Archive for the ‘Case Preparation’ Category
The phrase “I’m sorry” always reminds me of then 15-year-old Brenda Lee and her hit single. (That is, in psychology circles, called a tangential aside.) We haven’t written about apology here for a while now and a new study has just published that lists six elements to make your apology optimal. This post is to help you stay informed about the latest findings on how to make an apology most effective.
First a bit of background on the apology research. These researchers tell us that apologies typically arise in an effort to repair trust. They identified “six structural components of apologies” from prior research and presented them single and in combination to research participants to see which elements were more effective in restoring trust. Here’s a little of what they found:
Not all apologies were equally effective—those with more components were more effective than those with fewer components and certain components were more effective than others. (In other words, keep talking…and make sure you focus on everything you need to say. )
Apologies after competence-based trust violations were more effective than apologies following integrity-based violations. (One is an issue of disappointment with your actions and the other is an issue of your character.)
The six elements of apology culled from prior research were:
Expression of regret
Explanation of what went wrong
Acknowledgment of responsibility
Declaration of repentance
Offer of repair
Request for forgiveness
The authors say that the best apologies contain all six elements but the most important elements are acknowledging your responsibility and making an offer of repair for harm done. The next three elements are tied (expressing regret, explaining what went wrong, and a declaration of repentance). The least effective element may surprise you. A request for forgiveness is the least effective element of the apology and the researchers say you can leave out the request for forgiveness if you need to do that.
From a litigation advocacy perspective, it seems famous people are apologizing almost all the time (we’ve written about a number of them here) but the quality of those apologies varies dramatically. When your client needs to issue an apology—encourage them to include all these components (although they can skip the last one if it is too awkward or would be seen as insincere).
Lewicki, R., Polin, B., & Lount, R. (2016). An Exploration of the Structure of Effective Apologies. Negotiation and Conflict Management Research, 9 (2), 177-196 DOI: 10.1111/ncmr.12073
It’s tough to see the same old themes come up over and over again but—here we go again… Women who react emotionally are seen as less intelligent, but if they react in a “measured and manly way” they are thought not trustworthy. In other words, you can’t win for losing.
“Men were rated as both more emotionally competent and more intelligent in general when they showed restraint. For women, however, the opposite pattern emerged, in that they were perceived as more emotionally competent and intelligent when they reacted immediately.”
In other words, say the researchers, we expect men and women to act according to gender stereotypes and we are suspicious of those who fail to behave accordingly.
Participants in the first study (59 undergraduates from the University of Haifa in Israel—30 men and 29 women) were shown photos found to elicit both sadness and anger. Then they watched videos featuring different people allegedly reacting to those same images. Half of the actors reacted almost immediately (within 1/2 second) while others did not show an expression change for a second and a half. After viewing the videos of people reacting to the images, the participants rated each character for “emotional competence” and assessed their level of sensitivity, caring, and the appropriateness and authenticity of their reactions.
Men who paused for 1.5 seconds prior to changing their expression were seen as more emotionally competent. Women who paused were seen as less emotionally competent.
The second study (with 58 students) was much the same as the first but the participants also rated the perceived intelligence of the character in the video.
“Men who showed delayed reactions were perceived as significantly more intelligent than those who reacted immediately, whereas for women, delayed reactions resulted in less perceived intelligence.”
The authors say that these results reflect the strength of gender stereotypes about women as “more emotionally volatile but also more emotionally competent” and say that when women delay their reaction to an emotionally charged image they may be seen as “strategic rather than spontaneous”.
From a litigation advocacy perspective, this will be important when considering the impact of male and female witnesses, for preparation of parties, and even for attorney behavior in the courtroom. You are always being watched and evaluated. Assumptions are going to be made for better or worse.
Help jurors see your female witness/party/self as thoughtful and competent but as having learned to stop and consider actions and consequences prior to reacting. That is done more by offering jurors some context for respecting the witness or party, rather than trying to train them to significantly change their response style. In other words, this time it has to be about teaching the jurors how to judge quality, rather than teaching the witness how to overcome the gender bias.
Hess, U, David, S, & Hareli S (2016). Emotional restraint is good for men only: The influence of emotional restraint on perceptions of confidence. Emotion
If you are seeking empathy and understanding from jurors hearing your case—go for middle-aged adults—and, in particular, middle-aged women. If you are thinking the sample size of this study cannot possibly be large enough to draw that sort of conclusion—think again! This is a study based on 75,263 adults in the US.
In the study, late middle-aged adults said they were more likely to react emotionally to the experiences of others and that they were also more likely to try to understand how things looked from the perspective of others. Both men and women “of a certain age” were more likely to report higher empathy but women were especially likely to do so. (And in case, like us, you are finding it more difficult to ascertain just when “late middle age” might be—the researchers define this as someplace between 50 and 60 years of age.)
Basically, the researchers examined responses from the General Social Survey which measured empathy in both 2002 and 2004. And surprisingly, these were the two smallest samples (1,353 adults in 2002 and 1,330 in 2004). Additionally, the authors conducted an online survey of 72,580 US adults between 18 and 90 years of age wherein they measured both empathy and perspective taking. (Note: While the GSS surveys are random and nationally representative, the researchers large online sample is not.)
Here is what they found on empathy:
Women reported higher empathy than men in all three samples.
In 2002, the GSS sample showed no significant differences in empathy based on ethnicity. In 2004, African-Americans had lower empathic concern than European-Americans. And in the online survey—African-Americans, Asian Americans and “especially Hispanic Americans” reported higher empathic concern than European Americans. (The authors make a point of stressing that the effects were fairly small.)
The effects of age were consistent across all three samples. Empathic concern was higher in older than in younger adults. The most common interpretation of this is that younger jurors haven’t experienced enough pain and suffering to appreciate its debilitating effects.
And here is what they found on perspective taking (which is akin to empathy and basically assesses how likely you are to attempt to put yourself in the “shoes” of another). Note: perspective taking was only assessed in the online sample and not in the GSS samples.
Women had higher self-reported levels of perspective taking than did men.
European Americans had lower perspective-taking than those of other ethnic origins (this effect was small).
And older adults had higher perspective taking than younger adults.
The researchers explain their results in clear and easy-to-understand language. “Specifically, empathy was expected to show an inverse-U-shaped function across the adult life span, with middle-aged adults scoring higher than young adults and older adults. Indeed, we found empirical evidence for this pattern in the case of both empathic concern and perspective taking in all three samples.”
For the non-statisticians among you, what that means is that both younger and older adults are less empathic and less likely to take the perspective of others than are middle-aged adults.
The researchers don’t know whether this is a true age effect or the result of generational experiences since this age range reflects younger Baby Boomers who grew up during sweeping societal changes that emphasized the feelings and perspectives of others.
From a litigation advocacy perspective, this is an intriguing study. If we know that women report higher levels of empathy than do men and we know the same pattern holds true for self-reports of perspective-taking—and, we know that empathy seems to peak between ages 50 and 60—when all else is equal—you likely would be better off choosing the woman between 50 and 60 for your jury.
As an aside, we always caution against blanket assumptions that “women are better for Plaintiffs and men are better for Defendants”. It simply is untrue. But this finding, when coupled with other information from careful pretrial research, can be instructive in voir dire and jury selection.
O’Brien E, Konrath SH, Grühn D, & Hagen AL (2013). Empathic concern and perspective taking: linear and quadratic effects of age across the adult life span. The journals of gerontology. Series B, Psychological sciences and social sciences, 68 (2), 168-75 PMID: 22865821
Here’s a sad study that tells us stereotypes are alive and well in American court systems. Let’s say you are unfortunate enough to be on trial for murder. According to this study, how wide your face is can be the difference between life and death if you are convicted–even if you are actually innocent.
We’ve written before about wide-faced men and the link with aggression and this study is similar to those but it’s done with photos of men who were actually imprisoned on death row or were serving life sentences for murder. The researchers wanted to see if jurors may have made assumptions about predilection to violence from looking at faces of defendants and if that “face analysis” resulted in sentencing disparities between those with trustworthy versus untrustworthy faces.
They pulled the photos of the men from the state of Florida (which still has the death penalty) and had 208 online volunteers look at the photographs (which were cropped to show faces only and gray-scaled so the color of the prison uniforms did not influence the raters. The researchers even controlled for whether the inmate was wearing eyeglasses or if they had visible (face or neck) tattoos. The volunteers rated the faces in the photo for trustworthiness.
Here is what they found:
Perceptions of untrustworthiness predicted death sentences as opposed to life sentences for convicted murderers in Florida. (The researchers just asked the participants to rate whether the faces in the photos were trustworthy or not. Then, they went back to look at the actual trial outcomes to see who had been sentenced to death and who’d been sentenced to life in prison.
One of the variables the researchers checked (because they are evolutionary psychologists, naturally) was facial width (which is set at puberty and not under anyone’s control). Sure enough, if you have a wide face you do not “look” trustworthy. Just as we presume the jurors did, the online raters looked at a face and deemed it untrustworthy.
Undeterred, the researchers looked to those convicted of murder and later acquitted (following an appeal usually due to Innocence Project help and DNA evidence). They used photos of 37 faces of convicts, all from states allowing the death penalty. Twenty were black and 17 were white or Hispanic, 20 sentenced to life and 17 sentenced to death. The researchers had them rated again after cropping and converting to gray-scale. The goal was the same in this second study—to have online participants rate the face as trustworthy versus untrustworthy and then look to see if there was a relationship between facial appearance and ultimate sentencing. You know what happened. The very same thing as had happened before.
If the former defendant (who’d been found guilty and then acquitted on appeal typically due to DNA evidence) had an untrustworthy face—they were more likely to have been sentenced to death.
The researchers are quick to say that this second sample was only from Florida and they comment that if you are in Florida—your face can be a ticket to death by lethal injection or life in prison.
We believe that this is likely not just a Florida thing. Take a look at the graphic illustrating this post. The man in that photo “looks like” a thug and jurors looking at him may make a determination he is more likely to kill again than his fellow defendant who looks so much more trustworthy—and so they sentence him to death.
From a litigation advocacy perspective, this is yet another example of how extra-evidentiary information plays into (in this case) life and death decision-making on the part of jurors. We’ve blogged before about using makeup to cover tattoos to modify the defendant’s “visual identity” and even about adding eyeglasses to change your client’s image (known as the “nerd defense”). This is just another example of how powerful our stereotypes and assumptions can be during deliberations. Facial reconstruction surgery is likely out of reach for most defendants but it would be useful to consider how to best mask the “thug look” some defendants carry with them based on simple genetics and heredity.
Wilson JP, & Rule NO (2015). Facial Trustworthiness Predicts Extreme Criminal-Sentencing Outcomes. Psychological Science, 26 (8), 1325-31 PMID: 26162847
Most of us think we know more than we actually do and sometimes, that sense is taken to an extreme that can be annoying (as well as inaccurate). Two years ago, we wrote about a study on modulating political extremism and mentioned the recommended strategy was similar to one we use to topple self-appointed “experts” in litigation research, and at trial. Now, we have another study that uses the same strategy but significantly shortens the length of time it takes for the speaker to reassess their (lack of) knowledge.
The researchers say the belief that we actually understand the working of ordinary things (like a vacuum cleaner) when we really do not is called “the illusion of explanatory depth”. And they mention the paper we blogged about back in 2014 which recommended asking people to offer a detailed explanation of their understanding—at which point, most come to realize they really do not understand (for example, how the vacuum cleaner works) as much as they thought they did. Even if they cling to their belief that they are an expert anyhow, their ability to persuade others is undermined. It works well to unseat a self-appointed expert but it does take a little time. In truth, the goal of asking for the explanation in pretrial research isn’t to embarrass them, but rather to understand how someone got sidetracked onto a rabbit-trail that could distract an actual juror. We discovered that it also had some salubrious secondary benefits, though…
New research tells us it really is not necessary to have people generate those full explanations that take up time. Instead, asking the “expert” to reflect briefly, but in a very specific way, on the extent of their knowledge is often enough to shake their over-confidence and help them understand they really do not understand how a “vacuum cleaner” works. The researchers conclude that
“reflection on explanatory ability is a rare metacognitive tool in the arsenal to combat our proclivity to over-estimate understanding”.
In other words, the question provides a way to get the know-it-all to stop and assess their actual knowledge accurately and acknowledge their actual lack of understanding. So, here’s how it works. The researchers asked participants in their nine experiments to
“Carefully reflect on your ability to explain to an expert, in a step-by-step, causally-connected manner, with no gaps in your story how the object works”.
And here’s what is truly amazing. It didn’t matter if they asked the participants (across 9 separate studies) to “reflect” for 5 seconds or for 20 seconds—this was a shortcut to accurate self-knowledge assessment. The researchers say that, in their 9 experiments, the speed of the “reflecting” intervention was up to 20x faster for high complexity objects than a full verbal explanation.
The researchers tried other instructions (like “carefully reflect on your understanding of how the object works” or “type out your full explanation as if you were explaining to an expert in a step-by-step, causally-connected manner, with no gaps in your story how the object works”) and determined neither of these worked as well as the directive to “carefully reflect on your ability to explain to an expert in a step by step, casually-connected manner with no gaps in your story as to how the object works” as outlined above.
And, as in our 2014 blog post, the strategy even works to soften extreme political beliefs and attitudes. Something about the reflection task results in participants suddenly “seeing” the complexity of an object (the vacuum cleaner) or the complexity of a political policy—and they are very able to back away from their self-proclaimed expert status. As an added bonus, this effect works best on high complexity (e.g., the vacuum cleaner) as compared to low complexity objects (e.g., a manually operated can opener).
The researchers think this strategy works because it requires a shift from the vague and abstract (e.g., how well do you understand how a vacuum cleaner works) to the specific and concrete (e.g., judge how well you understand how the parts of an object enable it to work). That subtle shift from abstract to concrete results in a “mechanistic” understanding of the desired explanation which makes the difference in the individual’s ability to accurately assess their (lack of) knowledge.
Another reason the strategy works is because the person reflecting almost immediately sees the number of steps it would take to explain how a complex object works and they realize they will only be able to explain a small percentage of the total steps involved in making an object work.
From a litigation advocacy perspective, this is a potentially powerful tool for helping jurors be open to hearing how something or some process works. You can use it directed at yourself for example, while examining a witness.
“You know, Dr. Johnson, I really thought I knew how a vacuum cleaner worked and then I stopped to think about how I would explain how the different parts all work together to an expert in a step-by-step fashion, and I decided to call you as a witness here instead.” (This will allow jurors to check in internally and realize they also do not know how a vacuum cleaner really works.)
Then, continuing with the vacuum cleaner example, your expert witness can say something like, “It’s a lot more complicated than you might think. Do you want me to explain the whole thing in great detail, or are you asking me to talk about how this one widget in dispute works to modulate the level of suction?”
You can then instruct the witness to focus on whatever level of detail serves the cause. Perhaps s/he explains the role of the widget but give us a small summary of how the overall vacuum cleaner works and why the widget in dispute is essential (or not).
It’s a really amazing thing when you see how quickly and non-defensively an “expert” will acknowledge their “gaps in causal knowledge” (as the researchers call it). We have never had a mock juror become angry over being asked to educate the group but they have always sheepishly admitted they are not quite the fount of information they previously thought they were!
Johnson DR, Murphy MP, & Messer RM (2016). Reflecting on explanatory ability: A mechanism for detecting gaps in causal knowledge. Journal of Experimental Psychology. General, 145 (5), 573-88 PMID: 26999047