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TJE_logoThe February 2015 issue of The Jury Expert has been uploaded and here’s what you’ll see if you visit the site:

Why Women Speak Up in the Jury Room by Suann Ingle. Many of us have read the book Lean In by Sheryl Sandberg. Suann read it and then saw the recent article by Sandberg and a colleague discussing why women don’t speak up at work. Suann has ideas about why women may not speak up in the corporate world but she also has ideas about why they do speak up in the deliberation room. If you want your female jurors to participate, take a look at Suann’s ideas on how to make that happen.

The Psychology of a Persuasive Settlement by Ken Broda-Bahm. “We all have an image in our heads of the way we expect cases to end: passionate presentations, gripping witness testimony, then a tense wait, followed by the dramatic verdict. In the great majority of cases, however, the dispute will end not in a courtroom but in a conference room.” So begins Ken Broda-Bahm’s article on the psychology of a persuasive settlement. This is an article that focuses on the issues that keep us (or rather, “the other side”) from settling a case when that is the most logical outcome.

Racial Disparities in Legal Outcomes: On Policing, Charging Decisions, and Criminal Trial Proceedings by Samuel R. Sommers and Satia A. Marotta. We don’t do reprints in The Jury Expert. But this time, we are doing a reprint, because this article was written in plain language and the content is so important we want to make sure everyone has a chance to read it. There are many ways racial bias factors in to legal decisions and this article focuses on how racial bias enters into decisions on policing, charging decisions, and criminal trial outcomes. This is a must read article.

Top 10 Most Accessed Articles from The Jury Expert in 2014! Here’s a look at what your colleagues have been clicking on and reading in 2014. Have you read all of our top ten? Now you can!

Road Warrior Tips. Here’s a few more tips and tricks from our “often on the road” ASTC member trial consultants. Make sure you know the newest tips and tricks!

Who is my ideal juror? by Jill Leibold. It’s a question often asked by trial attorneys. Jill Leibold has some thoughts on turning that question around so you ask who is not your ideal juror. She also has some ideas on how you can identify both your favorites and your not favorites so you go into jury selection more confidently.

Favorite Thing for February 2015! We like a good infographic here at The Jury Expert and this favorite thing entry gives you many infographics. If you, like me, have trouble remembering the different uses of the words “affect” and “effect”—you’ll love the infographic we are featuring!

Mea Culpa in the Courtroom [a TJE Classic] by Kevin Boully. Before May 2008, when we began to publish entirely online, The Jury Expert had some very good pieces that saw limited exposure. We devoted an entire issue to “the classics” that stood the test of time but didn’t have room for this one. How do you apologize effectively in the courtroom? Kevin Boully knows the literature and offers his perspective on the importance of both apology and the importance of doing apology right.

We hope you enjoy this issue of The Jury Expert and, tell your friends, colleagues, and opponents about us!

Image from Jury Expert website

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i-am-powerfulWe have written about power poses and other strategies to help yourself feel powerful.  Be clear, though—you do not become more powerful by doing such things, but it might make you feel that way, which in itself can be communicated as confidence or authority. This post isn’t about how to make yourself feel powerful, it is about those who perceive themselves as already powerful. In short, those who see themselves as powerful draw more inspiration from themselves than they do from others. It apparently doesn’t matter if you really are powerful, only that you think you are powerful. The authors begin by quoting from Matthew McConaughey’s Oscar acceptance speech in 2014.

McConaughey “recalled someone asking him ‘Who’s your hero?’. He replied: “You know who it is? It’s me in ten years”. [snip] Apparently, Matthew McConaughey derives inspiration from his future self.”

So the researchers took a look at how this happens. How do you draw inspiration from yourself rather than drawing inspiration from the example of others. They give the example of the sort of  person we have all encountered, who goes on and on about their accomplishments and experiences. The dynamic is not only one exemplified by famous actors.

The researchers planned four separate studies with 555 participants across all four studies (3 studies performed with Dutch undergraduates and one with undergraduates at UC Berkeley). In the first three experiments all participants completed a measure of their personal sense of power, and other tasks (including writing tasks and various efforts to measure how the participants were “inspired”). In the final study, the researchers “primed” the participants to experience either a high or low sense of personal power. What the researchers wanted to know was if the participants who felt “powerful” would report they drew more inspiration from themselves than they drew from others.

Their findings are consistent with Matthew McConaughey’s Oscar speech (even in the fourth study where participants were “primed” for high power sense of self rather than just reporting it was the way they saw themselves).

The powerful are more inspired by their own experiences than are those that do not see themselves as powerful.

And the powerful are more inspired by their own experiences than by the experiences of others.

The authors conclude that the reason powerful people talk more, are poor perspective takers, are less prone to consider the opinions of others, and less likely to take expert advice (all findings in previous research) is because “the powerful prefer to entertain their own rather than other people’s experiences and ideas, because they are more inspired by their own internal states than by those of others”. The authors close by returning to consider the case of Matthew McConaughey. They say,

“Inspiration is always within reach for their powerful—entertaining their own uplifting experiences is enough to spark the flame.”

It brings to mind how important it is to look at how a persuasive person with high socio-economic status and confidence  (a “powerful” person) may function in jury deliberations. If you want to avoid having a jury dominated by this person, take the time to teach all jurors “how to deliberate” so if they feel run over by jurors who feel empowered to drive the verdict—others have ammunition with which to disrupt that intention.

Van Kleef, G., Oveis, C., Homan, A., van der Lowe, I., & Keltner, D. (2015). Power Gets You High: The Powerful Are More Inspired by Themselves Than by Others Social Psychological and Personality Science DOI: 10.1177/1948550614566857


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suspenseSo here’s a strange study. Or perhaps an unexpected outcome. We enjoy a good suspenseful thriller but never knew it might be messing with our political beliefs. Wait until you see this!

The researchers were curious about how various forms of physiological reactivity (aka anxiety) would affect a political belief about one particular issue: attitudes toward immigrants. So they recruited 138 males with an average age of 22.8 years (men and women react differently to physiological reactivity and it is common to do single gender studies in this area) to participate in the study.

Essentially, the men were connected to sensors that measured physiological reactivity throughout the experiment. In other words, the researchers wanted to measure how much sweat the individual participants manufactured during the tasks. The men watched brief videos of an immigrant story and then responded to questions about their perspectives on immigration. The key was in how the participants spent their time between watching a story and completing the questions as researchers had randomly divided the men up into three experimental groups.

Group 1—The “relax” condition: Watched the video story of a male immigrant and then watched a video “entitled Crystal Chakra Meditation” which the researchers describe as “soothing music played over visuals of abstract shapes and colors”.

Group 2—The “neutral” condition: Watched the video story of a male immigrant and then watched an abstract shapes screen saver (with no sound) before completing the questions on immigration.

Group 3—The “anxiety” condition: Watched the video story of a male immigrant and then watched video clips from the Sylvester Stallone film Cliffhanger. Yes, Sylvester Stallone. Apparently that film causes anxiety reliably and is often used in psychological experiments to elicit anxiety. The researchers describe the clip this way,

“Sylvester Stallone is attempting to rescue a female mountain climber who is dangling over a precipice attached only by a metal carabiner to a single rope”.

That does sound tense! The researchers go on to say that in the actual film the woman falls to her death but they mercifully did not make the participants view that part of the film.

After the relax/neutral/anxiety film clips, participants were asked two sets of questions. First they were asked to rate their feelings about the high levels immigration in the US. They rated their levels of anxiety, pride, anger, hope, worry, and excitement. Then, they were asked to rate their level of agreement or disagreement with a number of statements about immigrants.

The researchers found that participants who watched the Cliffhanger excerpt, had significantly more negative views toward immigrants than did participants in the soothing conditions. What was even more interesting though, was that the participants did not rate their feelings toward immigration more negatively. Instead, they tended to agree more with statements like “Immigrants should only be allowed to take jobs that cannot be filled by American workers”.

The researchers interpret this as indicative that the participants were not consciously aware they “felt” more negatively toward immigrants but that their agreement with more hostile positions about immigration gave them away. That, and their sweaty palms (remember, they were hooked up to all those sensors).

To recap, when asked directly how they felt about immigration, participants reported no differently across the three experimental groups. When asked what researchers considered to be an “indirect question”, i.e., how much the participant agreed or disagreed with a particular statement, the Cliffhanger group was more negative toward immigration (and sweatier too).

Anxiety (as measured by physiological reactivity or the amount of sweat you generate), conclude the researchers, results in more negative attitudes toward immigration.

It is likely no surprise to anyone who’s watched more than a few mock jurors deliberate—that what is reported by the mock juror as a firmly held belief is no more accurate than these research participants’ assessments of how they “feel” about a hot button issue like immigration. In other words, this is research that shows people don’t always accurately report how they feel. It’s a real blow to those who think they are self-aware and attuned to how they “feel” about important issues. There is simply not the level of self-awareness reflected in most academic research (and, in truth, in much pretrial research).

And that is why, while you won’t be attaching sweat detectors to jurors, it is important to anticipate how to align your case narrative with universal values that most jurors in your venue embrace (whether they know it or not). Your client, after all, ideally reflects their own values.

Renshon, J., Lee, J., & Tingley, D. (2014). Physiological Arousal and Political Beliefs Political Psychology DOI: 10.1111/pops.12173


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How headlines can help you pick a jury 

Wednesday, February 25, 2015
posted by Douglas Keene

????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????CNN just ran a cover story on what they call “Southern Discomfort”. The story is all about the status of same-sex marriage in the United States and the discomfort with it, especially in the southern states.   If you are going to trial soon, it would serve you to consider whether the attitudes, values and behaviors that result in antipathy toward same-sex marriage will play for or against your specific case.

The CNN story leads with two men and two women who come from very religious backgrounds and also both recently married in Alabama. CNN explains that same-sex marriage is now legal in 37 states and the District of Columbia. They use quotes from the spouses that make it clear these are people who struggled with their decisions and the lack of family support for their relationships but who loved each other and wanted their relationship legally sanctioned so they could enjoy the legal benefits of marriage. The story also covers the reactions to same-sex marriage laws by Chief Justice Roy Moore in the state of Alabama who says same-sex orientation is a choice rather than a characteristic such as race or gender and thus not entitled to constitutional protection.

“I’m not standing in any door. I did not bring this on. This was forced upon our state. This is simply federal tyranny,” he said. “This is not about race. This is about entering into the institution of marriage.” Race, he said, is biologically predetermined and therefore can’t be used to deny someone her or his rights under the Constitution. Homosexuality, he claimed, is a choice. “People can choose different lifestyles and no doubt they have since Sodom and Gomorrah,” he said.

If the state supreme court judge’s opinions reflect those of the larger population in the heart of the Bible Belt, it is imperative that you know it. We tend to pay more attention to surveys (national and regional) than to major news sites (who, after all, gather their stories from survey data) as we look at the attitudes, values and beliefs in any potential trial venue.

But when a site as mainstream as CNN runs this sort of story, you want to take a very close look at what underlies the antipathy.

Is it religious beliefs?

Is it bias akin to racism or sexism or ageism?

Is it lack of knowledge?

Is the bias worse against males marrying or females marrying?

And most importantly, do the values in your case narrative bounce up against any of the values that result in this negativity toward same-sex marriage? If yes, that could be a very dangerous thing for your client and for your case. What does it reflect generally about the reception a witness will have if they are perceived to be gay or lesbian (accurately or not)?

Know the venue. Know your venire. Know the values your case narrative pushes against. Know the random, largely irrelevant values and beliefs that will still find their way into a jury’s deliberations. And finally, know how to tell your specific story in a way that invites jurors to join with you and not react against you.


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williams and stewartI grew up listening to the television news with (Uncle) Walter Cronkite and my dad every night. I had a morbid fascination with his recitation of the body count of soldiers in the Vietnam War and silently said his sign-off line along with him: “And that’s the way it was…” and then a repeat of the day’s date. Walter Cronkite reported the news. He had credibility and gravitas. He was a cultural icon in a more innocent time.

Flash forward to the present and I have not watched the evening news with any regularity for at least two decades. There is simply no need with breaking news alerts and NPR while I am on the road. So when the Brian Williams “misremembers” memes began, after his story of being shot down in a helicopter was refuted, I was saddened, but neither surprised nor particularly interested. But the buzz turned to scandal and scandal  turned to NBC news dropping Mr. Williams name from the show title. Conservative websites published “32 Lies” that Williams told regularly about his experiences. He was mocked mercilessly on the Saturday Night Live 40th Anniversary Special. Time Magazine wondered if Williams was a narcissistic liar or the victim of false memories.

Brian Williams is likely not the only well-known news personality to embellish his experiences and even to tell stories easily proven to be untrue. Yet, he seems to have believed nothing bad would happen to him even if he continued to exhibit very poor judgment. Just like Anthony Wiener. Eliot Spitzer. Tiger Woods. Even David Letterman (on whose show Brian Williams told falsehoods to a national audience). And so on. David Letterman appears to have not forgotten the glare of the spotlight when his own deceptions were made public. He combined his support of Brian Williams with a Top 10 List of Things Brian Williams Has Said That May or May Not Be True on a recent show and said he believes this will “blow over” and it will all “be fine”.

But how can we trust the mass media when a highly respected and well-liked spokesperson for the media has fallen so publicly and so hard? Well, says Gallup Polls, we don’t trust the mass media anyway and while Brian Williams’ actions may reinforce that distrust, he certainly has not created the distrust of the mass media. One Gallup chart shows clearly that TV news now enjoys less confidence from the American people than any institution in the country—other than Congress! A second chart shows how dramatically our trust in television news has been declining for the past two decades.

brian williams insert 2

So Brian Williams’ “misremembering” and offering a glib apology that only made things worse will hardly sink all of television news. That ship appears to have sailed, largely propelled by the cable news industry. In some ways, I miss the days when Uncle Walter intoned and I believed. But I was a kid then and the news cycle is very different. Faster. Constant. Now I have more information about the world from a multitude of sources. I understand how various media outlets slant their reporting to meet political ideology demands, the demographics of their desired audience, or biased but real demands of their owners. Frankly, as I have considered all this attention for Brian Williams’ falsehoods, it has been hard for me to think anything but, “what will we do without Jon Stewart?”. That, to me, is the larger loss as I contemplate my own news consumption habits. And the answer may turn out to be John Oliver.


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