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We’ve written about CRISPR (aka human gene editing) before, and wanted to share this new survey with you. When last we blogged, it was to cover the Pew survey on fears about gene editing (and the potential for creation of a super-human). As you can imagine, there was some ambivalence over whether this was a good thing, as well as concerns about the creation of a society where genetically enhanced people ruled those who were not genetically enhanced. Here’s what we wrote a year ago: .

You may be surprised at how ambivalent the public is about using these new tools. As Pew says, “Americans are more worried than enthusiastic” about how these tools will be used. And, as this technology veers more and more into public awareness, being aware of the ambivalence with which Americans view this ground-breaking technology is going to become increasingly important for trial lawyers.

So we were surprised to see a new headline in the online publication The Verge saying that ⅔ of Americans now approve of human gene editing to treat disease. It seemed odd since just last year, Pew’s survey told us this about sick little babies:

Even when it comes to gene editing with the promise of helping prevent diseases for their own babies [emphasis added]—48% support the idea and 50% do not.

And now ⅔ of Americans support gene editing? It just seemed like too sudden a turn around. And—as it turns out, it was. You have probably figured out by now that this is just the latest in a string of directives from us to go to the original source to make sure things are interpreted correctly in secondary source materials.

While the Verge article is based on the full survey results, it does not accurately reflect the ambivalence in the actual survey published by Science Magazine. The graphic illustrating this post shows you that what the headline writers over at The Verge did was to count those who supported human gene editing for specific use as a therapeutic tool to correct disease in human beings. But that leaves out a big part of the picture.

This headline does not include the concerns of those who don’t want the changes to be hereditary and thus change the human germline [aka, these changes would now be inheritable] down the road—which would ostensibly mean that if you are going to have gene editing done, you must either be a male or agree never to have children if you are female so that the germline remains unchanged by human intervention.

And, as you might intuitively predict, what the Science Magazine survey really showed us was that people who had high levels of knowledge on gene editing were more likely to support its use, while those who were religiously active were less likely to support the use of gene editing on humans due to ethical and moral concerns. What both groups agreed on, however, was that scientists should not make these choices alone. Both groups wanted scientists to somehow “engage the public” in a dialogue so that the eventual use of human gene editing would be one that reflected the concerns and wishes of all of American society. That’s a pretty tall bar.

We know that how you ask a question makes a huge difference. If someone is asked whether they think gene editing should be used to protect people from hereditary diseases, they may initially agree. However, when you then ask if they would agree to allow those changes to ‘permanently change the human germline’, you see more resistance to the entire process of human gene editing. As we said back when we blogged on the Pew survey of American attitudes toward gene editing,

From a litigation advocacy perspective, these responses are not necessarily intuitive. While we might intuit that allowing babies to be born without diseases would be a positive thing, respondents did not necessarily agree. They see it as being more complex. Although the parents of that baby struggling with a serious disease would likely strongly support the new technology for helping their child, others might well say “that sounds good, but this is a slippery slope and where will it lead?”.

As with all “hot button” issues, this is one that will require careful pretrial research to identify the most effective way to tell a story that will not set off knee-jerk morally based reactions to the use of new technologies. People want to feel safe from disease, but also from a world where science fiction movies come to life. Equally uncertain is how people see the role of government in nurturing innovation while protecting the public from science run amok.

We think those recommendations still make sense today. When you have an exciting whiz-bang technology like CRISPR, you may get so excited about it that you presume jurors will be excited (and support your case) too. But slow down—with any great advance in technology, there is also often great fear, so do some pretrial research to see how mock jurors respond to your presentation of the technology. It’s likely going to be a pretty complicated response that will require refining your presentation in ways you might not predict.

Dietram A. Scheufele, Michael A. Xenos, Emily L. Howell, Kathleen M. Rose, Dominique Brossard, Bruce W. Hardy. U.S. attitudes on human genome editing. Science Magazine, 11 AUGUST 2017 VOL 357 ISSUE 6351.

Images taken from Science Magazine article cited above

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The graphic illustrating this post contains false data. It is just one example of the way false information has been used to heighten racial tensions in the past few years. The graphic is shown here with FALSE in big red letters to help you remember the data shown is simply not true (we’ve blogged about the importance of this visual strategy before here.

The information contained in this post IS true and comes from a new Marshall Project investigation into 400,000 murders by civilians between 1980 and 2014. They begin the report with these bold statements (which are backed up by actual data). Keep in mind that these statistics DO NOT include police shooting of citizens.

When a white person kills a black man in America, the killer often faces no legal consequences.

In one in six of these killings, there is no criminal sanction, according to a new Marshall Project examination of 400,000 homicides committed by civilians between 1980 and 2014. That rate is far higher than the one for homicides involving other combinations of races.

You may not find this statement as difficult to believe now given the racial tensions exploding all around us in the US but it is still alarming evidence suggesting that Black lives are less valued than other lives. This is not an isolated phenomenon:

“The disparity persists across different cities, ages, weapons, and relationships between killer and victim”.

This is a very important report for you to read if you want to understand the actual numbers surrounding the killing of Black men by White people who are not employees of law enforcement organizations. (That one is a whole different post!)

First, it is important to understand just what is considered a “justifiable homicide” and the Marshall Project defines the concept this way:

Little large-scale research has examined the role of race in “justifiable” homicides that do not involve police. The data examined by The Marshall Project are more comprehensive and cover a longer time period than other research into the question, much of which has focused on controversial “Stand Your Ground” laws.

In the United States, the law of self-defense allows civilians to use deadly force in cases where they have a reasonable belief force is necessary to defend themselves or others. How that is construed varies from state to state, but the question often depends on what the killer believed when pulling the trigger.

“If there are factors—even if they’re stereotypes—that lead the defender to believe he’s in danger, that factors in, whether it’s a righteous cause or not,” said Mitch Vilos, a Utah defense lawyer, gun rights advocate and the author of “Self-Defense Laws of All 50 States.”

As hinted at in the excerpt above, the Marshall Project Report highlights the reality that stereotypes and fears not based in facts may result in wrongful killings that are then not punished accordingly because “it was a mistake”. We wrote about these sorts of irrational fears and stereotypes in an article published after the Trayvon Martin killing as well as on the blog. You can see the full article which was published in The Jury Expert here: The ‘Hoodie Effect’: George, Trayvon and How it Might Have Happened.

Here are a few facts presented in the report (which, again, is based on actual data from the FBI and not just made up to inflame emotions).

The vast majority of killings of Whites are committed by other Whites, and the overwhelming majority of killings of Blacks is by other Blacks.

But killings of Black males by Whites are more than 8x as likely as all others combined to be labeled justifiable [killings].

In comparison, when Hispanics killed black men, about 5.5 percent of cases were called justifiable. When whites killed Hispanics, it was 3.1 percent. When blacks killed whites, the figure was just 0.8 percent. When black males were killed by other blacks, the figure was about 2 percent, the same as the overall rate.

Since this report is about killings labeled as “justifiable”, it doesn’t even address wrongful convictions of Black Americans. For that, you can review this March 2017 report from the University of Michigan: Race and wrongful convictions in the United States..

The actual report contains many graphics showing how the numbers compare to each other and the graphics are eye-opening (to say the least). If you want to be fully informed on the facts involved when it comes to race and murder in the US, you need to read this brief report.

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The problem with female attorney retention has been discussed at some length in blogs, in reports sponsored by the American Bar Association, in professional association publications, in academic journals, and likely—everywhere female attorneys gather. Female attorneys leave BigLaw for many reasons but here’s a bit of research that may give insight into helping law firms retain female attorneys following childbirth or adoption.

It has long been noted that women bear the brunt of the financial/career impact related to childbirth and/or motherhood. And if you are a woman of color, the damage to income is even worse. While the research cited in this post was completed at the University of Kent, in the United Kingdom—it offers an interesting idea for law firms in the US to explore. The study results revolve around the use of flextime (which makes sense) but with an interesting twist worth investigating.

Here are the main findings:

More than half of the women in the study sample reduced their working hours after a child was born—but less than a quarter who were able to use flextime reduced their hours.

Women who were able to use flextime were only half as likely to reduce their hours after the birth of a child.

And here is the twist:

The issue was not whether new moms perceived they had access to flextime. The most important factor was the use of flextime by the woman before giving birth.

In other words, those women who had actually used flextime prior to giving birth were more likely to think they could juggle the work-life balance demands with which they were faced after giving birth. It raises the question of how ‘real’ the flextime is. If it isn’t used prior to birth, there might be cultural norms not to use it, even if it is nominally accepted. If it is seen (overtly or unconsciously) as a sign that someone is distracted, not dedicated, worn out, or otherwise not a ‘team player’–there will be a reluctance to use it, even if the alternative is to quit.

The researchers think this finding could have implications for the gender pay gap since women would not necessarily have to give up their work in order to have children. They also note it would help companies retain female employees who often tend to either leave or reduce working hours following childbirth.

From a law office management perspective, it makes sense to encourage both male and female attorneys to use flextime routinely so they can become more attuned to how flextime use can help them to balance work-life demands. For women who give birth or adopt, according to today’s highlighted research, having used flextime prior to having children may well help them juggle the challenges of having children while also retaining a rewarding and demanding career. That ‘work-life balance’ stuff is actually pretty important.

Chung, H. van der Horst, M. 2017. Women’s employment patterns after childbirth and the perceived access to and use of flextime and teleworking. Human Relations.

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This issue has been the banner of a number of well-known male bloggers who encourage their readers to pile on [with their generally anonymous screen names] when commenters do not agree with the blogger.

These bloggers make comments like, “it’s my blog and I make the rules” to justify boorish behavior. Granted. We don’t choose to interact with bullies—online or otherwise. We have been the subject of the entire spectrum of comment for our writing over the years of The Jury Room, including bizarre and wildly over-the-top trash-talking from a few other bloggers. We do not like it. We ignore it. We move on–as does our readership.

So we were glad to see this article released by the Pew Research Center on Online Harassment in 2017. The really good news is, they released a survey on the same topic in 2014 and so can compare some of the data to see if online harassment is increasing. In a word? Yes. Pew begins by introducing the problem of online harassment this way:

To borrow an expression from the technology industry, harassment is now a “feature” of life online for many Americans. In its milder forms, it creates a layer of negativity that people must sift through as they navigate their daily routines online. At its most severe, it can compromise users’ privacy, force them to choose when and where to participate online, or even pose a threat to their physical safety.

As usual, Pew offers information on just whom they surveyed. In this case, they surveyed 4,248 nationally representative US adults and found that 41% have been harassed themselves and 66% have witnessed the harassment of others online. In some cases, the behaviors are nuisance behaviors like name-calling or efforts to embarrass someone, but 18% of Americans (that is, nearly 1 in 5) “have been subjected to particular severe forms of harassment online, such as physical threats, harassment over a sustained period, sexual harassment, or stalking”.

Social media platforms are an especially harassment-prone area but there are multiple places survey respondents report they have been harassed. Most of them believe harassment is facilitated by the anonymity offered by the internet (and, we would add, the frequent use of pseudonyms). Here are a few of the numbers Pew offers on how many Americans have experienced harassment.

41% of respondents [increased from 35% in 2014] have been personally subjected to at least one type of online harassment: 27% were called offensive names, 22% say efforts were made to intentionally embarrass them, 10% were physically threatened, and 6% reported sexual harassment. The 41% total includes those who’ve experienced particularly severe forms of harassment (Pew defines this as stalking, physical threats, sexual harassment, or harassment over a sustained period of time).

Young adults (aged 18-29) are especially singled out for harassment (67% have been harassed—41% severely). At the same time, 30-49 years olds experience harassment frequently as well (49%—up 10% since 2014). Americans age 50 and older report harassment at a lower rate (22% also up 5% since 2014).

Harassment online is typically very personal. 14% reported being harassed for political views, 9% for their physical appearance, 8% for their race or gender, 5% for their religion, and 3% for sexual orientation.

When we look at specific racial groups, 25% of Blacks have been harassed online for race or ethnicity as have 10% of Hispanics. The number among Whites is much lower at 3%. In terms of gender, women (11%) are twice as likely as men (5%) to report having been targeted as a result of gender.

62% of Americans see online harassment as a major problem and only 5% think it is not at all a problem. There are significant gender differences of opinion that Pew addresses in detail when it comes to the problems with online harassment. There are also significant differences among those who have been severely harassed (regardless of gender) and these differences include serious emotional distress and damage to their reputations.

These are good things to review at the report itself to help you understand how the exact same behavior is perceived so very differently based on both gender and experiences online. There is also disagreement on who should manage online civility. Some think it is the responsibility of online services while others think the services should just offer better tools to help people address harassment online. Still others think bystanders witnessing abusive behavior online should play a direct role in stopping it.

In addition to the actual survey, Pew also includes a Q&A article explaining how and why they chose to study online harassment. If you are interested in a brief summary rather than reading the entire article (which isn’t that long), they also have a key points summation.

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Researchers actually study the factors that go into making others see you as a jerk—and help us figure out how to avoid those behaviors. Today’s research is from an international team of researchers in the Netherlands, the US and the UK. Their work is interesting to consider from the perspective of witness preparation of the difficult witness.

According to the researchers, most of us work to manage the impressions others have of us and some of us do it quite well. Others fail miserably, however, and these researchers think that failure stems from making poor choices on which impression management strategies to adopt. Instead of choosing strategies that work well, these people choose strategies that fail and result in negative perceptions of them by others. The researchers caution to not use these strategies in your self-presentation if you want to be perceived positively. They also tell us (as if we would not already know) that people using these strategies are likely to score higher on measures of pomposity, self-centeredness, self-aggrandizement, dominance, and narcissism. And the reason narcissists fail to self-present positively?

It’s Witness Preparation Lesson 101: They fail to consider the audience’s perspective.

So here, in the order presented in the paper, are the behaviors you want to avoid if your goal is to make a good impression. From a litigation advocacy perspective, these are also bad habits you want to watch out for as you are preparing witnesses.

Hubris: The researchers refer to hubris as “self-aggrandizing displays”. We’d call it “showing off”. Observers especially disliked statements wherein the speaker claims s/he was better than others as a choice of whom to befriend. According to the researchers, these sorts of displays result in observers viewing the speaker with hostility. We’ve blogged in the past about how the “hubris penalty” is applied to Black athletes.

Humblebrag: The researchers describe the humblebrag as “irksome efforts to mask bragging in the guise of complaining or appearing humble”. It is another misguided effort to appear better than others that, we’ve also blogged about in the past. The authors give this example from Twitter: “Hair is not done, just rolled out of bed from a nap, and still get hit on, so confusing!” This sort of comment results in the observers perceiving insincerity.

Hypocrisy: The third failing strategy the researchers discuss is hypocrisy. They describe this as attempts by the speaker to transmit a certain image verbally while their behavior does not live up to those standards. As long as the behavior that contradicts their verbiage remains hidden, they may get away with it. However, if the “discrepant behavior” becomes public, the hypocrite is judged more harshly than even those who did the same thing but didn’t try to claim they were above it. The researchers say this form of failed impression management is especially despised by observers and is more likely to occur among narcissists. And yes, we’ve also blogged about hypocrisy—particularly in the case of high-profile falls from grace.

Backhanded compliments: The final failed impression management strategy involves giving a backhanded compliment (e.g., “You are smart for an intern”). The intent with this strategy is to remind the recipient of the compliment of your (much) higher status and to make the person like you. The reality of the strategy is that it is experienced as a subtle but strategic put-down. Again, this strategy is more likely to be employed by the narcissist who typically fails to disregard the audience’s perspective. Sadly, we have not blogged about back-handed compliments, but we have blogged about an experience in a mock trial where one of the attorney’s formed a strong connection with the mock jurors with his “very attractive” necktie [for which he was complimented most sincerely].

So, why, when it is clear to the observer that these strategies do not work—do people keep using them? The researchers think that it results from a lack of accuracy in estimating others’ perceptions of us. Perhaps we do not get enough feedback (which is crucial to improving one’s performance and should be a central component of the witness preparation process). We have multiple posts on witness preparation that you may want to read.

Steinmetz, J. Sezer, O. Sedikides, C 2017 Impression mismanagement: People as inept self-presenters. Social Personality Psychology Compass, 11.

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