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Archive for the ‘Bias’ Category
Contempt for Gen Y: It’s everywhere—including law firms!
While every upcoming generation is regarded as flawed by their elders, it seems Gen Y is seen especially negatively. A recent article at In These Times focuses on whether Millennials are cursed. According to sources cited, “everyone born since the mid-1970’s” is “coddled, overexposed and overindulged”. Having grown up with reality TV, they want to be instantly famous. Paradoxically, they also “reflect a new sense of existential aloneness and a desperate need to be recognized”. They are, in other words, narcissistic and disconnected. Or perhaps, they are torn between narcissism and empathy. The jury is out.
A blogger (Valley Girl with a Brain) who defines the Millennials as those born between 1980 and 1995 lets her peers know that she watched 60 Minutes and learned that “Mr. Rogers lied” and they really “aren’t that special” and “there is no perfect job”. And she worries about whether her decision to go back to graduate school was a really special bad decision.
So are Millennials truly that much more narcissistic and disconnected than the rest of us were at that age? David DiSalvo at True/Slant blog says there are not really strong differences between us. We are all embracing technology. We agree on ‘green’ technologies. We believe in diversity. Younger people are more open to increased security measures (with X’ers and Millennials saying “bring it on”!). We are all more accepting of gays and lesbians. We say we don’t much care for reality TV. We are, in truth, much more alike than different.
As we work in litigation advocacy, we hear a lot of negativity directed toward younger jurors and younger lawyers (especially new law school grads). Their work ethic (seen as poor 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.
Turns out that is likely untrue. A new editorial in the LA Times points out that from 2004 to 2008, the legal field grew less than 1% on average (and the same growth rate is predicted until 2016). The number of likely attorney positions opening per year is thus 30,000. US law schools are graduating 45,000 new JDs every year. Fully one-third of US law school graduates will likely not find employment as attorneys.
It isn’t ‘bad values’ for newly minted attorneys. It’s a bad job market. Perhaps instead of being critical, we should start looking at ways to be inclusive—all the way from enrolling a sensible number of students to law schools each year to finding room for talented graduates in traditional law jobs and non-traditional positions.
Can you assess juror morality by counting tattoos?
Maybe you can. While ink on the skin doesn’t mean what it used to (see our post here) it still is a concern for many among us. Body art/ink has become mainstream as evidenced by its presence among a wide cross-section of the population. Even the very educated have tattoos. One of the blogs at Discover Magazine’s website recently uploaded a variety of ‘science’ tattoos which decorate the bodies of scientific researchers. Very amusing.
But parents worry. And so do litigators choosing juries. What do those tattoos mean? There’s research for that! Thanks to researchers at Texas Tech, parents and litigators everywhere can know what those tattoos mean. In essence, tattoos are like real estate: “The key factors are density and location, location, location”.
Here’s what they did:
Researchers counted the number of tattoos and piercings (and noted just where on the body the markings or piercings were located) and then assessed ‘deviance’ (in the form of marijuana use, occasional use of other drugs, being arrested for a crime, cheating on college work, binge drinking, and/or having multiple sex partners).
And here’s what they found:
Those who had 4 or more tattoos, 7 or more body piercings or piercings of their nipples and genitals (which hopefully will be difficult for most parents and litigators to assess) were more likely to report deviant behavior.
To a very significant degree, tattoos and piercing is a sign of style and fashion, rather than rebellion. Researchers concluded that the growing acceptance of body art means those with truly deviant tendencies have to go a step further (multiple tattoos or nipple piercings) to maintain their sense of social distance. You have to try harder to make it clear that you are an outsider. So you might be able to assess social alienation and disenfranchisement by counting tattoos, but take it easy on wondering about the ones you can’t see.
Biased hearts, biased cameras and biased verdicts
A recent Gallup poll found that Americans are twice as prejudiced against Muslims as we are against any other religious group. This poll was conducted between October 31st and November 13, 2009 (with the Fort Hood shootings by a US-born Muslim military doctor occurring on November 5, 2009). However, the findings are not that far afield from negative attitudes toward Muslims found since the September 11, 2001 terrorist attacks. ‘We’ don’t know many actual facts about the Muslim religion—but we don’t like or trust ‘them’.
Other recent reports include the finding that we are prejudiced toward migrants, in part, because they are awkward for us to think about. That is, thinking about someone who was born in one country and lives in another country now is tiring for us (and presumably we don’t like that).
Asian consumers reportedly thought their face-recognition cameras were faulty until they realized the camera thought they had their eyes closed because the cameras had apparently only been tested on white people. Similarly, surveillance cameras could not track the face of a black man but could track a white woman. Manufacturers say they are “looking into this”.
Racial bias emerges in many places you don’t expect it. And some where you do expect it. We’ve blogged about race and racism a lot: here and here and here. And a new study reports that racial bias also has relationship to how much help we think victims need.
Researchers at Kansas State University examined attitudes toward victims of Hurricane Katrina one year after the hurricane. They looked at measures of conservatism, empathy and racism. What they found is disturbing but not particularly shocking. In the study, the racial biases of participants led them to underestimate the help people need. In other words, the more racist the participant was, the less help they thought the victim deserved.
This has immediate applicability for litigators. When your client has been wronged, racist attitudes on the jury affect the verdict. We’ve seen this first-hand and we recommend this strategy among others. The bottom line is this: do not assume race doesn’t matter in your case. Race always matters. The question is how and in what direction. Don’t go to trial without knowing.
Propaganda, Dogmatism & Bias: Who are your jurors?
As the country becomes increasingly divided (again), we are seeing increasing indications of closed minds on jury panels. This is reflected in the blogosphere and in recently emerging research findings. Sadly, this appears to be a time of seeking to affirm pre-existing beliefs rather than informing ourselves and coming to our own conclusions about hot button issues.
It has become commonplace to think that the news channels prospective jurors watch can tell us about their politics. We blogged about this here and here. So it isn’t surprising when we hear the results of a study in the journal Media, War & Conflict telling us that we don’t seek out television news to inform ourselves, but rather to affirm ourselves. That is, we watch television news shows that support our pre-existing beliefs, rather than those that could challenge those pre-existing beliefs.
Or, as Robin Hansen at Overcoming Bias blog tells us, we are “built to rationalize”. In other words, Hansen says, “our minds often unfairly defend our most deeply held beliefs” and “when we sense such beliefs being threatened, our minds distract us, refuse to comprehend alternatives, and grab onto weak excuses as though they were timber”. It is what we do. We use cognitive shortcuts like stereotypes to help us defend against new information and maintain confidence in our pre-existing beliefs.
So given the resistance of entrenched beliefs to change and the relatively short timeframe of most jury trials, how can you attempt to seat a jury most open to actually hearing your case?
- If your case resonates with conservative and/or religious values, you may like jurors who show evidence of dogmatism which is, essentially, being powerfully wed to a particular belief system. These jurors will hear your case and dismiss opposing counsel (particularly if you show them how the other side does not resonate with their strongly held values).
- If, on the other hand, your case resonates more with liberal or pluralistic values (the more ‘gray’ areas), you want to identify jurors (for disqualification or peremptory strikes) who will dismiss your case without listening. Look for group affiliations that would indicate the likelihood of dogmatic beliefs.
And for those of you curious about a short-hand way to identify those more open-minded—here’s a tidbit. The same study finding that we seek to affirm rather than to inform through our television news habits, also found something that may surprise you. Those who watch television news on the Al Jazeera English network become less dogmatic! And the longer they watch, the more open they are to opposing points of view. We find that very intriguing. Opposing counsel may well know ‘who’ watches Fox or listens to NPR—but do you think they know who listens to Al Jazeera? Ah, but now you’ll make sure to know.
Lighter Skin, More Like Me
Matthew Harrison has an article on Colorism in the January issue of The Jury Expert. He discusses the role of colorism (or “skin color bias”) in the workplace and then three trial consultants discuss his work in the context of the courtroom. There’s a lot of good information for litigators in the trial consultant responses and we recommend you go take a look if you are interested in learning more about the relationship between skin color and bias (in the workplace or in the courtroom).
It’s a timely piece. As the country becomes increasingly polarized, researchers keep churning out work on our biases and how they result in us modifying how we see others. For example, the Atlantic reports on a study showing that our own partisanship determines how we perceive skin color. The more we believe the person shares our own values and political perspective, the lighter skinned we believe them to be. If we do not believe they share our perspective and values, we see them as darker skinned. (This was measured by asking participants to choose the photo they thought best depicted Barack Obama—a darker skinned photo or a lighter skinned photo.)
Miller-McCune website also discusses this study and wonders if we are likely to like people less if we see darkened images of them. They cite the infamous photo published by Time Magazine of a skin-darkened O.J. Simpson during his 1994 trial. The racially ambiguous, according to Miller-McCune, are harder to categorize than the clearly white (for example, John McCain) or clearly black (for example, Michael Steele). The very ambiguity may require more cognitive effort on our part to process and we know that ambiguity can be disorienting and confusing.
We’ve said it before. Race and racism is becoming more nuanced. Your dark-skinned client/witness/party/self may be seen more negatively than your light-skinned client/witness/party/self and you need to prepare for that before entering the courtroom.
Charlie Sheen or Tiger Woods? When behavior doesn’t fit the image
The uproar following Tiger Wood’s one-vehicle accident at his home and the subsequent disclosure of multiple infidelities remains huge. The deluge of stories are in a temporary lull, but they are coming back when Tiger returns. There were a few thoughtful and even eloquent stories like this one from sports columnist Mike Wise. But the majority were pejorative, salacious, gossipy, breathless and tantalized. The gap between who we thought Tiger was and who he really turned out to be was simply too vast. A poll showing his popularity plummet from 85% to 34% in December, 2009 was seen as evidence of that public/private gap and the public feeling of being deceived by his behavior.
Charlie Sheen, on the other hand, caused hardly a ripple with news reports that his wife called 9-1-1 to report he had threatened her with a knife and that she was terrified he would kill her. While obviously we cannot know if these reports are true or not and Brooke Mueller (Sheen’s wife) is now retracting them—Charlie Sheen has been here before. His divorce from Denise Richards was fueled by reports of drug abuse and violence and their child custody dispute has been highly conflicted.
Yet while many of us seem to think Tiger Woods is despicable, we see Charlie Sheen’s alleged behavior as simply reflective of who he is—a bad boy. Tiger acknowledged his ‘transgressions’ and ‘infidelities’. Charlie’s lawyer says we shouldn’t jump to conclusions about anything. Tiger broke our hearts while we expect no better from Charlie.
It’s an instructive lesson for us about the damage done when the behavior doesn’t match the image. We blogged about David Letterman’s acknowledgement of his own ‘bad behavior’ and how he masterfully spun an amusing and almost charming tale about his fall from grace. And then he stopped talking. As more news came out about his situation, many of us cringed a bit at what we heard, but Dave wasn’t talking. And the media focus passed.
What does this have to do with litigation consulting? Simple. It is never too early to think about identity for your clients, opponents, and witnesses. If a party or key witness is risky to your case, prepare the jury for what they can expect. Control expectations by characterizing a strong opposing witness as being an expert salesperson or a veteran speaker. Have early witnesses talk about how shy and nervous your client is. By controlling expectations, you prepare the jury, and shape the way the witness is perceived.
Extremism comes in many shapes and forms
Given the focus of our country on terrorism, now if we say ‘extremism’—we likely have a common image that comes to mind. But there are many kinds of extremism. We’ve written about some of them: racism here, and here, polarizing opinions, and hate group members.
What we’ve noticed is that when we have mock jurors who describe themselves as “very liberal” or “very conservative” or “very religious” or very anything—they often have trouble listening to and actually hearing evidence. It is as though their ‘bias filters’ are turned so high that they hear not what the litigator is saying, but instead what they believe the litigator means or even should be saying.
These are often jurors who end up seeing conspiracy, hidden agendas or motivations, or simply ‘know’ something is not true despite evidence to the contrary. Those who identify themselves as extreme on any belief system or attitude are generally too unpredictable to leave on a jury.
Spira (2002) writes about this reality: “high levels of certainty and extremity result in resistance to persuasion”. We agree. Rigid extremists do not magically turn into open-minded and curious jurors for your case even though they may say they can “be fair”. In our minds, this is not the time to extend the benefit of a doubt. Exercise a strike.
What I should have said was nothing: The disaster of a false confession
Vaughan Bell at Mind Hacks blog (one of our favorites) discusses an article in the APS Observer on the psychology and power of false confessions. The article itself is a good read that points out the many reasons for false confessions. It then shifts to a discussion of how lay persons and experts modify their own opinions after learning about confessions. In brief (and you really do want to read the full article) they found that lay people (read ‘jurors’) and experts (read ‘expert witnesses’, ‘forensic experts’) change their evaluation of the non-confession evidence (the other evidence presented) and see it as stronger evidence against the accused.
Situationist Blog also comments on this research quoting the primary author saying ““the most common reaction I get from a lay audience is, ‘Well, I would never do that. I would never confess to something I didn’t do.’ And people apply that logic in the jury room. It’s just that basic belief that false confessions don’t occur.”
This is potentially deadly. We ‘see’ evidence differently if we know someone has confessed. The Innocence Project has hard data on the relationship of false confession to wrongful conviction. But what do you say to jurors?
- If you can’t keep the confession out via a motion in limine, you have an uphill climb.
- You can show them evidence of false confessions and how they are coerced.
- You can teach them about the powerfully biasing effects of a false confession.
- And you can tell them about the Innocence Project’s numbers on how often we wrongfully convict based on false convictions. Ask them to look at the evidence. If they didn’t have that confession, would they convict?
Generation Y (aka the Millennials): Just the facts
Members of Generation Y (as with other generations before them) have been derided and maligned. People love to generalize about ‘ the younger generation’, and do it all the time. And it’s been going on for centuries.
“The children now love luxury; they have bad manners, contempt for authority; they allow disrespect for elders and love chatter in place of exercise. Children now are tyrants, not the servants of their households. They no longer rise when elders enter the room. They contradict their parents, chatter before company, gobble up dainties at the table, cross their legs, and tyrannize their teachers.” Anonymous (widely mis-attributed to Socrates)
And one of my personal favorites from Clarence Darrow:
“The first half of our lives is ruined by our parents and the second half by our children.”
Those older demean those younger (and the youth are not particularly admiring of their elders). Whether we do this in our personal lives or not, is naturally, a personal choice (and just as naturally, has consequences for our relationships). But in the courtroom and in voir dire, it is wiser to make choices based on what we know to be true of human nature rather than what we assume or choose to believe.
Here is (courtesy of the Pew Research Center) what we know now about Generation Y—the newest members of the jury panel.
- The oldest members are approaching 30 (the youngest are approaching adolescence).
- They are more inclined to trust institutions than either Gen X or Baby Boomers when they were coming of age.
- They are the most ethnically and racially diverse cohort of youth in the nation’s history: 18.5% are Hispanic; 14.2% are Black; 4.3% are Asian; 3.2% are of mixed race; and 59.8% are White.
- They are the least religiously observant/practicing cohort since religious behavior was added to survey research.
- They are the most politically progressive of any age group in modern history.
- They see social networking as normal and everyday activities and internet use as routine (e.g., tweeting, texting, Facebook, YouTube and Wikipedia).
All of these factoids have relevance for voir dire, case presentation and witness preparation. Millennials are often frightening for litigators because they are so ‘unknown’. Yet, many of them are old enough, sufficiently well educated, and assertive enough to be forces in the deliberation room. It is unwise to assume “young people are bad for plaintiffs” just as it is unwise to assume “women are good for plaintiffs” or “women are tough on crime”. It simply all depends.
We will watch as more substantive research emerges on Gen Y/Millennials. Undoubtedly we will write a paper on attitudes and values and litigation advocacy with Gen Y as we did with Generation X (http://www.keenetrial.com/articles/htm). In the meantime, watch yourself. Bias is often a subtle and insidious thing. Seeing this generation as different from those that have gone before (as indeed all generations have been) can help you avoid pigeonholing assumptions.
It may not (usually) be overt, but it’s still racism
Identifying bias is not always a simple thing. Sometimes it’s easy to see as we talked about here and other times it’s not (see our post here). The 2008 election of Barack Obama led some to proclaim we were now living in a post-racial society and others to scoff at the very idea. Racial arguments come up in very unexpected places—which would lead us to think the issues simmer just under the surface. Witness a “prominent Columbia architecture professor” who “punched a female university employee in the face” during a “heated argument about race relations”.
Don’t kid yourself. The reality is that racism is thriving. It’s just different. Researchers have been talking about modern racism for a long time now as we discuss here and attempting to measure covert or ‘implicit racism’. But it’s been tough to take the research methods (the most well-known measure is the Implicit Association Test) and apply them to the real-life/real-time assessment of racial bias.
Some new research begins to move us closer to being able to assess implicit racial prejudice by using a variation on the Implicit Association Test called the Go/No-go Association Task (GNAT). The researchers used a simple and elegant means of assessing seemingly unrelated responses (don’t you love how those psychologists do that?) over a five week period in 2008 (measuring implicit racism, attitudes toward Barack Obama, and then who they voted for in the election). Then the researchers went back to the same participants again (a year later) and asked them about attitudes toward the current healthcare debate. The results were striking (and are nicely summarized here).
In brief, health-care proposals were shown to participants and randomly assigned to being either Bill Clinton’s healthcare reform plan or Barack Obama’s healthcare reform plan. Among biased respondents, support for the ‘Clinton’ plan was 70% while support for the ‘Obama’ plan was 41%. Same plan. Different Presidents. Different races. (Among non-biased respondents, support for the plan was roughly the same no matter whose plan it was said to be.)
We first saw this reality while doing pre-trial research in a plane crash case where the airline had acknowledged negligence and all that was left to determine was damages to some surviving passengers. It was shocking. This blog post is not merely a screed against racism (although we wish we could do more to end it). As we have noted numerous times, various kinds of bias play a part in virtually every case. We have the responsibility to monitor how these forces will compromise the jury’s (or even the judge’s) ability to deliver a just verdict. We are all responsible for assessing the existence of racial bias (and keeping up with what it looks like as it morphs) and sorting through how to best represent our clients in ensuring their story is heard.
(If you’d like to read the paper we wrote with recommendations for responding to racial bias, you can download it free at our website.)
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