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Archive for November, 2011

Yikes. Who would have imagined that social science researchers sometimes could occasionally disturb us.  And other times make us laugh. And other times amuse us. But this time the reaction is hard to categorize as the researchers say their results may help explain everything from unrequited love to the uprisings of the Arab Spring! Ah, the researchers may need to have their grandiosity evaluated.  Or–maybe not.  Social science ‘string theory’, anyone?

It started when they wondered what would happen if there was a rule for which people perceived there was some ‘wiggle room’. So they examined reactions to a speed limit change.

Participants read that lowering speed limits in cities would make people safer. Some read that government leaders had decided to reduce speed limits. Of those people, some were told that this legislation would definitely come into effect, and others read that it would probably happen, but that there was still a small chance government officials could vote it down.

People who thought the speed limit was definitely being lowered supported the change more than control subjects, but people who thought there was still a chance it wouldn’t happen supported it less than these control subjects. Laurin [the first author] says this confirms what she suspected about absoluteness; if a restriction is definite, people find a way to live with it.”

It’s an interesting hypothesis. [Thanks to second author Aaron Kay, you can find the full pdf of this article here.]

Consider the impact of rules on sworn jurors.  We have been watching and weighing in on issues on jurors and the internet for a number of years now. Suggestions are often made for how to curtail the issues of the Google mistrial. But they are just that, suggestions. This research advises that we need to be more extreme and absolute and unequivocal in demanding that jurors do no research on the internet about the cases they for which they sit in judgment.  “It’s not a good idea– It’s the law”.  And, of course, as always, it’s critically important to explain the ‘why’.

And one more thing! This isn’t just about explaining Arab Spring or the Google mistrial. It’s also about unrequited love. Back to the press alert:

And how does this relate to unrequited love? It confirms people’s intuitive sense that leading someone [on] can just make them fall for you more deeply, Laurin says. “If this person is telling me no, but I perceive that as not totally absolute, if I still think I have a shot, that’s just going to strengthen my desire and my feeling, that’s going to make me think I need to fight to win the person over,” she says. “If instead I believe no, I definitely don’t have a shot with this person, then I might rationalize it and decide that I don’t like them that much anyway.”

As people who have also provided a lot of counseling to the heartbroken (in an earlier phase of professional life) we would suggest that it may be up to the person feeling unrequited to walk away even if the door in your face seemed equivocal.  Aren’t we talking about love?  Ah, but I digress… and yet the lesson is apparent. If you are not interested, be perfectly clear. Crystal clear.

Ultimately, the research appears to affirm a maxim of life that bears reminding; we tend to hear and see what we want, unless it is inescapably clear that only one thing is being said.  Whether we like it or not. Or as Paul Simon put it “A man hears what he wants to hear and disregards the rest.”


Laurin, K., Kay, A., & Fitzsimons, G. (2011). Reactance versus Rationalization: Divergent Responses to Policies that Constrain Freedom. Psychological Science.

Paul Simon lyrics from “The Boxer


Comments Off on Rationalizing or rebelling (by insisting your unrequited love object truly adores you?)

We do a lot of patent work wherein a major goal is to show how two things are the same or different. It’s a question jurors are often comfortable with since it is one we’ve all thought about. The stakes for plaintiffs and defendants are much higher than they were on Sesame Street though and we are always looking for a bit of an edge.

Pretrial research is always useful in these large and often very technical cases. And those wily academics have given us new information to apply to our efforts, and to yours.

Researchers recently discovered that our ability to learn and to remember information depends on what we do with our hands while we are learning!  According to their findings, there are differences in what you process and ‘see’ depending on whether something is in your hands!

While the researchers describe these findings from an evolutionary psychology perspective, we don’t care so much why they think it works as that it does seem to work!

If you hold something in your hand, you notice differences among objects more effectively.

If you look at something from a distance (not near your hands), you are more likely to note similarities and consistencies between those things.

The implications for patent and IP cases are pretty straightforward. If you are defending an infringement charge, you want to give jurors the opportunity to hold prototypes in their hands. If you are bringing an infringement charge, you want jurors looking at the prototypes from a distance.

It’s an interesting idea. We were in North Carolina earlier this year on an infringement case and the prototype invention was a very heavy industrial device.  Not huge, just heavy. And we saw this exact phenomenon in real life. Because of how heavy the prototype was, it was on the table in front of me as the focus group facilitator. I described the similarities and the differences in appearance and function. Jurors focused on appearance and how the two items ‘looked’ the same.

As the group prepared for a break, jurors were told they could approach and examine the objects. They did. And as we listened in to their reactions from behind the mirrored glass we saw them poking and hefting and examining the prototypes and exclaiming they could now ‘see’ differences between the two prototypes.

The researchers say this all began when we had to tell poisonous berries from non-poisonous berries and we cannot say with certainty that they are wrong. But for us, the knowledge that there are different processes involved in close-up examination and observation from a moderate distance is a game-changer.

Most IP litigation involves claims of infringement (these two things are the same) and validity (this is different than what has come before).  The more physical the contact they can have with the exhibits, the stronger their belief in the correctness of their decisions.  If the patent dispute is over highly abstract inventions (biotech compounds or organisms, software, or high-tech generally), that same value attaches to analogous materials that they might have encountered in their lives.

Make it familiar through touch, and the point can become more persuasive.

Davoli CC, Brockmole JR, & Goujon A (2011). A bias to detail: how hand position modulates visual learning and visual memory. Memory & Cognition PMID: 21968875


Comments Off on Simple Jury Persuasion: When to hand exhibits to the jurors and when to keep them away!

You would think we would admire do-gooders who are truly motivated by morals, values and beliefs. But you would be wrong. Recent research compares the attitudes of meat eaters to vegetarians. Meat eaters don’t really like vegetarians. We think they judge us. So we make fun of them.

Researchers decided to prove scientifically this common wisdom [that we derogate the do-gooder in anticipation of feeling judged]. They used two different experiments–in the first, they asked for definitions of vegetarianism [only meat-eaters were included in both of these studies], and then had participants assess what vegetarians would think about their diet prior to asking for descriptors of vegetarians. In the second, they had half of the participants first imagine how a vegetarian would judge the morality of meat-eaters and then generate descriptors. The other half in the second study generated descriptors first.

Participants who were primed to imagine judgment first, had more negative descriptors of the vegetarian. The range of descriptors used for vegetarians is wide. Sample descriptors categorized by the researchers paint a picture of how meat-eaters see vegetarians:

Positive descriptors: earthy, hippies, alternative, politically correct, liberal, religious, animal-lovers, kind, brave, sweet, thoughtful, healthy, female, white.

Negative descriptors: annoying, arrogant, conceited, sadistic, judgmental, posers, preachy, weird, bleeding hearts, PETA, crazy, strict, opinionated, sister.

Interestingly, while meat-eaters thought vegetarians were judgmental and saw the meat-eater as morally flawed, researchers found this belief was exaggerated. Vegetarians culled from the sample in the study did judge the meat-eater but not to the extent predicted by the meat-eaters.

Wow. This research says the carnivore juror anticipates moral reproach from the vegetarian and that anticipation of reproach results in demeaning or derogating the vegetarian as a defensive maneuver. When you really think about what this means, it’s pretty frightening. The adult version of the 3rd grade “I know you don’t like me but that’s because you’re stupid.”

We know that people judge based on race, age and disability, sexual orientationfacial disfiguration, and even religious beliefs or the lack of religious belief. We even know that we tend to automatically assign higher status to being white and lower status to being black. But having a client who is a vegetarian may be a liability with meat-eating jurors!

The issue of moral judgments and the mixed feelings people have about those who are morally superior is one that we have written about in the past.  Ultimately, everyone on the jury wants to feel that they are seen as being good.  So the “morally superior” person, in order to avoid the kind of pre-emptive judgmentalism that this study uncovered, is wise to be nice.  Be relatable.  Be sincere and self-effacing.  Express appreciation for people in their lives who are strikingly like the average juror.  In other words, even in their superiority, their challenge is to be relatable and ‘like us’.

Minson, JA, & Monin, B. (2011). Do-gooder derogation: Disparaging morally motivated minorities to defuse anticipated reproach. Social Psychological and Personality Science.