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It’s a new issue of The Jury Expert!

Wednesday, December 2, 2015
posted by Rita Handrich

TJE_logo-300x99A new issue of the Jury Expert just published and it is full of articles worth reading (including one from us!). We hope you will enjoy it and since I edit the publication–please let me know if there is a topic you’d like to see covered in an upcoming issue.

The Juror Internet Research Scale (JIRS): Identifying the Jurors Who Won’t Stay Offline

by Alexis Knutson of Tsongas Litigation Consulting, and Edie Greene and Robert Durham (both from University of Colorado at Colorado Springs. For years now, we’ve watched what we used to call the “Google mistrial”–trials being derailed as jurors rushed online to clarify, quell confusion, or demonstrate their superior knowledge to fellow jurors. Now, for the first time anywhere, we have a new 10-question measure to identify those jurors who just will not (by their own report) stay offline while on jury duty. Merrie Jo Pitera, a trial consultant and Mark Bennett, a trial lawyer, respond with thoughts on the new tool.

Jurors Googling & Blogging – Can a Juror Pledge Stop Them?

by Diane Wiley from NJP Litigation Consultants. Discussion of how to minimize the incidence of the “Google mistrial” has often included the idea that perhaps having jurors sign a document that they will stay off the internet (and not read written articles or watch TV news or listen to radio broadcasts relevant to the trial) could perhaps help curb curiosity. Diane summarizes several years worth of discussions and strategies shared by others in this article on use of a “juror pledge” which also contains several sample pledges that could be put into use immediately.

Schadenfreude In The Courtroom: Nonobvious Pleasures at Obvious Distress

by Adele Mantiply, Michelle Jones and Stanley Brodsky–all from the University of Alabama discuss the experience of schadenfreude in the courtroom. Multiple parties involved in litigation will experience schadenfreude (pleasure at another’s pain or distress)–whether that is a result of a successful cross-exam, a judicial ruling in one’s favor, or a winning verdict against an opponent. Whether it is whooping, shouting, triumphant glares, or quiet pleasure at another’s loss–this article pulls back the curtain to expose this guilty pleasure.

Untying Tongues: Preparing Witnesses Who Have Limited English Proficiency (LEP)

by Alexis Forbes and Will Rountree, both of Bonora Rountree Trial Consulting and Research. As litigation increasingly reflects the global nature of business, increasing numbers of witnesses with limited English proficiency must be prepared to testify in courtrooms across the United States. Here, two trial consultants offer a clear path to education and preparation of the LEP witness since, “sometimes the performance of a single witness can make or break your case”.

Revealing Juror Bias Without Biasing Your Juror: Experimental Evidence For Best Practice Survey And Voir Dire Questions

Here’s an article by Mykol Hamilton of Centre College and Kate Zephyrhawke of Hillsborough Community College on the most effective structure for questions to elicit juror biases in survey instruments or during voir dire. The authors discuss the ways traditional language fails to elicit the prevalence of bias. Two trial consultants (Charli Morris and Christina Marinakis) respond with their reactions to the work and the authors issue a spirited reply in response.

Jury Decision-making in Excuse Defense Cases: A Novel Methodological Approach

by Christopher Peters from Arkansas State University in Jonesboro and James Lampinen of the University of Arkansas in Fayetteville. Two researchers explore the idea of allowing jurors to identify the facts of a case they find most important (and therefore want to hear about first) using a card sort technique. Christina Marinakis (a trial consultant) responds with her thoughts on how this tool might be used as an adjunct to more traditional pretrial research.

Uncommon Wisdom from Everyday People: 13 Lessons from Patent and IP Mock Jurors

by Douglas Keene and Rita Handrich of Keene Trial Consulting. This practical article is the result of more than fifteen years of consulting on intellectual property litigation. Cases involving computer hardware and software, industrial processes, mechanical devices, logos and color schemes, tag lines and slogans—jurors have told us what is important to them about disputes involving patents, copyrights, trademarks, and creativity. We share 13 lessons gleaned from pretrial research, all with specific case-related examples of the importance of listening and of translating the esoteric and theoretical in a way that makes sense to everyday people.

Road Warrior Tips for November 2015

by ASTC member trial consultants who travel a lot and pick up habits and tips along the way to help ease the grind. Visit our Road Warrior Tips page for new ideas and to review existing ideas submitted over time by traveling experts.

Note from the Editor: Jurors Researching, Schadenfreude in Court, Non-English Speaking Witnesses, and So Much More!

Squished in the midst of the US holiday season, this issue gives you a plethora of ways to kickstart your brain back into service by giving ideas about identifying “googling” jurors, minimizing that “googling”, guilty pleasures in the courtroom, lessons learned from mock jurors, and the best ways to prepare a limited English-speaking witness, design questionnaire and voir dire questions to elicit accurate responses on juror bias, and how to figure out what jurors want to hear first about your case. Enjoy (while finishing off the last of the leftovers).

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We are now in ABA’s Blawg 100 Hall of Fame!

Monday, November 30, 2015
posted by Douglas Keene


We’ve recently been informed that The Jury Room has been inducted into the ABA Journal Blawg 100 Hall of Fame! Okay, it’s not a Pulitzer, but we are wildly happy about it. To our way of thinking, it is the greatest honor The Jury Room could be given. We appreciate the recognition. Closer to truth, we are shocked. Every December from 2010-2014 we have been delighted to be included in the Blawg 100, but this was not even on our radar screen. Here’s a link to the 2015 ABA Blawg Hall of Fame and a link to the 2015 Blawg 100 honorees.

Here’s how the ABA describes the Blawg 100 Hall of Fame:

In 2012, we established the Blawg 100 Hall of Fame for those blogs which had consistently been outstanding throughout multiple Blawg 100 lists. The inaugural list contained 10 inductees; this year, we added 10 more, bringing the total to 40.

And here is how they described this blog on their roster:

Trial consultants Douglas Keene and Rita Handrich find the research to alternately back up what you think you already know about human psychology (Is rudeness contagious? Yes.) and alert you to the unexpected (Are “beer goggles” real? No.) Posts are both fascinating reads and lessons on how not to base your cases on stereotypical assumptions.

We were inspired to begin blogging by Anne Reed (formerly of Deliberations blog and now leading the charge at the Wisconsin Humane Society). Once we got started blogging, we realized it was a wonderful way to keep up with the changing literature and to share what we were learning along the way. Looking back over the 900+ posts, we still find it interesting to blog as well as a great impetus for our own continuing education. Thank you, ABA Journal, for your recognition of our work over the last 6-1/2 years.

Doug and Rita

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no internet post insert 2015We know who they are and we’ve done a lot of pretrial research with them! It’s like walking backwards in time. Perhaps the most shocking example we’ve seen was one in very rural Texas which we blogged about in a post on working in very rural areas:

“Other very rural venues have shown us the extent to which the internet has passed by some Americans completely. At one site, of 36 mock jurors, only 4 had internet access. At another, of 48 jurors, only 11 had ‘smart phones’ while a majority didn’t understand the question. Most had “not heard of”’s website. One called a major social networking site, “the devil’s work” and others nodded somberly.”

Granted, this was about 5 years ago, but I am confident that this remains one of those corners of the “late-adopter” universe. You have to do a very different presentation for jurors who have never heard of Amazon and don’t know what you mean by “a smart phone”. Especially when smart phones have become pretty ubiquitous across the country. This disconnect from technology is the sort of information you want to know prior to trial since it can require a significant retooling of the case narrative for these jurors to understand the case facts—especially when the case is one of a high-tech nature.

Here is what the Pew study reported about those 15% of Americans who don’t use the internet:

34% of those who do not use the internet say it is because they have “no interest” or the internet is “not relevant” to their lives. 32% say the internet is “too difficult to use” and 8% say they are simply “too old to learn”. 19% said it was too expensive.

40% of older adults (65 and up) say they do not use the internet (compared to only 3% of the 18 to 29 years olds).

33% of adults with less than a high school education say they never go online.

Adults with household incomes below $30K a year are about 8x more likely than most affluent adults to not use the internet.

Rural Americans are about 2x as likely to never use the internet than are urban or suburban residents.

20% of Blacks and 18% of Hispanics do not use the internet compared with 14% of Whites and 5% of English-speaking Asian-Americans (which are the group least likely to be offline).

In other words, people who do not use the internet look identical to those in our large research project described earlier. And their world view is different from that of the urbanite/suburbanite. A woman in a mock trial referred to social media as “the devil’s work”. She was an older, White, retired schoolteacher who had apparently been distressed by the participation of students in social networking sites prior to her retirement. While her statement generated giggles and good-natured hisses from counsel who allegedly represented the devil (from the privacy of a closed-circuit viewing room)—there was no mirroring humor in the mock juror presentation room to her remark. They simply nodded with somber expressions. And after that understanding was seen (through the miracle of modern technology) in the observation room, all frivolity was gone. It was a big case with multiple defendants and they had all just realized they were not in “Kansas” (or New York, Los Angeles, Chicago, Dallas, Washington, DC, Atlanta, et cetera) anymore.

From a litigation advocacy perspective, presenting a case to people who do not use the internet means you have to think about what you are going to say, examples you will use, effective metaphors, whether you will use computerized presentations or visual evidence boards, and so on. You need to be sure that what you say is understood by the listeners. If that isn’t a scary thing to you, it probably should be a scary thing. Once you step into rural America, you are likely to be unfamiliar with the world view shared by your jurors.



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pruny fingersHere again is a collection of tidbits we don’t deem worthy of a complete blog post but which might be of interest or even amusing to you.

Social media is how we get our news these days

While you may think Twitter is receding in importance, the numbers beg to differ. A new Pew Research study tells us that ever-increasing numbers of Americans get their news from Twitter and Facebook. Sixty-three per cent of users on both platforms say they use the social media sites for news outside the realm of friends and family. (These percentages are up from 52% for Twitter users and 47% for Facebook users in 2013 so the use of the platforms for news gathering is growing fast.) Both of the sites are preparing to launch news services that will undoubtedly be tailored to who you follow on Twitter and to what you “like” and what your gender is on Facebook. Social media involvement continues to be important for us to follow as we consider potential jurors but it just got a lot more complicated. To what headlines and stories has your potential juror been exposed just prior to trial?

Don’t eat fish for lunch when in trial 

Recent research examined whether people were made more suspicious when they were completing a task in a room with a “fishy smell” or a room with a neutral smell. Sure enough, the researchers conclude that “exposure to fishy smells is sufficient to elicit feelings of suspicion and distrust, which are associated with a focus on how things may differ from what meets the eye”. Probably better to not have that fish sandwich for lunch when in trial.

The best argument for childhood vaccinations thus far!

A new study just published in Science magazine pretty much kills the theory that it is better to build natural immunity than to take on the false immunity offered by vaccines. There’s never really been any fact to support that argument but here’s a huge finding from this new study: catching measles destroys any natural immunity and “resets” your immune system to that of a newborn. And, it takes two or three years for your “natural” immunity to recover. BUT WAIT! Before you share this with anyone who has an anti-vaccine stance—remember that could backfire on you.

The Stanford Prison Experiment is now a movie

You might recognize this experiment as the one where undergraduates were divided into prisoners and guards and locked in a campus building where after six days the experiment was stopped due to the guards being abusive and the prisoners becoming depressed and feeling helpless. Now it’s a movie. So if you’d rather see a movie than read about the experiment, check out The Stanford Prison Experiment.

Selective Sound Sensitivity Syndrome (SSSS): Do you have it?

Here’s a new disorder—although those who experience it would likely say it’s an old disorder that’s finally been given a name. It appears to result in everyday sounds being painful to the sufferer. According to a recent write-up in Pacific Standard magazine: “Those who suffer from misophonia recoil from human-made noises like chewing and whistling. The risks of being tormented by everyday experiences, like going to the movies only to find themselves sitting near a popcorn-cruncher, can make them too anxious to leave the house.” The jury is out on whether SSSS is a neurological or a psychiatric disorder.

Lee, D., Kim, E., & Schwarz, N. (2015). Something smells fishy: Olfactory suspicion cues improve performance on the Moses illusion and Wason rule discovery task Journal of Experimental Social Psychology, 59, 47-50 DOI: 10.1016/j.jesp.2015.03.006


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facebook creeperYou’ve likely run across the statistics on Facebook being the cause of many divorces or relationship failures as unhappy individuals reunite with past loves lost. There is also of course, often heartbreak as online loves turn out to be not quite who you thought. Now Facebook is also implicated in prolonging the unhappiness after a relationship breakup with 88% (!) of Facebook users “creeping” ex-partners. Imagine a darkened room, a pint of ice cream, a laptop with a high-speed connection, and you are never far away from seeing what your ex is up to now that you are no longer part of his or her everyday life.

Researchers in Canada asked 107 participants (ranging in age from 18 to 35 years with an average age of 23 years) who reported relationship breakups in the past 12 months to complete questionnaires and participate in a structured face-to-face interview on the relationship between Facebook ‘creeping’ and their ongoing distress following relationship breakup. On average, these participants reported their (now defunct) relationship had lasted 2.29 years (with about half having broken up in the past six months and the other half having broken up 7-12 months prior to the study).

In brief, here is what the researchers found:

The more “creeping” (also referred to as “internet electronic surveillance”) one does, the more emotional upset is reported related to the breakup.

The most commonly distressing factor was the ex-partner’s Facebook profile and 88% of the participants reported “creeping” their ex following a breakup. When the participant had remained Facebook friends with their ex, 100% monitored the behavior of the ex after the breakup.

“A breakup without Facebook, you can’t really see what your ex is doing, but with Facebook you just have to click and you know exactly what they’ve been up to. That’s a little frustrating.”

The second distressing factor was the Facebook “relationship status” feature. Changing the relationship status to “single” after “in a relationship” involved multiple questions from “friends” (for 62% of the participants) which raised distress level.

“In some weird way, it kind of feels like you’re breaking up all over again when the status comes down. It angered me at the time that something as trivial as a Facebook status could make me feel so shitty.”

The third distressing area was content posted on Facebook by the participant’s ex-partner which was then seen in the participant’s newsfeed. Participants seeing new content found themselves ruminating over happy memories and wondering why the relationship had ended. Unexpectedly, those who “unfriended” their ex on Facebook had more emotional distress than those who kept the ex as a Facebook friend. For some, like the participant quoted below, “unfriending” helped manage the emotional distress but that was untrue for the majority of participants.

“I would say pull off the Band-Aid as quickly as possible and block the person if you’re finding it as painful as I did to see their continuing existence in your sphere. You’ll immediately feel better, or at least I did.”

It’s an intriguing study that highlights the differences in breaking up in public as opposed to having a private (non-Facebook) breakup. While it is easier to keep up with family and friends on Facebook—it is also more painful post-breakup since your “relationship status” trumpets your pain to all your Facebook friends. The more “creeping” done, the more emotional distress experienced.

The authors also developed a new scale to measure Facebook distress related to creeping an ex after a breakup. The scale does not appear to be named yet but here are a few items from it:

I over-analyze old messages, wall posts or photographs of me and my ex together.

I can’t help feeling angry about content my ex posts on Facebook.

I feel paranoid that people posting on my ex’s wall are potential romantic interests.

Looking at my ex’s Facebook page is self-destructive.

From a litigation advocacy perspective, it seems important to recognize the power of a relationship breakup disclosed through social media, and the identification young people in particular could have with a party publicly shamed, belittled, discarded, or otherwise rejected. In this case, social media (i.e., Facebook involvement) makes the emotional pain last longer and be more intense and it is likely that shame feeds the flame of that sense of public rejection or perceived failure. Every time a Facebook post is re-mentioned (like, for months on end following a breakup when yet another person comments about it after not checking their timeline in a while) it can be traumatizing. If someone feels that they were wrongfully terminated (or are just embarrassed about it) and they get questions about the change in their LinkedIn status from “District Manager at Acme Industries” to something less clear, it can be very difficult for them to explain. That which was once self-promotion can quickly blow up. It’s a potentially powerful theme for case narrative. And it raises questions about how a company might want to guide the use employees make of social media when it involves references to employment status.

Lukacs, V., & Quan-Haase, A. (2015). Romantic breakups on Facebook: new scales for studying post-breakup behaviors, digital distress, and surveillance Information, Communication & Society, 18 (5), 492-508 DOI: 10.1080/1369118X.2015.1008540


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