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Archive for October, 2011

It would be nice to know how to identify a psychopath. For instance, if they all wore Hannibal Lecter face masks, it’d be much easier. Mostly, they aren’t so cooperative until it’s a bit too late. But there is hope.

New research compares how psychopathic murderers and “regular murderers” talk.  [Okay– show of hands, please– how many of you knew that some murderers were psychopaths and others weren’t?] If you want to know if your potential murderer is psychopathic or not–set aside your fears and get him (yes, men are more commonly psychopaths) to talk to you.

As it happens, psychopaths have a tendency to use more conjunctions (i.e., because, since, so that) which imply that the crime “had to be done” to achieve a certain goal.

They use twice as many words relating to physical needs such as food, money and sex. Conversely, non-psychopaths talked more about social needs (i.e., family, religion and spirituality).  But keep in mind, both of these sparkling conversationalists are murderers.

And when psychopaths describe the day of their crime–they more often include details of what they had to eat on the day of their crime.

They also tend to speak in the past tense and are less fluent in their speech, using a lot of “ums” and “uhs”.

And just how can you use this for litigation advocacy, pray tell? It is probably better to not count conjunctions while crossing witnesses. And it’s usually unproductive to play ‘armchair diagnostician’. But how about when you are meeting clients, and making decisions about whether to take the case, or setting your expectations about their cooperation? Does anything seem cold under the superficial charm in this client? Count conjunctions and resulting rationalizations. Does the client describe his lunch of liver, fava beans and a nice Chianti as he recounts the events of the day in question? Smile. Nod. And back away.

It’s easy to make light of the psychopath when we are safe (we prefer to think) in our homes and offices. But the violence and amorality of the psychopath are really no laughing matter. You will certainly run across the psychopath in a criminal practice. But you will also likely see the psychopath in a white collar defense practice, a civil plaintiff practice, and even corporate defense. They walk among us.

Your best defense is to simply remain aware of what you value and what you believe. If someone presents in a way that makes the hair on the back of your neck stand up, or you simply feel somehow unsafe–be aware of it sooner rather than later.

Hancock, JT, Woodworth, MT, & Porter, S. (2011). Hungry like the wolf: A word-pattern analysis of the language of psychopaths. Legal and Criminological Psychology.

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Oh, would that it were so easy. The issue of apology and litigation has been written and talked about for years. It’s a good thing. It’s a bad thing. There are no shortage of opinions. But the salient issue is the repair of trust. And now, we have some international studies on how the audience perceives your apology. Audience perception makes all the difference in whether the apology is seen as sincere and therefore, accepted.

Researchers investigated what they call “substantive efforts to repair trust”. That is, they studied those efforts that go beyond mere apology for behavior. To do this, they conducted four studies.

In the first two studies, participants made trust-related decisions in a game with a virtual partner who would ultimately violate their trust by keeping all the money they had earned together in prior rounds of the game.

In the second two studies, researchers asked participants to give their opinion of a fictional CEO who asked employees to take a pay cut but then failed to follow through on his own promise to refuse dividends on his stock holdings.

What these researchers found is truly what Mom would have predicted. Winning back trust after transgression is best achieved through true contrition. And what defines true contrition in this research?

It’s all about how the audience perceives your apology. They need to have a sense of sincere repentance and see your plan for follow-through so they can trust that you are unlikely to hurt them again by violating their trust. In other words, they want to believe you have changed and they want your future behavior to be transparent.

In a brief list, the most effective way to repair trust after a transgression is to incorporate the following into your apology:

You regret your actions.

You are committed to changing your behavior.

You resolve to act differently in the future.

The other major finding of this study is that if your response and promises of different behavior in the future is seen as voluntary—that goes much further with your audience’s assessment of your sincerity than if your response is seen as involuntary.

When your response is involuntary—we think what you are really sorry about is that you got caught.

When we perceive your response as voluntary, we think maybe you have changed and are truly remorseful.

One lesson for litigation advocacy in this research is the importance of a fast, a thorough, and a voluntary response. If you wait to see which way public opinion is leaning and then apologize only if you need to apologize—your response is going to be seen as involuntary.  If you wait until you are caught before you admit the error—it isn’t seen as much of an apology.  On the other hand, if right after realizing your transgression you apologize for your bad behavior, you will be seen as behaving voluntarily and therefore, as more likely sincere in your wish to change.

It’s hard to foresee the future and predicting how to respond is a dicey proposition. Better to avoid bad behavior (!) and, if not, to address the behavior in a way that leaves your audience in a position of receiving your apology with the least possible suspicion. Early and authentic apologies will do the most good.  And if you happen to be heading to trial over the conduct, the more time that passes between the apology and the opening statement, the better.

Kurt T. Dirks, Peter H. Kim, Donald L. Ferrin, & Cecily D. Cooper (2011). Understanding the effects of substantive responses on trust following a transgression. Organizational Behavior and Human Decision Processes, 114, 87-103

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Austin has a terrific barbeque place where their slogan is “we don’t need no stinkin’ plates” and you eat your barbeque on waxed paper. (And you clean up after yourself because “your mother isn’t here”.) I thought of Rudy’s this past week as I sat listening to jurors deliberate after the evidence concluded in our mock trial.

The case was in a part of the country in which the oil and gas industry is big.  It is difficult and occasionally dangerous.  Like most oil and gas areas, farming and ranching is also big, but O & G pays better than most careers that don’t require a college degree.  As a result, they truly care about drilling and piping operations.  As they were discussing the evidence they had heard, one of the women suddenly said:

“You know, I don’t need all these expert witnesses. I don’t even want them. Just let me hear from men with experience on the rigs.”

And others murmured their agreement. The experts used statistical models, materials experts, and scientific experimentation to talk about the case. In contrast, the oilfield workers talked about what they saw, what they believed it to mean, and gave information as to how they reacted in those moments. (The short story is they ran as fast as they could!) The jurors could relate to them and yet, saw these oil rig workers as the experts they wanted to hear from.

It’s a common issue—jurors like real people as witnesses. They want someone relatable. They want someone who they think is like them, or at least someone who matches their vision of a knowledgeable person. And when you have a situation where there are complicated technical explanations that are replicated with mind-numbingly complex scientifically rigorous experiments—jurors long for someone who can speak their own language.  Bring it down to earth.

You can teach an expert to talk to your jurors. And you can work with the expert to be optimally persuasive as they testify. But all of that may not go as far as having an everyday person on the stand.

In this case, we had drilling rig workers themselves. Many of them were rated more highly than the experts when it came to knowledgeability, persuasiveness, and whether they can be relied on for a credible version of the facts. They were themselves.  And the jurors believed them. They used these familiar types of people to help them determine which expert witnesses they believed.

So don’t let your case get lost in a parade of expert witnesses.  Think about your venire and likely jury and who those individuals are likely going to find most useful as they try to sort out the facts. Bring in real people who are sincere, genuine, polite, and forthcoming in their testimony. Bring in people (expert or fact witnesses) who can tell a story that resonates with truth. The jurors will be know the difference. And that never hurts.

Boudreau, C., & McCubbins, M. (2009). Competition in the Courtroom: When does expert testimony improve jurors’ decisions? SSRN

Boccaccini, M., & Brodsky, S. (2002). Believability of expert and lay witnesses: Implications for trial consultation. Professional Psychology: Research and Practice, 33 (4), 384-388 DOI: 10.1037/0735-7028.33.4.384

Cooper, J., & Neuhaus, IM. (2009). The ‘hired gun’ effect: Assessing the effect of pay, frequency of testifying and credentials on the perception of expert testimony. Law and Human Behavior

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It is frankly amazing that this modest but important step forward hasn’t gotten more attention.  When Judge Shira A. Scheindlin of Federal District Court in Manhattan said she would have jurors sign a pledge to avoid internet research in the Viktor Bout trial, we paid attention. The New York Times quoted Judge Scheindlin:

““I am keenly aware that there are convictions set aside all over the country when we learn later during deliberations a juror looked up the keyword or the key name,” the judge said at the hearing, held this month. “We in the judiciary have been discussing this.”

A few moments later, Judge Scheindlin told the lawyers that she would write a pledge that jurors might be required to sign, promising that they would not turn to the Web to look up Mr. Bout or anything related to his trial until it was over.

Those who signed the pledge, Judge Scheindlin said, would be subject to perjury charges if they broke the agreement.”

Jurors researching cases on the internet have been a thorn in the side of the justice system for years. The act of researching and bringing information back to fellow jurors (resulting in mistrial) has been called the “Google mistrial”. The problem has gotten so pervasive, a judge in Minnesota has begun a single-subject blog called Jurors Behaving Badly .

While many papers covered the announcement that Judge Scheindlin was going to require a “juror pledge”, no one seems to have published the actual pledge itself. A widely circulated AP press release was published extensively as the trial opened, all it said was that the pledge had been signed under penalty of perjury.

“Twelve jurors and three alternates were chosen Tuesday during a daylong process. U.S. District Judge Shira Scheindlin required all of them to sign a first-of-its-kind juror pledge, in which they promised not to research any of the issues or parties involved in the trial on the Internet. The pledge contained a signature line after the words: “Signed under penalty of perjury.””

This is a “first of its kind” pledge on a topic that has been written about extensively–with many recommendations for wording. We are grateful to the writer on Twitter who provided us with the actual pledge (thanks @kathilynnaustin).

Here is the actual wording of the juror pledge in the Viktor Bout trial:

I agree to follow all of the Court’s preliminary instructions, including the Court’s specific instructions relating to Internet use and communications with others about the case. I agree that during the duration of this trial, I will not conduct any research into any of the issues or parties involved in this trial. Specifically, I will not use the Internet to conduct any research into any of the issues or parties involved in this trial. I will not communicate with anyone about the issues or parties in this trial, and I will not permit anyone to communicate with me. I further agree that I will report any violations of the Court’s instructions immediately.

Signed under penalty of perjury. 

____________________________

____________________________

(Sign and Print)

Dated: New York, New York

October 11, 2011

Will it work? Or, as some say, will it simply put the idea in jurors’ heads to go do some internet research perhaps finding this transcript submitted by the US Government into evidence? We’ll have to wait and see. But jurors are already doing research and it is simply an automatic act for many to search the internet for information. Research points toward Judge Scheindlin being spot on.

We don’t think it’s gone far enough, but it’s a healthy start. The next steps include a clear statement of the potential penalties for juror misconduct. Not that we want to see people going to jail, but it’s useful for them to appreciate the full importance of their behavior.

Perhaps a signed pledge (under penalty of perjury) will alert them to not research the case front and center for jurors as they proceed through trial. Or at least, imbue them with a full appreciation for the importance of their agnostic role.

We hope so.

 

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So did you hear about the lawsuit brought after a man got a toilet seat glued to his butt when he sat down in the restroom in a major home improvement center without looking first? Our mock jurors sure did.

When we debrief jurors we often ask about whether people think the case in hand is a frivolous lawsuit, and in the conversation the McDonald’s hot coffee mythology always arises. But in this instance, the case that came up in conversation (not the case that we were working on) was the story of the glued posterior that had gone viral on the internet.

“You know, it’s your own fault if you sit before you look.”

“That is such a great idea. I’m heading for that store and using some of my money to buy some glue like that!”

“So I get his mental anguish—but what about the mental anguish of the customers who saw him come out of that bathroom with his pants down? How did he get out of there anyway?”

The imagery of the situation was more than any of them could resist.  [As an aside, we can attest that it takes more than a moment to regain control of a group that is imagining a man glued to a public restroom toilet seat.]  Most of them were of the belief that anyone who sits on a public toilet without looking deserves their fate. None of our jurors would ever behave in this way no matter how badly they had to go.

It’s pretty amazing actually. The diverse jurors we randomly recruit to match the venue where our case will go to trial are truly unique, in a way that is not at all unique. Over and over again. They would:

Never be racist: Others in this area may react that way, yes, but not us!”

Never fail to get a second or third opinion“I take my health seriously and I would follow-through to find out if other doctors had different ideas.”

Never go without a seatbelt or without a motorcycle helmet“That just isn’t safe and that’s what happens when you tempt fate. That’s why he has a head injury.”

And they never, never just accept the terms when presented with a website terms of service that is multiple pages of fine print. They read every single word and think about it before clicking ‘Accept’. “I always do that! How else do you know what you’re agreeing to?”

Lest you think we recruit a rarified sort of mock juror—this is really the result of hindsight bias or an effort of jurors to reassert their safety in a seemingly dangerous world. Don’t take what jurors say at face value. Instead, do what we do—struggle to understand what it means in the context of case facts.

You have to find out when (especially when it is unexpected) threats to jurors’ sense of security/safety will have unexpected (and potentially very, very expensive) impact on case outcome. What we’ve learned over the years is that you never know when fears about security will be triggered.  But understanding the why of case-distorting assumptions is essential.

Jeffrey L. Kirchmeier (2008). Our Existential Death Penalty: Judges, Jurors, and Terror Management. SSRN.

Matthew B. Kugler (2009). Authoritarians Have Moral Intuitions that Liberals Do Not Share: A New Look at Moral Foundations Theory. SSRN.

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