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ABA Journal Blawg 100!

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Archive for December, 2011

In 2010 we got our first nod from the ABA Blawg 100.  After the steady work of researching, writing, and publishing three times every week, we were enormously gratified.  Even… thrilled! This year, we were honored again and given a new category: Trial Practice. We smiled. And enjoyed the recognition of hard work on this blog over the past year. It wasn’t like our first time. But you never forget your first time!

Experts might be over-rated

We did so much pre-trial research this year it was a challenge to keep up with the blog!  Several times we heard from our mock jurors that they were not that impressed with expert witnesses. We wrote about it once.  And we learned that expert witnesses are often necessary in complex cases but that when you can bring in a credible “real person” who interacts with the issue on which you will have expert testimony–jurors will often respond positively and then use expert testimony to bolster their own reactions to the “real person”.  So  the question often becomes, “how can the expert witness support the experience of ‘real people’?”

Religious affiliation and commitment deserves more attention

The research on how religious belief and/or affiliation relates to decision-making has kept us busy this year! Evidence is mounting that we need to pay close attention to the nuances of this variable as we explore the values and beliefs that are central to jurors being able to “hear” our case. It isn’t so much about “being religious” as about how that designation translates into values, attitudes, and beliefs that frame jurors’ world views. We expect new research in this area will continue to emerge and you’ll see it here as we continue to explore the impact of religion in decision-making.

Simple Jury Persuasion is anything but simple. 

We began our series some time ago with no prescient cognition that it would become an ongoing (and the most popular) feature of the blog. The research never fails to surprise and delight us! Whether it’s on how to activate the internal prosecutor, how to be seen as truthful by jurors, or when extraverts are a good choice for your jury, this series has become our favorite as well.

And more…

We’ve learned other stuff this year too. It’s part of what we love about this work. We crave new information, and through the blog we have the pleasure of sharing it with you, and hearing your comments. New cases, new facts, new areas to learn about and always the challenge of sorting out what is coincidence and what is a genuine case reaction, with the values and attitudes that attach to it. As we move on to 2012, we hope you will come along with us as we learn more and continue to share it with you.

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R-rated pronouns and adjectives?

Wednesday, December 28, 2011
posted by Douglas Keene

I never heard of the ‘secret life of pronouns’ nor the “dark side of adjectives” when I was growing up. Pronouns and adjectives were staid and predictable parts of speech that I struggled to make sense of in order to diagram sentences in [totally useless] homework assignments.

Now, however, we have pronouns revealing hidden meanings and manipulations. And guess what those bad-boy adjectives do? They cloud and obscure your intent. Really? I spend decades in elementary, junior high, high school, college and graduate school learning how to put adjectives into my writing and it makes my writing worse? Really?

Neuromarketing blog says the simpler the writing, the more likely it will go viral. We are not that interested in “going viral” with our posts but we are interested in what contributes to greater engagement and understanding in what we say and what we write. [Oh, who are we kidding? We love it when our posts echo through the information universe. We just don’t like the adjective ‘viral’.]

It takes confidence and experience to make how you talk and write less academic and less pedantic. We think of academic style writing as a skill that helps one to succeed in school and, if not modified, to fail in business. Here’s what we’ve learned from our mock jurors. And our moms too.

Keep it simple. Ideas that are spoken plainly are more credible. The simple story usually wins.

We made the ABA Blawg 100 list for the second year! Please take a minute to vote for us HERE under the Trial Practice category.

Pennebaker, J. (2011). The Secret Life of Pronouns: What Our Words Say About Us. Bloomsbury Press.



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Sometimes it’s hard to be a woman. (Wait! Is that Tammy Wynette I hear?) In our efforts to keep you abreast of the challenges experienced by your female jurors, colleagues, friends, family and clients–here is the latest installment of our intermittent posting on how it can be hard to be a woman.

We read about honor killings of women and female genital mutilations and are grateful that sort of thing doesn’t happen here. Except it does. This reality is disturbing but what about a wide scale sterilization program [from the North Carolina Eugenics Board] targeting “women, young girls and blacks”?

For the past eight years, North Carolina lawmakers have been working to find a way to compensate those involuntarily sterilized in the state between 1929 and 1974. During that time period, 7,600 people were sterilized in North Carolina. Of those who were sterilized, 85 percent of the victims were female and 40 percent were non-white.” 

And we wonder why women are more subject to broken hearts. Thankfully, even though serious, a broken heart probably won’t kill you. Only about 1% of those with “broken heart syndrome” actually die of the cardiac condition.

Speaking of broken hearts, when friends betray us, girls are not the paragons of virtue we’ve been made out to be by past research. Instead, girls are just as likely as boys to say they would seek revenge, verbally attack the friend and threaten to end the friendship. And when betrayed, girls report feeling more anger and sadness than do boys. In fact, they were more likely to believe the betrayal meant their friend did not care about them or was trying to control them. Researchers suggest interventions might focus on ways to help girls cope more effectively when disappointed.

At least there is blogging. A safe and rewarding activity for sure. You can be taken seriously by expressing yourself online. That would feel good. Except when it doesn’t. Concurring Opinions blog writes about bigotry against women online and ends up having the dynamic discussed played out in the comments section. This post is followed up on by another Concurring Opinions blogger with a commenter providing a link to this article on sexist abuse online.

So, as we peer out over the far edge of 2011, have we come a long way, baby? In some ways, yes. In others, it’s disturbing and depressing. As you listen to women recount their experiences of gender-based discrimination, don’t summarily dismiss them. Listen instead for threads of continuity and check out the recent Twitter trending topic: #mencallmethings.

Sensitize yourself to the realities of how hard it can be to be a woman–still. You’ll be a better friend, sibling, spouse, colleague and a better trial lawyer.

We made the ABA Blawg 100 list for the second year! Please take a minute to vote for us HERE under the Trial Practice category.

Macevoy JP, & Asher SR (2011). When Friends Disappoint: Boys’ and Girls’ Responses to Transgressions of Friendship Expectations. Child Development PMID: 22103441


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Simple Jury Persuasion: The innuendo effect

Friday, December 23, 2011
posted by Rita Handrich

I know that’s what he said, but this is what he really meant…!

From early sibling conflicts and on into adulthood, we know the power of innuendo. Now we have academic research findings that corroborate that childhood experience (especially for women). Researchers were curious about how hearing only positive information might still be construed negatively by the listener. They looked at the effect of describing a person when you leave out one of two key qualities that people tune into when judging others– warmth and competence. For example:

Ryan seems like a fun-loving guy”. If Ryan applied to work in your workplace, how would you expect him to perform?

Or “Molly is very gifted, hard-working and passionate about her job”. If Molly were seated next to you at a social event, how much do you think you would enjoy socializing with her?

The researchers point out that the descriptions in the study contain only positive characteristics. Yet, we tend to interpret deficiencies when what we have heard is only a facet of the person.  There is a tendency to assume that the omitted description is also absent from the person being described. For instance, when only warmth information is expected, giving information on competence will lead to negative inferences on warmth (see Molly, above). They call this “the innuendo effect”.

To study it, they offered vignettes in which peers described a person in one of two contexts: social (a travel group) or work (an academic group). In other words, the descriptions addressed warmth or competence, but not both. They asked participants to imagine being in a group (either social or work-related) for a month and that their task was to choose an additional person to add to the group based on the descriptive vignettes. Some participants were given straight-forward competence descriptions for the work context and straight-forward warmth descriptions for the social context. Others (those in the innuendo condition) had descriptions reversed so that warmth descriptions were given for the work context and competence descriptions were given for the social context.

In the initial study, the researchers found that the innuendo effect was stronger than anticipated. Not only did participants assume negatives when the description was contextually mismatched, (i.e., warmth/work and competence/social) they also assumed negatives when the descriptions matched the context! If someone was described as competent in a work situation, participants assumed they were not warm. A follow-up study showed the innuendo effect was even stronger with female targets than males. That is, we assume the negative more when assessing females.

The main lesson we take from this research relates to the need to be careful of what we don’t say, in addition to what we do.  Overlooking a balancing quality of a person will leave people thinking that they lack the quality that is omitted.  This is particularly true when jurors are looking for character in witnesses or parties.  An executive is expected to be smart and hard working, but if you forget to mention that s/he also volunteers at the community food pantry, the jurors will see the witness as another selfish, career-obsessed person.  Conversely, if someone is a manual laborer (including homemakers), emphasizing their thoughtfulness and dedication will make them more credible and respected.

Kervyn, N., Bergsieker, H., & Fiske, S. (2012). The innuendo effect: Hearing the positive but inferring the negative. Journal of Experimental Social Psychology, 48, 77-85


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This is research that flies in the face of the common wisdom that angry jurors award more damages. It is a long-standing tenet of the research literature that when bad things happen to good people we tend to paradoxically blame the victim. It helps us feel safer to believe the harmed party “must have” done something wrong to have such a fate befall them. It allows us to imagine that we wouldn’t have suffered the same fate that the harmed person experienced.

We saw this in a horrifically disturbing case last year where a young coed was stalked and killed despite every decision being made “right” by her parents. As the mock jurors took in this information, they focused on what the victims must have done wrong.  Their disbelief and horror required them to come to terms with the tragedy. They asked repeated questions focused on missteps the parents or the murder victim must have committed. There were none. This family was close-knit and had gone above and beyond in terms of concerns for her safety. As information concerning her autopsy was given to them, jurors were shell-shocked. Speechless. Some cried. And then, as information emerged about the murderer and how he gained access to his victim, they became enraged. Now they knew who was responsible. And they were furious. Their damage awards displayed that anger.

But this research says that in order to avoid ‘blaming the victim’, you want jurors to be happy. Happy? Don’t we know that a happy juror won’t award substantial damages? Happiness in jurors results in a “stuff happens” sort of verdict and does not bode well for damage ceilings. Surely Plaintiffs want Mad jurors, and Defendants want Happy. So it makes sense you might be skeptical. Here’s what they did.

Researchers asserted that a positive mood would serve as a protection against a sense of personal threat, and thus result in less tendency to blame the victim. They believed a negative mood would result in the opposite (less self-protection and more blaming the victim). So they induced happy moods by having half of the research participants watch excerpts from a comedy (Fawlty Towers) and induced sad mood by having the remaining half watch excerpts from a sad movie (Angela’s Ashes). They also had what they called “mood consistent” music playing in the background of both conditions.

Then the participants read a newspaper article “reporting a recent random physical attack in a deserted lane where the victim was assaulted and severely injured by two strangers on his way home one night. The article was accompanied by an emotionally evocative picture of the bloodied victim in a hospital bed.”. (Researchers don’t fool around when they want to shock participants into reacting.) Then they asked the research participants how responsible they thought the victim was and how likely it was that he could have prevented what happened.

They found that those participants who had watched the ‘happy’ movie tended to blame the victim less and those who had watched the ‘sad’ movie, blamed the victim more. Further, the participants placed more blame on the victim when he was one of them (a college student) than when he was described as a corporate employee.

The researchers interpret these results as a happy mood protecting against the threat of bad things happening. They also say that the college student victim was blamed more in order to protect the college student participants from feeling threatened themselves.

What the researchers omitted in their research design is “Angry”.  What we have seen repeatedly is that when jurors become agitated they become mobilized to act. Whether that anger is over the perception of a frivolous lawsuit or heinous disregard for safety, it will drive hard and fast verdicts.  Sadness typically includes a lower level of agitation, and often helplessness.  Happiness may include sympathy and generosity, but it can also swing toward a shallow examination of the facts.

We think we’ll simply continue to operate as we have in the past.

When we want high damages, we want angry and energized jurors with a clear target for their distress.

When we want to keep damages low, we want sad and hopeless jurors who see no way to have avoided the misfortune.

Over the many years of our trial work, we’ve seen jurors look serious, somber, sad, tired, proud, pleased, intense, and sometimes very angry.  But ‘happy’ is perhaps the least likely reaction of all.

Goldenberg, L., & Forgas, J. (2012). Can happy mood reduce the just world bias? Affective influences on blaming the victim. Journal of Experimental Social Psychology, 48, 239-243


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