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Archive for the ‘Case Presentation’ Category

The American Bar Association is seeking nominations until August 8, 2014 to help it decide on the Top 100 law blogs (“Blawgs”). We have been in the ABA Top 100 for the past 4 years and would like to make it 5! If you like this blog, please nominate us (it’s fast and free) here. THANKS! Doug and Rita

communicateWe are used to the idea that when speaking, some of us focus more on details and others focus more on the big picture. That preference may communicate more about us to the listener than we are aware. Newly published research says powerful people focus on the big picture rather than on the details. The authors give this example:

“A speaker discussing a massive earthquake might either state that 120 people died and 400 were injured (a concrete statement conveying specific details), or that the earthquake is a national tragedy (an abstract statement conveying higher-level meaning.”

The researchers conducted 6 separate studies with online participants and each study found the same results. It did not matter if the speaker was discussing “a person, a societal issue, or a product; describing something negative or positive; or saying a few words or several sentences”. Those that focus on the “big picture” were simply more powerful in the eyes of the listener/receiver.

The findings are mainly discussed in terms of political leadership where there is danger of being labeled a “policy wonk” (and thus written off as an egghead who does not understand the people) if you speak concretely to show off your knowledge about an area.

On the other hand, politicians who focus on the big picture will communicate more abstractly and often with appeal to the emotion–and will be seen as smarter, more “in touch” and competent.

The researchers offer the example of the 2004 election characterization of John Kerry as a flip-flopper in an ad for the George W. Bush campaign. The ad intimated that a lack of consistency (as seen in John Kerry’s flip-flopping on specific issues) was a negative trait for a leader. The researchers say the power of the flip-flopper label could also be seen as indicative of concrete communication sending a “low-power signal”.

On the other hand, say the researchers, if you only communicate abstractly, you could be seen as having insufficient knowledge about an issue. It’s a tricky balance. The researchers also question the idea of order effects–should you start with concrete communication or with abstract communication? Do you talk about the individual trees (demonstrating concrete knowledge), about the forest (demonstrating a grasp of the big picture), or both?

Effective litigation advocacy requires both approaches to communication. At the start of your interactions with the jurors, you have little standing and no credibility. Your task is to both advocate for your client and to build and maintain rapport with them, for which initially relying on abstract or high-level characterizations may be more effective. It communicates best the answer to “why should I care about this dispute?” To be seen as credible and substantive requires facts, knowledge, and support for the high-level statements, which addresses “Is this a person I can rely on for accurate information?”. While some people tend to think in details while others are more comfortable with the big picture, ultimately both are required, in just the right balance.

Wakslak CJ, Smith PK, & Han A (2014). Using abstract language signals power. Journal of Personality and Social Psychology, 107 (1), 41-55 PMID: 24956313

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dialysis-graphicWe do a lot of pretrial research where complicated processes, inventions, ideas, software, tools, widgets, and other intellectual property ideas are explained. And we do a lot of pretrial research where something that doesn’t seem complicated (like a family estate, for example) gets very complicated, very quickly. We’ve found there are often vocal mock jurors who will pontificate on whatever the topic is (from highway guard rails, to heated patches for sore backs, to hair straighteners, to types of pizza crust, to coin counting machines in grocery stores, and more) and so we defer to their expertise by politely and with great interest asking them to explain to the group how it works, in their own words. They rarely can. They often sheepishly say they guess they don’t really understand after all and their standing as an expert rapidly evaporates.

Today’s research speaks to this issue directly by saying that extreme political views are often based on a false sense of understanding. That is, people typically know a lot less about complex political policies than they think they know. Their understanding is typically quite simplistic (like that of our mock jurors) and when they are asked to explain how a policy works–they are unable to do so (like our mock jurors).

What the researchers found in their first experiment is that when people who loudly support a particular policy are asked to explain how it works in their own words, they are unable to do so. Subsequently, they report their support for the policy they initially supported so strongly has become only moderate. In other words, the initial strong support for a policy was based in “unjustified confidence in understanding” the policy. When asked to explain the policy, the research participants (like our mock jurors) realized they didn’t really understand the policy after all.

The researchers designed another study where participants were asked to rate their position on a given policy and then either explain how the policy worked or list their reasons for supporting or opposing it. Finally, they would choose whether or not to donate a bonus payment to a relevant (i.e., either pro or con) advocacy group. Since prior research shows, according to the authors, that enumerating your reasons for supporting or not supporting a policy reinforces your support/lack thereof, they hypothesized that those who enumerated reasons would be more likely to donate than those who explained how the policy worked. They were right. Those who enumerated reasons were more likely to donate the bonus payment to the relevant advocacy group.

The authors explain their findings as follows:

Asking people to explain how a policy (for example) works, leads them to endorse more moderate positions on the policy and makes them less likely to donate to advocacy groups. The authors say these people are forced to confront their own ignorance.

Asking people to list reasons they support a policy (when those reasons can include values, hearsay and general principles) merely reinforces their belief systems and makes them more likely to donate to relevant advocacy groups.

From a litigation advocacy perspective, you can assist jurors in “confronting their own ignorance” by using the strategy we discussed here earlier on embedding skepticism into your case narrative. [Tip: This strategy is designed to gently embarrass the opinionated extremist, so it’s crucial that you do this gently and politely so you aren’t seen as humiliating him or her. Appearing to be a bully will result in voir dire ending sooner than you had in mind, as no one will talk to you.] As the attorney expresses skepticism (or a lack of understanding of how something works), the jurors resistance to hearing the full explanation is weakened.

Fernbach PM, Rogers T, Fox CR, & Sloman SA (2013). Political extremism is supported by an illusion of understanding. Psychological Science, 24 (6), 939-46 PMID: 23620547

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silver-racial-index-2Every once in a while we at The Jury Room get comments from readers that we simply look for bias “everywhere” and it doesn’t exist at the level our blog would intimate. Doctors don’t treat patients of color differently, they insist. Jurors don’t make decisions based on pre-existing biases. And so on. These are typically sincere people and they are disturbed that we are misrepresenting the prevalence of bias. Are we becoming part of the problem? Of uninformed or invalid perspectives actually creating false issues? We reply to the distressed responder with more information, which we have already reviewed with great care before we publish. Sadly, these sorts of biases are so prevalent it’s unusual not to find them. So unusual in fact, that when they do happen, we blog about it!

So here’s some work from someone other than us that illustrates the prevalence of racist ideas and beliefs about Blacks in America. They are from the New York Times and published in response to the controversy over LA Clippers owner Donald Sterling’s racist comments.  The graphs (created from General Social Survey data) were published with the following included in their written summary:

The condemnation of remarks by the Los Angeles Clippers owner Donald Sterling is almost unanimous. But racism is still more common than you may realize. In surveys, more than one-fifth of whites volunteer views consistent with negative racial stereotypes.”

views of white americans

We would say these graphs reflect the low end of actual prevalence of these ideas since the GSS is collected via telephone surveys and most people know you shouldn’t say these sorts of things out loud–although like Donald Sterling, a few still haven’t gotten the message.

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empathy-9550064_lIf you’ve read us for any length of time at all, you know we love this strategy to increase empathy and reduce bias in civil cases. Today we are looking at new research relevant to criminal work that shows how empathy (and the resulting perspective-taking) drives decisions about responsibility and guilt, sentencing, and leniency.

This research isn’t so much about looking inside yourself (and ridding the biases that lurk within) as it is about seeing the view from the defendant’s perspective (and increasing your empathy for what it is like to be in that position) or from the victim’s perspective (with the same goal). The researchers paid attention to real-world issues by making several of the experiments comparable to the “perspective-taking” directives offered in a real courtroom trial. That is, the only perspective-taking directive was that in the attorney’s closing statement. The research participants were not given perspective-taking instructions prior to the beginning of the experiment.

Our attorney readers already know this, but for those who are unfamiliar, the rules at trial are clear: You cannot attempt to overtly put the jurors into the role of any party. For instance, you can’t say “What would you [juror] do if this had happened to you?” This is a violation of the bar on invoking the ‘Golden Rule’ [“Do unto others as you would have them do unto you.”]. So the attorney approaches the same dynamic differently, by edging close to the Golden Rule line without violating it.

Here is a sample of the perspective-taking instructions contained in the attorney closing statement (this one asking them to take the perspective of the Defendant):

“Ladies and Gentlemen of the jury: I am here today to ask you to be kind and considerate when thinking about your decision in this case. My client, who is an upstanding citizen just like you all, was wrongly accused of hitting an innocent victim, and this necessitates your consideration and kindness when making your decision about this case.”

The researchers completed four different experiments to explore the effect of perspective-taking on the view of the target. They used a case with ambiguous evidence where the Defendant was charged with vehicular manslaughter but it was unclear if his car was actually the vehicle involved in the accident and subsequent death of a child. Over the course of four experiments, they found that perspective-taking often, but not always, results in viewing the target more favorably.

Taking the perspective of a criminal defendant resulted in research participants seeing the defendant as less culpable, and thus less guilty and less likely to re-offend.

Taking the perspective of the victim of a crime increases one’s sense of the defendant’s culpability, guilt, and the likelihood they will re-offend against someone else.

Finally, taking the perspective of a defendant can result in more leniency in punishment assigned.

The researchers say that the manipulation of perspective-taking (for the defendant or the victim) is powerful in that it takes place in actual trials and it clearly elicits empathy for either the defendant or the victim. Empathy results in a lower sentence for the defendant (or a higher sentence if the empathy is elicited for the victim and their family). Perspective-taking, say the authors, is thus a double-edged sword.

“Depending on the desired outcome, it is important to, like a weapon, point it toward the target where it will do the most good.”

Skorinko, J., Laurent, S., Bountress, K., Nyein, K., & Kuckuck, D. (2014). Effects of perspective taking on courtroom decisions Journal of Applied Social Psychology, 44 (4), 303-318 DOI: 10.1111/jasp.12222

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outdated dataWhen you have been doing the work for a long time, it’s always a shock to discover your assumptions are outdated. Better to figure that out before voir dire though! We’ve written about this issue several times before but, reminders are a good thing.

Recently, as we were in the midst of a mock trial and munching on warm chocolate chip cookies during a break, one of the attorneys mentioned that our mock jurors were mostly Republican and because we would be going to trial in a largely Democratic county, he was concerned that the sample of jurors we had selected was not representative of the venue. He was very specific about the political affiliation breakdown we were looking at based on the county in which they resided.

Given our own experiences over the past couple of years, we wondered if that was still accurate information. We had already profiled the county in question, but we double-checked the self-reports of our mock jurors. We knew the recruit was random and, if the pattern of the past couple years held, we would see a lot more Independents and non-affiliated mock jurors in the group. Sure enough. The group of mock jurors was about 25% Republican, about 25% Democrat, and about 50% a mix of Independent and not politically affiliated jurors. Our client was taken aback and had another cookie. They really were very good cookies.

It’s an intriguing thing about doing this work. We often do not have nearly as much experience in the specific county as our clients do. But what we do have is a good grasp of trends across the country and in various regions of the country. And this trend is a big one. Trends move quickly in some areas, slowly in others, but it is unusual for a venue shows no response at all over time to a social movement.

Our randomly recruited mock jurors are unhappy with the political system, and are thus unwilling to identify (for the most part) as either Republican or Democrat. When we do find a group where the majority identify as either Republican or Democrat, we look especially closely for other ways they are not representative of the county. It’s the new normal.

Political affiliation used to be predictable. The majority of our mock jurors were identified with a major party and a sprinkling would say they were Independent or unaffiliated. Political affiliation is still predictable. It’s just that now the majority are telling us they are Independent or not affiliated and they share a disapproval of government, politicians and big business that is often palpable in the room.

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