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- Mad enough to kill? It’s better if you’re a woman
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Archive for the ‘Decision-making’ Category
Is it wrong to want an 8-foot chicken?
Since some of you cynics imagine this to be a trick question, you’re thinking it probably depends on the definition of ‘want’. For more than 5 years, I have wanted, ruminated about, and considered how I could fit this chicken into my life. Would the neighbors complain about it peering over their fence? Would my HOA have a fit? Would it make me smile every time I saw it?
The chicken lives in Brenham, Texas along Highway 290 between the Dairy Queen and Michael’s Taxidermy. Every time I drive to Houston, I pass the chicken (yes, I know it’s really a rooster, but in my mind, it’s a chicken). I always think “I want that chicken” but I never stop. This week I stopped. And the chicken is not for sale until the price of metal in Mexico stabilizes. I want the chicken even more now that I know I can’t have it. They offered a 4-foot chicken and even a 2-foot chicken for a whole lot less than the 8-foot chicken will cost. But it wouldn’t be the same. Sometimes, only the real 8-foot chicken will do.
It’s beyond reason—my chicken fixation. Like the way sometimes attorneys choose to take on cases that really are not good ones. I remember a case we did a focus group on a number of years ago—a motorcyclist not wearing a helmet and ending up with a horrible head injury. His spouse said “he was responsible—he wore a helmet every time, except this time”. The mock jurors thought he knew better and this is what happens. I wonder what made the attorney choose that case?
Or the case of the high school teenager (a very good girl) who met a boy (who was actually a young man pretending to be a high school senior) on a social networking site and secretly met him (knowing her mother would not approve) and she was raped. Her mom thought the social networking site was responsible. Jurors thought the girl had made a bad choice and painful as it was, this was a natural consequence. What we predicted, and what the focus group told us, was that the jurors were distressed by the failure of parental supervision. That one was easier to see in terms of attorney investment: a horrible outcome and fears about how social networking sites were playgrounds for predators. But jurors saw it differently.
We’ve seen the newer research on how bad many lawyers are at predicting case outcomes and therefore, on choosing cases. But why is that? The researchers say women are better at it then men and that there are specific case patterns that make it tougher. While those things may be true—perhaps there are also some individual/internal factors at work.
I think sometimes we don’t want to believe we made a really bad decision. Or we are blinded for various reasons in our own history. So I was thinking about why I want this chicken. What are the motivations or early childhood experiences drawing me to an 8-foot chicken? And I thought of Paul Bunyan.
I grew up in Michigan’s Upper Peninsula, close to the border of Canada. We didn’t have 8-foot chickens up there. But we did have a 15-foot tall Paul Bunyan statue near my high school. I considered if the 8-foot chicken was a substitute for a Paul Bunyan. But then I came to my senses. I never, ever, even for a moment, wished for a Paul Bunyan statue in my yard. That would be tacky. But an 8-foot chicken? That’s art.
Mad enough to kill? It’s better if you’re a woman
In a departure for us (illustrating our flexibility), we are writing about when it is good to be a woman as opposed to not so much (see for example, here and here and here). Those posts all refer to times it’s tough to be a woman. But women who kill in the throes of passion, have an edge. Nice to know, eh?
It isn’t likely a woman who kills (say, a cheating spouse) will get away with it. But, she is more likely to get a shorter sentence than a man convicted under similar circumstances. This research was originally published in the Journal of Social Psychology. While male participants were more likely to opt for the harsher punishment (second-degree murder)—both male and female participants gave heterosexual female defendants significantly shorter length sentences than either heterosexual men or gay men or lesbian women. Heterosexual women were also seen as “less guilty” and as having been “more provoked”.
While this sort of juror decision-making doesn’t really make sense with the evidence—that is, you should not be punished more just because you are a man—it is what it is. Beliefs about gender (e.g., men shouldn’t hurt women) seem to favor the female heterosexual defendant and a provocation defense could be a good strategy. So would we say “sometimes it’s easy to be a woman”? Maybe not that far. How about “here’s a time when it’s better if you’re a woman”.
Keep your eye on this one: A Depravity Scale
Like art (“I know what I like”) we may think we know depravity when we see it. But scientists think it would be better to quantify evil. And so they ask important questions.
“Which is worse: Bombing a building or forcing a child to watch a crime? Attacking a stranger for fun or causing a car accident while under the influence of drugs or alcohol? Murder with intent or murder by mistake?”
To identify what Americans think is worse, the researchers ask participants to rank order behaviors:
“Examples include: Bombing a crowded building in the middle of the work day in order to cause the greatest number of casualties; wanting to watch a victim die; victimizing the disabled; massacring obviously harmless villagers during wartime; and being able to carry out regular activities as if nothing happened after a crime.”
Don’t you wonder about the kinds of people who think up this research? Wow! And they want your help! If you’d like to participate in the research to help craft the Depravity Scale, you can participate here (at least as of July 24, 2010).
The idea is that if researchers can rank order the depravity (e.g., how heinous, cruel, atrocious, depraved or evil) of a particular crime, it would give guidance on sentencing—since one would likely want sentencing to fit the depravity of the crime. The downside is that we have no idea if the people responding to this survey are truly representative of American society as a whole. And even if they are, do we want sentencing for various acts based on a scale of how depraved a particular action/behavior is? Sometimes, it just isn’t that simple. But it can be nearly that creepy.
Deliberations: Jurors think and feel as they make decisions
Our legal system assumes jurors will make their decisions without bias. This assumption echoes the ancient words of Aristotle: “the law is reason, free from passion”. Yet, most of us realize that decision-making encompasses both reason and passion. So how do you take that into consideration as you prepare and then present your case?
Researchers have explored both the “need for cognition” in juror decision-making and, more recently, the “need for affect”. Most of us are more familiar (whether we know it or not) with the “need for cognition” research.
Need for cognition: This refers to how much an individual enjoys and engages in effortful cognitive activities. We hear direct applications of this research in voir dire questions like: Do you enjoy doing crossword puzzles or Sudoku? When trial lawyers ask questions like these, they are examining whether jurors are high in the need for cognition (yes responses) or low in the need for cognition (no responses).
Need for affect: This is a newer concept–and therefore doesn’t have its own Wikipedia page! According to a new article by Desirée A. Griffin and Emily Patty in The Jury Expert, “need for affect” refers to “the motivation to approach or avoid emotion-inducing situations”.
Jurors who are high in need for affect will remember more of an emotion-laden message than they will a cognitive-laden message. Thus, depending on whether you want jurors who will respond to a highly emotional argument (or not) you can use their ‘need for affect’ to make decisions on whom to keep and whom to strike. Griffin and Patty, in their article on need for affect in the courtroom, offer the following as suggested queries for voir dire:
To identify jurors high in need for affect, Griffin and Patty suggest:
1) It is important for me to be in touch with my feelings.
2) I think that it is important to explore my feelings.
3) I am a very emotional person.
4) It is important for me to know how others are feeling.
5) Emotions help people get along in life.
6) Strong emotions are generally beneficial.
To identify jurors low in need for affect, Griffin and Patty suggest:
1) I find strong emotions overwhelming and therefore try to avoid them.
2) Emotions are dangerous – they tend to get me into to situations I would rather avoid.
3) I would prefer not to experience either the lows or highs of emotion.
4) If I reflect only on my past, I see that I tend to be afraid of feeling emotions.
5) I would love to be like “Mr. Spock,” who is totally logical and experiences little emotion.
6) I have trouble telling the people who are close to me that I love them.
Overall, identifying jurors who have a relatively cognitive approach or a dominant emotional approach to decision-making can potentially help your case. We always think it’s a good idea to assess jurors using valid and reliable questions from pre-existing measures. It just makes good sense, and sometimes it makes all the difference.
Pontius Pilate, Lady Macbeth and Embodied Cognition
We hear a lot recently about ‘embodied cognition’. In brief, this refers to the idea that the way in which we think is tied metaphorically to the body. For example, we give someone the ‘cold shoulder’ or we see something as a ‘heavy topic’. Here are a couple of historical and powerful examples:
Pontius Pilate is famous for being the man to sentence Jesus Christ to death by crucifixion. Although he was ambivalent (thinking Jesus was innocent), he gave in to the demanding mob. And after he did that, he washed his hands and said he was innocent of the decision—Jesus’ blood would be on the hands of the insistent mob.
Lady Macbeth could never wash away her guilt over having murdered the King and his two bodyguards. Although she incessantly scrubbed her hands, she was obsessed with the sense that they were still covered in the blood of her victims.
It is strange to think that such old stories would find expression in current day research. But just like the light bulb is the universal symbol of bright ideas so hand washing has deep meaning even thousands of years down the road. Researchers are demonstrating this innate bodily reaction to emotion verbs affect our judgments. Hand washing, long associated with absolving the mind of guilt, can also erase our doubts about everyday choices.
When we make decisions, we look for ways to justify them. And oddly enough, if we can “wash our hands of it” after making choices, we feel better about our choice and feel less of a need to justify it to anyone. “It’s not just that washing your hands contributes to moral cleanliness as well as physical cleanliness, as seen in earlier research” said Lee, a doctoral candidate in social psychology. “Our studies show that washing also reduces the influence of past behaviors and decisions that have no moral implications whatsoever.”
Interesting perhaps. Even amusing. But how can you use this in litigation? Read the study information linked above and see how researchers used hand washing.
- Let’s say your witness is wracked with guilt even though the data doesn’t support wrong-doing. It may sound odd, but consider incorporating hand washing into your preparation session.
- Wondering if your case theme is the best one you could have chosen and this uncertainly is keeping you from moving forward? Consider the reasons you have chosen this particular theme and then wash your hands. Move forward.
There are undoubtedly many ways these findings can be used. When behavior has been used for thousands of years to help us move on and provide absolution—there is likely something to it.
And now the second hundred…
It seems hard to believe but over the last 7 months we have published 100 blog entries. We have gone from having no blog to having readership in every state and about 75 countries.
We started the blog for a couple of reasons. We wanted people to come look at our website, and frankly to consider us when they had need for the kind of services we provide. That has worked out well. Under the old rules of ‘how to grow your business’ you advertised like crazy alluding to your ability, and kept your actual knowledge under cover. The new business universe has changed drastically, and for the better. Now the strategy is much more one of ‘We will tell you what we do and a lot of what we know—and let you decide whether it fits your needs’. To us that feels like a better model.
We wanted to participate in what we were seeing as a lively online community of smart and helpful commentators on the leading edge of knowledge regarding society and the law. Bloggers like Anne Reed, The Situationist, Mark Bennett, Victoria Pynchon, Thaddeus Hoffmeister, Stephanie West Allen, Timothy Hughes and ‘Gideon’ have distinctly different voices, but have all made terrific contributions to our knowledge by sharing their perspectives. We like sharing ideas with smart and thoughtful people. And we wanted that discussion to include you.
There is no end of potential blogs we can post—we are confronted with new research, new trial strategies, and new takes on juror decision-making virtually every day. But what makes it a blog you want to read?
It would be helpful to hear from you on what topics struck you as most useful, or readable, or entertaining, or important. If there are topics you wish we would cover or develop more fully, let us know that, too.
It has been a challenging but fun First 100. Let us know where you want the next 100 to go, and we’ll see you there.
Doug Keene and Rita Handrich
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.
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