Archive for June, 2013
Here’s a good one. We’ve written a lot about deception detection and most of us are really bad at it. Honest! We hate to be lied to but it happens repeatedly. So in our unceasing quest to understand the heart of deception detection, a sentence like this one grabs our attention!
“Judges [people who are making judgements] with access to incentive information in addition to behavior achieved almost perfect lie/truth detection.”
Wow. The researchers start with an intriguing assertion about where we should be looking in the hunt for better detection of deception. Our tendency is to watch the person closely to attempt to “see” their efforts to deceive. But we are likely looking in the wrong direction–at least according to these researchers.
“Perhaps such cues are not in the liars’ behavior; perhaps they are in the liars’ circumstances.”
Research has shown that when people are given incentives to lie, they lie. So the researchers developed three separate experiments to test whether knowing the incentive the person has to lie would make observers better able to discriminate between lies and the truth. The researchers developed an incentive to lie that was highly predictive of lying, which made us very curious what it was. Money? Drugs? Sex? An ‘A’ in class? But no. In this research, the ‘incentive’ they provided to research subjects was the opportunity to have a pleasant interaction (yes!) or endure a soul-crushingly boring and monotonous task (no!). In case you were wondering, the boring task was to watch a digital clock face for 15 minutes.
The researchers say the allure of non-verbal behavior is so powerful that we are seduced into thinking it gives us accurate information. By looking we shall see. And we are wrong. As the authors put it: “Cues to truthfulness are not particularly appealing; it is deception cues that captivate the human imagination”. Essentially, if someone is accused of lying, and they might have done it, they are much more likely to have actually lied if they had an incentive to do it.
Jurors– like all of us– are forever pondering motivation as a way of understanding witnesses, parties, and even lawyers. Ultimately, this affirms what I think we mostly believed already. At trial, if motivation information about controversial testimony has credibility at its core, you need to know that jurors are looking for motives. And if you don’t provide them a clear ‘incentive map’, you are deferring to whatever map they may build for themselves. And that could be a wild departure from the truth. The attorney who raises the question of incentive may be seen as manipulative if the witness comes across as nice or generally credible. But with less clear testimony or questionable witnesses, the jury may see you as echoing their concerns. Because they think about incentive. They care about motive.
We often hear jurors say “follow the money” and sometimes the attorneys say it, too. Simply, jurors readily see money as a powerful incentive to lie. There are many other powerful incentives to lie. Loss of status. Embarrassment. Loss of romantic partner. Loss of reputation or income. Far more powerful than wanting to avoid boredom.
Incorporating ‘motives’ into your case narrative could be a powerful persuader for some jurors. Jurors want to understand the ‘why’ behind actions resulting in a lawsuit and they are vigilant in looking for clues to explain behavior. Incentives to lie could help them explain the ‘why’ behind a defendant’s or witnesses statements.
Bond, C., Howard, A., Hutchison, J., & Masip, J. (2013). Overlooking the Obvious: Incentives to Lie Basic and Applied Social Psychology, 35 (2), 212-221 DOI: 10.1080/01973533.2013.764302
Most of us have heard the advice to either “follow your head” or to “follow your heart”. There are times when we have chosen one direction only to later realize that we would have done better to take the other path. New research shows we all have tendencies to make decisions based on either our hearts or our heads. As you might expect, women are more commonly driven by heart [up to 2/3] and men are more commonly driven by head [again, up to 2/3]–but gender does not entirely predict which decision-making method you tend to employ.
We don’t merely express ourselves in metaphors. Research has shown that we also think in metaphors. Researchers explored the differences between those who say they follow their heads and those who say they follow their hearts with eight different studies–including one which followed up after a year to see if the heart/head self-description remained stable. It did. The researchers believe this way of perceiving oneself is a trait that remains consistent over time. Rather than going through all 8 studies with you, we are going to list the differences the researchers found.
I follow my heart:
A preference for intuitive/experiential thinking.
A valuing of emotions and greater attention paid to emotions.
Self describe as more emotional and interpersonally warm.
Self describe as more agreeable.
Have lower amount of general knowledge [and have lower GPAs than head followers].
Solve moral dilemmas emotionally and tend to have higher levels of negative daily emotions in response to high-stress days.
I follow my head:
A preference for rational thinking and intellectual challenges.
Self describe as more logical and interpersonally cold (i.e., as having less successful and antagonistic relationships with others).
Self describe as less agreeable.
Have higher amount of general knowledge [and have higher GPAs than heart followers].
Solve moral dilemmas rationally and tend to react more aggressively to others in response to [what they perceive as] provocation.
You can see with a quick review of the findings from 8 different experiments–the researchers found measurable differences between those that said they followed their head and those that said they followed their hearts. As we look at this, we think about how ‘head’ or ‘heart’ jurors might hear evidence differently, or evaluate testimony through these very different filters. Sometimes heart. Sometimes head. You need to sort through which themes play to which individuals. Do you want heads or hearts deliberating your next case?
Fetterman AK, & Robinson MD (2013). Do You Use Your Head or Follow Your Heart? Self-Location Predicts Personality, Emotion, Decision Making, and Performance. Journal of Personality and Social Psychology PMID: 23773045
The “times they are a changin”. Being culturally competent is no longer just a quaint, politically correct idea. It can make the difference between success and failure.
The new issue of The Jury Expert has an article from Michelle Ramos-Burkhart on cultural competency and your law practice’s financial bottom line. In essence, she says our world and our country are changing demographically. And our litigation practices often have global implications rather than local or national. Our ability to communicate well (without uninformed and unintended insult to our international clients, witnesses, and jurors) is essential to representing and retaining clients. A lack of cultural competency also puts us at risk of losing our culturally diverse employees as well as losing our employees who value diversity.
We began doing IP work about 15 years ago. At that time, foreign corporations were not the norm for our practice. But that soon changed. Now our patent and complex commercial cases often involve at least one non-US party and sometimes numerous. We find ourselves not only listening for our mock juror biases against “them” but also paying attention to the unique cultural experiences and expectations from our clients that add dimensions to the trial story that are interesting and compelling. Sometimes the reactions are provincial, other times they are somewhat flattered to have an impact on global business.
While in the past there has been predictable resistance to seeing foreign companies or entities as having equal footing in the US courts, jurors appear to be catching on to the new normal. And they understand that they want the same treatment for US companies when they are doing business overseas. The anti-foreign bias is strongest in cases where the country of origin is seen as not treating US companies fairly. In the past year, we’ve heard the following comments from mock jurors in cases with an international party.
“He seems very aloof and precise. Unemotional. Perhaps it’s a cultural thing since he was born in South Africa.”
“Asians are always knocking off American ideas. You can’t trust them. It’s part of why our economy is in trouble.”
“If the parties’ national affiliation were reversed, I would say this is typical since the Plaintiff’s country’s citizens rip us off all the time. But these Defendants are from Canada. It’s confusing to me. I wish it was the other way around so I’d know how to make sense of it.”
“None of the Defendants speak English. How am I supposed to assess their honesty when they don’t seem knowledgeable?”
Jurors are sometimes aware of their biases and other times blissfully ignorant of them. Mock juror reactions to the case parties often lead to frank conversations about culture, cultural stereotypes, and cultural biases with our clients (the attorneys) and their clients (the international party’s representative). In those conversations, we model a curious and respectful dialogue to facilitate communication and comfort with our differences.
As we facilitate juror discussions during research, we pay close attention to assumptions and biases and test different methods of sharing information to see what helps jurors think with care. What helps them move beyond reliance on stereotypes and assumptions?
As we carefully analyze the data gathered from those pretrial research exercises, we look at how biases color the case narrative and influence the outcome.
As you plan the case narrative (the story of why it happened, not just how it happened), pay special attention to telling the story in a way that elicits useful values and perspectives. Do you want the jurors to identify with the foreign entity or party? Do you want to help jurors see the party as “like them” rather than as “foreigners who are not to be trusted”? When we are working on behalf of a foreign entity, we want jurors to continue to see our clients as international but we want to minimize their reaction to our clients as “them” and have them be seen more as “like us”.
One example of this involves Chinese clients. I’ve worked on several cases for entities with Chinese witnesses or for Chinese companies, and they have some interesting twists.
- Language. Mandarin (the official language of Mainland China as well as Taiwan) is structurally different from English or European languages, and it shows up in how native Mandarin-speakers speak English. A lot of Mandarin grammar is contextual. There are no plurals–you can tell whether it should be plural by the other words spoken. Therefore, Mandarin speakers frequently struggle with plural forms in English. The use of tenses in English is very odd to Mandarin speakers, who tell from the context of the sentence whether it is in the present, past or future, and struggle with changing words just to reflect something that is already obvious in a sentence.
- Which China? If we are working for a Taiwanese client, the emphasis is on their role as a key ally to the US in Asia, how they have mandatory military service, and how they pull their weight. If our clients are naturalized American citizens from China, their story includes their goal of coming to America, the struggle they had growing up under very difficult circumstances, and an effort to get them to be less stoic than their history and culture demand.
- Documents. Everything is more difficult if you can’t appreciate the nuances of language. We recently had a Taiwanese witness who was accused of being deliberately misleading in her deposition and even her trial testimony because she testified inconsistently with the document contents, or she couldn’t recall what the document said. All of the documents were written in English, because they were to be filed here in the US. She was a good business person but spoke no English, and hadn’t committed to memory every word on every document. And under stress, she made mistakes. She conducted the better part of a whole deposition under an incorrect assumption about when a document was created, because the date on the document (which referred to something else) was perceived as being the signature date.
In closing, we planned to talk about that confusion (the case settled the day beforehand), and how even the best intended person can fall victim of translation error and her effort to try to comply with questions deserves respect. We would have shown a Mandarin-language document on the screen as we talked about how hard it is to reconstruct a document from our memory, even if we’ve seen it a good number of times. The attorney planned to point to the screen and pose the question
“How many of us would be able to handle close questioning about this document? Would we deny having seen it? Would we say that we disagree with it? What if we couldn’t translate it, or didn’t have the translation handy?”
The document on the screen is then disclosed as a Mandarin translation of The Declaration of Independence. And on closer scrutiny, the Mandarin version is only translatable to the jury where it shows the date in western numerals: July 4, 1776.
As we approach voir dire, we focus on values and attitudes and beliefs rather than demographics of empaneled potential jurors. It isn’t about de-selecting white males or African-American women. It’s about who shows us through their attitudes, values, beliefs and group affiliations that they can be open to our story and who hints (based on those same variables) they will not be open to understanding the story that is ours to tell.
In truth, it isn’t a lot different from what we do in every case. There is always bias. It’s just a bit more complicated in international cases. And that is why the idea that cultural competency is essential appeals to us. It isn’t just PC anymore. It’s about your financial bottom line.
Ramos-Burkhart, M. (2013). Do you see what I see? How lack of cultural competency may be affecting your bottom line. The Jury Expert (May)
Most of us can point to at least one bad decision we’ve made quickly. [Some of us should probably point to them a little more often. And maybe in advance, if that’s possible.] Often we have many excuses: we were young, we were intoxicated, we were pressured to choose too fast, and so on. But what do observers conclude about our moral character when we make a bad decision and do it quickly? It isn’t good–as you might expect.
We’ve written often about the fundamental attribution error here. That is the tendency for us to see our personal behavior as the result of situational factors (“I have good reasons for what I do”) and to see the behavior of others as reflecting their moral character (“You’re just a bad person”). New research supports the idea that we judge others harshly for making bad (“immoral”) decisions quickly and we judge others positively for making good (“moral”) decisions quickly. Why? The speed with which the decisions were made (quickly) is assumed to reflect certainty in the decision. Three studies were completed to support the hypotheses.
In the first study, researchers asked 119 participants (either undergrads at Berkeley or community members) to read vignettes about two men (Justin and Nate) who found wallets filled with cash in supermarket parking lots. Justin decided quickly what to do and Nate decided after “long and careful deliberation”. “Participants assigned to the moral condition learned both men ‘did not steal the money but instead left the wallet with customer service’. Those in the immoral condition learned instead that both men ‘pocketed the money and drove off’.
Quick Justin was seen more positively than slow Nate. In the immoral condition (where both Nate and Justin took the money), quick Justin was seen more negatively than slow Nate. Conversely, in the moral condition (where both Nate and Justin returned the money to customer service) quick Justin was seen more positively than slow Nate.
In the second study, 553 Berkeley undergrads read the story of Pamela who worked hard to provide for her two children. Her employer was a wealthy bachelor who seemed especially interested in Pamela’s son and would take him on outings and buy him expensive gifts. Pamela was suspicious of this “obsessive” interest although she had no proof her employer’s interest in her son was unsavory. Her employer told Pamela he wished to adopt her son and that if she agreed to this arrangement, he would triple her salary. Pamela was described as taking 3 seconds (quick) or 3 days (slow) to make her decision. Participants in the immoral condition were told she accepted the offer (quickly or slowly) while those in the moral condition were told she rejected the offer (again, either quickly or slowly).
“When Pamela decided to sell her children, people judged her character more negatively when she decided quickly than when she decided slowly. In contrast, when Pamela refused the offer, she was judged (marginally) more positively when she decided quickly than when she decided slowly.”
A third study was completed using 181 Cornell undergraduates and replicating a well-known 2000 study. Participants read the story of a hospital director “who had to decide whether to perform an expensive surgery to save the life of Johnny, a sick child in need of an organ transplant, or to use the money to buy new equipment for the hospital”. In the original 2000 study (Tetlock, et al.), the longer the hospital director deliberated, the more negatively he was seen.
The 2012 replication found a pattern similar to Experiments 1 and 2 in the current study. Decision speed was important in whether the hospital director was rated negatively or positively. A variation of the experiment was completed where two hospital directors decided independently whether or not to save Johnny’s life. One director was slow and the other fast. A quick decision to save the child resulted in a more positive evaluation, as found in both 2000 and the initial 2012 experiments.
However, as found in Experiments 1 and 2 from these researchers, a quick decision to let Johnny die led to a more negative character evaluation than a slow decision to let Johnny die.
These are intriguing studies from a litigation advocacy perspective as bad choices are often at the heart of lawsuit narratives. Depending on your role in the case, you may want to highlight the quickness with which a party made a decision or the careful consideration they gave to an issue they had not thought through before and therefore had to decide with care and thorough consideration.
My client made a quick decision in this case because there really was not another choice. S/he simply followed personal values and did the right thing.
My client made a careful, thoughtful decision because this was an issue s/he had never encountered before. When faced with unfamiliar decisions like this one, a good leader does not make a knee-jerk and impulsive choice, but considers all sides of the issue carefully.
My client made a quick decision and it was the wrong one. S/he was under pressure to finish the job and did not consider all the implications of this choice. S/he has put safeguards in place so that this does not happen again.
My client carefully considered all the options in this choice and yet, was given bad information that rendered the decision invalid. S/he does not blame the provider of the bad information since one’s choices are ultimately one’s own. S/he made a mistake and has put safeguards in place so it will not happen again.
With a good choice, you want to highlight quick decision-making driven by values and mitigate the negative impact of a slow decision. With a bad choice, you want your client to take responsibility, you want to emphasize situational factors in the poor choice, and you want to let jurors know it won’t happen again.
Another important application of these research results is with regard to witness testimony. Jurors usually interpret ‘excessive’ pauses as a sign that someone is concocting an answer, rather than answering truthfully. We typically get observations about how “the truth doesn’t take that long to recall.” If a witness seems to be answering impulsively (such as cutting off the questioner) during witness preparation, we are quick to caution them. But for overall credibility, excessive pauses can be devastating. We have all heard the old saw that “the first reaction is the most genuine”, which is not always true. But you have to know that it will be viewed that way. If a witness stalls out after hearing a difficult question, the jury is going to think they are afraid of the truth and their subsequent response is going to be discounted or rejected.
Critcher, C., Inbar, Y., & Pizarro, D. (2012). How Quick Decisions Illuminate Moral Character. Social Psychological and Personality Science, 4 (3), 308-315 DOI: 10.1177/1948550612457688
Despite the admiration we often have for whistle-blowers and the generous adjectives we might use to describe them (e.g., courageous, principled, moral) they almost uniformly have a very tough time. They are also seen as disloyal and mean-spirited by members of their former group and typically not revered as having the best interests of the group at heart (contrary to our earlier post). The whistle-blower has aired dirty laundry publicly and thus has betrayed the group and no longer belongs. They may be subjected to retaliation, and can face future job problems when they seek subsequent employment. The Borowitz Report recently featured a (humorous) piece on how the NSA has reacted to their current whistleblower. We automatically categorize the whistleblower as a negative, treacherous, disloyal, disgruntled group member.
New research focuses on the reality that, for some whistle-blowers, there is a principled and thoughtful choice behind airing that dirty laundry and then remaining within the organization. Remember that billboard that popped up during the 2008 Presidential elections? “Dissent does not equal disloyalty.” That’s from a longer Edward R. Murrow quote:
“We must not confuse dissent with disloyalty. When the loyal opposition dies, I think the soul of America dies with it.”
It is painfully easy for us to view anyone who disagrees with us as plainly and simply wrong. When they are also members of a group we belong to and hold dear, it is easy to dismiss them as “uncivil” or “immature”. Even the “old hippies” among us who once valued the idea of questioning the status quo can fall into this trap. But new research illustrates the error in our ways when we assume mal-intent from publicly declared disagreement.
The “highly conscientious” group member is the focus of this research. These are the people who are more likely to work hard to achieve their goals [both personally and on behalf of their organization] and often have organizational abilities that help them succeed. In other words, these are the people actually doing the work to help the organization survive and thrive. Why, you might wonder, would those “organizational darlings” blow the whistle on negative practices or leadership failures in a group they so vigorously support?
The very idea can be surprising to us since we often equate conscientiousness with conformity. However, there is no scientific basis for equating the two. Conscientiousness is much more related to performance and our pursuit of goals than it is to conformity. And sometimes the conscientiousness is a commitment to principles that the hard worker can feel were betrayed by the conduct about which they blow the whistle. The devotion of ‘true believers’ can cut both ways.
These researchers focus on the highly conscientious person and opine that conscientiousness can go in one of two directions:
they may pursue goals which support the status quo and result in ongoing conformity, or
they may pursue goals that support social changes and thus result in dissent.
The latter would be the “rebels with a cause” that are the topic of this research. The issue, as framed by the researchers, is whether the highly conscientious person is thinking abstractly or concretely about the goal. The authors rely on “construal theory”, the explanation for which gets pretty complicated. You might think of it as seeing the forest (high-level or abstract) or the trees (low-level or concrete). Loyalty to principles or loyalty to the group. Robin Hanson’s blog Overcoming Bias has a lot about construal theory with an emphasis on our sense that a thing is either “near” to us (and therefore more concrete) or “far” from us (and therefore more abstract).
According to the authors, “low-level construal leads people to make choices on the basis of more concrete and immediate considerations, whereas high-level construal causes people to make decisions in light of broader and longer-term concerns”.
The findings from two separate studies supported the researcher’s hypotheses.
Highly conscientious group members with high-level construal (e.g., abstract or “far”) were more willing to articulate (in Study 1) and to express (in Study 2) criticism of the group, even when others did not.
In other words, they were more likely to not only formulate critical positions but more willing to also express them even when they knew other group members would not want to hear it.
The authors believe that high-level construal orients you toward longer-term change while low-level construal orients you toward short-term stability. And while many of us laud the benefits of change, we typically praise the impact of change after the fact and not while we are in the midst of change (which is often a rocky and contentious process). And the changes are often lauded by those not directly affected by them, such as people who want a corporate policy changed, rather than the people who are responsible for actually doing the changing. From our perspective, this is a good lesson. It may be that while highly conscientious group members are ‘loyal’ to the institution/organization, they are even more loyal to higher principles.
When you are in the midst of disagreement with a highly conscientious group member or employee–consider whether their position is advocating change and what long-term goal would result from that advocacy.
Is it better communication? Increased transparency? Becoming more relevant to a changing constituency?
Or, if you are caught in a conflict with a witness on cross-examination, you might consider whether you can frame the question not just in terms of the facts, but in terms of values considerations that jurors would evaluate clearly.
Mr. Johnson, don’t you think that Acme Corp. has a duty to repair the neighborhood streets damaged by your trucks?
Mr. Johnson, do you think BP has an obligation to compensate people on the Gulf Coast for harm done to their beaches and to their lives?
The hypothetical above would surely draw an objection, but it also plants in the minds of jurors the idea of moral obligation, a framework for decision-making that goes beyond the concrete and immediate (and of course, forms the basis for the objection). If you don’t want to draw the objection, save it for closing argument. But giving people the chance to make the world a better place by invoking higher-level principles can add perspective to their analysis.
Going back to when you are in the midst of disagreement with a highly conscientious group member, work to switch your own construal level (aka perspective) from near (the heat of the moment) to far (the goal of the dissent) and allow yourself to see the forest rather than the individual trees.
Is the idea a good one? Is the goal a good one? Is the goal one with which you can agree?
Packer, D., Fujita, K., & Herman, S. (2013). Rebels with a cause: A goal conflict approach to understanding when conscientious people dissent. Journal of Experimental Social Psychology DOI: 10.1016/j.jesp.2013.05.001