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ABA Journal Blawg 100!

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Archive for the ‘Bias’ Category

The American Bar Association is seeking nominations until August 8, 2014 to help it decide on the Top 100 law blogs (“Blawgs”). We have been in the ABA Top 100 for the past 4 years and would like to make it 5! If you like this blog, please nominate us (it’s fast and free) here. THANKS! Doug and Rita

communicateWe are used to the idea that when speaking, some of us focus more on details and others focus more on the big picture. That preference may communicate more about us to the listener than we are aware. Newly published research says powerful people focus on the big picture rather than on the details. The authors give this example:

“A speaker discussing a massive earthquake might either state that 120 people died and 400 were injured (a concrete statement conveying specific details), or that the earthquake is a national tragedy (an abstract statement conveying higher-level meaning.”

The researchers conducted 6 separate studies with online participants and each study found the same results. It did not matter if the speaker was discussing “a person, a societal issue, or a product; describing something negative or positive; or saying a few words or several sentences”. Those that focus on the “big picture” were simply more powerful in the eyes of the listener/receiver.

The findings are mainly discussed in terms of political leadership where there is danger of being labeled a “policy wonk” (and thus written off as an egghead who does not understand the people) if you speak concretely to show off your knowledge about an area.

On the other hand, politicians who focus on the big picture will communicate more abstractly and often with appeal to the emotion–and will be seen as smarter, more “in touch” and competent.

The researchers offer the example of the 2004 election characterization of John Kerry as a flip-flopper in an ad for the George W. Bush campaign. The ad intimated that a lack of consistency (as seen in John Kerry’s flip-flopping on specific issues) was a negative trait for a leader. The researchers say the power of the flip-flopper label could also be seen as indicative of concrete communication sending a “low-power signal”.

On the other hand, say the researchers, if you only communicate abstractly, you could be seen as having insufficient knowledge about an issue. It’s a tricky balance. The researchers also question the idea of order effects–should you start with concrete communication or with abstract communication? Do you talk about the individual trees (demonstrating concrete knowledge), about the forest (demonstrating a grasp of the big picture), or both?

Effective litigation advocacy requires both approaches to communication. At the start of your interactions with the jurors, you have little standing and no credibility. Your task is to both advocate for your client and to build and maintain rapport with them, for which initially relying on abstract or high-level characterizations may be more effective. It communicates best the answer to “why should I care about this dispute?” To be seen as credible and substantive requires facts, knowledge, and support for the high-level statements, which addresses “Is this a person I can rely on for accurate information?”. While some people tend to think in details while others are more comfortable with the big picture, ultimately both are required, in just the right balance.

Wakslak CJ, Smith PK, & Han A (2014). Using abstract language signals power. Journal of Personality and Social Psychology, 107 (1), 41-55 PMID: 24956313



dialysis-graphicWe do a lot of pretrial research where complicated processes, inventions, ideas, software, tools, widgets, and other intellectual property ideas are explained. And we do a lot of pretrial research where something that doesn’t seem complicated (like a family estate, for example) gets very complicated, very quickly. We’ve found there are often vocal mock jurors who will pontificate on whatever the topic is (from highway guard rails, to heated patches for sore backs, to hair straighteners, to types of pizza crust, to coin counting machines in grocery stores, and more) and so we defer to their expertise by politely and with great interest asking them to explain to the group how it works, in their own words. They rarely can. They often sheepishly say they guess they don’t really understand after all and their standing as an expert rapidly evaporates.

Today’s research speaks to this issue directly by saying that extreme political views are often based on a false sense of understanding. That is, people typically know a lot less about complex political policies than they think they know. Their understanding is typically quite simplistic (like that of our mock jurors) and when they are asked to explain how a policy works–they are unable to do so (like our mock jurors).

What the researchers found in their first experiment is that when people who loudly support a particular policy are asked to explain how it works in their own words, they are unable to do so. Subsequently, they report their support for the policy they initially supported so strongly has become only moderate. In other words, the initial strong support for a policy was based in “unjustified confidence in understanding” the policy. When asked to explain the policy, the research participants (like our mock jurors) realized they didn’t really understand the policy after all.

The researchers designed another study where participants were asked to rate their position on a given policy and then either explain how the policy worked or list their reasons for supporting or opposing it. Finally, they would choose whether or not to donate a bonus payment to a relevant (i.e., either pro or con) advocacy group. Since prior research shows, according to the authors, that enumerating your reasons for supporting or not supporting a policy reinforces your support/lack thereof, they hypothesized that those who enumerated reasons would be more likely to donate than those who explained how the policy worked. They were right. Those who enumerated reasons were more likely to donate the bonus payment to the relevant advocacy group.

The authors explain their findings as follows:

Asking people to explain how a policy (for example) works, leads them to endorse more moderate positions on the policy and makes them less likely to donate to advocacy groups. The authors say these people are forced to confront their own ignorance.

Asking people to list reasons they support a policy (when those reasons can include values, hearsay and general principles) merely reinforces their belief systems and makes them more likely to donate to relevant advocacy groups.

From a litigation advocacy perspective, you can assist jurors in “confronting their own ignorance” by using the strategy we discussed here earlier on embedding skepticism into your case narrative. [Tip: This strategy is designed to gently embarrass the opinionated extremist, so it’s crucial that you do this gently and politely so you aren’t seen as humiliating him or her. Appearing to be a bully will result in voir dire ending sooner than you had in mind, as no one will talk to you.] As the attorney expresses skepticism (or a lack of understanding of how something works), the jurors resistance to hearing the full explanation is weakened.

Fernbach PM, Rogers T, Fox CR, & Sloman SA (2013). Political extremism is supported by an illusion of understanding. Psychological Science, 24 (6), 939-46 PMID: 23620547



sheep-goatsSeriously. Sheep are believers and goats are doubters. In the paranormal, that is. The Australian Sheep Goat Scale is not a measure we’d ever heard of prior to writing about skepticism as a narrative tool in convincing others of a paranormal event. Perhaps it never really caught on. But we knew you would want to know about it, so, like the Spitefulness Scale, the Guilt and Shame Proneness Scale, the Depravity Scale, the Comprehensive Assessment of Sadistic Tendencies Scale, and the Islamophobia Scale, here it is. Besides, we would have published this blog post  just so we could share that adorable photo.

The Australian Sheep Goat Scale is a simple tool for assessing your beliefs in the paranormal. If you endorse a high number of statements on the 16-item scale as true, you are a sheep (a believer) and if you endorse a high number of statements as false, then you are a goat (a doubter) when it comes to the paranormal.  Here are a few sample items:

I  believe  I  have  had  a  personal  experience  of  ESP.

I  have  had  at  least  one  dream  that  came  true  and  which  (I  believe) was  not  just  a  coincidence.

I  believe  that  it  is  possible  to  gain  information  about  the  future before  it  happens,  in  ways  that  do  not  depend  on  rational prediction  or  normal  sensory  channels.

I  have  had  at  least  one  vision  that  was  not  an  hallucination  and from  which  I  received  information  that  I  could  not  have  otherwise gained  at  that  time  and  place.

I  believe  that  inexplicable  physical  disturbances,  of  an  apparently psychokinetic  origin,  have  occurred  in  my  presence  at  some  time in  the  past  (as  for  example,  a  poltergeist).

As you can see, a positive response to the item indicates support of the existence of paranormal experiences and negative responses indicate rejection of the paranormal. A ‘true’ response merits a score of ‘1’ and a ‘false’ response gets a zero score. This is a fairly dated scale at more than twenty years old.

There are newer measures. Here is one from 2004: The Revised Paranormal Belief Scale. It has more interesting questions (26 items in all) than the Sheep Goat Scale but the name is not as evocative. Here are some samples from the Paranormal Belief Scale.

Your mind or soul can leave your body and travel (astral projection).

The abominable snowman of Tibet exists.

Witches do exist.

If  you break a mirror, you will have bad luck.

The Loch Ness monster of Scotland exists.

A person’s thoughts can influence the movement of a physical object.

Through the use of formulas and incantations, it is possible to cast spells on persons.

It is possible to communicate with the dead.

Overall, we cannot see a single way either of these measures might find their way into a litigation setting, but we suppose it is possible if your case involved alleged paranormal events. And if it does, you read it here first! But insofar as we are in the business of figuring out why people believe in their verdict choice, it isn’t entirely out of place in The Jury Room. Well, maybe. But at least it’s fun. And that photo…

Thalbourne, MA, & Delin, PS (1993). A new instrument for measuring the sheep-goat variable: Its psychometric properties and factor structure. Journal of the Society for Psychical Research, 59, 172-186



bolshevik revolutionWe read a lot and routinely run across tidbits we think you might enjoy and that we would not really want to use an entire blog post to discuss. So here are a few things from here and there that we’ve found in our travels…

Can’t remember all those complicated passwords? It’s a complication of modern-day life. Many sites want complex or at least lengthy passwords and if you don’t use a password manager software–you can spend a lot of time typing in various password combinations and end up locked out for 24 hours (or forever). So here are a few tricks from Slate Magazine. Hint: It’s The Bolshevik Revolution.

Think narcissists can’t be empathic? Think again! Apparently it’s all about shifting their perspective. New research published in the Personality and Social Psychology Bulletin shows narcissists are actually capable of empathy for others. How can it be, you may find yourself thinking? You simply have the narcissist take the other person’s perspective. British researchers measured the heart rates of their research participants to have an objective measure rather than relying on self-report. They report that when participants are instructed to take the perspective of someone who is suffering, all of their heart rates increased whether low in narcissism or high in narcissism. The researchers conclude it is possible, given instruction to take another’s perspective, for the narcissist to be “moved by another’s suffering”.

The psychology of belief and the latest challenge: Gluten sensitivity. The recent research questioning the actual existence of non-celiac gluten sensitivity has been popping up everywhere. We ran across an interesting perspective on it from Derek Halpern over at Social Triggers blog. Derek discusses this latest research finding and all those folks saying, “Yeah, well tell my gut there is no such thing as gluten sensitivity!” in the context of the psychology of belief. It’s confusing, and the science is far from consistent or complete. We’ve seen plenty of examples among mock jurors of data and evidence not having impact on their preexisting beliefs. The dilemma is in part one of which way the wind is blowing in the medical community, as well as the fact that it isn’t just belief if you had the problem before you heard the label. We think you’ll find Derek’s article an interesting foray into the psychology of belief and why it’s so hard to crack a deeply seated belief with data and evidence alone. And it also raises the question about the limits of scientific knowledge and the meaning of data…

If I can just get a bunch of business people on my jury, they will make decisions based on logic. Well, maybe not. The Wall Street Journal recently published a story on how some of the best business minds make decisions–and it isn’t based on data and evidence. The best decisions are made with a combination of data, evidence, and feelings–in a way the researchers see as exemplifying “visionary leadership”. This an interesting article to read for understanding decision-making and for thinking through organization leadership strategies.

Hepper, E., Hart, C., & Sedikides, C. (2014). Moving Narcissus: Can Narcissists Be Empathic? Personality and Social Psychology Bulletin DOI: 10.1177/0146167214535812



pink and blue chalk figuresRecently we blogged about a new study on women and leadership saying women are no longer punished for “acting like a leader” as long as they are not seen as aggressive in their leadership behavior. Here are four different, easy-to-read articles on the leadership gender gap that will give you a good sense of both the ‘what’ and the ‘why’ of the issues.

Many of us have read about Sheryl Sandberg’s stories of being called “bossy” in her book Leaning In and recent stories characterize Jill Abramson (former NYT Executive Editor) as “pushy”. So, a linguistics doctoral student at Georgia State looked at a “random sample of 200 to 300 occurrences” of the following words: brusque, condescending, pushy, and stubborn, in the Corpus of Contemporary American English. Women were only mentioned 37% of the time, so he checked to see if the adjective was used significantly more than 37% of the time to test for gender differences. He found “brusque” and “stubborn” were words equally applied to men and women but men were more often labeled “condescending” and women were more often labeled “pushy”. We may not like either trait, but we are quicker to attribute it one gender or the other. Read the entire article to see more about this language issue.

linguistic pulse pushy condescending

Another interesting article “The self-assurance imbalance in the workplace” was recently featured in the Washington Post. This brief article speaks to the self-doubt rampant among working women and mentions several recent books discussing how to minimize self-doubt. She ends with the following memorable quote:

“Rather than advocating that an entire class of people start faking it ‘til they make it, maybe we should be coaching voters, students, bosses, and viewers at home how to be a bit more skeptical of the loudest guy (or gal) in the room.”

The longest article was featured over at the Atlantic: The Confidence Gap. Written by the authors of the book, The Confidence Code, this article is an easy, albeit long, read. If you are interested in the challenges women face as leaders, this is an interesting spin on the questions we have all asked over and over again. The short version is that men have self-doubt just like women do, but perhaps due to socialization, they have the confidence to step up and ask to do tasks in which they might fail. Confidence matters as much as competence when it comes to success. The bottom line to the message in this book may be the famous Nike advertising slogan: “Just Do It”. Women need to stop thinking so much and just take action (like men do). With practice, acting will become more natural than obsessing over the possible pitfalls. These authors also end with a lovely closing paragraph:

“Almost daily, new evidence emerges of just how much our brains can change over the course of our lives, in response to shifting thought patterns and behavior. If we keep at it, if we channel our talent for hard work, we can make our brains more confidence-prone. What the neuroscientists call plasticity, we call hope.”

And finally, Amy Cuddy is a social psychologist who does research on confidence and judgment. We’ve written about her work on power poses here before. You might find them useful for job interviews, in the courtroom, and for persuasion in general, although sometimes posing has to vary by gender. Perhaps though, today you feel more like watching a 20 minute video than reading additional blog posts. Cuddy’s talk is for people in general–both men and women. It just seemed to fit well with the other three articles in this post.

Amy Cuddy’s TED Talk message is that “tiny tweaks can make big life changes”. She also says “don’t just fake it until you make it”, but instead, “fake it until you become it”.

Changing small behaviors can, according to Cuddy, change your life. Her twenty-minute TED Talk is well worth your time (and truly deserves a blog post of its own).