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Archive for the ‘Communication’ Category

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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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

Trust-InfidelityOur clients are routinely stunned by the accuracy of  mock juror impressions of witnesses and parties based on a 6 to 8 minute video clip from depositions. Mock jurors quickly assess character and are often eager to share their insights. Their comments can be insightful, surprising, and sometimes biting in their judgments. So, okay. It’s probably reasonable that brief observation can point out annoying or distracting behaviors, impressions of trustworthiness, and unflattering attire or hairstyles. But what about predicting infidelity after watching romantic partners interacting for no more than 3 to 5 minutes?

The researchers conducted two different experiments. The first included 51 undergraduates (16 men and 35 women aged 18-23 years with a median age of 19) who participated along with their romantic partners. The undergraduates (N = 51) completed questionnaires prior to the experiment to assess their “emotional and physical infidelity”, while the romantic partners (who may also have been college undergraduates) did not complete questionnaires. Then the couples were videotaped completing a drawing task where one of the partners was blindfolded and the other gave instructions on what to draw. Later, six trained coders watched the videotapes (with a focus on the five questions listed below in this post) and accurately predicted infidelity at a level above chance (p=.05).

In the second experiment, 43 undergraduates (21 male, 22 female, ranging in age from 18 to 33 years with a median age of 20) participated with their respective romantic partners. This time, both members of the partnership completed questionnaires and the researchers summed “infidelity mean scores” for each participant based on their responses to whether they had been unfaithful and how “far” their infidelity had gone. The participants then completed the same drawing task the participants in the first experiment completed. Five trained coders viewed the videos and rated the participants with a “perception of cheating index” (based on their own observations when considering the five questions listed below). Specifically, what that means is that the participants self-reported on their own infidelities (the mean infidelity score) and then the coders observed and rated the participants (the perception of cheating index). Again, the observers (aka coders) were able to identify who had cheated on their partner at a level above chance (p=.01). In this second experiment, the researchers found that the observer’s sense of how trustworthy and committed a person  was to the relationship mediated the judgments of infidelity.

What does this mean? Apparently, we can “see” infidelity, if we are simply asked to observe interactions and then consider the “right questions” (such as those the coders were assessing as they watched the videos).

“How likely is it that this person has shown interest in an alternative to his/her partner?”

“How likely is it that this person flirted or made advances on someone other than the partner?”

“How likely do you think it is that this person has had sexual intercourse with someone other than his/her partner?”

“How committed is the participant to the relationship?”

“How trustworthy did you perceive this person to be?”

While we have never asked the first three questions, the last two questions are quite similar to some of the judgments we ask our mock jurors to make about our witnesses based on short snippets of videotaped depositions.

A number of years ago we did a focus group on a case with salacious tales of infidelity, strained family relations and abortion. The Plaintiff was a wealthy Mexican-American man, and many of our mock jurors were Hispanic (of various national origins). We wondered how the bad facts of our client’s behavior would be heard by those jurors. What we saw was intriguing. The Plaintiff was honest. He neither denied nor minimized his behavior. He described what he’d done and was direct and engaging in his testimony. The jurors loved him! While they didn’t want a friend of theirs to date him, they also felt that he was honest, in spite of his infidelity. The mock jurors (from all ethnic groups) did not like his sexual behavior (well, to be fair, some of them did!), but they liked him and were actually more critical of his spouse (whom they saw as cold and punitive).

It is an intriguing case to consider in light of this research. What if that Plaintiff had lied or minimized his multiple infidelities? What if he had not been seen as trustworthy? We will never know because he did not and he was. While we can apparently “see” infidelity, it appears that trust trumps infidelity in the eyes of the observer.

Witnesses who tell the truth about bad facts but are also likable, may elicit unexpectedly positive reactions from the triers of fact.

LAMBERT, N., MULDER, S., & FINCHAM, F. (2014). Thin slices of infidelity: Determining whether observers can pick out cheaters from a video clip interaction and what tips them off Personal Relationships DOI: 10.1111/pere.12052

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euphemism treadmillIt’s a constantly moving target. Just over a year ago, we wrote about this on-going question and cited a Gallup Poll saying 65% of Black Americans have no preference when it comes to labels used to describe their racial or ethnic group. The authors of today’s research article would disagree. They say there are consequences (and loads of meaning) behind the two labels.

Stephen Pinker first coined the phrase euphemism treadmill in 1994. The phrase refers to a descriptive term that was once acceptable, but has now become pejorative. An example would be the word “crippled”, replaced by “handicapped”, which was then replaced by the phrase “person with disabilities” or, in some circles, “differently challenged”. When you write, and use an outdated, once acceptable but now pejorative phrase, you run the risk of being seen as biased, unaware, old school, or downright insensitive.

So, in 2013, Gallup said it really didn’t matter. Today’s writers demonstrate, via four separate studies, that we have very different associations to the labels “African-American” and “Black”. Specifically, we make assumptions about “Blacks” being lower in social status, less educated, and less competent than the “African-American”. In brief, here are their findings:

The label “Black” signals lower social class and status than does the label “African-American”. Further, the label “Black” evokes more negative stereotype content (as well as assumptions of lower status and less feelings of warmth) than does the label “African-American”.

Media articles on crime reports are more negative in emotional tone when they use the label “Black” then when they use the label “African-American”.

Whites view a criminal suspect more negatively when s/he is identified as “Black” rather than “African-American”.

The dilemma with these two polarizing labels (“Black” and “African-American) is that White observers are attaching presumptions based on racial labels. Instead of using either of these long-standing descriptors, these authors propose the use of a new descriptor: Americans of African Descent (AADs). Their belief is that use of a new label will short-circuit the stereotypes (positive and negative) that accompany the currently used labels and require judgements to occur based on the individual. Whether this will catch on or not, is anyone’s guess. But, staying on top of trends and labels is an important part of the work for all of us.

So, is it “Black” or is it “African-American”?

Or, should it perhaps be “Americans of African Descent”?

As mentioned above, Gallup says it doesn’t seem to really matter to the target individuals being described. But today’s authors say it matters a lot to the listener as “Black” and “African-American” have become cognitive shortcuts for many of us. So what to say?

The cynical might say it all depends on the reaction you want to evoke in the listener. That would mean that if you want to evoke a less positive attribution to a person, use the word “Black”, and if you want to imbue them with more of an upscale aura, use “African-American”. Either can be used to evoke the more negative or the more positive associations.

Our guess would be it’s a lot more nuanced than that. While there were a few more than 370 participants across four studies, we would like to see a bit larger sample to ascertain whether this stereotyping of racial labels occurs across the country or if it is limited to certain regions. We also don’t really know what stereotypes might arise if someone was described as an “American of African Descent”. Further, who knows how long the new label will encounter resistance, or how and when it might be co-opted by time.

In short, it’s an intriguing variable to consider. Are we indeed evoking racial stereotypes when we describe individuals as either “Black” or “African-American”? Is that what we really mean to do?

Hall, EV, Phillips, KW, & Townsend, SSM (2014). A rose by any other name? The consequences of subtyping “African-Americans” from “Blacks”. Journal of Experimental Social Psychology. 

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