You are currently browsing the archives for the Case Preparation category.

Follow me on Twitter

Blog archive

We Participate In:

You are currently browsing the archives for the Case Preparation category.

ABA Journal Blawg 100!







Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Login

Archive for the ‘Case Preparation’ Category

“Smart people ask for (my) advice!”

Monday, September 15, 2014
posted by Douglas Keene

smart people ask for adviceWe are often wary of asking for advice for fear of looking dumb or appearing incompetent. Oddly enough, our fears may be unfounded based on some new research out of Harvard Business School. According to the researchers, asking for advice does not make you appear either dumb or incompetent. Instead, asking for advice makes you seem more capable.

While initially this may seem unlikely, think about how much people love to give advice. When someone is asked for advice, they experience a boost in self-confidence, which, say the researchers, in turn enhances their opinion of the person seeking advice. It is, in truth, a win-win situation. The person asking for advice gets some feedback and they are seen as more competent while the person being asked for advice feels better about themselves (and about the person asking for advice).

The researchers (we’ve covered some of their earlier work here) conducted 5 separate experiments and here is what they found:

Asking for advice actually increases other’s perceptions of your competence.

When the task is difficult, asking for advice causes the person seeking advice to appear more competent than when the task is not difficult. However, even when the task is easy, seeking advice did not lower perceptions of the person’s competence!

When someone is asked for their specific advice, they see the asker as more competent. However, if they see the person asking someone else for advice, they do not see the advice seeker as more competent. The researchers believe there is a “direct flattery” component involved here since “being asked for advice caused advisors to feel more self-confident, and, in turn, to view the advice seeker more positively”.

Finally, the advice-giver needs to believe themselves competent and experienced in the area in which they are asked for advice. [Of course, a lot of people have an inflated sense of the scope of their qualifications…] If the advice seeker asks for guidance in an area of the advisor’s expertise, the advisor sees the seeker as more competent. However, if the advisor is obviously not experienced in the area, “then the advice seeker seems less competent than if s/he had not asked for advice” at all.

The researchers say our fears about appearing incompetent by asking for advice are unfounded and that, in truth, there are benefits to both being the advice-seeker and being the advisor. They believe that organizations benefit from encouraging advice-seeking as it will help spread useful information and improve relationships between colleagues and co-workers. The dilemma is that if you educate your employees on the advantages of advice-seeking to both the advice-seeker and the advice-giver–you run the risk of the advice-giver feeling manipulated and the advice-seeker wanting to “not be that guy/gal”. The authors do not offer advice to the manager looking for ways to build this dynamic into their office culture–they simply say it would be a positive and productive thing. (See the full text of the paper here.)

This explains why one of our favorite strategies for both debriefing mock jurors and conducting voir dire are so productive. At mock trials and focus groups, I introduce the process by sharing with the mock jurors my hope that through their collective wisdom we can tell the disputing parties and their lawyers what ‘real people’ think about the issues, and guide a resolution that doesn’t require a trial. It elevates them from being there for a couple hundred dollars to being there to solve a problem. They really like it. At trial, asking the venire questions framed in terms of “help me understand” and “Is that important to you?” makes them feel that you are seeking their perspective, not quizzing them or boxing them in. It credits them with having a contribution to make, that they are smart enough to have a valid opinion, and that you recognize the validity of their point of view. It’s not about you or your client at that point, it’s about the jurors. And that can’t hurt.

Brooks, AW, Gino, F, & Schweitzer, ME (2014). Smart people ask for (my) advice: Seeking advice boosts perceptions of competence. Harvard Business School Working Papers

Image

Share
Comments Off

TJE_logoThe August issue of The Jury Expert is up and we think you’re going to want to see this. Here’s a rundown of the articles you’ll find at the website.

Demographic Roulette: What was once a bad idea has gotten worse. Authored by Doug Keene and Rita Handrich with a response from Paul Begala, this article takes a look at how the country has changed over the past 2 decades and our old definitions of Democrat or Republican and conservative or liberal are simply no longer useful. What does that mean for voir dire? What should it mean for voir dire? Two very good questions those.

If it feels bad to me, it’s wrong for you: The role of emotions in evaluating harmful acts. Authored by Ivar Hannikainen, Ryan Miller and Fiery Cushman with responses from Ken Broda-Bahm and Alison Bennett, this article has a lesson for us all. It isn’t what that terrible, awful defendant did that makes me want to punish, it’s how I think I would feel if I did that sort of terrible, horrible awful thing. That’s what makes me want to punish you. It’s an interesting perspective when we consider what makes jurors determine lesser or greater punishment.

Neuroimagery and the Jury. Authored by Jillian M. Ware, Jessica L. Jones, and Nick Schweitzer with responses from Ekaterina Pivovarova and Stanley L. Brodsky, Adam Shniderman, and Ron Bullis. Remember how fearful everyone was about the CSI Effect when the research on the ‘pretty pictures’ of neuroimagery came out? In the past few years, several pieces of research have sought to replicate and extend the early findings. These studies, however, failed to find support for the idea that neuroimages unduly influence jurors. This overview catches us up on the literature with provocative ideas as to where neurolaw is now.

Predicting Jurors’ Verdict Preference from Behavioral Mimicry. Authored by Matthew Groebe, Garold Stasser, and Kevin-Khristián Cosgriff-Hernandez, this paper gives insight into how jurors may be leaning in support of one side or the other at various points during the trial. This is a project completed using data from actual mock trials (and not the ubiquitous undergraduate).

Our Favorite Thing. We often have a Favorite Thing in The Jury Expert. A Favorite Thing is something low-cost or free that is just fabulous. This issue, Brian Patterson shares the idea of mind mapping and several ways (both low-tech and high-tech) to make it happen.

The Ubiquitous Practice of “Prehabilitation” Leads Prospective Jurors to Conceal Their Biases. Authored by Mykol C. Hamilton, Emily Lindon, Madeline Pitt, and Emily K. Robbins, with responses from Charli Morris and Diane Wiley, this article looks at how to not “prehabilitate” your jurors and offers ideas about alternate ways of asking the question rather than the tired, old “can you be fair and unbiased?”.

Novel Defenses in the Courtroom. Authored by Shelby Forsythe and Monica K. Miller, with a response from Richard Gabriel. This article examines the reactions of research participants to a number of novel defenses (Amnesia, Post-Traumatic Stress Disorder (PTSD), Battered Women Syndrome (BWS), Multiple Personality Disorder (MPD), Post-Partum Depression (PPD), and Gay Panic Defense) and makes recommendations on how (as well as whether or not) to use these defenses.

On The Application of Game Theory in Jury Selection. Authored by David M. Caditz with responses from Roy Futterman and Edward Schwartz. Suppose there was a more predictable, accurate and efficient way of exercising your peremptory strikes? Like using a computer model based on game theory? In this article, a physicist presents his thoughts on making those final decisions more logical and rational and based on the moves opposing counsel is likely to make.

Image

Share
Comments Off

Just how diverse is this group, really?

Wednesday, August 27, 2014
posted by Douglas Keene

Diverse PeopleWe often make assumptions when discussing diversity that we all perceive a group’s diversity in the same way. Today’s research shows that simply isn’t so. That is, you and I (depending on our racial in-group) can look at the same group and you might say it is diverse while I say it is not. What makes the difference? It’s an intriguing question.

These researchers discuss how diversity means different things to different people and yet, we often discuss diversity as though “everyone ought to know it when they see it”. In other words, we often conceptualize ‘diversity’ as objective rather than as something that will vary across individuals and situations. Their belief is that racial minorities look at groups and assess whether there is anyone else in the group from their own in-group since they believe that is the best predictor of whether they would be treated fairly by the group. The researchers review the lengthy history of research and polling results showing varying perceptions of race relations by Whites and minority group members. They then focus on differences in how groups are perceived (in terms of diversity) by African-Americans and by Asian Americans.

African-Americans, say the researchers are often lower status, have more negative stereotypes and report more discrimination than do other minority groups.

Asian Americans, on the other hand, are often granted higher status and report lower levels of discrimination than other minority groups. (We would point out that just because Asian Americans report less discrimination doesn’t mean they do not experience discrimination.)

The researchers completed three separate studies to see if there were differences between African-American and Asian Americans in terms of the perception of group diversity.

Study 1 included 1,899 American (391 Asian American, 620 African-American and 888 non-Hispanic White) members of a polling panel maintained by GfK. Participants read a short statement about a large corporation forming a management team for a new project and saw a photograph of the 6 managers. The racial composition of the management team was manipulated so there were 4 conditions: the Asian representation condition had 2 Asian-Americans and 4 White managers; the African-American representation condition had 2 African-American managers and 4 White managers; the Asian + African-American condition pictured 1 Asian American, 1 African-American and 4 White managers, and the final group was composed of a WhiteOnly condition that pictured 6 White team members. Participants were asked how diverse they thought the group pictured was.

Asian Americans thought the Asian representation group more diverse than the African-American representation group. African-American participants thought the African-American representation group was more diverse than the Asian representation group. This relationship was stronger for African-American participants than for Asian American participants.

Asian-Americans saw more diversity in the Asian + African-American representation than did African-American participants. The researchers say this means Asian-Americans and African-Americans responded differently to racial minority “out-group representation”.

Study 2 included 1,080 Americans recruited by Qualtrics of which 471 were Asian American and 574 were Black. The group was 57.8% female and ranged in age from 18 to 72 years with an average age of 34 years. 13% had graduate degrees, 32% had bachelor’s degrees, 39% had some college coursework completed and 15% had completed high school or earned a GED. Some participants in this study read that a research group found prejudice and discrimination against African-Americans had increased in recent years especially in terms of employment. Others read the same article but the words “Asian Americans” replaced “African Americans”. Then they looked at either the Asian representation, African-American representation, or Asian + African-American representation photos used in the first study and rated how diverse they thought the group pictured was.

Both Asian American and African-American participants saw the teams as more diverse when it included members of their racial in-group compared to when it included members of another racial minority group. (The effect was once again stronger for African-American participants.)

The need for in-group representation to see a group as diverse was stronger for Asian-Americans who read about higher levels of discrimination against their group in the workplace. For African-American participants, however, the level of in-group representation was equally important whether they had read about higher levels of discrimination against their group or not. The researchers thought this indicated discrimination was more chronically salient for African-American participants than for Asian American participants.

Study 3 included 380 upper-level undergraduate business majors (210 non-Hispanic White and 126 Asian American). Participants read that a large company had formed a new management team and saw headshots of eight people in business attire. Altogether, there were four racial compositions for the management team: Asian Majority (5 Asian and 3 White team members), African-American Majority (5 African-American and 3 White team members), Asian + African-American diversity condition (2 Asian, 3 African-American and 3 White team members), and White Only (8 White team members). Again they were asked to rate the diversity of the team and also asked to indicate how likely they thought the team was to be able to manage discrimination issues.

Asian American participants saw each team as differently diverse. They saw the Asian + African-American team as most diverse, then Asian Majority, then African-American Majority, and finally, White Only.

White participants saw the Asian + African-American condition as most diverse and the White Only condition as least diverse but thought the Asian Majority and African-American Majority conditions were the same in terms of diversity.

This research highlights the complexity of “diversity” and the importance of assessing perceptions of different racial groups when it comes to diversity. Overall, say the researchers, African-Americans are more chronically attuned to issues about race than are Asian-Americans. Therefore, how diverse a group is seen as being depends on how many African-Americans are represented.

There are many more details to be found in this complex and nuanced work. It’s also interesting to consider in light of the research on race and death penalty juries. Perhaps part of the reason African-Americans are so sensitive to whether a group will treat them fairly is because so often they are not treated fairly. We write a lot about bias. In this line of work, we see a lot of it. This particular research helps us understand some of the nuances more fully.

Bauman CW, Trawalter S, & Unzueta MM (2014). Diverse According to Whom? Racial Group Membership and Concerns about Discrimination Shape Diversity Judgments. Personality & Social Psychology Bulletin PMID: 25106545

Image

Share

RIP Demographics? Well, probably not…

Friday, August 22, 2014
posted by Douglas Keene

RIP demographicsWe’ve just published a new article in The Jury Expert that “should” signal the death of the simplistic use of demographics in voir dire and jury selection. Will it? Not likely. Partly this is the fault of courts that are becoming increasingly restrictive of time and the scope of questions posed to jurors. If litigants cannot ask substantive questions, they are left to rely on the broad impressions, which are often wrong and are generally based on stereotypes rather than knowledge of individual biases.

Be that as it may, we still think it’s important for all of us to know how changes in society as a whole will make a difference in how we need to think about voir dire. There are changes that have shifted the landscape of our communities and venires, and even our basic assumptions about there being a continuum from liberal to conservative with a moderate center. Some of these big changes have now been documented. You know that moderate center? Well, to the extent it is still there, it is vastly more complex, and defies labeling. You know how Democrats are more liberal and Republicans are more conservative? We can no longer make those blanket assumptions.

Americans are now more focused on specific issues. You will find, for example, a Democrat who leans left on many issues but is more conservative on issues involving faith and family. You will find, as another example, Republicans who lean right on many issues but support other issues that “Republicans just don’t support”. And in the center, you will find many people (indeed, the majority) who are not consistently liberal and not consistently conservative. On the other hand, they are also not consistently moderate. We’ve been watching this shift for almost a decade now with political affiliation simply no longer being an effective way of understanding individual mock jurors.

It really is about the issues. It’s something we have said for years– it isn’t demographics, it is the person and what matters in their life experience. Demographics (even tidy, long-standing descriptors like political affiliation and whether one is liberal or conservative) do not tell the story nearly as well as the individual’s values, attitudes, beliefs and experiences. But, don’t just take our word for it. How about considering the results of a 2014 survey of more than 10,000 Americans (randomly selected and nationally representative)? The results represent an eye-opener that allows us to compare American opinions and how they have shifted and turned upside down in the two decades since Newt Gingrich’s Republican Revolution of 1994.

Please visit our new articleDemographic Roulette: What Was Once a Bad Idea Has Gotten Worseover at The Jury Expert. We are pleased and flattered that Paul Begala (Democratic strategist, author and CNN Contributor) reviewed the issues and our article, and offered his take on the study.

Tell us what you think. We think it should be a game-changer.

Douglas L. Keene, & Rita R. Handrich (2014). Demographic Roulette: What Was Once a Bad Idea Has Gotten Worse. The Jury Expert, 26 (3.)

Image

Share

The American Bar Association is seeking nominations until August 8, 2014 [THAT's TODAY!] 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

angels_and_demonsThis isn’t a teaser for Dan Brown’s book. In fact, don’t get us started on that. Instead it’s a report on two newer (circa 2013) measures of more credible interest: the Belief in Pure Evil Scale and the Belief in Pure Good Scale. We know. You’ve been waiting forever to have good and evil more clearly quantified. But don’t be so quick to dismiss. If you work in the criminal courts, these could be very useful for you.

Before you pooh-pooh the idea as ridiculous, these concepts are “reliable, unitary and stable constructs” with eight “theoretically independent dimensions”. What that means is, there really is something tangible and concrete here to measure. And the reason it matters is that those who score higher on a belief in pure evil were more likely to support the “death penalty and preemptive military aggression” and less likely to support “criminal rehabilitation, proracial policies and beneficial social programs”. It doesn’t stop there. Those who score higher on a belief in pure good are more likely to oppose “proviolent foreign relations and torture) and to support “criminal rehabilitation and diplomacy”. In other words, say the researchers, these are concepts that relate to “aggressive and prosocial” orientations toward others.

The Huffington Post covered this work and had this to say about those who believe in pure evil:

Those who believe in ‘Pure Evil’ consider bad or criminal behavior is willful, conscious and driven primarily by the wish to inflict harm, merely often for pleasure. If you believe in ‘Pure Evil’, you also deem that evil-doers will implacably continue being dangerous. This necessarily follows if certain culprits are indeed the embodiment of undiluted viciousness. On both sides of conflict, if each sees the other side as ‘evil’, this inevitably results in reciprocal and escalating prejudice with violence. People scoring higher in ‘Belief in Pure Evil’ feel that pre-emptive violence and aggression are justified to root out evil-doers.”

And they had this to say about those who believe in pure good:

Believers in ‘Pure Good’ accept the existence of pure altruism, that some people, though rare, intentionally help others just for the sake of helping, with no personal benefit or hidden agenda. They also judge that even the most ghastly perpetrators – i.e., wayward criminals, can see “the error of their ways” and reform, i.e., they are not ‘Purely Evil’. Those who more strongly believed in ‘Pure Good’, supported criminal rehabilitation and opposed the death penalty. Those who score higher in ‘Belief in Pure Good’ are more likely to believe that doing good means not harming others (unless one’s country or allies are directly endangered).” 

That’s the good news. These concepts appear to have merit and to be distinct constructs. The other news is that these scales are way too long and the individual questions are much too controversial to be permitted in most courts or most cases. But the concepts are powerfully evocative and we thought it was worthwhile to let you know they were out there and give you a glimpse of the items measuring them. We’ve done this before with the GASP Scale, the Depravity Scale, the Islamophobia Scale, the CAST Scale and even the Spitefulness Scale. So why not the Belief in Pure Evil Scale and the Belief in Pure Good Scale?

Here are a few questions from the 22-item Belief in Pure Evil Scale:

Evil people hurt others because they enjoy inflicting pain and suffering.

Evil people have an evil essence, like a stain on their souls, which is almost impossible to get rid of.

If we catch an evildoer, we should just lock them up and ensure they never get out.

Evil people are so narcissistic and full of themselves.

Here are a few questions from the 28-item Belief in Pure Good Scale:

People have to believe in “pure good” to have a peaceful and orderly society.

Purely good people always try to avoid hurting others, even when it means helping those in need.

The forces of evil will fail when they try to corrupt pure-hearted people.

Pure-hearted people respect all life and therefore believe anyone is worthy of being helped and cared for.

From a litigation advocacy perspective, we look forward to these concepts being measured in language admissible in court (less creepy and much shorter). Until then, however, it is curious whether case narratives naturally evoke a variation on this theme.

Our mock jurors routinely talk about their task as being one of assessing which side is “most right” or what decision is “fair”.

Sometimes they talk about their disgust with a Defendant and, in those cases, their themes are not far from “pure evil”. We’ve also seen instances where mock jurors discuss a Plaintiff (or the spouse of a Plaintiff) in themes closely resembling “pure good”.

It’s an intriguing idea to consider. How can this narrative be framed in ways that elicit the sense of a conflict between good and evil, fair and unfair, right and wrong. Those themes often emerge in mock juror reactions to case narratives and that is the intent. The question this research raises though is just who will react in the opposite way than we expect? That is, who will choose evil over good, unfair over fair, and wrong over right? Based on the mock jurors we’ve seen, we can’t see that happening in a deliberation room and having any measurable impact on the majority of jurors. But it’s intriguing to consider.

Webster RJ, & Saucier DA (2013). Angels and demons are among us: Assessing individual differences in belief in pure evil and belief in pure good. Personality & Social Psychology Bulletin, 39 (11), 1455-70 PMID: 23885037

Image

 

Share