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
We learn a lot from our mock jurors and not just about cases–but about life and about persuasion. Early this month, we were doing a pretrial research project about allegedly fraudulent billing practices that targeted poor people. We learned a very effective and yet, very quiet way of confronting racism in a deliberating group.
The mock jurors purposely reflected the diverse demographic make-up of the venue. They were various ages, incomes, and educational levels as well as a mixture of ethnicities. As the story unfolded, the mock jurors learned that the accused party only served the poor and actually targeted services to specific zip code areas. Initially there was a positive response, as it appeared that this business was interested in providing services to a segment of the community that was typically underserved. When the purported deceptive practices were described, there were heads nodding differently around the room.
“That’s a good business model”, an older Caucasian woman said, “because those Mexicans will do whatever you tell them to do”. She seemed oblivious to the very bright, young Hispanic male sitting next to her and the Asian American woman sitting next to him and the middle-aged Hispanic female next to her. All of their eyes opened very wide and they made extended eye contact with a young African American male with dreadlocks sitting across the table from them. The lawyers in the observation room watched with open mouths.
When asked to explain what she meant, the woman modified her statement a bit to incorporate comments about education, lack of language proficiency and poverty. Several other Caucasian jurors around the room chimed in that poor people were more likely to fall victim to financial scams since the economy had made their lives especially tough. It became apparent that “poor” would be a code word for “Mexican” and that the group was going to talk around issues of race and bias and potentially blame the victims.
Suddenly, an older African American male grinned and said “You know, money don’t got no color–not in terms of who wants it! Not in this economy. I think any of us would be interested in a potential financial windfall if it knocked on our door or rang our cell phone.” Others grinned back and nodded in agreement and just like that, the room changed. Jurors were able to talk and disagree and eventually, (and surprisingly, given how the discussion began) they were unanimously against the predatory nature of the service provider seeking out the poor and disempowered.
We’ll call that older African American man William. He was a pleasant man who cracked jokes throughout the night but also made pointed comments about power, greed, and values. He was a pivotal member of the group. He probably would not have been the presiding juror–but his contributions were critical to moving the group from automatic biases to consideration of the evidence without skin color attached. His wisdom, candor, and humor cut through the rhetoric and made the conversation real. We liked William a lot. And we’re always thrilled to see persuasion in action–even when you don’t expect it.
Natalie Wood cooed these words in the musical West Side Story years ago–well, at least the first clause of our title. And now, fifty years later, science is reminding me of that old song.
It’s a long-standing tenet of social psychology that we tend to see physically attractive people more positively. Yet, at the same time, we often see the beautiful as shallow and vain. Thankfully, science has come to our rescue by examining whether the beautiful really are shallow.
Researchers had ‘judges’ [3 male, 3 female, and all professional model recruiters in London, England] rate the attractiveness [based on photographs] of more than 100 research participants. They also had the participants complete a personality measure [the Personal Orientation Inventory] assessing “self-actualization”. You may recognize self-actualization as the peak level in Maslow’s hierarchy of needs. Turns out beautiful people are more self-actualized than the not-so-beautiful. Wow. And I thought beauty was skin deep.
The beautiful research subjects scored significantly higher on 7 out of 12 scales [and generally higher on all 12 scales] on the measure of self-actualization. They were significantly more inner-directed, more emotionally responsive, more spontaneous, higher in self-regard and self-acceptance, had more capacity for intimate contact and were more likely to see themselves as autonomous, independent, and self-sufficient. It just isn’t fair.
The researchers chalk this result up to the positive feedback and reactions experienced throughout life by the beautiful. These reactions are internalized so that the beautiful person is more confident, assertive and in general, more “self-actualized” or psychologically accepting of themselves. So it likely isn’t that the more attractive are “born” more self-actualized but that their experiences throughout life make them more self-accepting and confident.
What does that say about jury selection? More confident and self-assured jurors tend to speak up more, and assert their views more authoritatively. If it can be assumed that physically attractive people have more of these tendencies, a juror who would otherwise be expected (by age or socio-economic status) to be low-impact might be a surprisingly compelling voice.
It’s also an interesting finding to ponder when considering witness preparation strategies. We need to help witnesses be seen as more likable, credible, truthful and confident (all contribute to a sense of attractiveness) and so perhaps we are working from the opposite end of the spectrum from these researchers. That is, are we perhaps helping the not-necessarily-attractive to seem more attractive by helping them to exhibit characteristics of self-actualization? Now that is sort of cool.
Ivtzan, I., & Moon, HS (2008). The beauty of self-actualisation: Linking physical attractiveness and self-fulfillment. European Journal of Psychology, 4 (4)
See complete article here.