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jailcell2You remember the better than average effect. It’s what makes us evaluate ourselves as better than others. I’m a better driver than the average driver. I’m a better swimmer than other non-competitive swimmers. Or even, I’m a better citizen than those who, unlike me, are not in prison. Yes. “I’m in jail. They are not. But, I am more moral, more kind, more self-controlled, more compassionate, more generous, more dependable, more trustworthy, and even more honest. I am not, however, more law-abiding than those who are not in jail. Because nobody’s perfect.” 

Those are the findings of a recent study that presents perhaps the strongest evidence for the better than average effect ever. Even when you are locked up as punishment for a crime, you see yourself as better than other prisoners (even more law-abiding than other prisoners) and better than citizens who are not imprisoned on a number of desirable characteristics. If you want an example, consider the recent lengthy interview with Bernie Madoff. Bernie doesn’t claim to be a great guy, just better than the politicians and greedy co-beneficiaries of his larceny.

British researchers tested 85 convicted inmates (age ranged from 18 to 34 years with an average age of 20.4 years–no information was given on other demographic descriptors) at an English prison. They were imprisoned for a variety of offenses although the majority were crimes against people and 17.7% chose the option “prefer not to say” when asked about their offense. There was ultimately no relationship between offense committed and the inmate scores on the better than average effect.

The inmates were told they were participating in a study of self-perception. They were asked to perform three different tasks: first to rate themselves compared to the average prisoner; second to compare themselves to the average member of the community; and third to complete demographic questionnaires containing demographic information. The characteristics they were asked to rate themselves on during the first and second tasks were: being moral, being kind, being more self-controlled, more law-abiding, more compassionate, more generous, more dependable, more trustworthy and more honest.

Participants rated themselves better than the average prisoner on all of these traits.

Participants rated themselves better than the average community member on all traits except that of being law-abiding. Importantly, while the prisoners did not rate themselves as more law-abiding than the average community member, they rated themselves as equally law-abiding as the average (not imprisoned) community member.

The researchers are taken aback by this last finding and wonder if the findings “raise issues regarding the self-views of other groups who have especially poor skills or detrimental behavior habits”. For example, they ask, “Do students on academic probation believe that they have better than average academic skills? Do serial divorcees think they are better marital partners than the average spouse? Do people who overeat, smoke cigarettes, and fail to exercise think they have average or better than average health habits? If so, the prospects for people in these categories to improve their abilities and characteristics are not promising.”

From a litigation advocacy perspective, this certainly has implications for witness preparation and for how your client presents him or herself. That witness who seems to refuse to take advice might actually think they’re the best witness ever. Sometimes it’s enough to show a witness how they come across on video (so prep them with a camera and show him or her the ways they undermine themselves). If that doesn’t help and the budget permits, holding a focus group– however low-budget might be required– can make a big difference. Our stubbornness usually fades in the face of people mocking us or describing why they dislike us. It is an experience both painful and sobering.

Like the recently viral deposition videos for Justin Bieber demonstrates, most of us are not as smart and clever as we would like to imagine.

Sedikides C, Meek R, Alicke MD, & Taylor S (2014). Behind bars but above the bar: Prisoners consider themselves more prosocial than non-prisoners. The British Journal of Social Psychology PMID: 24359153



While you may think you have heard this line recently, this is really (based on new research) what most of us think about ourselves. It is called the “better than average effect” and it is very persistent. We might smirk at politicians who actually say things like this aloud, but that’s only because we tend to keep those thoughts to ourselves. We (persistently) view ourselves as just better than others, and of course, two new research studies underscore this point.

The first study (Tappin & McKay) recruited 270 adults and asked them to judge the desirability of 30 traits representing agency (e.g., hard-working, knowledgeable, competent), sociability (e.g., cooperative, easy-going, warm) and moral character (e.g., honest, fair and principled). Participants also were asked to indicate how desirable the trait was. how much this specific trait described both the average person and how much it described themselves.

While the agency and sociability traits were rated variably, almost all the participants rated themselves much higher on moral character than they rated the average person.

In an intriguing secondary finding, while the researchers found that overall self-esteem was not related to feelings of superiority, overall self-esteem was related to a sense of moral superiority.

In the second study (Howell & Ratliff), researchers used data from the Project Implicit website where people take various psychological tests that measure unconscious or implicit biases. They focused on people who took tests involving weight biases (these are tests that ask how much you—and the average person—prefer thin people to fat people).

Once again, participants rated themselves as less biased against fat people than the average person was and when given feedback that they were indeed biased against fat people, they were defensive. The more they had rated themselves as unbiased, the more defensive about fat bias feedback they were. They were then asked whether they thought the test was valid—unsurprisingly, they did not think it was valid since it contradicted their self-assessments.

The problem with this belief that we are better than others, both in terms of moral superiority and in our belief that we are less biased than others (which apparently we all share) is that it stops us from honestly assessing ourselves. Therefore, we are prevented from taking action to combat our own prejudices and biases (since we don’t think—or won’t admit—that we have them). Typically, when we hear information about those who are biased or less good than we are, we presume the speaker is talking to “those other people” and tune out.

From a litigation advocacy perspective, these studies have important implications for witness preparation, case narrative, and voir dire. We have discussed the importance of knowing when to raise juror awareness of their own biases and when to stay silent on this blog before. We’ve also posted before on when “playing the race card” works and when it doesn’t work.

This research seems to indicate the importance of using those previously published guidances to direct your decisions about witness preparation, voir dire and case narrative in your specific case. Additionally, it will be important to share “redeeming” information on your client’s involvement in positive activities and your client’s life reflecting the values shared universally by jurors (e.g., family, community, education, volunteerism, et cetera).

Tappin, B., & McKay, R. (2016). The Illusion of Moral Superiority Social Psychological and Personality Science DOI: 10.1177/1948550616673878

Howell JL, & Ratliff KA (2016). Not your average bigot: The better-than-average effect and defensive responding to Implicit Association Test feedback. The British Journal of Social Psychology. PMID: 27709628


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Are women just better for your jury?

Monday, June 27, 2011
posted by Douglas Keene

According to some new research, it certainly is possible. This is one of those research papers with very intriguing but totally unexpected results. And now, they’ve replicated the findings twice according to a recent entry at the Harvard Business Review website.

What the researchers did was to assess intelligence of research subjects and then assigned them randomly to teams. On the teams, subjects were asked to do several tasks (brainstorm, make decisions, solve visual puzzles and solve one complex problem). Based on team performance, they were then assigned ‘team IQs’. The better the team performance, the higher the team IQ.

When the researchers looked at the relationship between ‘team IQ’ and individual members’ IQs, they found something surprising. The ‘team IQ’ had little relationship to the individual IQs of team members.

Further, measures of group satisfaction, group cohesion, and group motivation were also not correlated with the collective team IQ. What was correlated with collective team IQ was (drum roll) the number of women on the team. Teams with more women members tended to score above average on ‘team IQ’. And yes, teams with more men tended to score below average on ‘team IQ’.

That is a pretty stunning finding. The researchers are concerned that we not presume the more women on a small group task, the better. It is possible that the difference is due to “social sensitivity” and not just to gender. And women tend to score higher on measures of social sensitivity than do men. Researcher Anita Woolley describes the group performance in this way:

Many studies have shown that women tend to score higher on tests of social sensitivity than men do. So what is really important is to have people who are high in social sensitivity, whether they are men or women.

What do you hear about great groups? Not that the members are all really smart but that they listen to each other. They share criticism constructively. They have open minds. They’re not autocratic. And in our study we saw pretty clearly that groups that had smart people dominating the conversation were not very intelligent groups.”

So part of what makes a group function better is social sensitivity. And what does that mean for litigation advocacy?

If you want a jury that functions better (works toward a common purpose, collaborates, embraces all opinions) then you want to look for either women or for men who give evidence of social sensitivity.  Since it’s easier to spot women than social sensitivity, you might want to use the gender criterion.  You will likely get more systematic processing (a careful evaluation of the evidence) and a more thoughtful outcome.

But why in the world would you prefer a lower-functioning jury, or one that does not work constructively?  When you need to convince the sub-group of jurors to dig in their heels and not succumb to the wrong-headed views of the majority.  Jury nullification, holdout jurors, and Henry Fonda in 12 Angry Men are all good examples.

If you do not want a well-functioning jury then go for more men, non-traditional women and jurors who are not socially sensitive. You will more likely get processing based on biases (heuristics) and a timely verdict from people who really do not like each other and want to leave the room.

Seriously, the idea of social sensitivity is a really important one for us to consider as we plan for and complete voir dire and jury selection. This is a promising line of research and one we’ll keep a close eye on as it continues.


Woolley AW, Chabris CF, Pentland A, Hashmi N, & Malone TW (2010). Evidence for a collective intelligence factor in the performance of human groups. Science (New York, N.Y.), 330 (6004), 686-8 PMID: 20929725


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Recently, ABC Radio’s The Science Show had a really terrific presentation on the Dunning-Kruger effect. They begin their broadcast with the story of the bank robber who rubbed lemon juice on his face thinking it would make him ‘invisible’ to the bank cameras. He was totally stunned when it didn’t work.

The Dunning-Kruger effect is essentially this: the more incompetent you are, the more inflated your perception of your own talent in that area! And perversely, the competent under-estimated their competency. “The idiots get smart while the smart get modest”.

We see this routinely in pre-trial research when group members take a small bit of knowledge and assume ‘expert status’. If no one questions their knowledge and they present well, a single ‘expert’ can derail your case.  That’s why it’s essential that you teach jurors clearly and thoroughly about the essential details of your case.  In highly technical cases such as patent disputes, it is often the shade-tree mechanics that are certain, while engineers and scientists presume far less.

There is some good news in the Dunning-Kruger effect. You can lessen the impact of the ‘self-appointed expert’ in the jury deliberation room through educating all the jurors. The incompetent do become more aware of their incompetence once they become more competent, but they need to be provided information that will carry them from their initial posture to a more informed position.  They will be equally emphatic either way.  Even if they refuse to consider your evidence other jurors will take it in and have information to discredit the (not-so) ‘expert’.

So if you find yourself feeling totally confident about a case—you may want to back up a bit and see where the narrative holes are for the average listener. Find out what questions your story elicits and then prepare your case accordingly.


stealthy catFrom time to time we post tidbits from research that we have not turned into entire posts but which may (or may not) inform your practice. This is one of those times. Some of the findings are a stretch to accept (and we are not endorsing them by sharing them here, merely raising them for your consideration and discussion).

Stealthily disempower opposing counsel: Race to the courtroom door and open the door for opposing counsel. This simple courtesy (if both you and opposing counsel are male) will diminish opposing counsel’s self-esteem and self belief. Practice saying this with a totally sincere smile: “After you!” (Note: It doesn’t work with women.) The alternate view of this is that an attorney who has the audacity to hold open a door might actually have been raised with good manners. Mom would be proud.

Stop doing that on your smartphone while driving! The Atlantic has an article on the most dangerous things to do on your phone while driving. While taking off or putting on a jacket or pulling up your socks does not make the list, lots of other things do–although the more experienced you are, the less likely you are to have such high risk factors. In light of the “better than average effect”, we know this means most of you will dismiss this information.

Shortage of medical malpractice attorneys: Here’s a powerful statement on the outcome of tort reform. 90% of the people looking for a medical malpractice attorney to take their case will not find one. This statistic disproportionately impacts women, children and the elderly.

Crafty and sly font designers: The Economist has an article on the “science behind fonts and how they make you feel”. For example, Helvetica makes us think of the government, while commonly used news headline fonts seem untrustworthy. This is not good. The article includes specific suggestions for optimizing how the reader feels when reading your text.

Mugshot websites exploit both the guilty and the innocent. Mugshot websites are not associated with law enforcement. They simply take photos from law enforcement websites and post them (and then charge you a fee to have your photo removed). While there are a few states with laws about when mugshots should be removed, mostly it’s an unregulated practice. An arrest (and the accompanying mugshot) does not necessarily reflect a conviction. Or even a justified arrest.

You really should always watch your back! Because sharks like to approach humans from behind. This research refers to sharks that live in the sea and not to excessively competitive, sometimes unethical humans–although the same lesson likely applies.

Zimmerman acquittal and changes in the size of juries. Two states have passed bills to increase the size of juries. Wisconsin now requires 12-person juries for all criminal cases, including misdemeanors. Florida has approved 12-person juries for all cases where the sentence could result in a life sentence and a companion bill (pending in the Florida House of Representatives) would require 12-member juries for all criminal cases.

Are you convinced you’re a multitasker? This infographic will make you stop doing so many things at one time. It’s pretty amazing. No wonder sometimes we feel as though we get nothing done! We are, of course– we’re just not doing any of it as well as we would if our concentration was all on one task.