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Archive for January, 2013

retaliationWhile we know that whistle-blowers are supposed to be protected from retaliation–we also know that defining retaliation can often be a murky process. What “feels like” retaliation to the frightened, defensive, anxious whistle-blower may not meet the legal standard of retaliation. But what if it does? “What if they and their actions become the subject of a widely distributed email? Is that a form of retaliation?” This was the question asked by some Indiana University researchers and their writeup of the findings is now awaiting publication in the North Carolina Law Review.

The paper uses the 2007 case of Belmont Abbey College. Belmont Abbey is a Catholic school in North Carolina that chose to exclude contraceptives from employee health coverage. Eight members of the faculty complained to the EEOC (alleging religious and gender discrimination) and the President of the school then sent out a mass email to all faculty, staff and students detailing the complaint and identifying the faculty members who made the complaint. The complainants then filed a retaliation complaint with the EEOC. In 2009, the EEOC upheld the gender discrimination complaint but found no cause for the religious discrimination complaint. The EEOC also made a statement that the President’s email was meant to cause a “chilling effect” and make other faculty and staff hesitate before complaining of discrimination.

The authors summarize the murky nature of just what constitutes retaliation as interpreted by the courts in often contradictory rulings. They consider privacy in matters involving religion, sexuality, abortion, sexual harassment, and sexual assault. They examine fear of reprisal (or retaliation) as well as the research on who is most maligned for reporting inappropriate or illegal behavior. (It will likely not be surprising that minorities and women and other people in low positions of power are most villainized. Nor will it likely come as a surprise that because of their assessment of how they will ultimately be treated–often these people are very reluctant to blow the whistle.)

Ultimately, the researchers identify a number of issues for organizations to consider as they contemplate communications that will identify whistle-blowers:

Consider the whistle-blower’s privacy.

Consider the severity of possible reprisal.

Consider the likelihood of reprisal.

Consider the vulnerability of the employee to reprisal.

Consider the form and tone of the disclosure.

Consider the big picture or as the authors say “the totality of the circumstances”.

Overall–the authors conclude that disclosure may be seen as an adverse action against a whistle-blower unless there is a defensible “need to know”. In the case of Belmont Abbey’s email to everyone associated with the college (i.e., faculty, staff and students) there was no need for everyone to know. The intent of the email was “an attempt to shame and ostracize the complainants to produce a chilling effect”. While there is a need to balance employer and employee rights in this sort of situation–it is also critical to maintain clarity as to the goals of different communications about the complaint. In an emotionally difficult and complex situation–it is imperative to think through actions taken (on both sides) carefully.

This is a very thorough treatment of the court decisions and the contradictions and complexities in this area of law. We cannot do justice to all it contains in a single blog post. If you are involved in a whistle-blower case (or might become involved) this is a good article to read for a roadmap through a territory laden with complexity.

Prenkert, JD, Magid, JM, & Fetter-Harrott, A (2013). Retaliatory disclosure: When identifying the complainant is an adverse action. North Carolina Law Review.



Lie with impunity and without detection

Monday, January 28, 2013
posted by Rita Handrich

liar-liarWe’ve written often here about detecting deception. But how about teaching you how to lie effectively? In almost 600 blog posts, it’s a topic we missed. So it’s time we told you the secret to being a terrific liar.

Many of us know someone who is a really good liar. The lies just roll off their tongues effortlessly. it takes an effort to remember not to believe them. They bring truth to  the old adage: “if their lips are moving, they’re probably lying”. With any luck at all, you don’t know many people like this, and you don’t have to spend much time near them. It is toxic to happiness.

But given exposure, it becomes easier to spot the constant stream of lies. We all hate to be tricked and we are so intent on identifying deception in others that even posts a list of ten ways to spot deception. Most of us are really ineffective liars. But some of us are exceptionally skilled at lying–to everyone.

So how do some people really excel at being a liar? Just remember another old adage: “s/he who hesitates is lost”. Liars really are “fast talkers”. New research shows lying can be a learned skill and we are about to teach you how to lie effectively. We know you will not use this power for evil. We first saw this research over at BPS Research Digest thanks to Christian Jarrett. In his post, he debunks many of the commonly accepted paths to detecting deception (such as shifty eyes, fidgeting, eye movements, et cetera) that we have covered at this blog over the years.

In this study, conducted in China, the participants had been given dates, places and other information and were then asked during the experiment if the places, dates, et cetera were relevant to them. Some were told to lie and some were not. That is, to say ‘yes’, the information was relevant to them so the response time to the spoken lie could be measured. What the researchers found, consistent with past research, is that those participants instructed to lie took longer to respond. The theory is that lying results in greater cognitive demand (you have to compose the lie) and so liars take longer to respond.

Next, the researchers educated 2/3 of the participants about the research on response speed when lying. One group was simply told about the research and told to respond faster and the other group was both told about the response speed research and given 360 opportunities to practice their speed. (That’s a lot of practice!) The control group of participants was given none of this information so researchers could assess the impact of no information versus information only versus information plus training/practice.

This time the researchers found that those who were informed but not given practice improved their reaction time when compared to the control group. But those who practiced (360 times!) improved their reaction time significantly over those who were simply informed about the research literature. Practice in responding quickly when you are about to lie really does make you better at lying! The researchers say that their work suggests “performance associated with deception is malleable and could be voluntarily controlled with intention or training”.

The more you practice lying and lying quickly–the better and more believable you become even to the skilled observer. The litigation advocacy takeaway from this research is to make sure you don’t rely on reaction time to know if someone is telling the truth or lying. Much as we would all like a sure formula for detecting deception–what this research tells us is that everyone can become a better liar. All it takes is lots of practice. That also means that all of us can be fooled.

We live in Austin, Texas, home of Lance Armstrong. Recently, we’ve had to return to yet another old adage that seems all too appropriate here: “if it seems too good to be true, it probably is”.

Hu, X., Chen, H., & Fu, G. (2012). A Repeated Lie Becomes a Truth? The Effect of Intentional Control and Training on Deception Frontiers in Psychology, 3 DOI: 10.3389/fpsyg.2012.00488



facebook-graph-searchWe are always on the prowl for tools to help with litigation research. This one took us a little by surprise when we read a piece on it in the Atlantic. While Facebook apparently rolled this service out to be more of an information source, we wonder if they thought about how Graph Search could be used for more nefarious or humiliating purposes. For example, here are some recent graph searches done on Facebook and helpfully posted on Tumblr within 24 hours of Graph Search’s launch.

Current employers of people who like racism.

The spouses of people who like Prostitutes.

The mothers of Jews who like Bacon.

Single women who live nearby and like getting Getting Drunk.

And there are likely a lot more out there without the faces and names blurred for privacy. This new Facebook tool raises two issues for us:

First, please check your Facebook Privacy Settings again! This is something you need to do routinely but especially now! What you assume is private or only available after hours of scrolling through your own ancient history is now accessible and quickly.

Second, this raises many questions about litigation research. Now you can quickly search for attitudes and opinions toward various corporations or litigation issues. How do people feel about your corporate client? About gay marriage? About gun control? About deception? Some of the answers you may already know–because they are controversial and divisive. But the resource may also give you new areas for discovery or for questions in pretrial research.

One could argue that Facebook posts are less “troll-ish” than what you see in the Comments section of mass media news sites. People on Facebook are, after all, posting for their friends (however loosely defined). But we don’t know that for sure. Regardless, this is a sure tool for social media analysts to apply to multiple questions, and a potentially valuable online discovery tool. Your peers have already been at least considering it. As has the mass media.




But if you’re a woman? Not so much. hard to be a womanA new report put out by the American Historical Association shows us that career advancement varies by marital status for males and females. If you’re a man, being married makes you progress through the ranks faster: in 5.9 years rather than 6.4 years. If you are a woman, however, being married meant an average of 7.8 years to move from Associate to Full professor. If you were an unmarried woman, that same transition took an average of 6.7 years.

It is interesting to note that female full professors were 2x more likely than men to list their marital status as divorced or separated. They were also more likely to have never married at all than were their male colleagues. Sometimes it’s hard to be a woman.

Why does this happen? We thought you’d never ask. You can read the full report here but an article in the Atlantic goes through the report in specific detail and it isn’t a pretty picture. There is a hypothesis as to why men get tenure faster than women though and it’s basically about gender roles for women. (Who would have imagined it?!)

Female professors were more likely to have a spouse or partner with a doctoral degree, 54.7 percent to men’s 30.9 percent. Their partners were also more likely to work in academe, 49.6 percent to 36.3 percent.

“I have a theory about this,” said Tara Nummedal, an associate professor of history at Brown University. “It seems pretty clear that smart women are going to find men who are engaged, but I just don’t see that it works the other way.” She added that a female professor with a stay-at-home spouse is quite rare, but often sees men with stay-at-home wives, allowing them to fully commit themselves to their professions.

When Nummedal says women find men who are “engaged”–what she means is, that women with advanced degrees tend to marry men with careers and interests of their own that are not sacrificed for marriage. She goes further by saying:

“When we look at these kinds of issues, whether it is the wage gap or child care, it becomes increasingly clear that there is a fundamental problem with the professional workplace, which is still best structured for single males, or males with wives who support their careers.” 

That may seem a hard conclusion but it is likely one that has women readers agreeing, and it’s well worth reading the entire article yourself. In an era where the number of substantive comments on blogs is way down, this article has almost 194 comments barely 48 hours after posting. They’re worth reading too.

It is an intriguing area. We spend much of our work time looking at bias and how to mitigate or minimize it. Yet, it’s always present. This example of gender bias is something you can only “see” in hindsight as we look back at average progression through the tenure process. But it is a bias likely “felt” by women faculty very, very regularly.  As we are working cases, preparing witnesses, and hearing stories from parties–the importance of perspective is paramount. Just because we can’t “see it” doesn’t mean it isn’t there. Bias is all around us and it works to make us decide differently how justice will work depending on whether you are like me or not like me. The task for effective litigation advocacy is to figure out how to make the client as much “like” the juror as possible through the use of universal values that often show more about who we are than descriptors like skin color, age, religion, sexual orientation, or gender.

Robert B. Townsend (2012). What Makes a Successful Academic Career in History? A Field Report from the Higher Ranks. Perspectives on History. (December)




“During deposition, do not put your fist in your mouth.”

Those mock jurors are filled with good advice. Some of which may seem obvious. Fisting one’s mouth during deposition testimony would certainly not be a concern in most witness preps, but the myriad ways people display nervousness is always eye-opening. There is no one like a mock juror to point out the odd quirks of witnesses.

There are many examples of public figures with foot-in-mouth and you likely don’t need us to point them out to you. But in all the years we’ve been doing pretrial research, I cannot recall a single time before when a mock juror had something like this to say:

I don’t know the point in his deposition that the video was taken from, but he seemed like he was barely hanging in there.  I noticed the voice of the lawyer was real booming and kind of like baritone and it was real aggressive.  I don’t know if he was just being worn down that day, or whether the lawyer woke up on the wrong side of the bed or forgot a coffee in the morning. That questioning seemed pretty brutal and he was reacting by doing a lot of this kind of blinking and contortions.  And kind of like he tried to put his fist in his mouth or something.  It was strange, man.”

And he was right. It was strange. In response, the facilitator encouraged the observation, and commented that it was indeed unusual. There was a bit of anxiety expressed by mock jurors about giving such direct feedback. And then the facilitator commented,

But here’s the thing:  If somebody has an awkward mannerism that interferes with your ability to really pay attention to what they have to say, it’s better that they learn about that so it doesn’t stop you from focusing on the facts. 

Given permission, other jurors stepped forward with additional commentary. Our mock jurors are not always so funny–but sometimes a group is filled with bright and observant people who see the unintentional humor in the nonverbal behavior of anxious deponents trying hard [but failing] to stay cool. The mock juror comments contain witness preparation tips to which we are wise to attend. Frequently, trial counsel become ‘accustomed’ to the idiosyncrasies of witnesses, and overlook aspects of their presentation that startle a jury.

Style is personal: What a witness thinks looks attractive is not necessarily so

He looks pretty greasy in appearance. 

Tell him to use less hair gel. 

This is an often uncomfortable area for attorneys. There are many ways to give feedback to witnesses about their grooming. Perhaps the easiest is to simply say that the audience is a representative sample of the venire and has representative sensibilities. Witnesses should not make fashion statements. Tone it down. That means avoid expensive jewelry, excessive makeup, use minimal hair gel, and leave the Rolex and pearls at home. It isn’t judging, the client will likely see it as helpful advice. And it’s a lot more tactful than our mock juror feedback.

Male witnesses should avoid ‘fashion forward’ colors and fashions

Wow. Nice [lime-colored] suit! He looks like a Mafioso. 

Most of us talk to witnesses about how to dress for trial testimony, but don’t make the point well enough for depositions. Atypical fashion choices often do not work well in terms of juror observations about credibility or professionalism. Other times, such as a case we worked with an older, bow-tie wearing inventor, they help observers construct a quirky and creative persona for the witness. And still other times, like the oil and gas company witnesses who showed up to deposition wearing clean clothes of the style they wear to the field, observers assigned credibility and substance to the witness. If the witness looks markedly different in their trial presentation than in their deposition, they are seen as being less reliable and trustworthy.

Beware the “celebrity look-alike” witness

He reminds me of Donald Rumsfeld. I’m not sure if that’s good or bad. 

Often, we don’t see the resemblance until mock jurors point it out. It doesn’t matter who the witness resembles. What matters is the idiosyncratic association to a juror. Celebrities attract opinions, and no one is universally loved (except maybe Oprah). The best way to minimize interference from this sort of situation is to simply point out the resemblance and the witness can say “I’ve never heard that before” or “I’ve heard that a lot!” and then answer the testimony directly and succinctly. Or a glib comment about what the witnesses’ spouse says about the comparison. The resemblance is brought up and dismissed for a focus on what is indeed relevant.

Small nonverbal behavior can become hugely distracting: 

Why does he lick and bite and chew and purse his lips so much? It’s not good. His lips are just going to be gone by the time he is done testifying.

Yes. And he should keep his tongue in his mouth.

Often, you won’t see this sort of behavior until deposition commences and anxiety rises or fatigue sets in. Many of us, for example, have seen the “Rainman” Bill Gates deposition excerpts.  It can happen to the smartest witnesses. Unusual witness behavior (usually nonverbal) and eccentricities in appearance or attire can distract listeners from the content of the testimony (as can unusual case narratives).

In terms of your efforts to prepare witnesses, what’s important is to think through how any video will be used and who will see it. We tell witnesses to always keep their audience in mind. In deposition this is a real challenge, because their “audience” is never present. The witness’ audience is always the jury. So be unfailingly polite and respond to questions while managing your anxiety off camera.

For example, you can curl your toes in your shoes or tense and then relax your calves. As long as it doesn’t show on camera–and is fairly unobtrusive as well as helpful–use it to help manage your anxiety. But do not rock in your chair. In fact, if the chair rocks or is on wheels–replace it with one that doesn’t so you do not self-soothe or unconsciously display discomfort by rocking or swiveling without realizing what you are doing.

There is a difference between eccentric, quirky, and non-pretentious behaviors and those that are just plain odd. Or as our mock juror would say, “It was strange, man.” Pre-trial research is a good way of figuring out if highly identifiable behavior or attire will be endearing or distracting to jurors. Although let’s just be crystal clear here. We cannot think of any situation where putting your fist in your mouth during testimony is going to endear you to jurors. (In case you were wondering.)


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