Archive for the ‘Communication’ Category
The sad and painful tale of Dylan Farrow has emerged again following her letter to the NYT after Woody Allen received the Golden Globes Lifetime Achievement Award. Woody Allen responded to Ms. Farrow’s open letter and she responded to his response. The internet has been on fire with reactions, pro-Farrow, pro-Allen, and everything in between. You can find them with a simple internet search and we won’t link to them here.
This post isn’t really about the letter, the responses, or the internet reaction to them. Instead, it’s about the original judge in the dispute and a cautionary tale for the attorneys who hire expert witnesses everywhere. I first saw the judge’s written opinion when it was sent around on a mailing list. It reads like a “don’t do this” text for the would-be forensic expert witness. There are so many legitimate reasons this case would not have succeeded at trial–regardless of Mr. Allen’s actual culpability.
Among the trial attorney lessons to be culled from the judges’ opinion, are the following:
Be sure your experts are really experts.
“Both Dr. Coates and Dr. Schultz expressed their opinions that Mr. Allen did not sexually abuse Dylan. Neither Dr. Coates nor Dr. Schultz has expertise in the field of child sexual abuse.” (p 22)
Make sure your expert keeps notes made during the process of report completion.
“The notes of the [Yale-New Haven] team members were destroyed prior to the issuance of the report, which, presumably, is an amalgamation of their independent impressions and observations. The unavailability of the notes, together with their unwillingness to testify at this trial except through the deposition of Dr. Leventhal, compromised my ability to scrutinize their findings and resulted in a report which was sanitized, and therefore, less credible.” (p 23)
Make sure your expert documents rationale behind conclusions and does not draw conclusions about anyone s/he has not seen.
“Dr. Herman faulted the Yale-New Haven team for making visitation recommendations without seeing the parent interact with the child; for failing to support adequately their conclusions that Dylan has a thought disorder; for drawing any conclusions about Satchel, whom they never saw; for finding that there was no abuse when the supporting data was inconclusive; and for recommending that Ms. Farrow enter into therapy.” (p 23-24)
Make sure your expert doesn’t say anything ridiculous like they just “know” when someone is not telling the truth.
“He claimed to have an intuitive ability to know if a person is truthful or not. He concluded, “based on my experience”, that Dylan lacked credibility.” (p 24)
Reading the written opinion is disturbing. The level of dysfunction in the Farrow/Allen household appears to have been very high and the judge’s opinion leaves little to the imagination when describing impressions of the adult parties. It is hard to imagine that Yale is particularly proud of the standard of practice by their ‘experts’, if the judge’s characterizations are accurate. It violates both common sense and standards of practice employed by psychologists who do custody evaluations (see the guidelines published by the American Psychological Association). All the more reason to ensure your expert is going to have the highest standards of practice possible and thereby not contribute to a possible miscarriage of justice.
There are some research models whose names seem silly, or at least named for a Taylor Swift song. Oddly enough, there is a large body of research on those who are “habitually sensitive toward victimization” and it turns out they tend to be uncooperative and immoral in “socially uncertain situations”. Apparently, the suspicion and mistrust generated when you are constantly on high-alert for mistreatment results in negative behavior and expectations. You might think of this as a ‘self-fulfilling prophecy’, which is a big problem for these people, because their victimization is also very real.
This article begins with a few descriptive sentences that eloquently describe the internal experience of the person who is “habitually sensitive toward victimization”.
“Trusting someone who should not have been trusted is certainly an aversive experience for everyone; however, people differ in how strongly they worry about becoming the victim of other people’s malicious intentions. And the more people are anxious about ending up being cheated, deceived, and exploited, the more they are sensitive to environmental or social cues associated with untrustworthiness, which, in turn, explains why these people also tend to behave uncooperatively in socially uncertain situations.”
This isn’t really a research article as much as a summary of where the research on the model is currently and where it needs to travel next. We are going to focus on an issue the authors identify as a “suspicious mindset” or “victim sensitivity”.
The authors describe a 10-item measure of “justice sensitivity” which allows one to categorize people with different levels of “sensitivity to mean intentions” through the use of questions such as the following:
It bothers me when others receive something that ought to be mine.
It takes me a long time to forget when I have to fix others’ carelessness.
It makes me angry when I am treated worse than others.
I can’t easily bear it when others profit unilaterally from me.
Our stereotype of “victims” is that they suffer silently. Counter-intuitively, on this scale, people who score high in victim sensitivity tend to “protest and retaliate more strongly” when they are treated unfairly. Of course, most people would reasonably reflect annoyance by the behaviors on the scale, but some people do so more intensely than others. Further, victim sensitivity as measured on this scale reflects concern for the self and not a more global concern of justice for all. Instead, victim sensitivity is related to “jealously, neuroticism, Machiavellianism, paranoia, and a belief in an unjust world, and it predicts uncooperative and even immoral behavior inside and outside the laboratory.”
What is important to know for litigation planning and jury selection is that having high levels of victim sensitivity will mean higher potential for a sudden leap to distrust and suspiciousness (and the resulting inability of the person to reconsider this initial judgment). This could result in an unpredictable negative view of the case facts. It is reasonable to see highly sensitive people as being hyper-critical of anyone who is viewed as victimizing others through their conduct.
Those high in victim sensitivity have what the researchers term a “suspicious mindset” which is negatively related to the willingness to forgive. These are people who would judge harshly and turn a deaf ear toward explanations for behavior.
They will be more likely to “see” cues of untrustworthiness in others but they are less likely to be accurate in their identification of untrustworthiness than those who are not so sensitive to victimization. That is, people who expect to be treated badly tend to see mean people everywhere and therefore exhibit a bias to “see” untrustworthiness where none exists.
It’s an intriguing area for mock trial research. The items on the justice sensitivity scale are not particularly objectionable in content/language, but may be seen as inappropriately personal for voir dire or a supplemental juror questionnaire. The challenge in trial planning may be to find questions or life experiences that correlate well with scores on the scale. For instance, when “The X Files” was a popular show, it also flagged people who were conspiracy theorists and (likely) these kinds of sensitivities. Would fans of other shows now popular be similarly sensitive? Would it correspond to differences between those who live in the exurbs versus the urbanites? Those who have had a bad experience in traffic court or with an insurance claim?
The researchers conclude that “victim sensitivity” represents a “latent fear of being exploited”. We routinely use some questions in our pretrial research that we think tap into that fear but will be adding a few new ones in an attempt to refine our ability to identify those potential jurors who could turn out to be very problematic when it comes to cooperative deliberating. Stay tuned!
Gollwitzer, M., Rothmund, T., & Süssenbach, P. (2013). The sensitivity to mean intentions (SeMI) model: Basic assumptions, recent findings, and potential avenues for future research. Social and Personality Psychology Compass, 7, 415-426 DOI: 10.1111/spc3.12041
The movie Her plays with the idea of Joaquin Phoenix falling in love with a computer operating system (voiced by Scarlett Johansson). And today’s research article isn’t far off that track but….it’s much more applicable to litigation advocacy. These researchers took on the issue of trust in autonomous driving vehicles (computer-controlled, rather than driver-operated– which are expected to comprise 75% of the vehicles on the road by the year 2040). Participants used a simulator that either 1) drove like a normal car, 2) was autonomously able to control steering and speed, or 3) was able to control steering and speed but was also a simulator given a human name, gender and voice (although not Scarlett Johansson’s voice).
While no one reported falling in love with the anthropomorphized driving simulator, the researchers found “behavioral, physiological, and self-report measures” revealed that as the simulator became more “human-like” the participants thought the autonomous driving simulator was more competent. Specifically, participants liked the vehicle more, and they trusted the vehicle more.
However, an odd thing happened when they were involved in an “accident” in their vehicle–even though the accident was someone else’s fault. Those in the agentic (i.e., the car could steer and accelerate independently) and anthropomorphic (i.e., cars that could steer and accelerate independently but also had a name, gender and voice) blamed their vehicle more than did those driving a driver-operated vehicle. But, oddly enough, those in the anthropomorphic condition blame their cars less than those in the agentic condition whose cars could only steer and accelerate! Why would that be? The researchers believe that the more we see inanimate objects as being human, the more we see them as like us, and presumably, give those objects the benefit of a doubt.
For litigation advocacy, this has obvious implications:
Does your case involve a high-tech decision-maker–like a sophisticated piece of software that assesses and decides upon action? Or a robotic level of intelligence? Or, perhaps, it’s a very dry section of a computer program that does a very important but not very exciting thing. Perhaps your device is a surgical robot, or a temperature regulator, or a security algorithm.
The answer in all these situations is to anthropomorphize. Imbue the inanimate object with human characteristics: a name, a gender, a voice. Even cartoon characters can anthropomorphize inanimate objects as seen in this article by Jason Barnes giving high-tech objects human characteristics.
It is a dynamic to which those of us who’ve grown fond of our smart phone personal assistant or of our GPS system’s voices can attest. Why do you imagine that Apple introduced this function first by name (Siri), then by voice (soft, feminine) and only then by function (often imperfect). When our cable television or internet connection goes out, people are usually very irritated and intolerant. When our smart phone gives us inaccurate information or our GPS takes us in circles–we are bemused, confused, or even amused–but rarely as ticked off as with less personalized technology. This research would say it is because we have anthropomorphized our smart phone and our GPS.
So, did a widget or gadget cause troubles resulting in litigation? Give it a name!
Waytz, A., Heafner, J., & Epley, N. (2014). The mind in the machine: Anthropomorphism increases trust in an autonomous vehicle. Journal of Experimental Social Psychology. DOI: 10.1016/j.jesp.2014.01.005
The Jury Expert is a trial skills magazine for attorneys, written by trial consultants, and published by the American Society of Trial Consultants as a (free) service to the litigation community. The February 2014 issue just published and it was worth waiting for!
Here’s a description of what you will see in our latest issue when you visit The Jury Expert’s website:
The ABCs of Religiosity: Attitudes, Beliefs, Commitment, and Faith: Gayle Herde writes this practical article on how you can understand the role religious beliefs could play in juror deliberations. How to measure religiosity (by looking at attitudes, beliefs, commitment and faith), how to listen to responses in voir dire to “hear” religiosity without asking for direct expressions on the role of religion in a potential juror’s life, the relationship of political persuasion and religion, the role of non-belief, and how to structure your SJQ effectively.
Neuroscience, The Insanity Defense, and Sentencing Mitigation: Adam Shniderman gives us a very current, plain language review of the neuroscience arena. What does all the conflicting media coverage mean? What does the research really say? How can you best defend a client with neurological issues? This is a terrific summary of how to understand the “my brain made me do it” media coverage distortions, learn what the research actually says, and then plan accordingly.
A (Short) Primer on Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) Culture in America: Alexis Forbes brings us all up to date on research, why it’s important to understand this culture, and terminology. She includes helpful charts that visually demonstrate the relationships between common terms and even a “say this” and “don’t say that” graphic to help you communicate without offending. You may think you are up to date. Here’s a simple question: Do you know what ‘cisgender’ is? Go read this!
Defense Responses to Jailhouse Informant Testimony: Brittany Bates, Rob Cramer, and Robert Ray bring us this information on how to defend against allegations about your client by a jailhouse informant. From reviewing the literature to offering ideas for pre-trial research and SJQs, this is a practical article for when you are faced with damaging testimony from your client’s alleged jailhouse confidant.
Metaphors and the Minds of Jurors: We are very familiar with the power of the story model for case presentation but, according to Ron Bullis, we may not have paid as close attention to the power of the metaphor. Read this to learn how to listen for metaphors in deposition to hear (and know how to defuse) opposition arguments. This is a practical article that highlights the importance of the metaphor–how you can use the metaphor powerfully, and how you can defuse the power of opposing counsel’s metaphor.
Why Do We Ask Jurors To Promise That They Will Do the Impossible? Suzy Macpherson asks us to think about the impossibility of setting aside preconceived notions, life experiences, and values in order to be “fair and impartial”. This is a practical article that will leave you thinking about how to ask seemingly simple questions quite differently.
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The Top 10 Favorite Articles from The Jury Expert in 2013! Don’t you hate it when you don’t know about something many of your friends, colleagues, and opposing counsel know? Here’s a shortcut for you: This is a list of the top 10 articles our readers (your friends, colleagues and opposing counsel) explored in 2013. Catch up quick!
As Editor of The Jury Expert, one of the real benefits for me is reading all this information first. I love learning new things and being surprised by novel ways of considering complex issues. Please visit this new issue of The Jury Expert now.
Recently, in a multi-panel mock trial, we held our breaths as a 60-something white male business man volunteered to be the presiding juror since he had a lot of experience leading groups. We had purposely loaded the group with only a single strong Plaintiff juror (and a second moderate Plaintiff supporter), knew the new presiding juror was a strong Defense supporter, and wondered if he would attempt to silence the Plaintiff jurors.
We knew we would have to interrupt deliberations if he did so despite very clear guidance (pre-deliberation) to allow everyone to be heard. We were heartened when the initial poll showed a 10-2 split and everyone summarized their thoughts. But, then the presiding juror said, “I’d like to roll back a bit and hear more from our Plaintiff jurors since that opinion is so different. We can learn from them and maybe they can learn from us.”
It was unexpected given the demographics and work history of the presiding juror. Looking closer, there was a clue in his background questionnaire. This was a man with three children, the eldest were in their late 30s and the third was 16. He had commented that it was a whole different world to raise the 16-year-old in than he experienced with the older siblings. That awareness of the importance of change and diversity of opinion in the world around him may have led to one of the most respectful and thoughtful deliberations we have seen, with a majority opinion listening carefully to the (clear and calm) opposing voice. It isn’t what we often see.
New research underscores the idea that the autocratic leader will dampen group collaboration IF the autocrat has a leadership role. If their role is not a formal one, however, the group will not allow the autocrat to take over and group discussion remains healthy and diverse. Researchers completed three separate studies with a total of 402 participants to arrive at these conclusions.
In the first experiment, they put participants into groups but secretly had one group member write (prior to the actual experiment) about a situation in which they had felt powerful. These are the instructions the secret writer was given:
“Please think about a time when you had power over someone. By power, we mean a situation in which you controlled the ability of another person or persons to get something they wanted, or were in a position to evaluate those individuals. Please write 4-5 sentences describing this situation in which you had power.”
This is a well-known way to induce feelings of power. Those who would be assigned as formal leaders were also asked to write about “how the experiences they wrote about could help inform the strategies they would use in team interactions the next day”. The next day, those “formal-leader writers” were given name tags that said “Leader” and in other cases, there was no formal leader assigned despite one member of the group being secretly “primed” (through the prior writing task) for feelings of power.
In the groups where the writer had a tag saying “Leader”, other group members experienced them as talking too much and reported a sense that group discussions were less respectful than in those groups without formal leaders. Team performance was diminished in these groups.
The writers that were not given a name tag saying “leader” were still vocal, but they did not drive the discussion in a negative way, and team performance was higher in these groups without the formal leaders.
The second and third studies replicated the key findings in Study 1 but Study 3 contains an important finding for litigation advocacy. In study 3, some of the formal leaders were given some additional information:
“Each member in the team is representing a different role. So, everyone has something unique to contribute to this task. Given every team member’s unique perspective, obtaining everyone’s views of the situation can be critical in reaching a good decision.”
You will likely not be shocked to learn that those leaders given the specific information on the value of each team member performed much more effectively. Specifically, they were not talking too much, not directing conversation excessively, and not disrespecting members of the group. The researchers conclude that when given formal positions of leaderships, leaders who feel powerful can lead to diminished team performance. When they are in formal positions of leadership, group members are more likely to defer to the leader. This dampening effect of a powerful or autocratic leader can effectively be diminished however, by simply instructing the leader on the value of every individual in the group.
We have advocated teaching jurors how to deliberate for a long time now, but in recent years have begun to specifically add the directive to let everyone speak and to interact respectfully so that the wisdom of the group can emerge. It has made a real difference in the quality of the information we obtain from our pretrial research, and, we believe, is directly transferable to the closing statement and teaching jurors how to deliberate effectively. The presiding juror we described at the beginning of this post took that directive to heart and acted in precisely the way this research would predict. That’s a good thing.
For the fourth year in a row we have been honored with recognition from the ABA via inclusion in their 2013 list of the Top 100 legal blogs in the country. We work hard to blog consistently even when inundated with work and would appreciate your vote for us at the Blawg 100 site under the LITIGATION category. You will have to register your email just so you can’t vote 47 times. There are many worthwhile law blogs on this list so take some time to peruse. Thanks! Doug and Rita
Tost, LP, Gino, F, & Larrick, RP (2013). When power makes others speechless: The negative impact of leader power on team performance. Academy of Management Journal, 56 (5) DOI: 10.5465/amj.2011.0180