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Archive for April, 2012

We’ve written a number of times about atheists in the courtroom and the general lack of trust in atheists in this country. One recent study pointed out we trust atheists about as much as we trust rapists! Identifying biases that are deep-seated and seem to be permanent is one of the things we do as trial consultants. Sometimes they are unexpected. They are almost always disheartening.

So we are grateful to social science researchers who sometimes identify strategies to disrupt permanent and deep-seated biases. And here’s one for disrupting biases against atheists. It’s simple, straightforward and free: remind jurors about the government.

Researchers point to research noting distrust of atheists who do not believe a “watchful and judging god monitors their behavior”. Most people think we behave better when reminded there is a god watching over us. That atheists have no such moral force judging their behavior makes the rest of us suspicious of their moral trustworthiness. The observation by a supernatural being gives believers a sense of psychological control over the behaviors of all believers. On a none-too-subtle level, it also suggests that mostly, we don’t trust that people to do the right thing if they don’t fear punishment.

There is also recent research showing that secular authority can also give a sense of psychological control in the world. When reminded of secular authority (and thus the awareness of monitoring by powerful figures, albeit not a deity) which also enforces prosocial behaviors–believers should also exhibit less distrust toward atheists. The idea is that there would exist some sort of behavioral control over the atheist–we don’t have to be so afraid of what they might do.

Researchers wanted to explore these ideas to see if bias against and fear of atheists would diminish if research participants were reminded of secular authority. They conducted 3 separate experiments:

In Study 1, researchers emphasized “police effectiveness” by having participants watch a video of the Vancouver police chief’s year-end report “which detailed many successes of the Vancouver Police Department during 2010”.

They found that being reminded of secular authority decreased the level of distrust toward atheists.

In Study 2, researchers examined distrust of atheists and the prevalence of disgust for homosexuals. Again the “police effectiveness” video was shown.

Again, researchers found that being reminded of secular authority (i.e., “police effectiveness”) reduced distrust for atheists but did not affect antigay prejudice.

In Study 3, researchers wanted to see if reminders of secular authority would reduce distrust in atheists and (at the same time) reduce distrust toward gays.

And again, the researchers found that being reminded of secular authority reduced distrust in atheists but did not affect distrust of gays.

What this research progression shows is that reminders of secular authority/effectiveness decrease distrust in atheists but do not decrease prejudice in general. This is a powerful finding although it will of course be moderated by how effective and trustworthy people find their government. Overall, though, it makes sense, if the secular authority is a replacement for religious authority. Bias and prejudice is not unidimensional, it is a complex response. No unidimensional explanation will capture all of the potential vagaries of bias and prejudice.

From a litigation advocacy perspective, if you have a client who is atheist (and ‘out’), you would do well to find ways to remind jurors of secular authority–either through law enforcement, regulatory agencies, or other reliable secular institutions relevant to the facts of your case. Society is safe, even if this person doesn’t perfectly mirror the religiously observant jurors. Jurors need to have a sense that “this atheist” is contained and law-abiding so they can trust the atheist’s future behavior.

It’s a simple yet powerfully, and pointedly targeted strategy.

Gervais WM, & Norenzayan A (2012). Reminders of Secular Authority Reduce Believers’ Distrust of Atheists. Psychological Science PMID: 22477103

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Humans appear to be the only species who are willing to punish others who lie, cheat, steal or violate social norms even when they [the punisher] were personally unharmed or don’t stand to directly benefit from punishing the wrong-doer. The practice is called “third-party punishment”. Ironically, punishment itself is thought to have a foundational role in maintaining the level of cooperation in our modern societies. We obey rules and cooperate with each other to avoid punishment.

New research by neuroscientists [Buckholtz & Marois, 2012] indicates that we make decisions to punish bad behavior based on an evaluation of the actions and mental intentions of the criminal defendant. Rather than being impartial decision-makers who employ logic and rationality–much of our motivation for punishing seems to be driven by our own negative emotional reactions to the harm caused by the criminal behavior.

The researchers indicate that our amygdala (the part of the brain associated with emotional responses) causes us to combine our emotional responses to the actual behavior with the evidence we have about the situation itself. In other words, a juror has to integrate the information on their sense of the defendant’s mental state and the amount of harm done, with their own emotional reaction to the crime itself. So how do we keep the input from the amygdala (i.e., the strongly emotional input) from over-riding the evidence?

This is a constant tension in pre-trial research. We routinely see jurors that argue based on rationality and those who argue based on emotionality. We want to identify the most persuasive arguments for both positions and weave them into an ultimately effective trial narrative. But it’s about the brain. Our brains do things automatically. We are regularly reminded of this as we monitor the ever-increasing “my brain made me do it” defenses. Those defenses focus on ‘differences’ in the brain during the criminal act that (they believe) absolve the defendant of responsibility for their criminal behavior.

A recent fMRI-based Japanese study [Yamada, et al.], focused instead on what is occurring in the brain of the juror as they weigh ‘mitigating circumstances’ in a fact pattern that involves murder. Their results support the decision-making model proposed by Buckholtz & Marois in showing via the fMRI results, how various areas of the brain “light up” when sympathy enters into decision-making regarding punishment for the crime of murder.

In the Japanese study, the researchers identified several reactions in the brains of participants when given information on actual Japanese murders, mitigating circumstances for the defendants, and when asked to decide a punishment. Researchers watched as sympathy lit up different areas of the brain [e.g., the dorsomedial prefrontal cortex, precuneus and temporo-parietal junctions] than did decision-making regarding sentencing [e.g., the precuneus and anterior cingulate cortex].  The researchers report that mitigation appears to be based on negative emotional responses to murder, sympathy for mitigating circumstances, and the cognitive control to determine length of the punishment.

In plain English, decision-making was not a strictly rational process, but incorporates emotional judgments as well. We have known for years that Aristotle was simply wrong when he said, “The law is reason, free from passion.”. Or perhaps Aristotle was right about the “law” itself but not about how it is applied in serious disputes.

We are a people of both reason and passion. The law reflects reason and our interpretation of that law, combined with our life experiences and visceral reactions to the event, often reflects a complex combination of our reason and our passions. We know some groups of jurors have more sympathy for mitigating circumstances. We know some prefer a Dragnet approach to justice: “Just the facts, ma’am”.

In any group of twelve, you are likely to have those swayed by sympathy and those determined to apply the evidence to the law without regard for sympathy. What these two very different studies have to say to us is that all of us make decisions based on both evidence and emotion. Telling stories that speak to both ends of the continuum always serve us well, as your jury is bound to include both types.

Buckholtz, J., & Marois, R. (2012). The roots of modern justice: cognitive and neural foundations of social norms and their enforcement Nature Neuroscience DOI: 10.1038/nn.3087

Yamada M, Camerer CF, Fujie S, Kato M, Matsuda T, Takano H, Ito H, Suhara T, & Takahashi H (2012). Neural circuits in the brain that are activated when mitigating criminal sentences. Nature Communications, 3 PMID: 22453832

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Black women are expected to behave like white men when they have reached a higher level of leadership. That is the conclusion of new research looking at black women leaders.

Traditionally, white men are expected to be assertive and even aggressive leaders, but black men and white women are often perceived negatively for those sorts of behaviors in the workplace. Researchers wondered about black women and what they found was that “one size does not fit all women” when it comes to leadership expectations.

This is a surprising and counter-intuitive finding–yet, there are familiar themes along the way. We know from earlier research that African American women are more likely to confront racist statements than are Asian American women. We also know that women leaders in general are penalized more severely if they make mistakes at work. That theme comes up in this research as well. So yes, it’s still hard to be a woman–but, in this research, once you arrive, you may sound more like Aretha Franklin  than Tammy Wynette.

In the research, supervisors were presented in two modes: dominant or supportive/caring. The researchers showed both male and female supervisors and both white and black supervisors and asked the participants to rate the supervisory effectiveness.

Here’s what the researchers report:

White women were evaluated more negatively when they expressed dominance rather than caring support. However, black women did not get this same negative reaction.

Black men were penalized for expressing dominance but white men were not.

In short, black women were expected to behave more like white men when in a leadership role and (unlike white women and black men) were not punished for behaving dominantly in a leadership role. The researchers wonder why, then, are there not more black women in positions of leadership? They hypothesize that black women don’t look like the stereotype of ‘leader’ (e.g., for most people a ‘leader’ is a white male) and thus are punished more harshly for making mistakes since they don’t fit the ‘leader’ stereotype. The researchers  presume it’s harder for a black female to rise to high levels of leadership due to heavy punishment for mistakes along the way. However, once she has arrived, the black female leader is given permission to act like a white male in leadership: dominant and assertive, even aggressive at times.

This research has relevance for both litigation advocacy and for law practice management as well as for women of color striving for leadership positions.

In witness preparation, a high ranking African American female can show dominance and assertiveness in her testimony without being punished for it by jurors. Remember though that a white female or African American male will be expected to express support and caring for subordinates while still expressing a belief that direct communication as to performance expectations is a must for effective management.

If this research is accurate, a senior African American female attorney can question on cross-exam as aggressively as a white male attorney. There is likely a fine line on this behavior though, as it is often expected that women will behave more sensitively to others.

In your law practice, ensure you are not censuring African American female attorneys more harshly for mistakes than you would censure a white male attorney. Make your performance standards measurable and concrete so they can be applied equally and with a minimum of bias.

Overall, this is intriguing research and the researchers plan to explore the realities for African American women struggling to climb corporate ladders. We’ll be watching for their future work.

Livingston, R., Rosette, A., & Washington, E. (2012). Can an Agentic Black Woman Get Ahead? The Impact of Race and Interpersonal Dominance on Perceptions of Female Leaders Psychological Science, 23 (4), 354-358 DOI: 10.1177/0956797611428079

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There’s some intriguing new research out looking at how members of different cultures respond to overt racism. Think of your stereotypes of African American women and Asian American women. Now, think of which group you would predict would respond directly to racism and which group you would predict would be more likely to respond indirectly. If your stereotypes are like most, you likely concluded African American women would respond directly (be more confrontational about it) and Asian American women would respond indirectly (be less confrontational, more retiring).

And you would be right–at least according to this research. But the answer to the ‘why’ is pretty intriguing. Research is growing related to the negative impact of “everyday racism” on physical and mental health. Yet there is no research directly comparing different cultural or ethnic groups and their response to racism.

Researchers chose to compare African American women to Asian American women in their responses to racist comments by strangers.

Their interpretation of African American culture was that it may encourage women to engage in direct confrontation of racism. African Americans may also have a cultural norm of confronting racism as an act of social responsibility.

On the other end of the continuum, Asian American culture may well encourage women to have less assertiveness in interpersonal interactions in order to maintain harmony in the interaction. This results in common coping strategies of avoidance or accommodation. Asian American culture also endorses ‘self-silencing’ among women (to appear quiet, nonthreatening and compliant).

These researchers wanted to see if these stereotypes regarding the African American community norms and the Asian American community norms would find expression under scientific scrutiny. Naturally, they conducted a pair of studies to examine the question.

The first study showed African American women more likely than Asian American women to confront racist statements during an instant messaging interaction on interracial dating. The more racist African American women saw the comments as being, the more likely they were to confront the perpetrator.

In their second study, Asian American women were more likely than African American women to say they would either not respond to a racist statement or that they would respond indirectly. Asian American women reported a desire to “keep the peace” in their response to racist comments.

In both studies, there was no difference in the internal level of intensity with which the women [regardless of race] experienced the level of racism inherent in the interaction. Both African American and Asian American women saw the interactions as both racist and hurtful. They simply chose a different external reaction.

The researchers point to prior research saying that African Americans [both men and women] who do not confront racism end up with higher levels of anxiety and depression as they internally reproach themselves for not confronting the racist behavior. They hypothesize that these differing responses to racism for African American and Asian American women can be healthy for each as they are reinforced by cultural socialization.

In other words, African American women who confront racism directly are in line with their predecessors who confronted discrimination. Asian American women who do not confront racism directly are acting consistently with their heritage which emphasizes peaceful relations.

So what does this mean for litigation advocacy?

First, it serves as a reminder [one we hope is growing less necessary] to avoid racist statements or eliciting racist sentiments or testimony on direct exam.

Second, it tells us racist statements are offensive to women of both African American and Asian American descent and that we can’t always predict whether the external reaction will be direct or indirect–but there will be a reaction.

And third, it is a worthwhile reminder that while cultural awareness and sensitivity is always worthwhile, you might have to take it on faith that there is a cost to racist behavior that might not become immediately apparent. Whether the person immediately reacts to it or not, the impact is negative and lasting.

There remain times when, for purposes of litigation advocacy, it is better to talk about race and times it is better to stay silent. Like Martin Luther King, Jr., we hope that one day strategies like this won’t work anymore.

Lee, EA, Soto, JA, Swim, JK, & Bernstein, MJ (2012). Bitter reproach or sweet revenge: Cultural responses to racism. Personality & Social Psychology Bulletin.

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When good leadership goes wrong

Friday, April 20, 2012
posted by Douglas Keene

Monty Python fans recall the optimistic pluckiness of the black knight who threatens King Arthur even after being completely de-limbed. “It’s only a flesh wound!” he chirps and asks Arthur to walk over to where the knight has fallen so he can bite King Arthur’s legs. King Arthur refers to him as a “lunatic” but also kindly agrees to call the one-sided duel “a draw” in recognition of the misguided pluck of the black knight.

Many of us have been in the role of the black knight in an organization. We want to do well. We don’t want to give up. We want to see our organization and our mission positively. But sometimes, we have to take that big tin can off our heads so we can see clearly. And every once in a while, we have to take a stand. It can be a quixotic mission. Or it can be a revolution.

It is axiomatic that leadership has a potential dark side. More contemporary examples of the “dark side” of leadership can be seen in the Enron implosion and even the Wall Street collapse. A leadership blog describes the “dark side” of leadership this way:

“It is sometimes called “the shadow.”  This is the part that is negative and can create toxic environments.  Characteristics can include greed, jealousy, envy, excessive competition, defensiveness, manipulation, … the list goes on.  It is when the ego gets control of us and starts leading our thoughts and behaviors.” 

It isn’t that the “dark side” stems from only negative or bad traits–quite the opposite. It can actually stem from good traits that simply become too strong and trip over into what might be called “tragic flaws”. Getting “carried away” with the power of leadership can be a very bad thing. And that, in turn, can be a very bad thing for your organization, your firm, your members, and your employees.

So how do you avoid this leadership trap?

Maintain trusted advisers who are not in your leadership circle. Get real feedback so you don’t live in a bubble of only those who agree with you or see things from your skewed perspective.

Curb your suspiciousness lest you find yourself in the awkward position of calling your followers/members dissenters when your leadership group, in truth, are the ones dissenting while the organization is in agreement.

Honor service and honor your members/employees. Recognize the loyalty of ‘loyal opposition’ and embrace positive diversity of views. You don’t have to agree with everyone. But you can honor their service to your firm or organization. No one likes to see leaders that deride or minimize members/followers. Be respectful. Keep critical and devaluing comments about individuals to yourself.

Give credit where credit is due. Great leaders do not create themselves. Their words and their behaviors spark commitment to “do good” among others. Fan the spark by acknowledging contributions.

And yet, when you are a leader, be unafraid to do the right thing. Just make sure it really is the right thing. If you wonder, act cautiously, and risk erring on the side of graciousness.

It seems only fitting that this post is going up on the week in which we honor Martin Luther King, Jr.  Here is an example of a man who was not perfect by any means, yet he inspired a huge cultural change. Being a leader isn’t easy. But it shouldn’t hurt those who choose to follow you.

Conger, J. (1990). The dark side of leadership Organizational Dynamics, 19 (2), 44-55 DOI: 10.1016/0090-2616(90)90070-6

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