Archive for the ‘Bias’ Category
We’ve been busy in pretrial research over the past few months–including several corporate defense cases. It’s been intriguing to watch mock jurors repeatedly assuming the worst when it comes to potential corporate malfeasance. While, oddly, the controversies over McDonald’s wages and Wal-Mart (and others) opening for early bargain shopping on Thanksgiving Day were never voiced, there was a definite tone of negativity toward business ethics, as well as assumptions of trickery and corruption. It didn’t even matter if the corporation was a non-profit to our jurors. They simply made negative assumptions and based on their imaginations alone (and certainly not on facts in evidence) came up with observations like the following:
“Well, they’re probably not a real non-profit. They’re probably going to expensive hotels, throwing $3,000 parties every week, having catered lunches, paying themselves huge salaries, and lining their pockets with ill-gotten gains. I want to know what their personal lifestyles are like.”
There was consistent concern with the “real people” who were potentially being harmed (or who would potentially be harmed) by corporate misbehavior.
“You know who’s really going to end up paying? Us. The taxpayers. Especially homeowners in these small towns. Poor people. It’s just not right.”
And in one case, involving fraudulent backdating of tax-related documents, jurors were appalled.
“Well, isn’t that also defrauding the US government? This man has no shame and he is just disgusting.”
There was also an abundance of question about conspiracy or at least collusion where the mock jurors made cognitive (aka conspiracy) leaps to fill gaps in the case narrative.
“I knew it! I told you so. Now I understand what happened here. This wasn’t those two’s first rodeo.” [Yes, this one was in Texas.]
The frustration and distrust was palpable, no matter what the case themes were and no matter what venue they were in–from one side of the country to the other. The resistance among some jurors to the prospect that the corporate Defendant was not the cause of the alleged harm was so strong for some that they admitted to difficulty in acknowledging some of the evidence. So it was intriguing to come home to a new working paper out of the University of Tennessee on just why corporate cultures go bad. They hypothesize, consistent with our mock jurors’ assumptions, that unethical CEOs are an important cause of unethical corporate behavior.
The researchers discuss the difficulty in measuring the character of top executives and propose a “novel way to identify an unethical pattern of behavior”. In short, they look at whether the CEO engaged in “systematic participation in options backdating”. This was a common practice in the late 1990s but still occurs (less frequently and less openly) today. Using data from 1992 until 2009, the researchers identified 249 suspect CEOs and then added 12 additional CEOs to their list who were identified (and disciplined) for backdating offenses.
They found a high correlation between their list of CEOs and others forms of corporate bad behavior:
Firms with backdating CEOs were about 15% more likely to narrowly “meet or beat analysts’ quarterly earning forecasts”. (This is a tendency researchers have identified as evidence of accounting hijinks meant to raise stock prices.)
Firms with backdating CEOs also make more acquisitions that have a lower market response. (This is often called “empire building” and is a practice that provides financial benefit to the executive but at the cost of the shareholder.)
And, very intriguingly,
These findings were more likely to happen in organizations that hired their suspect CEO from outside the organization rather than promoting from within.
In other words, those organizations bringing in a new external CEO hire, were more likely to hire an ethical lemon AND that CEO would engage in bad behavior that would ultimately have negative impact on the organization’s reputation (and proclivity for shady or unethical business practices).
So what does this mean for litigation advocacy? It means what it’s always meant. Character matters. In addition to the ongoing frustration and disapproval we heard from mock jurors over the past few months, we also heard another consistent theme: character matters. All it took was a witness or party seen by the jurors as ethically solid, credible, believable, knowledgeable and honest– for them to find for that party. In one case, the jurors chose an older woman witness who many of them “recognized” as like someone they knew–salty and feisty, but honest as can be. They liked her and, more importantly, they believed in her and in her recollections of events (which were disputed by the other party).
Her testimony was enough to tip the balance in a case where neither organization was viewed very positively by the mock jurors. In other words, the more ways we can tell a story to highlight signs of good character, honesty, integrity, and concern for the downstream impact on the public, the more mock jurors supported that party. They still groused about not wanting to support either party (especially in cases of one corporation pitted against another corporation) but their desire for a fair resolution and to see hope in the character of those involved would guide their decision-making.
As we have said many times, whether the lawsuit is about physical injury, a contract, or a patent– winning and losing at trial is always about the people involved.
Biggerstaff, L.,, Cicero, D., & Puckett, A. (2013). Unethical culture, suspect CEOs and corporate misbehavior. SSRN Electronic Journal. DOI: 10.3386/w19261
For the fourth year in a row we have been honored with recognition from the ABA via inclusion in their 2013 list of the Top 100 legal blogs in the country. We work hard to blog consistently even when inundated with work and would appreciate your vote for us at the Blawg 100 site under the LITIGATION category. You will have to register your email just so you can’t vote 47 times. There are many worthwhile law blogs on this list so take some time to peruse. Thanks! Doug and Rita
Two weeks ago we did a mock trial with a group of attorneys who were passionate about their case and yet got along very well with each other. It was a high-adrenalin experience that lasted 48 hours. On the morning of the second day, the Plaintiff attorney went into the presentation room a little early and sat down. There was good-natured commenting from his colleagues in the observation room that he was trying to influence the jurors.
Suddenly, one of the jurors complimented him on his necktie and others (all middle-aged women) chimed in as well. The attorney smiled and said he had three daughters and the middle daughter picked out his ties. There was uproar in the observation room as the opposing attorney’s protested the unfairness of this personal interaction with the jurors. When the Plaintiff attorney returned to the observation room after his presentation, he grinned and stroked his (very attractive) tie as his colleagues griped about ‘undue influence’. Later, we found multiple comments on written questionnaires about how “very, very likable” the “first attorney” was for the mock jurors.
We always assess likability, credibility, and trustworthiness as mock jurors view witness deposition excerpts and assess the attorney’s presentations. But new research on ‘what leaders look like’ has us contemplating adding dominance to this lineup of personal characteristics assessed by our mock jurors. Apparently, dominance cuts both ways, but competence and trustworthiness are a golden pairing.
Researchers from the University of Delaware examined how participants inferred personality traits of political candidates based on looking at their faces. According to these researchers, the literature on competence, trust and dominance is very mixed.
Some studies show that a first impression of dominance can lead to positive social outcomes in real life for politicians and CEOs, and even managing partners of the top 100 law firms in the US. Others show that impressions of dominance can backfire when people resent feeling controlled by dominant leaders. The authors think there is a fine line between when dominance feels like competence and when it veers off into feeling like coercion. They also report multiple studies have combined dominance and competence into a single composite score and this, opine the researchers, could mean dominance is given credit for positive outcomes that should be explained by competency.
So, the researchers designed their studies to separately assess dominance and competence inferences made when participants examined photos of faces of candidates for the U.S. Senate. The outcome measure was whether the candidate actually won their election in the real world. Findings were consistent across three studies:
Being seen as trustworthy increased the chance the candidate actually won the election, but only if they were also perceived as competent.
Being seen as dominant increased the chance the candidate won the election, but only if they were also perceived as competent. When competence perceptions were controlled, dominance was not related to electoral success.
The researchers say that when you are highly competent, if you also “look trustworthy”, this increases your chances of positive outcome. And when you are perceived as dominant, it can create a backlash against you (when benefits associated with competence are removed) due to the possibility of fear (on the part of voters) of an authoritarian leadership style. In these studies, candidates who were seen as dominant, were also seen as being unlikable and untrustworthy.
The analogy that came to my mind as I read this material involved driving a car. If you drive authoritatively—then you are fast, aggressive, and dominant. It’s a high-risk approach that works well in the minds of some people as long as you are a really good driver. But the risk of doing harm is far greater with someone like that than it is for someone who is less dominant and aggressive.
It’s an intriguing characteristic to ponder in the litigation setting. We have assessed trustworthiness, credibility and likability for years now. But dominance? It would be an intriguing wrinkle for us to consider.
What about a witness leads jurors to assess him or her as dominant?
Is that a good thing in litigation or a bad thing like in political candidacy?
In the particular mock trial noted above, jurors tended to think the Plaintiff attorney’s case was more credible. But they also liked his tie and his story of his middle daughter picking out his ties. He was likable and he created a friendly connection. He was competent. And in the mock juror’s perceptions–he was also dominating his opponents. This is one we will consider at length in designing new research questions and strategies.
As an aside and unrelated to this research [although not to the larger issue], apparently leaders also look like men. An image search for “how leaders look” came up with entirely male faces. To see female faces, we had to select “famous women leaders”. While it’s hard to miss Oprah gracing this post, the question of why women don’t look like leaders is likely a whole ‘nother post.
Chen, FF, Jing, Y., & Lee, JM (2013). The looks of a leader: Competent and trustworthy, but not dominant. Journal of Experimental Social Psychology. DOI: 10.1016/j.jesp.2013.10.008
How do empathy, accountability and fairness interact to result in preferential treatment (but with the best of intentions)? You know we are looking at this with an eye toward litigation implications and it isn’t even that much of a stretch. The researchers are looking at the workplace supervisor/supervisee relationship to assess how knowing that an employee is having a rough time might result in differing (i.e., preferential) treatment to a “needy employee”.
What they find is that when someone is “needy” and the supervisor is aware of this, the needy employee is given preferential treatment over other employees who don’t present as being in special need. When supervisors knew others would find out what they had done, they were less preferential to the needy employee. The researchers called this condition “high accountability”. However, when accountability was low (i.e., the supervisor thought no one would know what they had done), the needy employee received preferential treatment. And here’s the surprising part, the reason research participants made that choice was because they wanted to be fair. If someone is having a tough time, isn’t it more fair to cut them some slack? Empathy would say it is. Justice would beg to differ.
The researchers refer to this as the chronic tension between empathy and justice. We want to alleviate the distress someone we have warm feelings toward is having. But we also need to consider fairness for all in the group or situation. How can we be both empathic and just?
The researchers suggest we need a “more nuanced and complex understanding of the relationship between empathy and fairness”. They refer to the Sonia Sotomayor Supreme Court nomination hearings and the controversy over her remarks on empathy. The researchers conclude with an eloquent turn of phrase:
“The tension between empathy and justice represents a tug of war between head and heart, two noble yet complex bases of motivation. We feel it important to recognize this tension, and to appreciate that empathy may come with pitfalls and that acts regarded as unjust may be rooted in the best of intentions.”
We see examples of this tension routinely in our pretrial research. Some jurors are driven by the head and others by the heart. During deliberations we hear thoughts like, “this is just so sad, my heart breaks for them” and rejoinders like “but they said we shouldn’t let sympathy figure into our decisions”. And these two positions are often negotiated to come to something the mock jurors see as either fair or “legal”. A hybrid is the oft-present, “it may be legal but it sure isn’t right” position we hear when jurors are disgusted with egregious behavior that meets the letter of the law, but not the juror’s sense of fair play or human decency.
There are times when emotion clearly plays a part in juror decision-making. We would say it is likely much more often than scholars (or senators) may like to think. We’ve seen powerful examples of this phenomenon recently. There are times when you can have a majority of jurors who make decisions with their heads and not their hearts. Sometimes the empathy for the specific party over-rides the evidence. Is that just? It’s debatable. Is it just to simply apply the letter of the law and stifle the larger concerns for fairness you may have? That’s also debatable. And that tension between empathy and justice is why, after all these years, we still find ourselves surprised, comforted, disappointed, disturbed, and more by the best decisions of a group of twelve. Our belief is, after seeing hundreds of groups deliberate, is that juries do the very best they can as they struggle to make decisions. We feel. It’s part of being human. Jurors feel too. And it’s part of how they (and we) make decisions.
Blader, SL, & Rothman, NB (2014). Paving the road to preferential treatment with good intentions: Empathy, accountability and fairness. Journal of Experimental Social Psychology. , 50 DOI: 10.1016/j.jesp.2013.09.001
Six months ago, we began to be inundated with comments from what were obviously students in entry-level psychology classes. When it reached a volume of about twenty comments a day, we did some research and discovered they came from a community college in Missouri. They were all using falsified email addresses and names so we could not even explain why their low-level and often poorly written comments were not being published. Last week, we got a very indignant comment [from the same community college] on our post regarding disturbing allegations by some of black people not feeling pain the same way white people do. There was a snide aside about the inevitability that we would not publish their comment. To be clear to all, we do publish comments submitted to us on our posts, but we limit the comments to those which are civil, contribute substantively to the discussion, and are tolerably well written.
The commenter rebuked us for seeing race everywhere and for endangering others by propagating such ridiculous information. “Everyone knows” insisted the commenter, that after all those years in medical school, medical professionals are not going to treat people differently because of race–just like employers always hire the most qualified applicant they have without regard to race. The commenter (who used a bogus email address and name) was obviously very angry and just as obviously uninformed on the prevalence of disparate treatment due to race, gender, ethnicity, age, disability, sexual orientation, religious affiliation, and other differences among us. S/he was also though, very certain of how right s/he was and how wrong we were and that our wrongness was endangering others. “It isn’t as though you will learn though”, the commenter wrote.
I thought of him or her as I read an article highlighted by Tom Jacobs over at Pacific Standard magazine. Tom’s piece is three pages long (and as usual, very well done and an easy read). The original article is 60 pages long and arguably a harder read, so you can choose which you would like to review! It is slated for publication in the Journal of Experimental Social Psychology but is also posted on SSRN so you can access it now.
In essence, the article discusses how we are increasingly living not just in red and blue states–but we are relocating so we are also in red and blue towns and communities. The authors call the trend the ideological migration hypothesis:
Those who lived in a community where they did not believe they shared the same ideology with their neighbors were more likely to move to communities where neighbors shared the same beliefs.
Those who found their own ideology a mismatch with their community’s, felt they did not belong and wanted to move (or, as the authors say, migrate).
Those who were made to believe (i.e., told by the researchers) their community was growing even more incongruent with their own ideology expressed a decreased sense of belonging and an increased desire to move.
Overall, say the authors, “Ideological migration may contribute to the rise in cultural, moral, and ideological segregation and polarization of the American electorate.”
The authors explore the increased mobility of the American population and the varied explanations behind how the “de facto segregation” has occurred as people increasingly relocate to communities that are ideologically consistent with their own views. To be sure, this has something to do with income and occupation, but the writers believe it to be more than that since, “in some cases, people may find the ideology of their current community disgusting, ideologically objectionable, or threatening, eliciting unpleasant existential anxiety”.
Additionally, say the authors, “Communities with liberal ideologies do tend to have more organic food markets, bicycle trails, and a greater proportion of hybrid vehicles on the road. In contrast, communities with conservative ideologies do tend to have more “big box” stores, a higher gun-store-to-bookstore ratio, and a greater proportion of sport utility vehicles on the road. It is possible that these characteristics enable people to discern the ideological leanings of communities.”
The authors think this sort of ideologically based migration has both positive and negative points. However, we run the risk of limiting communication between conservative and liberal peoples and thus reinforcing an “us versus them” mentality. Supporting this conclusion is that the most likely migrators are those who identify as either liberal or conservative. Moderates tend to stay put.
It’s a dilemma we often face in pretrial research. In a random sample of jury-eligible citizens, you are bound to get people with ideological differences. A jury is meant to be composed of people from different walks in life, different neighborhoods, different life experiences and different ideologies. Certain themes in the case narrative can elicit a knee-jerk reaction from individual jurors. Our goal is always to identify what themes— or impressions— elicit that reaction. Recently, for example, we had a witness who wore a large, ornate cross around her neck during deposition and, even though it was never mentioned during the testimony or during case presentations, both liberal and conservative jurors thought it was an effort to influence them–for better or worse. We always recommend careful evaluation of story features, fashion accessories, and story elements that distract the jury from the universal themes and values of the case itself.
We don’t believe our blog is harming anyone. We know a good many of our readers, and are aware that they work in respected law firms, they study and teach at good universities, and they follow us here and on Twitter because together we constitute a community of diverse perspectives and common interests.
What we look for in research (both the studies posted here and the research we conduct for clients) is evidence of strongly held beliefs, indications of the route people took in decision-making, and what would be required for them to reach a different conclusion. In part, that leads us to see bias (in multiple forms) all around us because that’s an important aspect of what we do. And on this blog, we moderate all comments due to the level of spam and/or inarticulate commentary meant, at times, to increase someone’s SEO ratings. If you have a substantive comment on what we write about, please use a real email address so we can communicate with you. Otherwise, we are living in separate worlds.
Motyl, M., Iyer, R., Oishi, S., Trawalter, S., & Bosek, BA (2013). How ideological migration geographically segregates groups. Journal of Experimental Social Psychology. DOI: 10.1016/j.jesp.2013.10.010
As Editor of The Jury Expert since we moved to an online publication in May, 2008, I am proud of what The Jury Expert has become. We recently moved to a quarterly publication schedule to give us a little breathing room in the breakneck pace of the work. The latest edition of the Jury Expert is now available.
Taming the Reptile: A Defendant’s Response to the Plaintiff’s Revolution by Ken Broda-Bahm, Ph.D.
The Reptile Approach has been immensely popular among the Plaintiff Bar and many articles have discussed the benefits and drawbacks of this approach. Rather than going down that road again, we are publishing a look at how to attack the soft underbelly of that scaly reptile. How do you circumvent a snake? You start by reading this Defense approach to the Reptile Theory.
The Truthiness of Visual Evidence by Eryn Newman, Ph.D. from the University of California at Irvine, and Neal Feigenson, J.D. from Quinnipiac University School of Law
Stephen Colbert has made “truthiness” a well-known concept. “You don’t look up truthiness in a book. You look it up in your gut.” So what happens when truthiness comes to your courtroom and then makes it into the deliberation room? Two researchers take a look at how truthiness interacts with visual evidence and a trial consultant (and visual evidence expert) responds.
Neutralizing Negative Pretrial Publicity: A Multi-Part Strategy by Adam Shniderman, M.A. from the University of California at Irvine
Negative pretrial publicity is a nightmare. You have to address it but how to do that effectively is often a puzzle. This writer presents a multi-part strategy (e.g., pre-trial, during voir dire, and during the case presentation) to not only addressing, but neutralizing negative pretrial publicity.
When Does a Defendant’s Impulsivity Exculpate vs Incriminate? by Clayton Critcher, Ph.D. from the University of California at Berkeley, and Yoel Inbar, Ph.D. from Tilburg University, The Netherlands
Did your client make that decision fast or slow? As it happens, the observer may attribute immoral character to those that make a fast decision, or they may attribute a higher level of morality to those that seem to weigh the evidence and consider their choices before deciding. So what can you do to frame the decision made by your client in a way that will benefit and not harm them? Two researchers tell us about their work and two trial consultants respond with their thoughts on applications to litigation advocacy. The researchers also make a brief reply to the trial consultants comments.
We often have a “new” favorite thing in our issues of The Jury Expert. Typically, it’s something new (or new to many of us) and we are introducing you to something we’ve found that is just wonderful. This time though, it’s a little different. This has been around forever. Truly. But we think that just because you’ve known about it forever doesn’t mean it can’t be your new Favorite Thing too!
Inaccuracy in Political Self-Perception: Young Adults Are Not as Conservative as They Believe by Michael Bernstein, Ph.D. from Pennsylvania State University, Abington, and Ethan Zell, Ph.D. from the University of North Carolina at Greensboro.
There are basic things we all know about ourselves. You are tall or short. You have straight hair or wavy/curly hair or, perhaps no hair. Your eyes are brown, or blue, or hazel–more or less. And you are liberal or conservative. We know these things to be true. Except when we don’t. New research shows us that we may be inaccurate in what our politics truly are–especially when we are young. You may not be as liberal or as conservative as you think. Two researchers share their findings and two trial consultants consider this in the context of their day-to-day work in litigation advocacy. The researchers then make a brief reply to the consultants.
Book Review- Social Media as Evidence: Cases, Practice Pointers, and Techniques by Rita Handrich, Ph.D. of Keene Trial Consulting
Social media was fairly new not long ago and now it is a basic consideration of voir dire and jury selection (not to mention concerns over social media during the trial itself). This book (from two attorneys at DLA Piper) covers the basics of social media investigation, pitfalls, and offers multiple techniques for voir dire. Read this review and see if you’d like to add the book to your library.