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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.


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.



A Gideon Bible where it's often found, in a hotel nightstand.It’s no party for the sequestered juror. No morning paper. No TV. No internet cable or WiFi access in your room. No phone. They even take the Bible from your bedside table. While jury sequestration is often requested in high-profile trials, it is rare to actually have it happen. Jodi Arias asked for it and was refused. So did Conrad Murray. Casey Anthony’s jury was sequestered for 43 days—and rather than do an official change of venue, the jurors in her case were chosen in Clearwater, Florida and then shipped 100 miles to Orlando, Florida without access to cell phones or internet. Charles Manson’s jury was sequestered for 225 days. Manson’s jury held the record until the OJ Simpson jury was sequestered for 265 days.

Circuit Court Judge Debra Nelson’s recent decision to sequester the Zimmerman jury means all 10 people [6 jurors and four alternates] will stay in a “hotel for the duration of the trial, which is expected to take two to four weeks”. While the Zimmerman trial is not expected to run longer than one month and the jury selection itself is expected to take at least as long as the trial, “it cost the state of Florida $350,000 to sequester the jury in the Casey Anthony trial for 43 days”.   Judge Nelson reversed her initial decision not to sequester the jurors after several jurors appeared to be trying to obtain seats on the jury for their own personal reasons.

A potential juror at the George Zimmerman trial who told the court he had little knowledge of the case apparently indicated otherwise on Facebook. I CAN tell you THIS. ‘Justice’…IS Coming, the juror appeared to write of the Zimmerman case on the Facebook page for the Coffee Party Progressives, a page with which he was confronted in Judge Debra Nelsons courtroom.”

Supporters of sequestration say that the isolation means you hear the evidence without media bias or community pressures. You focus on the evidence and make a decision based on what is admissible and not what is posted on social media sites or discussed in the ever-present media. Jurors who are sequestered bond and some say they can thus deliberate more collaboratively.

Critics (and they are many) say that sequestered jurors get “too chummy”. They begin to think so similarly that the goal of a group coming together with diverse opinions is completely lost to “group-think”. There is a very real possibility that jurors will be irritated by being cooped up for so long and stop paying attention, react against both parties, et cetera. And sometimes, they fall in love or various permutations on that theme.

Finally, it is often said (in hindsight) that jurors fail to deliberate thoughtfully following sequestration because they “just want to go home”. This “just want to go home” theory was often used to explain the “quick” Casey Anthony jury’s ‘not guilty’ verdict. Over the last 20 years I have interviewed thousands of jurors and mock jurors, and this is not my experience. Jurors invariably take their responsibility very seriously. Given the seriousness with which jurors approach their task, this idea simply is simply wrong, as I explained at the time on CNN’s Opinion page.

Still others question if it can even make sense anymore in our lives of constant media saturation to sequester juries. Attorneys still seem to think so. Three recent examples of why attorneys request sequestration are the Google mistrial rationale, the Nancy Grace mistrial rationale, and the Media meddling rationale.

Google mistrial rationale: “In an age when Google is a verb, and many rely on their phones to wake them up, schedule their lives, and pay their bills, is it still reasonable to expect juries to make decisions in a vacuum? Yet sequestration may be the only option. Judges have struggled to keep up with a growing number of outlets, and do not communicate about the case has become do not Tweet.”

Nancy Grace mistrial rationale: Nancy Grace’s constant pro-Prosecution coverage of the Casey Anthony trial resulted in the Conrad Murray Defense requesting sequestration at least while Nancy Grace was on the air. “Attorneys for Dr. Conrad Murray said the case should be sequestered to prevent the panel from being influenced by media reports. Specifically, the jury should be sequestered during the hours that television pundit Nancy Grace is on the air.”

Stop the media from meddling rationale: “Lawyers for accused serial killer James Whitey Bulger today threatened to ask to have his jury sequestered for the anticipated four-month duration of his blockbuster trial, arguing the Boston Globe is poisoning the pool in its fight to free two reporters from the defense witness list.”

The financial troubles in the court system coupled with the strains sequestration places on jurors  and complicated by the fears (and often reality) of public attacks on jurors rendering an unpopular opinion, will make juror sequestration a hot topic for years to come.

[If you still want to know more about this topic, you can see an April 2013 slide show on sequestration (with all the nitty gritty details) here.]


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Things You Should (Maybe) Know…

Monday, October 15, 2012
posted by Douglas Keene

Sometimes stuff just comes up that we think you need to know but it isn’t enough to fill an entire blog post. This is one of those times. Think of it as things you didn’t know you needed to know until you knew it!


Why do we love it so? Well. M&Ms are not only in focus group facilities waiting to ensnare the frustrated trial attorney watching mock jurors behind darkened glass. They also apparently lurk in rat mazes to see why chocolate so appeals (to us and to those rat stand-ins for us). As it turns out, chocolate is like opium for rats.  And presumably, it’s a bit like opium for us as well. I, for one, would be quite willing to gorge myself on M&Ms for the good of science. So, we’re thinking maybe someone should do some research on what is really in Starbuck’s coffee!

Does your non-working nose mean you’re a psychopath?

We’ve written about psychopaths here before and they are a pretty scary bunch. But now we have a simple test for you to use at home to determine whether you are potentially a psychopath. How’s your sense of smell?

Psychopaths seem to have a very poor sense of smell. [Wow. I want to be in the court the first time a detective testifies that the suspect’s inability to smell was one of the tip-offs to their guilt!] Researchers think this is a good test to use since expectations of performance are unclear and the subject may be less able to fake good (or bad) responses. Of course, this research doesn’t mean just because you have a poor sense of smell that you are a psychopath. You could also have schizophrenia, Parkinson’s or Alzheimer’s disease. We thought that was reassuring. Oh– plus, seasonal allergies can also be a factor.

Annoying co-workers? There are actual benefits to this! Be thankful. 

While you may not have a Dwight Schrute in your office, you may have someone equally odd, annoying, or even deviant. New research focuses on the benefits you may gain from working with oddballs–even when they are very annoying. Specifically, in comparison to the deviant coworker–you can feel better about yourself. That’s always a good thing, e.g., “I’m an idiot, but at least I’m not that idiot!”.  Second, by observing other’s reactions to the deviant colleague, you can gain invaluable information as to unwritten workplace norms. If this doesn’t bring you a sense of gratitude for your own odd coworkers, you might try buying them lunch.

Think you’re better off up-front in that plane?

Whoa. Think again. ChartPorn has come to your rescue by publishing a visual of the safest seats on a commercial jet. To do this, they looked at a review of every commercial jet crash in the US since 1971 where there were both fatalities and survivors. That’s pretty thorough. And the verdict? Sit in the rear and arrive alive! Hmmm. You might also want to check the directional capabilities of your pilot.

It’s the economy! 

Along with the other bad news on the economy in the US for the past few years, here’s another feel-bad fact from our friends at the Atlantic. Income inequality is worse in the US today than it was in 1774. Yes. 1774. Not a typo. Although the Atlantic says this isn’t as demoralizing as it sounds–they are totally right as to how demoralizing it sounds. As they say, America is richer and better off today than we were 240 years ago. (That’s good news, right?) There are, however, sharper delineations between the have’s and have-nots (the 99%) today than there were then. It reminds us of another (and more uplifting) story we saw in the Atlantic recently. Sometimes, it seems like things are getting better.

Mehmet K. Mahmut, & Richard J. Stevenson (2012). Olfactory Abilities and Psychopathy: Higher Psychopathy Scores Are Associated with Poorer Odor Discrimination and Identification. Chemosensory Perception. DOI: 10.1007/s12078-012-9135-7


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Hydro-fracking and the Environment

Monday, October 1, 2012
posted by Douglas Keene

Few things are as frightening to us as the idea that our drinking water is contaminated. But this fear is a cornerstone of the debate as to whether hydro-fracking is the answer to our need for energy self-reliance or the slippery slope to contaminated drinking water and health declines for those living around hydro-fracking areas.

Hydraulic fracking [aka hydro-fracking] is a technique of recovering natural gas from underground geological formations that would otherwise not be sufficiently productive to be economical. By injecting fluids (water and chemicals) under high pressure into the gas well, fractures in the rock develop. After the injection procedure is complete, a successful hydraullic fracking procedure (also commonly referred to as “hydraulic fracturing”, “hydro-fracking”, “fracking” or “fracing”) results in higher rates of gas flow into the bore hole, and a more productive well.

It is unquestionably a very successful procedure for increasing well production, and one that has become heavily utilized in recent years. Since this technique has been employed, public concern over environmental impact on drinking water has skyrocketed in the gas field areas. Some local water supplies have developed a terrible taste. Others carry chemical concentrations in ground water that had not been previously noted.

The debate around hydro-fracking and the potential for ground water contamination as well as possible health impact is emotionally powerful. Proponents say fracking is misunderstood and it is a safe technique for accessing deeply buried energy resources. Opponents say we need to know more about the impact and that any risk to health and groundwater safety is too high.

We have a paper in the just released issue of The Jury Expert on hydro-fracking and the environment. In this paper, we generally describe typical arguments by both Plaintiffs and Defendants, but we will not attempt to weigh the scientific evidence that is typically presented in these toxic tort actions. Instead, we will focus attention on jurors, and the related concerns that litigants are going to face from jurors before the first word is spoken.

We use random surveys of registered voters, likely voters and citizens of various states to illustrate varying and similar attitudes in states where hydro-fracking is actively being done, actively being considered, or where it will likely not be done. We first looked at this topic about a year ago and little was publicly available. Now, the information available has exponentially increased as media attention has begun to carefully scrutinize the safety and environmental impact of the practice.

Take a look at our article and let us know what you think of it.



Recently, a client sent us a link to a political ad run by Texan US Senate candidate David Dewhurst. The ad essentially attacks Dewhurst’s opponent (Ted Cruz, an attorney) for representing a Chinese company in an intellectual property lawsuit with an American company. Ted Cruz is painted as a “China sympathizer” who is guilty of helping the Chinese steal American jobs. The ad has gotten heavy airplay all over Texas, and the coverage of the dispute related to it has raised the prominence of the controversy even more.

It made us think about several recent projects where bias against Asians was expressed in a joking fashion by various mock jurors. But it was clear that the joking tone was a thin veil for attitudes that were not at all funny. All of the cases involved intellectual property (patents or trade secrets) and the accusations that the Asian entity had reverse-engineered the American IP unfairly. The merits of the cases are one level of analysis, but more prominent was the readiness of most jurors to find guilty conduct in these Asian parties in a way that speaks of confirmation bias.

As many readers of our blog are aware, confirmation bias is the tendency we all have of seeing the world as we believe it to be. People remember evidence that confirms their attitudes and biases, and have weaker recall for contradictory points. Someone with such a bias may say “Because of [X fact], I think the Defendant should pay the Plaintiff”, but you are able to rebut their reliance on [X fact] absolutely. They reply not by changing their conclusion, but by changing their justifying argument. Often, this pattern is an indication of confirmation bias, not of the power of the evidence itself. When I was in graduate school, we referred to this as “drawing the curve before you plot the data”.

In one project, the plaintiff was a very successful American businessman with a Middle Eastern last name, and was suing a major retailer, alleging that they knowingly purchasing and sold black market counterfeit products manufactured in Asia. Given the last name of the plaintiff, we were expecting racism. And we saw it. Interestingly, the racist comments were directed at Asian countries who were (in the minds of jurors) counterfeiting the [American] products and profiting off the backs of a good [American] product name. Slurs were directed (all in a seemingly joking fashion) at China, Korea and Asian countries in general. When questioned about these comments and the basis for them, our mock jurors denied the importance of the comments and then made additional racist comments–again, veiled as jokes.

In another case, a Chinese scientist invited himself to an American university to ‘study’ with an established inventor. While there, the Chinese scientist copied documents and beat the American inventor to the US patent office by filing a patent through his Chinese company with stolen documents. The Chinese scientist later wrote a letter to the American inventor apologizing for his own poor manners and ethics. Again, we heard slurs and stereotypes about Asians being not trustworthy, sneaky, ethically challenged and more. And again, there was no explanation for this from the mock jurors other than additional “joking” comments.

Since we are based in Texas, it might be tempting to say “Wow, those Texas rednecks are pretty closed-minded”.  [We would then encourage you to consider the bias implicit in that belief…]  But in fact, we conduct research all over the country, and IP cases from coast to coast. The same pattern applies all over. Ethnocentrism is thriving in every community, as it has forever. Globalization is only a good thing if you, your family, and your friends all have the jobs they want.

As we have discussed in other posts about racism and ethnocentrism, people usually deny racial bias, but if the question becomes one of “What do you think your neighbors and co-workers would think about this [racially  loaded] issue?”, the jurors often warn us that the minority party is facing a difficult burden due to race. Obviously, such a person doesn’t want to be seen as racist, but doesn’t mind us knowing that their best friends are racist. Not too wily.

Despite recent surveys depicting a positive sense of each other by American and Chinese citizens, we have been seeing a different picture from our American mock jurors for the past few years.

Perhaps it’s due to the flagging economy and perceptions of China overtaking the US as a global superpower.

Perhaps it’s fear of the Asian intelligence that apparently leads to discrimination against Asians in our educational institutions.

Perhaps it’s the leftover stereotypes from 1960’s James Bond movies portraying Asian men as super-villains.

Perhaps it is a combination of all those factors.

Whatever the reason, we are regularly reminded of the need to carefully prepare Asian and Asian-American witnesses for testimony in American courtrooms, and to carefully prepare trial teams on strategies for dealing with overt and covert anti-Asian bias. Just as we carefully prepare other “different” witnesses–whether they be atheists, homosexuals, powerful women, African Americans or Muslims. We focus on clarity of communication (using translators if necessary) and how to introduce the witnesses to the jury so they are seen as trustworthy and credible. Without making that connection, their testimony is corrupted by bias that can creep in and define the witness.

It appears that when bias against Asians is used in high-profile political campaigns, it has achieved mainstream acceptance, and we should all be paying close attention. Running the anti-Ted Cruz ad is estimated to have cost more than $600,000 and we’re guessing money like that isn’t thrown around “just in case” there are a few voters out there who are biased against Asians.