Archive for the ‘Communication’ Category
So you need to ask someone to do something and that “something” lies in the morally murky or ambiguous realm. We won’t offer examples of what that favor may be, but you know what we mean. You may wonder when is best to ask. Right after you’ve begun the day (and they’ve had ample coffee)? At lunch? At the end of the day? When?
Science to the rescue! While we know you would never use science for evil (or even the morally murky), consider this an interesting tidbit for cocktail conversations. You’ve probably seen the study about hungry judges and decision-making. When judges get hungry, they just say ‘no’ to parole. Once they eat, the likelihood of parole returns to where it was at the beginning of the morning session. Aha! You say. Asking for that morally murky favor is best right after lunch.
The answer is kind of, sort of. As it turns out, we are more likely to behave morally or ethically earlier in the day. Self-control, it would seem, is a finite resource and when we are tired or depleted, we cannot easily access that self-control. Researchers completed four separate experiments and consistently found evidence supporting higher levels of “moral behavior” in the earlier part of the day. The findings were consistent whether the participants were the ubiquitous undergraduate sample or people of varying ages who were recruited online.
Participants in all four experiments were given the opportunity to cheat, and those completing the experiments in the afternoon were more likely to cheat than those completing the experiments in the morning. Oddly, those who self-reported higher levels of morality (the researchers describe these people as “least likely to morally disengage and thus expected to generally behave more ethically”), were most likely to fall prey to the afternoon decline in moral behavior (as indicated by rate of cheating).
The researchers discuss this work as a contribution to the body of work on “bounded ethicality”. This is an area suggesting unethical behavior is “due in part to psychological processes and cognitive biases that lead people to engage in certain behaviors without consciously recognizing the ethical implications”. As we get increasingly tired throughout the day, we are more prone to simply act, without seeing the potential repercussions (or the ethical implications) of our actions.
The authors suggest the following to help “good” people avoid doing “bad” things:
Organizations may want to have increased vigilance for unethical behavior (of both customers and employees) in the afternoon as compared to the morning.
Individuals may want to complete morally relevant tasks in the morning rather than in the afternoon or evening. Delaying decisions on morally relevant tasks until the next morning might produce a better result.
Time of day isn’t really an excuse for engaging in morally questionable or clearly unethical behavior, but it’s helpful to know that we are more likely to make bad choices when we are more tired or, as the researchers say, depleted.
So, if you were the sort of person who would ask someone to do you a morally questionable favor, this research would say the end of the day (or maybe that mid-afternoon slump) is the best time.
If you are not that sort of person (like the vast majority of our readers) it is a powerful insight to not agree to do things in the late afternoon when you are tired but, instead, to put off those decisions until the next morning! Preferably after your coffee.
Kouchaki M, & Smith IH (2013). The Morning Morality Effect: The Influence of Time of Day on Unethical Behavior. Psychological Science PMID: 24166855
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
Two weeks ago we did a mock trial with a group of attorneys who were passionate about their case and yet got along very well with each other. It was a high-adrenalin experience that lasted 48 hours. On the morning of the second day, the Plaintiff attorney went into the presentation room a little early and sat down. There was good-natured commenting from his colleagues in the observation room that he was trying to influence the jurors.
Suddenly, one of the jurors complimented him on his necktie and others (all middle-aged women) chimed in as well. The attorney smiled and said he had three daughters and the middle daughter picked out his ties. There was uproar in the observation room as the opposing attorney’s protested the unfairness of this personal interaction with the jurors. When the Plaintiff attorney returned to the observation room after his presentation, he grinned and stroked his (very attractive) tie as his colleagues griped about ‘undue influence’. Later, we found multiple comments on written questionnaires about how “very, very likable” the “first attorney” was for the mock jurors.
We always assess likability, credibility, and trustworthiness as mock jurors view witness deposition excerpts and assess the attorney’s presentations. But new research on ‘what leaders look like’ has us contemplating adding dominance to this lineup of personal characteristics assessed by our mock jurors. Apparently, dominance cuts both ways, but competence and trustworthiness are a golden pairing.
Researchers from the University of Delaware examined how participants inferred personality traits of political candidates based on looking at their faces. According to these researchers, the literature on competence, trust and dominance is very mixed.
Some studies show that a first impression of dominance can lead to positive social outcomes in real life for politicians and CEOs, and even managing partners of the top 100 law firms in the US. Others show that impressions of dominance can backfire when people resent feeling controlled by dominant leaders. The authors think there is a fine line between when dominance feels like competence and when it veers off into feeling like coercion. They also report multiple studies have combined dominance and competence into a single composite score and this, opine the researchers, could mean dominance is given credit for positive outcomes that should be explained by competency.
So, the researchers designed their studies to separately assess dominance and competence inferences made when participants examined photos of faces of candidates for the U.S. Senate. The outcome measure was whether the candidate actually won their election in the real world. Findings were consistent across three studies:
Being seen as trustworthy increased the chance the candidate actually won the election, but only if they were also perceived as competent.
Being seen as dominant increased the chance the candidate won the election, but only if they were also perceived as competent. When competence perceptions were controlled, dominance was not related to electoral success.
The researchers say that when you are highly competent, if you also “look trustworthy”, this increases your chances of positive outcome. And when you are perceived as dominant, it can create a backlash against you (when benefits associated with competence are removed) due to the possibility of fear (on the part of voters) of an authoritarian leadership style. In these studies, candidates who were seen as dominant, were also seen as being unlikable and untrustworthy.
The analogy that came to my mind as I read this material involved driving a car. If you drive authoritatively—then you are fast, aggressive, and dominant. It’s a high-risk approach that works well in the minds of some people as long as you are a really good driver. But the risk of doing harm is far greater with someone like that than it is for someone who is less dominant and aggressive.
It’s an intriguing characteristic to ponder in the litigation setting. We have assessed trustworthiness, credibility and likability for years now. But dominance? It would be an intriguing wrinkle for us to consider.
What about a witness leads jurors to assess him or her as dominant?
Is that a good thing in litigation or a bad thing like in political candidacy?
In the particular mock trial noted above, jurors tended to think the Plaintiff attorney’s case was more credible. But they also liked his tie and his story of his middle daughter picking out his ties. He was likable and he created a friendly connection. He was competent. And in the mock juror’s perceptions–he was also dominating his opponents. This is one we will consider at length in designing new research questions and strategies.
As an aside and unrelated to this research [although not to the larger issue], apparently leaders also look like men. An image search for “how leaders look” came up with entirely male faces. To see female faces, we had to select “famous women leaders”. While it’s hard to miss Oprah gracing this post, the question of why women don’t look like leaders is likely a whole ‘nother post.
Chen, FF, Jing, Y., & Lee, JM (2013). The looks of a leader: Competent and trustworthy, but not dominant. Journal of Experimental Social Psychology. DOI: 10.1016/j.jesp.2013.10.008
How do empathy, accountability and fairness interact to result in preferential treatment (but with the best of intentions)? You know we are looking at this with an eye toward litigation implications and it isn’t even that much of a stretch. The researchers are looking at the workplace supervisor/supervisee relationship to assess how knowing that an employee is having a rough time might result in differing (i.e., preferential) treatment to a “needy employee”.
What they find is that when someone is “needy” and the supervisor is aware of this, the needy employee is given preferential treatment over other employees who don’t present as being in special need. When supervisors knew others would find out what they had done, they were less preferential to the needy employee. The researchers called this condition “high accountability”. However, when accountability was low (i.e., the supervisor thought no one would know what they had done), the needy employee received preferential treatment. And here’s the surprising part, the reason research participants made that choice was because they wanted to be fair. If someone is having a tough time, isn’t it more fair to cut them some slack? Empathy would say it is. Justice would beg to differ.
The researchers refer to this as the chronic tension between empathy and justice. We want to alleviate the distress someone we have warm feelings toward is having. But we also need to consider fairness for all in the group or situation. How can we be both empathic and just?
The researchers suggest we need a “more nuanced and complex understanding of the relationship between empathy and fairness”. They refer to the Sonia Sotomayor Supreme Court nomination hearings and the controversy over her remarks on empathy. The researchers conclude with an eloquent turn of phrase:
“The tension between empathy and justice represents a tug of war between head and heart, two noble yet complex bases of motivation. We feel it important to recognize this tension, and to appreciate that empathy may come with pitfalls and that acts regarded as unjust may be rooted in the best of intentions.”
We see examples of this tension routinely in our pretrial research. Some jurors are driven by the head and others by the heart. During deliberations we hear thoughts like, “this is just so sad, my heart breaks for them” and rejoinders like “but they said we shouldn’t let sympathy figure into our decisions”. And these two positions are often negotiated to come to something the mock jurors see as either fair or “legal”. A hybrid is the oft-present, “it may be legal but it sure isn’t right” position we hear when jurors are disgusted with egregious behavior that meets the letter of the law, but not the juror’s sense of fair play or human decency.
There are times when emotion clearly plays a part in juror decision-making. We would say it is likely much more often than scholars (or senators) may like to think. We’ve seen powerful examples of this phenomenon recently. There are times when you can have a majority of jurors who make decisions with their heads and not their hearts. Sometimes the empathy for the specific party over-rides the evidence. Is that just? It’s debatable. Is it just to simply apply the letter of the law and stifle the larger concerns for fairness you may have? That’s also debatable. And that tension between empathy and justice is why, after all these years, we still find ourselves surprised, comforted, disappointed, disturbed, and more by the best decisions of a group of twelve. Our belief is, after seeing hundreds of groups deliberate, is that juries do the very best they can as they struggle to make decisions. We feel. It’s part of being human. Jurors feel too. And it’s part of how they (and we) make decisions.
Blader, SL, & Rothman, NB (2014). Paving the road to preferential treatment with good intentions: Empathy, accountability and fairness. Journal of Experimental Social Psychology. , 50 DOI: 10.1016/j.jesp.2013.09.001
As Editor of The Jury Expert since we moved to an online publication in May, 2008, I am proud of what The Jury Expert has become. We recently moved to a quarterly publication schedule to give us a little breathing room in the breakneck pace of the work. The latest edition of the Jury Expert is now available.
Taming the Reptile: A Defendant’s Response to the Plaintiff’s Revolution by Ken Broda-Bahm, Ph.D.
The Reptile Approach has been immensely popular among the Plaintiff Bar and many articles have discussed the benefits and drawbacks of this approach. Rather than going down that road again, we are publishing a look at how to attack the soft underbelly of that scaly reptile. How do you circumvent a snake? You start by reading this Defense approach to the Reptile Theory.
The Truthiness of Visual Evidence by Eryn Newman, Ph.D. from the University of California at Irvine, and Neal Feigenson, J.D. from Quinnipiac University School of Law
Stephen Colbert has made “truthiness” a well-known concept. “You don’t look up truthiness in a book. You look it up in your gut.” So what happens when truthiness comes to your courtroom and then makes it into the deliberation room? Two researchers take a look at how truthiness interacts with visual evidence and a trial consultant (and visual evidence expert) responds.
Neutralizing Negative Pretrial Publicity: A Multi-Part Strategy by Adam Shniderman, M.A. from the University of California at Irvine
Negative pretrial publicity is a nightmare. You have to address it but how to do that effectively is often a puzzle. This writer presents a multi-part strategy (e.g., pre-trial, during voir dire, and during the case presentation) to not only addressing, but neutralizing negative pretrial publicity.
When Does a Defendant’s Impulsivity Exculpate vs Incriminate? by Clayton Critcher, Ph.D. from the University of California at Berkeley, and Yoel Inbar, Ph.D. from Tilburg University, The Netherlands
Did your client make that decision fast or slow? As it happens, the observer may attribute immoral character to those that make a fast decision, or they may attribute a higher level of morality to those that seem to weigh the evidence and consider their choices before deciding. So what can you do to frame the decision made by your client in a way that will benefit and not harm them? Two researchers tell us about their work and two trial consultants respond with their thoughts on applications to litigation advocacy. The researchers also make a brief reply to the trial consultants comments.
We often have a “new” favorite thing in our issues of The Jury Expert. Typically, it’s something new (or new to many of us) and we are introducing you to something we’ve found that is just wonderful. This time though, it’s a little different. This has been around forever. Truly. But we think that just because you’ve known about it forever doesn’t mean it can’t be your new Favorite Thing too!
Inaccuracy in Political Self-Perception: Young Adults Are Not as Conservative as They Believe by Michael Bernstein, Ph.D. from Pennsylvania State University, Abington, and Ethan Zell, Ph.D. from the University of North Carolina at Greensboro.
There are basic things we all know about ourselves. You are tall or short. You have straight hair or wavy/curly hair or, perhaps no hair. Your eyes are brown, or blue, or hazel–more or less. And you are liberal or conservative. We know these things to be true. Except when we don’t. New research shows us that we may be inaccurate in what our politics truly are–especially when we are young. You may not be as liberal or as conservative as you think. Two researchers share their findings and two trial consultants consider this in the context of their day-to-day work in litigation advocacy. The researchers then make a brief reply to the consultants.
Book Review- Social Media as Evidence: Cases, Practice Pointers, and Techniques by Rita Handrich, Ph.D. of Keene Trial Consulting
Social media was fairly new not long ago and now it is a basic consideration of voir dire and jury selection (not to mention concerns over social media during the trial itself). This book (from two attorneys at DLA Piper) covers the basics of social media investigation, pitfalls, and offers multiple techniques for voir dire. Read this review and see if you’d like to add the book to your library.
A new research review says thinking fast can improve our mood, and increase risk-taking, confidence and problem-solving. The author discusses the experiences of running, skiing, driving over the speed limit as all having the capacity to excite, elate and energize us. But we do not have to be moving fast in order to improve our moods. All that is required is for our thinking to shift into a rapid pace and our mood improves. It isn’t always clear whether we want relatively ‘happy’ or ‘sad’ jurors going into deliberations, but, according to the author, improved mood increases the sense of urgency to take action. There are times we want jurors to deliberate quickly (relying on pre-existing biases or heuristics to make decisions) and there are times we don’t want that at all.
And rapid thinking also increases the likelihood of taking risks. Here’s something a little scary drawn directly from the article.
“Thought speed was manipulated via three versions of a video that varied in pace. The videos shared the same neutral content (e.g., scenes of waterfalls, urban landscapes) but varied in average shot length. The result was that as the pace of the film increased, the participants reported greater intentions to engage in risky behaviors such as unprotected sex and illegal drug use.”
In the research the author is describing, participants were polled on their likelihood of engaging in unprotected sex and using drugs illegally. In the deliberation room, whatever issues lie before the jurors are possible targets of the increased risk-taking that occurs when thoughts are racing.
In a recent mock trial, we put everyone supporting the Defense into a single deliberation group and added a strong Plaintiff juror who was articulate and worked in a job requiring constant decision-making with financial benefits and costs tied to those decisions. The jurors were instructed to think carefully as the jury charge was very complex. Their initial vote was 12-1 with the Plaintiff juror standing alone. When the Plaintiff juror quietly and confidently stated his perspective, the others listened and then, after some vigorous discussion, the presiding juror said, “Let’s slow things down and really understand this differing perspective”. The Plaintiff juror did not sway the others to his side but his damage award was less than 1/3 that of the other Plaintiff jurors who were all in pro-Plaintiff groups. The other jurors respected his opinions and ultimately, his damage award considered their opinions.
Daniel Kahneman’s book Thinking, fast and slow tells how fast processing can lead to a host of biases that compromise rational judgment. Again. Sometimes this is what we want in deliberation and sometimes it is not. Here are a few things to consider to either speed up or slow down thinking in your deliberation room:
Most people are uncomfortable with stillness. When a witness provides a crucial bit of information, the most natural thing to do is to immediately follow it up with a question that essentially causes them to confirm their earlier statement. What is often even more effective is to pause, allow the witness’ words to hang in the air for a couple of moments, and then respond. After slowing the examination and allowing the testimony to sink in before following it up, it creates a more lasting memory.
Give jurors permission to think fast (“This is really a simple case when you think about it”) or plea with them to slow down (“The temptation is to see this as a simple case, but simple cases don’t make it to trial. There are complexities here you need to carefully consider”).
If your goal is to slow jurors down, tell them how thinking fast can cause them to overlook important facts, and how thinking slow can allow the encouragement of well-reasoned decisions they can be proud of in the future. If your goal is to speed them up, remind them of how long they’ve had to consider the evidence during trial, and what a simple decision it really is.
There are obviously many other strategies you can use to slow down or speed up the deliberative process. The important thing is to think about (slowly) what you want to accomplish and to embed that goal into every aspect of your presentation, including the way in which you send jurors off to deliberate.
Pronin, E. (2013). When the mind races: Effects of thought speed on feeling and action. Current Directions in Psychological Science, 22 (4), 283-288 DOI: 10.1177/0963721413482324