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Archive for September, 2011

Oh that deep uniquely resonant voice! Whether reading Edgar Allen Poe or reciting Justin Bieber lyrics this voice is instantly recognizable. We remember it without even trying. Especially if we are women. Yes. If you have a deep male voice, you have an edge with (heterosexual) female jurors. If your expert or fact witness has a deep male voice—be grateful. Like the ‘tilt your head’ entry in our Simple Jury Persuasion series—this is no joke!

Researchers displayed slides of inanimate objects (like a microscope or a photograph of a fish). While the slide was shown, participants either heard a male or female voice naming the object (“fish” or “microscope”). In the first study, the voices were manipulated electronically to be deeper or higher (that is, deeper male voice, higher male voice, deeper female voice, higher female voice) in their reading of the object names for the various slides.

Then participants were shown slides with two pictures (the fish they had seen, and a similar but non-identical fish, for example) and asked which object/photograph they had seen before. Participants reported they preferred the male voices that had been made deeper by the researchers. They also remembered more of the objects accurately when the objects had been named in the deeper male voice. (There was no difference in object recall between the higher and lower female voices.) A second study matched the results of the first study.

Women remember more when the speaker has a deeper male voice. These researchers are evolutionary psychologists so they talk about how this stems from heterosexual women and sexual attraction in mate selection. We’re not looking at this so much from the perspective of ‘manly men’ or sexual attraction even though there is nothing wrong with either of those things. This is, from our perspective, all about what makes information most memorable.

When you are presenting your case, you want jurors to listen. And any edge you can get is important. What this research says is that heterosexual women attend more to a deep voice than to your physical attractiveness (although that won’t hurt either). They will remember what you say in that deep resonant voice. Use it to your advantage.

And if you are a young associate with a deep voice—step up and let the senior partner know you’re available in the inimitable words of my own deep-voiced favorite—Leonard Cohen.


Smith, D., Jones, BC, Feinberg, DR, & Allan, K. (2011). A modulatory effect of male voice pitch on long-term memory in women: Evidence of adaption for mate choice? Memory and Cognition




It’s a common mistake. We see someone nodding and assume they are agreeing with us. And in the courtroom, that can be a serious error. Recent persuasion research puts even more evidence in the corner of being careful not to assume. As it happens, nodding can simply mean you are agreeing with your own internal dialogue (which could be at total odds with what the speaker is saying). It’s apparently influenced by our posture! We’ve written about the power of posture before, and it’s part of the larger body of research on embodied cognition.

In this work, researchers asked participants to write a list of their best attributes in either a ‘confident posture’ (sitting down, back erect, chest pushed out) or a ‘doubtful posture’ (sitting down, slouched forward with back curved). Both postures resulted in the same number and quality of attributes listed but those in the confident posture reported being more assured of their own positive qualities.

Since the 1980’s, research has verified that slumping over seems to accentuate feelings of helplessness and powerlessness while sitting in a more powerful posture accentuates confidence. In their recent study, however, the researchers suggest that posture did not necessarily induce confidence but rather, gave participants more confidence in their own thoughts.

According to a new blog post at the Psychology Today website, when we see others nodding, we are primed to do it ourselves (and perhaps, thereby convince ourselves of the accuracy of what the speaker is saying). Or, perhaps it is simply an imitation that does not reflect our internal beliefs at all.

The blogger is writing about an older (2003) study by Brinol and Petty where they had students wearing headphones shake their heads up and down or from side to side while listening to a recorded message. Ostensibly, this was to test the headphone performance while moving your head. In truth (you knew there would be a trick here), they wanted to see if the external behavior/movement would be related to what the student participants actually thought about the recorded message. As it turned out, research participants had an internal dialogue that assessed the strength of the message but was often at odds with their external movement.

As we tell our clients, the damage awards in pretrial research are not predictive of what you might see at trial—but the themes and attitudes/beliefs/values that we see in reaction to the presentations are reliably those you need to address to present the best possible case. You can’t necessarily believe what you see (as in, the significance of non-verbal behavior) but you can believe what you hear (pretrial research themes, values and attitudes) in terms of case preparation.

Brodsky, S. Griffin, M. (2009). When Jurors Nod. The Jury Expert.

Brinol, P., Petty, R., & Wagner, B. (2009). Body posture effects on self-evaluation: A self-validation approach. European Journal of Social Psychology , 39.


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When facial disfiguration disgusts

Monday, September 26, 2011
posted by Rita Handrich

Last year, my then 16-year-old daughter volunteered at the SXSW Festival registration here in Austin. She came home after the first day and told me she had looked up from her computer workstation to assist the next person in line only to see a large birthmark covering 2/3 of his face and neck. She didn’t know where to look in order to not be rude and so looked intently into his eyes for too long a period of time and then became flustered. It was an interesting conversation for me to have with her—she knew enough to not look away, and to make eye contact but not enough to feel comfortable negotiating this unfamiliar territory. The birthmark was overtly different and disfiguring. She felt awkward and uncomfortable.

Scars work the same way. We’ve written before about scars that are seen as potentially “interesting” but new research shows that it’s a long ways in terms of our emotional reaction from an interesting scar to actual facial disfiguration. Oddly enough, people who have recently been sick are more prone to react negatively to facial disfigurations.

“When people have been recently sick, and therefore recently activated their physiological immune systems, they are more likely to pay attention to and display avoidance of disfigured faces”—which they read, like a rash or a sneeze, as a sign of contagion, says University of Kentucky psychologist Saul Miller.

Researchers asked participants four questions to assess recent illness.

“Over the past couple days, I have not been feeling well.”

“Lately, I have been feeling a little under the weather.”

“I have felt sick within the past week.”

“I had a cold or flu recently.”

Participants responded to these four questions on a continuum of strongly agree to strongly disagree. They also completed a categorical measure indicating the last time they had a cold (today, a couple days ago, a week ago, a couple weeks ago, a month ago, a few months ago, a year or more ago). Researchers divided the participants into those who had been recently ill (responding ‘today, a couple days ago, a week ago’) and those who had not been recently ill (all other categories).

Then participants were shown 40 photographs, (20 disfigured, 20 normal) and then asked to identify whether the following figure displayed on their screen was a circle or a square. Researchers were actually measuring how long it took the participant to respond to the identification task (and therefore, how long it took them to look away from the face on the screen). What they found was those who were recently ill spent more time looking at disfigured faces more than those who had not been recently ill.

In a follow-up experiment, researchers used a joystick method to have half the participants push the joystick away (avoidance) or pull it toward them (approach) when they saw a disfigured face. (The other half of the participants did the opposite—that is, they pushed the joystick away for the normal face and pulled it toward them for the disfigured face.) Again, those who had recently been ill were more likely to show distaste by being faster in pushing the joystick away when in the condition to avoid the disfigured face. The same finding was not seen in those without recent illness.

The researchers believe this action is largely unconscious—we see disfigurement as something that may make us sick (again) and therefore seek to avoid it while reacting to the perceived danger with disgust. It’s hard-wired into us—we seek to avoid contagion.

So—if you have a client with facial disfigurement, recent illness of jurors is a worthwhile consideration. And if you are opposing counsel, you want to take the ill and recently ill to perhaps trigger a disgust/aversion reaction to the facial disfigurement.

It’s an interesting dilemma. As with any client, it is part of your challenge to make the disfigured client more “like jurors” as we have previously discussed. Yet, this research says we are unconsciously prone to avoid/be disgusted if recently ill. When we see a person with a prominent disfigurement, we all wonder what happened.  Only little kids are so bold as to ask the disfigured person, but we all wonder.  And so your jury will be, too.  Consider asking the witness (or client) about the cause of the disfigurement.  Normalize it.  Make it more understood, and thus less of a distraction.  Unless they’ve recently had the flu.

Miller, S., & Maner, J. (2011). Sick body, vigilant mind: The biological immune system activates the behavioral immune system. Psychological Science.


Two years ago, we wrote about some new research from Aldert Vrij showing it helped trap liars if you made them tell their stories backwards. A simple and effective strategy—and it caught on. And it didn’t catch on only for use with liars—but also for use with eye witnesses to aid police in piecing together the actual events transpiring. But is it not so great a strategy? New research questions the accuracy of memories told backwards.

As it turns out, even when we are telling the truth, if we don’t recall all the details we automatically fill them in so the story flows. It isn’t a matter of consciously trying to deceive as much as a process wherein our brains attempt to make sense of information fragments. So researchers set out to sort out whether telling stories backwards actually did increase memory for facts. And it did. But not in the way we would like.

Researchers showed 54 participants a filmed (and staged) cell phone robbery. Then they divided the participants into three groups and called them back two days later to test their recall. All participants were asked to tell the story and when they completed it, they were immediately asked to tell the story again.

One group was asked to tell the story as they wished and then asked to tell it backwards. The second group was told to tell it backwards first and then to tell it freely. The final group was a control group where participants were simply told to tell the story twice but not asked to tell it backwards.

And here’s what happened. The control group recalled the most facts accurately, then the group beginning with reverse recall and finally, the group that began with free recall and ended with reverse recall.

Second, while the number of errors in recollection was basically the same between the groups, the tendency to simply make things up was quite different! The order was the same. The control group offered the fewest inaccurate facts and so on.

But! The big issue was the reverse order telling of the stories that all the participants had seen. Researchers found the largest proportion of inaccuracies were elicited during the reverse telling of the tale. That is, the strategy meant to increase accuracy actually did the reverse and increased inaccuracy in recall.

This is the focus of Vrij’s research discussion—you will find inaccuracies from the original story and this helps you to pinpoint a liar. But it just doesn’t work for improving recall in eye witness testimony. For that, we point you to a simple technique published in 2008 in The Jury Expert. When you want to increase both volume and accuracy in witness recall, don’t have them tell a story backwards. Just have them close their eyes! It really does increase the number of accurate observations recalled.

Dando CJ, Ormerod TC, Wilcock R, & Milne R (2011). When help becomes hindrance: Unexpected errors of omission and commission in eyewitness memory resulting from change temporal order at retrieval? Cognition PMID: 21861997

Perfect, T. (2008). How Can We Help Witnesses to Remember More? The Jury Expert, 20(2), p 9-22.

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Runaway juries or runaway urban myth?

Wednesday, September 21, 2011
posted by Rita Handrich

Despite the constant headlines about frivolous lawsuits and ridiculously high awards, when the GAO came out with a report on lawsuit awards back in 2003, it received little fanfare even though it strongly contradicted media reports of excessive jury awards.  The same results have been seen every year.  Now it’s 2011 and we’re hoping a new report gets a bit more attention.

This time it’s a report from the Center for Justice and Democracy, a nonprofit consumer group. The Center uses data from the Department of Justice and other sources to point out that juries seldom award punitive damages in addition to compensatory awards. Further, when punitive damages are awarded, they tend to be fairly modest (a median of $64K in 2005).

Key findings from civil trial data in the nation’s 75 most populous counties include:

“Winning plaintiffs received punitive damages 6 percent of the time in 2001, and 5 percent of the time in 2005.

From 2001 to 2005, the percentage of successful medical malpractice plaintiffs awarded punitive damages dropped from 4.9 percent to 2.6 percent.

From 2001 to 2005, the share of winning plaintiffs awarded punitive damages in product liability trials dropped from 4.2 percent to 1.3 percent.”

Hardly an example of runaway juries. In fact, as author Emily Gottlieb says,

“The availability of punitive damages protects us all by holding wrongdoers accountable for egregious misconduct and deterring its future occurrence.  Laws that restrict punitive awards place the public at serious risk, and lawmakers should not be misled by falsehoods spread by corporate special interests about this most valuable and important feature of our civil justice system.”

We all like to think we are independent thinkers, assessing the facts and evidence before us and drawing conclusions that make sense based on new information that comes in. If you, like us, have spent time observing through darkened windows while focus groups or mock juries deliberate (and eating way too many M&Ms) you know it isn’t true.

We hope you’ll read the complete report from the Center for Justice and Democracy here. And that you’ll forward the report to your friends and to opposing counsel. That you’ll blog about it. We need to spread the word. Don’t let history repeat itself. Spread this new report far and wide.

Gottlieb, E. (2011). What you need to know about punitive damages. Center for Justice and Democracy.