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My soul is not for sale!
Oh really? Then why are the US Navy, the US Air Force and the NSF looking at how we make decisions to sell our souls? As it happens, when we are considering disavowing “sacred values”, a specific cognitive process occurs. That has to be good, of course, since we wouldn’t want soul-selling to be relegated to our general, everyday cognitive processes.
For this research, participants were wired up to fMRI machines to measure and record brain responses. In phase one of the experiment, participants were shown statements like the mundane “you are a tea drinker” to the more controversial “you are pro-life”. They were asked to choose if they agreed or disagreed with the statement.
In phase two, participants were offered up to $100 for signing a document stating the opposite of what they believed. For those statements they valued highly, they could opt out of the monetary reward. When a participant refused to sell out their values (aka ‘soul’), the researchers identified that statement as a personally sacred value for that individual. The researchers compared the fMRI’s for non-sacred and sacred values and found that different areas of the brain were activated when the individual considered whether they would sell the value statement. Thus, the researchers saw an entirely different decision-making process underway.
These findings are not particularly surprising to those who track the neuroscience literature. What is unknown is which values and attitudes are “personally sacred” to the individual. Or, as we think of it in constructing trial arguments, which statements correspond to firmly held or ‘core’ beliefs and values? The experiment was done as part of a series of experiments looking at cultural conflicts. What we see in our focus groups and mock trials is that there are idiosyncratic “sacred” ideas or perspectives for some jurors.
When we are doing corporate or contract work, we hear jurors who say “that just isn’t right” and other jurors who say “it’s just business and it happens all the time”.
When we are doing patent work, we hear jurors say “the inventor should get money for this idea for all time” and others who say “technology has moved on and this patent doesn’t have value”.
In personal injury death cases, we hear jurors agreeing that “No amount of money can compensate the family for the loss of a loved one”. But the impact of that belief is that some jurors say that as a result the family should get little or nothing, while others feel that the moon is not high enough.
All of these positions represent sacred values to those engaged in the dispute. The key is to do one of three things:
Identify those whose core beliefs are at odds with your case, and strike as many of them as possible.
Reframe your trial story so that jurors won’t feel that the verdict is inconsistent with their core or soul-defining values.
Since strategies 1 and 2 above are often incomplete strategies, determine which jurors with problematic values you can still live with. Identify those that will be open to your story and will surprise themselves by making a decision inconsistent with what they believe is a deeply held value. We’ve seen this happen. And when it does happen, it can be a beautiful thing.
Berns, G., Bell, E., Capra, C., Prietula, M., Moore, S., Anderson, B., Ginges, J., & Atran, S. (2012). The price of your soul: neural evidence for the non-utilitarian representation of sacred values Philosophical Transactions of the Royal Society B: Biological Sciences, 367 (1589), 754-762 DOI: 10.1098/rstb.2011.0262
Pretrial publicity & bias: Take a look at the age of your jurors!
Despite the Supreme Court ruling [Skilling v US] that pretrial publicity [PTP] does not bias the public perception and limit the right to a fair trial, most of us who have experienced the impact of pretrial publicity disagree.
It is an accepted truism that older people are more conservative than younger people. So it’s interesting to see some research on how pretrial publicity affects older jurors [range = 60-80 years old, average age = 69.5] and younger jurors [range = 18-21 years old, average age = 19]. In this instance, researchers looked at the impact of both positive and negative publicity on mock juror decision-making related to a specific set of case facts.
Mock jurors read either positive or negative pretrial publicity accounts of the case (via mock news articles) and then, one week later, they watched an edited 30 minute video of the trial. (This video was used in previous research and found to be realistic, believable and ambiguous as to guilt. Pretrial publicity is believed to be most important when guilt is ambiguous.) Following viewing of the trial video, they were told to disregard any relevant information from their readings the week before and then they wrote down their individual verdicts.
Older jurors were only affected by positive pretrial publicity.
Younger jurors were only moved by negative pretrial publicity.
In other words, even though the mock jurors were given identical information “pretrial” and then viewed the same video summarizing the trial, they came to very different conclusions. Older jurors were only biased by the positive PTP while younger jurors were more conviction prone than the older jurors only when exposed to negative PTP.
The researchers summarize by saying:
“the same PTP can have a large biasing effect on the decisions made by one age group while having no significant effect on decisions made by the other. [snip]
…these attentional biases [in older adults] may lead to more biased decisions, when the biasing information is positive and less biased decisions when the biasing information is negative”.
They also suggest that this age-related attentional focus may be more important in terms of decision-making than overall liberal or conservative orientation.
What this research would suggest is that when you have negative pretrial publicity, older adults (early Boomers and Silents) are going to make less biased decisions than when they have been exposed to positive pretrial publicity.
If you have a well-known and positively regarded client, older adults are going to be more affected by the ‘halo’ surrounding your client than will younger adults.
If you have a high level of negative publicity and your client is a relative unknown, younger jurors are going to be more swayed (negatively) while older jurors are largely unmoved.
It’s an intriguing finding for us for two different reasons: one is that this is a demographic finding–attitudes and values are almost always more powerful in affecting decision making. The second point is the question of why the older jurors were only moved by the positive PTP. They are, for the most part, more conservative. If they were looking for reasons to be punitive, the negative PTP would be powerful. Instead, another finding in our analysis of generational research seems to fit: older jurors are happier. They prefer to pay attention to news and information that says ‘the world isn’t so bad after all’. Setting aside our crazy aunt Freda who is fixated on conspiracy theories and Glenn Beck, you can expect older jurors to prefer positive stories, good character, and good manners.
This is an important new study (heading into press now) that we hope will see follow-on research to add nuances to our understanding. We’ll be watching, and will keep you posted.
Ruva, C., & Hudak, E. (2011). Pretrial publicity and juror age affect mock-juror decision making Psychology, Crime & Law, 1-24 DOI: 10.1080/1068316X.2011.616509
fMRIs and Persuasion: Did anyone tell the jurors?
We all know that neuro-imaging is not ready for courtroom persuasion yet, but did someone remember to tell the jurors? Apparently not–but maybe they already knew.
Are “pictures” of the brain so persuasive that they can sway juror decision making? Even though the credibility of the medical experts has to be factored in, many people believe that when you include brain scan photos (as opposed to bar charts or topographical maps for example) the viewer is more persuaded. Even though there isn’t a chance in the world that an average juror can make sense of the image.
So, the current researchers decided to look at the effect, if any, of neuroimages using a fact pattern of a capital murder case. They were trying to sort out whether it is useful to focus mitigation arguments on neuroimaging evidence, since it could “create the impression the defendant is ‘damaged goods’ and beyond repair.”
The researchers presented the facts of a murder along with evidence (included in nearly all capital trials) of the likelihood of future dangerousness and evidence about the psychiatric condition of the defendant. They divided participants into 3 conditions:
The first group was told the defendant was psychotic.
The second group was told the defendant was psychotic and was given the results of neuropsychological testing discussing damage to the defendant’s brain (specifically, the frontal lobe).
The third group was given the diagnostic information and the test results but also shown color photos of “structural and functional scans of the defendant’s brain” and given descriptions of likely consequences with this sort of damage to the brain.
The researchers expected that the more information participants were given, the less they would choose the death penalty IF the defendant was adjudged to be at low risk for future violence. And they were wrong.
When mock jurors were provided only a diagnosis, and were told the defendant had a high risk of future violence, they were overwhelmingly more likely to give a death sentence (65% voted for death penalty) than other mock jurors. When they were given additional information (either a psychological testing summary or the testing summary with neuroimaging evidence), their imposition of the death sentence dropped dramatically (down to 12% voting for death penalty). If jurors assessing these ‘dangerous’ defendants were given all three forms of information, the death penalty was selected only 8% of the time.
Oddly, low risk of dangerousness only affected those jurors who were only given the diagnosis (but no supportive test data or images). ‘Diagnosis only’ mock jurors assigned the death penalty about 17% of the time (down from 65%), while diagnosis plus testing mock jurors chose the death penalty about 21% of the time and mock jurors receiving all three types of evidence chose the death penalty about 14% of the time (essentially the same as the ‘high risk of violence’ condition).
The researchers concluded that with high risk for future violence defendants, both neuropsychological testing and neuroimaging evidence reduced the likelihood jurors would choose the death penalty. Rather than being ‘aggravating’, this additional evidence was truly mitigating in the case of the high-risk-to-violently-reoffend defendant.
Our view is that this is consistent with what is frequently seen in juror decision-making: Jurors are much more comfortable accepting a high-risk proposition if they are comforted that they have a valid reason for doing it. This is most clearly seen in the high risk group, where they needed to be assured there is ‘scientific evidence’ that the defendant was impaired, not merely that the defense found an expert willing to make that claim. It also suggests that in the population used in the study, there were about 15-20% who were in favor of the death penalty regardless of mitigating scientific evidence.
It’s important to note that the neuropsychological testing results mitigated almost as much as the testing results plus the brain pictures. The verbal description alone (or verbal picture if you will) persuaded jurors. The researchers say it is possible that any additional information pertinent to the defendant’s condition ‘personalizes’ the defendant for jurors and thus may prove mitigating. We go with the former idea, as it seems unlikely that a psychological test profile or a description of neuroimaging studies causes anyone to become more ‘personal’. The jurors simply want reassurance that they are working off more than one person’s opinion.
For the practitioner, this says you don’t need bells and whistles [like brain scans] to successfully mitigate. But you do need solid and scientific information, well-presented using language and examples jurors can understand. That testimony can save a life.
Greene, E., & Cahill, B. (2011). Effects of Neuroimaging Evidence on Mock Juror Decision Making Behavioral Sciences & the Law DOI: 10.1002/bsl.1993
Negotiations: Starting high and ending with nothing
In October of 2011, we wrote a blog post on negotiating your salary. That post was based on research advising the negotiator to start “high”. At the time we cautioned against applying this wisdom since it was only one study. Sometimes we are prescient! Or in this case, we were appropriately cautious/skeptical.
New research says you run the risk of alienating your fellow negotiator and having negotiations break down entirely. Common wisdom, according to the researchers, suggests aggressive first offers (high if you are selling, low if you are buying). These researchers wanted to see how often an extreme first offer results in a negotiation impasse or breakdown. Does an extreme offer signal strength, or a simply a lack of interest in being reasonable and getting the case settled?
What they found is counter-intuitive. They looked at both how often negotiators were offended by extreme first offers and the negotiator’s sense of power (i.e., how many other options do you have).
They found that extreme first offers raised the incidence of people walking away from negotiations.
Almost everyone was offended by the extreme offers but only those negotiators with lower power walk away from the negotiation.
Further, beginning with an extreme first offer did not seem to result in a superior eventual outcome for the aggressive negotiator.
You would think that those with high power (i.e., with more options) would be the first to walk away. In our experience–the party with lower power may bluster and complain, but they don’t often walk away unless they have nothing to lose. They are trapped.
We recently had a case like this where the plaintiff would end up with $4 million dollars whether he prevailed or not. If he prevailed, he would potentially end up with a higher award. There was no incentive for him to “go away” or settle even though he was a scoundrel in the eyes of mock jurors. The defendant had to choose whether to proceed and bear the cost of litigation–or give him the money. It was a tough situation and certainly one that didn’t feel “fair” to the plaintiff.
Perhaps the situation researchers used in this study (either a personal rental lease or a corporate lease) is simply too far afield from the negotiations involved in high stakes (emotionally and financially) litigation. On the other hand, the counter-intuitive finding about negotiating with the low-power party is a good cautionary tale.
Schweinsberg, M., Ku, G., Wang, C., & Pillutla, M. (2012). Starting high and ending with nothing: The role of anchors and power in negotiations Journal of Experimental Social Psychology, 48 (1), 226-231 DOI: 10.1016/j.jesp.2011.07.005
When are jurors more apt to blame the ‘rogue employee’ than the corporation?
This past year, we’ve been intrigued several times to have mock jurors give large corporations a pass and instead place blame on individual employees. While they, in every case, understood that corporations are responsible for the behavior of their employees, they wanted to make it clear they did not blame the company. In a sense, they sympathized with the company for being responsible for a reckless maniac in their workforce. Actual (and exemplary) damages were lower. We’ve watched it happen with major banks, oil and gas companies, high-tech companies, and manufacturers. If the conduct of the employee can be disconnected from the corporate culture, the impact is mitigated.
Mock jurors are not naive. One recent two-day exploratory project resulted in memorable quotes from two older (salty Texan) female jurors:
“Look. We’re [both sides in the conflict] all whores. And we all know we’re all whores. And every single one of us came to the party.”
“Oh, please. They’re all filthy from playing in an ethical pigpen and now they’re whining because they didn’t get kissed before they got screwed?”
It is as though there is a corporate variation on the reaction we often see in family law cases where jurors throw up their hands and say “a pox on both your houses”. We never rely on this happening–but when it happens, teasing out the dynamics that result in that happy outcome for the defendants is always intriguing. And when our client is the plaintiff, that dynamic analysis is even more important. And–‘research to the rescue’–we have evidence that our insight has a lofty foundation. An explanation with 6-syllable words.
Researchers were curious about when people would be more likely to blame bad behavior on the group rather than on individual members. They explored the perception of a “group mind” (i.e., group members simply follow directives from above) and “individual mind” (i.e., group members make up their own minds). They also looked at cohesion of the group and had some very simple but effective animations to illustrate a high cohesion group [of fish] and a low cohesion group [of fish].
Their findings were intriguing:
“The more people judge a group to have a mind, the less they judge a member of that group to have a mind and vice versa. Attributing more mind to a group is linked to judging the group–and its members–to be more responsible for the group’s collective actions.”
In other words, when people see the group (whether it be a corporation, a professional sports team, a collection of professionals, or a cult) as highly cohesive–they will see the individual member of that group as thinking less for themselves and behaving more like lemmings in response to group directives. And they will blame the group “mind” rather than the individual employees–who, after all, are only responding to directives.
If, conversely, they see the group (again, whether it be a corporation, a professional sports team, a collection of professionals, or a cult) as not cohesive, they will focus more on the ‘rogues’ (thinking and acting on their own) rather than blaming the entire group.
The applications to litigation are straight-forward.
If you are defending, you want to show low cohesion in your client’s organization. This will, based on this research, result in juror’s blaming the ‘rogue’ employees and likely in reducing damages–both actual and punitive. The ideal way of achieving this is through positive values, e.g., a) the employee was granted independence, b) based on trust, that they would c) uphold the ethical standards of the corporation.
If you are plaintiff, you want to show indications of high cohesion which will result in jurors having more tendency to blame the group and likely increase damages. Dismiss the corporate vilification of the employee as CYA, as throwing the worker under the bus, and describe how warmly that employee was treated as long as they were making money for their employer.
Don’t just assume it will happen–but build these factors into your case presentation so that, if it does, jurors supporting your case are prepared to support you in deliberations.
Waytz, A., & Young, L. (2011). The Group-Member Mind Trade-Off: Attributing Mind to Groups Versus Group Members Psychological Science DOI: 10.1177/0956797611423546
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