Many of us know about counter-factual thinking and use the story model as a guide to help us disrupt juror tendencies to engage in counter-factual thought (i.e., “if only she’d gotten a second opinion”). Counterfactual thinking results from hindsight bias (the tendency to believe events are more predictable than they actually were in the moment). You can also, however, use ‘anticipated future regret’ as a persuasive device with jurors.
This is called ‘pre-factual thinking’. If counter-factual thinking represents thoughts such as “if only he’d taken his usual route to work”, pre-factual thinking is represented by such thoughts as “what if I find it cheaper somewhere else?”. In essence, you would have jurors consider their own future regrets as to any decision they may make:
- “No matter what number you choose for future healthcare needs, you’re going to get it wrong. Because no one can be sure. So the question becomes— ‘Which mistake would I rather risk?’ Would you rather risk that [plaintiff] has a bit more money than necessary to provide medical care, or risk that the money runs out too soon, and she lives her last years in poverty?”
- “This is a small business with a really good idea stolen by their competitors. Would you rather tell them ‘too bad’ and end their efforts, or reward their creativity and encourage additional development?”
- “This company is huge. You’ve all heard of them. Most people have purchased their products. Will you feel better about rewarding a plaintiff going after ‘deep pockets’ or helping a large business keep providing the products we all use at a reasonable price?”
Think about how you can present rhetorical questions to the jury to evoke concerns about future regrets. Pose questions to witnesses that allow them to address potential ramifications of one choice over the other. Use closing statement to again cue the specter of future regrets. Tell your story effectively. Help jurors consider the impact of their choices.
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)
Roger Ebert was a standout when it comes to facial disfigurement. We knew him before it happened. We applauded his bravery and courage in re-emerging publicly after disfiguring cancer surgery. Yet we also stared in disbelief when we saw him. His disfigurement was such that it gave the sense he was always smiling. That probably helped us to accept his new look. It is not, however, the case when we meet people who have facial disfigurements for the first time. We stare. We look away, knowing it is not polite to stare, and then we look again. It’s hard to not look. Staring is so common there are multiple web pages to give adults with facial disfigurements ideas for coping with it.
And while it makes sense to assume it’s tough for people with facial disfigurements to be hired, English researchers wanted to compare one disability to another. They chose to compare people with facial disfigurement to a second group of wheelchair users (“a functional disability with little aesthetic impact”). There is a “substantial degree of discrimination against wheelchair users in recruitment” according to the author’s review of the literature. There is, however, no prior research on discrimination against those with facial disfigurements although we do know employers tend to favor attractive applicants and there are certainly ample anecdotal accounts of discrimination experienced by those with facial disfigurements.
The researchers hypothesized that discrimination against applicants with facial disfigurements would be especially high in jobs with high levels of customer service. They also hypothesized that if costs for accommodation were a concern for the employer, this would harm chances of hiring more severely for those in wheelchairs. Armed with their hypotheses, the researchers went to work. They identified specific jobs that would be high in customer service demands (e.g., administrator/receptionist and salesperson); or low in customer service demands (e.g., information technology support analyst and personal assistant). And they specifically selected jobs “for which facial appearance and mobility are both irrelevant considerations” and ensured their application materials were strong so that any “observed discrimination would depend on the attitudes of the employer”.
Each applicant was described as being currently employed in the same sort of position they were applying for and as seeking career advancement. All applicants were described as being under 30 years old. Applicants identified themselves as wheelchair users or as having a facial disfigurement via the following notes on their cover letters:
“I was born with a rare, non-contagious, congenital disorder that has caused distortion of my facial features.” In addition to the sentence on the cover letter, the applicant with facial disfigurement also had a note at the top of the CV: “Please note: I was born with a rare congenital disease which has caused the bones in my jaw and face to fuse and to stop growing in early infancy. The condition has left me with a highly-distinctive, noticeably different face. I have never let my condition restrict my life and overcoming people’s reaction to my distinctive face has led me to develop my confidence and construct highly effective communication skills that have helped me grow as an individual.”
In the wheelchair condition, a note at the top of the CV said “wheelchair user” and the cover letter said “Please note I am a wheelchair user and so will require access ramps if I am called to interview”.
The employer sample was a group of 144 companies actively recruiting for one of the following vacancies: administrator/receptionist, salesperson, IT support analyst, or personal assistant. There were 36 companies for each type of position. On average, company size was 153 persons (with a range from 2 to 2000 employees). Of the positions advertised, the level of customer contact would be highest for sales, then administrator/receptionist, then personal assistants and finally the IT support positions.
Each employer received three (different) applications from the experimenters: one had no information as to disability, one identified as a wheelchair user and the third as having facial disfigurement. Equal numbers of male and female applicants were used, with the exception of the personal assistant applications which were all from females. (The researchers believed male applicants for those positions would be suspect.)
The researchers compared the jobs with low customer contact (the IT support analyst and the personal assistant) to those with high customer service (the sales and administrator/receptionist positions) to examine differences in response patterns to the three job applicants (one with no disability, one using a wheelchair and one with facial disfigurement). And here is what they found:
Responses were overall more positive for the applicant with no disability.
The highest amount of discrimination was seen in the administrator/receptionist position, then sales, then in the personal assistant position, and absent in the IT support analyst position. (This supported the hypothesis that the higher customer contact positions would have the most discriminatory practices and lower customer contact positions would have less discrimination in hiring.)
There were different patterns though for the applicants with facial disfigurement and the applicants using wheelchairs.
When customer contact was low, there was no real difference in the response rate between control applicants (e.g., without disability) and applicants with facial disfigurement.
However, customer contact being high or low made no difference for wheelchair users. The non-disabled applicant was always favored over the applicant in a wheelchair.
The researchers also compared level of discrimination to more familiar sorts of discrimination. They describe the discrimination those with facial disfigurement faced (58% according to the authors) in high customer service jobs as being comparable to the upper end of the range reported for race discrimination and age discrimination.
Almost 45% of the wheelchair users did not get a call back for interview regardless of whether the position was high customer service or low customer service. The good news here is that the employers did not appear particularly concerned about customer reactions to an employee in a wheelchair (since there was no difference between the high customer service and low customer service positions). The authors believe the reason for discrimination against wheelchair users is related to concerns about the costs of accommodations among London employers. (They believe this since follow-up calls to the employers showed only 23% were aware of government programs for grants and advice when one hires a recruit with disabilities. Further, only 13% of those workplaces were wheelchair accessible! For those that haven’t done much international traveling, the US laws — Americans with Disabilities Act–mandating public accessibility for the mobility impaired is a model most countries are very late to embrace.)
Overall, the authors believe that having a facial disfigurement will make your employment prospects akin to those with mobility impairments resulting in the use of a wheelchair. They conclude the article as follows:
“It appears from these results that there is recruitment discrimination against people with facial disfigurements in jobs involving a larger degree of customer contact, suggesting that concerns about aesthetics or potential stigma by association may be important. Discrimination against wheelchair users showed wide variability among the job types but no consistent pattern.”
Here in the United States, we would expect a slightly different pattern given the accessibility of workplaces and the commonness of ramps and sidewalk cuts thanks to the Americans with Disabilities Act. However, we cannot know that for sure. In terms of litigation advocacy, you want to ensure the following:
If your client has a facial disfigurement, you want to have them explain to the jury what the disfigurement stems from and how long they have dealt with the realities of facial disfiguration. Even if it is not relevant to your case and even if it isn’t fair–you need to help jurors get past the issue. If you don’t talk about it up front, jurors will wonder, hypothesize and stare. If you do discuss it, they may still stare–but they won’t be able to form their own hypotheses given a straight-forward explanation. On top of that, a straight-forward explanation will tend to result in jurors liking your client more.
Use universal values to help jurors see your client as like them. We use faces to gather a lot of information as to whether someone is kind, honest, trustworthy, and more. Facial disfigurations make that more difficult for us. Give jurors evidence that your client is worthy of their empathy and fair consideration of the facts.
Jurors will watch how you interact with a client who is impaired. Are you comfortable talking with them about it? Do you interact, discuss, and joke with them in a way that’s like anyone else? They will take your relationship with the impaired person as a reflection of what it would be like to have a natural relationship with that individual. It normalizes them.
“Differentness” in many guises makes others feel uncomfortable and awkward. Your goal when you have a client with a difference that cannot be concealed is to show your own comfort with the client and thereby help the jurors feel comfortable as well.
Stone, A., & Wright, T. (2013). When your face doesn’t fit: employment discrimination against people with facial disfigurements Journal of Applied Social Psychology, 43 (3), 515-526 DOI: 10.1111/j.1559-1816.2013.01032.x
We’ve written before about creative folks, extraverts and those who are religious. Three social science projects now give us additional clues as to times when you might want to choose one characteristic over the others. Or not.
As you might guess, it all comes down to your case themes and specifics. Let’s say you are left with one peremptory strike and three venire members in question. One is strongly religious, one is an artist and one is clearly extraverted. Here’s what the new research would say about how those three could differ on some important details.
Creative people, according to Dan Ariely, are better at rationalizing small ethical lapses that can spiral out of control. Ariely says creative sorts are not evil masterminds, but rather have justified minor wrongs that then escalate without warning.
Introverts and extraverts use language differently. And not just in terms of talking more or less. Introverts use more concrete words and are more precise or descriptive while extraverts are more abstract and interpretive.
Researchers asked participants to describe what was happening in a series of photos. Introverts were more likely to concretely describe the photo (e.g., “He could be writing a letter”) while extraverts described the photo more abstractly (e.g., “He could be lonely”). The researchers also opine that the introvert’s style of description is more likely to result in judgments that are situational in nature (e.g., “Camile yells at Martin”) while the extravert is more likely to make judgments as to traits that are more enduring (e.g., “Camile is unfriendly”).
Finally, those who are religious or paranormal believers are more likely to see “face like areas” on photographs than were the skeptics or atheists participating in research. (Yes, this is like those postings of toast with religious images in them on eBay.)
Participants were shown some photographs that were judged as having face like areas and others that were not. The researchers found that those who were religious and paranormal believers were more likely to see the face like patterns (whether they were present or not) than were the skeptics and the atheists.
So what can these varied findings mean for your use in litigation advocacy? That’s a very good question. And here are some thoughts…
Does the case involve allegations or ethical or moral transgressions? The creative juror might be more able to see how a small wrong could spiral out of control for the accused. The introverted juror might be more likely to attribute the misbehavior to situational factors rather than attribute it to character traits. The religious juror might adjudge the defendant more harshly particularly if they see past behavior repeating itself.
Does the case involve allegations of broken promises–like a contracts case, a partnership crushed by betrayal, or warranties of safety or reliability? Again, the creative person may be more likely to believe a good story of a minor wrong that grew beyond expectation. The introvert may be more likely (especially if behaviors of the accused are described concretely) to see the issues as more situational than personality-driven. The religious person may be more likely to see past patterns of behavior repeating themselves.
Since non-economic damages (and the credibility of the economic models used by each side) are often driven by perceptions of character and implied intent, it becomes crucial that you consider what juror is likely to harshly judge your client’s character, or the intent of the opposition.
According to these research findings, you have an extra tea-leaf to predict who will respond one way or another. But our experience with thousands of jurors differs from that of these social science researchers. Whenever you use one trait or characteristic to profile your jurors, you are on a very slippery slope. Just like striking a venire member based on race, age, gender, or income–deselecting based on religion, personality traits or occupation is dangerous and likely just plain wrong. The decision matrix is invariably more complex than that.
Attitudes. Values. Beliefs. Experiences. Those things reflect more about how any particular juror will respond to any particular fact pattern than any single demographic descriptor.
No matter what else you may read–that’s a good thing to remember in voir dire.
Beukeboom, C., Tanis, M., & Vermeulen, I. (2012). The Language of Extraversion: Extraverted People Talk More Abstractly, Introverts Are More Concrete Journal of Language and Social Psychology DOI: 10.1177/0261927X12460844
Riekki, T., Lindeman, M., Aleneff, M., Halme, A., & Nuortimo, A. (2012). Paranormal and Religious Believers Are More Prone to Illusory Face Perception than Skeptics and Non-believers Applied Cognitive Psychology DOI: 10.1002/acp.2874
Oh, the number of times we’ve heard “if only…” from mock jurors. “If only she’d taken her regular route to work.” “If only he’d gotten a second opinion.” “If only they had sat down and talked to each other before things got so out of control.”
It’s such a plaintive refrain and therein lies the appeal. They are effectively saying “this is such a sad story that it threatens my own sense of safety so much I need to create an alternative scenario that would have made it end much better“.
And now we have research focusing on just how we use counterfactual thinking to create meaning. It isn’t about how we are stubborn and not listening to the evidence. It’s about how we try to make sense of our world and protect ourselves from the knowledge that bad things happen–even to good people.
This research is so resonant with what we hear from our mock jurors that we hope you will take time to read it. [See a full pdf of this article here.]
These writers assert that our search for meaning in life is supported and enhanced by counterfactual thoughts as to “what might have been”. They see counterfactual thinking as increasing our beliefs in fate and destiny–as in, “it was meant to be”. In two different experiments, participants who were told to generate counterfactuals about their college choice or a close friendship (e.g., “what might have happened had you not chosen this college or not met your close friend?”) ended up feeling their college choice and a close friendship were more meaningful and more significant in their lives than those participants not instructed to generate counterfactual thoughts. Counterfactual thinking made these life events/experiences more meaningful.
A third experiment was conducted to specifically look at the relationship between counterfactual thoughts and a sense that the event was “fated” or “destined” to happen. The researchers point to an ironic truth that highlighting the improbability of an event bestows inevitability upon that event.
They offer the example of winning the lottery: “It could not have happened by chance alone. It must have been fated.” Perceiving fate as being at work enhances the meaning of resulting events.
So for the third experiment, participants were asked to identify a turning point in their lives wherein “rapid, intense and clear change occurred, such that you were never the same again”.
Once they had described their individual turning point in a free form written narrative, they were given instructions for their counterfactual thoughts:
“Describe how your life would be now if the turning point incident had never occurred. Please write about who you would be, where you might be, the relationships you might have, the beliefs, values and feelings that might characterize you, or any other details about this alternate world you can imagine.”
The other half of the participants were given factual instructions for assessing their individual turning points.
“Describe exactly what happened, when it happened, who was involved, what you were thinking and feeling, what happened right before and right after the incident occurred, or any other factual aspects of the incident that you can recall.”
As you might suspect, those participants in the “counterfactual condition” had higher perceptions that their “turning point” was fated than did those in the “factual condition”. The participants did not merely conclude that their lives could have easily unfolded very differently. Instead, the experience of thinking counterfactually about their experience enhanced their sense that fate was at work: “it was meant to be”.
And these researchers were still not done. They did one final experiment to see if finding benefit in your “turning point” (as in “here are the good results of this event”) would be related to seeing yourself as “better off” due to the turning point experience. They used the same experimental procedure as in the third experiment with minor modifications to allow coding the turning point as a negative or positive event. They also had some participants reflect directly on the meaning of the turning point in their lives.
Again, the counterfactual condition resulted in a stronger sense of the turning point being fated and gave the turning point more meaning in the lives of individual research participants. Counterfactual reflection also produced more positive assessments of the impact of the turning point than did either factual reflection or direct reflection on meaning of the turning point.
What the researchers ultimately opine is that counterfactual reflection results in the assignment of positive benefit to the individual experiencing the turning point–to a greater degree than even directly assessing the turning point’s meaning. That is, when you consider “what might have been”, you are more likely to imbue that turning point as mandated by fate and as having made positive impact in your life journey.
We hear this sort of thinking from our mock jurors consistently in cases where either financial or physical or emotional damage is alleged by the plaintiff. In additional to the “if only” refrains, we also hear things like “Struggles like this help you know who your friends are”, or “This would really give you a chance to figure out what is truly important” or “If this had not happened, she never would have discovered how strong she really is and her ability to cope”. We are wired this way. We struggle to find meaning and reason to what has occurred. Whether it is fate or the result of bad choices–your jurors are always going to interpret, make meaning, assign positive or negative benefits to the life-changing event, and assert reasons as to why this sort of thing would “never” happen to them.
This is a self-protective maneuver and your task as the plaintiff attorney is to gently but firmly shatter it.
This wasn’t fated, it was due to negligence.
It wasn’t random, it was totally preventable and happened due to poor safety practices or bad choices of the defendant.
This didn’t happen for a reason–God did not ordain it. This was a human-caused incident that would not have happened at all if the manufacturer had just included a modification that they not only knew about but that only cost $2.19 per unit.
And so on. We are so used to the “story approach” and sequencing our case narratives to minimize “if only” reactions that we forget sometimes just how powerful and ingrained is the desire to find meaning. It is always a reminder when mock jurors begin to discuss how it would have never happened to them and, sometimes, begin to blame the victim–that we need to go back and point to all the right choices made by the victim(s) and all the wrong choices made by the defendant(s).
Obviously if you are representing the defense, you want the counterfactuals going strong and loud. It was random. Stuff happens. This was a blessing in disguise. He is stronger for this and his family is much closer. Yes, it was a horrible thing. But good resulted. Let’s not forget that!
In a very real way, counter factual thinking is a form of internal fact-checking for all of us, albeit one that has the potential of jumping the tracks of reason and reality. To overlook its inevitable presence is to leave a potentially powerful stumbling block in the jury’s path.
Kray, LJ, George, LG, Liljenqujist, KA, Galinsky, AD, Tetlock, PE, & Roese NJ (2010). From what might have been to what must have been: Counterfactual thinking creates meaning. Journal of Personality and Social Psychology, 98 (1), 106-118 DOI: 10.1037/a0017905