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Time for another one of those combination posts on things much too good to overlook. This time we are almost all about various sorts of bias to keep you up to speed on the different ways we make (and teach) biased judgments.

Bias is taught—even to artificial intelligence

We hear a lot about how parents pass biases on to their children but how about how the creators of artificial intelligence devices pass on their own biases to their creations? Scientific American has an article explaining how those who create artificial intelligence program in their own biases. Say it isn’t so, you exclaim! Here’s an example of a “computer algorithm that identifies black defendants as more likely to commit a future crime even though the program was not designed to consider race” in computation. Some have referred to this as a “white guy problem” in artificial intelligence and it has been linked to the problem of fake news. There’s an intriguing story of a researcher who set out to prove stereotypes on criminal-physiognomy wrong—and found quite the opposite and leaped to a “reckless conclusion” that “facial structure predicts criminality”. Yikes. You will want to read this one!

Your friends are secretly accessing your Facebook account

You should probably change your password. According to a study of more than 1300 Facebook users, new research found that 24% of them (more than one in five) had snooped “on the Facebook accounts of their friends, romantic partners, or family members, using the victims’ own computers or cellphones”. You may have seen examples of this where the status of a parent with multiple children is changed to say something like “Kelsey is my favorite child” (and that would mean Kelsey has accessed that parental account). The more concerning access is the “jealous snoop” who, according to the researchers, will access your personal messages for 15 minutes or longer (typically to the detriment or even dissolution of the relationship). You can read the entire research paper here.

The bamboo ceiling: Where are the Asian-Americans in leadership? 

Harvard Business Review blogs posts an intriguing article on diversity and how Asian-Americans out-perform other minorities and Whites in terms of education, employment and income. However, Asian-Americans are under-represented in leadership leading to the term “the bamboo ceiling”. The bamboo ceiling is actually worse than the glass ceiling effect for women. Why is this happening? The writers suggest it happens because of stereotypes about Asian-Americans. Further, those who stand up and behave differently than their ethnic stereotypes often experience a backlash (meaning they still do not advance). The authors recommend that we rethink what a “good leader” looks like as the worker population in the US continues to diversify. (You may also find the lessons we’ve learned about attitudes toward Asian-Americans in litigation interesting.)

How fast does racial bias kick in? The time it takes for your heart to beat

New research in Nature Communications tells us that our heartbeat itself can increase pre-existing racial biases. When participants saw a Black person approaching during a heartbeat (as opposed to in between their heartbeats) they were more likely to see the situation as life-endangering. We are impressed that they could time the image display that precisely. As you might imagine, this is thought to have strong implications for addressing the high number of shootings of unarmed Blacks. We wrote about this sort of research in a paper following the Trayvon Martin shooting and this work focuses again on whether a Black (or White) individual was holding a gun or simply a mobile phone. The researchers found that when the image of the approaching (either Black or White) person was flashed at them at the moment their heart beat (rather than in between heartbeats) they were about 10% more likely to perceive the object held by the Black person as a gun. Multiple news outlets have picked up this story. You can read summaries at Science Daily, Science Newsline, or Newswise. You can read the complete article here.

Can you really overcome unconscious bias?

Yes, says Jordan Axt writing in Scientific American blogs. He describes a series of studies published recently in the Journal of Experimental Social Psychology. Axt and his co-author, had participants play a card game where either black or white avatar faces were (randomly) selected to represent their player. What they found was that those participants who wanted to behave in non-biased ways were more resistant to “learning” black faces as avatars would mean a losing hand. The author says that “performance only suffered when the task supported potentially unwanted racial associations”. They believe that our underlying attitudes “may have the first word but not the final say in behavior”.

Azevedo, R., Garfinkel, S., Critchley, H., & Tsakiris, M. (2017). Cardiac afferent activity modulates the expression of racial stereotypes Nature Communications, 8 DOI: 10.1038/ncomms13854


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It is disconcerting to watch the political upheaval in this country but similar things seem to be happening around the world. We just found a new group that measures societal changes in trust. Edelman has surveyed “tens of thousands of people across dozens of countries” for the past 17 years measuring levels of trust in business, media, government, and non-governmental organizations (NGOs) which are typically non-profit. According to Edelman, this year is the first time the average level of trust (“to do what is right”) in all four types of institutions decreased. They also report the following statistics:

71% of survey respondents said government officials are not at all or somewhat credible.

63% said CEOs are not at all or somewhat credible.

60% of respondents trusted “a person like yourself” (which was in line with trust in a tech expert or an academic). In other words, they say, peers are now on par with experts.

NGOs were most trusted, Business was a close second (only one point behind NGOs), media came in third, and government came in fourth. (These place finishes should be considered skeptically since their combined overall approval rating was less than 50%.)

The following graphic shows a comparison of 2016 and 2017’s trust ratings for the four areas surveyed.

In addition to the Executive Summary, you can view Global Results, and watch a video on what Edelman calls a trust implosion. When trust declines, populism rises says Edelman—and we have seen that internationally as well as here at home.

From a litigation advocacy perspective, perhaps most important for our work is their lessons on how trust has been broken—housed over at Scribd. Here are a few of their lessons we see as related to litigation advocacy:

Leading the list of societal concerns and fears we measured that are commonly associated with populist actions are corruption (69% concerned; 40% fearful); globalization (62% concerned; 27% fearful); eroding social values (56% concerned; 25% fearful); immigration (55% concerned; 28% fearful); and the pace of innovation (51% concerned; 22% fearful).

People are nearly four times more likely to ignore information that supports a position they don’t believe in; don’t regularly listen to those with whom they often disagree (53%); and are more likely to believe search engines (59%) over human editors (41%).

53% agree that the pace of change in business and industry is too fast. They worry about losing their jobs due to lack of training or skills (60%); foreign competitors (60%); immigrants who work for less (58%);  jobs moving to cheaper markets (55%); and automation (54%).

The trust crisis demands a new operating model for organizations by which they listen to all stakeholders; provide context on the issues that challenge their lives; engage in dialogue with them; and tap peers, especially employees, to lead communications and advocacy efforts.

We will be paying careful attention to these issues as we pursue pretrial research and litigation advocacy in 2017. The ways that people (aka “jurors”) evaluate cases will reflect the kinds of mistrust and alienation that this study identifies. Anger seems to be intense, we are devaluing experts, concerned about those different from us, and not listening to those with whom we disagree. These states of being have direct relevance to our efforts to teach, explain, and persuade.


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Some interesting research is described in plain language over at the Vox website by Joshua Knobe (an academic from Yale). The article highlights a question we’ve been wondering about that may be important for all of us to consider over the next four years as we plan strategies for litigation.

The question is this: Just how hard is it to get people to move from a perspective of seeing some behavior as morally outrageous to seeing that same behavior as acceptable or even normal? And the answer is disturbing: it is pretty darned easy.

The author discusses how it is important that we continue to see morally outrageous behavior as not normal and that we do not move it to something as simple as bad or wrong. He offers examples of how cognitive science can help us to understand how we begin the process of moving behavior from “morally outrageous” to “bad or wrong” and perhaps, on to “that is just how s/he is”.

Recent studies have taught us a lot about what happens when people classify events as normal or abnormal. [snip] Our minds use the normal-abnormal distinction to rule out many options in advance. At the core of this research is a very simple idea: When people are reasoning, they tend to think only about a relatively narrow range of possibilities. [snip] One important question about human cognition is how people end up choosing one option over the other in a case like this.

[snip] This is where the notion of normality plays its most essential role. Of all the zillions of things that might be possible in principle, your mind is able to zero in on just a few specific possibilities, completely ignoring all the others. One aim of recent research has been to figure out how people do this. Though the research itself has been quite complex, the key conclusion is surprisingly straightforward: People show an impressive systematic tendency to completely ignore the possibilities they see as abnormal.

We make use of the normal-abnormal distinction when thinking about causality.

That last sentence from the Vox article is why we are sharing it with you here today. We know our mock jurors always want to know ‘why’ or to hear about the motivations of the parties. What this research tells us is that if jurors see behavior as abnormal—they are less likely to view the morally outrageous behavior as acceptable or valid. Or they may be more likely to see the behavior as totally unacceptable and worthy of punishment.

Yet, we have to be careful with these research findings and not assume we know how to use them. Here, again, is an example taken from the Vox article (and real life).

For an especially striking example, consider a real-world problem that arose in Arizona’s Petrified Forest National Park. Tourists were stealing bark from the trees, and the park as a whole was gradually being destroyed. What could be done to stop this theft? The staff of the park decided in the end to put up a sign:

‘‘Your heritage is being vandalized every day by theft losses of petrified wood of 14 tons a year, mostly a small piece at a time.’’

The goal was to raise awareness of the problem, making people see more clearly what was so bad about stealing from the park. Perhaps the sign did succeed in raising awareness, but it also had another, more surprising effect.

By drawing attention to the fact that people often steal, it made people see theft as normal.

Many of the park visitors might have seen theft as something that wasn’t even worth considering (like trying to eat your shoe), but the sign helped to switch them over to seeing it as something that might be bad but was still among the normal options (like eating chocolate cake). A systematic study examined the [counter-intuitive persuasive] impact of this sign.

The key result: Putting up this sign actually led to an increase in the total amount of theft.

In the story above, the park took down the sign and stopped informing visitors of the thefts (and thus normalizing theft and making it a behavioral option). From a litigation advocacy perspective, we want to work to maintain the (moral) outrage and horror associated with egregious behavior and not do or say anything that would normalize it. That is easier said than done though, as Joshua Knobe comments in closing the Vox article.

So then, what is to be done? I wish I could say that cognitive scientists have settled on a different but equally effective solution and that all we need to do now is go out and implement it. Unfortunately, however, that is not the case. Research in cognitive science has done a lot to give us a deeper understanding of the problem we now face, but it has not yet furnished us with a workable way of addressing it.

Thus, it is for all of us to focus on how we can seek to not dull jurors’ minds to the horribleness of egregious conduct.

A number of years ago we worked on a criminal case in which an employer was drugging female employees and taking nude photos of them while they were unconscious. What we noted in pretrial research was that the more often we showed the photos of the women, the less impact it had. The Defense would want to work to maximize the photos being shown while the Prosecutor would want to limit the photos to maximize the visual (and emotional/moral) impact.

The next few years will be a challenge for each of us as we work to understand more about how to either maintain the moral outrage of jurors at egregious behavior or trying to dull the impact of the egregious behavior through repeated exposure (depending on our side of the aisle). The actual research the Vox article is based upon is available here.

Thomas F. Icard, Jonathan F. Kominsky, & Joshua Knobe (2017). NORMALITY AND ACTUAL CAUSAL STRENGTH. Cognition


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The Gallup folks just published an update on LGBT adults in the US and we want to bring it to your attention to illustrate how societal change is happening and we need to keep up. We are going to highlight a few facts from the Gallup report but encourage you to read the story in its entirety.

For those interested in these things, this giant survey was conducted by telephone [60% cell phone and 40% land lines] with a random sample of 1,626,773 adults living in the US. They were all 18 or older, lived in all 50 states and in DC, and their responses were collected between June 2012 and December 2016. Of the 1.6M+ participants, 49,311 participants said “yes” to a question of whether they personally identified at LGBT.

Here are the highlights of what Gallup’s survey respondents told them:

10M US adults identify as LGBT (this is 4.1% of the population).

Millennials identifying as LGBT are up from 5.8% in 2012 to 7.3% in 2016 and are more than twice as likely as any other generation to identify as LGBT. In the same time period (2012-2016), the proportion of GenXers identifying as LGBTers remained fairly stable and Boomers identifying as LGBT decreased slightly.

More women identify as LGBT than do men.

Among ethnic minorities, the largest increase since 2012 in LGBT identification occurred among Asians and Hispanics. Gallup thinks this is likely affected by the differences in age compositions of these groups (with Asian adults being the youngest among race and ethnicity groupings and Hispanics coming in second).

Increases in LGBT identification were stable across all income and education groups (by 2016, there was “virtually no variation by education”).

Increases in LGBT identification were largely among those identifying as “not religious” (and this group is 3x more likely to identify as LGBT than those who say they are “highly religious”).

Gallup opines that Millennials are less concerned than other generations with sharing “private information” on surveys. They also think the social/cultural climate has changed since survey participants were teens and young adults and it is now more acceptable to identify as LGBT. Gallup cites the legalization of same-sex marriage to support this assertion.

Gallup also thinks it is important to note that all these changes have occurred in a span of only five years (2012-2016). They call this a “marked change” and comment that the US LGBT population has become “larger, younger, more female, and less religious”.

From a litigation advocacy standpoint, this is essential information. We are seeing more and more high-profile LGBT disclosures in the news. Gossip columns routinely report on celebrity statements on sexuality (no link to this one, you can find them on your own!). Most of us are aware of the relatively recent transgender transition of Caitlyn Jenner. Perhaps the most recent is the announcement from model Hanne Gaby Odiele that she was born intersex and had surgery she believes was unnecessary. The fact that LGBT’s are increasingly visible, their issues are discussed more openly, and (especially for younger people) LGBT folks are close friends, family, and—sometimes—themselves. And increasingly, that’s okay.

But not everywhere, or for everyone. As cases are planned and narratives developed, an awareness needs to be maintained of who your jurors might be, and what their experiences, values and beliefs may be. And that includes sexual identification as well as race, ethnicity, gender and age. It is one more variable to make sure you maintain awareness of, as it is clearly changing faster than ever before.

Gallup (January 11, 2017). In US, More Adults Identifying as LGBT.


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Swearing makes you seem more honest 

Friday, January 27, 2017
posted by Douglas Keene

But we still don’t recommend it in polite company (aka, the courtroom)! An international team of researchers (from the Netherlands, Hong Kong, the United States and the United Kingdom) have just published an article examining two perspectives on profanity and honesty.

The researchers say that, on one hand, profanity is considered a violation of social norms—but, on the other hand, profanity is often used to express one’s true feelings and might therefore, be seen as a sign of honesty. So (likely in search of tenure) these academics pressed forward to examine a question which has never crossed our minds: does swearing make you seem more honest? And, the short answer is, yes it does.

The researchers conducted three separate studies and here is a summary of what they found:

In general, we are more likely to swear to express ourselves rather than to attack others.

Those who swear were less likely to lie and deceive in a total of 73,000 Facebook updates (a metric of importance to be sure).

And finally, (by using the 2012 Integrity Analyses of 48 US states completed by the Center for Public Integrity) the researchers found that those who swear more tend to live in states that have more integrity. (Okay, then!) Yes, readers, we are also amazed that there are whole states that have more integrity. Oh—please don’t tell those 73,000 Facebook people about this or we will be inundated with likes, hates, and everything else we really don’t need.

The researchers say that when one is not filtering their language they are likely being truthful and that observers use this heuristic shortcut to assess trustworthiness. This would not always be true of course and the researchers do comment that just because you curse does not mean you are law-abiding. Good to know.

From a litigation advocacy perspective, it is an interesting study.

We’ve had witnesses who peppered their speech with profanities and while some mock jurors found it refreshing and a sign of honesty, others found it insulting and offensive. Thus, some mock jurors listened and some mock jurors tuned out.

We’ve had a male Hispanic witness who talked directly and without shame about extramarital sexual behavior, yet was embraced by our [generally conservative on social issues] Hispanic mock jurors as being “nasty but honest”.

And we’ve had female witnesses whose testimony was so matter-of-fact and seemingly non-rehearsed that mock jurors referred to them as “salt of the earth” sorts, based on just a few minutes of deposition excerpt.

We think using profanity in the courtroom is almost always a very bad idea. It might offend jurors, but it is almost sure to raise the ire of the judge. When mock jurors dismiss a witness’ testimony because “he wasn’t wearing a tie” or “her hair is a very strange color”—the use of profanity will communicate to jurors that a witness is at best not taking the process seriously, or disrespecting the court. My mom would have pointed out that there are certainly other behaviors aside from profanity that witnesses can use to bolster their credibility without sacrificing civility.

Just for fun, has summarized this paper and they include a 6 minute video with deception detection guru Paul Ekman on their site. You may find it interesting—and at minimum, you will see he is a very credible speaker—even without using profanity (or wearing a tie).

Feldman, G., Lian, H., Kosinski, M., & Stillwell, D. (2017). Frankly, We Do Give a Damn: The relationship between profanity and honesty. Social Psychological and Personality Science DOI: 10.1177/1948550616681055


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