ABA Journal Blawg 100!
We Participate In:
Search results
Maybe you really should use PowerPoint in court!
PowerPoint is often maligned but new research shows a courtroom PowerPoint effect that is nothing to dismiss! When Plaintiff attorneys used PowerPoint slides, mock jurors thought the Defendant was more liable for the alleged behavior. When the Defense used PowerPoint slides, the Defendant was less liable in the eyes of the mock jurors. Seriously? Because of PowerPoint slides? Let’s look at what they did.
Researchers wanted to examine whether “PowerPoint slides may influence mock juror decision making in a civil case”. They predicted that “when either party used PowerPoint, liability judgments would be more favorable to that party”. They also examined what happened when only one side used PowerPoint. They conducted three separate studies, each with close to 200 participants.
We also need to mention the design of the PowerPoint slides used in this study. The researchers avoided “bells and whistles” and instead focused on displaying “graphs and charts to explain statistical evidence and modest animations to enhance visual contrasts”. They did not want the slides to entertain particularly–but to educate.
The study used actual case facts in which a railroad company was sued for racial discrimination by African-American employees. Participants watched one of four versions of trial videotapes. The videotapes contained only opening statements by Plaintiff and Defense attorneys. Each side was allowed 27 minutes, so the entire video was 54 minutes long. The researchers ultimately report that “lawyers’ use of PowerPoint can effect legal decision makers’ liability judgments”.
Study 1: 192 undergraduate students enrolled at two different universities were recruited (56.1% female, 59.9% White, 13.5% Asian-American, 10.9% African-American, 8.3% Hispanic-American, and 7.4% “other or missing”).
Study 2A: 180 participants enrolled in a US university as undergraduates were recruited (56.7% female, 28.9% White, 40% Asian-American, 5% African-American, and 26.1% Hispanic-American). The experimental design involved comparing 1) whether the Plaintiff used Powerpoint or not, and 2) whether the Plaintiff went first, or the Defendant. Before we go farther, we know as well as many of you that testing for an ‘order effect’ in court makes little sense legally since you start the trial with the Plaintiff opening, not a coin toss. But hey, order effects are real, so it’s good to test them.
Study 2B: 189 undergraduate university students were recruited (59.2% female, 28.6% White, 36% Asian-American, 6.9% African-American, 24.3% Hispanic-American and 4% “other or missing”). The experimental design was also a 2×2, with 1) Defense using PowerPoint or not, and 2) order of presentation– either Plaintiff first or Defense first.
When Plaintiffs used PowerPoint along with their spoken presentations, mock jurors held the Defendant company more responsible for racially discriminating against African-American employees. Conversely, when the Defense used PowerPoint slides, mock jurors saw the Defendant company as less responsible for the alleged racial discrimination. In other words, if you use PowerPoint, it strengthens whatever side of the case you represent.
On Study 1, although not in Study 2A or 2B (where PowerPoint use was manipulated by one party only), if only one party (either Plaintiff or Defense) uses PowerPoint, the effect was more extreme.
In Study 1, mock jurors recalled more information when the Defense attorney’s used PowerPoint. Defense use of PowerPoint resulted in mock juror’s more positive perceptions of the Defense attorney. In Study 2A and 2B, when an attorney used PowerPoint, participants recalled their evidence better and thought more highly of the attorney’s using PowerPoint.
Using PowerPoint also resulted in jurors endorsing the attorney’s case narrative and holding the Defendant more responsible (when the Plaintiff used PowerPoint) or less responsible (when the Defense used PowerPoint).
The researchers say that using PowerPoint helps jurors understand trial information better. At the very least, it affirms that it’s reasonable to call PowerPoint (and Keynote, and others) “Presentation Software”. It helps you construct a more effective presentation. The research on learning styles and recall of presented material makes this a pretty easy call. If you learn via multi-sensory approaches (seeing as well as hearing), your learning is going to be greater. There are ways of screwing it up (mostly by overwhelming jurors with graphic complexity and sensory overload) that can actually diminish recall and persuasion. So, use presentation software. Correctly.
This is a powerful initial foray into the role of PowerPoint in visual persuasion for the courtroom. While, as the authors say, we need more of this sort of controlled research, this information would say you likely need to use some visuals along with your verbal presentation. If you don’t, both you and your client (at least according to this study) will do less well than the opposition.
Park, J., & Feigenson, N. (2013). Effects of a Visual Technology on Mock Juror Decision Making. Applied Cognitive Psychology, 27 (2), 235-246 DOI: 10.1002/acp.2900
For more information about research on multi-sensory learning and how to ‘get it right’, We recommend the following books:
Mayer, Richard E. Multimedia Learning. 2001 Cambridge University Press, New York, NY
Atkinson, Cliff. Beyond Bullet Points. 2005 Microsoft Press, Redmond, WA
Chosen, Stephen M. Clear and to the Point. 2007 Oxford Univ. Press, New York, NY
Religion, ethnicity and Asian-American’s voting patterns
We’ve written a few times about new research on Asian-Americans and so were eager to see a new chapter in a book on ethnic pluralism and its role in the 2008 election. It’s an intriguing treatise on the amazing diversity in the Asian-American community (composed of at least nine ethnic groups and 11 different religious affiliations).
“Asian-American” doesn’t mean one thing. It means many things. According to the chapter authors (So Young Kim and Russell Jeung), Asian-Americans are unique among American ethnic groups in that they do not predictably act as either a racial bloc or a religious bloc. Asian-Americans do not share a religious faith and 27% do not follow any religion per se. And despite their high levels of education and income–they are not particularly politically involved. In fact, Asian-Americans may have lower levels of voting than other ethnic groups (although it is hypothesized this could shift as the various Asian-American groups log in more time in the US and begin establishing a stronger pan-ethnic identity).
What is especially interesting to us is that the authors found patterns in voting among Asian-Americans during the 2008 Presidential elections. Overall, Asian-Americans were more likely to support Barack Obama during the 2008 elections than Caucasian voters with similar incomes and religious affiliations. However, within the Asian-American group, there were subgroup patterns that call out for recognition:
Asian-Americans who were agnostic, atheist, Hindu or Muslim were more likely to vote for Barack Obama (and were also reportedly more liberal).
Asian-Americans who were Protestant and Catholic and more conservative also supported Obama. (You weren’t expecting that were you?)
Finally, Vietnamese-Americans (many of whom are Catholic) were more likely to vote for John McCain.
Another important descriptor the authors use is disenfranchised. Many Asian-Americans feel they are not valued (and truly, they have not been studied to the extent of other ethnic groups in this country) and this is likely an important variable to consider in terms of identification with your case.
Religion, Race, and Barack Obama’s New Democratic Pluralism is a data-dense book with an emphasis on political shifts and ideology based on ethnicity (featuring chapters on mainline Protestants, Evangelicals, Catholics, Jews, Muslims, Seculars, Women, African-Americans, Latinos, and Asian-Americans). What is most interesting from a litigation advocacy perspective is that this chapter shows us that we know a lot less than most of us think we know about Asian-Americans. There is not a blanket description of the Asian-American just as there is not a blanket description of American women, African-Americans, American Muslims or Jews, disabled people or other identifiable groups.
It’s a terrific reminder to not assume and to maintain curiosity about those different than us. They can often surprise you.
So Young Kim, Russell Jeung. 2012. Asian Americans, Religion and the 2008 Elections (Chapter 11). In Religion, Race, and Barack Obama’s New Democratic Pluralism, Gastón Espinosa, Ed. Publisher: Routledge.
Proof we don’t hire the most qualified candidate!
Here’s one of those strange coincidences where realities collide. It leaves you to wonder how to reconcile them. The Pew Research Center has just released a report on Asian Americans:
“Asian Americans are the highest-income, best-educated and fastest-growing racial group in the United States. They are more satisfied than the general public with their lives, finances and the direction of the country, and they place more value than other Americans do on marriage, parenthood, hard work and career success, according to a comprehensive new nationwide survey by the Pew Research Center.”
So we would expect these Americans would be in high demand by employers–courted and cajoled into accepting employment offers from multiple companies. Right? Wrong. Here’s where the collision occurs.
The Economic Policy Institute (EPI) also recently released a new report on unemployment among Asian Americans “during and after the Great Recession” (2007-2010). Their report is summarized at the Sociological Images Website:
“It is true that Asian Americans have generally had lower unemployment rates than other racial/ethnic groups, due to their overall higher educational levels. However, if we look within educational levels beyond a high school diploma, Asian Americans have higher unemployment rates than comparable Whites, with the gap widest for those with bachelor’s degrees.”
A recent EPI update shows the pattern has not changed–with Asian Americans faring the worst of any group in the United States in terms of long-term unemployment.
“Asian Americans still had the highest share of unemployed workers who were unemployed long term (for more than half a year) when compared with white, black, and Hispanic workers—despite having higher education levels than these other racial/ethnic groups. In addition, highly educated Asian Americans continued to have a higher overall unemployment rate than similarly educated whites.”
As shown in the graph below, 48.7% of unemployed Asian-Americans had been out of a job for 27 weeks or more. Blacks are next (48%), and followed by Whites (42.7%).
It’s an interesting contradiction–likely mirroring covert national bias regarding Asian-Americans. We’ve been writing about this suppressed bias recently as it’s come up in pretrial research with either Asian parties and also in cases where Asian workers were involved peripherally. The level of distrust and animosity is surprising considering the overt stereotype of Asian-Americans as “model minorities”.
An article in the Atlantic offers a comment and three explanations for the long-term unemployment of Asian-Americans:
“What makes the situation even odder is the more educated Asians are, the more they fall behind whites. Asians with just a high school diploma were more likely to be employed than whites; however, Asians with a bachelor’s degree or higher more likely to be unemployed.
The report’s author offers up three explanations for the mystery. First, there’s the California problem: About a third of all Asian Americans live in the Golden State, which has disproportionately high joblessness, both short term and long-term. Second, there’s immigrant bias: Perhaps employers prefer to hire U.S.-born workers. Third, there’s racial bias. If Asians had the same long-term unemployment as their equally-educated white peers, their long-term jobless rate would be 8.1 percentage points lower.”
Like other biases, this one results in unfair treatment in hiring and (as we’ve seen) in mocking wisecracks by mock jurors. When we question the allegedly humorous comments in our pretrial research, the jurors quickly assure that bias is not a factor. Yet here we see it pretty clearly: the most educated, ambitious and up-beat citizens of this country are also among the most long-term unemployed.
Pay attention to your own tendencies, if any, to reject Asian American job candidates. And be attuned to this as a latent issue among jurors. Jurors are prone to making judgments that don’t seem unreasonable to them until the lights come on. It’s your job to be the beacon.
Asian stereotypes: Furtive, sneaky, dishonest and trying to one-up Americans
Recently, a client sent us a link to a political ad run by Texan US Senate candidate David Dewhurst. The ad essentially attacks Dewhurst’s opponent (Ted Cruz, an attorney) for representing a Chinese company in an intellectual property lawsuit with an American company. Ted Cruz is painted as a “China sympathizer” who is guilty of helping the Chinese steal American jobs. The ad has gotten heavy airplay all over Texas, and the coverage of the dispute related to it has raised the prominence of the controversy even more.
It made us think about several recent projects where bias against Asians was expressed in a joking fashion by various mock jurors. But it was clear that the joking tone was a thin veil for attitudes that were not at all funny. All of the cases involved intellectual property (patents or trade secrets) and the accusations that the Asian entity had reverse-engineered the American IP unfairly. The merits of the cases are one level of analysis, but more prominent was the readiness of most jurors to find guilty conduct in these Asian parties in a way that speaks of confirmation bias.
As many readers of our blog are aware, confirmation bias is the tendency we all have of seeing the world as we believe it to be. People remember evidence that confirms their attitudes and biases, and have weaker recall for contradictory points. Someone with such a bias may say “Because of [X fact], I think the Defendant should pay the Plaintiff”, but you are able to rebut their reliance on [X fact] absolutely. They reply not by changing their conclusion, but by changing their justifying argument. Often, this pattern is an indication of confirmation bias, not of the power of the evidence itself. When I was in graduate school, we referred to this as “drawing the curve before you plot the data”.
In one project, the plaintiff was a very successful American businessman with a Middle Eastern last name, and was suing a major retailer, alleging that they knowingly purchasing and sold black market counterfeit products manufactured in Asia. Given the last name of the plaintiff, we were expecting racism. And we saw it. Interestingly, the racist comments were directed at Asian countries who were (in the minds of jurors) counterfeiting the [American] products and profiting off the backs of a good [American] product name. Slurs were directed (all in a seemingly joking fashion) at China, Korea and Asian countries in general. When questioned about these comments and the basis for them, our mock jurors denied the importance of the comments and then made additional racist comments–again, veiled as jokes.
In another case, a Chinese scientist invited himself to an American university to ‘study’ with an established inventor. While there, the Chinese scientist copied documents and beat the American inventor to the US patent office by filing a patent through his Chinese company with stolen documents. The Chinese scientist later wrote a letter to the American inventor apologizing for his own poor manners and ethics. Again, we heard slurs and stereotypes about Asians being not trustworthy, sneaky, ethically challenged and more. And again, there was no explanation for this from the mock jurors other than additional “joking” comments.
Since we are based in Texas, it might be tempting to say “Wow, those Texas rednecks are pretty closed-minded”. [We would then encourage you to consider the bias implicit in that belief…] But in fact, we conduct research all over the country, and IP cases from coast to coast. The same pattern applies all over. Ethnocentrism is thriving in every community, as it has forever. Globalization is only a good thing if you, your family, and your friends all have the jobs they want.
As we have discussed in other posts about racism and ethnocentrism, people usually deny racial bias, but if the question becomes one of “What do you think your neighbors and co-workers would think about this [racially loaded] issue?”, the jurors often warn us that the minority party is facing a difficult burden due to race. Obviously, such a person doesn’t want to be seen as racist, but doesn’t mind us knowing that their best friends are racist. Not too wily.
Despite recent surveys depicting a positive sense of each other by American and Chinese citizens, we have been seeing a different picture from our American mock jurors for the past few years.
Perhaps it’s due to the flagging economy and perceptions of China overtaking the US as a global superpower.
Perhaps it’s fear of the Asian intelligence that apparently leads to discrimination against Asians in our educational institutions.
Perhaps it’s the leftover stereotypes from 1960’s James Bond movies portraying Asian men as super-villains.
Perhaps it is a combination of all those factors.
Whatever the reason, we are regularly reminded of the need to carefully prepare Asian and Asian-American witnesses for testimony in American courtrooms, and to carefully prepare trial teams on strategies for dealing with overt and covert anti-Asian bias. Just as we carefully prepare other “different” witnesses–whether they be atheists, homosexuals, powerful women, African Americans or Muslims. We focus on clarity of communication (using translators if necessary) and how to introduce the witnesses to the jury so they are seen as trustworthy and credible. Without making that connection, their testimony is corrupted by bias that can creep in and define the witness.
It appears that when bias against Asians is used in high-profile political campaigns, it has achieved mainstream acceptance, and we should all be paying close attention. Running the anti-Ted Cruz ad is estimated to have cost more than $600,000 and we’re guessing money like that isn’t thrown around “just in case” there are a few voters out there who are biased against Asians.
Everyday racism at work: Hope for African American Women?
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
Recent Comments