Archive for the ‘Communication’ Category
Earlier 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.
John Oliver recently took on mass media coverage of scientific findings on his HBO show, Last Week Tonight. The result is a searing video 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?
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”
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
It’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
Here’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.
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.
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
If you are seeking empathy and understanding from jurors hearing your case—go for middle-aged adults—and, in particular, middle-aged women. If you are thinking the sample size of this study cannot possibly be large enough to draw that sort of conclusion—think again! This is a study based on 75,263 adults in the US.
In the study, late middle-aged adults said they were more likely to react emotionally to the experiences of others and that they were also more likely to try to understand how things looked from the perspective of others. Both men and women “of a certain age” were more likely to report higher empathy but women were especially likely to do so. (And in case, like us, you are finding it more difficult to ascertain just when “late middle age” might be—the researchers define this as someplace between 50 and 60 years of age.)
Basically, the researchers examined responses from the General Social Survey which measured empathy in both 2002 and 2004. And surprisingly, these were the two smallest samples (1,353 adults in 2002 and 1,330 in 2004). Additionally, the authors conducted an online survey of 72,580 US adults between 18 and 90 years of age wherein they measured both empathy and perspective taking. (Note: While the GSS surveys are random and nationally representative, the researchers large online sample is not.)
Here is what they found on empathy:
Women reported higher empathy than men in all three samples.
In 2002, the GSS sample showed no significant differences in empathy based on ethnicity. In 2004, African-Americans had lower empathic concern than European-Americans. And in the online survey—African-Americans, Asian Americans and “especially Hispanic Americans” reported higher empathic concern than European Americans. (The authors make a point of stressing that the effects were fairly small.)
The effects of age were consistent across all three samples. Empathic concern was higher in older than in younger adults. The most common interpretation of this is that younger jurors haven’t experienced enough pain and suffering to appreciate its debilitating effects.
And here is what they found on perspective taking (which is akin to empathy and basically assesses how likely you are to attempt to put yourself in the “shoes” of another). Note: perspective taking was only assessed in the online sample and not in the GSS samples.
Women had higher self-reported levels of perspective taking than did men.
European Americans had lower perspective-taking than those of other ethnic origins (this effect was small).
And older adults had higher perspective taking than younger adults.
The researchers explain their results in clear and easy-to-understand language. “Specifically, empathy was expected to show an inverse-U-shaped function across the adult life span, with middle-aged adults scoring higher than young adults and older adults. Indeed, we found empirical evidence for this pattern in the case of both empathic concern and perspective taking in all three samples.”
For the non-statisticians among you, what that means is that both younger and older adults are less empathic and less likely to take the perspective of others than are middle-aged adults.
The researchers don’t know whether this is a true age effect or the result of generational experiences since this age range reflects younger Baby Boomers who grew up during sweeping societal changes that emphasized the feelings and perspectives of others.
From a litigation advocacy perspective, this is an intriguing study. If we know that women report higher levels of empathy than do men and we know the same pattern holds true for self-reports of perspective-taking—and, we know that empathy seems to peak between ages 50 and 60—when all else is equal—you likely would be better off choosing the woman between 50 and 60 for your jury.
As an aside, we always caution against blanket assumptions that “women are better for Plaintiffs and men are better for Defendants”. It simply is untrue. But this finding, when coupled with other information from careful pretrial research, can be instructive in voir dire and jury selection.
O’Brien E, Konrath SH, Grühn D, & Hagen AL (2013). Empathic concern and perspective taking: linear and quadratic effects of age across the adult life span. The journals of gerontology. Series B, Psychological sciences and social sciences, 68 (2), 168-75 PMID: 22865821