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Same sex marriage is okay but please, no PDA!

Wednesday, December 17, 2014
posted by Douglas Keene

We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

same sex pdaWe’ve blogged a number of times about changing attitudes toward same sex marriage.  The majority of Americans now support same sex couples being allowed to marry but that doesn’t mean we want to watch “them” be publicly affectionate.

And “we” are not alone. Even gays and lesbians express some discomfort with public displays of affection (PDA) for same-sex couples. The authors see this as “entrenched prejudice” on the part of heterosexuals and perhaps, as an “internalized stigma” for gays and lesbians responding to the survey.

The researchers surveyed 1,073 Americans (258 lesbians, 310 gay men, 240 straight women and 265 straight men). They were randomly assigned to read vignettes about a couple who met, fell in love and had been living together for the past 2 years. One-third read about “Brian and Jennifer”. Another third read about “Heather and Jennifer” and the final group read about “Brian and Matt”.

After they read the vignettes describing either a heterosexual couple, a lesbian couple or a gay couple, they were asked to respond to a series of queries about this specific couple’s rights. Some of the questions were of a more formal legal nature (like about inheritance or hospital visitation rights) while others were more informal such as their right to tell others they were a couple, hold hands or kiss in public settings. For each question, participants responded on a 4-point Likert scale ranging from strongly agree to strongly disagree.

On formal (legal) rights, there were no differences for heterosexual males approval for the same rights for heterosexual, gay or lesbian couples. Heterosexual women were more approving of insurance benefits for the lesbian couple than the heterosexual couple. Gay and lesbian participants were more approving of all the formal rights for gay and lesbian couples than for heterosexual couples (which makes sense, since they are seeing these couples as “in group” members).

When it comes to informal rights, the picture grows murkier.

Heterosexual males were less approving of informal privileges [defined here as holding hands in public or kissing] for both the gay and lesbian couples than for the heterosexual couple–and they were significantly less approving of the gay couple than the lesbian couple.

Heterosexual females also approved more of the heterosexual couple’s informal privileges than either the gay or lesbian couples–but they did not approve of the lesbian couple over the gay couple.

Lesbian and gay participants were sometimes more willing to grant informal privileges to the heterosexual couple over their own in-group couple. Lesbians and gays were both less approving of their own in-group couple holding hands in public compared to the heterosexual couple. Lesbians thought it was okay to kiss on the cheek or French kiss for both lesbian couples and heterosexual couples, but gays were significantly less approving of the gay couple kissing on the cheek or French kissing than they were for the heterosexual couple.

The authors say that the bias against these informal rights may reflect attitudes that are changing more slowly than our attitudes toward legal rights. They also highlight the reality that the gay couple are penalized more than the lesbian couple and more work should explore this issue.

From a litigation advocacy perspective, this is useful information. When we think about our changing jurors and their changing attitudes toward same-sex marriage, this survey warns us to make no assumptions on what behaviors are seen as “acceptable” in public. Homophobic responses and disapproval can arise anywhere–much like bias that arises covertly around issues of race and citizenship. Being aware of how bias against sexual orientation continues can aid you in party and witness preparation for in court appearance, behavior and testimony.

Doan, L., Loehr, A., & Miller, L. (2014). Formal Rights and Informal Privileges for Same-Sex Couples: Evidence from a National Survey Experiment American Sociological Review, 79 (6), 1172-1195 DOI: 10.1177/0003122414555886

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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

TJE_logoA new issue of The Jury Expert has been published, and as usual, it’s one worth reading. As Editor since May, 2008–I get to see the articles as they come in and am always surprised at (and appreciative of) the creative and stimulating content we receive. The Jury Expert, like this blog, is all about litigation advocacy and understanding how new research can help inform your strategies in the courtroom. Here’s what you can see in the lineup for the November 2014 issue.

Does Video Image Size Affect Jurors’ Decisions? A Look at How Image Size Interacts with Evidence Strength, Defendant Emotion and the Defendant/Victim Relationship

Wendy Heath and Bruce Grannemann ponder how video image size in the courtroom is related to juror decision-making about your case. They discuss how image size interacts with image strength, defendant emotions, and the defendant/victim relationship. Trial consultants Jason Barnes and Brian Patterson team up for one response to this article and Ian McWilliams pens another. This is a terrific article to help you reconsider the role of image size in that upcoming trial.

Moral Outrage Drives Biases Against Gay and Lesbian Individuals in Legal Judgments

Sarah Malik and Jessica Salerno have some original research on bias against gays in the courtroom. This is simple and powerful research that illustrates just how moral outrage drives our judgments against LGBT individuals (especially when they are juveniles). Stan Brodsky and Christopher Coffey team up for one response and Alexis Forbes pens a second. While these findings make intuitive sense, they may also highlight something you’ve not previously considered.

Anti-war Protestors and Civil Disobedience: A Tale of Two Juries

Lynne Williams is a trial consultant who lives in the cold and snowy state of Maine. She is also skilled in picking juries for political trials and a gifted writer as she describes the important differences between picking juries for civil disobedience cases and antiwar protestor cases. This article not only explains what Ms. Williams does, but why and how she does what she does. It’s like lifting up the top of her head and peering inside her brain.

A Qualitative Examination of Self-Care in Lawyers

Mary Wood, Jacklyn Nagle and Pamela Bucy Pierson bring us this qualitative examination of self-care in lawyers. They talk about workplace stress and depression and substance abuse. Been there? Are there? Some kinds of self-care may work better than others but–what’s important is that you actually do some self-care! Andy Sheldon and Alison Bennett share their reactions to this article.

Favorite Thing: Plain Text

Why, you may wonder, would Plain Text EVER be a Favorite Thing. Because it is fabulous. Or, perhaps because, “Plain text is the cockroach of file types: it will outlive us all.”

The Selective Allure of Neuroscience and Its Implications for The Courtroom

Adam Shniderman knows neuroscience evidence can be incredibly alluring. This new study shows us that unfortunately (or perhaps fortunately) it is not universally alluring. Here’s a shocker: the impact of the neuroscience evidence is related to the individual listener’s prior attitudes, values and beliefs about the topic. Robert Galatzer-Levy and Ekaterina Pivovarova respond with their thoughts on the issues raised.

Book Review: Law and Neuroscience

Law and Neuroscience by Owen Jones, Jeffrey Schall, and Francis Shen has just published and is as long as any Harry Potter tale at more than 800 pages. Rita Handrich takes a look at this new textbook and reference manual which covers more than you ever knew existed on the wide-ranging field of neurolaw (which is a whole lot more than the “my brain made me do it” defense).

Promoting Communications between Social Scientists and Lawyers

Roy Bullis is back to talk to us about the wide language gulf between attorneys and their social science expert witnesses. Just because you are talking, doesn’t mean you are actually communicating. How do you talk so your expert knows what you mean?

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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

offensiveThe research we are covering today focuses on feedback that is subtly offensive and what observers make of it in comparison to constructive and destructive feedback. In case you are wondering just what “subtly offensive feedback” is, the researchers believe that subtly offensive feedback communicates that the recipient is “rather stupid” without saying so directly. Even when presented in a friendly fashion, say the researchers, the words hurt. Since prior research had neither focused on nor defined “subtly offensive” feedback, the researchers had to operationalize the ways in which they would offer the subtly offensive feedback to their participants. This study was seen as a pilot study upon which to develop future research.

The researchers defined three different types of subtly offensive feedback to test in the pilot study:

overkill (overly long and excessive dwelling on details);

exaggeration (explicitly exaggerating the significance of the mistakes); and

banality (declaring that a mistake is so easy to see no one should have missed it).

The researchers believe that feedback does not have to be presented in a destructive manner to be seen as negative. Their hypothesis, therefore, was that recipients would find the feedback less fair and acceptable than constructive feedback, and more fair and acceptable than destructive feedback. The hypothesis makes intuitive sense and you will likely not be surprised that they were correct.

132 Swiss undergraduate students (86 female, 46 male, average age 22.5 years, and participating in groups of 20 to 25 students) viewed a video of a man who was introduced as a professor and was allegedly giving feedback to a student about a course-related paper. Participants rated how fair they felt the feedback was after each (of 7 total) video.

As expected, participants rated the “subtly offensive” feedback as in between the fairness of constructive and destructive feedback. The researchers were surprised to find that the subtly offensive feedback conditions differed from each other. Participants saw overkill as most fair of the offensive conditions, then banality, and finally exaggeration. The researchers suggest that workplace supervisors can learn from their results that feedback can be negative and hurtful even if they are not insulting and rude. While this may seem an obvious conclusion, we would certainly agree.

From a litigation advocacy perspective, the awareness and sensibilities of jurors is a moving target. Not too long ago, it was sometimes an effective tactic to focus (and focus and focus) on whether an expert witness was being paid. That is no longer true, as the following experience connotes.

At the conclusion of a recent trial, as jurors were debriefed, they commented that they knew expert witnesses were paid and reported feeling that opposing counsel’s lengthy questions to experts about how much they were paid were insulting to their (i.e., the jurors’) intelligence. The attorneys did not mean to offend, but they had (in the words of today’s researchers) “subtly offended” their jurors.

Jurors have become increasingly sophisticated and aware of expert and fact witnesses and, like these jurors said in the post-verdict interviews: “We know experts get paid!”. This isn’t the only example of these faint lines between constructive, subtly offensive, and destructive statements. The research does a good job of establishing the distinction, but it doesn’t help at all in determining where those lines are– within a particular jury, subculture, region, nation, or anything else. Surely cultural values, differences in individual sensitivity, and life experiences all affect a person’s reaction to such things. If you wonder about that, consider how a hilarious joke that seemed innocent enough to you invariably strikes some listeners as offensive. Sometimes it is hard to tell. Play it safe. Stay away from jokes about anyone other than yourself, and carefully consider ways to be inviting- not critical- in when you present explanations and examples.

Krings, R., Jacobshagen, N., Elfering, A., & Semmer, N. (2014). Subtly offending feedback Journal of Applied Social Psychology DOI: 10.1111/jasp.12287

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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

quackery

We just wrote about popular blogs picking up old survey data and discussing it as though it were new and relevant. Now, Pacific Standard magazine has published a rehashing of the content of a book published in 2002 as though it was fresh and new. Our friend and colleague, Ken Broda-Bahm over at Persuasive Litigator has done a blog post that looks carefully and critically at the claims made and we encourage you to read his post as a counterpoint to the Pacific Standard article by Jane C. Hu. Ken closes his post where we wish to begin ours:

“And in the meantime, those who have questions about the foundation for trial consulting and jury selection assistance should ask an experienced practitioner, and should focus on the actual practices and not on the myths.”

If it wasn’t so annoying in its gross distortions about the practice of litigation consulting, the dated Kressel and Kressel book, Stack and Sway, would be amusing. If trial consultants actually had the power to “stack and sway” juries, we would be very, very wealthy and there would be a lot more of us than there truly are in the country today. And the system would be irreparably harmed. We are not experts in verdict slight-of-hand. We are students of–and aspiring experts in–identifying and uncovering bias. We research and seek to understand what life experiences and values bear upon the decisions juries reach, in an effort to keep those preconceptions from influencing verdicts against our clients. Yes, we would like to see our knowledge assist our clients. But the purpose of “scientific jury selection” is not to “win” but to swear in a jury that will actually listen to the presentation of evidence and make decisions based on what they hear, rather than deciding based on their pre-existing biases and predilections.

Instead of stacking and swaying, we would describe what we do as applied social science. We read voraciously in the social science research literature and apply what we find there, when relevant to our work. Rather than, as Hu suggests, “incentivizing the use of lazy stereotypes”, we work to identify stereotypes and then to excise them from voir dire, jury selection, and case presentation. As Broda-Bahm notes, a skilled and veteran trial consultant has actual knowledge about many (but not all) of the characteristics that identify biased jurors. With no knowledge or insight, all that is left is the “lazy stereotypes”. Hu poses the accusation against trial consultants, and then goes on to note the obvious contradiction–information reduces stereotyping in every area of life, including jury behavior and jury selection.

If you read this blog routinely, you know we focus intently on bias in many shapes and forms. What we know, as many of you also know, is that bias is powerful, pervasive, and persistent. We want to know where bias lurks and how it may twist and turn depending on case facts. It can take a lot of work to identify biases affecting decisions in a given case and it certainly is not a process we would describe as “lazy”.

Ironically, Hu’s example of how trial consultants use lazy stereotypes cites a case wherein a prosecuting attorney used a stereotype to strike a juror. Note to Hu: prosecuting attorneys are not typically trial consultants (nor do they typically use trial consultants).

Recently, I joined the trial team for a three-week intellectual property trial following the completion of a mock trial where we had measured the attitudes, values and beliefs of our mock jurors and looked closely at how those pre-existing characteristics were related, if at all, to eventual verdict in our mock trial. As every trial lawyer and litigant would wish, we tried to figure out as much as possible about who was in the jury box. Hu, in her recent Pacific Standard article, characterizes this as “creepy”. It really is more sensible than “creepy”. I would be intrigued to hear Ms. Hu list the information that, were she a party to a lawsuit or facing criminal prosecution, she would like to keep away from her trial counsel due to excessive creepiness.

When you work on litigation where there is a lot of money on the line, it is very likely that both sides have done pretrial research. The playing field is typically fairly balanced. Just as the trial team is looking into every legal theory that might aid in their client representation, litigation consultants are engaged to help strategize how to overcome bias in juror decision-making.

It is very likely that both sides are doing internet research to identify values, attitudes and beliefs that inform individual decision-making processes of potential jurors.

If there is no time for research on individual jurors prior to voir dire, it is likely that both sides are doing that research once a jury is seated in order to inform tweaks to case narrative.

If no jury research is done, voir dire is rushed or not permitted, and nothing else is known about the venire members–decisions will be made based on stereotypes.  And sadly, the attorneys who are making those calls will do it knowing that it is a lousy way to make strike decisions. Using demographic stereotypes (age, education, socio-economic status, race, employment, marital status, parental status, etc.) is a very crude tool, far too much like doing surgery with a very dull blade.

If you choose not to conduct pretrial research and eventual juror research in cases with budgets that can justify it, you are either naïve, over-confident, unaware, or perhaps you are just a dinosaur. Back in 2002, when Kressel and Kressel wrote their book, internet research was unable to find much. In 2014, the age of social media and online documentation of life, there is much to learn and there are ethical ways to guide that exploratory internet research.

We feel very comfortable with our work and with our attorney-clients. We are fortunate to have clients who are committed to advocacy and fairness. We are not, as Hu suggests, ethically challenged. We are not creepy. We do not stalk potential jurors and we do not attempt to friend them on Facebook. We look at what people put out there in public for all the world to see online. We are informed, educated, principled professionals who work hard to identify bias and level the playing field. Sometimes we win. Sometimes we lose. But we always try our best to identify where a person is at risk of losing track of the evidence and revert back to their historical biases and stereotypes.

We encourage you to read Ms. Hu’s article, keeping in mind what Ken Broda-Bahm has written and what we have shared here. Ultimately, what Ms. Hu writes of is not jury consulting, it is instead, someone’s confused fantasy about what our goals are, what our methods are, and what guides our practices. Our readership is smart and discerning. You’ll figure it out. And eventually, Ms. Hu might, too.

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euphemism treadmillIt’s a constantly moving target. Just over a year ago, we wrote about this on-going question and cited a Gallup Poll saying 65% of Black Americans have no preference when it comes to labels used to describe their racial or ethnic group. The authors of today’s research article would disagree. They say there are consequences (and loads of meaning) behind the two labels.

Stephen Pinker first coined the phrase euphemism treadmill in 1994. The phrase refers to a descriptive term that was once acceptable, but has now become pejorative. An example would be the word “crippled”, replaced by “handicapped”, which was then replaced by the phrase “person with disabilities” or, in some circles, “differently challenged”. When you write, and use an outdated, once acceptable but now pejorative phrase, you run the risk of being seen as biased, unaware, old school, or downright insensitive.

So, in 2013, Gallup said it really didn’t matter. Today’s writers demonstrate, via four separate studies, that we have very different associations to the labels “African-American” and “Black”. Specifically, we make assumptions about “Blacks” being lower in social status, less educated, and less competent than the “African-American”. In brief, here are their findings:

The label “Black” signals lower social class and status than does the label “African-American”. Further, the label “Black” evokes more negative stereotype content (as well as assumptions of lower status and less feelings of warmth) than does the label “African-American”.

Media articles on crime reports are more negative in emotional tone when they use the label “Black” then when they use the label “African-American”.

Whites view a criminal suspect more negatively when s/he is identified as “Black” rather than “African-American”.

The dilemma with these two polarizing labels (“Black” and “African-American) is that White observers are attaching presumptions based on racial labels. Instead of using either of these long-standing descriptors, these authors propose the use of a new descriptor: Americans of African Descent (AADs). Their belief is that use of a new label will short-circuit the stereotypes (positive and negative) that accompany the currently used labels and require judgements to occur based on the individual. Whether this will catch on or not, is anyone’s guess. But, staying on top of trends and labels is an important part of the work for all of us.

So, is it “Black” or is it “African-American”?

Or, should it perhaps be “Americans of African Descent”?

As mentioned above, Gallup says it doesn’t seem to really matter to the target individuals being described. But today’s authors say it matters a lot to the listener as “Black” and “African-American” have become cognitive shortcuts for many of us. So what to say?

The cynical might say it all depends on the reaction you want to evoke in the listener. That would mean that if you want to evoke a less positive attribution to a person, use the word “Black”, and if you want to imbue them with more of an upscale aura, use “African-American”. Either can be used to evoke the more negative or the more positive associations.

Our guess would be it’s a lot more nuanced than that. While there were a few more than 370 participants across four studies, we would like to see a bit larger sample to ascertain whether this stereotyping of racial labels occurs across the country or if it is limited to certain regions. We also don’t really know what stereotypes might arise if someone was described as an “American of African Descent”. Further, who knows how long the new label will encounter resistance, or how and when it might be co-opted by time.

In short, it’s an intriguing variable to consider. Are we indeed evoking racial stereotypes when we describe individuals as either “Black” or “African-American”? Is that what we really mean to do?

Hall, EV, Phillips, KW, & Townsend, SSM (2014). A rose by any other name? The consequences of subtyping “African-Americans” from “Blacks”. Journal of Experimental Social Psychology. 

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