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whistle-blower-620x375We’ve worked on several qui tam cases where mock jurors have been suspicious of the motivations for the whistleblower given the huge amounts of money they stand to make. So what if the whistleblower is the [current or former] lawyer?

There’s a really interesting article in SSRN on the ethical issues surrounding lawyers blowing whistles. The authors (both law professors) comment that the attorney is in the perfect position to have information a whistleblower would need to file a qui tam suit and neither the False Claims Act (aka the whistleblower act) nor Dodd-Frank (which allows whistleblowers to keep their identity secret) specifically address the question of whether lawyers can take advantage of the whistleblower incentives.

The authors offer a clear primer on the False Claims Act and examine relevant ethics law for attorneys when considering whistleblowing (like the obligations of confidentiality and ethical duties to both current and former clients) and whether there are prohibitions in the statute itself that would keep lawyers from benefiting financially from blowing the whistle. They address the conflicts between state and federal rules and laws and question whether there are situations in which one would “trump” the other. Along the way, they identify a few lawyers who’ve attempted (unsuccessfully) to prevail in qui tam suits and discuss the personal and professional costs of blowing the whistle. The authors then move on to consider Dodd-Frank and again, offer a clear primer on the program. They cover the same issues under Dodd-Frank as they did with the False Claims Act.

Finally, the authors devote an entire section to “choice of law” referring to the state ethics rules in contrast to FCA or Dodd-Frank. They comment that ascertaining which law applies in cases where a whistle has been blown by an attorney is both complex and murky. They offer a number of case descriptions to illustrate the complexities therein.

Ultimately, the authors pose four questions they see as key to determining whether attorneys can receive an award under a federal program for whistleblowers without violating their fiduciary responsibilities or their rules of professional conduct. The questions are quoted below:

Under what circumstances may a lawyer disclose a client’s confidential information to others?

Under what circumstances does a lawyer’s obligation of loyalty preclude acting adversely to a client, including seeking personal benefit when engaging in conduct that is permissible for other purposes, such as to prevent or rectify harm to another?

Are any of a lawyer’s obligations under state law preempted by federal law that provides for financial incentives for whistleblowers?

Which state’s law applies to lawyers who move from state to state as they work for national companies?

This is a thoughtful examination of a thorny ethical issue. The authors offer no clear answers and no judgment on whether an attorney should be allowed to financially benefit from whistleblowing. This is an attempt to explore whether an attorney can benefit financially from whistleblowing. The paper is designed (at least to our eye) to make you think and to become aware of how complex the issues really are when attorneys consider blowing the whistle on either current or former clients.

Clark, K., & Moore, N. (2015). Buying Voice: Financial Rewards for Whistleblowing Lawyers SSRN Electronic Journal DOI: 10.2139/ssrn.2562610

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sc-police-shoots-unarmed-man-800Police and firefighters earned a major boost in respect and credibility after the terrorist attacks of 9/11/2001. We routinely saw mock jurors expressing admiration and a belief that the police or firefighter client, witness or party was telling the truth. More recent news, however, has left many more suspicious of police officers’ testimony and sparked a movement: #BlackLivesMatter.

The Washington Post recently published an analysis of fatal police shootings from 2015 (almost 400 nationwide so far this year) and reported some disturbing facts:

About half those shot by police were white, half minority. But the demographics shifted sharply among those who were unarmed when shot, two-thirds of whom were black or Hispanic. Overall, blacks were killed at three times the rate of whites or other minorities when adjusting for the demographics of the census where the shootings occurred.

Ninety-two victims — nearly a quarter of those killed — were identified by police or family members as mentally ill.

Thus far, just three of the 485 fatal shootings have resulted in police officers being charged with a crime (less than 1%). This low rate of criminal charges against the police involved in fatal shootings mirrors the findings of a Post investigation in April that found that of thousands of fatal police shootings over the past decade, only 54 had produced criminal ­charges. Typically, those cases involved layers of damning evidence challenging the officer’s account. Of the cases resolved, most officers were cleared or acquitted.

NPR also recently wrote about the issues surrounding death while in police custody—including Michael Brown, Eric Garner, Ramarley Graham, and Walter Scott among others. Even CNN reviewed the deaths, highlighting a number of additional men who died in police custody. Many of us [particularly those who are not African-American] have watched the news reports and videos of police officers shooting or otherwise harming/killing unarmed African-American men and wondered whether this has been happening all along and is just now coming to public awareness. Those in the African-American community likely wonder how we could not know, but also likely appreciate the growing awareness and concern across the country.

So it wasn’t really a surprise to see an article from the Detroit Free Press questioning whether police officers on the witness stand are facing more skeptical juries. This article focuses on how the recent plethora of news stories on deaths (especially of African-American men) in police custody has affected perception of police testimony. Just as police officers were imbued with a sort of ‘halo effect’ after 9/11/2001, perhaps they now have the opposite of that—regardless of how unfair that may be to the individual officer.

The Free Press article is useful for identifying questions you will want to cover in planning witness preparation or cross-examination. As one defense attorney quoted in the Free Press article says, “Maybe the scales are just being tipped back to where they’ve always belonged”.

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good people bad thingsHere’s a really easy solution to our tendency to sometimes do bad things: be aware of the temptation and think of the longterm consequences of the behavior. It’s a simple answer to a vexing problem that has been with us for millennia.

Researchers wanted to see how identifying an ethical conflict and considering the long-term consequences might shape behavior and so designed a series of studies to test the question. The result is a straight-forward recommendation to do what Mom would have told you to do (if only you would have listened!).

In the first experiment, students in a master’s level business program were split into pairs and then asked to either be a broker for the buyer or a broker for a seller in a real estate transaction. There was a built-in conflict between the two since the seller wanted to preserve the property and the buyer wanted to tear it down and build a hotel. Those who were brokers for the seller were told to only sell to someone who would save the brownstone and brokers for the purchaser were told to conceal the buyer’s plan to build a hotel and tear down the existing brownstone. Before the negotiations began though, half the participants were asked to remember a time they’d cheated or bent the rules to get ahead.

Sure enough, only 45% of those who thought about past bad behavior behaved unethically in negotiations while 67% of those who were not reminded of past transgressions lied in order to close the deal.

In another set of experiments, participants were asked about whether it was okay to steal office supplies, call in sick when they were not really sick, or intentionally slow down work progress to avoid additional tasks. Again, half of the participants were asked to do a pre-task writing exercise where they considered an ethical dilemma.

You guessed it. Those who thought ahead of time about an ethical dilemma were less likely to think these common occurrences were acceptable.

The researchers summarize their results by saying that those who wish to promote more ethical behavior may want to help others become aware of the accumulated impact of unethical acts (for the individual and society) and offer warning cues for upcoming temptation.

We tend to see this work as related to all the work done on how we behave better when we think we are being watched or monitored, and one of our very favorite courtroom strategies. Most of us want to behave in ways that show our best selves. This research points both to a simple way to increase the likelihood of that happening and a way to consider questioning the witness who behaved unethically.

As a trial strategy, you hope jurors associate your trial story and your client with that “high road”. But what this research makes clear is that you increase the likelihood of them making that connection when witnesses speak about their awareness of ethics, of right and wrong. A wise guy once said, “Always take the high road–it’s never crowded.” There are ways to connect your case align with those higher values.

Sheldon OJ, & Fishbach A (2015). Anticipating and Resisting the Temptation to Behave Unethically. Personality & Social Psychology Bulletin, 41 (7), 962-75 PMID: 26001580

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TVNewsLogoSo here’s a voir dire fantasy: When race is salient to your case, strike for cause all potential jurors who say they watch their local television news. For what cause?

Because they’re more likely to be racist—at least according to today’s research.

Local news coverage tends to focus on crime according to the researchers and they tend to cover crimes committed by African-Americans all out of proportion to their actual occurrence in the local community. The regular local TV News viewer might therefore be under the impression that African-Americans are a significant and dangerous criminal element in their community—and that impression is a distortion of the actual criminal activity engaged in by African-Americans in their community.

To test the hypothesis embedded in the previous sentence, researchers asked participants how many hours of local news coverage they watched on a daily basis. What they found was striking:

The more local news participants watched, the higher they scored on the Implicit Association Test (a measure of unconscious bias that we’ve written about  before).

In other words, regular exposure to stereotypical television news increases negative implicit biases in the viewer (which can, in turn, say the researchers, alter explicit attitudes and result in discriminatory behavior). This research finding is supported by a recent Media Matters report looking at local TV News coverage of crime (see graphic at right) as well as what the authors describe as a “substantial body of [additional] research” on biased news coverage. What is less clear is whether people who watch these news sources are “made more biased” by the reporting that they watch, or whether they watch the news because it reinforces the beliefs they already held.

media matters insertFrom a litigation advocacy perspective, it’s an intriguing issue. If we know that watching local news corresponds to higher levels of implicit biases (biases of which we are unaware), which increase likelihood of explicit biases (biases of which we’re aware) which, in turn, can result in discriminatory actions—would that not be an important variable to assess? It is at least of interest at the pretrial level to see if the report of local news viewing is related to eventual verdict. Hmmm. Perhaps jurors don’t need to watch the news during the trial to be affected by it; maybe it is telling that they watched local news during the week prior to jury duty.

Arendt, F, & Northup, T (2015). Effects of long-term exposure to news stereotypes on implicit and explicit attitudes. International Journal of Communication,, 9, 732-751

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group_discussion-300x157Want to see a lively argument? Ask a couple of legal professionals if jurors can detect deception in witnesses or parties— and then slowly back away. It’s a hotly debated topic with some saying “jurors usually get it right” and others pointing to reams of research saying no one is a very good lie detector.

We’ve written about deception a lot here and you are likely aware that accuracy rates in detecting deception are only slightly greater than chance (even among trained professionals). But today’s research may change your mind. This is terrific news!

While individuals are never that great at figuring out when someone is lying—groups do better at figuring out deception. But if you are nodding and muttering “the wisdom of the crowd” under your breath—that isn’t why. Instead, it appears to be something about the actual process of group discussion that improves the accuracy of lie detection.

The researchers who carried out experiments described in the article featured here today say there are three reasons a group might detect deception better than individuals. They cite the “wisdom of crowds” effect; the “truth bias” (individuals are more trusting than groups and groups will more actively consider that anyone who is talking is being deceptive more often); and the idea that the very act of group discussion can offer additional information to increase accuracy in lie detection.

The researchers conducted a series of studies. They tested small lies (aka “white lies) and large-stakes or intentional lies. Experiments varied whether individuals or groups of people were determining whether lies were being told. In some experiments, participants made individual decisions about deception without discussion, and in others groups discussed and then made group decisions about deception. What the research found is simple (and cause for rejoicing unless your client is the liar).

Groups were better at detecting both small “white” lies as well as high-stakes or intentional lies.

Groups were not simply maximizing the “small amounts of accuracy contained among individual members” but, say the researchers, “were instead creating a unique type of accuracy altogether”.

From a litigation advocacy perspective, this research supports the “jurors usually get it right” perspective but it also tells us something very important: there is a certain magic in jury deliberations. Thus, it’s important you teach jurors how to deliberate so their work is efficient and effective. While the researchers featured here today don’t know just how the magic happens, it is clear the magic does happen during group discussion (aka jury deliberation). It is a compass pointing to Truth that is unavailable in bench trials, and arguably in arbitrations as well.

It’s also another vote for the jury system—a group listens and talks and intuits and proclaims (more accurately than any individual).

Klein N, & Epley N (2015). Group discussion improves lie detection. Proceedings of the National Academy of Sciences [PNAS], 112 (24), 7460-5 PMID: 26015581

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