So it’s been a while since we’ve revisited this category of posts. We know you’ve missed them, so here’s a new one. Apologies from men in the workplace are less expected and therefore more effective. Oh, good grief. Extra credit for conjuring up some manners?
Researchers review prior findings on apology: women apologize more and we tend to take their apologies for granted; we don’t care about apologies from our subordinates as much as apologies from our managers; and so on.
Research participants were “asked to imagine a specific situation in which a person [David or Rachel] who scheduled a work meeting with them did not show up and did not notify them ahead of time. The following day, “David” or “Rachel” [the person was identified by both gender and role-- either a subordinate or a manager] sent a letter apologizing: ‘I am sorry I did not come to our meeting yesterday. I had so many unexpected things to do and I completely forgot about it. I heard from the secretary that you did all the work by yourself. I’m sorry you left work late and will try to make sure this does not happen again’.”
After reading the above description, the research participants responded to several questions about the effectiveness of the apology and how expected the apology was to them. And, here is what the researcher’s found (much of which you likely can predict):
A manager’s apology was more effective than a subordinate’s apology.
A man’s apology was more effective than a woman’s apology but only when the reviewer was a woman. Specifically, women reacted more positively to an apology from a man than to an apology from a woman. Men, on the other hand, reacted similarly to apologies regardless of whether the apology came from a man or a woman.
Apologies from male managers were the most effective. Then female managers, male subordinates, and finally female subordinates.
An apology from a manager was more important (statistically speaking) than being either a male or a female apologizing. The researchers say that since apologies from managers are unexpected, they are more powerful and effective.
In short, say the researchers, “a woman’s apology is less accepted than that of a man, but a female manager’s apology is accepted more than an apology from a male subordinate.” They also go on to say something we see semi-regularly in our pretrial research: “women were less willing to forgive a female who apologized than a male who apologized”. The researchers believe female coworkers believe a female (manager or subordinate) who has wronged them has somehow violated what should be a “sisterhood” and so the women are less willing to forgive.
What we see in our pretrial research is less a sense of sisterhood breached, than a sense of bristling by female mock jurors over a female Plaintiff or female Defendant who has made an error that would never have been made by our female mock jurors. They identify with the female in the story more than most men do of male characters. Women display amazing levels of hindsight bias when it comes to other women– female mock jurors would always have supervised their children better, judged the character of a romantic partner more accurately, gotten that verbal agreement in writing, always gotten second and even third opinions when positive medical information was received…
In short, we see female mock jurors more severely judging female parties (and yes, even female attorneys) frequently.
But we don’t see it as due to a breach of “sisterhood”. Instead, we think it’s due to a desire to stay safe. Women want to keep their children safe, not invite untrustworthy men into their lives, succeed professionally, stay healthy, and in general, stay safe. The reaction is one of reassuring themselves that they are safe, that they are not vulnerable to this particular misfortune. When they see female parties in lawsuits who have not done that, they assure themselves (and us) that they would have succeeded where these other women failed. It’s not so much an offensive maneuver, as a defensive strategy.
But we digress. People in lesser power positions are seen as apologizing too much and women (by virtue of gender) are seen as less powerful than men. Thus, we expect women to apologize and so when they do, we shrug. It doesn’t register. But when a powerful man apologizes, we revel in it and give him kudos for doing the unexpected.
There is some reason to be positive about these research results. If you have risen to a managerial position in the workplace as a woman, while your apology will not be as effective or as accepted as the apology of a male manager, it will be more effective than an apology from a male subordinate. That’s a good thing, right?
The researchers advise transgressors on apologizing: “When a manager is indecisive about whether to apologize or maintain his or her silence, our answer is apologize, but make sure you do not have to do it too often”.
Walfisch, T, Van Dijk, D, & Kark, R (2013). Do you really expect me to apologize? The impact of status and gender on the effectiveness of an apology in the workplace. Journal of Applied Social Psychology. DOI: 10.1111/jasp.12101
Two weeks ago, we were conducting pretrial research on a very sad case in which the Plaintiff had been injured horribly through a behavior that almost all of us have done repeatedly in our adult lives. Before we gave any information on the case, mock jurors were questioned and almost all acknowledged doing exactly the same thing our Plaintiff had done.
However, once they heard the condition the Plaintiff is now in, they began to look for ways to explain why this would have never happened to them.
She had access to warnings and the mock jurors would have paid attention to those warnings.
She should have done research and educated herself because the mock jurors certainly would have done research and educated themselves.
She probably brought this on herself through her behavior (which was certainly behavior the mock jurors never would have exhibited).
And so on. And so on.
We’ve all seen hindsight bias at work but this time it was particularly virulent. [In truth, the most maddening examples are when someone is found negligent of their own interest because they believed good news. Like, “your car will be fine” or “that lump is benign”. Jurors routinely criticize the person whose car soon breaks down or whose lump becomes stage 4 breast cancer for believing the good news. They should always get a second opinion– to challenge the good news.] The fear response is because the injuries to our Plaintiff truly could have happened to any one of us– and that terrified our jurors. They had to find ways to feel safer in a world in which bad things could happen pretty randomly. So it was a nice thing to return home to find a new article on how we differently we appraise risk when it’s on our own account, in contrast to how we judge risks taken by others.
In the new study, what these researchers find, is precisely what we saw in this recent group and in other displays of hindsight bias. In brief, when physical safety was involved, research participants prescribed more conservative actions for a friend, while they themselves would entertain more risk when physical safety was involved. It was as if the research participants felt they could personally withstand higher levels of risk than could the friend. The researchers believe this likely happened due to the “better than average effect” or perhaps because we don’t want the responsibility of making a choice for another that might turn out badly. We seek, say the researchers, to preserve our relationships and to avoid blame.
But, the researchers asked something else too. They didn’t only ask research participants what they thought a friend should do. They also asked the research participants what they thought a friend would do. And the research participants predicted the friend would do what the research participant themselves would do. That is, they thought that in real life, the friend would do the riskier thing.
That’s intriguing. It’s pretty common for us to believe others would believe and behave pretty much the way we ourselves believe and behave. It’s called the false consensus effect. So while we recognize that others will probably do the same things we would, we don’t want to make that choice for them because if it turns out badly, we’ll get blamed.
Something different happens in hindsight bias. We may know full well that we would do the same thing (and perhaps have done the same thing) that got the Plaintiff injured. And that’s exactly what happened with our group of mock jurors.
They reported honestly that they did the same thing the Plaintiff had done.
But once they had the information on what happened to her, they back pedaled furiously.
They found multiple reasons why this horrible thing would never have happened to them because they would have listened, educated themselves, researched, asked questions, sought second and even third opinions, and so on. When asked about their earlier reports contradicting their post-evidence conclusions, the mock jurors returned to their hindsight rationales: she brought this on herself and here are all the reasons why.
In the article stimulating this post, the researchers say we try to avoid blame by placing friends in less risky situations than we would choose for ourselves when it comes to our physical safety. We want to preserve our relationship.
In our pretrial research experience, mock jurors try to rein back their own fear and terror at how easily something horrific can happen by pointing out all the errors made along the way by the Plaintiff. In short, they actively seek out information they can use to blame the victim and thereby shore up or preserve their own sense of safety and predictability in the world.
I would never…
So what is the answer? How do we keep the jury on track for a reasonable verdict? There is a school of personal injury litigation theory embraced by many plaintiff attorneys (the “Reptile Theory”) that suggests that what drives decision-making in jurors is fear. Fear that it could happen to me. Fear that if we don’t stop the behavior that created this hazard, it will strike again. Yet in our mock trials, and in this research, we see that fear of risk can actually turn Plaintiff jurors toward the defense. It can generate hindsight bias.
Fear too large can create a distorted impression that the risk was so large as to be obvious, and that any one would have anticipated it. The solution is to allow the jurors to have a rational ‘out’. To allow them to distance themselves from the tragedy, from the risk, and see it a bit more objectively. Not “what would you do”, or “what would your friend do”, but something a bit more emotionally manageable: “What would a reasonable person do?”
The consumer dealing with an unsafe product or a supposedly reliable diagnostic test, has a right to rely on the results in the way a “reasonable person” would. The way the defendant knew they would be relied on when they sold the product or wrote the weak warning or issued the test results. They offered it to be accepted, and a reasonable person should be allowed to accept it as truth. And truth is comfortable to us. Just as fear will send us running for safety.
Stone, ER, Choi, YS, Bruine de Bruin, W, & Mandel, DR (2013). I can take the risk, but you should be safe: Self-other differences in situations involving physical safety. Judgment and Decision Making, 8 (3), 250-267
When I began as Editor of The Jury Expert and we moved to online only publishing in May of 2008, we didn’t know how popular the publication would become. Of course, we had hopes but we estimated our readership would top out at about half of what it is today. So now, naturally, we are hoping we will simply continue to grow and grow! (Please tell your friends, family, colleagues, judges, and opposing counsel about this wonderful and free litigation advocacy publication!)
Although all the issues of The Jury Expert are online, only those from May 2008 through the present are published in their entirety online. For older issues, you have to download the pdf to see what’s included. Until now.
We’ve noticed that as various events happen in the news or in the courtroom, some of our older articles get spikes in traffic. It’s happening more and more as we grow the size of our archives, drawing on what we think of as classic articles or what journalists call “evergreen” articles. We will always write articles based on current litigation issues in the news, but it will inevitably include articles that stand on their own over time.
So for this issue, we scoured the print versions of the old publication and found articles that are truly classics but that few have seen. Now you can. And with our internet indexing–as future visitors come looking for them–more and more of you will see them. It’s a good thing. Don’t miss out!
Here’s what you’ll find in the latest issue of The Jury Expert:
This issue of The Jury Expert is filled with classic (aka timeless, charming, ever-useful, relevant, et cetera) articles from an earlier time. Read this introduction to see what classic TJE articles spiked as the verdict from the George Zimmerman trial came in.
Identification of juror bias is an ongoing challenge. Here’s a look at how life experiences and attitude formation build juror biases and how to engage jurors during voir dire from one of the pioneers in the profession.
One of the challenges in effective voir dire (among many) is how to ask your questions of jurors to identify who really won’t be fair–but without asking it that way. Here’s a way to structure your questions to increase the strikes for cause.
We’ve all heard the statistics saying visual evidence is much more persuasive than verbal evidence. But is it based on anything of substance? An experienced visual evidence consultant says we should question what we think we know.
This one is written by Doug Keene so you will find it familiar-sounding. We do a lot of pretrial research on a wide variety of cases but one of the most popular formats is one some of our clients call “the one where Doug channels Oprah”. No, he doesn’t wear a wig or even heels.
Nothing could be more classic than hindsight bias. And we always get questions on how to manage it effectively. Here are some ideas from an experienced litigation consultant.
Are there times you should talk about your case in voir dire? Here are some ideas on how to get jurors comfortable, get them talking, practice your timing, and discuss damages from a trial consultant who also happens to be an attorney.
Okay. So this one isn’t a classic! It’s brand new. But, destined to become a classic! And free which is why it’s our newest Favorite Thing. See videos of sessions from ABA’s 2012 National Symposium of the American Jury System: The Optimal Jury Trial.
Hindsight bias is always present in litigation, as it is in other aspects of life. And we are always looking for ways to monitor and assess its impact as jurors weigh issues in litigation. Recently we wrote about being aware of the hindsight bias and how it can be strengthened by the perspective taken by visual animations. Today, we want to highlight one of the most powerful ways to reduce hindsight bias: the “consider the opposite” strategy.
As you likely recall, hindsight bias refers to our tendency after-the-fact to see events that have already occurred as being more predictable than they were before they took place. This bias is also known as ‘Monday-morning quarterbacking’. Our mock jurors provide lots of examples of hindsight bias in our pretrial research.
Your task is almost always to find ways to reduce the hindsight bias so that observers can better see the same picture your clients saw prior to whatever event now being litigated, or otherwise use this aspect of human nature to your client’s best interest. Today, we will explore research on how to minimize its impact.
To use the “consider the opposite” strategy, you ask participants to simply consider alternatives that could have happened and talk about how they might have occurred just as readily as the real outcome. When observers do this, they are able to see the multiple outcomes that “could have happened” much more clearly and their tunnel vision (aka hindsight bias) surrounding the event dissipates. According to the authors, the fact this strategy works has been shown in such diverse fields of inquiry as accounting, political analysis, policy analysis, legal judgments, and judgments of historical and scientific outcomes.
In fact, it is also commonly used in litigation. It often takes the form of “if only…”. “If only she had sought a second opinion…”; “If only he had gone in for the follow-up test”; “If only they had gotten a routine brake inspection…”.
There is, however, an interesting caveat. Research has most often focused on asking participants to identify one or two alternate outcomes. However, some researchers have asked their participants to identify as many as ten potential alternate outcomes. That’s a lot harder to do than identifying one to three. And participants don’t like it. So it backfires and makes the hindsight bias stronger, rather than weaker.
The authors explain it this way:
“If it feels subjectively difficult to generate many additional reasons for how an alternative outcome (i.e., counterfactual) could have occurred, then the decision maker may interpret this difficulty as an indication of the implausibility of those alternatives, which would then reinforce rather than mitigate hindsight bias regarding the outcome that did occur.”
In other words, if I have to do the work of generating (or evaluating) up to ten alternate outcomes for a given situation–that’s hard work. If it’s such hard work, the alternate outcomes must not be plausible or probable. So my initial explanation (reeking of hindsight bias) is likely still the best fit for the situation.
To avoid this sort of backfire in your strategy to reduce the hindsight bias, the authors recommend using no more than two or three alternate explanations. And the easier they are to imagine, the better.
You can accomplish this with expert witness testimony when you ask for alternate ways the data can be explained.
You can represent the alternate outcomes into visual evidence that accompanies jurors to deliberations.
And you can imbed them into your closing statement.
When it comes to reducing hindsight bias using the “consider the opposite” strategy, less is truly a whole lot more effective.
Roese, NJ, & Vohs, KD (2012). Hindsight bias. Perspectives on Psychological Science, 7 (5), 411-426
We are big fans of effectively done visual evidence. And we are perhaps equally big fans of the hindsight bias, often referred to as the “I knew it all along” bias. The research literature review we are examining today combines the two (visual evidence and that pesky hindsight bias) in a frighteningly relevant way for the litigation advocate.
The authors essentially review the literature on hindsight bias and discuss ways to disrupt that particular bias. Specifically, they discuss how hindsight bias is composed of three levels: foreseeability (“I knew it would happen”); inevitability (“It had to happen”) and memory distortion (“I said it would happen”). We hear these aspects of hindsight bias routinely in our pretrial research. Hindsight bias is particularly tough to disrupt since (drumroll, please…) “hindsight is 20/20”. When we know what happened back then, it’s harder to believe the actors in the particular drama couldn’t have seen it coming. And we have an amazing ability to believe that we knew it before we knew it.
What you may not have considered is how visual evidence can work against you and reinforce hindsight bias! While this is only one aspect of what is a pretty impressive work on hindsight bias and how to disrupt it–we thought it was a particularly useful one for trial advocates to know. The naïve observer would think that clear and specific visual evidence would always be useful for lawyers in the courtroom. But they would be naïve (like we said).
“Ideally, these visual aids would clarify complex information and therefore confer fairer judgment. In practice, however, such forensic animation can obscure the inherent uncertainty of evidence and cause jurors to become overconfident.”
And overconfidence reinforces hindsight bias. In short, what can happen is that jurors believe the animation depicts what actually happened rather than a best approximation of the events. The writers review past research showing that animations more than doubled the hindsight bias (by enhancing viewers’ sense of the inevitability of the event) when compared to a low-tech text and diagram method of presenting information.
And they don’t stop there! Observers ascribe greater responsibility to whichever party dominates the visual scene. The writers refer to the prior research on camera angles in videotaped confessions–when the camera shows only the detainee rather than both the detainee and the interrogator–observers are more likely to believe the detainee is guilty even when the confession is inconsistent or implausible. If the camera shows both the interrogator and detainee viewed from the side, observers are more able to evaluate the videotape objectively.
Computer animations of, for example, traffic accidents can be readily created to depict an event from almost any point of view.
“In events with complex causality, such as traffic accidents, the hindsight certainty that the accident could have been avoided if not for the actions of a particular driver can be heightened if that driver occupies a position of visual salience within the computer-animated scene.”
While you can obviously ensure animations do increase hindsight bias by not paying attention to their recommendations, these writers recommend two strategies for ensuring animations do not increase hindsight bias.
Use multiple angle and points of views in animations.
Use simulated experiments during animation development where you remove some parts of the data set. How does the animation change? Does the change support or contradict the current interpretation?
Roese, NJ, & Vohs, KD (2012). Hindsight bias. Perspectives on Psychological Science, 7 (5), 411-426