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It makes sense. If someone is rude to you, you might become grumpy and be rude in response, or rude to those who cross your path in the wake of the mistreatment. You may think of this as a small issue but new research shows us that rude behaviors are actually harmful—and, in fact, as harmful as other negative but illegal behaviors such as harassment or discrimination. This is not really a new finding as it’s been around since the initial introduction to workplace incivility. Some would say that workplace rudeness and workplace incivility cause the “death of a thousand cuts” and we would not disagree. While not fatal in and of themselves, the cumulative effect results in much distress. And if distress isn’t enough to promote change, it also produces job dissatisfaction, decreased productivity, and employee turnover. It’s about feelings, and it’s about money.

Today’s researchers wanted to figure out if rudeness in the workplace was contagious—much like the common cold. So they conducted three separate studies to explore this question.

In Study 1, the participants were 90 graduate students (average age 25; 65% White and 62% male) enrolled in a 7-week negotiation course. Over the duration of the course, students met weekly and were paired with up to 16 different classmates to practice various negotiation exercises. Following each negotiation exercise, participants completed an online questionnaire about their experience with the fellow student.

The researchers found that when the participant felt they’d been treated rudely by a negotiation partner, their own behavior toward future negotiation partners deteriorated. In other words—the rudeness contagion can occur on the basis of a single encounter.

For Study 2, the researchers wanted to see if being treated rudely would result in what they refer to as “activation of the associative network” for rudeness. Participants were 47 undergraduates (average age 20.35; 57% female; 68% White, 16% Hispanic, 8% Asian, and 4% African-American) enrolled in a management course. Participants arrived at the experiment in groups of six and first completed a personality questionnaire. That really was just a way to kill time though as the researchers were really more interested in what would happen after the “rudeness manipulation”.

After the 6 participants had all completed the personality questionnaire, there was a knock at the door of the experiment room and someone arriving late. The investigator was either rude to the late arrival (“I don’t know how you expect to hold any sort of job in the real world with this type of behavior but it’s too late for you now”) or not rude (“Email me later and we’ll see if we can find another session to get you in”). Then the real experiment began: participants did word identification tasks where they were asked to identify the category for each word (i.e., a rude word, a noontide word, an aggressive word, or not a word at all).

Individuals who’d seen the experimenter behave rudely responded to categorize the rude words more quickly than individuals who’d seen the experimenter behave politely. The researchers say that in this sort of task, a faster response time to rudeness words only means the concept of rudeness was activated by the experimenter’s rude behavior.

In Study 3, 147 undergraduate students in a management course (age range from 18 to 54 with a median age of 20; 68.5% White, 6.8% African American, 13.7% Hispanic, 7.5% Asian, and 3.4% “other”) were asked to participate in a study involving rudeness in the workplace. Participants were divided into groups and first saw videos of either an employee acting rudely (or politely) to a fellow employee. In the second stage, they saw emails of a customer addressing an employee rudely (or neutrally, or aggressively). After they had seen the videos and emails, participants were asked to decide how to divide up a reward for participation between themselves and a customer who’d expressed concerns (rudely, neutrally, or aggressively).

The results were similar to Study 2. Participants who saw the rude employee were more likely to not share resources equally with the customer whose email they’d seen. In other words, rudeness not only is contagious but also results in negative behavior from the person who was rudely treated.

Overall, the researchers conclude that rudeness is indeed contagious and that the contagion can result from a single exposure. Further, the contagion is not just about being verbally rude but can result in rude behaviors as well. The researchers recommend that workplaces pay attention to the “impact of low-intensity negative behaviors” like rudeness (or incivility). They believe that if these low-impact behaviors (e.g., rudeness and incivility) are not curtailed in the workplace, they will spiral into “higher-impact behaviors” with negative consequences (although employees may not understand the source of their rude behavior and may be unable to stop themselves from passing it on). The implication of this is that it can create a cascade of negative behavior, and result in a negative work culture that undermines job satisfaction and cooperation.

It’s an interesting study when considering the current-day law firm (or any organizational setting). While there are laws against harassment and discrimination, there are no laws against being rude or uncivil and many organizations simply tolerate rude behavior with a shrug of “that is just how that person behaves”. Yet, this research says that allowing rude behavior to remain in your workplace heightens the probability that you will see rude and otherwise inappropriate behaviors escalate until they potentially reach legal liability level. Unlike ten years ago, we now have tools to teach workplace managers so a workplace absent-rudeness can be achieved. It’s a worthwhile goal. For both worker happiness and the bottom line.

Foulk, T., Woolum, A., & Erez, A. (2015). Catching Rudeness Is Like Catching a Cold: The Contagion Effects of Low-Intensity Negative Behaviors. Journal of Applied Psychology DOI: 10.1037/apl0000037

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evangelicosAt least those are the findings of the Religious Understandings of Science (RUS) study which is based on a “nationally representative survey of more than 10,000 Americans”. Sponsored by the American Association for the Advancement of Science (AAAS), this study (completed in early 2014) hit the media about a year later. Sociologist Elaine Howard Ecklund conducted the study and says evangelicals are actually less conflicted about the relationship between religion and science than are many (non-evangelical) Americans.

Here are some of her findings:

60% of evangelical Protestants (and 38% of all surveyed) believe “scientists should be open to considering miracles in their theories or explanations”

50% of evangelicals believe that science and religion can work together and support one another—as compared to only 38% of Americans

18% of scientists attend weekly religious services—as compared to 20% of the general US population

15% of scientists consider themselves “very religious” while 19% of the general population would describe themselves this way

13.5% of scientists read religious texts weekly as compared with 17% of the US population

19% of scientists pray several times a day as compared with 26% of the US population

11% of evangelical Protestants consult a religious text or religious leader for questions about science while less than half that number in the US population would do the same

We are offering this information to our readers to familiarize you with the study, in anticipation that you may encounter other references to it. It has what appear to us to be some serious flaws. To say the least, some of the findings are curious. The proportion of people believing scientists should incorporate miracles into their theories or explanations is particularly odd, and raises significant questions about the research sample and methodology. Our pretrial research is conducted without regard to religious orientation, but we pay attention to it since it might be a variable of which our clients need to be aware. And over the past twenty years, we’ve watched the number of mock jurors who attend religious services regularly dwindle. Our experience of observing these shifts in our randomly selected mock jurors deviates dramatically from Ecklund’s sample.

So what do these survey results mean? It’s complicated. Some point to the Ham-on-Nye debate as highlighting the conflicts between science and religion—even though some say Nye won the debate handily. A recent post on ScienceDaily’s website tells us that scientists have impact on the public’s perceptions of the relationship between religion and science—and scientists who are not atheists will win more people over to their way of seeing things—at least, according to Ecklund who was quoted in the story.

Given that there are more people in the U.S. population (and hence in our data) who would identify as a Christian than atheist, Collins is likely to have more impact with that audience,” Ecklund said. Ecklund said that the experiment’s findings have important implications for how institutions and their representatives shape public opinion.

A few points to consider are that this study evidently had a disproportionately high representation of evangelical Christians for it to reflect American society as a whole. When miracles are considered part of the science debate (setting aside the question of what is meant by “miracle”) many would consider the problems to be large. If by “miracle”, this is limited to a divine role in the creation of the universe, or even as the nexus of the “big bang”, it probably gets higher acceptance. But if this is taken to apply to the evolution/creationism debate, acceptance of biblical literalism, and divine intervention in daily lives, the conflicts between science and evangelical religion get more shrill.  Before we can accept these findings, it is important to understand what is meant by “religious” in the findings shared above, what beliefs are elements of an “evangelical” and what is meant by “scientist”. It is not clear from reading the study summary how Evangelicals see science and religion working together. Does that mean the power of prayer is real, or does it mean that they consider creationism a scientific explanation?

From a litigation advocacy perspective, we think it’s important to know about this study but we are not sure it matters as you go to the courtroom. To the extent that her survey data is valid, it describes beliefs and attitudes that you should understand as you approach trials.  Some courts are shy about allowing questions regarding religious beliefs, and if so, the questions during voir dire need to be couched in terms of strongly held beliefs or devotion or faith (trigger words for many) to a code of beliefs relevant to the issues at trial. This study focuses on evangelical beliefs, not merely religious people. But a lot of devoutly religious people are somewhat fatalistic (“it is God’s will”) or highly moralistic in ways that either reject passing judgment on others (such as Jehovah’s Witnesses) or affirm passing judgment on others as their role in doing God’s will by representing God’s moral code as they believe it.

In any of these circumstances, it is crucial that a trial attorney understands the extent to which religious beliefs will color a person’s view of the facts, or indeed, whether those beliefs will trump the instructions of the court. Instead of focusing on religious involvement or lack thereof, we tend to look at conservative affiliations to help us consider how the world is framed for any individual potential juror. The simple way of thinking of this is that everyone tends to hang around with others who are of similar beliefs. So if someone is a devout Unitarian, they are likely to see the world differently than someone who is devoutly evangelical. We like this article written by Gayle Herde for The Jury Expert in early 2014. Rather than focusing on whether someone is an evangelical, Herde encourages us to listen differently during voir dire in order to “hear” religiosity in an indirect way. It’s good advice.

Ecklund, EH, & Scheitle, C (2014). Religious Communities, Science, Scientists, and Perceptions:A Comprehensive Survey. Annual Meetings of the American Association for the Advancement of Science.

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humble-bragOh the “humblebrag”. It’s really not that long since career counselors were suggesting interview questions asking about weaknesses could be turned to the candidate’s advantage by responding about an alleged weakness that was really a strength. (“Weakness? I think I tend to be perfectionistic. I just can’t send in a report without double-checking it for spelling, grammar, and content errors.”) Alas, times change and now the humble brag is looked at with disdain.

We were pleased to see one of our favorite research groups publish a working paper on the art of humble bragging. And even more pleased to see the results of their work mirror the work on humble bragging we published in May of this year: it doesn’t work so just stop it. It is obnoxious. Ultimately, they say that if you want a self-promotion strategy, outright bragging is more effective than the deceptive humble bragging. Why? Because you are [oddly] seen as sincere when you brag.

They did five experiments in total:

First, they collected humblebrags from a Twitter account publishing them and asked a couple of (yes, that would be two) raters to indicate how likable, competent and sincere they thought the person who’d tweeted the humble brag was in real life. Then they were asked if they thought the person was complaining and if they thought the person might be humble bragging (showing off in the guise of a complaint).

The [two] raters didn’t like humble braggers  and did not see them as either sincere or competent. The researchers concluded that those who humble brag are seen as less likable, less sincere and less competent. [While this makes intuitive sense, we wish they had used more than two raters. In essence, we consider the character assessment aspect of this study to be without value.]

Second, the researchers examined humble bragging in job interviews. They gave 122 undergraduate students (67% female and average age 21.34 years) instructions to write detailed responses to the question “What is your weakness?” as though they were in a job interview. Then they asked the participants to explain the reason for their response (“Why would you answer the question, ‘What is your weakness?’ in this manner?”). Again, they had two raters analyze the resulting open-ended responses for humble bragging and whether the participant answered the second question that they were being honest (“This really is my weakness”) or strategic (“I want to get hired”) in their response.

77% of the participants chose to humble brag and just 23% gave a real weakness. (Just for your edification, the most common humble brag ‘weaknesses’ were identified as perfectionism, working too hard, being too nice and helpful, and being too fair and honest.) The [two] raters preferred the honest candidates who gave a real weakness.

Third, the researchers examined the effectiveness of humble bragging in comparison with both complaining and bragging when it comes to how much others like the person either bragging, complaining or humble bragging. For this experiment, 302 online research participants (average age 36.97 and 41.5% female) were told they would be evaluating another person. Each participant was randomly assigned to one of three conditions: complain (“I am so bored”), brag (“People mistake me for a model”), or humble brag (“I am so bored of people mistaking me for a model”). The participants viewed the statements (based on the condition they’d been assigned to) and then rated how likable, sincere, and credible they thought the person saying this was.

As before, humble braggers were viewed more negatively than those who just brag outright and those who complained. Also again, humble braggers were seen as being insincere compared to the braggarts and complainers.

Fourth, the researchers examined whether humble bragging would affect how others perceive you. For example, someone who humble brags about “the problem with having graduated from two universities is that you get double the calls looking for donations” — may be seen as not very likable (due to the humble brag) but simultaneously as intelligent (despite the humble brag since she did graduate from two different universities). So the researchers wanted to see if the cost (being disliked) outweighed the benefit (an increase in perceived intelligence) when you humble brag. Again, they used an online sample of 201 (average age 35 years, 34.3% female) and assigned half to a brag condition (“I get hit on all the time”) and half to a humble brag condition (“Just rolled out of bed and still get hit on all the time, so annoying”). Noteworthy in this experiment is that the average age of the test subjects was 35, and the dilemma faced by the bragging conditions is the nuisance of being viewed as sexually attractive. Between the use of two raters for critical judgments and now this gaffe, we are tempted to wonder about the judgment of the researchers. But still, it is interesting. As before, the participants were asked how much they liked the person saying these things, how sincere they thought s/he was and finally, how attractive.

As before, humble braggers were seen as less likable, less sincere, and even less attractive than the braggers. The researchers concluded that humble bragging just has no real benefits. You really are better off bragging.

Finally, the (likely tired by now) researchers wanted to find out if people not only disliked the humble bragger but also treated them “less positively”. And this time, the researchers used actual cold, hard cash. Well, actually it was “virtual cash” but the idea is the same. We think. Anyway, the researchers used 154 online participants (average age 33.26 years and 35.1% female) and another 154 undergraduate students (average age 21.38 years and 70.5% female) The participants in each group were given pairs of statements (either humblebrags or outright brags) they were told came from their experimental partner and asked to rate likability, and sincerity and then to determine how they would split $5 between themselves and the (non-existent) person who’d allegedly written the comments.

Those research participants paired with humble braggers kept more of the $5 for themselves while this did not happen with the braggarts. As you have guessed by now, humble braggers are seen as insincere and that results in less likability and that results in (in this case) stingier (and meaner) treatment.

The researchers seem to think they’ve done enough work to show you that humble bragging just doesn’t work and is not useful (they go so far as to say it is “uniquely ineffective”) for impression management. We can’t speak to this being a “uniquely ineffective” strategy, but the lack of sincerity shown by the humble bragger results in quick dislike.

From a litigation advocacy perspective, this has definite implications for both self-presentation and witness preparation.

Avoid humble bragging in your casual asides while in the courtroom and closely listen for humble bragging in witnesses. Sure, be proud of yourself, your company, what you have accomplished, but in a subdued way. The goal for both witnesses and attorneys is to be a likable source of useful information and to avoid aggravating your audience.  The instant dislike these researchers find for humble braggers is enough for us to recommend you watch for this increasingly ubiquitous self-promotion (in both yourself and while preparing witnesses) and avoid the negative costs in the courtroom.

Sezer, O., Gino, F., & Norton, M. (2015). Humblebragging: A Distinct And Ineffective Self-Presentation Strategy SSRN Electronic Journal DOI: 10.2139/ssrn.2597626

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whistle-blower-620x375We’ve worked on several qui tam cases where mock jurors have been suspicious of the motivations for the whistleblower given the huge amounts of money they stand to make. So what if the whistleblower is the [current or former] lawyer?

There’s a really interesting article in SSRN on the ethical issues surrounding lawyers blowing whistles. The authors (both law professors) comment that the attorney is in the perfect position to have information a whistleblower would need to file a qui tam suit and neither the False Claims Act (aka the whistleblower act) nor Dodd-Frank (which allows whistleblowers to keep their identity secret) specifically address the question of whether lawyers can take advantage of the whistleblower incentives.

The authors offer a clear primer on the False Claims Act and examine relevant ethics law for attorneys when considering whistleblowing (like the obligations of confidentiality and ethical duties to both current and former clients) and whether there are prohibitions in the statute itself that would keep lawyers from benefiting financially from blowing the whistle. They address the conflicts between state and federal rules and laws and question whether there are situations in which one would “trump” the other. Along the way, they identify a few lawyers who’ve attempted (unsuccessfully) to prevail in qui tam suits and discuss the personal and professional costs of blowing the whistle. The authors then move on to consider Dodd-Frank and again, offer a clear primer on the program. They cover the same issues under Dodd-Frank as they did with the False Claims Act.

Finally, the authors devote an entire section to “choice of law” referring to the state ethics rules in contrast to FCA or Dodd-Frank. They comment that ascertaining which law applies in cases where a whistle has been blown by an attorney is both complex and murky. They offer a number of case descriptions to illustrate the complexities therein.

Ultimately, the authors pose four questions they see as key to determining whether attorneys can receive an award under a federal program for whistleblowers without violating their fiduciary responsibilities or their rules of professional conduct. The questions are quoted below:

Under what circumstances may a lawyer disclose a client’s confidential information to others?

Under what circumstances does a lawyer’s obligation of loyalty preclude acting adversely to a client, including seeking personal benefit when engaging in conduct that is permissible for other purposes, such as to prevent or rectify harm to another?

Are any of a lawyer’s obligations under state law preempted by federal law that provides for financial incentives for whistleblowers?

Which state’s law applies to lawyers who move from state to state as they work for national companies?

This is a thoughtful examination of a thorny ethical issue. The authors offer no clear answers and no judgment on whether an attorney should be allowed to financially benefit from whistleblowing. This is an attempt to explore whether an attorney can benefit financially from whistleblowing. The paper is designed (at least to our eye) to make you think and to become aware of how complex the issues really are when attorneys consider blowing the whistle on either current or former clients.

Clark, K., & Moore, N. (2015). Buying Voice: Financial Rewards for Whistleblowing Lawyers SSRN Electronic Journal DOI: 10.2139/ssrn.2562610

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sc-police-shoots-unarmed-man-800Police and firefighters earned a major boost in respect and credibility after the terrorist attacks of 9/11/2001. We routinely saw mock jurors expressing admiration and a belief that the police or firefighter client, witness or party was telling the truth. More recent news, however, has left many more suspicious of police officers’ testimony and sparked a movement: #BlackLivesMatter.

The Washington Post recently published an analysis of fatal police shootings from 2015 (almost 400 nationwide so far this year) and reported some disturbing facts:

About half those shot by police were white, half minority. But the demographics shifted sharply among those who were unarmed when shot, two-thirds of whom were black or Hispanic. Overall, blacks were killed at three times the rate of whites or other minorities when adjusting for the demographics of the census where the shootings occurred.

Ninety-two victims — nearly a quarter of those killed — were identified by police or family members as mentally ill.

Thus far, just three of the 485 fatal shootings have resulted in police officers being charged with a crime (less than 1%). This low rate of criminal charges against the police involved in fatal shootings mirrors the findings of a Post investigation in April that found that of thousands of fatal police shootings over the past decade, only 54 had produced criminal ­charges. Typically, those cases involved layers of damning evidence challenging the officer’s account. Of the cases resolved, most officers were cleared or acquitted.

NPR also recently wrote about the issues surrounding death while in police custody—including Michael Brown, Eric Garner, Ramarley Graham, and Walter Scott among others. Even CNN reviewed the deaths, highlighting a number of additional men who died in police custody. Many of us [particularly those who are not African-American] have watched the news reports and videos of police officers shooting or otherwise harming/killing unarmed African-American men and wondered whether this has been happening all along and is just now coming to public awareness. Those in the African-American community likely wonder how we could not know, but also likely appreciate the growing awareness and concern across the country.

So it wasn’t really a surprise to see an article from the Detroit Free Press questioning whether police officers on the witness stand are facing more skeptical juries. This article focuses on how the recent plethora of news stories on deaths (especially of African-American men) in police custody has affected perception of police testimony. Just as police officers were imbued with a sort of ‘halo effect’ after 9/11/2001, perhaps they now have the opposite of that—regardless of how unfair that may be to the individual officer.

The Free Press article is useful for identifying questions you will want to cover in planning witness preparation or cross-examination. As one defense attorney quoted in the Free Press article says, “Maybe the scales are just being tipped back to where they’ve always belonged”.

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