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Archive for the ‘Case Presentation’ Category
Eww! That is just disgusting! (but…very interesting)
We’ve written about secret weapons for the trial lawyer before. Like the chairs in the jury box and wearing red which turned out not to be for just the women among us! And now, where should more secret weapons come from but the research on moral judgments and especially, the research on disgust.
The Boston Globe just published a piece on how our moral judgments may come not from our religious/spiritual beliefs or from our deeply ingrained values but instead from our visceral reactions to what we see and hear.
Here are some examples:
- If you are more easily disgusted by bugs, you are more likely to see both gay marriage and abortion as wrong.
- If the room you are sitting in smells bad, you judge both controversial films and a person who didn’t return a wallet more harshly.
- Washing our hands makes us feel less guilty about our own moral transgressions and making us prone to feel disgust results in us seeing wrongdoing in totally innocuous stories.
The Globe helpfully shares specifics of some initial research on disgust:
“The father of modern disgust research is a psychologist named Paul Rozin. In a series of studies in the 1980s and 1990s that read like hidden-camera pranks, he set out to see how powerful the emotion was, and what exactly it was about disgusting things that repelled us. A professor at the University of Pennsylvania, Rozin served people cups of juice that a sterilized cockroach had been dropped into and offered others chocolate fudge shaped like dog poop. He asked whether subjects would wear a thoroughly laundered sweater that had once belonged to Adolf Hitler. In all those instances, most people refused, even though they knew the cockroach and sweater were clean and that the fudge was in fact fudge. They just felt disgusted.”
And there’s more there if you’d like to read about ‘fart spray’ or ‘eating your pets’—these are tenure track researchers living out adolescent fantasies. It’s gross. Which is pretty much their point.
And our point, is this: if you want jurors to judge innocuous actions harshly or you want to drive home the point about ‘bad’ behavior—use subtly disgusting analogies, metaphors or expressions. You want to tie ‘disgust’ to the other side. Quietly. Subtly. Let jurors think it was their own reaction. Yes. It is disgusting. But isn’t it interesting as well?
If only you weren’t so greedy…
Two sisters in their eighties have been in the news for years as they keep fighting over a $250,000 lottery win. Theresa Sokaitis (age 80-something) and Rose Bakaysa (age 87) had gambled together for years and drew up a contract to share their winnings after a $165,000 win at a casino in 1995. But in 2004, the sisters had a bitter dispute over $250.00 (or maybe it was $100.00) one had loaned the other and they have not spoken since.
Rose Bakaysa (who won the $250K as her half of a $500,000 winning ticket she purchased with her 84 year old brother, Joseph) says during that 2004 fight they rescinded their gambling partnership. Her sister Theresa Sokaitis says they did no such thing and Rose is obligated to give Theresa half of the winnings. This fight has made it to the Connecticut Supreme Court and continues to this day. (Although the Connecticut Supremes found in favor of the lucky sister, Rose.)
Concurring Opinions blog posts the complete text of a letter Theresa sent to Rose and we post an excerpt below:
Rose,
I hope you get this letter because I have plenty to say. The most important thing is I am so sick over what is happening with you and I going to court. None of this would have happened if you were not so greedy . . . All I know is we should both be ashamed of ourselves. We are sisters. Going to court is not right. All I know is I am entitled to my share of the money and you know it. [snip]
Take care of yourself. Mom would be sick over all of this. It would never happen if you at least shared some of the money with me. Do you think I would have done that to you? Never . . .
See you in court.
Terry
As the sisters fight on, we point to a common counter-factual in Theresa’s (aka Terry) letter to Rose. “If only you hadn’t been so greedy”…
This line of thinking is a consistent one we see in jurors’ reactions to case narratives. We’ve written about this before in the context of helping jurors to see the frame through which you would like them to view your case. In the case of these sisters, there is the issue of a contract dispute but it’s likely secondary to the family relationship that has been severed.
It’s always sad when family matters end up in litigation. We’ve worked on a fair number of family disputes (usually between members of very wealthy families) and the mock jurors reactions are almost always the same. It has never mattered whether it was a dispute over inheritance, family business income, contractual disputes, or a high-stakes divorce. Mock jurors consistently express the same reactions you likely have in reading about the tale of these two sisters.
“This isn’t right. Blood is thicker than money. [?] They should put this behind them and start again.”
“Let’s throw this case out and direct them to a family counselor to repair the damaged relationships.”
“This is just ridiculous. They aren’t really fighting over the money. They’re fighting over their hurt feelings.”
In Texas (and everywhere else) families are important to jurors. As we have noted countless times before, jurors want to fix problems and make the world a better place. There is no resolution to this dispute that will leave jurors feeling that the special bond between sisters is repaired, and that is, of course, what they want to see. While they are intrigued by the drama, they are ultimately heart-sick at the toxicity and finger-pointing. Jurors don’t feel good about being moral arbiters between family members.
As an advocate for your client, you have a very fine line to walk. Like the mothers before King Solomon fighting over the child, they want to see who is more open to higher values, to compromise, and healthy rapprochement instead of naked greed. Jurors are going to watch you to see if you (and your client) are about grabbing the money or about what is fair and right.
Mad enough to kill? It’s better if you’re a woman
In a departure for us (illustrating our flexibility), we are writing about when it is good to be a woman as opposed to not so much (see for example, here and here and here). Those posts all refer to times it’s tough to be a woman. But women who kill in the throes of passion, have an edge. Nice to know, eh?
It isn’t likely a woman who kills (say, a cheating spouse) will get away with it. But, she is more likely to get a shorter sentence than a man convicted under similar circumstances. This research was originally published in the Journal of Social Psychology. While male participants were more likely to opt for the harsher punishment (second-degree murder)—both male and female participants gave heterosexual female defendants significantly shorter length sentences than either heterosexual men or gay men or lesbian women. Heterosexual women were also seen as “less guilty” and as having been “more provoked”.
While this sort of juror decision-making doesn’t really make sense with the evidence—that is, you should not be punished more just because you are a man—it is what it is. Beliefs about gender (e.g., men shouldn’t hurt women) seem to favor the female heterosexual defendant and a provocation defense could be a good strategy. So would we say “sometimes it’s easy to be a woman”? Maybe not that far. How about “here’s a time when it’s better if you’re a woman”.
I read the entire newspaper every day
It used to be that agreement with this statement was a good indicator of social desirability responding. This is the social scientist way of saying “he is lying, but only because he wants you to admire him.” Now, with newspaper readership declining for the past two decades it’s less useful. We simply don’t see reading the newspaper as a highly desirable trait any longer. And this is especially true of younger people.
But the desire to “look good” has certainly not gone away. We say we watch the network news much more often than we apparently actually do. Those who design questionnaires say we can make questionnaires that accidentally result in our encouraging respondents to agree with our questions. Respondents who don’t wish to carefully consider their answers fall victim to ‘satisficing’ by simply giving ‘adequate’ rather than ‘accurate’ answers.
The last thing you want is for a juror to engage in social desirability responding. Except when you do want them to do exactly that. And there are times you don’t.
- If you want jurors in voir dire to honestly disclose bias, you have to embolden them to admit to attitudes that might seem critical, judgmental, or harsh.
- If you want to inoculate jurors against disqualification, they need to affirm their ability to be open minded until all of the evidence is in, even if they are frankly biased. [We are reminded of the old story of the juror who, when questioned, assured the defense counsel that he would keep an open mind during the whole trial, and when they sentenced the defendant he could be fair then, too.]
- If you represent the plaintiff (who happens to be African American) in a personal injury case, you want social desirability responding.
- You want to raise the issue of race overtly and ask jurors if it should make a difference that the plaintiff is African American. You want them to act in an unbiased fashion and you make unbiased responses socially desirable.
- If, on the other hand, you represent the defendant and the plaintiff happens to be African American, you don’t want socially desirable responding—you want bias.
- So you do not raise the issue of race. And you hope the plaintiff doesn’t either. Because if you don’t, (and they don’t) the award, if any, will be lower and the finding against your client less severe.
It’s sad, really. How you tell the story and how you raise or don’t raise the flag announcing racism can determine the specific version of ‘justice’. We have clear preferences for justice being real and justice being color-blind (and blind to parties attractiveness, gender and education). But it isn’t. So we attempt to share the truth of what we know to be true to help you in your advocacy work.
When you expect a gorilla you often miss other unexpected things
Many of us have seen the original change blindness video by academics Dan Simon and Christopher Chabris (“the gorilla guys”). And if you haven’t seen it, watch it here! The original video made quite a splash when it was released and now, not content to be one-hit wonders, these two researchers have released a second video. Watch this one and see if they get you again!
While the researchers say this video is instructive regarding our ‘change blindness’—we can see the lessons for trial lawyers. After living with a case for the length of time it takes to go from taking on a case to filing to depositions to preparing for your day(s) in court—attorneys often lose sight of what will appeal to the potential triers of fact. They know what appeals to them. They know what they think is important. They know what “should” happen. In other words, they expect a gorilla. And jurors often see something else.
One of the true benefits of pre-trial research is the opportunity to see what else happens when the case is presented. That is, do jurors see a gorilla or do they see something else and totally miss the gorilla? We’ve had countless examples of jurors missing the gorilla (or perhaps the attorney missing something even more important to the jurors).
- A hospital-based malpractice case where the heart-sick nurses shared their feelings with the attorneys but did not show their emotions in deposition testimony. The attorneys knew the nurses’ pain. The jurors saw cold and uncaring and defensive professionals who were likely responsible for harm to an innocent patient. They wanted the hospital staff to understand it was important to care when you are in a caring profession. Witness preparation focused on helping the nurses to trust their honest feelings, which resulted in them coming across as caring and concerned about patients.
- A high-dollar patent case where the technology explanation was dense and incomprehensible. After two years in case development, the attorneys were in love with the technology. The jurors, hearing the case for the first time, were confused by the technology and wanted to hear about the people involved. Where was the invention development file? Who was hurt? Who was cheated? Whose dream was stolen? If the patent is validated, is anyone harmed?
- A contract case where much of the agreement was not detailed in writing. (“God bless poorly executed transactions” say the commercial litigators…”) The attorney thought the fine reputation for good work in the local community would serve the plaintiff well and that jurors would want them to be able to continue in their work. The jurors thought that good practitioners do not necessarily make good business decisions. They thought the defendant was a schmuck, but also that the plaintiffs had no real case.
In all of these cases (and many others) the attorneys spent so much time and energy on the case that they lost sight of some important facts. They expected a gorilla. If you weren’t expecting a gorilla—what else might you see?
What’s good for the goose….who is that striking man in red?
You may recall our earlier blog post on the ‘secret weapon’ for women in court: wearing red. After that post, some of our readers had some questions. Tim Hughes wondered if he could wear red in court and Jason Barnes found it interesting that both Santa Claus and danger came to mind when thinking of the color red. Mark Bennett recalled being told men in red ties were seen as more attractive more than two decades ago. And now we have terrific news to share! Dear male readers—the answer is YES!
You can (and perhaps should) wear red! New research in the Journal of Experimental Psychology shows that a man in red can be just as attractive as a woman in red. “Simply wearing the color red or being bordered by the rosy hue makes a man more attractive and sexually desirable to women”. And if you are not bold enough to wear a red jacket in court, red ties work too!
Now, in this research, women were asked if they would like to have sex with men featured in the photos. We would recommend this not be your goal. They were also asked if they found the men attractive, or of “high status”. We know that being seen as attractive often boosts your likeability, your persuasiveness, and your influence on others.
And what about for you? “A man who wears red may feel dominant, which influences his self-confidence and behavior and in turn may impress women.” Don’t focus on that part of the study where they talk about what works in the boardroom also working in the bedroom. This isn’t that sort of blog.
A pinch of this and a dash of that
Litigation advocacy (just like cooking) involves a combination of knowledge and intuition that cannot readily be quantified. When those tidbits emerge in the popular literature, we want to recognize them for what they are: jewels you can use to bridge the gap between evidentiary fact and juror acceptance.
It’s okay if you fumble, but watch your manners!
Incivility and rudeness are continuously in the news. We all know (and most of us keep in mind) that being seen as rude by others is not a good thing. Here’s a bit of a new twist: it’s better to be incompetent than to be rude! When research participants saw (what they defined as ‘rude’) behavior between colleagues they had negative reactions to the company itself. Even when the ‘rude’ person was correcting incompetent behavior on the part of their colleague—observers reacted negatively.
The takeaway here is to pay close attention to your non-verbal behavior in the courtroom (and perhaps elsewhere). What you do (as well as what you say) is being monitored by your jury. They will judge your behavior and words in their decisions on the merits of your case.
Your own non-verbal behavior can bias the jury against your client!
This finding is under the category of “Yikes! That’s kind of scary.” In a Tufts study, researchers found that television viewers were unconsciously influenced by how actors interacted with black colleagues. To test the hypotheses, researchers blocked out a character to hide race and turned off the sound so that viewers observed only non-verbal behavior of the speakers. Since the bias was unintentional (on the part of show writers), the researchers suggest that simple awareness of this bias might help both actors and directors counteract the effect.
We are not sure about their recommendation since we’re talking about unconscious bias. We’ve written about race and bias a lot on this blog. But if they are right, and likely even if they are not, the takeaway is to watch how you interact with both your client and members of the jury, as well as your second chair, your support staff, the court staff, and the opposing counsel team. All behavior is important!
Be concrete as opposed to abstract or inferential
This one is an interesting perspective. We hear a lot about jurors “need for cognition” and more recently about jurors “need for affect” in their decision-making/deliberation. While both of these factors are important, it seems it’s also important to focus on the concrete. New research shows consumers who are given concrete information are much more likely to have confidence in the decisions they make on information received.
You want to be sure your presentation includes concrete information for jurors to take to the deliberation room. “Concrete information” refers to information on observable behavior or details. A simple test for whether you are presenting concrete information is whether you can “see the information with your eyes or hear it with your ears”. If yes, it’s concrete. If no, keep looking
Taken together, these findings communicate the importance of being aware you are on display. Your behavior and communication are important parts of case presentation. It isn’t just your client who needs to watch their non-verbals.
Maybe you better sweat the small stuff…
You might think that giving that witness a fashion update, helping them to understand their role in the trial story, and working with them to remove distracting non-verbal behaviors would be enough to go to trial. Not so fast! There is so much more to consider. It seems jurors may intuit much from small (or not so small) witness features that are really not salient to testimony at all. So contrary to the best selling books out there—you really do need to sweat the small stuff. Like what small stuff, you ask? Read on…
Facial scars:
If the opposing witness has a facial scar and yours does not—you might think that would bode well for your side. After all, facial scars are sinister. Or maybe not. Turns out that men with facial scars have more one-night stands and that (some?) women see facial scars as indicative of bravery and health. We know character matters to jurors. They may end up thinking the scarred witness is more attractive—not to mention both healthy and brave—than your witness. Or, perhaps, creepy.
Videography angles and focus:
It’s pretty obvious that you want your witness well-lit, shot from a flattering angle and (please) no iced coffee or soda—jurors often think this means the witness is not taking the deposition seriously. We have a long list of “do’s and don’ts” for witnesses, but overall, depositions are not the time for a refreshing beverage.
New research shows us that when your client has confessed and then retracted that confession—a confession video only trained on the defendant is seen as more convincing/persuasive than one trained on both the defendant and the detective or the detective/interrogator alone. And when there is much detail in the confession—it’s even more persuasive when the camera is trained on the defendant alone. (This is really an interesting piece of research and we’ll blog more on this soon.)
Foreign accents:
Many of us think that if someone speaks English (even accented English) it’s better to have them testify in English rather than in their native language with a translator. That may not be true. New research shows that when someone speaks with an accent—many people believe they are not being truthful. And the heavier the accent, the more we assess them as being not truthful. When we have trouble understanding someone, we assume they are less than truthful.
While you can make jurors aware of how videography and accents can bias their judgments—it’s likely a bit harder to say “don’t like their witness more because he has facial scars”. The take-away here is that everything matters: the big stuff and yes, even the small stuff. Sweat it all.
Wow. We want to tell stories like these…
“The power of anecdotes to persuade is established, but there’s a dark side to that power. Quite simply, an effective story can take over our brains to the point where we disregard more valid information: reliable statistics, the opinions of true experts, and so on.”
So begins a Neuromarketing blog post on story-telling. They warn of the ‘dark side’ of effective storytelling. And we rub our hands together and think how much fun it is when a powerful story takes shape.
We had a case a few years back with a very sympathetic plaintiff family (who had lost a child a few years earlier when he was hit by a vehicle). The current case facts had the mom in the family driving to work (she was a healthcare professional) when she was hit by a speeding and inebriated defendant and her car exploded in a fireball. The story itself was horrific enough. But imagine what everyone was thinking when we learned the driver of the car was of Middle Eastern descent: the idea that he used a motorized vehicle as a weapon with no care for loss of life.
As you likely imagine, it was a few years after the terrorist attacks of September 11, 2001. That image was the subtext to the trial story. It was powerful and jurors responded with outrage and sent a message.
More recently, we worked on a case involving a very complex and confusing contract involving a natural gas “farm-out agreement”. Pretrial research showed us that mock jurors were totally confused by the complexities of the industry, the language of the contract, and the lack of clarity as to standards of these agreements—so we changed the story.
Instead of telling the sequence of events, we focused the defense story on the profit pattern and the investors’ (aka the plaintiffs) awareness that the profits would drop precipitously shortly after a particular contract was executed. The story framed the plaintiffs as ‘investors’ in name only. Their real role was that of lawsuit filers who planned all along to sue the sellers. They were betting jurors wouldn’t be smart enough to figure out their actual intent.
Not surprisingly, jurors didn’t like that story at all. They voted to leave the plaintiff’s holding the bag on a bad investment. They wanted to send a message to the plaintiffs that they should behave more honorably in their business dealings.
We don’t always hit homeruns in storytelling. But we find that the more experience we have in differing sorts of cases, the better we get. And that’s what makes it really really fun to be involved in this work. We began with a quote from the Neuromarketing blog and we want to end with another one.
“The combination of a powerful anecdote transmitted via a trusted source, our brain’s need to find cause and effect relationships, and the difficulty in changing beliefs due to confirmation bias work together create an environment where sound science can be trumped by misinformation. This is indeed the dark side of effective anecdotes. Use this power wisely.”
And the jury says: “His brain really DID make him do it!”
We’ve been tracking the stories and research (and products for sale) in the area of neurolaw for quite a while now. Neurolaw theory (more popularly described as “my brain made me do it”) is poised to be used more and more frequently in the courtroom. And it’s getting more attention in the mainstream media. Recently NPR broadcast a series on researchers working in the neurolaw area.
They discuss the differences in the brain structures and reactivity in the brain of the psychopath. Special attention is given to the amygdala and limbic system which are under-reactive in psychopaths. The researchers say that perhaps psychopaths should be treated as those with low intellectual function (and not given the death penalty) since they have the emotional IQs of a five year old. They simply do not have the capacity to make the right choices in morally charged situations. Why, say the researchers, should we execute someone who was born with a brain abnormality? They certainly did not ask to be born that way!
Detractors say that if you understand the differences between right and wrong (which psychopaths say they do) and yet rape and kill—you are responsible. The example of the Brian Dugan case is used in the NPR series but jurors found him guilty. As in, his brain did NOT make him do it.
However, the NPR series also examines the case of Bradley Waldroup which was described as a “why done it” rather than a “who done it” case. Waldroup committed a vicious murder—hacking the best friend of his estranged wife to death and then chasing his wife with a machete and cutting her numerous times. Prior to the assault and murder, Waldroup had been drinking and reading his Bible. Waldroup never denied the murder—in fact, he freely admitted he had done it.
But his attorneys presented information on a particular variant of the MAO-A gene (also known as the warrior gene because it has been associated with violence) and said Waldroup had the high-risk version of the gene. Prosecutors said Waldroup was simply “drunk and mad” and acted violently. “After 11 hours of deliberation, the jury convicted Waldroup of voluntary manslaughter — not murder — and attempted second-degree murder.”
Jurors say the brain evidence was “only part of” their deliberation and that they believed Waldroup had simply “snapped” and it was a case of “nature versus nurture”. Waldroup’s defense attorney, Wylie Richardson, said of the successful neurolaw defense: “I would use it again” under the right circumstances. “It seemed to work in this case.”
We’ve been waiting for this defense to work with a jury. This defense seems to fly into the face of significant Daubert challenges, but evidently it survived the process in Chattanooga. And if you read about the testimony, however strange it may seem to you on first blush you will see there is a good deal of hard science involved. Let’s see what happens next!
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