Archive for the ‘Case Presentation’ Category
Earlier this week we wrote a post about how to invoke morality as a persuasive strategy with your jurors. Now Gallup has helped us by identifying the moral values most Americans agree on and the five about which they most disagree.
Gallup measures views on moral issues each year (since 2001) as part of their tracking of attitude shifts on social issues. They assign respondents to one of five religious groups (e.g., No religion, Jewish, Catholic, Protestant, Mormon) and then measure their attitudes on various social issues to determine what they see as moral and not moral. True, it is not a complete religious typology, but it is an interesting start.
They vary a bit from their typical single (annual) survey presentations by combining all their data from 2001 through 2016: “Results for this Gallup poll are based on combined telephone interviews in Gallup’s 2001 through 2016 annual Values and Beliefs poll, conducted each May with random samples of U.S. adults, aged 18 and older, living in all 50 U.S. states and the District of Columbia”. This gives them a total sample size of 16,754 Americans opining on moral issues.
Here are the moral issues which most religious groups in the US generally agree are either “morally acceptable” or “not morally acceptable”:
Divorce, death penalty, wearing clothing made of animal fur, medical testing on animals—are all viewed as morally acceptable with more than 50% of respondents agreeing.
On the other hand, suicide, cloning humans, polygamy, and extramarital affairs are seen as not morally acceptable (again, as measured by less than 50% of Americans surveyed agreeing they were morally acceptable behaviors).
And here are the moral issues which religious groups in the US generally disagree on (that is, some see them as acceptable and but the majority do not):
Abortion, doctor-assisted suicide, cloning animals, gay-lesbian relations, having a baby outside marriage.
We’d consider these five to be “hot button issues” which may make jurors close their minds to the facts of your case rather than considering the circumstances involved. Intriguingly, one of the religious groups measured (the Mormons) was distinctly different when it came to their views on premarital sex, stem-cell research, and gambling.
Mormons are more likely than other religious groups to view stem cell research negatively by a slight margin (54%). They see premarital sex as clearly morally unacceptable (71%) and gambling is viewed askance as well (with 63% saying gambling is morally unacceptable).
While it is important to stay abreast of research pointing toward new litigation advocacy strategies like our post on “making it moral”, it is also important to keep up with changing attitudes toward social issues and how religious beliefs and affiliations may result in differing attitudes from the norm. Know your venue, know your jurors, and keep up to date as societal attitudes shift and sway.
John Oliver recently took on mass media coverage of scientific findings on his HBO show, Last Week Tonight. The result is a searing video mocking the distortions and misinterpretations (and even flat-out lies) about research findings as presented in mass media. Since his episode aired (a link to the video is at the end of this post) another one came out. You perhaps read about how taking acetaminophen (aka Tylenol) will make you less likely to feel empathy for the pain of others. The article (full article here) makes note that this is an initial research effort and more work obviously needs to be done but the headlines were sensational and they were everywhere:
Medical News Today: Does acetaminophen reduce empathy?
Washington Post: This popular painkiller also kills kindness
Before it’s News: Tylenol PROVEN to KILL emotions, ERASE empathy!
There were many, many more headlines along these lines—135,000 according to a quick Google search. And then, slowly, science bloggers emerged with posts saying the media translation was, in too many cases, just plain wrong.
Neurocritic: Acetaminophen probably isn’t an “empathy killer”
One of the problems was of, course, that this is a single study. Second, the sample was undergraduate students and only 200 of them at that (so, a small sample). Third, the effect was fairly small and if true, would probably not be noticeable. And that doesn’t even include the statistics behind the work. Neurocritic goes into extensive detail on why he doesn’t think the statistical tables are reported accurately. Even readers of the Washington Post version were appalled at how the study was described with hyperbole and offer multiple common sense reasons they would not take this study seriously. “I call horse dooky” says one reader, and others use a few more words but communicate essentially the same message. Gizmodo weighs in on the controversy by balancing a flashy headline and making sure cautions are pointed out (albeit in a single paragraph at the tail end of the article).
From a litigation advocacy perspective, one way to apply this cautionary lesson is to think about it in terms of your expert witness. A discredited expert can torpedo your case. So how do you ensure you know about potential landmines in your experts’ testimony?
It is critically important that someone read (and understand) the original source document that is being relied on to support the testimony. That seems pretty obvious but it’s easy to overlook all the original source documentation when skimming summaries for salient details.
Make sure your expert knows what is published but also knows how to explain it to jurors in a way they can understand.
Make sure your expert witness includes supporting documentation for any opinion the opposing expert may present as a rebuttal.
This can easily be introduced on direct examination with a question like, “Okay. Now what would someone who disagreed with your opinion have to say?” and after the witness has responded, follow-up with “And how would you respond to that?”
There are other suggestions for expert witnesses and if you are interested in those, please read our prior posts on expert witnesses. Now, in the event you missed it, here’s John Oliver mocking mass media accounts of research findings. While he doesn’t say it here, we believe he would echo our call to “read the primary source”.
Mischkowski D, Crocker J, & Way BM (2016). From painkiller to empathy killer: acetaminophen (paracetamol) reduces empathy for pain. Social Cognitive and Affective Neuroscience PMID: 27217114
We’ve written a lot about other kinds of self-appointed experts on your jury (and how to dethrone them) but today’s work is a reflection of another aspect of perceived expert status.
When you think you already know a lot about something, you can become closed-minded. You finish the testimony before the witness does. A closed mind is a problem everywhere, but in a jury room it is dangerous.
We’ve seen this a lot in pretrial research (like this post about a retired teacher named ‘Victoria’) but today’s research tells us that when you see yourself as a relative expert on an issue—you are less likely to be open to other information and/or opinions.
It’s an assumption that is somewhat counter-intuitive since “real experts” need to be open to new information in order to remain “experts” as new knowledge is identified. Yet, these “self-appointed” experts, became quite dogmatic across all six experiments the researchers conducted. The researchers label this tendency the “earned dogmatism effect”—likely a close relative of the Dunning -Kruger effect.
A relatively easy example is when someone (for example, a doctor or a nurse in a personal injury case) is required to set aside their professional knowledge and rely solely on the testimony offered in trial. Their training and experience is not evidence, so if they believe something to be true that is inconsistent with the evidence, they are to rule out their experience, not the evidence.
Of course, humans rarely can do that. Typically, such actual ‘experts’ are stricken from the jury. The greater problem are informal ‘experts’, who think that because they can fix cars they know why a jet engine failed, or because they are married to a bookkeeper they understand the nuances of complex tax fraud. These informal experts are often much more difficult to identify, especially in courts where attorney voir dire is limited or prohibited.
From a litigation advocacy perspective, you want jurors to be listening to new information you are presenting and we’d encourage you to review our earlier posts on how to maximize the chances of that happening and how to teach jurors to disrupt this self-appointed expert during deliberations. Self-appointed experts can range from retired schoolteachers like Victoria to shade tree mechanics and everything in between—you often don’t know they are there until they make themselves known verbally.
Ottati, V., Price, E., Wilson, C., & Sumaktoyo, N. (2015). When self-perceptions of expertise increase closed-minded cognition: The earned dogmatism effect. Journal of Experimental Social Psychology, 61, 131-138 DOI: 10.1016/j.jesp.2015.08.003
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
We often do these combination posts when we do not want to devote an entire post to a single article but think the information is worth sharing (or simply too odd not to share). So read on and be a scintillating (or perhaps simply odd) conversationalist.
Smartphone alerts increase both inattention and hyperactivity
This is one of those titles that makes us think, “They had to do research to figure that one out?” Well, yes. Perhaps they weren’t sure about it, or perhaps they didn’t have a lock on tenure quite yet. You can read a summary over at ScienceDaily but the gist of it is that students were asked to put their phones on either silent, vibrate or ring for two weeks and to also report their symptoms of inattention and hyperactivity. As you may have guessed (hey, you too could have tenure!) those who had their phones on vibrate or ring (as opposed to silent) had more symptoms of inattention and hyperactivity. We all know what it feels like to be waiting for the phone to ring. Well, most of us anyhow.
On nasal diversity, or, Why your nose is shaped like that
You may have always thought you inherited your nose shape from your parents but that is very short-sighted thinking on your part. And while you also may have thought there was likely a gene that chooses the shape of your nose—new research shows us that as many as four genes interact to determine the ultimate shape (what these researchers describe as the “overall width and pointiness”) of your nose. There is a brief writeup on this new study looking closely at more than 6,000 noses over at NatureWorld News. If this seems like useless information, you have been reading carefully. Extra credit for anyone who can report a way to work this information into a social conversation without offending anyone!
Talk about climate change so people will listen
We’ve written about climate change before but here’s another strategy to consider. Instead of appealing to the individual—appeal to the collective (or ‘royal’) “we”. A new study in the journal Climatic Change tells us that people are willing “to donate up to 50% more cash to the cause when thinking about the problem in collective terms”. For comparison, thinking about climate change from an individual perspective produced “little to no change in behavior”. And, for reasons the researchers cannot explain, the effect seems to persist.
This actually has relevance for litigators, since it involves motivating people to action. The ‘golden rule’ bar on argument obliges attorneys not to make it relate to the lives of jurors personally, but this research suggests that you will be more successful if you argue on a broader basis (the benefit of society, et cetera) anyway. If you cannot access the journal article itself, you can read an accurate translation over at ScienceDaily.
Sexist behavior: Can neuroscience tell us why it happens?
Christian Jarret (known to us from his long-time reign over at BPS Research Digest) is a consistently clear and accurate translator of even dense and confusing material. His recent translation of the article titled Amygdala and cingulate structure is associated with stereotype on sex-role is a good example of his ability to take incomprehensible research and make it understandable and even interesting. [Yes, we knew you were waiting on tenterhooks for this one.]
The original article is in Scientific Reports and currently is open-access but we think you’ll save a lot of time and frustration by reading Christian’s summary over at New York Magazine’s Science of Us blog! Basically he concludes that no—neuroscience isn’t able to explain sexism since there is no specific brain anatomy that points to sexist beliefs. But those who express sexist attitudes appear to be psychologically vulnerable individuals who are both fearful and competitive. [Score: Neuroscience 0, Psychology 1.]
Obradovich, N., & Guenther, S. (2016). Collective responsibility amplifies mitigation behaviors. Climatic Change DOI: 10.1007/s10584-016-1670-9