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ecommerceIn addition to use of the internet in general, we also often want to know the prevalence of online shopping and product research. This information is actually harder to find as much of it is collected by companies who sell the information. There is a very nice infographic at this e-commerce site and we use just a single element of it to illustrate this post. You will likely be surprised at just how much money there is in online shopping and how fast income from this activity is growing around the world.

Business Insider also offers an opinion on online shopping.

“In the first quarter of 2014, 198 million U.S. consumers bought something online, according to comScore’s quarterly State Of Retail report. That translates to 78% of the U.S. population age 15 and above.”

No wonder so many brick and mortar retailers are going out of business. Here are some of Business Insider’s most important takeaways about who shops online:

The conventional wisdom is that women drive shopping trends, since they control up to 80% of household spending. However, when it comes to e-commerce, men drive nearly as much spending online in the U.S. as women.

Men are more likely to make purchases on mobile devices. Fifty-seven percent of women made a purchase online in 2013, compared to 52% of men, according to a study conducted by SeeWhy (a data-crunching company which offers information to businesses). But 22% of men made a purchase on their smartphones last year, compared to 18% of women.

Millennials, those consumers aged 18 to 34, remain the key age demographic for online commerce, spending more money online in a given year than any other age group. They spend around $2,000 annually on e-commerce. This, despite having lower incomes than older adults. Boomers and seniors have adopted mobile commerce. One in four mobile shoppers in the U.S. is over the age of 55. That’s about even with their share of the overall U.S. population.

Online shoppers tend to live in households with higher-than-typical incomes. An Experian survey found that 55% of e-commerce shoppers in the U.S. live in households with incomes above $75,000 (40% were in households earning $100,000 and above). The median household income in the U.S. is around $50,000, according to the Census.

And here is a graphic from Business Insider offering a visually familiar summary of online shopping by age.
Business Insider Generations and Online ShoppingThe widespread use of the internet for shopping and product research is pretty amazing when you think of how recently the internet became user-friendly. There is big money to be made in e-commerce and being aware of just how much money and just how common internet shopping is will serve you well in cases involving this theme. This is often a big consideration in the valuation of trademark infringement, “grey market” sales, and licensing disputes.

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internet_usage_statisticsWe work in venues from major metropolitan centers to counties with less than 20,000 people. Rural areas used to be where internet access and use was almost nonexistent in the past, but that is rarely the case any more. We’ve written about the reaction of our high-tech clients as they hear what rural mock jurors have to say about them, but we also think it’s important to remain aware of just how omnipresent the internet is among Americans. In truth, any case that may be influenced by internet issues needs to be examined carefully if the trial is set in rural America. The data on internet penetration and usage is changing so quickly that the profile changes dramatically from one year to the next.

“As part of the 2008 Broadband Data Improvement Act, the U.S. Census Bureau began asking about computer and Internet use in the 2013 American Community Survey (ACS). Federal agencies use these statistics to measure and monitor the nationwide development of broadband networks and to allocate resources intended to increase access to broadband technologies, particularly among groups with traditionally low levels of access. State and local governments can use these statistics for similar purposes.”

According to multiple sources (based on data that is at least a couple of years old), current computer ownership in the US is at 88.4% of all households. Internet use is at 78.1% across the US. They included this graphic in their report to illustrate the frequency of internet use by demographics.

Figure 2 internet use

Here are some narrative highlights from the most recent Census Bureau report on internet use in the US:

In 2013, 83.8 percent of U.S. households reported computer ownership, with 78.5 percent of all households having a desktop or laptop computer, and 63.6 percent having a handheld computer.

In 2013, 74.4 percent of all households reported Internet use, with 73.4 percent reporting a high-speed connection.

Household computer ownership and Internet use were most common in homes with relatively young householders, in households with Asian or White householders, in households with high incomes, in metropolitan areas, and in homes where house- holders reported relatively high levels of educational attainment.

Patterns for individuals were similar to those observed for households with computer ownership and Internet use tending to be highest among the young, Whites or Asians, the affluent, and the highly educated.

The Census Bureau report contains multiple facts and graphics on internet use and computer ownership across the country. This summary covers most of them but if you want additional information, look at the report itself.

Note:  The glaring omission in this study is cellular data. It is based on household computer use. For those under 30 (especially), smart phones and gaming consoles are major points of access for the internet. Some cable and satellite “television” providers are more accurately viewed as data streaming services, and offer direct access to the internet through their streaming platform.

From a litigation advocacy perspective, we think it’s important to always be aware of how different life (and the perspective of those living that life) is when the internet is not a daily part of your existence.

For attorneys presenting in those areas, the examples and analogies they use have to resonate with the lives of their audience and when you are an attorney representing a high-tech client—you don’t want to find out just how different those lives are when you are actually in the courtroom at trial.

Most of the time though, you will likely be presenting cases in venues where the internet ranges from commonplace to ubiquitous. Access to the internet is so widespread in the vast majority of trial venues that the question of internet access is often more a question of economics (with relatively poor people not having as much access to smart phones or computers) than age, gender, or race. Use this report to maintain awareness of how the internet is used differently by different people at different times.

Do not assume that all younger people are internet savvy or that all older people are not internet savvy. It is highly dependent on the individual (as well as their income and education) although, as seen in this report, the vast majority of Americans are internet users.

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smartphone 2015Most of us don’t know how much we rely on smartphone use and this is likely a very important piece of information to help us understand why it’s so very hard for many jurors to stay away from their phones while serving jury duty. While only a small study (29 participants between the ages of 18 and 33 years all using Android smartphones), the disconnect between how much we think we use our smartphones and how much we actually use our smartphones is striking.

Here are just a few of the findings from the study:

Young people in this study used their smartphones for an average of five hours a day (which is 1/3 of the time they are awake).

The average time participants thought they used their phones was actually only about half the time they actually spent on their phones.

During their waking hours, on average they checked their phones 85 times a day.

They used their phones for internet searches, to check the time, to look at email and social media and to listen to music.

The duration of smartphone use was highly skewed with 55% of all uses less than 30 seconds in duration.

The researchers comment that research often relies on individual estimates of mobile phone use but this finding suggests those estimates should be interpreted with caution (and are likely very wrong). The researchers placed an app on each person’s phone so they could compare estimated use with actual use. The app simply calculated the duration the phone was active (using screen on/off as the indicator). In addition, the researchers asked participants to complete the Mobile Phone Problem Use Scale (MPPUS, a 27 item questionnaire that has “positive correlations with self-reported mobile phone use”). One of the issues we see with use of this scale is that it was developed in 2005 (before the current smartphone usage level) but the questions seem to still resonate with what we know of smartphone use in the current day.

Here are a few of the questions from the MPPUS:

When out of range for some time, I become preoccupied with the thought of missing a call.

Sometimes, when I am on the mobile phone and I am doing other things, I get carried away with the conversation and I don’t pay attention to what I am doing.

I have used my mobile phone to talk to others when I was feeling isolated.

I find it difficult to switch off my mobile phone.

The researchers say that, when compared to smartphone use from six years ago—the amount of time we spend on our phones has not increased. They also, like us, express concern with using the MPPUS in the current day as a measure of “problem” use since there is a difference between “heavy” use and “problem” use. Additionally, there was no correlation between scores on the MPPUS and either actual or estimated use of smartphones. It may be that the MPPUS has been outgrown as the technology changes. The researchers report, for example, that all but one of the participants in their study used their phone as an alarm clock and many indicated that they use their phone last thing before sleeping. As smartphones have added additional tools, many people are using them for the new functions.

Overall, the lesson from this research is that our estimated use of our smartphones is likely quite different from our actual use of them and that a measure developed in 2005 has a very different outcome today than it did in 2005 when mobile phone use was relatively new and researchers wanted to see when it might cause a problem for those who loved their phones too much. And from the perspective of litigation advocacy, we need to understand that for many of us, our own acknowledgement of just how much we depend on the ubiquitous smartphone severely underestimates our usage.

Andrews, S., Ellis, D., Shaw, H., & Piwek, L. (2015). Beyond Self-Report: Tools to Compare Estimated and Real-World Smartphone Use. PLosOne, 10 (10) DOI: 10.1371/journal.pone.0139004

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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

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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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