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Same sex marriage is okay but please, no PDA!

Wednesday, December 17, 2014
posted by Douglas Keene

We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

same sex pdaWe’ve blogged a number of times about changing attitudes toward same sex marriage.  The majority of Americans now support same sex couples being allowed to marry but that doesn’t mean we want to watch “them” be publicly affectionate.

And “we” are not alone. Even gays and lesbians express some discomfort with public displays of affection (PDA) for same-sex couples. The authors see this as “entrenched prejudice” on the part of heterosexuals and perhaps, as an “internalized stigma” for gays and lesbians responding to the survey.

The researchers surveyed 1,073 Americans (258 lesbians, 310 gay men, 240 straight women and 265 straight men). They were randomly assigned to read vignettes about a couple who met, fell in love and had been living together for the past 2 years. One-third read about “Brian and Jennifer”. Another third read about “Heather and Jennifer” and the final group read about “Brian and Matt”.

After they read the vignettes describing either a heterosexual couple, a lesbian couple or a gay couple, they were asked to respond to a series of queries about this specific couple’s rights. Some of the questions were of a more formal legal nature (like about inheritance or hospital visitation rights) while others were more informal such as their right to tell others they were a couple, hold hands or kiss in public settings. For each question, participants responded on a 4-point Likert scale ranging from strongly agree to strongly disagree.

On formal (legal) rights, there were no differences for heterosexual males approval for the same rights for heterosexual, gay or lesbian couples. Heterosexual women were more approving of insurance benefits for the lesbian couple than the heterosexual couple. Gay and lesbian participants were more approving of all the formal rights for gay and lesbian couples than for heterosexual couples (which makes sense, since they are seeing these couples as “in group” members).

When it comes to informal rights, the picture grows murkier.

Heterosexual males were less approving of informal privileges [defined here as holding hands in public or kissing] for both the gay and lesbian couples than for the heterosexual couple–and they were significantly less approving of the gay couple than the lesbian couple.

Heterosexual females also approved more of the heterosexual couple’s informal privileges than either the gay or lesbian couples–but they did not approve of the lesbian couple over the gay couple.

Lesbian and gay participants were sometimes more willing to grant informal privileges to the heterosexual couple over their own in-group couple. Lesbians and gays were both less approving of their own in-group couple holding hands in public compared to the heterosexual couple. Lesbians thought it was okay to kiss on the cheek or French kiss for both lesbian couples and heterosexual couples, but gays were significantly less approving of the gay couple kissing on the cheek or French kissing than they were for the heterosexual couple.

The authors say that the bias against these informal rights may reflect attitudes that are changing more slowly than our attitudes toward legal rights. They also highlight the reality that the gay couple are penalized more than the lesbian couple and more work should explore this issue.

From a litigation advocacy perspective, this is useful information. When we think about our changing jurors and their changing attitudes toward same-sex marriage, this survey warns us to make no assumptions on what behaviors are seen as “acceptable” in public. Homophobic responses and disapproval can arise anywhere–much like bias that arises covertly around issues of race and citizenship. Being aware of how bias against sexual orientation continues can aid you in party and witness preparation for in court appearance, behavior and testimony.

Doan, L., Loehr, A., & Miller, L. (2014). Formal Rights and Informal Privileges for Same-Sex Couples: Evidence from a National Survey Experiment American Sociological Review, 79 (6), 1172-1195 DOI: 10.1177/0003122414555886


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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

dead white womanIf you are a murdered white female, your case will be investigated and prosecuted (and probably more severely sentenced) than any other murder victim (especially if you are allegedly killed by a Black defendant).

This fact comes from a disturbing look at “prosecutorial files on over 400 homicide cases from Caddo Parish, Louisiana (the Shreveport area) in the 21 years between January 1, 1988 and December 31, 2008”. This is roughly the average rate for homicides per capita in the US (2011 had 16,238 homicides nationally).

The researchers looked at 431 cases including 203 with an initial charge of first-degree murder, 202 cases with an initial charge of second-degree murder, and 26 cases of manslaughter. They tallied sentence severity, number of pages in the case file, victim-defendant relationship (family, friend or other intimates; acquaintances; associated by some other known category), victim and defendant race and victim gender. They also tracked “aggravating circumstances” such as arson, age of victim (under 12 or over 64), burglary, drugs, drive-by shooting, heinousness, knowingly endangering more than one person, multiple victim homicide, offender with prior homicide record, robbery, kidnapping, rape, witness intimidation, or police killed during the course of the crime.

What they found is disturbing (although consistent with what we know about bias and the race of murder victims and murder defendants).

While White defendants (in general) received somewhat longer prison sentences than Black defendants, those convicted of killing Whites received much harsher sentences than those who killed Blacks–with those convicted of killing Whites 5.75 times more likely to be sentenced to death than those convicted of killing Blacks.

Blacks killing Whites received the most severe sentences.

The odds of a death sentence and the odds of a prison sentence of 40 years or more are higher in cases with female victims than those with male victims.

In 77.8% of the case where the murder victim was a White female, the offender was sentenced to death or to prison for more than 40 years. Those convicted of killing White females are 11.58 times more likely to be sentenced to death than those convicted of killing Black males.

The average number of prosecutorial case file pages in the 431 cases examined was 423 pages. However, case files were “significantly longer for cases with White defendants, White victims, cases in which Blacks were convicted of killing Whites, cases with female victims (especially White female victims), cases where the homicide occurred between strangers, and cases with more aggravating factors present”.

White female homicide case victim files had an average of 530 additional pages in the prosecutorial files than case files with Black male victims.

Even after controlling for aggravating circumstances, cases with White female victims resulted in “a greater volume of investigative product” (that is, more pages in the case file) than any other homicide cases.

Overall, say the researchers, cases with White female victims resulted in the highest number of case file pages (i.e., the most investigative work) and the most severe sentences. In contrast, Black male homicide victims received the least investigative attention and the least severe sentences.

From a litigation advocacy standpoint, this is truly an indictment of the process. Aggravating circumstances make no difference in whose cases are investigated aggressively and thus the heinousness of the crime does not drive the investigation. Gender and race does. This disparity appears to be an artifact of what prosecutors deem to be most worthy of effort in homicide investigations. While this is some (small) comfort to the murdered White woman’s loved ones, it is offensively unfair to those murder victims who are not White females, and arguably, to a justice-minded populace. And, for all of us, it is a sad statement when a measure like simply counting pages in a prosecutorial file shows us what the system values.

Pierce, G., Radelet, M., Posick, C., & Lyman, T. (2014). Race and the Construction of Evidence in Homicide Cases American Journal of Criminal Justice, 39 (4), 771-786 DOI: 10.1007/s12103-014-9259-1


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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

catcallsWhen this cat-calling video first came out, it went viral as an example of the harassment women face when walking alone on the streets of New York City (and presumably other cities as well).

But soon, viewers began to question the neighborhoods she was walking in and why most of the cat-callers were African-American or Latino. Critical reviews began to hit Twitter. The blog Mass Appeal looked carefully at landmarks visible in the video to identify where each instance of harassment occurred and over half of the harassment happened on a single street–125th Street in Harlem. They designed the graphic illustrating this post, question how people (and the media) might respond if the harassers were white, and close with this powerful statement.

While there’s no doubt that street harassment is a very real issue that effects [sic] women every day, it’s unfair to judge the whole of NYC based on the reactions of people primarily from one or two specific races, cultures, or neighborhoods especially given the cultural norms thereof. This viral video can serve as a great introduction to those who don’t believe that street harassment even exists, but it raises a lot of questions about race and culture that need to be answered in order to more deeply understand the issues at hand.

Sociological Images blog follows up on the Mass Appeal post with this thoughtful summation:

Did the time the producers spent in Harlem involve denser rates of harassment, supporting hypothesis #1. Did they spend an extra amount of time in Harlem because they have something against black men? That’d be hypothesis #2. Or is it hypothesis #3: they were thoughtless about their decisions as to where they would do their filming. Honestly, it’s hard to say without more data, such as knowing how much time they spent in each neighborhood and in neighborhoods not represented in the video. But if it’s true that they failed to sample the streets of New York City in any meaningful way – and I suspect it is – then hypothesis #3 explains at least some of why black men are over-represented. And that fact should motivate us all to do our methods right. If we don’t, we may end up offering accidental and fallacious support to ideas that we loathe.

Commenters at Sociological Images offer unsolicited critiques of the post itself.

The skill of critical thinking is a difficult thing to teach. While there was initial acclaim and then a storm of criticism–most viewers will not think a lot about whether a video is done correctly, the power of the editor in cutting 10 hours of walking down to a few minutes of catcalls, whether all neighborhoods were walked so they can tell whether the video is truly representative of NYC, and why so many of the cat-callers are African-American or Latino. They will simply accept the video as truth and perhaps incorporate this as their definition of the reality of walking in New York City.

But there is hope. is now offering a Critical Thinking Seminar handout for teachers along with a 6 minute video of a 90-minute seminar and a 2 page handout. They encourage teachers to incorporate this skill into lesson plans and give information about how the particular lesson plans meets Common Core Standards.

The newly published book, Law and Neuroscience (see a review here) also offers skills in critical thinking for those of us who want to learn more about the emerging area of neurolaw. Critical or analytical thinking is tough to teach in the abstract, yet this text does just that by offering both sides of the arguments (as well as the middle perspective) on neuroscience use in the courtroom. These authors use case law to tell memorable stories of how neuroscience found its way into the courtroom. Then, rather than quickly moving on, they present criticisms, limits, and cautions. That strategy offers the reader the opportunity to consider all sides of a controversy and come to their own conclusions.

Both of these resources remind me a lot of a type of pretrial research we offer that one of our long-time clients describes to other attorneys as, “it’s kind of like when Doug does Oprah”. The entire day is spent with mock jurors bouncing back and forth brainstorming about their differing perspectives on a case as the evidence unfolds. To the point where they sometimes just look at each other and laugh as they hear yet more new information that threatens to make them reconsider their conclusions yet again. The process is truly a lesson in critical thinking and while the mock jurors likely do not know that, the observing attorneys learn a tremendous amount about how specific case facts can send the non-critical thinker down a rabbit trail that can torpedo their case.

Image from Mass Appeal blog 

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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

TJE_logoA new issue of The Jury Expert has been published, and as usual, it’s one worth reading. As Editor since May, 2008–I get to see the articles as they come in and am always surprised at (and appreciative of) the creative and stimulating content we receive. The Jury Expert, like this blog, is all about litigation advocacy and understanding how new research can help inform your strategies in the courtroom. Here’s what you can see in the lineup for the November 2014 issue.

Does Video Image Size Affect Jurors’ Decisions? A Look at How Image Size Interacts with Evidence Strength, Defendant Emotion and the Defendant/Victim Relationship

Wendy Heath and Bruce Grannemann ponder how video image size in the courtroom is related to juror decision-making about your case. They discuss how image size interacts with image strength, defendant emotions, and the defendant/victim relationship. Trial consultants Jason Barnes and Brian Patterson team up for one response to this article and Ian McWilliams pens another. This is a terrific article to help you reconsider the role of image size in that upcoming trial.

Moral Outrage Drives Biases Against Gay and Lesbian Individuals in Legal Judgments

Sarah Malik and Jessica Salerno have some original research on bias against gays in the courtroom. This is simple and powerful research that illustrates just how moral outrage drives our judgments against LGBT individuals (especially when they are juveniles). Stan Brodsky and Christopher Coffey team up for one response and Alexis Forbes pens a second. While these findings make intuitive sense, they may also highlight something you’ve not previously considered.

Anti-war Protestors and Civil Disobedience: A Tale of Two Juries

Lynne Williams is a trial consultant who lives in the cold and snowy state of Maine. She is also skilled in picking juries for political trials and a gifted writer as she describes the important differences between picking juries for civil disobedience cases and antiwar protestor cases. This article not only explains what Ms. Williams does, but why and how she does what she does. It’s like lifting up the top of her head and peering inside her brain.

A Qualitative Examination of Self-Care in Lawyers

Mary Wood, Jacklyn Nagle and Pamela Bucy Pierson bring us this qualitative examination of self-care in lawyers. They talk about workplace stress and depression and substance abuse. Been there? Are there? Some kinds of self-care may work better than others but–what’s important is that you actually do some self-care! Andy Sheldon and Alison Bennett share their reactions to this article.

Favorite Thing: Plain Text

Why, you may wonder, would Plain Text EVER be a Favorite Thing. Because it is fabulous. Or, perhaps because, “Plain text is the cockroach of file types: it will outlive us all.”

The Selective Allure of Neuroscience and Its Implications for The Courtroom

Adam Shniderman knows neuroscience evidence can be incredibly alluring. This new study shows us that unfortunately (or perhaps fortunately) it is not universally alluring. Here’s a shocker: the impact of the neuroscience evidence is related to the individual listener’s prior attitudes, values and beliefs about the topic. Robert Galatzer-Levy and Ekaterina Pivovarova respond with their thoughts on the issues raised.

Book Review: Law and Neuroscience

Law and Neuroscience by Owen Jones, Jeffrey Schall, and Francis Shen has just published and is as long as any Harry Potter tale at more than 800 pages. Rita Handrich takes a look at this new textbook and reference manual which covers more than you ever knew existed on the wide-ranging field of neurolaw (which is a whole lot more than the “my brain made me do it” defense).

Promoting Communications between Social Scientists and Lawyers

Roy Bullis is back to talk to us about the wide language gulf between attorneys and their social science expert witnesses. Just because you are talking, doesn’t mean you are actually communicating. How do you talk so your expert knows what you mean?

Image from The Jury Expert

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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

offensiveThe research we are covering today focuses on feedback that is subtly offensive and what observers make of it in comparison to constructive and destructive feedback. In case you are wondering just what “subtly offensive feedback” is, the researchers believe that subtly offensive feedback communicates that the recipient is “rather stupid” without saying so directly. Even when presented in a friendly fashion, say the researchers, the words hurt. Since prior research had neither focused on nor defined “subtly offensive” feedback, the researchers had to operationalize the ways in which they would offer the subtly offensive feedback to their participants. This study was seen as a pilot study upon which to develop future research.

The researchers defined three different types of subtly offensive feedback to test in the pilot study:

overkill (overly long and excessive dwelling on details);

exaggeration (explicitly exaggerating the significance of the mistakes); and

banality (declaring that a mistake is so easy to see no one should have missed it).

The researchers believe that feedback does not have to be presented in a destructive manner to be seen as negative. Their hypothesis, therefore, was that recipients would find the feedback less fair and acceptable than constructive feedback, and more fair and acceptable than destructive feedback. The hypothesis makes intuitive sense and you will likely not be surprised that they were correct.

132 Swiss undergraduate students (86 female, 46 male, average age 22.5 years, and participating in groups of 20 to 25 students) viewed a video of a man who was introduced as a professor and was allegedly giving feedback to a student about a course-related paper. Participants rated how fair they felt the feedback was after each (of 7 total) video.

As expected, participants rated the “subtly offensive” feedback as in between the fairness of constructive and destructive feedback. The researchers were surprised to find that the subtly offensive feedback conditions differed from each other. Participants saw overkill as most fair of the offensive conditions, then banality, and finally exaggeration. The researchers suggest that workplace supervisors can learn from their results that feedback can be negative and hurtful even if they are not insulting and rude. While this may seem an obvious conclusion, we would certainly agree.

From a litigation advocacy perspective, the awareness and sensibilities of jurors is a moving target. Not too long ago, it was sometimes an effective tactic to focus (and focus and focus) on whether an expert witness was being paid. That is no longer true, as the following experience connotes.

At the conclusion of a recent trial, as jurors were debriefed, they commented that they knew expert witnesses were paid and reported feeling that opposing counsel’s lengthy questions to experts about how much they were paid were insulting to their (i.e., the jurors’) intelligence. The attorneys did not mean to offend, but they had (in the words of today’s researchers) “subtly offended” their jurors.

Jurors have become increasingly sophisticated and aware of expert and fact witnesses and, like these jurors said in the post-verdict interviews: “We know experts get paid!”. This isn’t the only example of these faint lines between constructive, subtly offensive, and destructive statements. The research does a good job of establishing the distinction, but it doesn’t help at all in determining where those lines are– within a particular jury, subculture, region, nation, or anything else. Surely cultural values, differences in individual sensitivity, and life experiences all affect a person’s reaction to such things. If you wonder about that, consider how a hilarious joke that seemed innocent enough to you invariably strikes some listeners as offensive. Sometimes it is hard to tell. Play it safe. Stay away from jokes about anyone other than yourself, and carefully consider ways to be inviting- not critical- in when you present explanations and examples.

Krings, R., Jacobshagen, N., Elfering, A., & Semmer, N. (2014). Subtly offending feedback Journal of Applied Social Psychology DOI: 10.1111/jasp.12287


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