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The American Bar Association is seeking nominations until August 8, 2014 to help it decide on the Top 100 law blogs (“Blawgs”). We have been in the ABA Top 100 for the past 4 years and would like to make it 5! If you like this blog, please nominate us (it’s fast and free) here. THANKS! Doug and Rita

Gallup on lost confidenceLost-confidenceGallup

For several years now, we have watched our mock jurors express increasing disgust at government, large corporations, and politicians. We have written before about their unwillingness to identify with a national political party and the 2014 Gallup Poll showing the same pattern we have been seeing on a national basis.

In a recent pretrial focus group involving an auto accident resulting in death, jurors began spontaneously talking about General Motors and their ignition problems and the choice to keep it a secret (even though GM was not involved in the fact pattern and was not raised in the presentations). They expressed high levels of disgust with GM and then acknowledged that disgust colored their perceptions of the auto manufacturer involved in the current dispute. Then a juror mentioned Wall Street and the mortgage collapse and another mentioned political logjams in Congress and they had to be refocused on the case at hand.

As they deliberated, the themes of disgust and distrust returned repeatedly with jurors who were all-too-willing to assume the worst of the Defendants. From the jurors’ perspectives, the auto maker’s advertising/marketing plan was a lie, the consumer trusted the safety testing as reported, purchased the vehicle, and now they were dead. It could have been any one of them (and when one of them commented on this reality, most of them shook their heads in continued disgust). The damage award was large. The punitive award was larger. And it all seemed affected– or at least consistent with– feelings of disgust and distrust in our institutions.

So when Gallup came out with their recent poll on how Americans are losing confidence in all branches of government, we thought of our mock jurors.

Gallup

In the past 25 years, confidence in our government has eroded pretty consistently with all three branches (the US Supreme Court, Congress, and the Presidency) taking hits as Americans express lower and lower levels of confidence. Currently, fewer than 1 in 10 Americans have confidence in Congress. Does that surprise us? Not really. We’ve been tracking the loss of confidence in public institutions in pretrial research projects over the last 10 years.

From a litigation advocacy perspective, the important thing for defendants is to craft an identity for your client that sets your client corporation apart from the rest. Frame your particular client as different from, or changed from what they once were, and allow jurors to line up in support of corporate change. But you better have credible evidence to show them you really are different because at this point, the public assumes the worst unless you show them something better.

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The American Bar Association is seeking nominations until August 8, 2014 to help it decide on the Top 100 law blogs (“Blawgs”). We have been in the ABA Top 100 for the past 4 years and would like to make it 5! If you like this blog, please nominate us (it’s fast and free) here. THANKS! Doug and Rita

WOD-Neuroscience

We regularly follow the neurolaw literature and about a year ago, we blogged about how judges are softer on crime when educated about the brains of psychopaths. Well. Judges are people too and a recently published study shows it isn’t just judges who are affected by neuroscience education. While the idea that flashy pictures alone can unduly influence jurors during a “his or her brain made him do it” defense presentation has been debunked, apparently a lecture on neuroscience can still influence individual ideas about punishment and the Defendant’s responsibility for their actions.

The researchers were interested in seeing if they could manipulate beliefs about free will among their participants. They began with the assumption that most of us believe in free will as opposed to determinism or fate. Then in four separate experiments with undergraduate college students, the researchers measured attitudes toward punishment for criminal behavior and then began to erode the participants beliefs in free will by educating them on neuroscience.

What they found was that as knowledge about neuroscience increased, the belief in free will decreased as did the length of sentences recommended for criminal behavior.

In other words, as participants learned more about the biological (or as the researchers labeled it, mechanistic) bases for behavior, they held the alleged criminal less responsible and believed the punishment should be less severe. The participants educated about neuroscience had less of a desire for retribution than did those who were not educated in neuroscience. From a litigation advocacy perspective, these studies have important ramifications.

If the findings are accurate, a convicted Defendant whose defense included a neuroscience education might receive in a lesser sentence.

The Prosecutor will want to focus on personal responsibility and the controversial nature of neuroscience research in order to maximize punishment decisions.

Shariff AF, Greene JD, Karremans JC, Luguri JB, Clark CJ, Schooler JW, Baumeister RF, & Vohs KD (2014). Free Will and Punishment: A Mechanistic View of Human Nature Reduces Retribution. Psychological science PMID: 24916083

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The American Bar Association is seeking nominations until August 8, 2014 to help it decide on the Top 100 law blogs (“Blawgs”). We have been in the ABA Top 100 for the past 4 years and would like to make it 5! If you like this blog, please nominate us (it’s fast and free) here. THANKS! Doug and Rita

Eating-Disorder_Body-Dysmorphia-994x350

This is an odd study from which researchers draw conclusions about sexual aggression that seem unwarranted. The research involved causing men to feel their identity as men was being insulted by women, and gauging the hostility of the reaction. The methods they used to elicit aggression from their male research participants are unusual, and the angered men were certainly more aggressive when allowed to believe they were aggressing against a woman who had insulted their manhood/sense of identity.

Essentially, the researchers believed that past research findings (e.g., men “giving” more painful electric shocks to a woman who criticized them, or men whose masculine identity was threatened agreeing to harass a feminist woman by sending her pornographic photos) would be stronger among those men who are ashamed of their bodies.

“Such men may be under chronic masculinity threat, making them more sensitive to acute instances.”

So, naturally, the two researchers thought of ways to threaten their research participant’s masculinity through shaming them (because that is what researchers do). First, they recruited 127 male undergraduate students (50% White, 35% Asian, 6% Latino, 4% Black and 5% Other) to participate in a study of “effective remote teamwork”. The men completed a measure of personality and submitted a photo (ostensibly to be seen by the attractive female they had been assigned to work with in a remote location).

Half the men were told there was a computer crash and they would be unable to do the teamwork task. This group served as the control group. The other half of the men were told the woman had said she didn’t want to work with them and that she had been told this was really a dating study. The woman (who really did not exist) sent a note the researchers shared with the male participants:

“I heard about this study from my roommate. She said it was actually about dating, after the test she had to hang out with the guy and answer a bunch of questions about attraction. Looking at this photo, I’m really not attracted to this guy. He’s not my type at all and I don’t want to have to go out with him. I’d rather do the other study for the points.”

Then all the men (the control group and those who had been rejected) completed additional questionnaires asking if they felt angry, insulted or sad; measuring their level of body shame; their general proneness to shame, and their “rape proclivity”. Yes. You read that right. The rape proclivity measure asked the men to say how likely it was they would be aroused by, attracted to, or likely to commit rape or other forms of sexual aggression if they knew they would never be caught.

Men who scored high on body shame and who felt bad after the rejection, were the most likely to show higher levels of “rape proclivity”.

So the researchers went back to their offices to consider how to shame men in a different way. They then recruited 214 heterosexual male participants, and caused them to feel rejected by their fictional research partner. Again, half served as a control group and were told their had been a computer malfunction. The other half were again rejected and shamed.

“I don’t think we have anything in common and won’t be a good team. It would be a waste of time to work on an experiment together if we can’t win the money. I’d rather work with someone else, or complete a different study than work with this guy on teamwork tasks. Looking at his profile, I get the impression he is gay. We won’t work well together if he likes men.”

This time, however, the alleged and rejecting partner was either male or female and no photo was shown to the research participants who had just been told they “looked gay”.

Men who felt bad after this rejection (by either the male or female alleged partner) also showed evidence of heightened sexual aggression (as measured by their selection of photos to be shown to future female research participants). However, the heightened sexual aggression was only present if they scored high on body shame and if they were rejected by the (unseen) female team-mate. (There was no heightened sexual aggression when rejected by the unseen male team-mate.)

The researchers say the work shows that attention should be paid to men high in body shame when it comes to the study of sexual aggression. They also admit their study was not particularly realistic even though “young men are especially likely to sexually aggress against women” based on past research. They want to see more work done on the body image of men and how it interacts with sexual aggression toward women.

We would comment that the concept of “rape proclivity” is a strange one and while there is obviously work to be done on the concept of male body image/shame and aggression–the leap to rape proclivity and sexual aggression against women is a big one.

Mescher K, & Rudman LA (2014). Men in the Mirror: The Role of Men’s Body Shame in Sexual Aggression. Personality & Social Psychology Bulletin, 40 (8), 1063-1075 PMID: 24839983

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The American Bar Association is seeking nominations until August 8, 2014 to help it decide on the Top 100 law blogs (“Blawgs”). We have been in the ABA Top 100 for the past 4 years and would like to make it 5! If you like this blog, please nominate us (it’s fast and free) here. THANKS! Doug and Rita

OLYMPUS DIGITAL CAMERAMost of us have seen the information that a sedentary lifestyle is dangerous for our physical well-being. Today’s researchers wondered if standing (rather than sitting) for group brainstorming sessions would result in more effective and positive group dynamics and outcome.

They recruited 214 undergraduate students to participate in 3-5 person group-brainstorming tasks. Each group was asked to develop ideas for a university recruitment video which they recorded at the end of their sessions. Each group was filmed as they completed the brainstorming project in a room with a table, whiteboard and notepads. Half of the groups had five chairs around the table and the other half had no chairs. Each participant was given a wristband which measured their level of “physiological arousal” (i.e., how much their skin sweated during the task).

The researchers found the groups without chairs had higher arousal (i.e., they did more sweating) than the groups with chairs.

The groups without chairs were also less possessive of the ideas they individually generated. The researchers called this “reduced territoriality”. The researchers think this might have been due to the closer physical proximity of the groups who had no chairs. They shared the physical space and the researchers think perhaps they shared the intellectual product as well.

The groups without chairs also generated more ideas that were then modified through combining them with the ideas of other group members or improved upon by others. The researchers call this “idea elaboration”.

So in all, it looks like the groups without chairs performed better although they were sweatier. And indeed, the researchers say the group process was better. All groups designed and produced the university recruitment videos as an outcome measure, but there were no differences in the videos produced by groups with chairs and the groups without chairs.

“That is, videos produced by groups working in a room with no chairs were rated by judges as no more polished or creative, than videos produced by groups working in a room with chairs.”

In other words, you might enjoy the process more and standing up is physically better for you, but the resulting product will not be improved. Nonetheless, the authors recommend workplace leaders may want to get rid of chairs and give employees an open space to make collaboration easier.

Obviously, you won’t likely be inclined to ask jurors to stand as they deliberate (and most jury rooms tend to be on the crowded side). However, in your office, “stand-up meetings” or brainstorming sessions might improve both morale and collaboration skills. This research would say you won’t get a better product because of standing, but it might be more fun and create a more effective team.

Knight, AP, & Baer, M. (2014). Get up, Stand up: The effects of a non-sedentary workspace on information elaboration and group performance. Social Psychological and Personality Science. 

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dialysis-graphicWe do a lot of pretrial research where complicated processes, inventions, ideas, software, tools, widgets, and other intellectual property ideas are explained. And we do a lot of pretrial research where something that doesn’t seem complicated (like a family estate, for example) gets very complicated, very quickly. We’ve found there are often vocal mock jurors who will pontificate on whatever the topic is (from highway guard rails, to heated patches for sore backs, to hair straighteners, to types of pizza crust, to coin counting machines in grocery stores, and more) and so we defer to their expertise by politely and with great interest asking them to explain to the group how it works, in their own words. They rarely can. They often sheepishly say they guess they don’t really understand after all and their standing as an expert rapidly evaporates.

Today’s research speaks to this issue directly by saying that extreme political views are often based on a false sense of understanding. That is, people typically know a lot less about complex political policies than they think they know. Their understanding is typically quite simplistic (like that of our mock jurors) and when they are asked to explain how a policy works–they are unable to do so (like our mock jurors).

What the researchers found in their first experiment is that when people who loudly support a particular policy are asked to explain how it works in their own words, they are unable to do so. Subsequently, they report their support for the policy they initially supported so strongly has become only moderate. In other words, the initial strong support for a policy was based in “unjustified confidence in understanding” the policy. When asked to explain the policy, the research participants (like our mock jurors) realized they didn’t really understand the policy after all.

The researchers designed another study where participants were asked to rate their position on a given policy and then either explain how the policy worked or list their reasons for supporting or opposing it. Finally, they would choose whether or not to donate a bonus payment to a relevant (i.e., either pro or con) advocacy group. Since prior research shows, according to the authors, that enumerating your reasons for supporting or not supporting a policy reinforces your support/lack thereof, they hypothesized that those who enumerated reasons would be more likely to donate than those who explained how the policy worked. They were right. Those who enumerated reasons were more likely to donate the bonus payment to the relevant advocacy group.

The authors explain their findings as follows:

Asking people to explain how a policy (for example) works, leads them to endorse more moderate positions on the policy and makes them less likely to donate to advocacy groups. The authors say these people are forced to confront their own ignorance.

Asking people to list reasons they support a policy (when those reasons can include values, hearsay and general principles) merely reinforces their belief systems and makes them more likely to donate to relevant advocacy groups.

From a litigation advocacy perspective, you can assist jurors in “confronting their own ignorance” by using the strategy we discussed here earlier on embedding skepticism into your case narrative. [Tip: This strategy is designed to gently embarrass the opinionated extremist, so it’s crucial that you do this gently and politely so you aren’t seen as humiliating him or her. Appearing to be a bully will result in voir dire ending sooner than you had in mind, as no one will talk to you.] As the attorney expresses skepticism (or a lack of understanding of how something works), the jurors resistance to hearing the full explanation is weakened.

Fernbach PM, Rogers T, Fox CR, & Sloman SA (2013). Political extremism is supported by an illusion of understanding. Psychological Science, 24 (6), 939-46 PMID: 23620547

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