Archive for the ‘Case Preparation’ Category
We like Pew Research here and wanted to bring you two new articles they’ve recently posted that may have relevance for knowing your jurors. It’s been a while since we’ve heard the term “boomerang generation” in regard to Millennials and maybe it’s because they are not planning to go anywhere anytime soon. Yet, if you look at the definition of “boomerang generation” now, it isn’t about moving out and moving back and moving out and moving back again, it’s about staying in place. And Pew has a new article addressing the issue.
Multigenerational households: 2016
According to Pew Research, we now have a “record 60.6 million Americans living in multigenerational households”. That translates to 1 out of every 5 Americans living in a multigenerational household (defined as two or more adult generations or a home that includes grandparents and grandchildren). Further, the trend is growing among nearly all racial groups (whites are less likely to live multigenerationally) as well as Hispanics in the US, among all age groups, and across genders.
While older adults used to be the ones most commonly living in multigenerational households, now it is young people for whom this living arrangement is most common. It is becoming more common for not just two adult generations to live together but even common for three generational groups. Pew thinks this is the result of immigrant families increasing in the country and a more frequent tendency in those cultures to share households. It is interesting to examine the graph (taken from the Pew site). The number has increased but not sharply. It is a gentle upward trend reflecting the changing demographic of America. As the nation changes, so do our housing norms.
Religious affiliations of “none”: 2016
Between 2007 (16% of those surveyed) and 2013 (23% of those surveyed), Pew Research says the number of religiously unaffiliated (aka the “nones”) grew rapidly from 35.6 million Americans to 55.8 million Americans saying they had no religious affiliation. Recently, Pew interviewed religious “nones” to see why they had left the church. Their reasons vary widely and as Pew says, the “nones” are far from monolithic. Here is the largest reason those who were raised in the church say they ended up leaving as adults:
About half of current religious “nones” who were raised in a religion (49%) indicate that a lack of belief led them to move away from religion. This includes many respondents who mention “science” as the reason they do not believe in religious teachings, including one who said “I’m a scientist now, and I don’t believe in miracles.” Others reference “common sense,” “logic” or a “lack of evidence” – or simply say they do not believe in God.
The others may have objections to organized religion, be religiously unsure, or simply inactive due to other obligations. Pew describes the “nones’ as composed of three groups:
They can be broken down into three broad subgroups: self-identified atheists, those who call themselves agnostic and people who describe their religion as “nothing in particular.”
From a litigation advocacy perspective, these findings are important. We need to realize both living arrangements and religious affiliations are changing. Some of this reflects the changing racial and ethnic makeup of the country and some of it reflects changing values and beliefs in our society. Sometimes these changes catch us off guard and other times we just think what we knew “back then” still applies today. Pay attention. Don’t be surprised when your assumptions (based on outdated information) are just wrong.
Despite Hillary Clinton’s historic shattering of the glass ceiling with her Presidential candidacy and Barack Obama’s Presidency (which was predicted to start a national conversation on race)—both sexism and racism are alive and well and living (not very peacefully) in our midst. It’s time for an update on racism and sexism—and spoiler alert—this will not be particularly uplifting content.
On sexism in 2016: “The obstacles that once made it harder for women than men to get ahead are now largely gone”
If you’ve followed this blog for long, you will know we are fans of the Pew Research Center and appreciate their surveys on the shifting opinions of Americans. Recently, Pew published a survey that likely made women everywhere groan (or mutter other things) in disbelief. Specifically, the question to which Pew asked for a response was: “the obstacles that once made it harder for women than men to get ahead are now largely gone”. Almost half of Americans (45%) agree with this statement—among those agreeing are 56% of men, 34% of women, 63% of Republicans, and 30% of Democrats. Older men are more likely to say there are still significant obstacles facing women than are younger men—although, Pew reports that Democrats overall are more likely to think women face significant obstacles than do Republicans.
The Atlantic (another favorite site of ours for publishing thought-provoking articles on societal attitudes) recently published an article entitled “The era of ‘the bitch’ is coming”. In that article, they opine a Hillary Clinton presidential victory will “usher in a new age of public misogyny” (also described with historical examples by Malcolm Gladwell in the first episode of his excellent new podcast, Revisionist History). Both the article and the podcast are sobering examples of just how far we have not come, baby. On the other hand, the American Bar Association finally banned sexist language in court so there should now be no more ‘honey’ or ‘darling’ or ‘sweetie’ used when addressing women in the courtroom.
On racism in 2016: “America isn’t more racist. It’s just shouting it instead of whispering”
While some have been appalled by Donald Trump’s bigotry and racism, others have welcomed it as long overdue in public discourse. Some have tried to explain his candidacy’s success and others say it is simply not explainable. Presidential campaign politics aside—there is plenty to talk about in racism news in 2016.
A new Gallup poll says 46% of American blacks report being treated unfairly in the last thirty days and Jay Newton-Small, the Washington correspondent for Time Magazine tells the story of widely varying differences in perspective based on race while he served as a juror on a multiracial jury in the assault trial of Carlos Galloway (accused of assaulting a fellow black male). Here’s a paragraph describing Newton-Small’s experience:
The jury consisted of five black women, two white men, four white women and me, a Eurasian mix. Our views on what happened, what we knew and how we should vote were starkly different based upon our backgrounds. To most of the white jurors, there was overwhelming evidence: A motive; a broken, blood-covered knife; and two impartial eyewitnesses. But the jury overall ended up convicting Galloway of misdemeanor simple assault, meaning that while we acknowledged that an assault had happened, we did not find him guilty of using or even possessing a knife.
He goes on to describe in detail how race related to how the individual jurors saw the facts of the case very, very differently. The article is well worth the read.
The poll numbers on racism are not as bad as those on sexism, 61% of Americans in a new Gallup poll say racism against blacks is widespread in 2016—although 41% say racism against whites is also widespread (this is up from 32% in 2015). In Washington State, a self-proclaimed white supremacist stabbed an interracial couple after seeing them kiss outside a restaurant. When he was taken into custody, the police noted this was a “purely racial crime” and that the perpetrator had multiple tattoos with racial slogans such as skinhead and white power.
This happened despite the fairly recent Pew survey finding interracial marriages rising and multiracial babies on the rise as well—while Americans are warming to the idea of interracial marriages. (However, some new research questions the poll results showing more approval for interracial marriage—come back next week for a post featuring that research.)
From a litigation advocacy perspective, we are far from justice being meted out fairly and equitably. We see that still in lower awards to both black and female plaintiffs as well as in the bias that often leaps out at us during pretrial research for a wide variety of cases. Our advice has (sadly) been the same for the past twenty years—if your client is female or a minority or a foreign national and the facts of the case have nothing to do with that reality, watch intently for bias since this is when you will need to raise the flag of awareness for jurors.
If you do nothing, bias will be silent until the verdict is read.
We’ve written about CRISPR (aka gene editing) before and even about concerns of Americans about use of emerging technologies, and while this post is sort of about CRISPR—it is also about visual evidence done right.
We often work on cases where jurors will need to understand very complex information. It may be a patent case or a complex business litigation case or something else that is technically daunting—but jurors often need to understand something very complicated. And often that something is very technologically advanced (and thus intimidating to the jurors).
It is almost always a very difficult process for the attorneys in a complex case (in which they have often been buried for years) to see through the many details of a complicated technology and tell a simple (yet accurate) story for jurors. We often test visual evidence in our pretrial research to see what resonates with jurors, what they remember, and what helps them to make sense of abstract and esoteric technology, processes, or patented ideas.
When we see terrific examples of visual evidence (culled from many different areas) we like to share them here to help you understand there really is a way to take very, very complex facts and details and make them accessible to those who have no experience whatsoever in the area and may be very intimidated by even attempting to understand the information.
Here is just such a video tutorial. This video uses cartoon images and plain language to explain the gene editing technique referred to as CRISPR. While the last parts of the video place it clearly in the pro-CRISPR camp, the first parts explain the technology clearly and succinctly. Because it is in a cartoon format (with which we are all familiar from childhood) it is non-threatening. Since it is visually presented, we are able to understand a tremendous amount of technical information without jargon or numbers that make less technical viewers’ eyes glaze over.
If CRISPR can be explained in a few minutes of cartoons, you can explain anything in ways the most naïve juror can understand. All you need is a fabulous visual evidence consultant. We happen to know a few of them!
While those of you who have worked with (or lived with) functional psychopaths before may want to scream “Danger, Will Robinson!” — an international group of researchers (studying German research participants) have identified a “good psychopath” and a “bad psychopath” (when it comes to employment) and they even suggest a scale measuring sub-clinical forms of psychopathy (and earnestly tell the reader this will get around that pesky US ADA restriction against measuring psychopathy on “clinical” scales in an employment setting). They take issue with even the label psychopathy as it loosely means “disease of the soul”. We can quibble about terminology, but their results highlight factors to consider when hiring anyone.
Here’s a brief look at how they came to their conclusions and recommendations for hiring people, some of whom are likely to fall on the troubling end of a psychopathology continuum. First, they explain the differences between primary and secondary psychopathy.
Primary psychopathy, according to the researchers, is characterized by “fearless dominance” (which they describe as wanting to get your own way no matter what the consequences of your actions). Their traits, say the researchers, include “an egotistical personal style characterized by self-promotion and prioritization of one’s own needs before those of others”. Yet, primary psychopaths, they say, are often described by coworkers as helpful, cooperative and pleasant if and only if, the psychopath also had good social skills that were present in the workplace (and those social skills helped them keep their arrogance , egocentrism, and prioritization of own needs and wants over those of others at bay). Or, we imagine, as long as their views are supported by others.
Secondary psychopathy, according to the researchers, is characterized by “self-centered impulsivity”. These psychopaths, according to the researchers, lack an inner braking system and thus have no self-control—they also have no consideration for others. Their traits, say the researchers, include “behavioral impulsivity characterized by disregard for rules and responsibilities”, thrill-seeking, and blaming others for their misfortunes. Consistent with this trait description of secondary psychopaths, coworkers often characterize the secondary psychopath as destructive, not helpful to others, and weak in terms of work performance when it comes to self-disciplined behaviors such as working hard, following workplace rules, taking initiative, being considerate and cooperative, or helping others with their tasks.
By definitions embraced elsewhere, Primary psychopathy might be considered more narcissistic, while the lack of control and the heartlessness of Secondary psychopathy is more aligned with the traditional view of psychopathy.
The researchers think our tendency is to assume that all psychopaths have “the malevolent, exploitive, agentic, and callous personality traits” characterizing heinous criminal offenders. However, they say, that description is only relevant for the “clinical psychopaths” which comprise only about 1% of the entire population of psychopaths. Psychopathy, like other human traits, lies on a continuum and the researchers believe that about 10% of individuals with psychopathic traits have “subclinical” levels of psychopathy. (They do not indicate what this means about the remaining 90% of people in the pool of psychopaths—although they do conclude they do not consider “cold-heartedness” in their model since it was not statistically related to what they we’re trying to measure.)
The issue with employment, the researchers say, is not whether you have multiple (sub-clinical) psychopathic tendencies—but rather, how well your particular form of psychopathy fits with your job description (as well as, naturally, your level of social skill). They opine in their 30+ page paper that primary psychopaths can “be selfless heroes in everyday life, such as life-savers, emergency physicians, or fire-fighters” and think we should differentiate more carefully in the large class of psychopaths—both primary and secondary types.
Again, the paper has to be read with a willingness to accept their use of the term “Primary Psychopath”, which by its definition is a milder form.
The researchers used a measure of psychopathy that is able to “detect relatively mild levels of psychopathy traits in non forensic samples (the Psychopathic Personality Inventory—Revised, we’ll blog about this scale in our next post) and they mention the scale is useful for workplace settings since it measures subclinical psychopathy. (We should perhaps mention the scale has 150+ questions on it and some of them are quite odd—but more on that in our next post.)
Overall, say the researchers, the primary psychopath with good interpersonal skills is a good bet for the workplace but if they do not have good interpersonal skills, they will likely be as destructive as the secondary psychopath for workplace productivity and morale.
From a law office management perspective, we really would not recommend this sort of strategy. What they seem to intimate is that you want to find the 10% of the psychopathic population who have moderate psychopathic tendencies and then, divide them into primary and secondary psychopaths and then, figure out which of the primary psychopaths have really good social skills so their behaviors will not wreak havoc in your workplace.
Putting on our duly licensed Psychologist hats for a moment, the distinction seems to be a very slippery slope. Secondary psychopaths are trouble from the beginning. Primary psychopaths have better social skills so they can manage the day to day more successfully, but under stress they are going to create havoc, too. And we have never seen a trial team that isn’t under terrific stress. It is the nature of litigation, and stress tolerances need to be higher than average, not a potential area of weakness.
The authors put a troubling amount of faith in a psychological trait scale, when you can assess the same things by looking at work history, length of relationships, and having your own warning signs on high alert during the interview process. Use your intuition about whether someone will be a good fit. It is also risky to assume you can “get around” the Americans with Disabilities Act by using the PPI-R scale with job applicants when what you are measuring is psychopathy and resulting goodness of fit in your workplace.
And a high-functioning psychopathic attorney is just the kind of person to drag you through a lawsuit by claiming that you rejected him or her based on an ADA protected factor.
Schutte, N., Blickle, G., Frieder, R., Wihler, A., Schnitzler, F., Heupel, J., & Zettler, I. (2015). The Role of Interpersonal Influence in Counterbalancing Psychopathic Personality Trait Facets at Work Journal of Management DOI: 10.1177/0149206315607967
This will shock you, or maybe relieve you: Psychopaths are different from the rest of us. Here’s another article saying there are measurable differences in how the brains of how criminal psychopaths work (and look) when compared to non-criminal psychopaths (those who have psychopathic traits but have not been convicted of criminal offenses) and non-psychopaths.
While many criminal offenders have psychopathic traits, there are some psychopaths who never commit offenses (at least, for which they are convicted). Today’s researchers wanted to see if there were “brain differences” visible on an MRI. They tested 14 convicted psychopaths and 20 non-criminals—half of whom who had a high psychopathy scale score but had not been convicted of any offenses. This is a very small group size but as they comment—it is the first time convicted offenders have actually been examined.
They found a few differences and the following is a summary of their findings:
Psychopaths (both criminal and non-criminal) have stronger reward centers in their brains
To clarify, the brain’s reward center—called the nucleus accumbens—“is responsible for recognizing and processing the rewards and punishments that follow from our actions”. The researchers had participants perform various tests while in an MRI scanner to measure brain activity. Those who had no significant psychopathic traits had a weaker response in the brain’s reward center than did both the criminal and non-criminal psychopaths.
Low self-control and less response to reward in criminal compared to non-criminal psychopaths
Good communication between the reward center of the brain and an area in the mid-brain is seen as reflecting good self-control. The authors found that criminal psychopaths did not have as good communication between those brain areas as did non-criminal psychopaths. While this is the first time criminal psychopaths were actually examined in this way (and there were only 14 of them) the researchers think it possible that the tendency to commit a criminal offense stems from a combination of a lack of responsiveness to reward and a lack of self-control.
Among the other lessons learned was a sense that when your reward center is extremely sensitive, you may be more likely to behave impulsively. The researchers think a sensitive reward center may be more predictive than a lack of empathy but obviously follow-up studies are needed. They also think that if future studies continue to show the brain plays an important role in criminal behavior—we may yet see brain scans being used in forensic examinations for diminished responsibility down the road.
While neurolaw advances are not being published as quickly as they were for a while, there are still multiple researchers working on the question of responsibility for criminal acts when your brain is demonstrably different from a non-psychopath. This is an interesting line of research in terms of comparing criminal psychopaths to non-criminal psychopaths and non-psychopaths. The small sample size is a concern and we need to wait for larger samples but the ideas are ones we think likely to continue to spark new research until we have to deal with these questions of responsibility in the courtroom. We’ve written about this area frequently so if you’d like to see what our mock jurors say in pretrial research, take a look at the neurolaw category in our blog.
Geurts DE, von Borries K, Volman I, Bulten BH, Cools R, & Verkes RJ (2016). Neural connectivity during reward expectation dissociates psychopathic criminals from non-criminal individuals with high impulsive/antisocial psychopathic traits. Social Cognitive and Affective Neuroscience, 11 (8), 1326-1334 PMID: 27217111