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Archive for April, 2012

My daughter was 11 when I agreed to take her to get her ears pierced. She desperately wanted to have it done but was afraid of the pain. So I had my ears pierced with second holes to show her it was survivable. As time has gone on, she’s added to her collection–always in my company. Second ear piercings. A cartilage piercing. And now, in the wake of her 18th birthday, she asked for my company to a tattoo parlor so she could have her rook and tragus pierced. Showing my age, I asked what part of the body these unfamiliar words were located upon and was relieved (and appalled) to discover they were also on the ear.

So off we went. The “piercer” came out to meet us. He was a huge man (think sumo wrestler) with huge hands, and gauges in both nostrils and the biggest gauges I’ve ever seen in each ear. I felt faint. My daughter looked anxious. He turned out to be the nicest guy. And when he picked up the huge needle to pierce her ear, I could have passed out. She turned very pale as the needle went through not once, but twice to pierce the rook. After he got the earring in (with his huge hands and fingers), he asked if she was ready for the tragus piercing. She asked in a small voice, “Will it hurt more than the rook piercing?” He assured her it would not.

I was reminded of a blog post from Dave Munger back in the glory days of Cognitive Daily blog. In this post, Dave’s spouse Greta (co-author of the blog) discovered that the fable of the Fox and the Grapes was unfamiliar to many of her students. Cognitive Daily then did a survey of their readers to see how many were familiar with the origin and meaning of the phrase “sour grapes”. As it turned out, not that many.

It’s a good lesson in generational communication for the courtroom. While we (hopefully) will not hear plaintiffs describe their pain in terms of body piercing, it’s important to consider the examples we use to communicate. As they saw in the Cognitive Daily survey, those survey respondents who were avid readers were more familiar with the meaning and origin of the term “sour grapes”. We need to remember the phase of life of our jurors, as well as how actual ‘reading’ has decreased for many. Movie references, TV show references, book references, even pop culture references become quickly dated and meaningless to your audience.

Pay attention to what you say. Don’t use verbal shortcuts and assume everyone knows what they mean. Your snappy analogy may just fall short.

We saw this recently in a mock trial where the defense attorney was attempting to demonstrate the difference between the disputed technologies as the difference between a record album (which he held up for the mock jurors) and a CD. Same music. Much different technology. Jurors liked the comparison and it made sense for them. But an unanticipated message came through. The attorney displayed a record album by Barry Manilow. Younger jurors saw that choice as reflecting both the attorney’s age and a questionable taste in music. They were unafraid to verbalize this perception directly.

So. Be careful what you unintentionally communicate! You likely won’t have the benefit of direct juror feedback on mistakes you make.

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You know. Black folks. They are not as intelligent, determined or decisive. They just are not good leaders. When a black leader performs poorly–this stereotype is used to explain the poor performance. But, when a black leader performs well–this stereotype is less useful. Then, we are likely to attribute “compensatory attributes” to the exceptional black leader–”oh, he has ‘survival skills’” or “she is especially warm”–rather than attributing the individual’s success to actual leadership competence. The core competency is still not recognized by the success– it is explained away instead.

These stereotypes are like any other–they allow a simplistic cognitive shortcut that results in a leap to a negative evaluation based on skin color rather than actual behavior. Researchers wanted to test this belief and so looked at press reactions to college football quarterbacks (31 black and 82 white). They asked coders (who knew nothing about the purpose of the study) to rate media reactions to the quarterbacks as positive or negative and to assess the leadership interpretation of the media content (i.e., competence or compensatory adjectives or adverbs).

They found (no surprises here) that the use of the incompetence stereotype or the compensatory talents depended on whether the quarterback won or lost. Further, while different stereotypes were used when black athletes won or lost–the same was not true for white athletes.

When black quarterbacks lost, they were more likely described as an incompetent leader than losing white quarterbacks. When winning, there was no difference between descriptions of the black and white quarterbacks.

When black quarterbacks won, they were often praised for athleticism–much more often than were white quarterbacks.

In other words, black success is perceived as coming from superior athletic skills, while white success comes from smarts and leadership ability. The researchers (publishing in a management journal) say that leadership and organizational success for blacks is less tied to leadership ability than to perceptions that they are lucky or have some compensatory attribute that stands in for actual competence. They recommend black leaders challenge these sorts of stereotypes by showing examples of successful leadership and perhaps even circulating “individuating information” about their personal accomplishments and skill sets in order to provide context.

In the law firm, you need to look at metrics first–when comparing a black partner and a white partner with equivalent metrics–are you rating the black partner lower? This indicates a possible issue with down-grading the black leader because of skin color. If there seems to be a gap in the leadership skills of gifted black attorneys or paralegals, take a second look. Consider whether the problem is also influenced by a culture that expects gifts of one kind, but is resistant to seeing talents of other types. Or coworkers who make minority leadership more difficult.  Pay attention to making your firm evaluative scale measures the concrete and behavioral rather than the subjective (and thus prone to biases).

We write a lot about bias here. And whether that bias is about gender, age, race, disability, or something else–what’s important is recognizing it and choosing to act differently. The question is not if we have blind spots. We all do. The question is if we are able to outsmart those blind spots. This research provides some specific recommendations for outsmarting your blind spots when it comes to the performance evaluation of your African American professionals.

Carton, A., & Rosette, A. (2011). Explaining Bias against Black Leaders: Integrating Theory on Information Processing and Goal-Based Stereotyping. The Academy of Management Journal, 54 (6), 1141-1158 DOI: 10.5465/amj.2009.0745

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We’ve read repeatedly about how video games might increase aggression and how the internet makes us stupid. Each of these positions has proponents and opponents who hotly debate each other at seemingly every opportunity. And if you have heard of the movie, Mean Girls, then you know what the term “relational aggression” means.

Researchers wondered whether media depictions of both physical and relational aggression contribute to aggressive thoughts in women. While prior research had examined the impact of physical aggression (and found that viewing it does increase aggressive thoughts) these researchers were interested in whether viewing relational aggression would also increase aggressive ideation.

They showed female participants clips from one of three different movies: one depicting physical aggression (Kill Bill); one depicting relational aggression (Mean Girls); and one depicting no aggression (What Lies Beneath). They then assessed emotional arousal, had participants complete various questionnaires measuring aggression and asked about television viewing.

The researchers found that both physically and relationally aggressive thoughts are activated following viewing of media aggression.

Those women who saw the Mean Girls clip displayed more relationally aggressive thoughts while women viewing Kill Bill had both higher physically aggressive and higher relationally aggressive thoughts.

The researchers suggest that aggression begets aggression–or that the act of watching physically aggressive media activates the general aggressive neural networks of the viewer. This would encompass both physical and relational aggressive thoughts and would explain the increases in both types of aggressive thoughts after watching a physically aggressive movie clip.

Alternately, they suggest the finding may be gender-dependent and have occurred due to the all-female sample of research subjects. Physical aggression is depicted less often among females and watching Uma Thurman attempt to “kill Bill” may also activate aggressive thoughts of a type that is more gender-normative (i.e., “relational aggression”). They suggest future research investigating the impact of these types of media on male research participants.

From a litigation advocacy standpoint however, what we care about is the activation of the aggressive thoughts–not so much whether viewing physical aggression activates both physically and relationally aggressive thoughts across genders. What this research corroborates is that viewing media depictions of aggression stimulates aggressive thoughts. We know from years of research (and years of work in litigation research) that angry jurors are more likely to act (and award damages or convict) than are sad and hopeless jurors. What this research says is that viewing aggressive media activates aggressive thoughts.

This may have implications for ‘day in the life’ videos, evidence videos/animations, or other court admitted film/video. While it is straightforward to see how a physical injury/assault case can make use of aggressive visuals, even a videographer’s depiction of a broken contract can be presented with aggressive themes/visuals. Editing strategies can be smooth or jarring. Sound tracks can be soothing or edgy. The idea is to activate the aggressive cognitions within your jurors and then give them an action to take to honor those aggressive impulses.

If you are opposing counsel, you want to reframe the aggressive actions depicted by the plaintiff/prosecution as sad, misdirected anger that won’t turn back time. While the plaintiff/prosecution wants to ramp up anger, you want to turn it down and replace it with sadness and hopelessness–a “stuff happens” reaction that will inoculate against high damage awards or a guilty verdict. And find a way to convey that video editing, formatting images, and sound tracks can be argumentative and prejudicial.

Coyne SM, Linder JR, Nelson DA, & Gentile DA (2012). “Frenemies, Fraitors, and Mean-em-aitors”: Priming Effects of Viewing Physical and Relational Aggression in the Media on Women. Aggressive Behavior PMID: 22331575

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Experienced (and even inexperienced) trial lawyers know that entrusting your case to a group of a dozen strangers in a jury is a gamble. The venire can shift dramatically from day to day, for no discernible reason. You never know what you are going to get. This is why jury selection is really a process of deselection–your best effort to weed out those who won’t listen to your story in spite your best efforts to engage them.

Anyone who has done mock trial research is accustomed to projects in which one ‘jury’ of mock jurors focus on different parts of the evidence than do the other juries, and come to a correspondingly different verdict. It’s what happens. And we learn as much as we can from that anomalous group about how they came to their decisions so we can fill those holes in the case narrative. It’s enough to make a trial lawyer (or their client) fearful about taking the case to court. Yet, it is not the norm to request a bench trial where a single judge decides your case based on the merits. New research suggests that perhaps bench trials should be considered more often.

Many of us think collaborative decisions are ‘better’ than individually made decisions due to the need to exchange perspectives and be more flexible than any individual decision maker. These researchers do not agree. They looked at the difference in individual decisions and those decisions made by collaborators. In this instance, they compared the decision-making process of individuals versus dyads.

What they found was that when decisions were made via collaboration (i.e., in dyads) and the decision-makers were then given additional information with which to potentially modify their decisions–they were less willing to modify than were the individual deciders. In other words, the collaborators were more rigid in maintaining their joint decisions than the individual deciders when given new and useful information. And this hurt them. They had a supporter who agreed with them, and they were less inclined to incorporate the new information.

Because of their determination to stick to their original decisions, collaborators ended up being less accurate than the individual decision-makers. So the researchers conclude that “two heads are not always better than one”.

It would be interesting to see what happens to this sort of research when you are looking at larger groups. Groups, for example, the size of deliberating juries. What we see in our pretrial research is that there are always some individuals who refuse to budge when given additional information. In one of our recent cases, two jurors refused to believe the moderator when she gave them additional information. “That isn’t true!” said the female juror. The moderator assured her it was true and they were being given additional information to see if it made a difference to their decision-making processes. Both the male and female juror dug in and refused to consider the new information. They ‘already knew’ what had happened and their minds were made up.

In a larger group, it’s possible other jurors can persuade recalcitrant hold-outs, but they can only do it if they have information available that plugs the holes in the narrative. As irritating as mock jurors who simply do not listen can be, they are often key to completing a tight case narrative that brings everyone along as you tell the story of your client. Like the sand particle in the oyster–some irritations can become pearls.

Minson JA, & Mueller JS (2012). The cost of collaboration: why joint decision making exacerbates rejection of outside information. Psychological Science, 23 (3), 219-24 PMID: 22344447

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Yes, says Amy St. Eve  (a federal judge in Chicago). While the judge doesn’t do either Facebook or Twitter herself, she has polled jurors in her courtroom by asking two questions embedded in a larger written survey:

“Were you tempted to communicate about the case through any social networks, such as Facebook, MySpace, LinkedIn, YouTube or Twitter?”

“If so, what prevented you from doing so?”

Judge St. Eve acknowledges the sample of 140 actual jurors from both civil and criminal trials (drawn from her courtroom and the courtroom of a colleague, her co-author) is not a scientific one and thus open to criticism around basic issues such as generalizability. She writes in the description of the survey itself: “We expect a Daubert challenge from some in the blogosphere”.

The findings were recently published in the Duke Law and Technology Review and give a positive response to the question of the influence of the courtroom judge on individual jurors. [She also cites our work on jurors and the internet so we know she’s done her homework!] The lengthy introduction to the survey results is a good review of what has been published on the issue to date.

The vast majority (92%) of the jurors completing the survey reported no temptation (none at all!) to communicate about a case through social media.

Only six of those completing the survey said they were tempted and four did not do so because of the judge’s orders. However, not one of these six reported they actually did communicate about the case via social media.

“Our key takeaway from the informal survey is that courts should routinely and frequently instruct jurors not to communicate about the case through social networking services, because jurors tend to follow the judge’s social media instructions.”

From our perspective, Judges St. Eve and Zuckerman’s survey results paint a very rosy picture indeed. We imagine there is pressure to report obedience when you are filling out a survey for the judge and a quick search of Twitter using the hashtag meant to group tweets together finds a plethora of tweets indicating jurors are being quite disobedient and sometimes quite amusing.

There is nothing funny, however, about mistrials resulting from social media quips and insults. What we do agree with the authors on is the right of the jurors to respect from the court. They quote Judge Linda Giles in a 2011 Boston Bar Journal column:

“If jurors are going to be asked to sacrifice some of their personal freedom and forego their case-specific e-mailing, texting, blogging, instant messaging and social networking for the duration of their service, they are entitled to a clear and thoughtful explanation of the reason.”

We would go even further than this. If Judge St. Eve and Judge Zuckerman have demonstrated the sort of thoughtfulness in the courtroom that their carefully prepared paper reflects–we would think their respective jurors probably do listen well and take their roles seriously.

We would urge Judges St. Eve and Zuckerman to carry their research to the next logical step and ask about doing internet research.  Our work with jurors suggests that this is a  much more pervasive temptation, and logically it is of greater potential harm to  justice. The prospect of a juror being guided by evidence gathered outside the courtroom (and outside the ability of the parties to challenge) needs to be thwarted, and a careful study of  how and when this occurs would help judges craft effective instructions.

Jurors are not easily fooled. When a judge carefully explains the rationale behind the ‘no social media’ or ‘no online research’ policy, it will make sense. Every juror can relate to the desire for a fair trial. The problem is that they  don’t have the experience as jurors or litigants to appreciate the reasons that justice is undermined when the rules are broken. The recent death penalty verdict overturned by a series of careless tweets, despite warnings by the judge to stop, only underscores the very real cost and unfairness of social media involvement in cases very serious to the parties involved.

St. Eve, A., & Zuckerman, MA (2012). Ensuring an impartial jury in the age of social media. Duke Law and Technology Review, 11 (1)

Read the full article here.

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