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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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overconfidence-man-3Many have written about men being over-confident in comparison to women–although all of us may be more confident in our abilities than we generally should be. Prior research has shown us that men are more confident than women, and that happy people tend to view themselves more positively and happy people actually often perform better on quizzes and other tasks. So today’s researchers asked 107 undergraduates recruited from introductory courses required of all students (57 male and 50 female) to participate in their study.

First, the participants completed a half-hour quiz containing 20 trivia questions (samples of which can be found here) and 10 arithmetic problems. Then half of them watched nature scenes from Alaska’s Denali National Park while half listened to Robin Williams Live on Broadway comedy sketch. (This experiment was conducted several years prior to Robin Williams’ death.) After watching these video stimuli, the participants were asked to estimate how well they had done on the quiz and given financial incentive to guess correctly. Participants were offered $5 for guessing precisely correctly, $3 for guessing within three points, and just $1 for guessing within six points of their actual score.

And here is some of what the researchers found:

Men were more confident than women (overestimating their scores by about four points to women’s overestimation of two points on average).

Men who watched Robin Williams’ stand-up comedy performance overestimated their scores by 2 points more than those men who watched the nature scenes.

Women who watched the comedy performance were in no way different in terms of estimation of their test scores than were women who watched peaceful nature scenes.

The researchers think men and women regulate their emotions differently (although both genders found the Robin Williams video funny) and that men may be more grandiose after watching a master of comedy, thus inflating their score estimates even more. The researchers suggest we can all benefit from an awareness of how our mood affects our behavior. They suggest employees may wish to (prior to important decisions or meetings) “proactively put him- or her-self into a good mood”, but evidently there are limits to how far that should be taken. And they do not suggest concrete strategies to achieve this goal.

From a litigation advocacy perspective, this research offers a caution to male litigators. It is important to maintain your confidence, but don’t get carried away. The end result could be, although one study of 100 undergraduates is hardly conclusive, that jurors may see you as cocky and arrogant (i.e., over-confident) rather than a sincere advocate for your client. At the very least, know that in order to connect with your jury you need to be able to relate to where they are (emotionally and cognitively), and the jurors haven’t likely be watching comedies on the internet while they wait for the trial to get underway. Robin Williams is likely to put you over the top.

Ifcher, J., & Zarghamee, H. (2014). Affect and overconfidence: A laboratory investigation. Journal of Neuroscience, Psychology, and Economics, 7 (3), 125-150 DOI: 10.1037/npe0000022

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p300 brain waves and deceptionWe’ve written before about the inaccuracy of eye witness testimony despite the familiarity of the saying, “I know what I saw!”. But here is newly published research purporting to have been “able to discriminate perfectly between 12 knowledgeable subjects who viewed stimuli related to their activities and 12 non-knowledgeable subjects who viewed only irrelevant items”. What does that mean? Well, let us tell you (and you can also see a more complete description of the experiments here).

These researchers wanted to test eye-witness memory through the measuring of brain waves (called the P300 event-related-potential-component, as I am sure you knew already). The P300 wave is thought to represent the transfer of information to consciousness, a process that involves many different regions of the brain. Some say the P300 wave occurs when the observer sees something that stands out for them, “an oddball” stimuli. In order for a P300 wave to occur, the subject must be consciously paying attention to targets presented. These researchers thought they could present familiar (e.g., “Hey! I’ve seen this before!”) stimuli to research participants and those who had seen something similar the day before would have a corresponding P300 spike in their EEGs.

To test, they had 26 students (6 males and 20 females) wear a camera attached to their clothing for four hours. (Two participants were removed from the analysis due to concerns about the quality of their data.) The camera footage obtained was then used to construct a concealed-information-test (CIT) also sometimes referred to as the “guilty knowledge test”. What this means is that various keywords relating to events taken from their actual camera footage filmed the day before were assembled along with other unrelated words. The researchers thought that if the participants saw situation relevant words describing events/places they had actually traveled past the day before, they would recognize it and their EEGs would show a P300 spike. This spike, if it happened, would tell the researchers that the witness had indeed seen the item described.

Half the participants were put into a condition called the “knowledgeable” group. Their footage would be described in the key words they were shown the next day. The other half were put into a condition called the “non-knowledgeable” group. Their footage would be entirely composed of irrelevant words that had nothing to do with what they had seen or passed by the day before. The researchers believed that the “knowledgeable” group would show the P300 spikes on their EEGs while the “non-knowledgeable” group would see nothing familiar and thus have no P300 spiking.

And they were right. The use of the P300 brain wave was highly effective in this particular scenario and the researchers believe this work moves the CIT closer to use in the courtroom. Specifically, they think details of the crime scene or a cell phone dropped at the scene could result in the P300 spike in perpetrators being interrogated. It would not really matter what the perpetrator said out loud. We can simply look at their P300 brain waves to see what really happened. The researchers report they were able to differentiate between knowledgeable and non-knowledgeable subjects with 100% accuracy.

From a litigation advocacy perspective, we think, as does Loonylabs.org, that this idea is just plain creepy.

Perhaps, like the two subjects in this article whose data was thrown out, the words or objects used could have idiosyncratic meaning and the P300 spike could occur and mean something very different from that the person being interrogated had been at the scene.

Perhaps, anxiety can trigger a P300 spike.

Who knows what P300 spikes are related to in total? Or even if they are related to different things for different people?

The way in which the words were introduced seems likely to affect response. If presented on a computer screen, what size is the font? What is the subject’s reading ability? Is there music accompanying the words? If the words are spoken aloud, the person speaking the words would need to be carefully trained, and the reliability of the results could be questioned on this basis, among others.

This would surely be subject to the same limitations that lie detector tests are, and the results are far from acceptable levels of reliability.

There is so much to question when scientists suggest a brain wave can tell us information that can result in the removal of liberty and freedom. We’d say this interrogation strategy has a long long ways to go before it’s ready for prime time.

Meixner JB, & Rosenfeld JP (2014). Detecting Knowledge of Incidentally Acquired, Real-World Memories Using a P300-Based Concealed-Information Test. Psychological Science. PMID: 25231899

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online pornWe can hear the snickers and gasps now–and likely the immediate objection from (probably) the opposing counsel or (unquestionably) the judge. But not always. So why might this be something you want to know? According to new research in the Journal of Sex and Marital Therapy, a distinguishing characteristic of narcissists is that they watch more porn online. That actually makes intuitive sense since narcissists would want to avoid rejection and objectify others as sexual objects. We are not sure how you would get this sort of question in though–unless the case actually involved online pornography.

More interesting to us (by far) was the information on the frequency of porn viewing online. For the study, researchers asked 257 participants (aged 18-61 years with an average age of 29 years, 63% female, 89.1% heterosexual, 70% White, 12.1% Hispanic, 7.4% Black, and 10.5% Other) to complete measures of narcissism (using the Narcissistic Personality Inventory, the Pathological Narcissism Inventory, and the Index of Sexual Narcissism) and report on the specifics of their internet pornography viewing (they were asked if they had ever viewed, and if they currently viewed internet porn as well as how many minutes per week they viewed internet pornography).

79% reported they had viewed internet porn.

44% reported currently (recently) viewing internet porn.

Current viewers, on average, viewed internet porn 85 minutes per week (or about an hour and a half).

Men spend more time on internet porn (an average of 3 hours per week) than do women (an average of about 1/2 an hour per week).

There was a significant difference in level of narcissism between those (79%) who had ever viewed internet porn and the 21% who had never viewed internet porn.

The researchers comment the sample of those who had viewed porn (the 79%) was skewed by gender since 96% of men reported they had viewed internet porn. Nonetheless, the 4% of men who had not viewed internet porn was lower in narcissism than the 96% who had. As for women, 68% of women had seen internet porn and again, those who had not scored lower in narcissism than women who had seen porn on the internet.

There was also a difference in level of narcissism between those who currently use internet porn for all measures of narcissism. Current users of internet porn (67% of men and 30% of women) were higher in narcissism than were non-current users.

Finally, as the frequency of internet porn use increased, so did the levels of measured narcissism.

What the researchers say is that there is a relationship between “internet pornography use, narcissistic behavior and psychological harm” to the viewer. They believe that using internet porn “inflates an individual’s narcissism (i.e., selfishness, isolation, and entitlement)”. For the researchers, this work focused on narcissism and how it harms relationships.

While we don’t recommend using this as a method for spotting narcissists (the study falls far short of suggesting that), there are clearly cases (copyright cases, sexual violence cases, premises liability cases, and various wrinkles in family law, to name a few) where attorneys and jurors need to be comfortable talking about salacious topics such as this. From a litigation advocacy perspective, this research validates being able to ask about sex and pornography in court* with a reduced fear of offending jurors.

The asterisk is that you need to tell them that virtually all men and over ⅔ of women have watched pornography on the internet. Otherwise, many will feel embarrassment and anxiety. You can normalize by pointing out the truth. When more than 3/4 of a group of 250+ have viewed internet porn, it takes much of the fear of stepping on juror sensibilities away. In fact, you could even say you’ve seen studies saying almost 80% of adults have viewed internet porn at some point in their lives.

There are many times we think the themes in our case are sure to alienate the triers of facts. What we’ve learned in our pretrial research is that when you matter of factly explain the issues, without giggling, blushing, or perspiring, jurors are willing to join you in an adult discussion of case facts.

We’ve also seen glib puns, one-liners, and shared glances with disbelieving grins shared among our mock jurors but they have always been able to quickly redirect their attention when their humor was acknowledged and a focus drawn back to the issues at hand.

Kasper TE, Short MB, & Milam AC (2014). Narcissism and Internet Pornography Use. Journal of Sex & Marital Therapy, 1-6 PMID: 24918657

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stewart_ebola-1280x900Earlier this month I was on a Wi-Fi and Cable TV enabled flight. Passengers thought it very funny that two of the shows accessible on the cable TV channels were on plane crashes and jetliner engine failures. Well, some of the passengers thought it was funny. I was fortunate enough to be in the window seat while an over-sized traveler was in the middle seat and a man with a horrific and very productive cough (thank you very much!) was in the aisle seat. He hacked and hacked and hacked during our 6 hour flight and at one point, I looked at the middle seat passenger and whispered “ebola”. It was intended to be a joke but she began to sweat profusely and lean into me. It was not a good flight and from now on I will not crack jokes about potentially deadly things.

So today, I saw the headlines on CNN: Ebola hysteria. And then I checked my email to find an update from Rasmussen Reports saying Americans are not panicking over ebola. While I certainly prefer the Rasmussen Reports perspective, it does give a moment of question often voiced by our mock jurors: when you have dueling experts–how do you know who to believe?

We’ve answered this question before, but here are a few ideas on how to make your witness be the voice of authority in the jury room:

Establish the expert’s credentials, then let it go. If the expert is so insecure that they insist on acting intellectually superior, the jury will hate them. And as ridiculous as it might sound, during preparation emphasize to the witness the need to be nice.  Expert witnesses are the worst when it comes to arrogance and gamesmanship.  Getting them to be friendly, useful, and charmingly geeky is often quite a challenge.

Your expert witness is not there to tell what they know. Their job is to teach the material to a (usually) ignorant but motivated class of students. Not to teach the attorneys or the judge, but to teach the good folks in the jury box.

Give the jurors the dueling testimony but also let them know why what you are offering is more supported by the literature, has stronger support from professionals in the field, or other pieces of data that bolster your expert’s testimony.

Frame the testimony in a way that mitigates the values or belief conflicts that the skeptical jurors are likely to have.  We know that (as with political polarization) jurors are going to ‘hear’ what supports their own belief systems, giving jurors for whom your message is pro-attitudinal the ammunition to support your position in the deliberation room is essential.

Make sure your expert’s testimony is factually accurate and examine the opposing witness’ testimony for factual accuracy. Showing jurors how a portion of an expert’s testimony is self-serving will kick in their tendency to doubt the expert’s credibility in total.

These are but a few strategies to help jurors to choose your expert as the one they believe or find most credible. You can find more on the blog by simply clicking here: dueling experts.

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