You are currently browsing the archives for the Case Selection category.

Follow me on Twitter

Blog archive

We Participate In:

You are currently browsing the archives for the Case Selection category.

ABA Journal Blawg 100!

Enter your email address to subscribe to this blog and receive notifications of new posts by email.


Archive for the ‘Case Selection’ Category

spite voodoo dollWe’ve been down this road before and brought you the Depravity Scale, the Comprehensive Assessment of Sadistic Tendencies Scale, the Guilt and Shame Proneness Scale and the Islamophobia Scale. Now however, it’s time for a check on how spiteful you are. We all know spite when we see it. Dawdling in their parking space because someone is hovering, waiting to get in. Deliberately slowing down on the highway to irritate a tailgater. Spreading gossip that is perhaps less than wholly true because a co-worker angered you. My mother described it as “cutting off your nose to spite your face”. The list is endless. There is even an old Eastern European folk tale where a genie offers a man anything he wishes–providing his hated neighbor gets double the prize. And the spiteful man says, “Genie, put out one of my eyes.” Spite has been with us a long, long time. But now, it is possible to measure one’s spitefulness. Scientifically. In case we want to. Researchers have recently published a 17-item measure of spitefulness. As they developed the scale, they learned some interesting things.

Men are more spiteful than women.

Young adults are more spiteful than older adults.

Ethnic minority members were more spiteful than members of ethnic majorities.

And spitefulness is often accompanied by aggression, psychopathy, narcissism, callousness [low empathy and low kindness], Machiavellianism, guilt-free shame and poor self-esteem. (This one did not come as a surprise.)

However, spitefulness does not tend to co-exist with agreeableness, conscientiousness, self-esteem, or a tendency to feel guilt.

When we are upset, like about partisan politics (when our candidate is losing) or going through a bitter divorce–even agreeable people may have spikes of spitefulness. The authors describe spiteful suicides (intended to traumatize the person who finds them) and spiteful suicides meant to look like homicides framing someone toward whom they (obviously) felt anger and spite. They describe suicide bombers as motivated to get revenge on a hated enemy. Spiteful people are angry. Even if the anger becomes self-destructive. The researchers think the scale is useful in predicting behavior in laboratory settings but also in everyday life (where they see it as contributing to diagnoses of personality disorders and oppositional defiant disorder). They also casually mention applicability to the legal domain where spite has been defined as “the willingness of a litigant to reduce his payoff in order to reduce his opponent’s payoff”. These people would be difficult to mediate with, since they define their self-interest largely in terms of how much distress they can cause the opponent, rather than how much benefit they can achieve for themselves. You can look at the article itself for information on scale development (we will tell you it was scientifically sound) but here, we are skipping right to some sample items because we know you are curious. The scale is only 17 items long and here are a few of the questions used to measure spite.

If a neighbor complained that I was playing my music too loud then I might turn up the music even louder just to irritate him or her, even if it meant I could get fined.

There have been times when I was willing to suffer some small harm so that I could punish someone who deserved it.

I would be willing to take a punch if it meant that someone I didn’t like would receive two punches.

I would consider tapping on my brakes to scare a driver who was tailgating me.

And so on. The idea is that the more items endorsed in a spiteful direction, the more spiteful the person. That makes sense. It is probably true that most of us can be spiteful from time to time, but we know we are being naughty or dumb even while we do it. We don’t embrace it as a life strategy. The question is how often and whether it is a staple of our character. It’s an interesting idea and an intriguing scale to consider. Whether people high in spitefulness are more litigious is a question for future research but it’s an interesting concept to consider as you listen to that new client or applicants for an opening at your firm. Marcus DK, Zeigler-Hill V, Mercer SH, & Norris AL (2014). The Psychology of Spite and the Measurement of Spitefulness. Psychological Assessment PMID: 24548150 Image


psychopath fmri 2013Recently, we wrote about how risk assessment measures do not work on the psychopath. So it seems only fitting we summarize a new article that explains psychopathic behavior using fMRI scans that purport to show how the defendant is not in control of his behavior because “his brain made him do it”. This is an article on whether we should allow the death penalty to be applied to the psychopath. While they don’t say that the convicted psychopath should not go to prison, there are some, according to this writer, saying “a psychopath’s personality neither allows him to care about others nor have empathy for his victims; therefore, juries should not punish a psychopath by imposing the death penalty”.

If you are not familiar with the literature on psychopathy, this article offers a good (and a little scary) summary of psychopathy and the behaviors exhibited by the psychopath. This is not a minimization of the failings of the psychopath–it is rather a summary of the literature on both criminal psychopaths and what the author calls “successful psychopaths” who live among us: “Some psychopaths function reasonably well–as lawyers, doctors, psychiatrists, academics, mercenaries, police officers, cult leaders, military personnel, businesspeople, writers, artists, entertainers….”.

Having made us question nearly everyone around us, the author then describes the various functional brain deficiencies seen in the psychopath (e.g., impaired impulse control, decision-making, and planning; lack of empathy and inability to take other’s perspectives; impaired emotional processing and lack of fear conditioning; among others). She also describes the structural brain abnormalities often present–which leads to the conclusion reached by a current popular singer, psychopaths are “born this way.” There is much disagreement in the research on structural abnormalities in the brain, however, and not everyone with the structural abnormalities in their own brain, is a psychopath. There is apparently a very complex relationship between the brain structure and psychopathic behaviors.

Neuroimaging techniques have been in use for some time now in research on the brains of psychopaths. The author describes the work of Dr. Kent Kiehl (perhaps best known among those working in this area) with fMRIs and the brains of psychopaths, as well as a few lesser-known researchers. fMRIs themselves have been at the core of controversial “his brain made him do it” defenses. The danger, say critics, is that participants view the lovely and brightly colored images and believe the colors really do represent the emotions and thoughts in the brain of the person being scanned. Most neuroscientists say the fMRI is really not ready for courtroom use (and most judges agree). The challenge, says this author, is proving “brain abnormalities identified by the scan actually correlate with psychopathic traits and behavior”. The question remains, do the brain abnormalities cause psychopathy or does psychopathy cause the brain abnormalities detected by the scans? The well-known “dead salmon fMRI test subject” study is discussed as a means of “exposing some of the problems associated with fMRI and brain disorders such as psychopathy….the data, while certainly not useless, is also fallible and tricky”.

The author then returns to Dr. Kiehl who says, “the legal system should treat psychopaths ‘like people with very low IQs who are not fully responsible for their actions’ because psychopaths have low emotional IQs”. Others, many jurors included, see the behavior of psychopaths as chilling and the author believes that “convincing a jury that a defendant’s psychopathy is a mitigating factor might prove difficult”. Multiple studies, according to the author, have shown that mock jurors view the psychopath more negatively than nonpsychopathic criminals and punish them more severely.

In conclusion, the author acknowledges “the deck is largely stacked against attorneys representing psychopathic offenders at death penalty sentencing hearings”. Still, she says, “the positive impact that a neuroscientist’s testimony coupled with a colorful fMRI scan might have on a death penalty jury is a defense strategy worth pursuing”. She also recommends that prosecutors prepare for a detailed cross-exam of this testimony with an eye to discrediting it, and that judges ensure jurors are not confused or misled by the fMRI images.

Overall, the article is a good overview of the literature–it doesn’t cover everything but it certainly hits the highlights, demonstrates the frightening behavior of the psychopath, and raises the question of whether we should apply the death penalty sentence to someone whose brain appears to be abnormal, and whose criminal behavior may be related to that abnormality. It’s a good question. Not as emotionally compelling as the fear and terror often elicited by hearing the specifics of a psychopath’s crime, but certainly a good question.

Phillips, KD (2013). Empathy for psychopaths: Using fMRI brain scans to please for leniency in death penalty cases. Law and Psychology Review.



sadist-amanda-marcotteWe bring you various psychological questionnaires from time to time. You heard about the GASP scale here (a measure of how prone you are to shame and guilt). Let’s not forget we also told you about the Depravity Scale (when describing specific behaviors, just  how creepy, heinous, or depraved are they?). We’ve also shown you items from multiple other “odd” psychological measures but today we are topping them all by introducing the Comprehensive Assessment of Sadistic Tendencies (CAST) Scale. It doesn’t get freakier than this one.

This is a measure from one of the members of Paulhus’ research group. This is the research group that originally identified the “dark triad” of personality characteristics often used to describe those who grow up to be narcissists, psychopaths and Machiavellians. I read this research and I can’t help but to think of bad roommates and ill-advised romances. But there is a range, and one end of the scale gets pretty scary. To wit, sometimes they grow up to be serial killers. Now the members of this fun-loving research group are considering whether “everyday sadism” [which we wrote about earlier] should be added to the three personality characteristics to create a “dark tetrad”. That’s right– there is “everyday sadism”.

We ran across this measure when writing up an earlier blog post on every day sadism which used the VAST Scale (Varieties of Sadistic Tendencies). The CAST is a refinement of the VAST and, as such, we knew you would want to see it. Because when it comes to “everyday sadism”, we know you want to be totally up to date. Here are some sample questions from the measure.

When making fun of someone, it is especially amusing if they realize what I’m doing.

I enjoy physically hurting people.

I have the right to push certain people around.

In video games, I like the realistic blood spurts.

I sometimes replay my favorite scenes from gory slasher films.

In professional car-racing, it’s the accidents that I enjoy most.

There are multiple ways you could use a measure like the CAST. While it is unlikely to be something you can use during voir dire, it may have multiple other uses for your professional and personal life. When you’re interviewing candidates for key positions, you can’t ask questions this weird, but you can allow your radar to keep this spectrum in mind. In some criminal cases, this area of inquiry might be important to explore. And of course, when you are on a first date (or meeting someone your daughter thinks is date-material) it’s all fair game.

The temptations to joke around about this topic are really irresistible, until you think about the people who would agree with those statements. When you hear about people who have compulsive or addictive interest in first-person shooter video games later becoming mass murderers (such as Adam Lanza at the Sandy Hook Elementary School shooting, and Aaron Alexis at the Washington Navy Yard), this sort of “everyday sadism” raises urgent questions. Keep in mind, though, that whatever might be said about players of these violent games, the men involved in these shootings were suffering from paranoid psychoses, not merely a preoccupation with violence.

What this research group tells us is that sadists are everywhere, to one degree or another. Sadists are much more common than we would like to think. They literally walk among us. Now…you have the tool with which to identify them. You’re welcome.

Buckels, E. E., Jones, D. N., & Paulhus, D. L. (2013). Comprehensive Assessment of Sadistic Tendencies (CAST). Unpublished measure, University of British Columbia.

Buckels EE, Jones DN, & Paulhus DL (2013). Behavioral Confirmation of Everyday Sadism. Psychological Science PMID: 24022650



“Don’t hire me”

Friday, July 5, 2013
posted by Douglas Keene

hire me - cardboard signI’ve been reading the reactions online to the testimony of Rachel Jeantel in the Trayvon Martin second degree murder trial. There is shockingly toxic resentment towards this young woman who has clearly struggled to maintain her composure in an alien and hostile environment. Some have said she should have been prepared better. Others have said she is [insert racist insult here]. Still others (by far fewer in number) have said she is a typical girl from her socioeconomic background and education level. It’s the sort of situation where you long to help but there is nothing productive to do. In fact, for Rachel Jeantel, a trial consultant could have made things much worse. Because she was a fact witness, contact with attorneys from either side was not privileged (confidential). And if they had tried to assist her in being more emotionally prepared or effective as a witness it would have created a host of other problems for a naive young woman who wished she was somewhere else.

Rachel Jeantel already had her plate more than full during her courtroom testimony. She clearly did not want to be testifying and was trying mightily to keep it together. She didn’t need to be torn apart by Don West with questions like “What did the jury doctor tell you to say about [this topic]?” for every single area of inquiry. Of course the correct answer is “He told me to be calm and to tell the truth.” But would she be able to stay with that answer? Who knows?  It would be ugly and very sad.

What I would have suggested if I had been asked to work on the case is for me to work with the attorney on how he or she interacts with the witness, and how their prep can be more effective. I might have suggested that I be a fly on the wall during the sessions and call for breaks to talk with the lawyers or even pass them notes. Or watch via closed-circuit. It would not be wrong to prep her as another witness might be assisted. But it could become very un-helpful. Kind of like ‘not guilty‘ is different than ‘innocent‘, in this situation ‘not wrong‘ can still be ‘a bad idea‘.

This sort of sideways and indirect witness preparation isn’t ideal, and it doesn’t produce the quality of results that extensive direct prep would have. But she is not a party, and there are no protections for her or for the party sponsoring her as a witness. To coach or prep her directly could have backfired horribly. I would have counseled the attorneys not to hire me to do it.

I go through two checklists before I take an engagement. One is pretty formal with clients, and another one lives in my head/heart. The one with the client is about conflicts regarding the case (including– but not limited to– parties, witnesses, lawyers, law firms, related litigation). The one in my head is very different. It poses questions like:

Will I feel badly for any reason if I take the case? There are lawyers that I will not work against because they are friends as well as being clients from time to time, and it would feel bad. This comes up about once a year. I hate it when I’m engaged to work on a case and opposing counsel changes to one of the people on my ‘friends list’.

Will my involvement create a problem for me, the case, my career, or my profession? 

I’ve written about the heart aspect of this work before. And this controversy with Ms. Jeantel brought to mind an experience I had some time ago. I was asked to assist with witness prep for a trial. No conflicts, okay. About 7 witnesses. Sure. Happy to do it. The meeting was to discuss various aspects of the case. I knew the opposing counsel and initially hesitated before saying yes because of my friendship with another lawyer at that firm. The fact that I semi-regularly work for the other firm was disclosed to my client, but they were fine with that. The friend/lawyer I work with at the other firm wasn’t on this case, so I said okay.

At the meeting, they told me that they also wanted me to assist with jury selection. I pointed out that opposing counsel would recognize me on sight. They didn’t consider that a problem. I asked them whether there was a motion in limine to prohibit each side from making mention of trial consultants, et cetera. No, there was no such agreement or MIL. And I learned that the two sides involved in this litigation couldn’t agree on what time to stop for lunch, so an agreement at that point on any aspect of the case was simply not going to happen.

I pointed out to them that the opposing counsel might well ask every witness “Has Dr. Keene, the jury psychologist, spent time coaching you on what to say when you testified?” Their response was that the witnesses were employees of the company or retained experts, and the contents of my prep meetings (always, always with counsel present) were privileged. I agreed but pointed out that while the meeting contents are privileged, that question in some form is permitted, and it can become a distraction. It wouldn’t get very far because the judge would stop it, but it could happen. (Overall I don’t think trial consultants getting ‘outed’ in court gets traction with jurors by itself, but I prefer invisibility and fret about it and make sure they understand that it can happen. This was a very acrimonious case with much bad lawyer behavior, so I could imagine mud flying at any opportunity. And I was not oblivious to the possibility that I might been asked to jury selection in part to mess with opposing counsels’ heads.)

Finally, we got around to reviewing the witnesses they want me to prep. And lo and behold, they weren’t just party witnesses and retained experts. Fact witnesses were also in the mix. And they are not protected by privilege. I explored with my clients just how ugly the cross could be if the opposing counsel wanted to walk them through every minute of prep with “the jury psychologist” or “witness coach” or “testimony trainer“. Trial consultants can prep witnesses to an extent about how to handle those questions, but the average neophyte witness is no match for a good trial lawyer, and it could very well end up a mess. The main part of my discussion was “what will the jury remember about this witness? Will their testimony be buried under the controversy or spotlighted by it?”  I didn’t know whether the judge would limit a cross about this at all. This fell into the category of “Will my involvement create a problem for the case?” And it might also fall into the category of “Will I wish I had never answered the phone?

Eventually their interest in putting their thumb in the eye of the opposing counsel gave way to their interest in having me do what they originally asked me to do (assist witnesses). And because I wasn’t there to set off alarms to the opposing counsel, the witnesses were not asked anything about me. I was relieved. First, do no harm.

I realize that everyone has to call their own shots with issues like this. Maybe I worry too much. But part of my “in-head checklist” is about my wish to sleep well at night, and this makes me very uncomfortable. Both for the witness and for the case I have been hired to assist. In the roughly twenty years I have been a trial consultant, these are things I think about before taking on a new case. They remind me that even though I am being hired to achieve a particular goal–litigation is always about the people involved. As difficult as Ms. Jeantel’s testimony was to watch, it reminded me that there was no choice but to essentially put her in the dock and hope for the best.

And Ms. Jeantel– thank you for your testimony. You did your duty as you saw it to your friend, his grieving family, and finally, to the justice system. I’m sorry it was so awful.



unanswered questions - brainstorming conceptWe spend a lot of time asking potential jurors questions and attempting to sort out just what their responses could mean about attitudes and values and beliefs as they relate to our specific case. So it was wonderful to see the new Pew Research Center article on how asking the same question results in different answers depending on how you have worded the question. As it happened, four different major organizations looked at the polarizing issue of the Department of Justice’s subpoenas of reporters’ phone records. CNN/ORC, Washington Post/ABC News, Pew Research, and FOX News all polled the public on the DOJ subpoenas. But, as you might expect, each organization asked the questions a bit differently and, as you might predict, each got a slightly different result. After the differing responses to the differently worded questions on the same issue were published, Pew Research wrote about the reasons ‘why’ each of the four major organizations had gotten the results they had.

The Pew Research article itself is so good and specific that we are not going to summarize it here. They talk about the importance of language, context, and of question order when you are trying to get clear information about how people feel about a specific issue. Suffice to say that while three organizations (CNN/ORC, Washington Post/ABC News and Pew Research) described the DOJ as having “subpoenaed”, “obtained through a court order”, or having “secretly collected” phone records, one organization (FOX News) used the phrase “secretly seized”–and had the most lopsided balance of opinion of any of the surveys. (Go read the Pew article!)  The Pew article describes the practice of “push polling” without actually calling it that.

The Pew article concludes as follows:

“Overall, while wide differences across polls suggest that public reactions may be only loosely formed, there is important information to glean from situations like these. There is likely a core of Americans who support the DOJ’s actions irrespective of the survey language (the 31% who say justified even in the Fox News survey). And another core who concretely oppose it (the 33% who say not justified in the Washington Post/ABC survey). And for the rest, there are clues as to the types of considerations that may affect their views if and when attention grows and information becomes more widespread.”

It’s an excellent reminder to carefully review your questions to potential jurors to ensure that the question achieves what you have in mind. Sometimes push-polling is what an attorney wants (although we aren’t fans of the practice, and neither are most judges).

This article focuses on wording questions in a “low information situation”. Specifically, what that means is that when not a lot is known, how you ask your questions can dramatically influence the responses. Most trials involve “low information situations” although there are obviously some where media coverage results in “high information” or “high misinformation” as the case may be.

Your goal is to ask the sorts of questions you believe will elicit the reactions desired and either to fan the flames of emotionality or to bolster the calm rationality of analytical thinking. Each side is going to attempt to give their jurors ammunition for the deliberation room. The Pew analysis shows just how much a turn of phrase actually matters.