Archive for July, 2012
We work on a fair number of family disputes involving large sums of money. Some are related to divorces, others involve wills and estates, or family-owned businesses. They are always very sad stories of family rifts that always revolve around more money than most of us ever dream of having.
About a year ago, we worked on a family case involving a large sibling group–one of whom weighed a bit more than the others. She was not morbidly obese but was solidly built and physically quite active. As we watched the deposition tapes with family members one sibling commented quietly to her,
“You want to lose weight before trial because most people like thin people better”.
There was a silence in the room and then Mom changed the subject. It was the grown-up, litigation-intense equivalent of calling her “Fatty” in a sing-song voice. The comment was not made (at least in front of us) again but there were veiled references to weight and self-control over the next few days as we completed one of a series of pre-trial research events with the ubiquitous presence of M&Ms and fresh-baked chocolate chip cookies. The family was under a great deal of strain and looking frantically about for ways to gain an advantage (or at least to feel they were more in control).
Recently, as I was reviewing new research (an ongoing effort for us) I came across an article on the obesity stigma as it relates to watching the television show The Biggest Loser. This show features morbidly obese people using diet and exercise (extreme exercise) to take off weight rather than relying on bariatric surgery. It is a testament to the human spirit, and to will-power, courage and determination. Researchers wanted to examine whether regular watchers of that television show are less biased against obese people in general.
And despite the television show attempting to send a positive message–the researchers did not find a positive impact on the obesity stigma.
“The current study offers empirical support that one of the most popular reality TV shows, The Biggest Loser, has a potentially negative impact on societal perceptions of obese persons. [snip] The show not only promotes “an unhealthy, unrealistic, and unaffordable weight loss regime”, but also reinforces the perception that obesity is a matter of personal responsibility. ”
In other words, if I watch The Biggest Loser on TV, I am more likely to see over-weight people as being weak in will-power and lazy. The show actually increases the stigma against the obese by over-emphasizing behavioral causes of obesity (e.g., faulty diet and lack of exercise) and under-emphasizing genetic, socio-cultural and environmental causes. In other words, people who are obese “can’t win for losing”. If you expect that viewers of the show would be more comfortable with obesity than the general public, or more accepting and less judgmental, you would be wrong.
Weight is seen as a character issue in this country. We know the bias against obesity ranks right up there with other popular biases we study. This study would say you need to be careful as you approach the courtroom with an over-weight client.
If you read our blog post on checking out jurors’ shoes as part of jury selection, then you understand the longing for a silver bullet in voir dire. It’s like the litigation advocacy version of the quest for the holy grail. You know we didn’t think much of that shoe study for selecting or deselecting your jurors, but what about a personalized approach to persuasion? Is this a true silver bullet?
Researchers looked at whether tailoring advertisements to the personality profile of the intended recipients would make the advertisements more effective. They assessed personality traits using the “Big Five” personality dimensions: extraversion, agreeableness, conscientiousness, neuroticism and openness.
They showed participants an advertisement of a cell phone with a text message tailored to varying personality dimensions. For example, the extravert was hypothesized to be more persuaded by an advertisement with text saying “With XPhone, you’ll always be where the excitement is” while neurotics were seen as more likely to respond positively to a message saying “Stay safe and secure with the XPhone”.
So once the participants had rated the advertisements for persuasiveness, effectiveness, willingness to purchase the product, wanting to learn more about the product and liking the advertisement overall–their personality traits were assessed using the Big Five Aspect Scales measure.
And sure enough! When a message is tailored to you, you find it more persuasive.
“For a single product, we constructed five advertisements, each designed to target one of the five major trait domains of the human personality. In a sample of 324 survey respondents, advertisements were evaluated more positively the more they cohered with participants’ dispositional motives.”
The researchers comment that electronic retailers are already using this sort of tailored advertisement/person matching and comment that very recent research shows you can infer much about personality from a Facebook account, email address and language use–all of which can be culled via “lingering signatures of online behavior”.
There has been a good deal of discussion among innovative trial lawyers and trial consultants about data mining to discern characteristics of jurors, for two reasons: first, you may be able to determine clues about predispositions toward the case that could inform decisions about strikes (the silver bullet!). Second, and much more reliable, you can tailor the language and thematic messaging to fit the jurors to whom you are speaking. Perhaps not quickly enough for tweaking an opening statement, but in a longer trial such ‘message tailoring’ is an important consideration.
The risks involve the distraction that too much input and ‘cleverness’ can introduce, and the potential for you to lose focus. Jurors judge authenticity automatically, and what you say has got to ring true.
So what about personalizing your persuasive efforts to your actual jurors? Will you be more successful in persuading if you explore their “lingering signatures of online behavior” and determine how to pitch your case based on who you have in the box?
These strategies are employed by our firm, but with great restraint. To apply them in jury selection ideally involves creating a model for juror profiling that requires a good deal more research (focus groups/mock trials/attitude research) than most cases can justify. And when the matching of juror characteristics to trial themes is the goal, it is beyond the skill set of most gifted trial lawyers, and is most effectively achieved with some expert input.
So alas, we are left again without a silver bullet, but we have a better understanding of what ‘smart’ can look like in strategy, both for jury selection and case theming. One good takeaway from this study is that the quality of the message is highly related to persuasive impact. The higher the quality of the message, the greater the persuasive impact.
Hirsh JB, Kang SK, & Bodenhausen GV (2012). Personalized persuasion: tailoring persuasive appeals to recipients’ personality traits. Psychological Science, 23 (6), 578-81 PMID: 22547658
Oh, the number of times we’ve heard “if only…” from mock jurors. “If only she’d taken her regular route to work.” “If only he’d gotten a second opinion.” “If only they had sat down and talked to each other before things got so out of control.”
It’s such a plaintive refrain and therein lies the appeal. They are effectively saying “this is such a sad story that it threatens my own sense of safety so much I need to create an alternative scenario that would have made it end much better“.
And now we have research focusing on just how we use counterfactual thinking to create meaning. It isn’t about how we are stubborn and not listening to the evidence. It’s about how we try to make sense of our world and protect ourselves from the knowledge that bad things happen–even to good people.
This research is so resonant with what we hear from our mock jurors that we hope you will take time to read it. [See a full pdf of this article here.]
These writers assert that our search for meaning in life is supported and enhanced by counterfactual thoughts as to “what might have been”. They see counterfactual thinking as increasing our beliefs in fate and destiny–as in, “it was meant to be”. In two different experiments, participants who were told to generate counterfactuals about their college choice or a close friendship (e.g., “what might have happened had you not chosen this college or not met your close friend?”) ended up feeling their college choice and a close friendship were more meaningful and more significant in their lives than those participants not instructed to generate counterfactual thoughts. Counterfactual thinking made these life events/experiences more meaningful.
A third experiment was conducted to specifically look at the relationship between counterfactual thoughts and a sense that the event was “fated” or “destined” to happen. The researchers point to an ironic truth that highlighting the improbability of an event bestows inevitability upon that event.
They offer the example of winning the lottery: “It could not have happened by chance alone. It must have been fated.” Perceiving fate as being at work enhances the meaning of resulting events.
So for the third experiment, participants were asked to identify a turning point in their lives wherein “rapid, intense and clear change occurred, such that you were never the same again”.
Once they had described their individual turning point in a free form written narrative, they were given instructions for their counterfactual thoughts:
“Describe how your life would be now if the turning point incident had never occurred. Please write about who you would be, where you might be, the relationships you might have, the beliefs, values and feelings that might characterize you, or any other details about this alternate world you can imagine.”
The other half of the participants were given factual instructions for assessing their individual turning points.
“Describe exactly what happened, when it happened, who was involved, what you were thinking and feeling, what happened right before and right after the incident occurred, or any other factual aspects of the incident that you can recall.”
As you might suspect, those participants in the “counterfactual condition” had higher perceptions that their “turning point” was fated than did those in the “factual condition”. The participants did not merely conclude that their lives could have easily unfolded very differently. Instead, the experience of thinking counterfactually about their experience enhanced their sense that fate was at work: “it was meant to be”.
And these researchers were still not done. They did one final experiment to see if finding benefit in your “turning point” (as in “here are the good results of this event”) would be related to seeing yourself as “better off” due to the turning point experience. They used the same experimental procedure as in the third experiment with minor modifications to allow coding the turning point as a negative or positive event. They also had some participants reflect directly on the meaning of the turning point in their lives.
Again, the counterfactual condition resulted in a stronger sense of the turning point being fated and gave the turning point more meaning in the lives of individual research participants. Counterfactual reflection also produced more positive assessments of the impact of the turning point than did either factual reflection or direct reflection on meaning of the turning point.
What the researchers ultimately opine is that counterfactual reflection results in the assignment of positive benefit to the individual experiencing the turning point–to a greater degree than even directly assessing the turning point’s meaning. That is, when you consider “what might have been”, you are more likely to imbue that turning point as mandated by fate and as having made positive impact in your life journey.
We hear this sort of thinking from our mock jurors consistently in cases where either financial or physical or emotional damage is alleged by the plaintiff. In additional to the “if only” refrains, we also hear things like “Struggles like this help you know who your friends are”, or “This would really give you a chance to figure out what is truly important” or “If this had not happened, she never would have discovered how strong she really is and her ability to cope”. We are wired this way. We struggle to find meaning and reason to what has occurred. Whether it is fate or the result of bad choices–your jurors are always going to interpret, make meaning, assign positive or negative benefits to the life-changing event, and assert reasons as to why this sort of thing would “never” happen to them.
This is a self-protective maneuver and your task as the plaintiff attorney is to gently but firmly shatter it.
This wasn’t fated, it was due to negligence.
It wasn’t random, it was totally preventable and happened due to poor safety practices or bad choices of the defendant.
This didn’t happen for a reason–God did not ordain it. This was a human-caused incident that would not have happened at all if the manufacturer had just included a modification that they not only knew about but that only cost $2.19 per unit.
And so on. We are so used to the “story approach” and sequencing our case narratives to minimize “if only” reactions that we forget sometimes just how powerful and ingrained is the desire to find meaning. It is always a reminder when mock jurors begin to discuss how it would have never happened to them and, sometimes, begin to blame the victim–that we need to go back and point to all the right choices made by the victim(s) and all the wrong choices made by the defendant(s).
Obviously if you are representing the defense, you want the counterfactuals going strong and loud. It was random. Stuff happens. This was a blessing in disguise. He is stronger for this and his family is much closer. Yes, it was a horrible thing. But good resulted. Let’s not forget that!
In a very real way, counter factual thinking is a form of internal fact-checking for all of us, albeit one that has the potential of jumping the tracks of reason and reality. To overlook its inevitable presence is to leave a potentially powerful stumbling block in the jury’s path.
Kray, LJ, George, LG, Liljenqujist, KA, Galinsky, AD, Tetlock, PE, & Roese NJ (2010). From what might have been to what must have been: Counterfactual thinking creates meaning. Journal of Personality and Social Psychology, 98 (1), 106-118 DOI: 10.1037/a0017905
It’s a long-standing truism. Plaintiffs have an edge with the jury because they go first. The defense has to convince those same jurors that the plaintiff story just isn’t true. What we know based on years of work is that the defense task is not at all impossible. But it can be harder. So this new study is likely to be discouraging to many of our defense-side clients! The debate over the value of ‘primacy’ versus ‘recency’ isn’t getting simpler after all. It ends up that the solution lies with how quickly they will have to make their decisions.
Researchers from both US coasts (UC Berkeley and Harvard) performed studies wherein they show that what we see first is what we most often prefer. Whether it was human salespeople, bubblegum, or which of two violent criminals was more worthy of parole–the photo we see first is the one we prefer to either purchase a vehicle from, chew, or deem more worthy of parole. Are we really that simple-minded? Unfortunately, it would appear the answer is yes.
But this tendency is only reliable when we are forced to make our decisions quickly. When we are given time to consider and ponder our choices–like juries have–we don’t tend to choose the first item brought to our attention, but rather the most recent. While this might soothe the defense attorney, it says little about higher-order decision-making of which we can be proud. Make me think fast and I prefer the first option. Give me more time and I prefer the last option presented. (Hey! Wait just a second. Would that second option be the defense argument or the plaintiff rebuttal? Hmmm.)
Speed of response becomes a contrasting variable when we think about how attorney-led voir dire is conducted, as opposed to the process of trial itself. While jury decision-making is deliberative (favoring recency), responses to voir dire questions are immediate, thus favoring primacy. So consider whether you are constructing voir dire questions with the response option you are most interested in the first part or the second part of the question.
For example, imagine that you are defending a bank in a case that alleges that the bank failed to fund a project according to terms that were agreed to by a client. You want to test whether people are negatively predisposed to banks, not discover who thinks banks are wonderful. So you have a question that addresses that:
“My sense is that people in our society are really divided about the banking business these days. I’d like to know how each of you feel about banks. How many of you feel a) that banks are to blame for most of our current economic problems, or b) banks are productive and worthwhile contributors to our business system.”
While you would ideally have the option spelled out on a slide or demonstrative board so it can be seen, the question structure (putting the critical condition first) is the key lesson.
As far as the more deliberative jury decision making following closing argument, we have found that the impact of the recency effect fades the longer the discussion goes on. So the neutralizing challenge is to inspire the jury to go slowly and carefully through the evidence, turning it over, weighing facts and thoroughly hashing it out.
Part of what this research illustrates so disturbingly is the dearth of thinking we often exert as we make decisions. We believe what we hear first or we believe what we hear last. Your task is to make jurors think. Your task is to help jurors critically assess evidence presented so that it is about more than the easiest choice. Your task is to make jurors care enough to engage in actual thinking–unless of course, it is to your advantage to solicit the automatic decision-making process many of us seem to prefer.
Carney, DR, & Banaji, MR (2012). First is best. PLoS ONE, 7 (6). See it here.
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