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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

dittohead1

Here’s an intriguing study about how consensus is assumed and how it may inspire both activism and a false sense of confidence about the future. Despite a new Pew survey showing the perception is not accurate, conservatives assume more consensus among those sharing their political perspective than do liberals.

NYU researchers conducted three separate experiments looking at assumptions of consensus as related to political beliefs (i.e., liberal or conservative). The researchers say this false sense of consensus may be related to the shock and disbelief expressed by conservatives after Barack Obama won re-election in 2012.

Study 1: 107 online participants (72 female, average age 34.7 years with a range of ages from 18 to 64) viewed photos of 30 White male undergraduates and were asked to indicate whether the man pictured was gay or straight, the likelihood that the man pictured was born in November or December, and finally, whether the man pictured preferred fruit or vegetables. Then, once that descriptive task was done, they were asked “What percent of participants overall made similar judgments as you did?” and then, “What percent of participants who do not share your political beliefs made similar judgments to one another?”. While there was no consensus on judgments about the photographs with regard to birth dates, conservative participants had a stronger desire to see other conservatives agreeing with them than did liberal participants. Oddly, conservatives did reach consensus on whether the male pictured in the photograph was likely gay or straight.

Study 2: 150 online Americans (94 women, average age 34 years with a range of 18 to 65 years of age) who described themselves as “active members of a political party” performed the same tasks as in Study 1. This time the researchers wanted to see if perceiving consensus among like-minded others would be related to seeing your political party as “efficacious”. Again, conservatives actually were more in consensus on whether the male pictured was gay or straight (perhaps conservatives have better gaydar?). And, again, conservatives believed there would be higher consensus among ideologically similar participants while liberals did not. Conservatives were also more likely to see their political party as effective.

Study 3: For this study, the researchers wondered if seeing your political party as effective would make one more likely to vote. Three hundred and eleven online American participants (210 female, average age 32.9 years with an age range of 18 to 70 years) were asked to complete a study “focusing on the beliefs of individuals who belonged to a political party”. This time the participants were divided into three conditions: one group was the control group, another group was primed with a task for affiliating and the last group was primed with a task for not affiliating. Each participant judged only one of the ratings included in the first two studies. That is, 101 participants judged sexual orientation, 106 judged birth month, and 104 judged the likelihood of eating fruits or vegetables. Again (this is so odd) conservatives had more consensus on sexual orientation. Those conservatives who saw their beliefs as more in consensus with those sharing their ideology were more likely to see their political party as more effective and more likely to report plans to vote in the 2012 elections. (The researchers do not say if the conservatives were accurate in identifying sexual orientation, they just say they were in agreement as to who “looked gay”.)

Overall, say the researchers, conservatives may be motivated to perceive consensus while liberals may be motivated to perceive their beliefs as relatively unique. They cite other 2014 research showing conservatives over-estimate their similarity in beliefs to other conservatives while liberals under-estimate their belief similarities to other liberals.

From a litigation advocacy perspective, this work speaks to our belief in the importance of presenting your case with “universal values” rather than allowing hot-button (e.g., political perspective) issues to shape jurors’ perspectives on the case. To the extent that this research is accurate among your jurors, there are some important implications:

Conservative jurors are more likely to expect consensus with other conservatives and more likely to expect a lack of consensus with liberal jurors.

Don’t tell the story in a way that pushes juror’s political beliefs.

Focus on shared values of fairness, education, community involvement, and family connections.

Stern, C., West, T., Jost, J., & Rule, N. (2014). “Ditto Heads”: Do Conservatives Perceive Greater Consensus Within Their Ranks Than Liberals? Personality and Social Psychology Bulletin DOI: 10.1177/0146167214537834

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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

Gallup on lost confidenceLost-confidenceGallup

For several years now, we have watched our mock jurors express increasing disgust at government, large corporations, and politicians. We have written before about their unwillingness to identify with a national political party and the 2014 Gallup Poll showing the same pattern we have been seeing on a national basis.

In a recent pretrial focus group involving an auto accident resulting in death, jurors began spontaneously talking about General Motors and their ignition problems and the choice to keep it a secret (even though GM was not involved in the fact pattern and was not raised in the presentations). They expressed high levels of disgust with GM and then acknowledged that disgust colored their perceptions of the auto manufacturer involved in the current dispute. Then a juror mentioned Wall Street and the mortgage collapse and another mentioned political logjams in Congress and they had to be refocused on the case at hand.

As they deliberated, the themes of disgust and distrust returned repeatedly with jurors who were all-too-willing to assume the worst of the Defendants. From the jurors’ perspectives, the auto maker’s advertising/marketing plan was a lie, the consumer trusted the safety testing as reported, purchased the vehicle, and now they were dead. It could have been any one of them (and when one of them commented on this reality, most of them shook their heads in continued disgust). The damage award was large. The punitive award was larger. And it all seemed affected– or at least consistent with– feelings of disgust and distrust in our institutions.

So when Gallup came out with their recent poll on how Americans are losing confidence in all branches of government, we thought of our mock jurors.

Gallup

In the past 25 years, confidence in our government has eroded pretty consistently with all three branches (the US Supreme Court, Congress, and the Presidency) taking hits as Americans express lower and lower levels of confidence. Currently, fewer than 1 in 10 Americans have confidence in Congress. Does that surprise us? Not really. We’ve been tracking the loss of confidence in public institutions in pretrial research projects over the last 10 years.

From a litigation advocacy perspective, the important thing for defendants is to craft an identity for your client that sets your client corporation apart from the rest. Frame your particular client as different from, or changed from what they once were, and allow jurors to line up in support of corporate change. But you better have credible evidence to show them you really are different because at this point, the public assumes the worst unless you show them something better.

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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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