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I am CaitIt’s the new reality show/documentary of the transgender transition of Cait Jenner. According to a new article in The Conversation, liberals and conservatives are both watching it but for very different reasons. The authors of this article (a group of philosophers) say that where you stand on the transgender debate is largely a function of your political ideology: liberals support her, conservatives question whether Caitlyn Jenner is mentally ill. Of course, say the authors, there are exceptions to these rules.

Liberals and conservatives say they are watching because they want to “get the facts straight” about “what gender is”. But these authors don’t think that is really the nature of the debate on Caitlyn Jenner’s transition. Instead, they say, it’s probably about what is called “identity protective cognition”.

Identity protective cognition is our tendency to selectively accept or dismiss information to support one’s identity. They go on to say that conservatives experience transgender people as dangerous to our social hierarchy while liberals want to embrace the transition experience since they favor an egalitarian society.

We think this is fascinating (and yes, at least one of us is watching the show–and it is probably me) as it mirrors what we see with mock jurors consistently. We see jurors accepting and discarding the information that fits with their world views and we refer to it as “motivated reasoning”. We find that this process (whether you call it motivated reasoning or identity protective cognition) is influenced by more than just whether you are liberal or conservative.

This phenomenon is something we are always looking to understand more fully. How can we get around this natural process so jurors will actually hear the evidence presented? If you’ve been watching this blog for the past few months—you may think, as we are beginning to think, that answers to that long-standing question are emerging quickly.

So. If you haven’t watched it yet, why not take a look at this television show? It is different from anything else you’ve seen on TV and, while it gets a little preachy at times, they are apparently trying to teach us all about a very complex and nuanced topic. (And if you want to learn more about the common vocabulary used in advanced gender diversity conversations before you watch, try this article from Alexis Forbes in The Jury Expert.)

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TJE_logoWe’ve written for The Jury Expert a fair amount. In case you don’t know, The Jury Expert is the online journal published by the American Society of Trial Consultants dedicated to the art and science of litigation advocacy. Our articles in The Jury Expert are focused on litigation advocacy and meant to help you do your job with the latest information available. The last time we updated you on the articles we’ve written for The Jury Expert was in July of 2012. Take a look at what we’ve done in the past couple of years.

Loyalty, Longevity and Leadership: A Multigenerational Workforce Update: Our most recent article was written as we prepared for a large CLE presentation on the multigenerational law office. Do you wonder how to maximize the contributions of Baby Boomers, Gen X’rs and Millennials? This paper is as up to date as you can get on multigenerational issues in the workplace. Here’s a preview: “As we prepared for the mock trial research with mock jurors of varying generations, our client said, “50 year old GenXers?”. It’s hard to believe GenXers are really that old, but do the math—time has continued its inexorable march. Do that math a few more times and you will see the oldest Millennials are in their early thirties and the oldest Boomers are turning 70! It is easy to lose track of the passage of time and many of us tend to retain our outdated impressions of younger generations frozen in time. But they are growing older (just like we are) and changing as they mature. It’s imperative that we all keep our internal stereotypes up-to-date with reality in order to not be left behind with an outdated vision of who will come to interviews or even serve on our juries”.

Book Review: Law and Neuroscience: A book review from Rita on a reference book and textbook covering the fast changing world of neurolaw. As a voracious reader and a veteran scourer of electronic databases, I often prepare myself to be disappointed when opening newly published professional books since they are almost always out of date by the time they are published. This one is different. When I read the quote below, I grinned and realized this volume would not simply summarize, but also inform readers and encourage the development of critical thinking through the relaying of case narratives and interpretation of research and law that is naturally engaging to those of us with an interest in the area.

“Even if fMRI could reliably diagnose psychopathy, it wouldn’t necessarily reduce a defendant’s culpability in the eyes of a judge or a jury. Ultimately, the law is based on an individual’s rational, intentional action, not brain anatomy or blood flow”, says Stephen Morse, professor of law and psychiatry at the University of Pennsylvania. “Brains don’t kill people. People kill people,” says Morse.

Demographic Roulette: What Was Once a Bad Idea Has Gotten Worse: We wrote this paper based on new survey data that said (to us) what we’ve been saying for years: “You can’t deselect (or select) jurors based on demographic information.” Here’s a peek: “Almost eighty years following Clarence Darrow’s distillation of how religion shapes jury behavior, the belief that demographics could be the holy grail for the selection of jurors persists. It is routine for our [attorney] clients to comment, in the midst of a mock juror deliberation, “Well, it looks like older women are good for us!” and for the associates to quickly add this to their notes for use in the upcoming jury selection. The lingering hope that demographics could predict a juror’s eventual vote represents a pesky and persistent belief. Too bad it’s rarely true.”

Book Review- Social Media as Evidence: Cases, Practice Pointers, and Techniques: Another book review from Rita—this one on social media issues. Here’s a little from the introduction: “The social media landscape shifts quickly and keeping up with changes in platforms, privacy settings, and case law is more than a full-time job. Websites used for juror research may be purchased by other websites and, suddenly, their results are identical. You can spend hours doing painstaking research and inadvertently “make contact” with a juror because you don’t understand how different social media websites notify users of who has looked at their social media profiles. You may think you are being very, very careful, and yet leave a trail behind you—sometimes called “cyber crumbs” or “electronic footprints” that can unintentionally identify you as having peered into the social media life of someone you (likely) do not know.”

The “Why” and “How” of Focus Group Research: Doug wrote this one for an issue of The Jury Expert prior to beginning to publish online. It’s been re-published as part of an issue on articles that stand the test of time. Here’s a sample: “Properly conducted focus groups are extremely useful in getting reactions to a wide array of aspects of the case. While it is not prudent to expect that the “verdict” of a small group research project will be repeated at trial, it is very likely that the same values, hot buttons, and sensibilities that engage the research group will resonate in the jury room”.

Intergenerational Law Offices, Intergenerational Juries: Values, Priorities, and Decision-Making: Another in the series of articles we’ve written on multigenerational issues—this one focused on the office and the courtroom. Here’s a sample of what you’ll find in this article: “The legal blawgosphere has been filled with anecdotal tales of what is termed “generational conflict” for years now. Based on conversations with our clients, contentious inter-generational interaction is not just out there “on the web”. It’s everywhere. We’ve written extensively on issues related to generations–both in the courtroom and in the office. As litigation consultants, we hear senior partners aiming sharp criticism toward both younger jurors and younger lawyers (especially new law school graduates), and we see the associates roll their eyes and grit their teeth at the disrespect they feel from some partners. The work ethic of the younger attorneys (judged as inadequate by older attorneys) is blamed for their trouble in finding jobs. “If they were not so lazy”, the opinion seems to go, and “if they did not want instant success, they wouldn’t have such a tough time finding work.” It is, in short, their own fault they are unemployed. They have bad values. Or so it is said by many of their elders. Especially the subgroup of employers, supervisors, and– occasionally– parents. But is that accurate? It turns out that it’s likely untrue.”

“Only the Guilty Would Confess to Crimes”: Understanding the Mystery of False Confessions. We wrote this paper as we researched the literature about false confessions in preparation for a case involving a man who spent 8 years on death row for a crime he had nothing to do with. This published about the time the documentary “Central Park Five”  came out, and it’s been consistently accessed by readers since then. Here’s an introductory view: “It is naturally hard to understand why anyone would confess to a crime they had not committed. Yet, in North America we can trace false confessions back to at least 1692 and the Salem Witch Trials where “large numbers of mostly women were tried for witchcraft on the basis of confessions extracted by torture and threats” (Kassin, 2010). More than 300 years later, people continue to falsely confess to crimes ranging from academic cheating to murder. But the mystery of why someone would falsely confess persists. Unlike the Salem Witch Trials, most false confessions today are provided under psychological duress, but without torture or threats of physical harm. Do the generally accepted modern police methods still produce false confessions, or does the responsibility for false confession fall entirely on the confessor? There is a tendency to believe “others” might well confess under duress–but most people think they, themselves, would never do such a thing (Horgan, Russano, Meissner & Evans, 2012). This belief illustrates the reality that most of us have no idea of what it feels like to undergo an interrogation. More than 80% of those taken into custody by the police waive their Miranda rights (Sangero & Halpert, 2011)”.

Book Review: Police Interrogations and False Confessions: Current Research, Practice, and Policy Recommendations: Another book review from Rita—this one reviewing false confessions research. Here’s some thoughts from early in the review: “This is a collection of chapters written by well-known scholars in the area of false confessions and police interrogations. A review of the Table of Contents shows a stimulatingly broad range of topics. You will find the expected reviews of research on police interrogations and false confessions and then everything from juvenile interrogations, the difference between false confessions and false guilty pleas (which takes you into the shadowy arena of plea bargains), chapters on recording the interrogation (one of which educates on camera angles that reduce observer bias), how to most effectively give the oral Miranda warning, the expert witness (including identification of the five most common challenges to expert testimony and suggestions for refuting those challenges), and a whole lot more.”

Hydraulic Fracking & The Environment: Juror Attitudes, Beliefs, and Priorities:  We were hired to work on fracking cases for both Plaintiffs and Defendants, and in preparing to address the complex and highly charged issues associated with fracking we discovered that information on attitudes toward fracking was hard to find for mere mortals. And what you did find was often driven by political agendas more than science. Here’s a description of what you’ll find in this paper: “In this paper we generally describe typical positions taken by both Plaintiffs and Defendants, but we will not attempt to weigh the scientific evidence that is typically presented in the toxic tort actions. Instead, we will focus attention on jurors, and the related concerns that litigants are going to face from jurors before the first word is spoken. Americans are consistently concerned about the environment, especially the environment of their own ‘backyard’. This concern is seen in surveys done at national, state, and local levels. As is typical in surveys, the closer the issue is to the respondent’s individual life circumstances, the more concern they express. “

Book Review: The Science of Attorney Advocacy: Rita wrote this book review in July, 2012. Here’s how the review starts: “This is an academic book written in a very accessible style with limited jargon and lots of information as to what advocacy lore is supported (and what is not supported) by the research literature. The book covers a wide variety of topics: attorney demeanor, attorney verbal communication as well as paralinguistic and kinesic communications (all are defined), the attorney-client relationship and attorney storytelling.”

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The Bias Awareness Scale 

Monday, August 17, 2015
posted by Douglas Keene

Bias Awareness ScaleHere’s a new way to measure our awareness of our own biases in four easy questions. Yes. Four. We are constantly writing about bias here and when we see ways to measure bias it is usually convoluted or prohibitively expensive, or contains language not suitable for courtroom use. This scale, however, is different—it is short (four questions) and as it happens, being aware of your own biases leaves you better equipped to respond to what the authors call “contemporary race challenges”.

Essentially, the researchers say that “modern racism” is a form of racism that has largely gone underground. Many of us “think” we are not racist, but, in truth, most of us do harbor at least some racist thoughts and beliefs. The researchers reference the idea of being “colorblind” to race and say that strategy simply doesn’t work. Our society is such that, subtle but racially charged/biased statements are all around us and if we are “colorblind” we will not “see” or “hear” those subtly biased statements. The “blindness” is with regard to awareness of our own biases, not to their existence. According to this research, “accepting” our racial bias is a key factor in being aware of and working toward change in racial bias around us.

So. Without further ado, the researchers gathered 902 participants across three separate studies and had them complete a range of other psychological tests and this new 4-question measure of bias awareness. We know you want the questions so here they are!

Even though I know it’s not appropriate, I sometimes feel that I hold unconscious negative attitudes toward Blacks.

When talking to Black people, I sometimes worry that I am unintentionally acting in a prejudiced way.

Even though I like Black people, I still worry that I have unconscious biases toward Blacks.

I never worry that I may be acting in a subtly prejudiced way toward Blacks (reverse scored).

The questions are placed on 7-point scales anchored with strongly disagree (1) and strongly agree (7). The higher the cumulative score on the four questions, the more the individual is aware of their racial biases. Based on their findings, the researchers believe that bias feedback will be more useful to those who are aware of their racial biases (as measured with the Bias Awareness Scale).

That is, those participants with higher scores on the scale are receptive to the feedback and work to modify/monitor their behaviors and emotions. They were also more likely to perceive acts of subtle bias as racial discrimination.

Those that are unaware of their own biases tend to become defensive and reject the feedback that they have biases—and their behaviors and emotions remain the same.

From a litigation advocacy perspective, this is a tricky one. Unless your case facts lend themselves to concern about racial bias, it would be hard to get these questions admitted for a supplemental jury questionnaire. They are especially suitable for trials related to allegations of hate crimes, use of deadly force or undue force against Black subjects, employment discrimination, and related disputes. These are such brief questions though that it would be curious to see how everyday (randomly selected) mock jurors would respond to them and if their responses are somehow related to eventual verdict on the case. This scale is not one we can use immediately but it is one that could have some utility. We’ll be pondering this one.

Perry, S., Murphy, M., & Dovidio, J. (2015). Modern prejudice: Subtle, but unconscious? The role of Bias Awareness in Whites’ perceptions of personal and others’ biases Journal of Experimental Social Psychology, 61, 64-78 DOI: 10.1016/j.jesp.2015.06.007

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rose colored glassesNominations are now being accepted for the ABA Blawg 100 list. If you value this blog, please nominate us at the ABA site: http://www.abajournal.com/blawgs/blawg100_submit/. The only catch is you have to do it fast! Nominations close at midnight THIS COMING SUNDAY (8/16/2015).

As we completed the research for our latest article in The Jury Expert, we commented on the Millennial perception that, with their generation, gender bias against women in leadership would be nonexistent. Here’s what we wrote about this ‘rose-colored glasses’ view of their futures:

“Finally, in a testament to changing times ahead (or perhaps their oft-touted optimism), only 8% of Millennials fear they will be held back at work due to their gender (and the younger the Millennial, the less sex-based discrimination is feared). “

Unfortunately, this optimistic perspective may be incorrect if today’s paper is accurate. The Harvard Graduate School of Education has published a report through their Making Caring Common Project (MCC). Here’s how Harvard describes the report in their press release:

“MCC’s new research report, Leaning Out: Teen Girls and Leadership Biases, suggests that teen girls face a powerful barrier to leadership: gender bias. Based primarily on a survey of nearly 20,000 students, our report suggests that many teen boys and teen girls—and some of their parents—have biases against teen girls as leaders.”

According to MCC, biases still exist in both teen boys and girls (and in some of their parents—perhaps ironically, the report only specifies their mothers) against teen girls as leaders. The program surveyed almost 20,000 students in 59 different middle schools and high schools. Here are some of the key findings:

23% of girls preferred male to female political leaders (69% had no preference and only 8% preferred female politicians). In comparison, 40% of boys preferred male political leaders (56% of boys had no preference and 4% preferred female politicians).

There were a number of findings on race and ethnicity with students least likely to support giving more power to a hypothetical student council led by white girls and most likely to support giving more power to that hypothetical student council if it was led by white boys. White girls were also biased against leaders who were white girls.

Some mothers also responded in a way that appears to be biased against girls as leaders. (The researchers comment they cannot speak to the potential bias of fathers since their sample of father’s was too small.) Mothers tended to support student councils led by boys more than they did councils led by girls.

And finally, one of our favorite trial strategies pops up here as well. We talk a lot about “raising the flag of bias awareness” and these researchers mention it as well. Awareness of bias (of any type) reduces bias of all types, according to voluminous research findings.

Overall, it isn’t a death knell to the Millennial vision of equity in leadership and gender. The researchers offer a number of strategies for parents and educators to help reduce gender stereotyping in children, adolescents and teens. They are good recommendations for all of us.

It’s a good and clearly written overview of the study with specific recommendations to reduce bias. In this case it’s all about gender biases in leadership. The recommendations however, will work to reduce bias of all types. So go read!

Weissbourd, R et al. 2015 Leaning out: Teen girls and leadership biases. Making Caring Common Project from the Harvard Graduate School of Education. http://sites.gse.harvard.edu//making-caring-common/leaningout

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It makes sense. If someone is rude to you, you might become grumpy and be rude in response, or rude to those who cross your path in the wake of the mistreatment. You may think of this as a small issue but new research shows us that rude behaviors are actually harmful—and, in fact, as harmful as other negative but illegal behaviors such as harassment or discrimination. This is not really a new finding as it’s been around since the initial introduction to workplace incivility. Some would say that workplace rudeness and workplace incivility cause the “death of a thousand cuts” and we would not disagree. While not fatal in and of themselves, the cumulative effect results in much distress. And if distress isn’t enough to promote change, it also produces job dissatisfaction, decreased productivity, and employee turnover. It’s about feelings, and it’s about money.

Today’s researchers wanted to figure out if rudeness in the workplace was contagious—much like the common cold. So they conducted three separate studies to explore this question.

In Study 1, the participants were 90 graduate students (average age 25; 65% White and 62% male) enrolled in a 7-week negotiation course. Over the duration of the course, students met weekly and were paired with up to 16 different classmates to practice various negotiation exercises. Following each negotiation exercise, participants completed an online questionnaire about their experience with the fellow student.

The researchers found that when the participant felt they’d been treated rudely by a negotiation partner, their own behavior toward future negotiation partners deteriorated. In other words—the rudeness contagion can occur on the basis of a single encounter.

For Study 2, the researchers wanted to see if being treated rudely would result in what they refer to as “activation of the associative network” for rudeness. Participants were 47 undergraduates (average age 20.35; 57% female; 68% White, 16% Hispanic, 8% Asian, and 4% African-American) enrolled in a management course. Participants arrived at the experiment in groups of six and first completed a personality questionnaire. That really was just a way to kill time though as the researchers were really more interested in what would happen after the “rudeness manipulation”.

After the 6 participants had all completed the personality questionnaire, there was a knock at the door of the experiment room and someone arriving late. The investigator was either rude to the late arrival (“I don’t know how you expect to hold any sort of job in the real world with this type of behavior but it’s too late for you now”) or not rude (“Email me later and we’ll see if we can find another session to get you in”). Then the real experiment began: participants did word identification tasks where they were asked to identify the category for each word (i.e., a rude word, a noontide word, an aggressive word, or not a word at all).

Individuals who’d seen the experimenter behave rudely responded to categorize the rude words more quickly than individuals who’d seen the experimenter behave politely. The researchers say that in this sort of task, a faster response time to rudeness words only means the concept of rudeness was activated by the experimenter’s rude behavior.

In Study 3, 147 undergraduate students in a management course (age range from 18 to 54 with a median age of 20; 68.5% White, 6.8% African American, 13.7% Hispanic, 7.5% Asian, and 3.4% “other”) were asked to participate in a study involving rudeness in the workplace. Participants were divided into groups and first saw videos of either an employee acting rudely (or politely) to a fellow employee. In the second stage, they saw emails of a customer addressing an employee rudely (or neutrally, or aggressively). After they had seen the videos and emails, participants were asked to decide how to divide up a reward for participation between themselves and a customer who’d expressed concerns (rudely, neutrally, or aggressively).

The results were similar to Study 2. Participants who saw the rude employee were more likely to not share resources equally with the customer whose email they’d seen. In other words, rudeness not only is contagious but also results in negative behavior from the person who was rudely treated.

Overall, the researchers conclude that rudeness is indeed contagious and that the contagion can result from a single exposure. Further, the contagion is not just about being verbally rude but can result in rude behaviors as well. The researchers recommend that workplaces pay attention to the “impact of low-intensity negative behaviors” like rudeness (or incivility). They believe that if these low-impact behaviors (e.g., rudeness and incivility) are not curtailed in the workplace, they will spiral into “higher-impact behaviors” with negative consequences (although employees may not understand the source of their rude behavior and may be unable to stop themselves from passing it on). The implication of this is that it can create a cascade of negative behavior, and result in a negative work culture that undermines job satisfaction and cooperation.

It’s an interesting study when considering the current-day law firm (or any organizational setting). While there are laws against harassment and discrimination, there are no laws against being rude or uncivil and many organizations simply tolerate rude behavior with a shrug of “that is just how that person behaves”. Yet, this research says that allowing rude behavior to remain in your workplace heightens the probability that you will see rude and otherwise inappropriate behaviors escalate until they potentially reach legal liability level. Unlike ten years ago, we now have tools to teach workplace managers so a workplace absent-rudeness can be achieved. It’s a worthwhile goal. For both worker happiness and the bottom line.

Foulk, T., Woolum, A., & Erez, A. (2015). Catching Rudeness Is Like Catching a Cold: The Contagion Effects of Low-Intensity Negative Behaviors. Journal of Applied Psychology DOI: 10.1037/apl0000037

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