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Archive for the ‘Case Presentation’ Category

A new issue of The Jury Expert 

Monday, June 29, 2015
posted by Rita Handrich

TJE_logoWe try to post the Table of Contents for new issues of The Jury Expert here when it publishes and there is a new issue up now. Here’s what you’ll see if you visit.

Does Deposition Video Camera Angle Affect Witness Credibility?

by Chris Dominic, Jeffrey Jarman, and Jonathan Lytle–all of Tsongas Consulting. Many of us have had spirited discussions about how the angle of the camera in deposition affects the impression of witness credibility. We all have strong ideas and sound reasons behind those ideas. These authors had the same sort of discussions but actually did research on it so you could benefit from this knowledge as well.

Looks Like Science, Must be True! Graphs and the Halo of Scientific Truth

by Aner Tal from Cornell with responses from visual evidence specialists Jason Barnes and Karyn Taylor. Ever wonder just how much difference there is in how persuasive charts and graphs are in the courtroom? This researcher looked at whether a simple (very simple) graph with no bells and whistles would be more persuasive to triers of fact. You will find the results odd and somewhat unsettling. Jason Barnes and Karyn Taylor respond with their perspective on making visual evidence compelling.

Jury Instructions: Work In Progress

by Steven Perkel and Benjamin Perkel, both of Perkel and Associates. The question of plain language jury instructions has been around for a while but we wanted to bring you the most recent findings and thoughts on making jury instructions easier for jurors to understand and interpret.

“Soft” vs. “Hard” Psychological Science in the Courtroom

The terms “soft science” and “hard science” are commonly applied to different scientific disciplines, and scientists have investigated and theorized about features that apply when placing scientific disciplines on a soft-hard continuum. In the minds of laypeople, however, the difference may lie in the more simple perceptions of different scientific disciplines. The very words themselves, “soft” and “hard”, may hint at different reputations. Soft sciences are fuzzy and less rigid, suggesting lower reliability, validity, and rigor than hard sciences possess.

Favorite Thing: The Presidential Commission for the Study of Bioethical Issues

Here’s another favorite thing and this one is all about research being done (both brain and biological) that touches on ethical issues we need to understand.

Using The Other Side’s Strikes: Regulating The Information Flow To Steer Your Opponent In Voir Dire

by Roy Futterman of DOAR. Jury selection is a strategic activity that requires you to imagine how the other side will react. This author suggests you take that imagination a step further by behaving strategically to get opposing counsel to strike jurors you want them to strike–effectively giving you twice the number of strikes when you are successful. How could you not read this one?!

Loyalty, Longevity and Leadership: A Multigenerational Workforce Update

by Doug Keene and Rita Handrich, both of Keene Trial Consulting. Recently we were asked to conduct research on whether jurors of different generations responded to case themes differently. In preparation for this, we updated the generational research completed in the past few years. This article summarizes what we learned about the “real” (as opposed to anecdotal) differences between generations and how you can use a sensible approach to managing your own multigenerational office.

Top 10 Most Widely Read Jury Expert Articles Since 2011! 

Every year we have been giving you a list of the top ten articles on The Jury Expert’s website for the past year. We thought we would also show you our top ten most highly trafficked articles since we began to publish online. It’s an interesting list with some of what readers say is our best work. Don’t miss it!

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facebook creeperYou’ve likely run across the statistics on Facebook being the cause of many divorces or relationship failures as unhappy individuals reunite with past loves lost. There is also of course, often heartbreak as online loves turn out to be not quite who you thought. Now Facebook is also implicated in prolonging the unhappiness after a relationship breakup with 88% (!) of Facebook users “creeping” ex-partners. Imagine a darkened room, a pint of ice cream, a laptop with a high-speed connection, and you are never far away from seeing what your ex is up to now that you are no longer part of his or her everyday life.

Researchers in Canada asked 107 participants (ranging in age from 18 to 35 years with an average age of 23 years) who reported relationship breakups in the past 12 months to complete questionnaires and participate in a structured face-to-face interview on the relationship between Facebook ‘creeping’ and their ongoing distress following relationship breakup. On average, these participants reported their (now defunct) relationship had lasted 2.29 years (with about half having broken up in the past six months and the other half having broken up 7-12 months prior to the study).

In brief, here is what the researchers found:

The more “creeping” (also referred to as “internet electronic surveillance”) one does, the more emotional upset is reported related to the breakup.

The most commonly distressing factor was the ex-partner’s Facebook profile and 88% of the participants reported “creeping” their ex following a breakup. When the participant had remained Facebook friends with their ex, 100% monitored the behavior of the ex after the breakup.

“A breakup without Facebook, you can’t really see what your ex is doing, but with Facebook you just have to click and you know exactly what they’ve been up to. That’s a little frustrating.”

The second distressing factor was the Facebook “relationship status” feature. Changing the relationship status to “single” after “in a relationship” involved multiple questions from “friends” (for 62% of the participants) which raised distress level.

“In some weird way, it kind of feels like you’re breaking up all over again when the status comes down. It angered me at the time that something as trivial as a Facebook status could make me feel so shitty.”

The third distressing area was content posted on Facebook by the participant’s ex-partner which was then seen in the participant’s newsfeed. Participants seeing new content found themselves ruminating over happy memories and wondering why the relationship had ended. Unexpectedly, those who “unfriended” their ex on Facebook had more emotional distress than those who kept the ex as a Facebook friend. For some, like the participant quoted below, “unfriending” helped manage the emotional distress but that was untrue for the majority of participants.

“I would say pull off the Band-Aid as quickly as possible and block the person if you’re finding it as painful as I did to see their continuing existence in your sphere. You’ll immediately feel better, or at least I did.”

It’s an intriguing study that highlights the differences in breaking up in public as opposed to having a private (non-Facebook) breakup. While it is easier to keep up with family and friends on Facebook—it is also more painful post-breakup since your “relationship status” trumpets your pain to all your Facebook friends. The more “creeping” done, the more emotional distress experienced.

The authors also developed a new scale to measure Facebook distress related to creeping an ex after a breakup. The scale does not appear to be named yet but here are a few items from it:

I over-analyze old messages, wall posts or photographs of me and my ex together.

I can’t help feeling angry about content my ex posts on Facebook.

I feel paranoid that people posting on my ex’s wall are potential romantic interests.

Looking at my ex’s Facebook page is self-destructive.

From a litigation advocacy perspective, it seems important to recognize the power of a relationship breakup disclosed through social media, and the identification young people in particular could have with a party publicly shamed, belittled, discarded, or otherwise rejected. In this case, social media (i.e., Facebook involvement) makes the emotional pain last longer and be more intense and it is likely that shame feeds the flame of that sense of public rejection or perceived failure. Every time a Facebook post is re-mentioned (like, for months on end following a breakup when yet another person comments about it after not checking their timeline in a while) it can be traumatizing. If someone feels that they were wrongfully terminated (or are just embarrassed about it) and they get questions about the change in their LinkedIn status from “District Manager at Acme Industries” to something less clear, it can be very difficult for them to explain. That which was once self-promotion can quickly blow up. It’s a potentially powerful theme for case narrative. And it raises questions about how a company might want to guide the use employees make of social media when it involves references to employment status.

Lukacs, V., & Quan-Haase, A. (2015). Romantic breakups on Facebook: new scales for studying post-breakup behaviors, digital distress, and surveillance Information, Communication & Society, 18 (5), 492-508 DOI: 10.1080/1369118X.2015.1008540

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caitlyn-jennerCaitlyn Jenner has been in the headlines pretty continuously since the publication of her Vanity Fair cover photo. And many of us have heard the voiceover quote from her about the number of years she has been in hiding, protecting secrets, and feeling imprisoned.

“Bruce always had to tell a lie. He was always living that lie. Every day he always had a secret, from morning till night. Caitlyn doesn’t have any secrets. As soon as the Vanity Fair cover comes out, I’m free.”

I thought of Caitlyn Jenner when I saw this new research from the Harvard Business School. This is a research team whose work we’ve written about before. Essentially, the authors say that hiding your true self can leave you feeling morally tainted. If these results are true, hiding transgender status would surely leave you feeling morally tainted. It’s as Shakespeare wrote so long ago, “This above all, to thine own self be true.” [Johns Hopkins has a webpage on transgender identity and the importance of being able to honestly show your true self.]

So today’s researchers conducted 5 separate experiments to assess the impact of behaving inauthentically by having participants recall times they’d acted authentically or inauthentically and how each type of behavior (authentic vs inauthentic) resulted in them feeling. Here are some of their findings:

When participants behaved inauthentically, they felt more impure and less moral than they did when behaving authentically. It did not matter if the inauthentic behavior involved only lying to themselves or lying to others as well. Inauthentic behavior left the participants feeling badly.

Participants who behaved inauthentically reported an increased desire to cleanse themselves. This is a common theme in the disgust research—if you want to wash yourself, then that disgusting thing you did probably left you feeling unclean.

Behaving inauthentically was rated more negatively by participants than was failing an exam. The negative feelings elicited by acting inauthentically resulted in more participants attempting to “cleanse themselves” through what the researchers called “moral compensation” (offering to help the experimenter by completing an unrelated 15 minute survey).

Even when participants chose to write about being inauthentic versus being authentic, their desire for cleanliness following inauthentic behavior remained the same. In other words, even if you consciously choose to be inauthentic, it still leaves you feeling dirty.

Participants only chose “moral compensation” when they did not “cleanse themselves” during the experiment. (In this final experiment, half the participants were asked to clean their hands thoroughly and then rate the cleanser while the other half [the control group] were asked to hold a pen in their hands and examine it carefully and then rate the pen. The pen-holders were more likely to participate in the cleansing moral compensation task than the hand washers [who presumably had already been cleansed]).

The researchers conclude that behaving inauthentically leads to a sense of moral tainting or impurity and that this research is the first to tie together the experience of being inauthentic and wishing for cleanliness.

From a litigation advocacy perspective, this is a powerful example. We have all had experiences of being untrue to ourselves (or inauthentic) and we know how bad that can feel. Using that emotional identification with inauthenticity as part of your case narrative can help jurors empathize with your client’s dilemma. And, circling back to Caitlyn Jenner—in her last interview as Bruce, she commented to Diane Sawyer that part of her reason for publicly sharing her decision was to make a difference.

“What I’m doing is going to do some good,” Jenner said of the very public interview. “And we’re going to change the world.”

At another point in the interview, Jenner made a statement that affirms Shakespeare’s insight so long ago and the conclusions the researchers made in this research:

“I want to do the right thing and be true to myself.”

Obviously, we cannot know from these statements if Caitlyn felt “morally tainted” when she lived as Bruce. What it sounds like though, is that Caitlyn plans to live the rest of her life in a way that allows her to match her insides and her outsides and in so doing, to “change the world”. A noble goal to be sure.

Gino F, Kouchaki M, & Galinsky AD (2015). The Moral Virtue of Authenticity: How Inauthenticity Produces Feelings of Immorality and Impurity. Psychological Science PMID: 25963614

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morals value shiftAccording to a recent Gallup survey report, Americans continue to shift to the left in terms of “key moral issues”. For some, this is a cause for celebration and for others, it may lead to a question of “what has happened to our country?”.

But that’s not all! The same poll trumpets that the majority of those in the US say that moral values are getting worse (not better). Further, most Americans apparently believe the death penalty is “morally okay”. Other behaviors that Gallup says were “once taboo” (i.e., suicide, polygamy, cloning) are now acceptable to some Americans. As many of the Gallup polls point out, Americans are divided on whether moral shifts toward the liberal end of the continuum are a good thing or a bad thing for our society.

We read these polls a lot (perhaps too much) and are used to the somewhat contradictory responses to varying but related questions. But it’s reminiscent of what jurors go through with dueling expert witnesses. We’ve posted a number of times about what our mock jurors have to say about dueling experts. They don’t like them. They prefer what they see as “case-neutral” experts who have no stake in the case outcome.

Recently we had an expert who was called in by the Defendant (to determine environmental impact and direct remediation efforts) after a potentially toxic chemical spill. The expert had impressive academic professionals, had exhaustively evaluated the site, tested the air to ensure citizen safety, and then testified in a straight-forward and objective manner. But he was still paid by the Defense, which raised questions about how he would be seen. Our mock jurors (and ultimately the trial jurors) reacted to him as though he were a treating expert rather than a testifying expert— they imbued him with credibility, objectivity, and a neutral perspective. He was not a “witness for hire” in their eyes. He was an observing expert who made the spill site safe again. Jurors believed and trusted him. They were willing to trust him because he never appeared to be an advocate for the Defendant— he reported his findings in a straightforward manner without any hint of advocacy.

We’ve written a lot about how to apply the research to discredit the opposing expert witness. We’d encourage you to read a number of those posts on dueling experts.

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cognitive reflection testWe just posted on reflective versus non-reflective thinkers and this is the scale with which researchers identified who was reflective (initial intuition tempered by analysis) and who was not reflective (unquestioning reliance on intuition). And this is the three-item scale they used to group participants. Yes. That is not a typo. Three questions. You will likely recognize them when you see them and groan in frustration that this seems to be a math-based IQ test rather than a test of reflective or non-reflective thinking. You likely will not, however, recognize the questions as coming from the Cognitive Reflection Test (CRT).

A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost?  ______ cents

If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets? _____ minutes

In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half the lake? _____ days*

The trick is that these questions often generate an intuitive, impulsive, and (unfortunately) incorrect response. Those who question or double-check their math, or generally rely on reasoning skills in their daily lives (and therefore answer correctly), are classified as reflective thinkers. Those who simply blurt out the intuitive and incorrect answer are classified as non-reflective thinkers. (If, for example, your answers to the above three questions are 10, 100 and 24—you are a non-reflective thinker. And math is likely not your strong suit.) Once the answers are explained, they are easily understandable but the initial impulsive response seems right until you realize (or are shown) that it is wrong.

The author defines cognitive reflection as having “the ability or disposition to resist reporting the response that first comes to mind”. Some believe the CRT offers a quick assessment of overall intelligence but the author says those scoring high and those scoring low on the CRT make different choices. But the question might better be asked “is the difference seen in the choice made, or the process used to arrive at the choice?”.

Men score significantly higher on the CRT than do women and the author says that may reflect men’s greater mathematical interest or ability. Lest you feel shamed by your performance on this test, this article reports that of 3,428 people participating in the research, 33 percent missed all three questions. Most people–83 percent–missed at least one of the questions.Even very educated people made mistakes. Only 48 percent of MIT students sampled were able to answer all the questions correctly.

From a litigation advocacy perspective, this is a quick way to assess the overall tendency to think or blurt and if that is useful in your case—you may want to consider using the CRT to identify one or the other (i.e., the thinker or the blurter). When you are looking for an edge—this sort of quick and dirty assessment of intellectual function (or analytical thinking or cognitive reflection or need for cognition or whatever it measures) may be a good tool to try. It would be worthwhile to determine whether a straightforward query about their problem-solving strategy (such as, “Do you enjoy solving puzzles, or do you find them frustrating?)  Just make sure you really do know who responds better to your case—the thinker or the blurter.

Frederick, S. (2005). Cognitive Reflection and Decision Making Journal of Economic Perspectives, 19 (4), 25-42 DOI: 10.1257/089533005775196732. You can access this article free here: http://cbdr.cmu.edu/seminar/Frederick.pdf.

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*Just so you do not think us unreasonably cruel, the correct answers to the CRT questions are: 5 cents; 5 minutes; and 47 days.

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