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- Being a good bragger (but stopping short of narcissism)
- You know about story-telling, but do you know to wear red?
- Simple Jury Persuasion: The ‘Scott Peterson Effect’—Displayed remorse and conviction
- Your brain is a liar: It will find what it wants before it even starts looking
- Contempt for Gen Y: It’s everywhere—including law firms!
- Simple rules, beer pong, hysterical laughter & jury questionnaires
- Can you assess juror morality by counting tattoos?
- Biased hearts, biased cameras and biased verdicts
- Simple Jury Persuasion: “How likely are you to…”
- How a picture can be worth less than a hundred words
Archive for the ‘Case Presentation’ Category
You know about story-telling, but do you know to wear red?
By now we all know to tell jurors a story. Articles like this one from Neuromarketing Blog are really not news to us. Tell a story and your sales pitch (or your argument) is more persuasive. Ho-hum. Old news. But here’s some news you may not know.
Wear red.
Why? When? And isn’t that too bright for the courtroom? So many questions.
Here’s what the research says. If you are a woman, and have a jury of mostly men that don’t seem to be buying your case narrative—you might want to wear red to court. Male jurors tend to like you better. They will think you are more attractive. But (get this) they won’t have any idea why! It’s like a secret weapon. And given that it’s usually tougher to be a female litigator (see here and here) you deserve this persuasive edge.
Obviously, it doesn’t hurt to have a good case theme and good facts. But for an extra persuasive oomph—go for red!
Your brain is a liar: It will find what it wants before it even starts looking
Brains are pretty amazing. And the research on how our brains affect us comes out so fast it’s hard to keep up with–so we’re simply giving you a post with a hodge-podge of research findings. Prepare to be amazed (or perhaps amused).
Farnam Street blog reminds us that we tend to put more stock in things we already believe than in things that disconfirm/disprove our pre-existing beliefs. When I was in graduate school it constituted the snarky observation that we tend to “draw the curve before we plot the data”. We know what we are looking for, and it leads us to find it (more often than it is actually there). That might also explain why we “sharply and persistently” disagree with scientific experts on complex issues from climate change to disposing of nuclear waste. We think we know better. And who can we trust more than our own selves?
Well, here’s the bad news. We shouldn’t really trust ourselves. Our brains are inveterate liars. They trick us and make us believe things are true that are simply likely not true. (What a wonderful excuse—“It wasn’t me that lied, it was my brain…”)
- Ever been in a group that results in you experiencing a lot of pain and discomfort? Like a running group or a fitness boot camp? The more pain and discomfort or willpower it takes to endure a group experience—the more likely we are to say we really like that group. The worse it is, the more we say we like it! We have to have some way to explain why we would do that to ourselves. Perhaps this explains the bonding often seen among jurors on lengthy and difficult trials.
- Even when we sort of know someone is being insincere when they flatter us, we like it so much that we tend to do more of what they want then we would if not insincerely flattered. Hmmm. How about this? “This jury is one of the brightest groups I have ever seen—I’m sure you won’t be misled by vapid rhetoric—you want the real facts.”
- Ever said “time flew by” and therefore assumed you must have been having fun? Faulty logic for sure but also your brain lying yet again. The researchers in this study lied to participants about how much time had passed in their completion of a dry and boring task and the participants thought they must have enjoyed it since they thought the time had flown. “Gee. We thought that testimony on accounting rules would take only two hours but can you believe this? He talked for six hours!” (Maybe that one wouldn’t work so well….)
- We believe we know that cell phone towers affect us negatively with “rashes, headaches, nausea and disrupted sleep”. We even have symptom remission when we travel away from the tower. Oddly enough, the cell phone tower in this particular lawsuit was turned off and could not possibly have been causing the reactions experienced by a community of people with simultaneously lying brains.
- Our brains lie to us in ways that make us feel horribly self-conscious; enraged and aggressive; cognitively lazy; spiteful in the form of shadenfreude; and make us afraid of rampant mind-control turning us into zombies.
The point of all this is that our brains process things idiosyncratically. What I see/hear is perhaps not what you see and hear. You want to be sure that your case narrative communicates the same things to all (or at least most) of your jurors. Even though we see what we believe, we are also aware that we make mistakes. Join the jurors in their initial misimpression, and guide them to clarity and accurate understanding. Don’t provoke jurors to disagree with you. Get your brains all on the same page.
Biased hearts, biased cameras and biased verdicts
A recent Gallup poll found that Americans are twice as prejudiced against Muslims as we are against any other religious group. This poll was conducted between October 31st and November 13, 2009 (with the Fort Hood shootings by a US-born Muslim military doctor occurring on November 5, 2009). However, the findings are not that far afield from negative attitudes toward Muslims found since the September 11, 2001 terrorist attacks. ‘We’ don’t know many actual facts about the Muslim religion—but we don’t like or trust ‘them’.
Other recent reports include the finding that we are prejudiced toward migrants, in part, because they are awkward for us to think about. That is, thinking about someone who was born in one country and lives in another country now is tiring for us (and presumably we don’t like that).
Asian consumers reportedly thought their face-recognition cameras were faulty until they realized the camera thought they had their eyes closed because the cameras had apparently only been tested on white people. Similarly, surveillance cameras could not track the face of a black man but could track a white woman. Manufacturers say they are “looking into this”.
Racial bias emerges in many places you don’t expect it. And some where you do expect it. We’ve blogged about race and racism a lot: here and here and here. And a new study reports that racial bias also has relationship to how much help we think victims need.
Researchers at Kansas State University examined attitudes toward victims of Hurricane Katrina one year after the hurricane. They looked at measures of conservatism, empathy and racism. What they found is disturbing but not particularly shocking. In the study, the racial biases of participants led them to underestimate the help people need. In other words, the more racist the participant was, the less help they thought the victim deserved.
This has immediate applicability for litigators. When your client has been wronged, racist attitudes on the jury affect the verdict. We’ve seen this first-hand and we recommend this strategy among others. The bottom line is this: do not assume race doesn’t matter in your case. Race always matters. The question is how and in what direction. Don’t go to trial without knowing.
Lighter Skin, More Like Me
Matthew Harrison has an article on Colorism in the January issue of The Jury Expert. He discusses the role of colorism (or “skin color bias”) in the workplace and then three trial consultants discuss his work in the context of the courtroom. There’s a lot of good information for litigators in the trial consultant responses and we recommend you go take a look if you are interested in learning more about the relationship between skin color and bias (in the workplace or in the courtroom).
It’s a timely piece. As the country becomes increasingly polarized, researchers keep churning out work on our biases and how they result in us modifying how we see others. For example, the Atlantic reports on a study showing that our own partisanship determines how we perceive skin color. The more we believe the person shares our own values and political perspective, the lighter skinned we believe them to be. If we do not believe they share our perspective and values, we see them as darker skinned. (This was measured by asking participants to choose the photo they thought best depicted Barack Obama—a darker skinned photo or a lighter skinned photo.)
Miller-McCune website also discusses this study and wonders if we are likely to like people less if we see darkened images of them. They cite the infamous photo published by Time Magazine of a skin-darkened O.J. Simpson during his 1994 trial. The racially ambiguous, according to Miller-McCune, are harder to categorize than the clearly white (for example, John McCain) or clearly black (for example, Michael Steele). The very ambiguity may require more cognitive effort on our part to process and we know that ambiguity can be disorienting and confusing.
We’ve said it before. Race and racism is becoming more nuanced. Your dark-skinned client/witness/party/self may be seen more negatively than your light-skinned client/witness/party/self and you need to prepare for that before entering the courtroom.
In the face of the unexpected: Be cool
A few years ago, this post might have been illustrated with a photo of John Travolta. But time passes. Now, the essence of unflappable coolness is George Clooney. Trust me on this one.
Recently, George (I call him George) was promoting his film “The Men Who Stare at Goats” at the Venice Film Festival. Reporters were asking questions. George was answering questions. All very straightforward and predictable. No surprises. Until suddenly a ‘reporter’ stood up to ask a question and instead took off his clothes and asked if he could have “just one kiss” from George Clooney.
Instead of being embarrassed, tongue-tied, or otherwise mortified, George is the essence of cool. Watch the video. He listens to the man’s breathless advances, tells the man (as he disrobes) that he has a “nice tie and it’s just long enough!”, ad libs about Peter Sellers, cracks a joke about how embarrassing it is when you take a big chance and it just doesn’t work out—and, at that point, security hauls the man-fan away.
And my point is? My main point is that George Clooney is extremely cool. And my ancillary point is that communication is sometimes required to be off-the-cuff. You cannot plan for the unexpected. Especially when you are in the courtroom. The unexpected can simply burst forth. And at moments like that, the person behind the role becomes visible.
A man named Grafton Hull who happens to be a professor of Social Work wrote a brief article on the importance of what you do when the unexpected bursts forth back in 2003. He could have been picturing George Clooney at that press conference some years in the future. What did Dr. Hull say about communication in the face of the unexpected?
“Be well prepared, never look flustered, keep your cool.”
It’s great advice.
Deliberations & the role of the presiding juror
You work hard to prepare and present your case so that your client has the best representation possible. Don’t forget to plan for a really important task: teaching the jury how to do their job effectively. Ineffective juries end up not reaching a verdict, not considering the evidence carefully, or simply not paying attention. After all the effort you have put into planning, preparing and presenting your case, don’t leave the effectiveness of your jury to chance.
Ten years ago, Arce, Farina, Novo & Seijo (1999) examined how juries fail to reach a verdict. Their work is still useful today for litigators seeking to avoid the hung jury. Here are some lessons from their research on how to help juries deliberate effectively:
- Teach the jury about the jury charge and the questions they will be asked to consider in the jury room. Walk them through the questions and tell them the answers you would like and the evidence that you think supports those answers.
- Hung juries have poor deliberations. They do not focus on evidence-verdict relationships and they do not attempt to integrate the evidence as they deliberate.
- Teach the entire jury about the role of the presiding juror. Knowing the role played by that juror will help them choose well. The foreperson needs to manage deliberations so that evidence is appraised and destructive arguments avoided. All the jurors, however, can work together to ensure deliberations are respectful and civil.
- Hung juries tend to have presiding jurors who do not know how to manage arguments or guide deliberations through the jury charge. The role of the presiding juror is truly to stimulate thought and debate; not allow the group to settle too early on a particular decision or outcome; and to encourage a focus on facts rather than opinions.
Taking the time to think through instructing the jury on how to deliberate effectively can result in a positive experience for you and for the jurors. Keep in mind that the payoff for jurors is the feeling that they have solved a problem, or made the world a better place. A hung jury or an acrimonious deliberation is as unsatisfying for them as it is for you. You’ve done your job thoroughly when you’ve presented the best case you can for your client and you’ve taught the jury how to do their job as well.
We act as we believe others expect us to act
PsyBlog recently posted about a classic study where researchers examined how attractiveness was related to stereotypes about sociability, humorousness and intelligence. What they found, of course, is that when we believe others think we are attractive—we then appear as more scintillating, sociable and amusing. Their conclusion is that this offers an explanation of why we are different across various social situations.
So imagine you are concerned about how the jury will react to you. You’ve had limited trial experience and you expect that they will figure it out and as you think about it you become increasingly anxious. What the research just described would say about this is that your negative thinking is going to shoot you in the veritable foot.
Instead, visualize how you wish you would present yourself in voir dire. Then do it. Smile. Make eye contact. ‘Like’ the jurors. Appear confident. Show self-effacing humor. Set the tone early on for the jury to see you as likeable, attractive, intelligent and reasonable. As the trial goes on, you are more scintillating and intelligent and entertaining than usual. Which makes you more credible and believable. Hmmm.
Maybe you have a big deposition coming up. A ‘friend’ sent you a videotaped deposition of “how we do it in Texas” and after you stop laughing hysterically you begin to wonder if this is really how you are supposed to depose someone in the Lone Star State. It certainly isn’t what you intended to do. Then you realize that your friend sent it to you to break your anxiety. A friend indeed!
So breathe. Think about your goal. Be grateful that your deposition is not likely to involve fisticuffs with a senior citizen. Be polite and follow your plan.
We are different in various situations. But fortunately we have choices about how we’ll approach different people and situations. Challenge your intrusive anxious thoughts about performance. Play the role of a confident, likable, intelligent attorney a few times and it becomes second nature. It’s who you are. It’s what you do.
We don’t really know why we think what we think
PsyBlog writes that when we tell a good story about why we think what we do about others we are usually wrong. That is, when we try to describe the factors that are important to us in coming to a conclusion/decision about whether we like someone we usually identify factors that don’t actually matter at all.
In other words, when I think about why I judge a person about something—I am usually wrong.
So when mock jurors say “character doesn’t matter, it’s the facts that matter”—this is why they are wrong. They like to imagine that they are objective, and to them this means a dry assessment of the evidence.
But it is more than that, and their effort at constructing a ‘just world’ is a powerful element. It is frankly pointless to try to stop jurors from doing it—you can’t fight human nature.
The best testimony is a hybrid of important facts and a window into the character of the witness and the parties. Character matters, and if your client is woefully lacking, your challenge is to create a context for their inadequacies that mitigates the impact.
He isn’t insensitive—he is a geek.
She isn’t cruel—she is protective.
Sequence your case narrative so that good character shines through and jurors see that even though your client may have made some bad decisions, s/he is likeable and a well-intended person.
What I should have said was nothing: The disaster of a false confession
Vaughan Bell at Mind Hacks blog (one of our favorites) discusses an article in the APS Observer on the psychology and power of false confessions. The article itself is a good read that points out the many reasons for false confessions. It then shifts to a discussion of how lay persons and experts modify their own opinions after learning about confessions. In brief (and you really do want to read the full article) they found that lay people (read ‘jurors’) and experts (read ‘expert witnesses’, ‘forensic experts’) change their evaluation of the non-confession evidence (the other evidence presented) and see it as stronger evidence against the accused.
Situationist Blog also comments on this research quoting the primary author saying ““the most common reaction I get from a lay audience is, ‘Well, I would never do that. I would never confess to something I didn’t do.’ And people apply that logic in the jury room. It’s just that basic belief that false confessions don’t occur.”
This is potentially deadly. We ‘see’ evidence differently if we know someone has confessed. The Innocence Project has hard data on the relationship of false confession to wrongful conviction. But what do you say to jurors?
- If you can’t keep the confession out via a motion in limine, you have an uphill climb.
- You can show them evidence of false confessions and how they are coerced.
- You can teach them about the powerfully biasing effects of a false confession.
- And you can tell them about the Innocence Project’s numbers on how often we wrongfully convict based on false convictions. Ask them to look at the evidence. If they didn’t have that confession, would they convict?
Generation Y (aka the Millennials): Just the facts
Members of Generation Y (as with other generations before them) have been derided and maligned. People love to generalize about ‘ the younger generation’, and do it all the time. And it’s been going on for centuries.
“The children now love luxury; they have bad manners, contempt for authority; they allow disrespect for elders and love chatter in place of exercise. Children now are tyrants, not the servants of their households. They no longer rise when elders enter the room. They contradict their parents, chatter before company, gobble up dainties at the table, cross their legs, and tyrannize their teachers.” Anonymous (widely mis-attributed to Socrates)
And one of my personal favorites from Clarence Darrow:
“The first half of our lives is ruined by our parents and the second half by our children.”
Those older demean those younger (and the youth are not particularly admiring of their elders). Whether we do this in our personal lives or not, is naturally, a personal choice (and just as naturally, has consequences for our relationships). But in the courtroom and in voir dire, it is wiser to make choices based on what we know to be true of human nature rather than what we assume or choose to believe.
Here is (courtesy of the Pew Research Center) what we know now about Generation Y—the newest members of the jury panel.
- The oldest members are approaching 30 (the youngest are approaching adolescence).
- They are more inclined to trust institutions than either Gen X or Baby Boomers when they were coming of age.
- They are the most ethnically and racially diverse cohort of youth in the nation’s history: 18.5% are Hispanic; 14.2% are Black; 4.3% are Asian; 3.2% are of mixed race; and 59.8% are White.
- They are the least religiously observant/practicing cohort since religious behavior was added to survey research.
- They are the most politically progressive of any age group in modern history.
- They see social networking as normal and everyday activities and internet use as routine (e.g., tweeting, texting, Facebook, YouTube and Wikipedia).
All of these factoids have relevance for voir dire, case presentation and witness preparation. Millennials are often frightening for litigators because they are so ‘unknown’. Yet, many of them are old enough, sufficiently well educated, and assertive enough to be forces in the deliberation room. It is unwise to assume “young people are bad for plaintiffs” just as it is unwise to assume “women are good for plaintiffs” or “women are tough on crime”. It simply all depends.
We will watch as more substantive research emerges on Gen Y/Millennials. Undoubtedly we will write a paper on attitudes and values and litigation advocacy with Gen Y as we did with Generation X (http://www.keenetrial.com/articles/htm). In the meantime, watch yourself. Bias is often a subtle and insidious thing. Seeing this generation as different from those that have gone before (as indeed all generations have been) can help you avoid pigeonholing assumptions.
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