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Archive for the ‘Decision-making’ Category
How a picture can be worth less than a hundred words
We are big fans of visual graphics. They condense complex ideas into digestible images. They help the layperson understand technical jargon in ways that make sense to them. Visual graphics help us to see that our fears are not necessarily in sync with the facts (as you see in this visual on the true odds of airborne terror). A good visual gives us perspective and information that informs us quickly and thoroughly.
And similarly, if we can see a video of a person (even for only 100 milliseconds) we can infer facial expression more accurately than we can in a still photograph. The video gives us context for our interpretation. Given these pieces of information, you might think that a picture or graphic is always better than words to communicate information. And if you think that, you would be wrong. Very wrong. How could you imagine such a thing?!
A new study reported by Research Digest blog provides an example of when we do better with text than graphics. In the hospital. Those graphs and charts are apparently often misinterpreted by harried and distracted staff! Researchers conclude that if those graphs were replaced or supplemented with short passages of text conveying the same information—fewer mistakes would be made.
It reminds me of a birth trauma case I recently consulted on that involved questions about proper interpretation of fetal monitor strips. One problem was that there were no strips. The entire system was digital—you read it on a monitor. The complication is that in order to see the pattern that has evolved throughout the labor, or through the last hour, you have to page back and back and back… and you can’t flip back and forth as easily. The image becomes less clear.
In the life and death decisions often made in hospitals, we want our medical professionals to make the most informed and accurate decisions they can. This study would indicate we should make sure medical professionals accurately interpreted graphic information in hospital charts and that their choices for intervention were consistent with those charts.
van der Meulen, M., Logie, R., Freer, Y., Sykes, C., McIntosh, N., & Hunter, J. (2010). When a graph is poorer than 100 words: A comparison of computerised natural language generation, human generated descriptions and graphical displays in neonatal intensive care. Applied Cognitive Psychology, 24 (1), 77-89.
Voir Dire: Do you like tall extroverted men?
We mean on your jury. From our perspective, it depends. You may remember back in the 1950’s there were studies completed that found tall men were influential in groups. As we move into 2010, things haven’t changed a whole lot. A study of jurors in 2000 found that jurors rated the extroverted, tall men among them as the most influential in group discussion (Marcus, Lyons & Guyton, 2000).
Interestingly enough, another study completed about the same time looked at juror gender and decision-making on guilt or innocence. Voss & Van Dyke (2001) found that male jurors focused more on the evidence in terms of their guilt judgments while women considered evidence but also situational factors. Voss & Van Dyke theorized that men are more influenced if the emotional content can be related to the evidence. Women, on the other hand, are more influenced if the emotional content relates to the defendant.
So if your final choice is between a tall, extroverted man and a female juror, and you’re listening to these researchers, do you like tall men?
If you are the prosecutor and the evidence is circumstantial but compelling, you probably should like tall men. According to Voss & Van Dyke, men would focus more on the evidence and the power of that evidence in ascertaining likely guilt. Women would weigh the evidence but they would also consider motivation, alternative possibilities and may slow down the juries march to a guilty verdict.
If you are defense and the evidence is circumstantial but compelling, you don’t like tall men so much. They may be influential in the jury room and persuade other jurors that the evidence is strong enough to convict. A female juror would likely listen more to context and the broader picture.
Research, however well done, shows us but a slice of human behavior. Yes, men and women may process things differently and we may see evidence differently. Somehow though, we doubt that all women think through evidence in the same way, and of course there is a range of styles among men as well. We tend to take information like Voss & Van Dyke’s with a grain of salt and focus more on experiences, attitudes, values and beliefs of jurors. But all other things being equal, information like this can give you a small measure of comfort when you have to make that last strike decision.
Case Strategy Tip: Do you want your jury to think about their verdict or not?
This is really not a facetious question. Depending on your case facts and which side you are representing (plaintiff, prosecution, or defense)—you will do better to craft a case story that will either carefully think through the evidence or not think carefully and rely instead on pre-existing attitudes.
Jurors that carefully think through the evidence are generally highly motivated and become personally involved in the decision-making process. These jurors will engage in a more thoughtful and systematic review of the evidence and make their decisions based upon that.
Conversely, jurors that are not highly motivated and do not find case issues personally involving will sit back and use their own pre-existing attitudes and biases or use a ‘consensus equals correct’ model and therefore agree with the majority of other jurors (Wood 2000).
There will be times when you don’t want your jurors to think carefully—but rather, to simply go with their gut (i.e., their pre-existing beliefs) and make their decisions based on stereotypes. While this is often not a politically correct tactic, it is often a winning one.
To increase the likelihood that your jurors will not think carefully, try the following:
Suggest a ‘common sense’ approach to verdict-finding—jurors are more likely to gravitate to positions for which they can easily generate supportive agreements and to reject positions where they cannot easily generate those agreements
- Use familiar sayings (i.e., clichés) that provide cues to agreement
- “The apple doesn’t fall too far from the tree” to discredit by implying similarity between parents with poor histories and the defendant or plaintiff
- “Corporate misconduct” to evoke automatic negative reactions to corporate defendants
- “Money won’t bring their loved one back” to decrease tendencies to award large amounts
Reference unbiased, expert sources or, even better, sources with an apparent allegiance to the opposition
- “The Surgeon General says” or “Dr. Famous Expert says”
- “What is interesting is that the plaintiff’s own expert says…”
Suggest a ‘common sense’ approach to verdict-finding—jurors are more likely to gravitate to positions for which they can easily generate supportive agreements and to reject positions where they cannot easily generate those agreements
- “It just makes sense that the nurses would follow the same procedures they always use—just because they were so busy taking care of Mr. X and didn’t write it down doesn’t mean it wasn’t done…”
- “How much of a coincidence would it take and how many of these witnesses who have never met would have to be working together to make the defense story hold water? Let’s be reasonable…”
Suppose, however, you’re on the other side of the fence and you do want your jurors to think carefully, to process and sift through the evidence, and truly examine the facts as they come to a decision. What can you do? Social science research again provides multiple strategies for you:
Frame your messages in an unexpected format
- “Truth can be stranger than fiction…”
- “If only this hadn’t happened. But sometimes bad things do happen, sometimes they just do…”
Increase the self-relevance of your messages for jurors
- “This corporation is based here in our town. And how they do business effects all of us.”
- “Mr. Plaintiff/Defendant is/was a hard-working man with a family who loves/loved him. He got up every day just like all of us do…”
Use phrases that ambiguously signal broader values (e.g., “family values”)
- “This case isn’t just about Mrs. X—it’s really about being a mother and about being the kind of mother who doesn’t accept bad behavior from her children or toward her children. This is a case about the kind of mother we’d all be fortunate to have in our corner.”
- “This community expects better from our business owners. This community has shared values that say businesses should treat their customers fairly and that they should provide good service in return for payment.”
Overall, as part of your case strategy, you want to be thinking about whether you want your jurors to be thinking or simply acting. Depending on the facts of the case and on the good or bad facts regarding your client and your opposition—you will do better with either jurors that think or jurors that fall back on their own pre-existing beliefs and values.
Think and decide whether you want your jury to be composed of thinkers or impulsive actors.
A great many people think they are thinking when they are really rearranging their prejudices. –Edward R. Murrow (1908 – 1965)
Wood, W. (2000). “Attitude change: Persuasion and social influence.” Annual Review of Psychology 51: 539-570.
“I can see it from both sides”
This is one of the scariest comments uttered during jury selection. The scary part is that it has little meaning, but if you aren’t politely persistent, it can hide the truth. The problem is that “I can see it from both sides” is the cognitive equivalent of “I am still breathing”. Unlike the image to the left, which might be initially awkward to visualize in both forms, the two sides of an issue are pretty easily spotted, especially since the jurors have just been told what the two sides are. What is left unsaid is “I can see both sides, but I like what I see on one side much more than the other”. What the response means is, “I don’t want to have to think very hard about my assumptions or preferences”. Not meaningful, not helpful, and you might be stuck with it. [The implications of this message for voir dire will be dealt with in an upcoming entry in our “Simple Jury Persuasion” series.]
Mock jurors often make this statement in group deliberations as they attempt to articulate the opposing parties’ positions. While they often present a superficial understanding of “both sides”, sometimes their belief that they understand things thoroughly can be pretty shocking.
This past week, I ran across the info-graphic illustrating American political views created by David McCandless & Stefanie Posavec. It is more insightful than the cartoonish format would initially suggest. Their work depicts a wealth of information on values, attitudes and beliefs that normally takes books to communicate. Instead, they offer up a modern version of the pictogram with amazing amounts of information from both liberal/progressive and more conservative points of view.
In a way, this is a lesson for litigators. Simply because of the amount of time you spend on a case, you develop a form of tunnel vision. You see your side. As for the other side? Much harder.
That is why, when preparing for a mock trial or focus group, we recommend that lead counsel takes on the opposing counsel role. It’s the very best way to see things from their perspective, and, in so doing, you also see holes in your own case that were not visible to you before.
The act of taking on the ‘other’ perspective, allows you to both see and hear things differently. A recent study profiled in Science Daily illustrates that how you present/articulate/characterize your side of the story defines precisely who will hear it and who will not hear, or perhaps even distort it. When even experienced litigators are fearful of rolling the dice with a jury trial, it makes a lot of sense to consider that other perspective and craft your case presentation to increase your odds of being heard by both sides.
The image on this post is a famous example of seeing something from both sides—the optical illusion allows you to see either an old woman or a young girl.
“I can look into his eyes and just tell he is lying”
We see this routinely on witness evaluation forms and we hear it in mock jury deliberations. Perhaps the most overt misinterpretation of intuition came almost ten years ago when we were doing a focus group and jurors didn’t like the plaintiff. One of the attorneys (who had done some community theater work) wanted to come out and “be” the plaintiff. She did. She appealed to the jurors and stated her case. She returned to behind the observation mirror. As the door closed behind her, a juror spat out “I thought so before I ever saw her in person but now I know for sure! That woman is on drugs.” She was convinced and she convinced some of the other jurors. Intuition can be a powerful thing.
As a further note on that embarrassing event, I will say that we urged our clients to use deposition excerpts and not live testimony with surrogate actors (even before this). Jurors feel so strongly about the role of character, the power is truly in the messenger as much as the message. But boy, that attorney’s law partners are still telling stories about that mock trial. She will never live it down.
Recently, the Jaycee Dugard case was cracked by a police officer who credited “police intuition” for her suspicion, followed up by investigation and the eventual liberation of an 18 year kidnapping victim of a convicted pedophile. Intuition is powerful. And sometimes it’s right. And other times it is horribly wrong. One recent Texas case garnering a lot of attention across the country seemed to combine intuition with facts in a way that may have resulted in the execution of an innocent man. Intuition can close our eyes to the facts in front of us. In focus groups and mock trials we have tested juror reactions to witness testimony excerpts that run 30 minutes and longer and compared them to reactions to the same witnesses after the first 8 minutes. The scores are nearly identical. What jurors conclude about character, likeability, and trustworthiness crystallizes within the first few minutes. We see things how we want to see them. We make the story make sense.
How can we minimize the role of mistaken intuition in juror decision-making?
- Decide in advance how intuition is likely to affect your case. Do you want snap judgment or considered opinions?
- If a key witness or party isn’t reliably likeable, have lead-in witnesses provide context for the key witness’s quirkiness that makes it more palatable.
- If there are assumptions (aka inaccurate intuitions) that mock jurors attribute to your case or witnesses, establish an identity for your witnesses that accommodates the image and makes it more tolerable.
- When jurors don’t have an explanation for something, they are free to fill in the gaps with incredible flights of fancy. Ensure that your case makes sense and leaves no holes or questions for the jury to fill in without you.
Intuition may or not be a scary thing, but it is very powerful. Intuitive errors flourish when fueled by incomplete or distorted information given to us. Fill in the blanks. Clear up distortions. And then trust the process.
Eliot Spitzer, Uncivil Behavior & Possibilities of Redemption
This year has been a field day for anyone studying impact of sexual misadventures on the careers of public figures. It’s hard to know what the public cares about when the offense is merely a character flaw. If it doesn’t cost us money, we don’t seem to judge harshly, or at least not for very long.
When Eliot Spitzer, the NY Attorney General, was publicly shamed into resignation and labeled “Client #9″ in a prostitution ring scandal, few thought he had any future in public life. But a recent poll in the Atlantic magazine makes us wonder. Five hundred New Yorkers were asked (on September 1, 2009) if they would vote for Spitzer if he ran for public office again: “15% would vote for him “no matter what”, 39% would vote against him “no matter what”, and 47% said it would depend on what office Spitzer ran for and who else was on the ballot.”
The Atlantic goes on to say that they think a 2010 run for office is a long shot for Spitzer but who is to say what could happen? The public sometimes has a long memory for disgraced heroes and other times we are inclined to overlook past failures.
When Eliot Spitzer fell from grace, we wrote a paper identifying strategies for the litigator with a publicly disgraced client. In that paper, we focused on five basic steps to follow:
- Apologize correctly to mitigate hypocrisy
- Rebut the fundamental attribution error
- Focus on past positives and weigh them against this fall from grace
- Focus on what has been lost and how your client has been affected
- Avoid surprise
You can download a copy of this paper (Client No. 9: Defending Uncivil Behavior) at our website. Scroll to the bottom of the page and register for free access to various papers we’ve written over the past 10 years. We promise we won’t sell, trade or use your contact information for nefarious purposes. We just want to know who is interested in our ideas and we will let you know from time to time when we have new papers on the website.
The complete paper describes what to do in each of these steps and why (based on the recent research) you should do the actions recommended. We think you’ll find it useful.
While the public may be willing to look the other way when a family is victimized by salacious conduct, the rage against fiduciary violations has real sticking power. The findings in our previous paper are as relevant today for the management scandals of today and tomorrow as they were during the Enron scandal (see “Enron Effect: Uncertainty, Mistrust, and Cynicism”).
I can’t hear you!
In the arena of ideas, blather often wins the first round. The question remains open about who wins the fight.
We see it in the current debates and confrontations over healthcare reform occurring in town hall meetings across the country. We see it in the persistent belief demonstrated during the 2004 election that Sadam Hussein was linked to the terrorist attacks of 2001. Or in the “birther controversy” over whether Barack Obama is really a US citizen.
Despite our best efforts to communicate a clear and persuasive story, we are often stymied by confusion, distortion, and disbelief from our audiences. Because of the work we do, we especially see it during our mock trial and focus group research when attorneys listen to deliberations from behind the darkened glass of the observation room, chewing peanut M&M’s in frustration while saying “I didn’t say that! Where did s/he hear that?!”
After fifteen years of chewing our own M&M’s and trying to understand why it is happening in a specific case, we now have research to tell us why it happens time after time. It turns out, that “for the most part, people completely ignore contrary information”. Researchers from four major research institutions labeled this tendency to ignore contrary information “motivated reasoning”.
In other words, like David Duchovny in the X-Files…we want to believe. In the case of the belief that Sadam Hussein was involved in the 9-11 terrorist attacks, researchers say Americans needed to make sense of the Bush administration’s decision to go to war against Iraq. And these believers were not being duped by propaganda. According to the researchers, they were simply trying to make sense of a current reality: we were at war and there needed to be a reason for it.
So should you just throw in the towel if your story can’t penetrate the pre-existing beliefs of jurors? Maybe not. We certainly hope not. We saw this process in action just last week while doing a mock trial where one of the parties was a financial services industry company.
This industry has certainly not had good press in the past few years and the current state of the economy has not helped their reputations. A recent Gallup poll found that only 28% of Americans view these companies positively. In our group of mock jurors, only 20% viewed the financial services industry positively. Yet, after all the facts were presented, jurors grudgingly acknowledged that while they “wanted to blame” the financial services company, the facts simply would not allow it. In fact, the financial services company was the “hero” of the story in jurors’ eyes. They didn’t like it. But they had to acknowledge it. If a financial services company can be the “good guy” in the midst of a banking crisis, there are ways to make people hear what they don’t really want to hear.
Our Rule #1 of Jury Persuasion: There is no such thing as “Persuasion”.
What the most gifted and skilled advocates do is not “persuade”, but rather they craft a story that connects with the strongly held beliefs of jurors. They don’t create arguments, they build bridges between the case and the values of jurors. They make the points of connection more compelling than the points of division. So tell the jury’s story while you tell your client’s story. Help the jury to see that what is most important to them is manifest in a verdict for your client.
They’ll hear you.
I never knew Hitler had three testicles…
The power of language has always been the heart of advocacy. What is also painfully—if not shamefully true is that something stupid or inane can morph into the stuff of “amazing but true” if you say it long enough and relentlessly enough. The lies that surround Obama’s place of birth as well as the incredible ‘death panel’ nonsense should make this obvious, but of course, social science can be counted on to shore up common sense with baskets of statistics. Consider the following:
In 2007, an article was published in the Journal of Personality and Social Psychology titled: “Inferring the Popularity of an Opinion From Its Familiarity: A Repetitive Voice Can Sound Like a Chorus”. In brief, what this study says is that if we hear something often enough, we begin to believe it is true. At that time, this idea was fairly novel. What a difference a few years makes! Now we can know for sure that when you repeat even untrue ideas enough, they become part of the cultural zeitgeist—and are believed without question.
The danger is this: when we hear a phrase or fact often enough, even when it is immediately rebutted/debunked, it increases our likelihood to recall the false fact in the future, but not remember that it was false. Instead, we remember hearing, for example, that Hitler had three testicles but not that the rumor was totally false. Behavioral scientists call this phenomenon “familiarity breeds belief”. And you don’t want to actively confront these beliefs—that can make them stronger. Seed magazine recently published a really nice article on “Death and the Rumor Mill” that is worth reading to see how arguing with these sorts of rumors can actually strengthen them!
So what does this mean for litigation advocacy? How can you undermine the evocative phrases that take on a unique and short-hand meaning due to media exposure?
- Don’t repeat their phrases! If opposing counsel uses a catchy phrase to describe what your client has done, don’t use that catchy phrase yourself! All that will do is reinforce their message. Come up with your own catchy phrase to give jurors the rebuttal to opposing counsel’s message in the deliberation room. Turn “pro-abortion” into “pro-choice”. Transform “inheritance taxes” into “death taxes”. To understand the importance of this more fully, read George Lakoff’s books (“Don’t Think of an Elephant: Know Your Values and Frame the Debate–The Essential Guide for Progressives”, “Thinking Points: Communicating Our American Values and Vision”)
- Can you pull off a ‘Barney Frank’? Probably not. He has a very safe district, so his amazing rejoinder to an offensive town hall attendee was comparable to aggressively attacking a witness on cross exam when it is clear that the jury dislikes him already. It’s risky, but if you have the ability to communicate non-verbal disbelief without being offensive, it’s a strategy worth using. Then you follow-up on cross-examination in a tone making it obvious you find the testimony difficult to believe. To be effective, you need more than simple logic without drama. You challenge an emotional argument with a rebuttal that balances logic and emotion. And preferably incorporates humor.
- Appeal to jurors desire to not be duped/deceived. “This is simply wrong. Opposing counsel is trying to trick you into believing something when the facts show it is simply not true.”
The problems of false rumors masquerading as truth are not likely to disappear anytime soon. But as we see them rising in the media, we can all be practicing ways to rebut or detoxify them. Practice. When similar issues arise in trial, you stand a better chance of reacting effectively. Or employing them yourself.
“Reactions vary along traditional partisan lines”
We’re hearing this a lot lately. For example, attitudes toward the health care reform debate “vary along traditional partisan lines”. And it makes us wonder about juries.
The holy grail of jury selection is that some simple and visible attitude or affiliation will identify the good and the bad. For years, what trial consultants have said is that “demographics don’t make the difference, values and attitudes is what makes the difference”. We’ve said it repeatedly. But now we’re starting to wonder.
We know liberals and conservatives punish differently (download an article in pdf format here). We know that the more religious you are, the more you want to punish the perpetrator of a victimless crime (and see our blog post). We have tended to think of political affiliation as a demographic descriptor that was akin to checking off the box that reflects your age range. But things have changed a lot and now “reactions vary along traditional partisan lines”.
In fact, the more things change the more they are the same. What has happened in the polarization of politics is that a political party has, for many, become far more than affiliation. It is code for certain types of strongly held beliefs, because Republicans and (to a much lesser extent) Democrats are intolerant of dissenting in the ranks. To be a strong supporter of the Republican party at this point speaks to identifying with an attitude toward tort reform, the Iraq War, healthcare reform, and the most likely patrons of Fox News and talk radio. Democrats like to say that they “have a big tent”, but in truth what they mean is “we are united in opposition to Republicans, and not much else”. So Democrats may be supporters of the party while being opposed to abortion rights, healthcare reform, or the end to the death penalty.
The question remains focused on values and beliefs. But sometimes affiliations can provide a window into those beliefs. When you are developing a voir dire strategy, or assembling case themes for trial, ask yourself some crucial questions:
- To whom does this juror prefer listening— Rush Limbaugh or Barack Obama?
- If this juror supports my position, will they be cheered by their friends and family, or will they have to do some painful explaining?
- Are the central themes of this case consistent with the values of this juror?
- Taking the juror as the were during the month or year before they came into this courtroom, is supporting my case something in which they would naturally take pride?
Sometimes the obvious variable captures the range of values that are most important in your case, but beware. Little in life is really that simple.
When strangers are better than your Mom, your family and your friends
We hear regularly about attorneys wanting to do inexpensive focus groups, so they present their case to colleagues, office staff, family members or people from their church. Well, it’s data, isn’t it? Isn’t some information better than none? While you may learn something from this approach, we’re not convinced you get the kind of feedback you need from this approach to pre-trial research. Remember the old saw, “a little knowledge is dangerous”?
A recent Psychology Today blog post discusses how feedback from those who care for us can actually interfere with our learning what we need to know. Most importantly, when negative information is presented, it tends to be presented in a “sugar-coated” way which is easier to hear, but also easier to discount. The blog author concludes that if your Mom tells you you’re wonderful—“don’t let it go to your head”.
Focus groups of strangers (randomly selected to depict the demographics of the venire) won’t love you and they don’t sugar-coat their feedback. They don’t care what the case means to you. What they do offer though is a look at your case unfiltered by love, pride, admiration or sibling rivalry. You will get what you need to hear, even if it isn’t what you want to hear. It’s unpredictable. Not like Mom, not like your friends.
Generally, we’re all for the “test the case any way you can” school of thought. But it can be extremely misleading to rely on that feedback, when it comes from a skewed sample of the venire.
Do it right, and you can have an honest assessment of your case as it strikes real people (who don’t care whether you win or lose):
- You will be able to identify potential landmines in your case.
- You will hear what themes or facts simply get missed by the jurors.
- You will observe how jurors struggle with the evidence and apply their own experiences to help them understand what happened.
- You will hear the metaphors and analogies jurors use to make sense of the case facts.
- You will hear which arguments resonate with jurors and which ones fall flat or are dismissed by jurors as nonsense.
The goal of pre-trial research is to teach you about the weaknesses in your case presentation. Not to hear how wonderful, attractive and articulate you are. So visit with Mom and the family. They love you. But do research with strangers if you want to learn the most you can about your case.
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