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conspiracy theoriesIt is no secret that we are intrigued by conspiracy theorists here at The Jury Room. Not only are they good for entertainment value during pretrial research, they are also very useful to help us plug holes in case narrative that could derail deliberations. When it comes to the actual trial though, conspiracy enthusiasts are usually seen as too risky for either side, and their presence often results in agreed strikes.

Here’s an interesting piece of research that doesn’t really help us to identify the individual conspiracy buff, but, does tell us the sort of environment in which the conspiracy theorist thrives.

These researchers believe that emotional uncertainty creates a desire (even a need) to compensate. We try to achieve a sense of certainty and, despite how odd it may sound, there is comfort in the conspiracy theory (since it can provide an explanation for why things are the way they are). Whether it is a reasonable or logical explanation is not what is important. And it isn’t just conspiracy theories that give us comfort in times of uncertainty. Horoscopes, seeing real or even illusory patterns, belief in a strong government or a “controlling and interventionist god”– all these things give a sense of stability and order in the world. Or as the authors put it,

“Whether one finds comfort in a strong government, astrological predictions, or vast conspiracies mapping out our fates, all are responses potentially driven by the uncertain seeking predictable structure in our capricious world.”

So, the researchers wanted to see if emotional uncertainty could affect conspiracy beliefs, beliefs in the paranormal, or the tendency to defend government actions. They used emotions that resulted in both certainty and uncertainty, as well as positive and negative emotions. Specifically, they examined happiness and contentment (certain and positive emotions); anger and disgust (certain and negative emotions); surprise and hope (uncertain and positive emotions); and worry and fear (uncertain and negative emotions). Once they identified these emotions, they asked 251 participants (112 male, average age 32.5 years) recruited from an online survey program to:

“Please recall a particular incident in which you were very [emotion]. What made you feel [emotion]? Recall this situation as vividly as you can. Please describe this situation in which you were [emotion] — what happened, how you felt, etc.”

By asking for this description of the situation, the researchers are “priming” the research subjects to re-experience the emotions. In this pretest, they found that when they asked participants to respond to this stimulus, participants felt the emotion described and their experiences were indeed experienced as either certain or uncertain (as the researchers had intended). The researchers then moved on to three separate experiments.

In the first experiment, the researchers examined the support of governmental defense and had 98 participants complete the same emotional recall task. They found that those in uncertain emotional conditions scored higher on (that is, they felt more strongly positive about government defense.

When they were uncertain, they wanted stronger governmental defense.

On the second experiment, the researchers looked at conspiracies and the paranormal. The 97 participants completed the same emotional recall task as before and were then asked to read scenarios that were purposely ambiguous “as to whether several individuals were coordinating their efforts to obtain an outcome”. Then they answered items from two scales measuring their belief in the paranormal. Again, those in uncertain emotional conditions showed greater endorsement of conspiracy beliefs and greater endorsement of belief in the paranormal.

When they were uncertain, there was higher belief in both conspiracy and the paranormal.

Finally, in the third experiment, the researchers looked at whether they could intervene in a way that would negate the power of the uncertain emotions. They cite prior research saying “having individuals contemplate and affirm important values they hold increases many positive states, including perceptions of personal control”. This time the researchers asked 161 participants (161 male, average age 29.8 years) to identify which of six values taken from  the Allport-Vernon-Lindzey Values scale were most important to them. In the affirmation condition, the participants were asked to complete a subscale on the same value they had ranked most important. This, said the researchers, gave the participants the opportunity to self-affirm (that is, focus on things of greatest importance to themselves, giving them a greater sense of self-assurance). Those in the no-affirmation condition completed a subscale on the value they ranked as least important to them (and thus had no affirmation).

This time, those who had uncertain emotions but were given a chance to self-affirm, had no desire for increased government defense. In other words, self-affirmation worked to help participants feel they had control and structure and thus they did not look to external aids (like increased government defense) to help them feel safer.

Overall, say the researchers, uncertainty in emotional state–regardless of whether it is positive or negative– leads to a desire for structure and a sense of control. Thus, uncertain people are prone to accept conspiracy theories, belief in the paranormal, and to endorse agreement with higher levels of governmental defense. Those tendencies can be curbed, however, by offering the uncertain individual self-affirmation. Self-affirmation stabilizes the uncertainty and allows the individual to respond in a measured way not driven by the uncertainty.

This raises interesting questions about case presentation at trial. There is a tendency to want to satisfy jurors’ interest in “knowing” all of the facts. But this research says that in some cases, leaving jurors with a sense of uncertainty or foreboding might actually bring them to a state of mind more useful to your case.

Do you want to focus their attention on a particular alleged wrong-doer (typically a Plaintiff or Prosecution goal), or do you want to create a diffusion of responsibility, where it is borne by a number of parties, perhaps some not named in the dispute (more likely a Defense goal)?

So part of the task for the psychologically savvy trial lawyer is to give thought to what kind of emotional tone is best for jurors to carry into deliberations.

Do jurors tend to favor your position when they feel centered, focused on their values and priorities, and confident?

Do they think your way when they are worried or anxious, uncertain about life, and powerless?

This knowledge won’t change the facts, and the impact of this research is nuanced. But when you are seeking out every advantage you can identify, this is one that shouldn’t be overlooked.

Whitson, J., Galinsky, A., & Kay, A. (2015). The emotional roots of conspiratorial perceptions, system justification, and belief in the paranormal Journal of Experimental Social Psychology, 56, 89-95 DOI: 10.1016/j.jesp.2014.09.002

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brain scienceIf you think neurolaw and neuroscience are everywhere–and don’t find it particularly challenging to talk about brain science, apparently you are living in a very rarified environment. It’s hard to believe but evidently, most people do not think the exploding field of brain science is fascinating! Instead, when they think of brain science they think of things that are far removed from their daily lives and things that make them anxious. [Or bore them to tears.] For litigators this has crucial ramifications, since any body of technical information that is worth presenting to a jury requires understanding if it is to be useful.

UK scientists interviewed 48 London residents about “brain science”. They found that most of the interviewees believed that they would only find themselves interested in learning more about brain science if they developed a neurological illness. Maybe… too little too late?

The researchers identified four themes in the participant’s interviews: the brain is something in the science domain; there was significant angst that something could go wrong with the brain; there was a belief that we are all in control of our brains to some extent, and that our brains are what makes us all different and unique. The individual quotes the researchers included however, highlight the lack of awareness of brain science or research:

“Brain research I understand, an image of, I don’t know, a monkey or a dog with like the top of their head off and electrodes and stuff on their brain.” [Male participant]

“It does conjure up images of, you know, strange men in white coats.” [Female participant]

“You just, like I say, blind people with science, don’t you. And then it becomes a subject that you just don’t understand. With me, I just switch off. I’m not understanding what you’re talking about here, so I just switch off.” [Male participant]

“Where do these people come from, that actually understand these things?” [Female participant]

The researchers highlight the reality that most people do not see “brain science” as something relevant or a part of their lives. However, if an individual developed a mental illness or a neurological condition–they believe they would have more interest in learning. Without those catalysts, however, they have little interest in pushing themselves to understand more. The researchers report the concept of “brain science” seemed foreign or “baffling” to most of those interviewed.

From a litigation advocacy perspective, this study highlights the importance of teaching the science. Whether “the science” of a specific case is patent law, high-tech and abstract concepts, or actual “brain science”–jurors need to hear it and have a sense that they understand it enough to actually make judgments on the case. Keep in mind that they are going to judge it whether it is understood or not. The question is simply whether the judgment is going to be informed by bias, by knowledge, or by a coin flip and a longing to be done with jury duty. We know from 20 years of interviewing jurors that they strongly prefer having clear understanding. And that, dear litigator, is up to you.

We have worked on cases in which animation helped jurors make sense of complex computer programming and on others where the analogy of ordering a pizza with different toppings or a hamburger with or without special sauce were used to help jurors understand different technology applications in an especially complex patent infringement case. We’ve also worked on cases where there were allegations of neurological injuries but a very normal looking Plaintiff and jurors had to “see” the injuries somehow to help them understand what had been lost.

Never lose sight of how foreign the concepts truly are, and help jurors understand so they do not have to “shut off” as one of the interviewees in this study confessed to doing. Often, our mock jurors help to make the abstract and complex both concrete and simple, or at least familiar. Just because you have been buried in a case for years and live, eat and breathe the science, doesn’t mean jurors will have a clue about what you are presenting to them. Teach them in a way that helps them relate the abstract and esoteric to their everyday lives. It empowers them to make the right call. If you don’t know how to explain it to ‘real people’, gather a group of mock jurors and ask them what makes sense, where they get lost, and what analogies are most useful to them. If you invite them to the conversation in the right way, they’ll tell you.

O’Connor, C., & Joffe, H. (2014). Social Representations of Brain Research: Exploring Public (Dis)engagement With Contemporary Neuroscience Science Communication, 36 (5), 617-645 DOI: 10.1177/1075547014549481

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Leftover treasures: This and that

Monday, December 8, 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

leftovers

Like that cranberry sauce* shoved to the back of the refrigerator, this post contains small “leftover” treasures to which we do not want to devote an entire post but which we would like to share with you.

Tattoos, Piercings and the Workplace

You may have noticed we have quite a collection of posts about tattoos here at The Jury Room. We’ve said it is because we may have some tattooed 20-something kids but it is also perhaps because we are very curious about anything that stirs up bias or strong feelings in the observer. While tattoos may seem like yesterday’s news, in some people they still arouse strong reactions. And apparently in some corporations as well. A recent post at The Act of Violence identifies various corporate policies against tattoos and body piercings: Starbucks, for example, allows no tattoos that show (and now no “gem-encrusted rings or diamond-heavy wedding rings”).   Other companies ask that tattoos not carry “racist, anti-religious, demeaning, profane, or hostile” messages. Still others apparently have a “percentage policy” wherein they say you may not have more than 30% of your exposed skin showing visible tattoos! Piercings, embedded jewelry, branding, scarring, and other body modifications are undoubtedly giving HR personnel across the country heartburn as they figure out how to respond to individual employees. This is an interesting post well worth visiting.

Don’t send that cover letter!

Speaking of the workplace, if you are on the job market, don’t just get in touch with your own pain–get in touch with the pain of the hiring manager. Here’s a Forbes piece on what they call human-voiced resumes. It’s a way of communicating to that hiring manager that you not only understand, but that you would be terrific to work with, rather than using a cover letter and making the mistake of leading with your “passion”.

“Meanies” online get more attention

So if what you want is attention, just be mean. Snarky. Sarcastic. People will think you are smarter and you will get re-tweeted a lot when you are mean (at least according to this Wired article). It’s called the “negativity bias” and this is how Wired describes it: “when we seek to impress someone with our massive gray matter, we spout sour and negative opinions”. So, when you see people being mean online, just know they are trying to impress you with how smart they are.

Do I want to vote for brains or potential lifespan?

Speaking of how smart people are, let’s take a look at how people decide who to vote for when faced with several political candidates. You guessed it, here’s a study (presented in a podcast that hit boingboing.net) saying when choosing whom to vote for, people prefer candidates who look healthy over those who seem smart. Here’s a website with an example of what, in this study, constituted a healthier looking person versus an intelligent looking person.

Would that be a homonym, homograph, or homophone?

Many people have trouble with words that sound alike but mean different things. You may have noticed that popular word processors often share that trouble. Here’s a terrific infographic that may even help you figure out the difference between “affect” and “effect”. If you know the difference you do not have to creatively use “impact” in place of either “affect” or “effect”.

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*And as for that leftover cranberry sauce, try it on a grilled cheese sandwich with a hearty bread the sauce will not penetrate.

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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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