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memory blindnessThis isn’t really about bad memory—it’s about something much scarier—the power of others to modify your memory without your awareness. New research out of California tells us that it is possible to change the statements of the person giving testimony in such a way that they may not even notice! To make matters worse, it is possible the altered testimony will be so firmly accepted as truth by the fact-teller that they even develop a false memory supporting the account.

The researchers label this effect “memory blindness” and define it as our failure to recognize our own memories. For those of you who remember the flurry of controversies about implanted memories and “False Memory Syndrome” (such as the McMartin Daycare scandal from 1983), and the research done by Ralph Underwager, Elizabeth Loftus, and Richard Ofshe, this will sound familiar. It was seen as something fairly common in children, but this research addresses how susceptible adults are, too.

You may think this impossible but the researchers found it not only possible but disturbingly easy to achieve. The researchers conducted two experiments. In the first, they showed 165 undergraduate student-participants a slideshow of a woman who interacted with three different people—one of whom ultimately stole her wallet. Fifteen minutes after they had watched the slideshow, participants were asked questions similar to what the police would ask (e.g., how tall was the thief, what was the thief wearing) and their responses were written down. Fifteen minutes after that response, the participants were shown their responses in written form but, the researchers had randomly changed three of their answers so they were incorrect. The researchers let another 15 minutes pass and then asked the participants the same “police type” questions to see if they changed their answers.

The majority of the group did not notice their responses had been changed and when asked the questions the second time, repeated the information that was not what they had initially reported but instead was the incorrect information inserted by the researchers.

As an aside, only 18% said they thought “something was odd” in how the experiment was conducted. The researchers do not know what the other 82% were thinking but had to assume they did not notice anything amiss with their responses.

In the second experiment, the researchers gathered 379 participants to watch a slide show of a man stealing a radio from a car. This time, instead of asking the participants what they had seen happen, they were asked to pick the thief out of a photo lineup (with “relatively dissimilar faces”). The misinformation in this second study was telling the participants they had selected a different person from the lineup than they had originally identified.

Over half (53.7%) changed their answer in the final photo array to match the false feedback—which means that 47.3% realized their choices had been changed.

The researchers say that eye witnesses given typed copies of their statements to sign may not notice errors (due to typographical mistakes or more nefarious reasons) and that reviewing their incorrect statements alone may contaminate their memories. Even though almost anyone would say that they wouldn’t fall for this kind of mistake, the majority of participants did not notice changes and modified their reports to match inaccurate reports of past behavior.

Still others might say the police would never alter statements intentionally, and to them we would encourage a review of the Hillsborough disaster in the UK (more than 25 years ago) where almost 100 people were crushed to death during a football match. A recent inquest uncovered the reality that eye-witness testimonies had been “deliberately altered” by the police.

It is disturbing to realize that our memories can be so easily messed with by researchers and more disturbing to see examples of the same thing done by the police. While we’ve blogged before about the lack of reliability of eye-witness testimony, this is certainly another one to add to the list of reasons to question the memory of those who assert they “saw it with my own eyes”. If memory can be altered in as short a time delay as 15 minutes, it can certainly be altered over the time it takes a case to come to trial.

Cochran KJ, Greenspan RL, Bogart DF, & Loftus EF (2016). Memory blindness: Altered memory reports lead to distortion in eyewitness memory. Memory & Cognition PMID: 26884087

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moralityEarlier this week we wrote a post about how to invoke morality as a persuasive strategy with your jurors. Now Gallup has helped us by identifying the moral values most Americans agree on and the five about which they most disagree.

Gallup measures views on moral issues each year (since 2001) as part of their tracking of attitude shifts on social issues. They assign respondents to one of five religious groups (e.g., No religion, Jewish, Catholic, Protestant, Mormon) and then measure their attitudes on various social issues to determine what they see as moral and not moral. True, it is not a complete religious typology, but it is an interesting start.

They vary a bit from their typical single (annual) survey presentations by combining all their data from 2001 through 2016: “Results for this Gallup poll are based on combined telephone interviews in Gallup’s 2001 through 2016 annual Values and Beliefs poll, conducted each May with random samples of U.S. adults, aged 18 and older, living in all 50 U.S. states and the District of Columbia”. This gives them a total sample size of 16,754 Americans opining on moral issues.

Here are the moral issues which most religious groups in the US generally agree are either “morally acceptable” or “not morally acceptable”:

Divorce, death penalty, wearing clothing made of animal fur, medical testing on animals—are all viewed as morally acceptable with more than 50% of respondents agreeing.

On the other hand, suicide, cloning humans, polygamy, and extramarital affairs are seen as not morally acceptable (again, as measured by less than 50% of Americans surveyed agreeing they were morally acceptable behaviors).

And here are the moral issues which religious groups in the US generally disagree on (that is, some see them as acceptable and but the majority do not):

Abortion, doctor-assisted suicide, cloning animals, gay-lesbian relations, having a baby outside marriage.

We’d consider these five to be “hot button issues” which may make jurors close their minds to the facts of your case rather than considering the circumstances involved. Intriguingly, one of the religious groups measured (the Mormons) was distinctly different when it came to their views on premarital sex, stem-cell research, and gambling.

Mormons are more likely than other religious groups to view stem cell research negatively by a slight margin (54%). They see premarital sex as clearly morally unacceptable (71%) and gambling is viewed askance as well (with 63% saying gambling is morally unacceptable).

While it is important to stay abreast of research pointing toward new litigation advocacy strategies like our post on “making it moral”, it is also important to keep up with changing attitudes toward social issues and how religious beliefs and affiliations may result in differing attitudes from the norm. Know your venue, know your jurors, and keep up to date as societal attitudes shift and sway.

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John Oliver recently took on mass media coverage of scientific findings on his HBO show, Last Week Tonight. The result is a searing videooutrageous headlines mocking the distortions and misinterpretations (and even flat-out lies) about research findings as presented in mass media. Since his episode aired (a link to the video is at the end of this post) another one came out. You perhaps read about how taking acetaminophen (aka Tylenol) will make you less likely to feel empathy for the pain of others. The article (full article here) makes note that this is an initial research effort and more work obviously needs to be done but the headlines were sensational and they were everywhere:

Medical News Today: Does acetaminophen reduce empathy?

CNN: Study: Acetaminophen dulls your pain — but also your empathy

Washington Post: This popular painkiller also kills kindness

Before it’s News: Tylenol PROVEN to KILL emotions, ERASE empathy!

There were many, many more headlines along these lines—135,000 according to a quick Google search. And then, slowly, science bloggers emerged with posts saying the media translation was, in too many cases, just plain wrong.

Neurocritic: Acetaminophen probably isn’t an “empathy killer”

Greatist: Why everyone needs to calm down about Tylenol and Empathy

One of the problems was of, course, that this is a single study. Second, the sample was undergraduate students and only 200 of them at that (so, a small sample). Third, the effect was fairly small and if true, would probably not be noticeable. And that doesn’t even include the statistics behind the work. Neurocritic goes into extensive detail on why he doesn’t think the statistical tables are reported accurately. Even readers of the Washington Post version were appalled at how the study was described with hyperbole and offer multiple common sense reasons they would not take this study seriously. “I call horse dooky” says one reader, and others use a few more words but communicate essentially the same message. Gizmodo weighs in on the controversy by balancing a flashy headline and making sure cautions are pointed out (albeit in a single paragraph at the tail end of the article).

From a litigation advocacy perspective, one way to apply this cautionary lesson is to think about it in terms of your expert witness. A discredited expert can torpedo your case. So how do you ensure you know about potential landmines in your experts’ testimony?

It is critically important that someone read (and understand) the original source document that is being relied on to support the testimony. That seems pretty obvious but it’s easy to overlook all the original source documentation when skimming summaries for salient details.

Make sure your expert knows what is published but also knows how to explain it to jurors in a way they can understand.

Make sure your expert witness includes supporting documentation for any opinion the opposing expert may present as a rebuttal.

This can easily be introduced on direct examination with a question like, “Okay. Now what would someone who disagreed with your opinion have to say?” and after the witness has responded, follow-up with “And how would you respond to that?”

There are other suggestions for expert witnesses and if you are interested in those, please read our prior posts on expert witnesses. Now, in the event you missed it, here’s John Oliver mocking mass media accounts of research findings. While he doesn’t say it here, we believe he would echo our call to “read the primary source”.

 

Mischkowski D, Crocker J, & Way BM (2016). From painkiller to empathy killer: acetaminophen (paracetamol) reduces empathy for pain. Social Cognitive and Affective Neuroscience PMID: 27217114

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screaming-womanIt’s tough to see the same old themes come up over and over again but—here we go again… Women who react emotionally are seen as less intelligent, but if they react in a “measured and manly way” they are thought not trustworthy. In other words, you can’t win for losing.

“Men were rated as both more emotionally competent and more intelligent in general when they showed restraint. For women, however, the opposite pattern emerged, in that they were perceived as more emotionally competent and intelligent when they reacted immediately.”

In other words, say the researchers, we expect men and women to act according to gender stereotypes and we are suspicious of those who fail to behave accordingly.

Participants in the first study (59 undergraduates from the University of Haifa in Israel—30 men and 29 women) were shown photos found to elicit both sadness and anger. Then they watched videos featuring different people allegedly reacting to those same images. Half of the actors reacted almost immediately (within 1/2 second) while others did not show an expression change for a second and a half. After viewing the videos of people reacting to the images, the participants rated each character for “emotional competence” and assessed their level of sensitivity, caring, and the appropriateness and authenticity of their reactions.

Men who paused for 1.5 seconds prior to changing their expression were seen as more emotionally competent. Women who paused were seen as less emotionally competent.

The second study (with 58 students) was much the same as the first but the participants also rated the perceived intelligence of the character in the video.

“Men who showed delayed reactions were perceived as significantly more intelligent than those who reacted immediately, whereas for women, delayed reactions resulted in less perceived intelligence.”

The authors say that these results reflect the strength of gender stereotypes about women as “more emotionally volatile but also more emotionally competent” and say that when women delay their reaction to an emotionally charged image they may be seen as “strategic rather than spontaneous”.

From a litigation advocacy perspective, this will be important when considering the impact of male and female witnesses, for preparation of parties, and even for attorney behavior in the courtroom. You are always being watched and evaluated. Assumptions are going to be made for better or worse.

Help jurors see your female witness/party/self as thoughtful and competent but as having learned to stop and consider actions and consequences prior to reacting. That is done more by offering jurors some context for respecting the witness or party, rather than trying to train them to significantly change their response style. In other words, this time it has to be about teaching the jurors how to judge quality, rather than teaching the witness how to overcome the gender bias.

Hess, U, David, S, & Hareli S (2016). Emotional restraint is good for men only: The influence of emotional restraint on perceptions of confidence. Emotion

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grammarpoliceHere’s another sneaky way researchers try to figure out your real feelings rather than your politically correct and overtly verbalized feelings. This is research from Nextions showing bias still exists in the legal field and it’s about your grammar. Well, really, it isn’t about grammar—it’s about race. On the other hand, the sample size is low (slightly above 50 law partners returned the survey) so you could say this isn’t what you would do…and in fact, not everyone would do what was found among this research group.

Here’s what they did in this very simple study. Researchers had five attorneys cooperate in writing up a legal research memo on trade secrets at internet startup companies. The researchers then placed 22 errors of various kinds into the memo. The researchers sent the legal research memo to 60 partners in law firms who were asked to assess it as an example of the “writing competencies of young attorneys”.

Fifty-three of the partners actually returned the writing sample with comments (that’s an 88% return rate which is quite good). In the event you are interested, of the original 60 partners, 23 were women, 37 were men, 21 were racial/ethnic minorities, and 39 were White. The participating partners were asked to edit the memo for “all factual, technical and substantive errors” and then asked to rate the overall quality of the memo on a scale from 1 (“extremely poorly written”) to 5 (“extremely well written”).

So here is the catch: half of the partners were told the writer was Black and half were told the writer (one Thomas Meyer who was described as a third-year associate with a degree from the NYU School of Law) was White. In other words, the associate’s credentials were exactly the same—the difference was that half thought he was Black and half thought he was White. You have likely already figured out how this turned out but we’ll tell you anyway.

When the partners were told the associate was Black, they judged his written memo much more harshly.

The following descriptions of the way Black and White associates writing was critiqued is quoted from Nextion’s report:

“In regards to the specific errors in the memo:

An average of 2.9/7.0 spelling grammar errors were found in “Caucasian” Thomas Meyer’s memo in comparison to 5.8/7.0 spelling/grammar errors found in “African American” Thomas Meyer’s memo.

An average of 4.1/6.0 technical writing errors were found in “Caucasian” Thomas Meyer’s memo in comparison to 4.9/6.0 technical writing errors found in “African American” Thomas Meyer’s memo.

An average of 3.2/5.0 errors in facts were found in “Caucasian” Thomas Meyer’s memo in comparison to 3.9/5.0 errors in facts were found in “African American” Thomas Meyer’s memo.

The 4 errors in analysis were difficult to parse out quantitatively because of the variances in narrative provided by the partners as to why they were analyzing the writing to contain analytical errors. Overall though, “Caucasian” Thomas Meyer’s memo was evaluated to be better in regards to the analysis of facts and had substantively fewer critical comments.”

Vox did a nice summary of this study and translated Sexton’s narrative descriptions into a chart making it easier to ‘see’ the differences identified by law partners when they thought the writing sample was from a White associate or a Black associate.

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Nextion says this study tells us that due to confirmation bias, law partners are more harsh when judging Black associates’ writing. The Vox review cautions us that we are talking about a fairly small sample here (53 partners in total) and each partner only reviewed one writing sample.

If, says Vox, the partners reviewed more than one writing sample and those who reviewed Black associates writing were always harsher—that would mean the partners were harsher for Black Thomas Meyer than they were for White Thomas Meyer. Since the partners only reviewed one writing sample—we cannot be sure if this is an artifact of some partners being harsher than others or if it is truly bias that tells us Black associates are judged more harshly. Or those who reviewed it might have been having a bad day. Maybe.

The qualitative comments shared from the partner’s reactions remind us of the inconsistent comments we often get from our mock jurors as they evaluate witnesses based on brief deposition excerpts. Remember—before reading these reactions to the writing samples—the law partners received identical memos—the only difference was whether they thought the writer was Black or White.

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From the perspective of law office management—this study reminds us (again) to pay attention to making all of our evaluations as objective as we can so our subjective (and often biased) opinions do not enter into our evaluations. What that means is that you need to look at the specific expectations of the position and list objective criteria for evaluation related to hiring, raises, promotion, and assignments to various cases.

Our biases are almost always hidden from us (it’s called a bias blind spot) and studies like this one, if reliable, tell us we are not as open to diversity as we may want to believe. If you are concerned about managing diversity effectively and other aspects of leadership, you may want to visit our other posts under the Law Office Management category.

Nextions. (2016) Written in Black and White: Exploring confirmation bias in radicalized perceptions of writing skills. http://www.nextions.com/wp-content/files_mf/14468226472014040114WritteninBlackandWhiteYPS.pdf

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