits a crucial element of successful decision-making and performance: the free and creative exchange of information and ideas”.

Yet, narcissists are often chosen to lead because of their certainty, confidence and seeming charm. They simply do not encourage open sharing and exchange of ideas since they believe they know best. In the Dutch study, participants reviewed potential job candidates and recommended one of three. In each case, the three members all had certain pieces of information—if they shared freely with each other, they would choose the best candidate. If any of them withheld information, they would choose a less-qualified candidate. Groups led by narcissists consistently chose the less-qualified candidate.

It’s an interesting dilemma particularly when you consider the role of the presiding juror. We wrote about this recently after observing another deliberation gone awry due to a dominant presiding juror. We described a style of communication characterized by low levels of group interaction and high levels of leader/juror communication. This is akin to what these researchers found—cross group sharing is diminished and poorer decisions are made.

Recent research would say this effect would be diminished if there were assertive women jurors and we think this is likely accurate. It leaves us with a question as to whether it would be best to simply attempt to identify and remove the narcissist from the jury. It is certainly a tall order to identify and remove narcissists during voir dire and jury selection but if you have ever seen a mock jury gone awry due to the dominant presiding juror—it’s likely one you would want to attempt.

Nevicka, B., Ten Velden, F., De Hoogh, A., & Van V. (2011). Reality at odds with perceptions: Narcissistic leaders and group performance. Psychological Science

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These words would strike dismay and exhaustion within when my daughter was a tween. Hormonal fluctuations and emotionality would collide with frustrating regularity. Now that she is a young adult, she knows (usually) why she wants to cry and is often ticked off about it. That is so much easier for me! Anger spurs action while teary sadness is powerless and stuck.

We see the same thing on juries. We pay attention to the emotional reactions of jurors because they tell us whether the story is being directed in a way that will result in action or inaction.

Last year we did pretrial research on a very, very sad case where a young woman was murdered in her apartment despite the careful choices she and her family made to try to protect her safety. The facts were horrible. They were truly every parent’s nightmare. And jurors squirmed.

They wanted to blame the parents. “If only, they had…”. The problem was the parents had done absolutely everything possible.

Then, jurors wondered if the victim was somehow to blame. Perhaps she did not lock the door. Perhaps she let her murderer in and that’s why there was no sign of forced entry. But there was no evidence to support that.

Finally, they found a responsible entity and focused their anger and frustration on them. And there was evidence to support negligence.

As the tale unfolded, jurors struggled to explain the story to themselves in a way that would make them feel their own children were safe. Once they identified an irresponsible party who had made the murder possible (and even simple), jurors could not be stopped. Their messages to the young woman’s murderer were among the most angry we have ever seen.

“Go to Hell!”

“An eye for an eye.”

“Hope you rot in hell after you die for taking an innocent life!!”

The message was clear. Focused and directed anger will help jurors feel they are doing as much as possible to right a wrong and, in this instance, to ensure similar negligent behavior won’t be repeated.

The tough part is often figuring out how to direct that anger. That’s where theming and structuring the case narrative come in. And it isn’t about presenting an emotional story. In this pretrial research, we presented the facts in the form of a concept focus group—with no tone of advocacy at all.  If anything, the presentation of case facts were designed to be extremely dry, and in a different case, potentially boring.  But not here, not this case. Jurors were stunned. Shell-shocked. And motivated to punish.

One of the lessons from the research was that the factually dry presentation actually incited more anger on the part of jurors, because the presentation offered them no relief.  There was no catharsis other than that which they provided themselves in their outrage. The case settled, but it was clear that the understated emotional tone of the research group would be very powerful at trial.

Narrative sequencing. Content delivery. And a powerful story. When you have all three, jurors know for sure what they want to cry about. And they also often know what they want to scream about.

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Inside Higher Ed  and the Chronicle of Higher Education both recently carried comments on an article about the concept of having a “jury of one’s peers”. And readers shared their perceptions of how lawyers view higher ed faculty. To read their commentary, it’s like Clarence Darrow all over again! We like to think we’ve come a long way since Darrow’s pronouncements over striking potential jurors for being Lutheran or Polish. But apparently, not always so far!

In ‘The DA Thinks You Are Liberal’  the story is told of a Middle Eastern university professor of computer sciences who was felled by a prosecutorial peremptory strike. The Defense protested that minorities were being purposefully excluded but the Prosecution defended the peremptory choice saying it had nothing to do with ethnicity but that “college professors are notoriously liberal” and on top of that, “I just don’t like them on my juries, period”. Ultimately, the dispute was reviewed by the Nevada Supreme Court with the decision that the Defense should have been more forceful in their challenge at the time of the peremptory.

Commenters react to this story with varying statements like “faculty members have diverse political views”, to “faculty members over-think things”, to “we’re just too smart and won’t be led about by our noses—and that’s what lawyers want”, to “dismiss the Tea Party jurors from my jury please!”. Here’s a sample:

“Husband and I are both psychologists. One time we were staying in a hotel which was hosting a conference of lawyers. We passed a room announcing its seminar title: How To Select A Jury. We were not part of the conference, but could not resist going in and sitting in the back row, although we did not look like lawyers (psychologists are generally pretty shaggy with Birkenstocks, whereas lawyers have suits and shiny shoes). We discovered that psychologists were on the NOT WANTED list, for both sides. Prosecutors didn’t want us, as likely being soft-hearted and overly sympathetic, whereas Defenders didn’t want us because we were likely to see through their baloney about the person’s unhappy childhood. We are both senior citizens now, and neither of us has ever been on any jury. No one wanted us. Ever.”

Or this one

“The irony, of course, is that the dismissed prof wasn’t in comp[arative] lit[erature], ethnic studies, gender studies, or [insert stereotypically lefty inter-discipline here]. He was a computer scientist, not exactly a discipline known for its stirring commitment to sticking it to da man. Dumb prosecutors get what they deserve.”

Whether plaintive (“no one wanted us”) or snide (“Dumb prosecutors get what they deserve”), these comments reflect that stereotypes are alive and well. In truth, there are times when an enlightened trial lawyer will want lower levels of education on the jury—as well as times when they should want people who are educated and verbal. It is also true that often highly educated folks are leaders on a jury panel. Sometimes that is useful for one side more than the other. Sometimes it isn’t.

The scary part is that anyone is still applying the logic to “toss out the Ph.D.’s” or “all university faculty are liberal”.  Clients and colleagues should beware of anyone who paints with such a broad brush.  Case facts and whether you want thinkers or feelers are two factors among many that can be critical in assessing potential jurors for your specific case.

It is possible that while the university faculty responding to these issues are frustrated by the stereotypes employed by the attorneys—that the faculty members are engaging in their own stereotyping assumptions about motivations behind the strikes. That is, “if I got struck, it’s because I’m seen as a liberal university faculty member”. And that could be the rationale for the strike, and it might not.

Let’s make it really clear: All university faculty are NOT liberal!  And in many cases, political orientation isn’t relevant to decision-making.

Scott Jaschik (2011). The DA Thinks You Are Liberal. Inside Higher Ed

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So it happened again. We do a lot of pre-trial research and observe a lot of both mock jurors and the dynamics related to presiding jurors.  This past weekend, we re-experienced the frustration of how bad it can be when you get a controlling and dominant presiding juror.  In a real jury, a dominant presiding juror who loves your case is a godsend.  But in a mock trial or focus group, they undermine the deliberative process badly, and compromise what we can learn from the research.  And as we thought back over the past six months, we saw that it has happened three times. All male jurors. Two white, one Hispanic. Always dismal if left unchecked.

Some trial consultants think you simply observe the process. You focus on what can go wrong if the dynamics sour. We don’t do that. To us, the work product is more important than the process between the jurors.  We know how deliberations can jump the tracks and become unproductive—we’ve seen it and know that it can undermine the quality of our efforts, so we don’t let it stray very far.

We walk in, disrupt the unproductive process, and redirect them to the task at hand.

We clearly describe what we want from the presiding juror so it isn’t a matter of lack of clarity.

We have gone so far as to warn the presiding juror their role will be removed if they do not allow more dialogue and stop talking so much.

If the presiding juror doesn’t have the ability to effectively guide the deliberations, a senior consultant steps into the group, and gently but firmly takes over the role of presiding juror.

To be very clear, we explain at length to our clients various ways in which focus groups and mock trials are not cleanly predictive of actual jury outcomes, and this kind of intervention is certainly one example.  It highlights the fact that the goal for a jury trial (a favorable verdict) is different than the goals of jury research (information about why jurors respond to the facts and argument as they do).

So when our presiding jurors run amok, it’s truly indicative of just how bad it could get. But why is it that the ‘problem’ presiding jurors are always men?  We have female presiding jurors. But they don’t take on the power of the role as an excuse to dominate. So why do our men? Even recent research (cited below) tells us that our leadership stereotypes are male. That is, as the researchers state, “Specifically, people viewed leaders as quite similar to men but not very similar to women, as more agentic than communal, and as more masculine than feminine.”

But, you may protest, it’s 2011! What do we do? We aren’t sure, exactly. But here’s what we’ve seen.

Groups led by controlling and male presiding jurors tend to demonstrate leader/juror communication almost exclusively. There is little juror-to-juror dialogue.  If you did a communication map of how dialog in the group transpires, the communication lines are all between the presiding juror and the others in the group, not among group members.  This is a classic example of poor group communication, and it leads to decreased investment in the decision-making process and its outcome.

Groups led by controlling and male presiding jurors tend to have higher levels of demeaning or minimizing communication from the presiding juror to those individual jurors who disagree with him. When that happens, individual jurors often withdraw and no longer participate in any questions from the presiding juror to them. They feel powerless and ineffective.

Unseating the power of the presiding juror requires a small group (of generally about three jurors) to confront the presiding juror and take control of the process.

So here are some strategies for effective management of deliberations.  (And probably good ideas for handling workplace discussions and family dinners.)

Teach the group ‘how’ to deliberate. Let them know what to expect and how to work with each other to come to consensus.

Teach the group ‘how not’ to deliberate.

Carefully describe the role of the presiding juror. It is not that of a dictator. It is not the person with the ‘right’ answers. It is a role for those who are not attempting to control the others, but rather, to hear from everyone.

Empower jurors to disagree with the process if they do not feel heard. Empower jurors to confront the juror not feeling heard if they believe that person is trying to monopolize the conversation by crying ‘victim’. This may happen more naturally if you have a number of women on your jury, but teach them what language to use anyway.

Use a jury charge in your closing argument to tell jurors how the evidence supports your case and how you would like them to vote. In other words, give jurors who support you words to use in the deliberation room. You may want to encourage them to close their eyes during certain parts of your closing argument.

And finally, make sure your jurors know about rabbit trails and how to know if a bear has been disturbed.

The idea is that you are still with the jurors in the deliberation room. They are not abandoned when the door closes. They have your words, your graphics, and your direction for what lies ahead.

If you read us and find us useful, helpful, entertaining, or in any way enlightening–please consider nominating us for this year’s Blawg 100 listings. You brought us into the Blawg 100 for 2010–how about helping in 2011? Nominate us for the ABA Blawg 100 here.

Koenig AM, Eagly AH, Mitchell AA, & Ristikari T (2011). Are leader stereotypes masculine? A meta-analysis of three research paradigms. Psychological Bulletin, 137 (4), 616-42 PMID: 21639606

 

 

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It’s really about avoiding ‘lawyerese’. That sort of language makes you sound fancy but fails to make you likeable or helpful to jurors hearing your case. And that’s really what you want.

Sometimes clients will marvel that we are able to extract so much information from focus group participants, and they ask us why we are able to get them to talk so much better than the lawyers feel they could.  I tell them “Mostly it’s that we’re unencumbered by a law school education.”  It’s hard to use plain language when in law school you were most often rewarded for using esoteric terms, foreign phrases, and complex reasoning. But few jurors went to law school. They live in the real world and they want you to teach them about your case without talking down to them (i.e., being condescending) or leaving them in the dust of jargon (aka ‘lawyerese’).  They would like you and your witnesses to assist them in coming to a clear understanding.

PsyBlog recently wrote about a new study on the value of speaking concretely and they cite three reasons the listener hears concrete language as truthful:

  • Our minds process concrete statements more quickly, and we automatically associate quick and easy with true.
  • We can create mental pictures of concrete statements more easily. When something is easier to picture, it’s easier to recall, so seems more true.
  • Also, when something is more easily pictured it seems more plausible, so it’s more readily believed.

In essence, for litigation advocacy, using concrete language means this:

Describe things jurors can see with their eyes or hear with their ears.

Create ‘word pictures’ such as “the computer counts the number of packets” [supplemented by user-friendly graphics] rather than “packets are numbered and pass through the program”.

Remember, you are relating the esoteric to the mundane and everyday experiences of the jurors. It thus makes sense to them and they believe you.

If you read us and find us useful, helpful, entertaining, or in any way enlightening–please consider nominating us for this year’s Blawg 100 listings. You brought us into the Blawg 100 for 2010–how about helping in 2011? Nominate us for the ABA Blawg 100 here.

Hansen J, & Wänke M (2010). Truth from language and truth from fit: the impact of linguistic concreteness and level of construal on subjective truth. Personality & Social Psychology Bulletin, 36 (11), 1576-88 PMID: 20947772

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