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Archive for the ‘Case Presentation’ Category

2016 storytelling1Every once in a while, I read something and think, “I could have written that!” and today it happened again. There is a deceptively simple blog post over at the Scientific American site that is actually a wonderful treatise on how to bring life to something complicated and esoteric so that people will actually understand and even care about what you are saying.

You likely remember Alan Alda from the TV show MASH but may not know that he has quite an interest in science and has spent a great deal of time and effort helping scientists figure out how to tell their stories of discovery in an engaging way. The blog post we are pointing you to today is written by a theater professional who works with the Alan Alda Center for Communicating Science but we think it’s a post easy to apply to high-tech patent or IP cases or other cases about an esoteric concept, a complex process, or medical mysteries that do not involve the living (as is the case with the upcoming blog post). .

The post tells the story of a scientist who’d won a contest for discovering something novel and significant but as he told the story of the discovery, it was dry and filled with jargon. This brief blog post shows how the scientist was helped tell a story that grabbed the emotion of the listener and you can even see before and after videos of the story itself.

Here’s the blog post: How to tell an engaging story of scientific discovery.

And here is the before and after video (with the differences in video quality explained in the blog post itself).

We like to say “every story is about people” and based on the blog post linked to above and the video showing you how the story presentation was changed—it looks like Alan Alda agrees.


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Reducing racial prejudice in just seven minutes 

Wednesday, December 23, 2015
posted by Douglas Keene

loving-kindnessThis is a very different strategy for quickly reducing racial prejudice than past research has examined. This one involves the Buddhist practice called a Loving-kindness meditation (LKM) which involves focusing on a specific individual and repeating phrases like “may you be happy and healthy”.

Researchers wanted to see if practicing a Loving-kindness meditation (LKM) would reduce racial prejudice and they found it did—but only toward the group targeted by the meditation. A loving-kindness meditation “aims to self-regulate an affective state of unconditional kindness toward the self and others”. Techniques to induce this shift vary but typically include repeating “phrases such as “may you be happy and healthy” while visualizing a person (the target) experiencing the outcome of such wishes”. Prior research has shown that LKM increases pro-social attitudes and thoughts and even reduces explicit racial prejudice in longterm LKM practitioners. According to the authors, a 2014 study showed that 6 weeks of LKM training even reduced implicit biases as measured by the IAT (the Implicit Association Test)—which measures biases of which we are unaware. The current work focused on whether something short of a 6 week exposure would also reduce implicit biases.

Here’s what the researchers did:

Sixty-nine undergraduate students were recruited (all White, 50 women, 19 men, with an average age of 23.7 years). The participants were told they were participating in a study “investigating the effect of imagery on categorization”. None of the participants reported they meditated more than 30 minutes a week.

All participants took the Implicit Association Test using the categories “black” and “white” and the categories “good” and “bad”. As always on the IAT, racial bias is “thought to be indicated by faster identification of positive attribute terms when the positive category was paired with the “white” (in-group) category term than when it was paired with the “black” (out-group) one and also by faster identification of negative attribute terms when the negative category was paired with the out-group category term than when it was paired with the in-group one.”

In addition to the IAT, participants completed another measure to rate their specific emotions (such as awe, wonder, or amazement, gratitude, elevation or love) during the course of the experiment. Target images used were photographs matched by gender but all of Black people (photos were taken from the Center of Vital Longevity’s face database) since all the participants in the study were White.

Participants were placed in either a loving-kindness meditation (LKM) or a visualization (Imagery) condition. In each condition, participants listened to about 7 minutes of instructions transmitted via headphones. Prior to beginning the instructions, participants were asked to “close their eyes, relax and take some deep breaths”. Those in the LKM condition were asked to visualize people “who deeply cared for them” standing on either side of them and “sending them love”. Then after about 4 minutes, they were instructed to open their eyes and “redirect the feelings of love towards [the] gender-matched black person shown in a photograph and then wish them health, happiness and wellbeing”. Those in the Imagery condition were instructed to think about the physical characteristics of two people who were acquaintances only and for whom the participant had no strong feelings. Then, they were asked to open their eyes and pay close attention to the physical features of the same gender-matched black person shown in a photograph as we used in the LKM condition. In other words, say the authors, participants received similar instructions but “only those in the LKM condition imagined receiving and sending loving thoughts and feelings”.

And it worked. As the researchers report, “just seven minutes of loving-kindness meditation directed to a member of a racial out-group was sufficient to reduce racial bias towards that out-group”.

You may be thinking “what in the world does this have to do with litigation advocacy?” since no one would ever expect any judge anywhere to allow this sort of technique in the courtroom. We think it has everything to do with litigation advocacy and it is one more study that reinforces the effectiveness of a technique used by one of our clients to great effect. We think of it as a variation of the “best self” strategy, which can be a powerful theme for closing arguments. As regards the LKM research, the message is in part that we all want to have positive thoughts about others, and we are ready to admire those who embody values and principles that represent our best potential as people. There is a great deal of evidence to support jurors being put off by parties who don’t take responsibility, don’t try to mitigate harm, and who blame others unreasonably when things go wrong. Imagine a party taking the stand and saying “I/We thought long and hard about this from all sides. We considered our own interest, and also what we would expect of someone else if they roles were reversed. We have known others who have experienced similar things, and felt we had no choice but to challenge what [opposing party] is trying to do.” While “golden rule” strategies are not permitted, a persuasive witness who is able to exhibit open-minded thoughtfulness is often admired.

While the research we are looking at today is about intervening to block racism, it appears to be relevant for any kind of bias. Slow the tempo, cool the anger, and elevate the discussion to one of principles, not just the issue of the moment.  So you can think of this strategy as a way to level the playing field for any litigation party by calling on jurors to visualize their “best self” and ask themselves what the facts disclose, and whether whatever the source of bias might be (e.g., anti-Semitic, anti-Muslim, anti-corporate, anti-immigrant, anti-ethnic minority, anti-industry, et cetera) should make a difference in their verdict. Jurors are open to being guided toward the realization that the trial may be over this week, but their verdict has ramifications for years to come. Their desire to feel proud of their contribution to a just outcome—not as an impulse but as an expression of their truest values—will live in their hearts forever.

Stell, A., & Farsides, T. (2015). Brief loving-kindness meditation reduces racial bias, mediated by positive other-regarding emotions. Motivation and Emotion DOI: 10.1007/s11031-015-9514-x


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“Oh come on—I’m 26 years old! 

Wednesday, December 16, 2015
posted by Rita Handrich

I am 26Here at KTC our kids are all Millennials (and we happen to be very fond of them), so we’re sensitive to the experience of Millennials being treated like children even though they have, in some cases, been in the workforce for years. Two recent experiences bring the work of the Pew Research Center to mind.

In the first instance, during a recent focus group we asked individual potential mock jurors if they could maintain confidentiality if they found the story particularly interesting (which it was). One young man we had recruited worked in IT support and was clearly bright and articulate. As we questioned him about confidentiality, he blurted out in frustration, “Oh come on! I’m 26 years old” and we both grinned and said, “Oh, well then!” and laughed a bit harder than he probably believed the comment merited.

The next day, I took my car in for warranty work and was waiting in the service area trying to read and blog in what I’d hoped would be a quiet environment. An older woman was making phone calls to multiple volunteers for a community meal of some sort where they would require those bringing food to give the food “an interesting holiday themed name” and repeated the same lines on every call at several decibels louder than she needed to speak. She was behind me and I looked up in frustration several times only to make eye contact and share mutual eye rolls with multiple 20-somethings also obviously trying to get some work done. Finally, one of the young people sharing my tall table with power outlets went over to her and politely (and quietly) asked her to make her calls outdoors as some of us were trying to get work done. The three of us seated at the table all turned and looked at her so she knew it was not just one person making the request.

It is one thing to be in your 50s (or older) and have to ask someone older than you to keep it down in a public shared space. It is another to be in your 20s or early 30s and do the same thing and I admired the courage and assertion of that young woman who spoke up for all of us making meaningful but silent eye contact. Then I thought back to the young man frustrated by our asking him if he could maintain confidentiality (which in truth is something we ask everyone—not just Millennials) when he’d been working for a number of years and had “signed multiple non-disclosure agreements”. He probably was insulted by our laughter and for that, I apologize as well. It just struck both of us as so funny since it was not at all why we were inquiring. Discretion has little to do with chronological age.

According to Pew Research, Millennials are now ages 18 to 34 years but only about 40% of them identify with the label “Millennial generation” and 33% (mostly the older Millennials) consider themselves part of Generation X. And despite the constant media sniping toward Millennials, the Millennials themselves are the most likely generation to identify with negative labels as descriptors for their generation (while Boomers and Silents see themselves most positively). On the other hand, young adults think there is strong evidence of climate change and that we should prioritize development of alternative sources of energy. Oddly, given the Millennial support of climate change and alternative energy sources, there is no difference in how people across different generations describe themselves as environmentally conscious.

It’s a reminder to us that how we see ourselves and how others see us are not necessarily the same. Whether you are 26 or 66—there are more similarities than differences across generations. Some of us are able to maintain confidences and others are not. Some of us are tolerant and others are not (although they may describe themselves as tolerant). Some of us are organized and capable and others are disorganized and yet can still get things done. We find Pew’s work on describing the generations useful as it tells us (over and over again) how similar we all are—regardless of age. Remember that when you are approaching voir dire and jury selection. Know how we are different but also remember how we are the same.

Pew Research Center. 2015. Most Millennials Resist the ‘Millennial’ Label—Generations in a Mirror: How They See Themselves. September 3.


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Happy-Seniors_1000x502How about trying this: Make it interesting. Despite stereotypes that older adults may not have the intellectual or memory capabilities to serve as good jurors in complex cases, reaching the older adult juror appears to rely on the same principle we apply to jurors in general: engage them. In fact, some new research says that when they find it interesting—they remember more than younger people do even a week later. In other words, there is really no reason to assume older jurors won’t keep up. If they are curious and you present your case in an interesting way—you will find them invested and engaged as jurors.

Here’s a brief description of the research:

Researchers used 24 older adults (13 female/11 male with an average age of 72.9 years) and 24 younger adults (16 females/8 males with an average age of 20.3 years). The participants were recruited from the Los Angeles area—both in the community and through UCLA. They all had good self-reported health ratings and the ability to repeat a series of numbers from memory (known to psychologists as the Digit Span test) was not significantly different between the younger and older participants.

They were asked to respond to a series of “60 obscure trivia questions”. First they answered the questions and rated how confident they were in their response. Immediately thereafter, they were shown the correct answer for 6 seconds and then rated how interesting they thought it was now that they knew the correct answer. Finally, they were asked how likely they thought it was that they would remember the answer to the question.

After this, the participants were involved in an unrelated task for an hour and then given an unexpected “quiz” on half of the “obscure trivia questions”. After a week, they were contacted by phone and were tested again on the other half of the questions.

What the researchers found was unexpected (at least unexpected if you think the memory of older adults is faulty).

Whether you are young or old, if you find material interesting, your memory for the material is enhanced. (There was no age-related difference in performance on memory for the trivia questions.)

Younger adults scored a little better on the hour delay than they did on the week delay when it came to recalling the answers to the trivia questions. However, for older adults, the effect was reversed. Older adults remembered more on the week after telephone follow-up than they did in the initial hour delay task. (The researchers think this may say something about the importance of being interested in a topic for older adults to retain the information a week later.)

While these were healthy and non-memory-impaired older adults, there was no sign of memory gap between younger and older participants. And in truth, our experience tells us that most older adults with health issues that might impact their ability to see/hear, their energy, attention, fatigue, pain, et cetera, are not shy about discussing them in voir dire if asked.

What that means for litigation advocacy is that memory and recall is likely not a function of the individual juror but the quality (engaging or not) of the case presentation in court. You can not only rely on older jurors to engage and invest (and thus remember), you can rely on them as much (and perhaps more) than you can rely on younger jurors. We have often seen this in our pretrial research. We look for curiosity and involvement in the world today. We’ve had long-retired bankers who were able to explain banking practices to younger jurors who did not believe attorney presentations of fact. We’ve had long-retired teachers and college professors help to organize how a presentation unfolds for maximum understanding. We’ve had a retired African-American male defuse racial tension during mock deliberations with grace and good humor.

Whether a venire member will be an attentive juror isn’t about age, it’s about whether they find the presentation interesting and engaging.

McGillivray, S., Murayama, K., & Castel, A. (2015). Thirst for Knowledge: The Effects of Curiosity and Interest on Memory in Younger and Older Adults. Psychology and Aging DOI: 10.1037/a0039801


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beyond distrustWe’ve been tracking trust in government for about 15 years. While that isn’t as long as Pew Research has been doing it, we’ve been struck by the chronically low scores we see when our mock jurors respond to a question about trust in government. As the graphic illustrating this posts demonstrates—our mock jurors seem to reflect changing views of the federal government across the country.

This recent Pew report (based on more than 6,000 interviews conducted between 8/27/2015 and 10/4/2015) is well worth your time to read—you likely will be surprised at how deep the distrust goes. As in the graphic to the left, when 55% of Americans surveyed think “ordinary Americans would do better job solving problems” than our elected officials will—there is clearly a problem.

However, as Pew points out, there is not a blanket sense of dissatisfaction and distrust evident—there are instead areas where the American people are satisfied and are trusting the federal government. Americans tend to divide along political lines when it comes to how large a role government should play in our lives. But there is bipartisan support that government should play a major role in “terrorism, natural disasters, food and medicine safety, and roads and infrastructure”. Most of the areas where we see partisan differences about the role of the government come when we examine the “social safety net” (e.g., helping people get out of poverty, ensuring access to health care, ensuring basic income for those 65 and older, protecting the environment, and ensuring access to high quality education).

We always appreciate Pew’s work on social issues and their ability to sample large random groups of American citizens. We see their work as being on a macro scale and ours as on a micro scale. They look at attitudes across the country and we look at attitudes in specific venires with small quasi-randomly selected groups of mock jurors. Many times, the mock jurors we see do not reflect the macro views of the country as reflected in Pew’s surveys. Distrust in the federal government though is pervasive among our mock jurors.

We follow Pew Research fairly closely to keep an eye on how attitudes, values and beliefs are changing across the country and to see if that mirrors our own (smaller scale) observations. We don’t simply measure and observe like Pew does though. We measure but we also have been watching how our pretrial mock jurors respond for long enough that we know which responses we find most interesting (and sometimes most dangerous) for our case. We use that information to help with voir dire and jury selection when applicable and to help structure a case story that plugs the narrative holes a juror could leap through with both feet.

We read and rely on Pew and other, competing organizations for current information on how things are changing across the country. We would encourage you to start watching them more closely as well.

Pew Research Center, November 23, 2015. Beyond Distrust: How Americans View Their Government.


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