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Archive for the ‘Communication’ Category

Perhaps we should lower our standards on what sources are good for an entire blog post as these combination posts seem to increasingly inhabit our blog. We simply run across a lot of things that we want you to know about but we don’t want to repeat what you can find elsewhere. So, sit back and click some links and see some of the stuff we thought too interesting to pass up!

Cross-examining a psychiatrist or a psychologist (aka shrinks)

Much has been written on the intricacies of cross-examining mental health professionals and a quick internet search will give you more than a million things to read. Rather than taking all that time, we’ll just send you to the ABA Journal and their brief article on how to be effective while cross-examining  these witnesses. We’ll help convince you to visit the article by sharing just a few of their recommendations: confine your questions to their reports, determine whether they have taken a complete patient history to support their eventual diagnosis, verify entries (even degrees) on their resumés, and much, much more.

If you want more, here is a resource-rich webpage on deposition and cross-examination questions for mental health experts. Finally, having a trial consultant with a background in expert testimony and psychological testing can also be very helpful.

Digital gaps between urban and rural America

We’ve done research in Los Angeles and witness preparation in France a number of times recently but you will often find us in rural areas, in places the internet forgot, and in areas the people are so charming and gracious you may just want to stay. One of our favorite stories about rural pretrial research is this one which involved multiple high-tech company clients who were stunned at the dearth of technological savvy among the mock jurors only a few years ago:

Other very rural venues have shown us the extent to which the internet has passed by some Americans completely. At one site, of 36 mock jurors, only 4 had internet access. At another, of 48 jurors, only 11 had ‘smart phones’ while a majority didn’t understand the question. Most had “not heard of” Amazon.com’s website. One called a major social networking site, “the devil’s work” and others nodded somberly.

While we were taken aback during that research, a new Pew Research report tells us the urban/rural digital gap still remains. It is less pronounced than it once was, but the divide remains. You will want to read this report—even if you don’t do much rural work. It’s a way to keep track of just how different urban and rural jurors are and how access to information (as well as the value placed on that access) varies dramatically between city and rural residents.

Empathy gaps in the brain of the psychopath

We’ve written before about the psychopath (quite a lot, actually) but here is another review of the many ways the brain of the psychopath differs. The writeup summarizes the work of a team of researchers from Harvard who studied inmates in two Wisconsin medium-security prisons. These researchers believe that psychopathy reflects a “brain wiring dysfunction”. Alas for some of us, the researchers say this (and we wonder just how convincing it would be to jurors who like their food and drink perhaps a little too much):

“The same kind of short-sighted, impulsive decision-making that we see in psychopathic individuals has also been noted in compulsive over-eaters and substance abusers.”

Gender pay gaps—it’s worse than you may think for women of color

The Institute for Women’s Policy Research has released a new report that is pretty much certain to make you want to overeat M&Ms or ice cream (but that could just be me). In one of more depressing and heavily hyper-linked summaries of the gender pay gap—they include this discouraging information on the realities for women of color.

“Hispanic women will have to wait until 2248 and Black women will wait until 2124 for equal pay.”

We won’t make you do the math. That is 232 years for Hispanic women and 108 years for black women. That’s beyond ridiculous. Don’t bury your head in the sand. Read this report and be informed. Then do something about it.

The Police and Law Enforcement (PLE) Scale

This is a new 8-question scale meant to document Black men’s perception of bias and discrimination directed toward them by members of the police force. Here is a bit of what the researchers say about their reasons for developing the measure:

The researchers note that most scientific literature on the subject typically includes the police’s point of view of the experience and rarely that of the person who had the interaction with the police. The new Police and Law Enforcement Scale can help to balance out the record so that it includes the perspective of individuals who have interactions with police.

“There is a substantial gap between what you hear from black men regarding their experiences with law enforcement officials during their lives and what is in the scientific literature,” said Devin English, a psychology Ph.D. student at the George Washington University and lead author of the study. “We see our study as helping to document what black men have been experiencing for centuries in the United States.”

This measure is meant to assess the level of institutionalized racism experienced by community members and is also seen as a step to improve public health (since discrimination is known to decrease physical as well as emotional well-being. The researchers are hopeful the scale can improve dialogue across the US on racial discrimination in policing.

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I was in graduate school in the early 1980s when Carol Gilligan’s book (In a Different Voice) came out and we thought we were quite amusing when we always voiced the title in a high-pitched tone. Thirty-five years later, we have research telling us we really may pitch our voices differently when speaking to someone we perceive as having higher status.

Today’s researchers wondered if how dominant or prestigious the person to whom one was speaking was perceived to be, would influence voice pitch in undergraduates. They planned a simulated interview task and wrote up brief descriptions of the photos to help pilot study participants categorize the photos as Dominant, Prestigious, or Neutral (i.e., photos perceived as either Dominant, Prestigious or Neutral).

Here are the descriptions they used:

Dominant: An approximately 36-45 year old male. He is an extremely dominant individual. This person likes to be in control and to get their way. They will use force, coercion, and intimidation to achieve their goals if necessary.

Prestige: An approximately 36-45 year old male. He is a highly valued, prestigious and influential individual. He has many valued skills and qualities and others follow him freely. This ultimately leads to his achieving his goals.

Neutral: These descriptions were not given. These photos were composed of those that scored neither high in Dominance or high in Prestige.

Then, the researchers had participants (48 total, 24 men and 24 women; average age 20.8 for the men and 20.2 for the women) complete a simulated job interview task. Participants were told they were pilot testing a new form of interviewing that did not require the interviewer and the interviewee to be in the same room for the interview. They were shown different photographs (with either Dominant, Prestigious or Neutral photos of the interviewers presumably asking the questions) and recorded their answers to varying interview questions with the idea that the photograph at which they looked was the person asking the questions.

The researchers found that the individual participants would alter their pitch (and other vocal characteristics) in response to people of high social status. This would happen even when the participant perceived themselves as having a high social status.

The researchers think an interview situation is one where the interviewer has a perceived dominance and so the interviewee raises the pitch of their voice to show the interviewer they are not a threat.

This was not the case with participants who described themselves on pre-study questionnaires as dominant—they actually lowered their voices! Conversely, those that described themselves as low in dominance, pitched their voices higher for the responses.

People that rated themselves as high in prestige, do not change the volume of their speech no matter to whom they are speaking. The researchers think this is meant to signal the person is calm and in control in the situation.

We have several concerns with this study. It has a small sample of participants and they are all quite young and may have been intimidated by the high dominance or high prestige descriptions of their alleged interviewers. Nonetheless, it seems intuitive that we would modify our voice pitch or other characteristics depending on to whom we were speaking. But it is an initial venture, and not conclusive.

Does the voice rise due to tension (which affects vocalization) or deference of some sort?

Is there a reason to imagine that anything but fearfulness might produce the vocal shift?

Do people respond differently to those whose pitch rises, or to those who are at a lower pitch?

Is it (as Carol Gilligan explored 35 years ago) mainly another manifestation of gender bias, or can anyone enhance their credibility and acceptance by working at keeping their voice in a lower register? [Gilligan’s book includes considerations of how women’s gender-informed voices (i.e., perspective, values, life experiences, insights) are crucial for a balanced understanding of life.] The study does raise questions about how to interpret the results, but certainly offers worthwhile considerations for witness presentation.

You want your witnesses voice pitch and tone to be the same whether a dominant attorney or a seemingly kind attorney is questioning them. Don’t let them hear you sweat.

Videotaped practice can be useful in helping witnesses see and hear how their voice pitch changes depending on their emotional reactions to the questioner’s tone or visual appearance.

Experience tells us clearly that a more credible witness is going to have similar tone and pitch during direct and cross-examination. I wonder what the future research will tell us?

Leongómez JD, Mileva VR, Little AC, Roberts SC (2017) Perceived differences in social status between speaker and listener affect the speaker’s vocal characteristics. PLoS ONE 12(6): e0179407.

https://doi.org/10.1371/journal.pone.0179407

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Here’s another post on a variety of things too good to bypass completely, that we didn’t want to use for entire posts. You will see, as before, these combination posts are educational and help you become a scintillating conversationalist. At least we think so.

We’ve worked at lot in East Texas [and elsewhere] on patent cases so you might think the recent TC Heartland decision would make us mourn the end of an era [see the coverage at SCOTUS blog]. Instead, it’s a chance to return to my home state (Delaware) for IP cases more often than I do them in my adopted state (Texas)! You don’t meet many people from Delaware when you are not in Delaware, but I can tell you that it was a great place to grow up and attend college. I’ve been following the legal publications analyses of this SCOTUS reversal with interest, but this plain language post from the Harvard Business Review caught my eye. It is one of the clearest explanations I have seen of the likely impact of the decision.

If you want to get away with financial misconduct on Wall Street—be a man

You may think this is a pretty obvious one since fewer than 10% of the CEOs and CFOs in the financial services industry are women—but here’s a hard fact from a new study on financial misconduct among more than 1.2M financial advisors between 2005 and 2015.

Compared to men, women disciplined for financial misconduct were 20% more likely to lose their jobs and 30% less likely to get a new job in the industry within a year.

Women were punished more despite the fact that male misconduct cost the companies more ($40K compared to $32K).

For men, only 28% of the financial misconduct charges came from within their firm. This compared to 44% of misconduct charges for women coming from within their own firm.

And among both men and women who were disciplined, females were punished more severely (despite the fact that men were three times more likely to have a prior record of misconduct and twice as likely to be repeat offenders).

Intriguingly, only in companies where women were in at least ⅓ of the management roles was misconduct dealt with the same way for male and female employees.

Dodgy politicians—is this déjà vu

Way back in 2010, we wrote a blog post on an article referring to “artful dodgers” (who happened to also be politicians) who did not answer questions posed to them but answered other questions instead. So when we saw this article from BPS Research Digest, we were sure we’d seen it before! The authors think witnessing question dodging makes the observer think the dodger is less trustworthy. We thought that too and back in 2010, made the following recommendations in the event you are faced with a ‘not-so artful dodger’ opposing witness.

In this instance, you are drawing the witness’ (and ultimately the jury’s) attention to the fact a question was not answered. Pay attention in deposition when witnesses do not answer questions. Get it on tape: “I asked you this but you answered something else. Try again.” You do not have to be nasty. Simply patiently ask for the answer to your actual question. When jurors see taped deposition like this, it can be devastating to witness credibility.

Don’t allow opposing witnesses to be non-responsive. Ask them if they recall the question. Ask them to repeat the question (which makes it more difficult to ignore it). Politely correct their paraphrasing. Make it clear to the jury that they are dodging, and that is not okay. It may seem a simple thing but when we have data showing people forget the actual question posed—the witness’ style may be more important than the substance of a less ‘artful dodger’.

Do honest people get their dream jobs? Maybe…

Remember the job interview technique that has the applicant volunteer a critique of themselves as a worker and potential employee? The advice often dispensed some years ago was to say things like, “I’m a workaholic” or “I am often over-responsible” or something else akin to what is now called humble bragging. Here’s a fun piece over at the Daily Mail that tells you “honest people are up to three times more likely to land their dream role when up against other high-ranking candidates”. Commenters do not take the earnest tone of the article particularly seriously, you may want to make a point of reading the comments.

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Just this week I saw the Gallup survey on trust in the US government to protect citizens against terrorism and knew immediately we needed to blog about the survey here. While I’ve seen people say that politicians will go to war for more favorable showings on polls, in focus groups, or in the ballot box—I never really understood how it could be used well until the last two seasons of House of Cards, a [fictional] Netflix show.

Here’s just one way fear was manipulated on House of Cards.

And now, the proof that this is not just made for TV (or Netflix) but even more powerful in real life is before us in black and white. Gallup sampled actual citizens here in the US (a random sample of 1,009 adults, aged 18 and older, living in all 50 states and the District of Columbia, 70% cell phone respondents and 30% landline respondents, all selected by random-digit-dial methods) on how much trust we have in our government to protect us against terrorism.

These are just a sampling of Gallup’s entire findings, please review the survey results here for full information. As one might expect, concerns about terrorism are high immediately following a terror attack and lower when there has been no recent terrorist activity.

70% of Americans trust the US government either “a great deal” or “a fair amount” to protect us from future acts of terrorism. (This is up from when Gallup last asked this question in 2015 [then the percentage was only 55%] immediately after the San Bernadino, California terrorist shooting where 14 people were killed.)

42% of Americans are “very” or “somewhat” worried that we (or our family members) will be victims of terrorism. (Also down since the San Bernadino shootings when it was 51%.)

60% of Americans believe a terrorist attack is “very” or “somewhat likely” in the “next several weeks”. (After San Bernadino, that percentage was at 67%.)

Gallup believes that these percentages are susceptible to flaring up again when there are terrorist events here in the US or abroad. From a litigation advocacy perspective, this tells us that fear is a powerful thing. In recent years there have been some very popular books written on how to inject fear into the jury box, even if when it is outside the scope of the actual testimony. And, as those Defense attorneys faced with a Plaintiff attorney using fear-based approaches to influence jurors know, it can work quite well.

If there is an element of fear in your case, it can be exploited (or spontaneously perceived by fear-driven jurors) and you will want to be ready to inoculate jurors with information telling them there is not a real and present threat.

Or, as in this blog post, you may want to help them experience safety through being loved and cared for by some authority figure—perhaps in the form of your own Defense client.

Gallup Organization. June 19, 2017. Seven in 10 Trust US Government to Protect Against Terrorism. http://www.gallup.com/poll/212558/seven-trust-government-protect-against-terrorism.aspx?version=print

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Resting Bitch Face’ is, in case you missed it, the condition of having a neutral facial expression that people perceive as sour, unpleasant, and generally bitchy. Long before was RBF was a thing, a woman in my graduate school class told me that professors often thought she was angry because her face carried a flat expression when she was thinking. “It’s just how my face is!” she protested. Years later, allegedly not until 2013 (although it hit the Urban Dictionary in 2011), the phrase went viral.

It is a “real thing” say scientists, is seen in the famous and the not-famous, has caused some to become depressed, is mostly attributed to women but also seen in men, and some say it reflects contemptuousness. There is support for RBF from social media (sort of), it inspires creativity and career advice, and constant social directives to ‘smile’ or ‘be kind’. There have also been multiple (tenure-seeking) scientific studies on first impressions (which includes the impressions made about RBF particularly in women). RBF even resulted in a video parodying all those direct-to-consumer medical ads.

The term has many detractors who do not think it is at all funny (for the most part) and they wonder why women are expected be always smiling and inviting. They say it is a variation on the “Smile honey!catcalls from men congregated in groups as the woman walks by. As the name would suggest, it is a sexist distinction. There are slide shows designed to show multiple other meanings for expressions deemed to be RBF. Detractors also have career advice, decry the constant focus on women expending energy to appear pleasant to everyone, have created posters, have published articles on the costs of RBF at work, and made angry comments about health professionals giving advice on avoiding the RBF expression as you mature.

From a litigation advocacy perspective, we actually rely on first impressions when doing pretrial research with mock jurors and have blogged about the importance of the first impression and strategies for being more likable a lot here. But the concept of RBF is not something we’ve discussed, and frankly, it is a dilemma. Gravity and age give all of us a more RBF facial expression. We need to disconnect the initial negative impression some jurors may have formed due to RBF. Some good advice comes from, of all places, the Business Insider:

“I’ve heard people with resting bitch face sometimes tell me that they’ll contextualize it verbally for other people. That they’ll say, “I’m not unhappy with you. I’m not displeased with the situation. I just look this way.” And that’s a really honest way to talk about this facial expression that they’re giving, because facial expressions are so critical to how we perceive what other people are telling us.”

This is just part of the video transcript on the website (with the author publicizing his new book) and this may be a good way to talk to witnesses, or parties, or yourself (if you have RBF). The message is so similar to what my friend in graduate school said to me as we first met, “That’s just how my face is”. Humanizing the party/witness with the RBF can help jurors (many of whom will have RBF themselves) reshape their first impressions of him or her.

What is instructive is that the speaker on the video has a constant grin on his face (perhaps Resting Happy Face) that makes his spoken message much less empowering than the written transcript provided under the video.

When you are testifying in court, interposing a laugh, or learning to ‘force’ a slight lift to the corners of your mouth can negate the ‘resting’ expression that may look a bit sour or unhappy.

Perhaps the best advice to give to someone who is concerned about being observed (and judged for having RBF) is just this:

So listen to me. You do not have Resting Bitch Face. You just have a face. There’s nothing wrong with it. Don’t let anyone tell you otherwise.

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