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Archive for the ‘Beliefs & values’ Category
Propaganda, Dogmatism & Bias: Who are your jurors?
As the country becomes increasingly divided (again), we are seeing increasing indications of closed minds on jury panels. This is reflected in the blogosphere and in recently emerging research findings. Sadly, this appears to be a time of seeking to affirm pre-existing beliefs rather than informing ourselves and coming to our own conclusions about hot button issues.
It has become commonplace to think that the news channels prospective jurors watch can tell us about their politics. We blogged about this here and here. So it isn’t surprising when we hear the results of a study in the journal Media, War & Conflict telling us that we don’t seek out television news to inform ourselves, but rather to affirm ourselves. That is, we watch television news shows that support our pre-existing beliefs, rather than those that could challenge those pre-existing beliefs.
Or, as Robin Hansen at Overcoming Bias blog tells us, we are “built to rationalize”. In other words, Hansen says, “our minds often unfairly defend our most deeply held beliefs” and “when we sense such beliefs being threatened, our minds distract us, refuse to comprehend alternatives, and grab onto weak excuses as though they were timber”. It is what we do. We use cognitive shortcuts like stereotypes to help us defend against new information and maintain confidence in our pre-existing beliefs.
So given the resistance of entrenched beliefs to change and the relatively short timeframe of most jury trials, how can you attempt to seat a jury most open to actually hearing your case?
- If your case resonates with conservative and/or religious values, you may like jurors who show evidence of dogmatism which is, essentially, being powerfully wed to a particular belief system. These jurors will hear your case and dismiss opposing counsel (particularly if you show them how the other side does not resonate with their strongly held values).
- If, on the other hand, your case resonates more with liberal or pluralistic values (the more ‘gray’ areas), you want to identify jurors (for disqualification or peremptory strikes) who will dismiss your case without listening. Look for group affiliations that would indicate the likelihood of dogmatic beliefs.
And for those of you curious about a short-hand way to identify those more open-minded—here’s a tidbit. The same study finding that we seek to affirm rather than to inform through our television news habits, also found something that may surprise you. Those who watch television news on the Al Jazeera English network become less dogmatic! And the longer they watch, the more open they are to opposing points of view. We find that very intriguing. Opposing counsel may well know ‘who’ watches Fox or listens to NPR—but do you think they know who listens to Al Jazeera? Ah, but now you’ll make sure to know.
Lighter Skin, More Like Me
Matthew Harrison has an article on Colorism in the January issue of The Jury Expert. He discusses the role of colorism (or “skin color bias”) in the workplace and then three trial consultants discuss his work in the context of the courtroom. There’s a lot of good information for litigators in the trial consultant responses and we recommend you go take a look if you are interested in learning more about the relationship between skin color and bias (in the workplace or in the courtroom).
It’s a timely piece. As the country becomes increasingly polarized, researchers keep churning out work on our biases and how they result in us modifying how we see others. For example, the Atlantic reports on a study showing that our own partisanship determines how we perceive skin color. The more we believe the person shares our own values and political perspective, the lighter skinned we believe them to be. If we do not believe they share our perspective and values, we see them as darker skinned. (This was measured by asking participants to choose the photo they thought best depicted Barack Obama—a darker skinned photo or a lighter skinned photo.)
Miller-McCune website also discusses this study and wonders if we are likely to like people less if we see darkened images of them. They cite the infamous photo published by Time Magazine of a skin-darkened O.J. Simpson during his 1994 trial. The racially ambiguous, according to Miller-McCune, are harder to categorize than the clearly white (for example, John McCain) or clearly black (for example, Michael Steele). The very ambiguity may require more cognitive effort on our part to process and we know that ambiguity can be disorienting and confusing.
We’ve said it before. Race and racism is becoming more nuanced. Your dark-skinned client/witness/party/self may be seen more negatively than your light-skinned client/witness/party/self and you need to prepare for that before entering the courtroom.
Extremism comes in many shapes and forms
Given the focus of our country on terrorism, now if we say ‘extremism’—we likely have a common image that comes to mind. But there are many kinds of extremism. We’ve written about some of them: racism here, and here, polarizing opinions, and hate group members.
What we’ve noticed is that when we have mock jurors who describe themselves as “very liberal” or “very conservative” or “very religious” or very anything—they often have trouble listening to and actually hearing evidence. It is as though their ‘bias filters’ are turned so high that they hear not what the litigator is saying, but instead what they believe the litigator means or even should be saying.
These are often jurors who end up seeing conspiracy, hidden agendas or motivations, or simply ‘know’ something is not true despite evidence to the contrary. Those who identify themselves as extreme on any belief system or attitude are generally too unpredictable to leave on a jury.
Spira (2002) writes about this reality: “high levels of certainty and extremity result in resistance to persuasion”. We agree. Rigid extremists do not magically turn into open-minded and curious jurors for your case even though they may say they can “be fair”. In our minds, this is not the time to extend the benefit of a doubt. Exercise a strike.
It may not (usually) be overt, but it’s still racism
Identifying bias is not always a simple thing. Sometimes it’s easy to see as we talked about here and other times it’s not (see our post here). The 2008 election of Barack Obama led some to proclaim we were now living in a post-racial society and others to scoff at the very idea. Racial arguments come up in very unexpected places—which would lead us to think the issues simmer just under the surface. Witness a “prominent Columbia architecture professor” who “punched a female university employee in the face” during a “heated argument about race relations”.
Don’t kid yourself. The reality is that racism is thriving. It’s just different. Researchers have been talking about modern racism for a long time now as we discuss here and attempting to measure covert or ‘implicit racism’. But it’s been tough to take the research methods (the most well-known measure is the Implicit Association Test) and apply them to the real-life/real-time assessment of racial bias.
Some new research begins to move us closer to being able to assess implicit racial prejudice by using a variation on the Implicit Association Test called the Go/No-go Association Task (GNAT). The researchers used a simple and elegant means of assessing seemingly unrelated responses (don’t you love how those psychologists do that?) over a five week period in 2008 (measuring implicit racism, attitudes toward Barack Obama, and then who they voted for in the election). Then the researchers went back to the same participants again (a year later) and asked them about attitudes toward the current healthcare debate. The results were striking (and are nicely summarized here).
In brief, health-care proposals were shown to participants and randomly assigned to being either Bill Clinton’s healthcare reform plan or Barack Obama’s healthcare reform plan. Among biased respondents, support for the ‘Clinton’ plan was 70% while support for the ‘Obama’ plan was 41%. Same plan. Different Presidents. Different races. (Among non-biased respondents, support for the plan was roughly the same no matter whose plan it was said to be.)
We first saw this reality while doing pre-trial research in a plane crash case where the airline had acknowledged negligence and all that was left to determine was damages to some surviving passengers. It was shocking. This blog post is not merely a screed against racism (although we wish we could do more to end it). As we have noted numerous times, various kinds of bias play a part in virtually every case. We have the responsibility to monitor how these forces will compromise the jury’s (or even the judge’s) ability to deliver a just verdict. We are all responsible for assessing the existence of racial bias (and keeping up with what it looks like as it morphs) and sorting through how to best represent our clients in ensuring their story is heard.
(If you’d like to read the paper we wrote with recommendations for responding to racial bias, you can download it free at our website.)
‘Sexsomniacs’ and night terrors that kill…where does responsibility end?
We’ve heard the ‘tired’ jokes about sleep-talking and not being responsible for what you say when you are asleep. But are you responsible for what you DO while you’re asleep? Not according to some recent court cases that have hit the media.
There is the “devoted husband” of forty years killed his wife by strangulation while in the throes of a dream about fighting off intruders. Three psychologists testified that he was not responsible for his actions and the judge agreed. Brian Thomas had apparently had “night terrors” for about fifty years without ever being treated. (His condition was confirmed during ten months spent in prison.) At home, he and his wife slept in separate bedrooms but shared a double bed while camping in a campervan. “There is nothing that he has to feel guilty about—it is just all so tragic” said a neighbor.
On a different note, we have the ‘sexsomniac’ case. In this trial, a woman woke up and found “a strange man lying on top of her, engaged in sexual intercourse”. There is no mention of rape—the man was simply “engaged in sexual intercourse”. Even evidence that he had been up all night the day before, used magic mushrooms and then had more than 16 drinks at a party prior to “engaging in sexual intercourse”—had no impact on the verdict. “The combination of the intoxicants and his sleep disorder brought on the illness” said his attorney who also said it was a “very unusual case and a very unusual diagnosis”. Jan Luedecke was determined to be of “no significant threat to the community” and freed. He was, after all, asleep. His relapse prevention program involves stress reduction, a maximum of 2 alcoholic drinks per week, getting 8 hours of sleep per night, not to stay up late or go to late parties, and to not fall asleep at parties.
David DiSalvo at Brainspin blog wonders if sleepwalking is the next insanity defense and lists a number of other cases where an “I was asleep” defense was used and only infrequently succeeded. He opines that whether a murder is explained by a sleep disorder (even a severe one) is debatable at best.
These are the sorts of cases that jurors find tough to swallow and frankly, we understand why. It is intriguing that all these cases (the two described here and the four in Disalvo’s blog post) involve men who killed or assaulted women. It is curious that apparently the sleep disorders of women are not severe enough to result in murderous behavior. Absolving someone of murder due to a sleep disorder assumes we know much more about the brain than we actually do know.
Sleep disorders are neurologically based and so this could be categorized in with the “my brain made me do it” defenses. There simply is not a solid test as of yet for identification of sleep disorders and certainly not one to determine which sleep disorders are severe enough to explain murder.
“I didn’t know truth had a gender”
We figured when we did our post a few months ago on how hard it is to be a woman that we wouldn’t see more news like that so quickly. We were wrong. It happens. This time two more dings on women as witnesses and this time, it’s overtly about gender and accuracy in testifying. That is, if you’re a woman witness in court, you are likely unreliable, emotional and prone to tearfulness on the stand.
Deep breath. Here we go (again). A 69 year old male judge in Ottawa, Canada dismissed the testimony of the Ottawa mayor since she was commuting to Toronto and “leaving her husband and child in Ottawa”. The mayor’s response: “I didn’t know truth had a gender or a family.” There has been an outcry from various groups over the unfairness of this judicial ruling and comments that a male politician would not have been subject to the same thought processes.
But that’s Canada. Surely the same things wouldn’t happen here! Enter a law student from Indiana University School of Law doing research on Westlaw.
“I was researching cross-examination tactics, and I happened upon an American Jurisprudence Trials article entitled “Cross-examination of Plaintiff and Plaintiff’s Witnesses” (Westlaw citation is 6 AMJUR TRIALS 201):
(Keep in mind this from a section titled “Particular Witnesses” and the “particular witnesses” covered are children, the “aged” and women)
§ 45. Women
Women, of all types of witness, show the widest range of personality traits while on the stand, because they are usually much more emotional than men, and less inclined to observe and to relate occurrences on the basis of intellectual impressions alone. Paradoxically, most women are less inclined to exaggerate than are certain types of men, and are much more observant of minute details than are most men. As a rule, it can generally be said that women do not make strong witnesses on questions involving technical or factual matters, but make excellent witnesses on those matters involving close observation.” (see more at the URL cited earlier).
The law student involved contacted Westlaw who apparently stated they had chosen to remove the entire section. So maybe we have good news and bad news here: the bad news is that these sorts of biases obviously remain. The good news is that sometimes we can do something about bad information that is still out there.
Voir dire lesson: “I don’t believe everything I hear”
“Sandra, a fifth-grade teacher, has just completed a science unit on molecules, and her class has done well on the unit test she just handed back. After going over the test, the class heads to recess. Sandra overhears one student who received a high test score asking another, “Do you really believe that stuff about molecules?” The other replies, “No way!” Sandra has never heard such an exchange in 10 years of teaching. She wonders if it is rare for students to disbelieve ideas they have encountered in class or if this occurs regularly and she has just never noticed.” (Chinn and Samarapungavan 2001)
In truth, it happens frequently according to researchers. And not just for controversial topics such as creationism, global warming, or various religious doctrines. We generally fail to distinguish between knowledge (i.e., “I heard it”) and belief (i.e., “I think it’s true”) when we are discussing even widely accepted topics such as historical events, or as above, the structure of the cell.
The distinction is critically important. Just because a teacher/expert may understand and believe these ideas, the student/listener does not and this has important consequences for how information must be presented in order to be not only heard, but also believed.
With adult listeners, such as jurors, for example—evidence strongly suggests that pre-existing attitudes/biases strongly influence beliefs about outcomes. Rather than being open to new conclusions or outcomes, we tend to listen to and retain those facts which support our pre-existing attitudes. This happens most strongly with those attitudes of which we are consciously aware (Fazio, Ledbetter et al. 2000). This is good news for litigators.
The question for jurors is not whether they are “willing to consider evidence about X”, but instead, whether the underlying assumptions about X are things that they are not inclined to accept. By identifying the attitudes and values which will be most negative for your case, you can use that information to your advantage in voir dire. Striking those jurors who will be consciously predisposed to “hear but not believe” will leave you with a panel more likely open to the potential to consider alternate perspectives upon review of the evidence.
Chinn, C. A., & Samarapungavan, A. (2001). Distinguishing between understanding and belief. Theory Into Practice, 40, 235-241.
Fazio, R. H., J. E. Ledbetter, et al. (2000). “On the costs of accessible attitudes: Detecting that the attitude object has changed.” Journal of Personality and Social Psychology, 78(2): 197-210.
“I can see it from both sides”
This is one of the scariest comments uttered during jury selection. The scary part is that it has little meaning, but if you aren’t politely persistent, it can hide the truth. The problem is that “I can see it from both sides” is the cognitive equivalent of “I am still breathing”. Unlike the image to the left, which might be initially awkward to visualize in both forms, the two sides of an issue are pretty easily spotted, especially since the jurors have just been told what the two sides are. What is left unsaid is “I can see both sides, but I like what I see on one side much more than the other”. What the response means is, “I don’t want to have to think very hard about my assumptions or preferences”. Not meaningful, not helpful, and you might be stuck with it. [The implications of this message for voir dire will be dealt with in an upcoming entry in our “Simple Jury Persuasion” series.]
Mock jurors often make this statement in group deliberations as they attempt to articulate the opposing parties’ positions. While they often present a superficial understanding of “both sides”, sometimes their belief that they understand things thoroughly can be pretty shocking.
This past week, I ran across the info-graphic illustrating American political views created by David McCandless & Stefanie Posavec. It is more insightful than the cartoonish format would initially suggest. Their work depicts a wealth of information on values, attitudes and beliefs that normally takes books to communicate. Instead, they offer up a modern version of the pictogram with amazing amounts of information from both liberal/progressive and more conservative points of view.
In a way, this is a lesson for litigators. Simply because of the amount of time you spend on a case, you develop a form of tunnel vision. You see your side. As for the other side? Much harder.
That is why, when preparing for a mock trial or focus group, we recommend that lead counsel takes on the opposing counsel role. It’s the very best way to see things from their perspective, and, in so doing, you also see holes in your own case that were not visible to you before.
The act of taking on the ‘other’ perspective, allows you to both see and hear things differently. A recent study profiled in Science Daily illustrates that how you present/articulate/characterize your side of the story defines precisely who will hear it and who will not hear, or perhaps even distort it. When even experienced litigators are fearful of rolling the dice with a jury trial, it makes a lot of sense to consider that other perspective and craft your case presentation to increase your odds of being heard by both sides.
The image on this post is a famous example of seeing something from both sides—the optical illusion allows you to see either an old woman or a young girl.
Litigation consulting and the meaning of life
I like to work on cases that I care about. Who doesn’t?! Life is more meaningful when we spend it on activity that has personal meaning, right? As a litigation consultant, I am faced with cases with facts that are obviously compelling, as well as others whose appeal is, shall we say, ‘non-obvious’. What my kids ask me, though, is “are you working for the good guys?”
What a simple question. “Are you working for the good guys?” And how complicated. But it is, at bottom, what jurors want to know, too. And it is the challenge of every trial lawyer and every litigation consultant to find a path to “yes” when asked that question. In morally ambiguous cases the answer may become “there are no bad people in this story, it is simply sad.” Or “these are good people who really lost their direction.” But the challenge is to find a way to feel good about them.
My experience working with new attorney clients is that the first time we work together, like any ‘first date’, is a bit tentative. I feel my way around their approach to doing things, and they learn my strategic ideas. The second time is more fluid, as most second dates tend to be. When we have an opportunity to work together a third time, we do it as friends and collaborators.
Several years ago a client/friend and I had a meeting about a new case for which he had sent me the documents for review, and at the beginning of the meeting I said “I really like this case”. He burst out laughing and said that he knew I was going to say that, and he questioned whether I was seeing the case realistically. What ensued was an extremely fruitful exchange of ideas about the risks of the case, the points of attraction, and what it will take for a jury to “like our case”. What he realized (and now, years later, what he has come to expect from me) is that part of my task is to see the path jurors need to take to “like our case”, as well as the detours that will cause them to find against us.
As a determined optimist, I want to believe that a verdict in favor of my clients represents justice. That is what juries want to believe as well, and the job of a litigation consultant is to assist the trial counsel to illuminate that path. If I can’t find a way to make a positive verdict for my client feel like a good thing, I can’t expect a jury to. Juries are extremely good at detecting authenticity. Belief about the merits of our case, even with the conscious awareness of its flaws, is the tightrope we walk every day. Thousands of jurors have told me what they care about, and where the threads of tolerance are woven into the fabric of their beliefs and values. We keep this knowledge foremost in our minds, from discovery to resolution.
So yes, kids. I am working for ‘good guys’. But the opposition might feel that they’re working for good guys, too.
But they did it on purpose!
We know that when we think someone hurt us on purpose, we are more angry and perhaps even morally indignant. The idea that we were hurt intentionally makes our blood boil (or tears flow). We know this anecdotally. And now, we know it to be scientifically true!
Harvard researchers have found that pain hurts more intensely if we think it is being inflicted intentionally rather than accidentally. The authors use the example of why we stay in abusive relationships—if we presume the hurt is accidental, it’s okay to stay. When we finally realize the hurt is intentional and will continue, we can often muster the courage and integrity to walk away.
This is an intriguing study because it speaks to the heart of telling the emotional story at trial. You want jurors to have an emotional response—a connection to your story, to your client. You want them to ‘want to’ find for your client, and see him or her as a worthy recipient of their support. What this research tells us is that if the pain inflicted on your client was ‘intentional’, jurors may have a stronger emotional response to it. Here is how we might use this research finding to inform practice:
- In a divorce case: S/he purposely deceived your client knowing full well that if these behaviors had been known, our client would have ended the relationship.
- In a contract case: They entered into this verbal agreement with no intention of performance, their intent was simply to delay competitive progress while they worked on their own plans.
- In an intellectual property case: S/he purposely worked with us to take our research findings to a competitor and secretly filed a patent application before ours was filed.
And so on. Your goal is simply to light the fire of moral indignation in the minds of the jurors. You want to answer both aspects of the common juror refrain “it may be legal but it sure isn’t right”. Show them it isn’t right. Show them it isn’t legal. Give them facts to buttress their feelings in deliberations.
Sometimes what feels wrong is still legal conduct. That is unsatisfying to jurors, but they usually want to track the law. But sometimes the law works as it should, and what is wrong is also illegal. When that happens, jurors become engaged on a very personal level. Let them know: “This one isn’t right AND it isn’t legal.”
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