RSS Feed
- Simple Jury Persuasion: The ‘attitude alignment’ effect & persuasion
- Confused about brain scans? Welcome to the club!
- Voir Dire Tips you wouldn’t likely figure out on your own
- Is anatomy destiny? One more time on ‘ugly criminals’
- Eww! That is just disgusting! (but…very interesting)
- If only you weren’t so greedy…
- Is it wrong to want an 8-foot chicken?
- May it please the Court
- Mad enough to kill? It’s better if you’re a woman
- I read the entire newspaper every day
Archive for the ‘Case Preparation’ Category
Voir Dire Tips you wouldn’t likely figure out on your own
We’re always on the lookout for research findings that can give us an edge when it comes to jury selection. These sorts of findings are often counter-intuitive and not the sort of thing you would figure out on your own. As a public service (and because it’s sort of fun) we present the latest of our research scavenging.
Juror empathy: There are times when you want jurors who are high in empathy. Say, for example, you have a plaintiff horribly injured or a defendant who will suffer irrevocable harm if a verdict is awarded for the plaintiff. Rather than inquiring specifically about empathy—just listen. People who talk in a more melodic (or “sing-song”) voice or cadence are higher in empathy. Sometimes you want them. Sometimes you don’t. Proceed accordingly.
Juror bias against Arabs: This is a tricky one. If your client is Arabic or Muslim, you have an uphill battle. No surprise there. A recent article in the APA Monitor finds that there seems to be a tendency for religious bias to be involved in trials involving Arab defendants but there is little to no controlled research to examine anti-Muslim biases. What we would say here is this: be very careful. Talk to jurors about implicit bias and how associations made by opposing counsel with terrorist acts can bias them against your client without their conscious awareness. Talk to them about how to minimize this bias within themselves.
There is more we’ve seen lately. This is a sampling to get you started thinking about the novel applications of research findings you see reported in the mass media on a daily basis. What does it potentially mean for voir dire?
Is anatomy destiny? One more time on ‘ugly criminals’
We wrote about this back in May but another publication has picked up the Ugly Criminals paper. This paper asks if appearance (attractive or ugly) results in being either law-abiding or not. Or is it more related to being seen by others as guilty or not. Reading the Ugly Criminals paper, it becomes quite clear that there are some disturbing ways that attractiveness is related to both criminal history and incarceration.
The Fortean Times article questions if anthropometrics is about to make a comeback. (Anthropometrics was originally the practice of measuring criminal’s faces to identify criminal facial traits for profiling.) The authors in the Fortean Times piece suggest that perhaps we should make efforts to understand rather than condemn the unattractive. They also admit they think this is unlikely. Commenters on the Fortean Times website mock the idea that the ugly are criminals. This makes it all the more disturbing that somehow, the unattractive are over-represented in our prisons since juries (made up of individual citizens) often have a hand in sending them there.
So how far has the ‘brain craze’ spread? Pretty far, it would seem. We can (sometimes, at least) understand the application to the law. But how about to career counseling? Neurocritic blog writes about the Johnson O’Connor Research Foundation (JOCRF). As Neurocritic writes:
“The Johnson O’Connor Research Foundation is a nonprofit scientific research and educational organization with two primary commitments: to study human abilities and to provide people with a knowledge of their aptitudes that will help them in making decisions about school and work. Since 1922, hundreds of thousands of people have used our aptitude testing service to learn more about themselves and to derive more satisfaction from their lives.”
And then goes on to describe an ongoing research project the Foundation is involved in looking at aptitudes and brain areas. Forty participants in the Foundation’s aptitude testing program were also given MRI’s and the volume of gray and white matter in various brain areas was measured. Ultimately, the authors concluded the sample size gave results that were simply too small to interpret meaningfully.
But that isn’t how the media saw it! Neurocritic goes on to point out that multiple websites picked up this project and presented it in such bold terms as “Brain Scans Could Guide Career Choices“. It didn’t matter what the JOCRF researchers actually said. The information was sensationalized. (And in truth, Neurocritic blog didn’t make it horribly clear that the sensationalizing was done outside the control of the Johnson O’Connor personnel.)
It’s part of what happens when research is done that hits on a hot topic in the world. Right now, anything about the brain and using the brain to predict our criminality; our career choices; our facial features; and more—is hot. And it obviously is interpreted in ways that sell papers or result in website URL clicks. Our longing for a rational basis for what we want to believe is pretty powerful.
The stronger our longing to find meaning in the data, the more easily we are misled. When I was in graduate school there was a geeky joke about people so determined to validate their hypothesis that they “drew the curve and then plotted the data”. In a world dominated by unsubstantiated reports of sensational rumor selling as science, you can’t be too cautious. Find out what was really said. In the courtroom, when you show jurors what was really said and how it got distorted and confused—they are often able to dismiss all the hyperbole based on an incorrect interpretation of the facts. If you want to debunk an appealing theory, you might want to discuss with your witness other examples of how headlines distort facts, and provide anecdotes to the jurors. But to tell that sort of clarifying story, you have to go beyond the sensational headline of ‘ugly criminals’ or ‘career counseling by brain scan’ and allow for what may simply be a false validation of what we would love to see proved.
Is it wrong to want an 8-foot chicken?
Since some of you cynics imagine this to be a trick question, you’re thinking it probably depends on the definition of ‘want’. For more than 5 years, I have wanted, ruminated about, and considered how I could fit this chicken into my life. Would the neighbors complain about it peering over their fence? Would my HOA have a fit? Would it make me smile every time I saw it?
The chicken lives in Brenham, Texas along Highway 290 between the Dairy Queen and Michael’s Taxidermy. Every time I drive to Houston, I pass the chicken (yes, I know it’s really a rooster, but in my mind, it’s a chicken). I always think “I want that chicken” but I never stop. This week I stopped. And the chicken is not for sale until the price of metal in Mexico stabilizes. I want the chicken even more now that I know I can’t have it. They offered a 4-foot chicken and even a 2-foot chicken for a whole lot less than the 8-foot chicken will cost. But it wouldn’t be the same. Sometimes, only the real 8-foot chicken will do.
It’s beyond reason—my chicken fixation. Like the way sometimes attorneys choose to take on cases that really are not good ones. I remember a case we did a focus group on a number of years ago—a motorcyclist not wearing a helmet and ending up with a horrible head injury. His spouse said “he was responsible—he wore a helmet every time, except this time”. The mock jurors thought he knew better and this is what happens. I wonder what made the attorney choose that case?
Or the case of the high school teenager (a very good girl) who met a boy (who was actually a young man pretending to be a high school senior) on a social networking site and secretly met him (knowing her mother would not approve) and she was raped. Her mom thought the social networking site was responsible. Jurors thought the girl had made a bad choice and painful as it was, this was a natural consequence. What we predicted, and what the focus group told us, was that the jurors were distressed by the failure of parental supervision. That one was easier to see in terms of attorney investment: a horrible outcome and fears about how social networking sites were playgrounds for predators. But jurors saw it differently.
We’ve seen the newer research on how bad many lawyers are at predicting case outcomes and therefore, on choosing cases. But why is that? The researchers say women are better at it then men and that there are specific case patterns that make it tougher. While those things may be true—perhaps there are also some individual/internal factors at work.
I think sometimes we don’t want to believe we made a really bad decision. Or we are blinded for various reasons in our own history. So I was thinking about why I want this chicken. What are the motivations or early childhood experiences drawing me to an 8-foot chicken? And I thought of Paul Bunyan.
I grew up in Michigan’s Upper Peninsula, close to the border of Canada. We didn’t have 8-foot chickens up there. But we did have a 15-foot tall Paul Bunyan statue near my high school. I considered if the 8-foot chicken was a substitute for a Paul Bunyan. But then I came to my senses. I never, ever, even for a moment, wished for a Paul Bunyan statue in my yard. That would be tacky. But an 8-foot chicken? That’s art.
When you expect a gorilla you often miss other unexpected things
Many of us have seen the original change blindness video by academics Dan Simon and Christopher Chabris (“the gorilla guys”). And if you haven’t seen it, watch it here! The original video made quite a splash when it was released and now, not content to be one-hit wonders, these two researchers have released a second video. Watch this one and see if they get you again!
While the researchers say this video is instructive regarding our ‘change blindness’—we can see the lessons for trial lawyers. After living with a case for the length of time it takes to go from taking on a case to filing to depositions to preparing for your day(s) in court—attorneys often lose sight of what will appeal to the potential triers of fact. They know what appeals to them. They know what they think is important. They know what “should” happen. In other words, they expect a gorilla. And jurors often see something else.
One of the true benefits of pre-trial research is the opportunity to see what else happens when the case is presented. That is, do jurors see a gorilla or do they see something else and totally miss the gorilla? We’ve had countless examples of jurors missing the gorilla (or perhaps the attorney missing something even more important to the jurors).
- A hospital-based malpractice case where the heart-sick nurses shared their feelings with the attorneys but did not show their emotions in deposition testimony. The attorneys knew the nurses’ pain. The jurors saw cold and uncaring and defensive professionals who were likely responsible for harm to an innocent patient. They wanted the hospital staff to understand it was important to care when you are in a caring profession. Witness preparation focused on helping the nurses to trust their honest feelings, which resulted in them coming across as caring and concerned about patients.
- A high-dollar patent case where the technology explanation was dense and incomprehensible. After two years in case development, the attorneys were in love with the technology. The jurors, hearing the case for the first time, were confused by the technology and wanted to hear about the people involved. Where was the invention development file? Who was hurt? Who was cheated? Whose dream was stolen? If the patent is validated, is anyone harmed?
- A contract case where much of the agreement was not detailed in writing. (“God bless poorly executed transactions” say the commercial litigators…”) The attorney thought the fine reputation for good work in the local community would serve the plaintiff well and that jurors would want them to be able to continue in their work. The jurors thought that good practitioners do not necessarily make good business decisions. They thought the defendant was a schmuck, but also that the plaintiffs had no real case.
In all of these cases (and many others) the attorneys spent so much time and energy on the case that they lost sight of some important facts. They expected a gorilla. If you weren’t expecting a gorilla—what else might you see?
A pinch of this and a dash of that
Litigation advocacy (just like cooking) involves a combination of knowledge and intuition that cannot readily be quantified. When those tidbits emerge in the popular literature, we want to recognize them for what they are: jewels you can use to bridge the gap between evidentiary fact and juror acceptance.
It’s okay if you fumble, but watch your manners!
Incivility and rudeness are continuously in the news. We all know (and most of us keep in mind) that being seen as rude by others is not a good thing. Here’s a bit of a new twist: it’s better to be incompetent than to be rude! When research participants saw (what they defined as ‘rude’) behavior between colleagues they had negative reactions to the company itself. Even when the ‘rude’ person was correcting incompetent behavior on the part of their colleague—observers reacted negatively.
The takeaway here is to pay close attention to your non-verbal behavior in the courtroom (and perhaps elsewhere). What you do (as well as what you say) is being monitored by your jury. They will judge your behavior and words in their decisions on the merits of your case.
Your own non-verbal behavior can bias the jury against your client!
This finding is under the category of “Yikes! That’s kind of scary.” In a Tufts study, researchers found that television viewers were unconsciously influenced by how actors interacted with black colleagues. To test the hypotheses, researchers blocked out a character to hide race and turned off the sound so that viewers observed only non-verbal behavior of the speakers. Since the bias was unintentional (on the part of show writers), the researchers suggest that simple awareness of this bias might help both actors and directors counteract the effect.
We are not sure about their recommendation since we’re talking about unconscious bias. We’ve written about race and bias a lot on this blog. But if they are right, and likely even if they are not, the takeaway is to watch how you interact with both your client and members of the jury, as well as your second chair, your support staff, the court staff, and the opposing counsel team. All behavior is important!
Be concrete as opposed to abstract or inferential
This one is an interesting perspective. We hear a lot about jurors “need for cognition” and more recently about jurors “need for affect” in their decision-making/deliberation. While both of these factors are important, it seems it’s also important to focus on the concrete. New research shows consumers who are given concrete information are much more likely to have confidence in the decisions they make on information received.
You want to be sure your presentation includes concrete information for jurors to take to the deliberation room. “Concrete information” refers to information on observable behavior or details. A simple test for whether you are presenting concrete information is whether you can “see the information with your eyes or hear it with your ears”. If yes, it’s concrete. If no, keep looking
Taken together, these findings communicate the importance of being aware you are on display. Your behavior and communication are important parts of case presentation. It isn’t just your client who needs to watch their non-verbals.
Deliberations: Jurors think and feel as they make decisions
Our legal system assumes jurors will make their decisions without bias. This assumption echoes the ancient words of Aristotle: “the law is reason, free from passion”. Yet, most of us realize that decision-making encompasses both reason and passion. So how do you take that into consideration as you prepare and then present your case?
Researchers have explored both the “need for cognition” in juror decision-making and, more recently, the “need for affect”. Most of us are more familiar (whether we know it or not) with the “need for cognition” research.
Need for cognition: This refers to how much an individual enjoys and engages in effortful cognitive activities. We hear direct applications of this research in voir dire questions like: Do you enjoy doing crossword puzzles or Sudoku? When trial lawyers ask questions like these, they are examining whether jurors are high in the need for cognition (yes responses) or low in the need for cognition (no responses).
Need for affect: This is a newer concept–and therefore doesn’t have its own Wikipedia page! According to a new article by Desirée A. Griffin and Emily Patty in The Jury Expert, “need for affect” refers to “the motivation to approach or avoid emotion-inducing situations”.
Jurors who are high in need for affect will remember more of an emotion-laden message than they will a cognitive-laden message. Thus, depending on whether you want jurors who will respond to a highly emotional argument (or not) you can use their ‘need for affect’ to make decisions on whom to keep and whom to strike. Griffin and Patty, in their article on need for affect in the courtroom, offer the following as suggested queries for voir dire:
To identify jurors high in need for affect, Griffin and Patty suggest:
1) It is important for me to be in touch with my feelings.
2) I think that it is important to explore my feelings.
3) I am a very emotional person.
4) It is important for me to know how others are feeling.
5) Emotions help people get along in life.
6) Strong emotions are generally beneficial.
To identify jurors low in need for affect, Griffin and Patty suggest:
1) I find strong emotions overwhelming and therefore try to avoid them.
2) Emotions are dangerous – they tend to get me into to situations I would rather avoid.
3) I would prefer not to experience either the lows or highs of emotion.
4) If I reflect only on my past, I see that I tend to be afraid of feeling emotions.
5) I would love to be like “Mr. Spock,” who is totally logical and experiences little emotion.
6) I have trouble telling the people who are close to me that I love them.
Overall, identifying jurors who have a relatively cognitive approach or a dominant emotional approach to decision-making can potentially help your case. We always think it’s a good idea to assess jurors using valid and reliable questions from pre-existing measures. It just makes good sense, and sometimes it makes all the difference.
Maybe you better sweat the small stuff…
You might think that giving that witness a fashion update, helping them to understand their role in the trial story, and working with them to remove distracting non-verbal behaviors would be enough to go to trial. Not so fast! There is so much more to consider. It seems jurors may intuit much from small (or not so small) witness features that are really not salient to testimony at all. So contrary to the best selling books out there—you really do need to sweat the small stuff. Like what small stuff, you ask? Read on…
Facial scars:
If the opposing witness has a facial scar and yours does not—you might think that would bode well for your side. After all, facial scars are sinister. Or maybe not. Turns out that men with facial scars have more one-night stands and that (some?) women see facial scars as indicative of bravery and health. We know character matters to jurors. They may end up thinking the scarred witness is more attractive—not to mention both healthy and brave—than your witness. Or, perhaps, creepy.
Videography angles and focus:
It’s pretty obvious that you want your witness well-lit, shot from a flattering angle and (please) no iced coffee or soda—jurors often think this means the witness is not taking the deposition seriously. We have a long list of “do’s and don’ts” for witnesses, but overall, depositions are not the time for a refreshing beverage.
New research shows us that when your client has confessed and then retracted that confession—a confession video only trained on the defendant is seen as more convincing/persuasive than one trained on both the defendant and the detective or the detective/interrogator alone. And when there is much detail in the confession—it’s even more persuasive when the camera is trained on the defendant alone. (This is really an interesting piece of research and we’ll blog more on this soon.)
Foreign accents:
Many of us think that if someone speaks English (even accented English) it’s better to have them testify in English rather than in their native language with a translator. That may not be true. New research shows that when someone speaks with an accent—many people believe they are not being truthful. And the heavier the accent, the more we assess them as being not truthful. When we have trouble understanding someone, we assume they are less than truthful.
While you can make jurors aware of how videography and accents can bias their judgments—it’s likely a bit harder to say “don’t like their witness more because he has facial scars”. The take-away here is that everything matters: the big stuff and yes, even the small stuff. Sweat it all.
Secret Weapon: The Chairs in the Jury Box?
Spoiler alert! There are about to be times when you look at the furniture in a courtroom and start either grinning or feeling a sense of dread. It’s like a secret weapon of knowledge that happens to be largely luck of the draw. And we owe this knowledge to our friends who do social sciences research!
Scientific American has recently published a study summary on what is called ‘embodied cognition’. We’ve blogged about this phenomena before and think it’s a really fun fact to know about how our minds work—from the times of Jesus to Shakespeare to now.
The Scientific American study includes this thought-provoking snippet:
“And to see if other, more passively perceived surfaces could affect a person’s mindset, the researchers had volunteers pretend to negotiate the purchase price of a car while sitting in either hard or soft chairs. Those who happened to be sitting in hard chairs seemed to perceive the situation as more rigid, presenting second offers much closer to the original sticker price than those who had been seated in softer seats.”
Does that mean uncomfortable chairs compel passive acceptance? Does it mean that comfortable people are less distracted by their own distress, and are more likely to analyze information thoughtfully? And here’s what we thought.
- If the jury sits on hard chairs during the trial, might that bode well for the prosecution (in a criminal case) or the defendant in a civil trial? It sounds like the research disposes people to be less challenging of authority, even if it is adverse to your own interests.
- Conversely, if the jury sits on soft chairs, might that benefit the plaintiff in a civil trial or the defense in a criminal case? Again, it seems as if the research would have people being more comfortable, and more able to question the information being handed to them.
It’s hard to know. And, of course, you would likely want to visit the deliberations room to see if the surfaces on chairs there mirror those in the jury box in the courtroom or not. Regardless, a visit to your assigned courtroom could be instructive. Our bet is no one would know you were the one placing the cushions on the jury chairs (or removing them).
On fears…real and imaginary
I have a neurotic dog. He was born that way. He goes outside at night and races back to the patio door looking anxiously over his shoulder for potential assassins in the dark (and fenced) suburban yard. Last year, a mockingbird nested in the yard. The bird took Kirby’s intermittent visits as a personal affront and began to dive bomb the dog repeatedly all across the yard. I waited for Kirby to be afraid to go into the yard. But it never happened. This year, the mockingbird is back. The dog is still here. They race around the yard together—one dive-bombing with malicious intent and the other blissfully unaware of the real threat to his eyeballs and soft tissue.
It’s how many of us live: afraid of possible (but unlikely) threats to our safety (such as the possibility of being stabbed by robots) and blissfully unaware of actual threats in our environment. When we do become aware of actual threats, we engage in complex maneuvers to soothe ourselves. We’ve written about this before—
- Our fears of those who are different from us.
- The true odds of airborne terrorism.
- The varying guises of extremism and
- Our persistent efforts to avoid ‘hearing’ arguments that do not mesh with our pre-existing beliefs.
The important thing is for you to sort out how fear connects to and distorts your case facts. And what kind of jurors are most likely to engage with that sort of fear? And how you can tell the story in such a way that those fears (like the potential canine assassin in my back yard) are dismissed (or at least minimized) and jurors can focus on what is truly relevant.
Much like race, fear is almost always an issue. Pay attention to it.
‘Lawyerese’ may work well in journals but not in the courtroom!
You spend years and years in school learning how to communicate and write to get good grades. Then you get out into the real world and discover what worked well in the ivory tower of higher education can really mess you up in the courtroom! And in case you have not yet discovered that—here’s a head’s up!
Researchers tell us witnesses who had been taught about how cross-examination would proceed performed much better on the stand than did witnesses left to manage without instruction. Well, yeah. That makes sense. But here’s where it gets interesting. The issue was not in the process (as in anxiety over performing) but in the language of cross-examination.
‘Lawyerese’ which the authors define as “complex questions, containing multiple parts, double-negatives and advanced vocabulary” throws off the brain’s ability to process information correctly. So, witnesses who had been trained in ‘lawyerese’ were more likely to respond appropriately and less likely to make errors in testimony. Conversely, witnesses who were not taught ‘lawyerese’ “were more likely to work harder to answer the questions accurately and were more likely to become frustrated and nervous in court”. In other words, they benefited more from practicing comprehending questions than they did in rehearsing their answers.
It doesn’t take advanced education to think about which witness would seem more credible to a jury. It’s all part of a witness preparation strategy. You want your witnesses to be prepared for their testimony and that means more than simply running through your plans for direct examination with them. Preparing witnesses should not be an afterthought. Scroll down to the bottom of this page on our website to register to see the articles we’ve written on witness preparation over the years. Begin the process of ‘un-learning’ what got you A’s in the classroom and open the door to good grades for your jurors.
Recent Comments