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!

Subscribe to The Jury Room via Email

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


Archive for the ‘Case Preparation’ Category

The Bias Blind Spot Scale 

Wednesday, July 1, 2015
posted by Douglas Keene

bias blind spot 2015We’ve written about the bias blind spot here before and now there is an actual scale to measure your specific bias blind spot (since, as it turns out, we all have one or more). You may wish to disagree with the statement that we all have a bias blind spot. That is precisely why it’s called our bias “blind spot”—we cannot see it. In fact, in the sample of 661 adults used to develop the Bias Blind Spot Scale, only 1 person reported being more biased than the average person. The rest of the group thought themselves less biased than others.

As one of the authors says: “People seem to have no idea how biased they are. Whether a good decision-maker or a bad one, everyone thinks that they are less biased than their peers. This susceptibility to the bias blind spot appears to be pervasive, and is unrelated to people’s intelligence, self-esteem, and actual ability to make unbiased judgments and decisions.”

The scale itself is somewhat unusual for social science research. Items are written in very academic prose and describe 14 different kinds of biases. Participants completing the scale are asked to assess the degree to which they themselves exhibit this bias in judgment and decision-making and (in comparison) the degree to which the average American exhibits this bias in judgment and decision-making.

Fourteen biases are assessed in the scale: action-inaction bias, bandwagon effect, confirmation bias, disconfirmation tendency, diffusion of responsibility, escalation of commitment, fundamental attribution error, halo effect, in-group favoritism, ostrich effect, projection bias, self-interest bias, self-serving bias, and stereotyping. And again, participants were asked to rate the extent to which they individually exhibited this bias and the extent to which the “average American” exhibited the bias.

Here are three examples of biases included in the scale so you can get a sense of the language of scale items:

Many psychological studies have shown that people react to counter evidence by actually strengthening their beliefs. For example, when exposed to negative evidence about their favorite political candidate, people tend to implicitly counter argue against that evidence, therefore strengthening their favorable feelings toward the candidate. (Confirmation bias)

Research has found that people will make irrational decisions to justify actions they have already taken. For example, when two people engage in a bidding war for an object, they can end up paying much more than the object is worth to justify the initial expenses associated with bidding. (Escalation of commitment)

Psychologists have identified a tendency called the “ostrich effect”, an aversion to learning about potential losses. For example, people may try to avoid bad news by ignoring it. The name comes from the common (but false) legend that ostriches bury their heads in the sand to avoid danger. (Ostrich effect)

According to the researchers, the more blind one is to the personal bias, the lower the quality of their decision-making since they listen less to the advice of others and are less likely to use de-biasing training to improve their decision-making. Obviously, these people are not going to be open to changing their minds based on expert testimony or the agreement of peers. We blogged about a bias blind spot juror (we called her Victoria) a couple of years back. We don’t think this bias blind spot scale is useful. In fact, it is so pedantic and laborious for people who are not well-educated, we feel that item comprehension is in question. The idea though, is quite interesting, and hopefully the researchers (or others in the area) will test a more ‘natural language’ version, and we can try it out in pretrial research to see if any biases are particularly relevant to our specific cases.

Overall though, the researchers say that “awareness of one’s vulnerability to bias” is an important factor in being able to benefit from training in de-biasing. We interpret this as (once again) the importance of helping jurors be fair by increasing their empathy for others and helping them see the client or party or witness as espousing the same values they themselves hold dear.

Scopelliti, I., Morewedge, C., McCormick, E., Min, H., Lebrecht, S., & Kassam, K. (2015). Bias Blind Spot: Structure, Measurement, and Consequences Management Science DOI: 10.1287/mnsc.2014.2096



Comments Off on The Bias Blind Spot Scale 

facebook creeperYou’ve likely run across the statistics on Facebook being the cause of many divorces or relationship failures as unhappy individuals reunite with past loves lost. There is also of course, often heartbreak as online loves turn out to be not quite who you thought. Now Facebook is also implicated in prolonging the unhappiness after a relationship breakup with 88% (!) of Facebook users “creeping” ex-partners. Imagine a darkened room, a pint of ice cream, a laptop with a high-speed connection, and you are never far away from seeing what your ex is up to now that you are no longer part of his or her everyday life.

Researchers in Canada asked 107 participants (ranging in age from 18 to 35 years with an average age of 23 years) who reported relationship breakups in the past 12 months to complete questionnaires and participate in a structured face-to-face interview on the relationship between Facebook ‘creeping’ and their ongoing distress following relationship breakup. On average, these participants reported their (now defunct) relationship had lasted 2.29 years (with about half having broken up in the past six months and the other half having broken up 7-12 months prior to the study).

In brief, here is what the researchers found:

The more “creeping” (also referred to as “internet electronic surveillance”) one does, the more emotional upset is reported related to the breakup.

The most commonly distressing factor was the ex-partner’s Facebook profile and 88% of the participants reported “creeping” their ex following a breakup. When the participant had remained Facebook friends with their ex, 100% monitored the behavior of the ex after the breakup.

“A breakup without Facebook, you can’t really see what your ex is doing, but with Facebook you just have to click and you know exactly what they’ve been up to. That’s a little frustrating.”

The second distressing factor was the Facebook “relationship status” feature. Changing the relationship status to “single” after “in a relationship” involved multiple questions from “friends” (for 62% of the participants) which raised distress level.

“In some weird way, it kind of feels like you’re breaking up all over again when the status comes down. It angered me at the time that something as trivial as a Facebook status could make me feel so shitty.”

The third distressing area was content posted on Facebook by the participant’s ex-partner which was then seen in the participant’s newsfeed. Participants seeing new content found themselves ruminating over happy memories and wondering why the relationship had ended. Unexpectedly, those who “unfriended” their ex on Facebook had more emotional distress than those who kept the ex as a Facebook friend. For some, like the participant quoted below, “unfriending” helped manage the emotional distress but that was untrue for the majority of participants.

“I would say pull off the Band-Aid as quickly as possible and block the person if you’re finding it as painful as I did to see their continuing existence in your sphere. You’ll immediately feel better, or at least I did.”

It’s an intriguing study that highlights the differences in breaking up in public as opposed to having a private (non-Facebook) breakup. While it is easier to keep up with family and friends on Facebook—it is also more painful post-breakup since your “relationship status” trumpets your pain to all your Facebook friends. The more “creeping” done, the more emotional distress experienced.

The authors also developed a new scale to measure Facebook distress related to creeping an ex after a breakup. The scale does not appear to be named yet but here are a few items from it:

I over-analyze old messages, wall posts or photographs of me and my ex together.

I can’t help feeling angry about content my ex posts on Facebook.

I feel paranoid that people posting on my ex’s wall are potential romantic interests.

Looking at my ex’s Facebook page is self-destructive.

From a litigation advocacy perspective, it seems important to recognize the power of a relationship breakup disclosed through social media, and the identification young people in particular could have with a party publicly shamed, belittled, discarded, or otherwise rejected. In this case, social media (i.e., Facebook involvement) makes the emotional pain last longer and be more intense and it is likely that shame feeds the flame of that sense of public rejection or perceived failure. Every time a Facebook post is re-mentioned (like, for months on end following a breakup when yet another person comments about it after not checking their timeline in a while) it can be traumatizing. If someone feels that they were wrongfully terminated (or are just embarrassed about it) and they get questions about the change in their LinkedIn status from “District Manager at Acme Industries” to something less clear, it can be very difficult for them to explain. That which was once self-promotion can quickly blow up. It’s a potentially powerful theme for case narrative. And it raises questions about how a company might want to guide the use employees make of social media when it involves references to employment status.

Lukacs, V., & Quan-Haase, A. (2015). Romantic breakups on Facebook: new scales for studying post-breakup behaviors, digital distress, and surveillance Information, Communication & Society, 18 (5), 492-508 DOI: 10.1080/1369118X.2015.1008540


Comments Off on First world relationship termination problems: Facebook  “creeping” your ex

caitlyn-jennerCaitlyn Jenner has been in the headlines pretty continuously since the publication of her Vanity Fair cover photo. And many of us have heard the voiceover quote from her about the number of years she has been in hiding, protecting secrets, and feeling imprisoned.

“Bruce always had to tell a lie. He was always living that lie. Every day he always had a secret, from morning till night. Caitlyn doesn’t have any secrets. As soon as the Vanity Fair cover comes out, I’m free.”

I thought of Caitlyn Jenner when I saw this new research from the Harvard Business School. This is a research team whose work we’ve written about before. Essentially, the authors say that hiding your true self can leave you feeling morally tainted. If these results are true, hiding transgender status would surely leave you feeling morally tainted. It’s as Shakespeare wrote so long ago, “This above all, to thine own self be true.” [Johns Hopkins has a webpage on transgender identity and the importance of being able to honestly show your true self.]

So today’s researchers conducted 5 separate experiments to assess the impact of behaving inauthentically by having participants recall times they’d acted authentically or inauthentically and how each type of behavior (authentic vs inauthentic) resulted in them feeling. Here are some of their findings:

When participants behaved inauthentically, they felt more impure and less moral than they did when behaving authentically. It did not matter if the inauthentic behavior involved only lying to themselves or lying to others as well. Inauthentic behavior left the participants feeling badly.

Participants who behaved inauthentically reported an increased desire to cleanse themselves. This is a common theme in the disgust research—if you want to wash yourself, then that disgusting thing you did probably left you feeling unclean.

Behaving inauthentically was rated more negatively by participants than was failing an exam. The negative feelings elicited by acting inauthentically resulted in more participants attempting to “cleanse themselves” through what the researchers called “moral compensation” (offering to help the experimenter by completing an unrelated 15 minute survey).

Even when participants chose to write about being inauthentic versus being authentic, their desire for cleanliness following inauthentic behavior remained the same. In other words, even if you consciously choose to be inauthentic, it still leaves you feeling dirty.

Participants only chose “moral compensation” when they did not “cleanse themselves” during the experiment. (In this final experiment, half the participants were asked to clean their hands thoroughly and then rate the cleanser while the other half [the control group] were asked to hold a pen in their hands and examine it carefully and then rate the pen. The pen-holders were more likely to participate in the cleansing moral compensation task than the hand washers [who presumably had already been cleansed]).

The researchers conclude that behaving inauthentically leads to a sense of moral tainting or impurity and that this research is the first to tie together the experience of being inauthentic and wishing for cleanliness.

From a litigation advocacy perspective, this is a powerful example. We have all had experiences of being untrue to ourselves (or inauthentic) and we know how bad that can feel. Using that emotional identification with inauthenticity as part of your case narrative can help jurors empathize with your client’s dilemma. And, circling back to Caitlyn Jenner—in her last interview as Bruce, she commented to Diane Sawyer that part of her reason for publicly sharing her decision was to make a difference.

“What I’m doing is going to do some good,” Jenner said of the very public interview. “And we’re going to change the world.”

At another point in the interview, Jenner made a statement that affirms Shakespeare’s insight so long ago and the conclusions the researchers made in this research:

“I want to do the right thing and be true to myself.”

Obviously, we cannot know from these statements if Caitlyn felt “morally tainted” when she lived as Bruce. What it sounds like though, is that Caitlyn plans to live the rest of her life in a way that allows her to match her insides and her outsides and in so doing, to “change the world”. A noble goal to be sure.

Gino F, Kouchaki M, & Galinsky AD (2015). The Moral Virtue of Authenticity: How Inauthenticity Produces Feelings of Immorality and Impurity. Psychological Science PMID: 25963614


Comments Off on Did Caitlyn Jenner feel “morally tainted”? 

morals value shiftAccording to a recent Gallup survey report, Americans continue to shift to the left in terms of “key moral issues”. For some, this is a cause for celebration and for others, it may lead to a question of “what has happened to our country?”.

But that’s not all! The same poll trumpets that the majority of those in the US say that moral values are getting worse (not better). Further, most Americans apparently believe the death penalty is “morally okay”. Other behaviors that Gallup says were “once taboo” (i.e., suicide, polygamy, cloning) are now acceptable to some Americans. As many of the Gallup polls point out, Americans are divided on whether moral shifts toward the liberal end of the continuum are a good thing or a bad thing for our society.

We read these polls a lot (perhaps too much) and are used to the somewhat contradictory responses to varying but related questions. But it’s reminiscent of what jurors go through with dueling expert witnesses. We’ve posted a number of times about what our mock jurors have to say about dueling experts. They don’t like them. They prefer what they see as “case-neutral” experts who have no stake in the case outcome.

Recently we had an expert who was called in by the Defendant (to determine environmental impact and direct remediation efforts) after a potentially toxic chemical spill. The expert had impressive academic professionals, had exhaustively evaluated the site, tested the air to ensure citizen safety, and then testified in a straight-forward and objective manner. But he was still paid by the Defense, which raised questions about how he would be seen. Our mock jurors (and ultimately the trial jurors) reacted to him as though he were a treating expert rather than a testifying expert— they imbued him with credibility, objectivity, and a neutral perspective. He was not a “witness for hire” in their eyes. He was an observing expert who made the spill site safe again. Jurors believed and trusted him. They were willing to trust him because he never appeared to be an advocate for the Defendant— he reported his findings in a straightforward manner without any hint of advocacy.

We’ve written a lot about how to apply the research to discredit the opposing expert witness. We’d encourage you to read a number of those posts on dueling experts.


Comments Off on So is the US values shift to the left on moral issues a good thing or a  bad thing?

secondary psychopathyMost of us find the behavior of the true psychopath frightening enough that we have few issues with locking them up and throwing away the key. They seem so very different from us and hearing the facts of their behavior is frightening and leaves us feeling unsafe. If you are not afraid of the psychopath, read a few of our posts on psychopathy and watch your mind change.

Now that you have accepted the reality that all psychopaths are cold, callous and untreatable, here’s something to ponder. A new study tells us that contrary to popular belief, there are some psychopaths who have feelings and might be amenable to treatment—especially if they have intervention while they are young [and that by itself might challenge their being categorized as a psychopath].

Researchers examined 150 male and female juveniles ages 11 to 17 (60% male; 85% White, 5% Hispanic, 3% African-American, and 6% multiracial or other; average age of 15.2 years) who had been classified as “callous and unemotional” and had severe anti-social behaviors that put them at risk of developing psychopathic traits as adults. What they found was that many of these juveniles did fit the classic definition of psychopathy—but others did not. Instead, say the researchers, some of the budding psychopaths had feelings. They call this group with higher internal emotionality “secondary psychopaths”.

“They appear callous and unemotional to others but are actually very distressed, have high levels of anxiety, higher levels of depression, higher levels of emotion.”

Rather than callous and unemotional, the researchers say these secondary psychopaths are actually callous and emotional. That is, the secondary psychopaths do have high psychopathic traits, but they also have higher anxiety and depression. The researchers believe that those who can be identified as secondary psychopaths experience higher levels of negative emotion, more intense negative emotion, and more intense positive emotion than those in the primary (stereotypical) group of psychopaths. In short, they believe the high psychopathy scores of the callous and emotional secondary psychopaths makes them appear unfeeling to the observer, but internally they are in turmoil.

To identify the subgroup of youths with higher levels of internal emotionality, the researchers used comprehensive diagnostic tests (the Inventory of Callous-Unemotional Traits, Impulsivity Conduct Problems and trait Narcissism subscales from the Antisocial Process Screening device, teacher report scores on screening measures, Behavioral Inhibition Scale, Behavioral Activation Scale, Sensation Seeking Scale, Interpersonal Reactivity Index, Revised Child Anxiety and Depression Scale, Positive and Negative Affect Schedule) and sophisticated statistical analysis to differentiate between those with classic psychopathic traits (i.e., low empathy and insensitivity to the pain of others) and those with a “surplus of unregulated emotion”.

This is the first study to identify girls as especially likely to fall within the high internal emotionality group. In fact, there were more females in the secondary psychopathy group than in the primary psychopathy group. The researchers believe that if we offer treatments such as cognitive behavioral therapy and dialectical behavior therapy that offer strategies for managing emotions—we can actually change the incidence of unwanted behaviors. This would save, according to the authors, as much as $3M across the lifetime of a single young adult.

This is an important first effort and we hope to see more intensive work along these lines. What the article says is not to make assumptions and we would agree. Do not make assumptions that all psychopaths have no internal emotionality. On the other hand, do not make assumptions that all psychopaths have (deep down inside) internal emotionality that makes them amenable to treatment.

Remain curious. And remain wary.

Gill AD, & Stickle TR (2015). Affective Differences Between Psychopathy Variants and Genders in Adjudicated Youth. Journal of Abnormal Child Psychology PMID: 25727716


Comments Off on I want to believe some psychopaths have feelings