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TJE_logoThe August issue of The Jury Expert is up and we think you’re going to want to see this. Here’s a rundown of the articles you’ll find at the website.

Demographic Roulette: What was once a bad idea has gotten worse. Authored by Doug Keene and Rita Handrich with a response from Paul Begala, this article takes a look at how the country has changed over the past 2 decades and our old definitions of Democrat or Republican and conservative or liberal are simply no longer useful. What does that mean for voir dire? What should it mean for voir dire? Two very good questions those.

If it feels bad to me, it’s wrong for you: The role of emotions in evaluating harmful acts. Authored by Ivar Hannikainen, Ryan Miller and Fiery Cushman with responses from Ken Broda-Bahm and Alison Bennett, this article has a lesson for us all. It isn’t what that terrible, awful defendant did that makes me want to punish, it’s how I think I would feel if I did that sort of terrible, horrible awful thing. That’s what makes me want to punish you. It’s an interesting perspective when we consider what makes jurors determine lesser or greater punishment.

Neuroimagery and the Jury. Authored by Jillian M. Ware, Jessica L. Jones, and Nick Schweitzer with responses from Ekaterina Pivovarova and Stanley L. Brodsky, Adam Shniderman, and Ron Bullis. Remember how fearful everyone was about the CSI Effect when the research on the ‘pretty pictures’ of neuroimagery came out? In the past few years, several pieces of research have sought to replicate and extend the early findings. These studies, however, failed to find support for the idea that neuroimages unduly influence jurors. This overview catches us up on the literature with provocative ideas as to where neurolaw is now.

Predicting Jurors’ Verdict Preference from Behavioral Mimicry. Authored by Matthew Groebe, Garold Stasser, and Kevin-Khristián Cosgriff-Hernandez, this paper gives insight into how jurors may be leaning in support of one side or the other at various points during the trial. This is a project completed using data from actual mock trials (and not the ubiquitous undergraduate).

Our Favorite Thing. We often have a Favorite Thing in The Jury Expert. A Favorite Thing is something low-cost or free that is just fabulous. This issue, Brian Patterson shares the idea of mind mapping and several ways (both low-tech and high-tech) to make it happen.

The Ubiquitous Practice of “Prehabilitation” Leads Prospective Jurors to Conceal Their Biases. Authored by Mykol C. Hamilton, Emily Lindon, Madeline Pitt, and Emily K. Robbins, with responses from Charli Morris and Diane Wiley, this article looks at how to not “prehabilitate” your jurors and offers ideas about alternate ways of asking the question rather than the tired, old “can you be fair and unbiased?”.

Novel Defenses in the Courtroom. Authored by Shelby Forsythe and Monica K. Miller, with a response from Richard Gabriel. This article examines the reactions of research participants to a number of novel defenses (Amnesia, Post-Traumatic Stress Disorder (PTSD), Battered Women Syndrome (BWS), Multiple Personality Disorder (MPD), Post-Partum Depression (PPD), and Gay Panic Defense) and makes recommendations on how (as well as whether or not) to use these defenses.

On The Application of Game Theory in Jury Selection. Authored by David M. Caditz with responses from Roy Futterman and Edward Schwartz. Suppose there was a more predictable, accurate and efficient way of exercising your peremptory strikes? Like using a computer model based on game theory? In this article, a physicist presents his thoughts on making those final decisions more logical and rational and based on the moves opposing counsel is likely to make.

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lying to womenBack in 2012, we wrote about which gender was the more moral in negotiations. (Spoiler alert: it was women.) Now we have a new article on why women get lied to in negotiations. Not when or if–but why. Basically, people believe women are more easily misled than men and people believe women to be less competent than men. Therefore, “negotiators deceived women more so than men, thus leading women into more deals under false pretenses than men”. The researchers completed three separate studies and (to add insult to injury) these were not experiments using the ubiquitous undergraduate. These research participants were adults in the working world.

In Study 1, 131 employees (75 male and 56 female) at an online marketing research website participated in the research. (Gender was the only demographic information collected so we don’t know their educational backgrounds, average age or racial identity.) Participants were asked to imagine they were selling a used car and posted an ad on a community website. They were then approached by a male (or female) buyer. The participants were told that the buyer appeared to be a typical (male or female) negotiator. They were then asked to rate the imagined buyer on eight different traits: warmth, kindness, business sense, ambition, gullible, naïve, arrogance or stubborn. The researchers added four additional traits: easily misled, impulsive, confident and knowledgeable.

Women were perceived as both less competent and more easily misled in negotiations than were men. (These variables were derived using multiple traits rated by participants: Ease of being misled = Easily misled + Gullible + Naïve + Impulsive; and Competence = Good business sense + Confident + Knowledgeable + Ambitious.)

In Study 2, 394 employees (116 female, average age 32 years, 74% White, 7% Black, 5% Hispanic, 11% Asian, 1% Native American and 2% ‘other’) at Amazon Mechanical Turk participated in the research. These participants were asked to imagine someone (the Seller) was selling an antique chair said to be worth $1,250 according to a popular buying guide. However, one of the legs was broken and would cost $250 to repair correctly. Instead, the Seller fixed it temporarily knowing it would become wobbly again with use. The only way the Buyer would know the chair was defective is if the information was disclosed by the Seller. Again, a male and female buyer approached the Seller.

Again, women were perceived as more easily misled and as less competent. Women were believed to be less able to detect deception on the part of the Seller.

Undaunted, the researchers continued on to Study 3. This time the participants were 298 full-time MBA students (221 of whom were male) enrolled in a negotiations course. They were paired into 149 dyads (65 male-male, 23 female buyer-male seller, 48 male buyer-female seller, and 13 female-female). Research participants completed the “Bullard Houses” role-playing exercise which basically simulates a real estate transaction. They were randomly assigned to negotiate as the buyer’s agent or the seller’s agent. The buyers’ agents could either tell the truth, misrepresent, or tell an outright lie about their intentions in order to lure the sellers’ agents into a deal. And you will never see this finding coming.

Female negotiators were deceived more than male negotiators.

The researchers say that women at the negotiating table are going to be offered less favorable deal terms (based on past research) and they are going to be lied to more often than men. As the researchers looked more closely at the ways in which women were deceived, they found that women were told more blatant lies than were men and men tended to be told the truth. The researchers summarize their findings this way:

“The gender bias in deception appears driven by a greater propensity to tell women blatant lies in a situation in which men tend to be told the truth.”

This study is disheartening for any number of reasons, and it raises questions about how universal this general pattern is. From a litigation advocacy perspective, this series of studies tends to indicate women may simply be lied to rather than being allowed to engage in actual negotiations about case issues. Are they more subject to men failing to properly disclose in discovery? More often victims of spoliation of evidence? Dirty tricks at trial?

The researchers wonder if their findings could help explain the gender gap at high levels in business organizations. Women, say the researchers, may shy away from negotiations since they will be lied to and thus be at increased risk of entering into deals on the basis of false pretenses. While okay as a hypothesis worthy of testing, it is not at all supported by evidence. Let’s see an experimental design that looks at “what do women do when they know that they are being lied to by men?”. And, let’s be clear– it is more than ironic (“sexist” comes to mind) to think of this in terms of women somehow being less effective because of their weariness over men lying to them. Aren’t we talking here about being lied to? By men? We would say that until the social stereotype that women are easy to mislead is changed, and men stop lying in ways that are less likely when dealing with other men, awareness will do little to change the outcomes of their negotiations, mediations, and settlement talks.

Kray, LJ, Kennedy, JA, & Van Zant, AB (2014). Not competent enough to know the difference? Gender stereotypes about women’s ease of being misled predict negotiator deception. Organizational Behavior and Human Decision Processes.

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RIP Demographics? Well, probably not…

Friday, August 22, 2014
posted by Douglas Keene

RIP demographicsWe’ve just published a new article in The Jury Expert that “should” signal the death of the simplistic use of demographics in voir dire and jury selection. Will it? Not likely. Partly this is the fault of courts that are becoming increasingly restrictive of time and the scope of questions posed to jurors. If litigants cannot ask substantive questions, they are left to rely on the broad impressions, which are often wrong and are generally based on stereotypes rather than knowledge of individual biases.

Be that as it may, we still think it’s important for all of us to know how changes in society as a whole will make a difference in how we need to think about voir dire. There are changes that have shifted the landscape of our communities and venires, and even our basic assumptions about there being a continuum from liberal to conservative with a moderate center. Some of these big changes have now been documented. You know that moderate center? Well, to the extent it is still there, it is vastly more complex, and defies labeling. You know how Democrats are more liberal and Republicans are more conservative? We can no longer make those blanket assumptions.

Americans are now more focused on specific issues. You will find, for example, a Democrat who leans left on many issues but is more conservative on issues involving faith and family. You will find, as another example, Republicans who lean right on many issues but support other issues that “Republicans just don’t support”. And in the center, you will find many people (indeed, the majority) who are not consistently liberal and not consistently conservative. On the other hand, they are also not consistently moderate. We’ve been watching this shift for almost a decade now with political affiliation simply no longer being an effective way of understanding individual mock jurors.

It really is about the issues. It’s something we have said for years– it isn’t demographics, it is the person and what matters in their life experience. Demographics (even tidy, long-standing descriptors like political affiliation and whether one is liberal or conservative) do not tell the story nearly as well as the individual’s values, attitudes, beliefs and experiences. But, don’t just take our word for it. How about considering the results of a 2014 survey of more than 10,000 Americans (randomly selected and nationally representative)? The results represent an eye-opener that allows us to compare American opinions and how they have shifted and turned upside down in the two decades since Newt Gingrich’s Republican Revolution of 1994.

Please visit our new articleDemographic Roulette: What Was Once a Bad Idea Has Gotten Worseover at The Jury Expert. We are pleased and flattered that Paul Begala (Democratic strategist, author and CNN Contributor) reviewed the issues and our article, and offered his take on the study.

Tell us what you think. We think it should be a game-changer.

Douglas L. Keene, & Rita R. Handrich (2014). Demographic Roulette: What Was Once a Bad Idea Has Gotten Worse. The Jury Expert, 26 (3.)

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less than fully humanHere’s an intriguing article on how some nurses cope with stress. If you think, based on the title of this post, they do it by dehumanizing their patients, you would be correct. Somehow we think this is not a good thing to admit on the witness stand, but it is an understandable and human reaction to the stressful and often upsetting work that nurses have to do.

Essentially, what these researchers found was that “the more patients are perceived as rational and moral, the more nurses are likely to suffer from stress, while the more patients are perceived in terms of instinct, drive, impulsiveness, the less nurses suffer from stress. In other words, it seems that perceiving patients as less than human makes more bearable their suffering and protects nurses from stress symptoms”.

There is no argument that those in the nursing profession experience very high levels of stress. There are likely a range of coping mechanisms nurses employ to maintain their emotional balance and avoid burnout.

A few years ago, we were in Kentucky researching juror reactions to a wrongful death case and watching deposition excerpts of a nurse struggling to maintain her composure while answering questions about her own actions during the ultimately catastrophic delivery of a child. She was clearly distraught in our eyes. However, when mock jurors observed her, several saw her as cold, uncaring, and “not even shedding a tear for this poor baby”. It was so far from what the labor and delivery nurse was really feeling that the mock juror reactions were a shock to her.

It became important in witness preparation to help her share the joy and privilege she felt at assisting in the birth of a child, feeling the joy of each family over her years of service, and then juxtaposing the trauma of seeing a childbirth go terribly wrong despite doing everything she felt able to do to prevent it. She went from being cold and uncaring during pretrial research to being one of the best witnesses for the Defense. And the best way to prep her and to structure her direct examination would not have been clear without that pretrial research. Instead of being professionally aloof, she was encouraged to join with the jurors in their emotional distress, while talking about the reasons she was unable to prevent the tragic outcome. In this case it did appear that the responsibility for the birth trauma was not hers, and once she became more ‘real’ to the jurors, they saw it the same way.

It’s interesting, with that case in mind, to review this research. It is one thing to use various strategies to cope in the moment. It is another to use that same strategy in an attempt to seem strong and competent on the witness stand when the observing jurors want to see your humanity and your caring for the person (or in this case, newborn) who died. Part of being mentally healthy is being able to flexibly move between different modes of self-presentation depending on the situation in which you find yourself.

When we are under stress (like when testifying about our role in the death of a newborn in a wrongful death suit), it is natural to become more rigid and less flexible. Anyone who has a heart is deeply disturbed by the outcome, and the best nurses want to distance themselves from the tragedy. The challenge is to understand what the listener wants from you. They want to trust your skills, but also your humanity. They want to know you care. They want to know you feel sad for the parents that will never again hold their child. You don’t have to have done anything wrong to have those feelings and jurors will understand that. It’s a strange concept, but sometimes witness preparation is a lot like a mini-therapy session wherein  the goal is to learn to communicate the whole of your message effectively.

Trifiletti, E, Di Bernardo, GA, Falvo, R, & Capozza, D (2014). Patients are not fully human: a nurse’s coping response to stress. Journal of Applied Social Psychology. 

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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

pinnocchio motivational speaker

The deception research is enough to make you lose faith in humanity. You are left to conclude that everybody lies. You can trust no one. And to make matters worse, most of us can’t identify a liar very well. We’ve written a bit about the deception literature but the work we are covering today is good for the soul. Overall, the researchers say lying is a less frequent occurrence than one might think based on the deception research and the frequency of lying is not distributed evenly across the population. In other words, not everyone lies after all!

The large majority [95%] of us are “everyday liars”–we tell small lies that are not particularly hurtful. Think of an everyday lie as “Those pants don’t make your butt look big”. But a small minority of us [5%] are “prolific liars” who lie about big and small things. The prolific liar is the one to beware of, as they are responsible for 50% of the lies told. Most of us are able to distinguish between what we think of as “small lies” and what lies constitute “big lies”. For every single big lie told by the everyday liar, the prolific liar tells 19 big lies! Maybe for entertainment, or for personal gain, or just out of habit.

The researchers found patterns and differences between everyday and prolific liars in the US and then found very similar patterns in the UK except they lie more frequently across the pond with almost 9.7% of the UK sample being prolific liars compared to 5% in the US. Here are some of the differences found between the everyday liar and the prolific liar:

The everyday liar is most likely to lie to their mother while the prolific liar is most likely to lie to their partners and children.

Prolific liars are more likely male, younger and to work in management roles.

Prolific liars were more likely to say their lying had led to losing jobs and relationships.

While there are apparently more liars in the UK, the researchers explain how to determine if someone is “just” an everyday liar or is a prolific liar. The cutoff number of lies told (to categorize someone as an everyday liar versus a prolific liar) is different for the US and the UK.

In the US, it is common for people to report telling 0 to 2 lies a day. In the UK, it is common for people to report telling 0 to 4 lies a day.

So, the researchers say that in the US, the prolific liar will tell 3 or more lies a day while the UK prolific liar will tell 5 or more lies a day.

Everyday liars say they tell perhaps one small lie a day and one big lie a week. The prolific liar tells almost 3 big lies a day in addition to the 6 small lies they acknowledge each day.

You may question whether prolific liars would admit their lying ways. The researchers say that self-reports of lying seem to be quite accurate (based on past research) and that since these “how much do you lie?” surveys were completed anonymously, they think that gives the data more credibility since social desirability responding would have been minimized.

Everyday liars say they lied more as children but the prolific liars have practiced their craft throughout their lifetimes. The prolific liar tells lies in every area of their life–whether it is work, friendships, or intimate personal relationships. And their behavior has consequences. Prolific liars are 4x more likely to report losing a significant other due to their lies and 9x more likely to have been fired for dishonesty.

Prolific liars feel, however, no more guilt about lying than everyday liars. The prolific liar has a high frequency of lies and a low-level of guilt while the everyday liar has a low-frequency of lies and a low-level of guilt. The researchers point to this discrepancy as a reason the two groups should be studied separately.

As the researchers say, “it is normal for people to tell a few lies, and many lies are minor transgressions or simply efforts to avoid being hurtful”. The prolific liar (whether in the US or the UK) operates outside the norms for lying and thus needs to be studied separately.

Alas, there is nothing in the article to tell us how to differentiate between the everyday liar and the prolific liar except asking them how often they lie. Then we are in the ironic position of relying on a liar to tell us the truth (face-to-face) as to who they really are and thus, how we can expect to be treated.

Serota, K., & Levine, T. (2014). A Few Prolific Liars: Variation in the Prevalence of Lying Journal of Language and Social Psychology DOI: 10.1177/0261927X14528804

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