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conspiracy theoriesIt is no secret that we are intrigued by conspiracy theorists here at The Jury Room. Not only are they good for entertainment value during pretrial research, they are also very useful to help us plug holes in case narrative that could derail deliberations. When it comes to the actual trial though, conspiracy enthusiasts are usually seen as too risky for either side, and their presence often results in agreed strikes.

Here’s an interesting piece of research that doesn’t really help us to identify the individual conspiracy buff, but, does tell us the sort of environment in which the conspiracy theorist thrives.

These researchers believe that emotional uncertainty creates a desire (even a need) to compensate. We try to achieve a sense of certainty and, despite how odd it may sound, there is comfort in the conspiracy theory (since it can provide an explanation for why things are the way they are). Whether it is a reasonable or logical explanation is not what is important. And it isn’t just conspiracy theories that give us comfort in times of uncertainty. Horoscopes, seeing real or even illusory patterns, belief in a strong government or a “controlling and interventionist god”– all these things give a sense of stability and order in the world. Or as the authors put it,

“Whether one finds comfort in a strong government, astrological predictions, or vast conspiracies mapping out our fates, all are responses potentially driven by the uncertain seeking predictable structure in our capricious world.”

So, the researchers wanted to see if emotional uncertainty could affect conspiracy beliefs, beliefs in the paranormal, or the tendency to defend government actions. They used emotions that resulted in both certainty and uncertainty, as well as positive and negative emotions. Specifically, they examined happiness and contentment (certain and positive emotions); anger and disgust (certain and negative emotions); surprise and hope (uncertain and positive emotions); and worry and fear (uncertain and negative emotions). Once they identified these emotions, they asked 251 participants (112 male, average age 32.5 years) recruited from an online survey program to:

“Please recall a particular incident in which you were very [emotion]. What made you feel [emotion]? Recall this situation as vividly as you can. Please describe this situation in which you were [emotion] — what happened, how you felt, etc.”

By asking for this description of the situation, the researchers are “priming” the research subjects to re-experience the emotions. In this pretest, they found that when they asked participants to respond to this stimulus, participants felt the emotion described and their experiences were indeed experienced as either certain or uncertain (as the researchers had intended). The researchers then moved on to three separate experiments.

In the first experiment, the researchers examined the support of governmental defense and had 98 participants complete the same emotional recall task. They found that those in uncertain emotional conditions scored higher on (that is, they felt more strongly positive about government defense.

When they were uncertain, they wanted stronger governmental defense.

On the second experiment, the researchers looked at conspiracies and the paranormal. The 97 participants completed the same emotional recall task as before and were then asked to read scenarios that were purposely ambiguous “as to whether several individuals were coordinating their efforts to obtain an outcome”. Then they answered items from two scales measuring their belief in the paranormal. Again, those in uncertain emotional conditions showed greater endorsement of conspiracy beliefs and greater endorsement of belief in the paranormal.

When they were uncertain, there was higher belief in both conspiracy and the paranormal.

Finally, in the third experiment, the researchers looked at whether they could intervene in a way that would negate the power of the uncertain emotions. They cite prior research saying “having individuals contemplate and affirm important values they hold increases many positive states, including perceptions of personal control”. This time the researchers asked 161 participants (161 male, average age 29.8 years) to identify which of six values taken from  the Allport-Vernon-Lindzey Values scale were most important to them. In the affirmation condition, the participants were asked to complete a subscale on the same value they had ranked most important. This, said the researchers, gave the participants the opportunity to self-affirm (that is, focus on things of greatest importance to themselves, giving them a greater sense of self-assurance). Those in the no-affirmation condition completed a subscale on the value they ranked as least important to them (and thus had no affirmation).

This time, those who had uncertain emotions but were given a chance to self-affirm, had no desire for increased government defense. In other words, self-affirmation worked to help participants feel they had control and structure and thus they did not look to external aids (like increased government defense) to help them feel safer.

Overall, say the researchers, uncertainty in emotional state–regardless of whether it is positive or negative– leads to a desire for structure and a sense of control. Thus, uncertain people are prone to accept conspiracy theories, belief in the paranormal, and to endorse agreement with higher levels of governmental defense. Those tendencies can be curbed, however, by offering the uncertain individual self-affirmation. Self-affirmation stabilizes the uncertainty and allows the individual to respond in a measured way not driven by the uncertainty.

This raises interesting questions about case presentation at trial. There is a tendency to want to satisfy jurors’ interest in “knowing” all of the facts. But this research says that in some cases, leaving jurors with a sense of uncertainty or foreboding might actually bring them to a state of mind more useful to your case.

Do you want to focus their attention on a particular alleged wrong-doer (typically a Plaintiff or Prosecution goal), or do you want to create a diffusion of responsibility, where it is borne by a number of parties, perhaps some not named in the dispute (more likely a Defense goal)?

So part of the task for the psychologically savvy trial lawyer is to give thought to what kind of emotional tone is best for jurors to carry into deliberations.

Do jurors tend to favor your position when they feel centered, focused on their values and priorities, and confident?

Do they think your way when they are worried or anxious, uncertain about life, and powerless?

This knowledge won’t change the facts, and the impact of this research is nuanced. But when you are seeking out every advantage you can identify, this is one that shouldn’t be overlooked.

Whitson, J., Galinsky, A., & Kay, A. (2015). The emotional roots of conspiratorial perceptions, system justification, and belief in the paranormal Journal of Experimental Social Psychology, 56, 89-95 DOI: 10.1016/j.jesp.2014.09.002

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brain scienceIf you think neurolaw and neuroscience are everywhere–and don’t find it particularly challenging to talk about brain science, apparently you are living in a very rarified environment. It’s hard to believe but evidently, most people do not think the exploding field of brain science is fascinating! Instead, when they think of brain science they think of things that are far removed from their daily lives and things that make them anxious. [Or bore them to tears.] For litigators this has crucial ramifications, since any body of technical information that is worth presenting to a jury requires understanding if it is to be useful.

UK scientists interviewed 48 London residents about “brain science”. They found that most of the interviewees believed that they would only find themselves interested in learning more about brain science if they developed a neurological illness. Maybe… too little too late?

The researchers identified four themes in the participant’s interviews: the brain is something in the science domain; there was significant angst that something could go wrong with the brain; there was a belief that we are all in control of our brains to some extent, and that our brains are what makes us all different and unique. The individual quotes the researchers included however, highlight the lack of awareness of brain science or research:

“Brain research I understand, an image of, I don’t know, a monkey or a dog with like the top of their head off and electrodes and stuff on their brain.” [Male participant]

“It does conjure up images of, you know, strange men in white coats.” [Female participant]

“You just, like I say, blind people with science, don’t you. And then it becomes a subject that you just don’t understand. With me, I just switch off. I’m not understanding what you’re talking about here, so I just switch off.” [Male participant]

“Where do these people come from, that actually understand these things?” [Female participant]

The researchers highlight the reality that most people do not see “brain science” as something relevant or a part of their lives. However, if an individual developed a mental illness or a neurological condition–they believe they would have more interest in learning. Without those catalysts, however, they have little interest in pushing themselves to understand more. The researchers report the concept of “brain science” seemed foreign or “baffling” to most of those interviewed.

From a litigation advocacy perspective, this study highlights the importance of teaching the science. Whether “the science” of a specific case is patent law, high-tech and abstract concepts, or actual “brain science”–jurors need to hear it and have a sense that they understand it enough to actually make judgments on the case. Keep in mind that they are going to judge it whether it is understood or not. The question is simply whether the judgment is going to be informed by bias, by knowledge, or by a coin flip and a longing to be done with jury duty. We know from 20 years of interviewing jurors that they strongly prefer having clear understanding. And that, dear litigator, is up to you.

We have worked on cases in which animation helped jurors make sense of complex computer programming and on others where the analogy of ordering a pizza with different toppings or a hamburger with or without special sauce were used to help jurors understand different technology applications in an especially complex patent infringement case. We’ve also worked on cases where there were allegations of neurological injuries but a very normal looking Plaintiff and jurors had to “see” the injuries somehow to help them understand what had been lost.

Never lose sight of how foreign the concepts truly are, and help jurors understand so they do not have to “shut off” as one of the interviewees in this study confessed to doing. Often, our mock jurors help to make the abstract and complex both concrete and simple, or at least familiar. Just because you have been buried in a case for years and live, eat and breathe the science, doesn’t mean jurors will have a clue about what you are presenting to them. Teach them in a way that helps them relate the abstract and esoteric to their everyday lives. It empowers them to make the right call. If you don’t know how to explain it to ‘real people’, gather a group of mock jurors and ask them what makes sense, where they get lost, and what analogies are most useful to them. If you invite them to the conversation in the right way, they’ll tell you.

O’Connor, C., & Joffe, H. (2014). Social Representations of Brain Research: Exploring Public (Dis)engagement With Contemporary Neuroscience Science Communication, 36 (5), 617-645 DOI: 10.1177/1075547014549481

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Same sex marriage is okay but please, no PDA!

Wednesday, December 17, 2014
posted by Douglas Keene

We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

same sex pdaWe’ve blogged a number of times about changing attitudes toward same sex marriage.  The majority of Americans now support same sex couples being allowed to marry but that doesn’t mean we want to watch “them” be publicly affectionate.

And “we” are not alone. Even gays and lesbians express some discomfort with public displays of affection (PDA) for same-sex couples. The authors see this as “entrenched prejudice” on the part of heterosexuals and perhaps, as an “internalized stigma” for gays and lesbians responding to the survey.

The researchers surveyed 1,073 Americans (258 lesbians, 310 gay men, 240 straight women and 265 straight men). They were randomly assigned to read vignettes about a couple who met, fell in love and had been living together for the past 2 years. One-third read about “Brian and Jennifer”. Another third read about “Heather and Jennifer” and the final group read about “Brian and Matt”.

After they read the vignettes describing either a heterosexual couple, a lesbian couple or a gay couple, they were asked to respond to a series of queries about this specific couple’s rights. Some of the questions were of a more formal legal nature (like about inheritance or hospital visitation rights) while others were more informal such as their right to tell others they were a couple, hold hands or kiss in public settings. For each question, participants responded on a 4-point Likert scale ranging from strongly agree to strongly disagree.

On formal (legal) rights, there were no differences for heterosexual males approval for the same rights for heterosexual, gay or lesbian couples. Heterosexual women were more approving of insurance benefits for the lesbian couple than the heterosexual couple. Gay and lesbian participants were more approving of all the formal rights for gay and lesbian couples than for heterosexual couples (which makes sense, since they are seeing these couples as “in group” members).

When it comes to informal rights, the picture grows murkier.

Heterosexual males were less approving of informal privileges [defined here as holding hands in public or kissing] for both the gay and lesbian couples than for the heterosexual couple–and they were significantly less approving of the gay couple than the lesbian couple.

Heterosexual females also approved more of the heterosexual couple’s informal privileges than either the gay or lesbian couples–but they did not approve of the lesbian couple over the gay couple.

Lesbian and gay participants were sometimes more willing to grant informal privileges to the heterosexual couple over their own in-group couple. Lesbians and gays were both less approving of their own in-group couple holding hands in public compared to the heterosexual couple. Lesbians thought it was okay to kiss on the cheek or French kiss for both lesbian couples and heterosexual couples, but gays were significantly less approving of the gay couple kissing on the cheek or French kissing than they were for the heterosexual couple.

The authors say that the bias against these informal rights may reflect attitudes that are changing more slowly than our attitudes toward legal rights. They also highlight the reality that the gay couple are penalized more than the lesbian couple and more work should explore this issue.

From a litigation advocacy perspective, this is useful information. When we think about our changing jurors and their changing attitudes toward same-sex marriage, this survey warns us to make no assumptions on what behaviors are seen as “acceptable” in public. Homophobic responses and disapproval can arise anywhere–much like bias that arises covertly around issues of race and citizenship. Being aware of how bias against sexual orientation continues can aid you in party and witness preparation for in court appearance, behavior and testimony.

Doan, L., Loehr, A., & Miller, L. (2014). Formal Rights and Informal Privileges for Same-Sex Couples: Evidence from a National Survey Experiment American Sociological Review, 79 (6), 1172-1195 DOI: 10.1177/0003122414555886

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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

TJE_logoA new issue of The Jury Expert has been published, and as usual, it’s one worth reading. As Editor since May, 2008–I get to see the articles as they come in and am always surprised at (and appreciative of) the creative and stimulating content we receive. The Jury Expert, like this blog, is all about litigation advocacy and understanding how new research can help inform your strategies in the courtroom. Here’s what you can see in the lineup for the November 2014 issue.

Does Video Image Size Affect Jurors’ Decisions? A Look at How Image Size Interacts with Evidence Strength, Defendant Emotion and the Defendant/Victim Relationship

Wendy Heath and Bruce Grannemann ponder how video image size in the courtroom is related to juror decision-making about your case. They discuss how image size interacts with image strength, defendant emotions, and the defendant/victim relationship. Trial consultants Jason Barnes and Brian Patterson team up for one response to this article and Ian McWilliams pens another. This is a terrific article to help you reconsider the role of image size in that upcoming trial.

Moral Outrage Drives Biases Against Gay and Lesbian Individuals in Legal Judgments

Sarah Malik and Jessica Salerno have some original research on bias against gays in the courtroom. This is simple and powerful research that illustrates just how moral outrage drives our judgments against LGBT individuals (especially when they are juveniles). Stan Brodsky and Christopher Coffey team up for one response and Alexis Forbes pens a second. While these findings make intuitive sense, they may also highlight something you’ve not previously considered.

Anti-war Protestors and Civil Disobedience: A Tale of Two Juries

Lynne Williams is a trial consultant who lives in the cold and snowy state of Maine. She is also skilled in picking juries for political trials and a gifted writer as she describes the important differences between picking juries for civil disobedience cases and antiwar protestor cases. This article not only explains what Ms. Williams does, but why and how she does what she does. It’s like lifting up the top of her head and peering inside her brain.

A Qualitative Examination of Self-Care in Lawyers

Mary Wood, Jacklyn Nagle and Pamela Bucy Pierson bring us this qualitative examination of self-care in lawyers. They talk about workplace stress and depression and substance abuse. Been there? Are there? Some kinds of self-care may work better than others but–what’s important is that you actually do some self-care! Andy Sheldon and Alison Bennett share their reactions to this article.

Favorite Thing: Plain Text

Why, you may wonder, would Plain Text EVER be a Favorite Thing. Because it is fabulous. Or, perhaps because, “Plain text is the cockroach of file types: it will outlive us all.”

The Selective Allure of Neuroscience and Its Implications for The Courtroom

Adam Shniderman knows neuroscience evidence can be incredibly alluring. This new study shows us that unfortunately (or perhaps fortunately) it is not universally alluring. Here’s a shocker: the impact of the neuroscience evidence is related to the individual listener’s prior attitudes, values and beliefs about the topic. Robert Galatzer-Levy and Ekaterina Pivovarova respond with their thoughts on the issues raised.

Book Review: Law and Neuroscience

Law and Neuroscience by Owen Jones, Jeffrey Schall, and Francis Shen has just published and is as long as any Harry Potter tale at more than 800 pages. Rita Handrich takes a look at this new textbook and reference manual which covers more than you ever knew existed on the wide-ranging field of neurolaw (which is a whole lot more than the “my brain made me do it” defense).

Promoting Communications between Social Scientists and Lawyers

Roy Bullis is back to talk to us about the wide language gulf between attorneys and their social science expert witnesses. Just because you are talking, doesn’t mean you are actually communicating. How do you talk so your expert knows what you mean?

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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

quackery

We just wrote about popular blogs picking up old survey data and discussing it as though it were new and relevant. Now, Pacific Standard magazine has published a rehashing of the content of a book published in 2002 as though it was fresh and new. Our friend and colleague, Ken Broda-Bahm over at Persuasive Litigator has done a blog post that looks carefully and critically at the claims made and we encourage you to read his post as a counterpoint to the Pacific Standard article by Jane C. Hu. Ken closes his post where we wish to begin ours:

“And in the meantime, those who have questions about the foundation for trial consulting and jury selection assistance should ask an experienced practitioner, and should focus on the actual practices and not on the myths.”

If it wasn’t so annoying in its gross distortions about the practice of litigation consulting, the dated Kressel and Kressel book, Stack and Sway, would be amusing. If trial consultants actually had the power to “stack and sway” juries, we would be very, very wealthy and there would be a lot more of us than there truly are in the country today. And the system would be irreparably harmed. We are not experts in verdict slight-of-hand. We are students of–and aspiring experts in–identifying and uncovering bias. We research and seek to understand what life experiences and values bear upon the decisions juries reach, in an effort to keep those preconceptions from influencing verdicts against our clients. Yes, we would like to see our knowledge assist our clients. But the purpose of “scientific jury selection” is not to “win” but to swear in a jury that will actually listen to the presentation of evidence and make decisions based on what they hear, rather than deciding based on their pre-existing biases and predilections.

Instead of stacking and swaying, we would describe what we do as applied social science. We read voraciously in the social science research literature and apply what we find there, when relevant to our work. Rather than, as Hu suggests, “incentivizing the use of lazy stereotypes”, we work to identify stereotypes and then to excise them from voir dire, jury selection, and case presentation. As Broda-Bahm notes, a skilled and veteran trial consultant has actual knowledge about many (but not all) of the characteristics that identify biased jurors. With no knowledge or insight, all that is left is the “lazy stereotypes”. Hu poses the accusation against trial consultants, and then goes on to note the obvious contradiction–information reduces stereotyping in every area of life, including jury behavior and jury selection.

If you read this blog routinely, you know we focus intently on bias in many shapes and forms. What we know, as many of you also know, is that bias is powerful, pervasive, and persistent. We want to know where bias lurks and how it may twist and turn depending on case facts. It can take a lot of work to identify biases affecting decisions in a given case and it certainly is not a process we would describe as “lazy”.

Ironically, Hu’s example of how trial consultants use lazy stereotypes cites a case wherein a prosecuting attorney used a stereotype to strike a juror. Note to Hu: prosecuting attorneys are not typically trial consultants (nor do they typically use trial consultants).

Recently, I joined the trial team for a three-week intellectual property trial following the completion of a mock trial where we had measured the attitudes, values and beliefs of our mock jurors and looked closely at how those pre-existing characteristics were related, if at all, to eventual verdict in our mock trial. As every trial lawyer and litigant would wish, we tried to figure out as much as possible about who was in the jury box. Hu, in her recent Pacific Standard article, characterizes this as “creepy”. It really is more sensible than “creepy”. I would be intrigued to hear Ms. Hu list the information that, were she a party to a lawsuit or facing criminal prosecution, she would like to keep away from her trial counsel due to excessive creepiness.

When you work on litigation where there is a lot of money on the line, it is very likely that both sides have done pretrial research. The playing field is typically fairly balanced. Just as the trial team is looking into every legal theory that might aid in their client representation, litigation consultants are engaged to help strategize how to overcome bias in juror decision-making.

It is very likely that both sides are doing internet research to identify values, attitudes and beliefs that inform individual decision-making processes of potential jurors.

If there is no time for research on individual jurors prior to voir dire, it is likely that both sides are doing that research once a jury is seated in order to inform tweaks to case narrative.

If no jury research is done, voir dire is rushed or not permitted, and nothing else is known about the venire members–decisions will be made based on stereotypes.  And sadly, the attorneys who are making those calls will do it knowing that it is a lousy way to make strike decisions. Using demographic stereotypes (age, education, socio-economic status, race, employment, marital status, parental status, etc.) is a very crude tool, far too much like doing surgery with a very dull blade.

If you choose not to conduct pretrial research and eventual juror research in cases with budgets that can justify it, you are either naïve, over-confident, unaware, or perhaps you are just a dinosaur. Back in 2002, when Kressel and Kressel wrote their book, internet research was unable to find much. In 2014, the age of social media and online documentation of life, there is much to learn and there are ethical ways to guide that exploratory internet research.

We feel very comfortable with our work and with our attorney-clients. We are fortunate to have clients who are committed to advocacy and fairness. We are not, as Hu suggests, ethically challenged. We are not creepy. We do not stalk potential jurors and we do not attempt to friend them on Facebook. We look at what people put out there in public for all the world to see online. We are informed, educated, principled professionals who work hard to identify bias and level the playing field. Sometimes we win. Sometimes we lose. But we always try our best to identify where a person is at risk of losing track of the evidence and revert back to their historical biases and stereotypes.

We encourage you to read Ms. Hu’s article, keeping in mind what Ken Broda-Bahm has written and what we have shared here. Ultimately, what Ms. Hu writes of is not jury consulting, it is instead, someone’s confused fantasy about what our goals are, what our methods are, and what guides our practices. Our readership is smart and discerning. You’ll figure it out. And eventually, Ms. Hu might, too.

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