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TJE_logoThe February 2015 issue of The Jury Expert has been uploaded and here’s what you’ll see if you visit the site:

Why Women Speak Up in the Jury Room by Suann Ingle. Many of us have read the book Lean In by Sheryl Sandberg. Suann read it and then saw the recent article by Sandberg and a colleague discussing why women don’t speak up at work. Suann has ideas about why women may not speak up in the corporate world but she also has ideas about why they do speak up in the deliberation room. If you want your female jurors to participate, take a look at Suann’s ideas on how to make that happen.

The Psychology of a Persuasive Settlement by Ken Broda-Bahm. “We all have an image in our heads of the way we expect cases to end: passionate presentations, gripping witness testimony, then a tense wait, followed by the dramatic verdict. In the great majority of cases, however, the dispute will end not in a courtroom but in a conference room.” So begins Ken Broda-Bahm’s article on the psychology of a persuasive settlement. This is an article that focuses on the issues that keep us (or rather, “the other side”) from settling a case when that is the most logical outcome.

Racial Disparities in Legal Outcomes: On Policing, Charging Decisions, and Criminal Trial Proceedings by Samuel R. Sommers and Satia A. Marotta. We don’t do reprints in The Jury Expert. But this time, we are doing a reprint, because this article was written in plain language and the content is so important we want to make sure everyone has a chance to read it. There are many ways racial bias factors in to legal decisions and this article focuses on how racial bias enters into decisions on policing, charging decisions, and criminal trial outcomes. This is a must read article.

Top 10 Most Accessed Articles from The Jury Expert in 2014! Here’s a look at what your colleagues have been clicking on and reading in 2014. Have you read all of our top ten? Now you can!

Road Warrior Tips. Here’s a few more tips and tricks from our “often on the road” ASTC member trial consultants. Make sure you know the newest tips and tricks!

Who is my ideal juror? by Jill Leibold. It’s a question often asked by trial attorneys. Jill Leibold has some thoughts on turning that question around so you ask who is not your ideal juror. She also has some ideas on how you can identify both your favorites and your not favorites so you go into jury selection more confidently.

Favorite Thing for February 2015! We like a good infographic here at The Jury Expert and this favorite thing entry gives you many infographics. If you, like me, have trouble remembering the different uses of the words “affect” and “effect”—you’ll love the infographic we are featuring!

Mea Culpa in the Courtroom [a TJE Classic] by Kevin Boully. Before May 2008, when we began to publish entirely online, The Jury Expert had some very good pieces that saw limited exposure. We devoted an entire issue to “the classics” that stood the test of time but didn’t have room for this one. How do you apologize effectively in the courtroom? Kevin Boully knows the literature and offers his perspective on the importance of both apology and the importance of doing apology right.

We hope you enjoy this issue of The Jury Expert and, tell your friends, colleagues, and opponents about us!

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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

trusting too much kills youBack in August we wrote a post on a study saying women are lied to more in negotiations. One of our readers re-tweeted the post and added, “Happy Women’s Equality Day”. Another article from the same research group says women are more likely than men to trust a liar again after they learn of deception.

The authors we are studying today conducted three separate studies to assess gender differences in trust following deception (or what the authors refer to as a trust violation). Their findings were consistent:

Women trust more than men after a deception.

Women are less likely than men to lose trust in others following transgressions.

Women are more likely than men to re-establish trust after repeated transgressions.

It seems to be about socialization–women want to maintain relationships and that desire results in a gender difference in trust after a “trust violation”. If these results are accurate, it is no wonder men keep lying to women. Women are willing to believe the apology. Women, say the authors, are more forgiving, and more motivated to work through relationship problems.  We could go on at some length about these findings but instead we want to focus on one of the measures they used to assess the importance of maintaining a relationship. We had never heard of this scale before but it has a terrific name: The Unmitigated Communion Scale. And the 9 items in the scale below (taken from the article published in 1999) highlight the differences we continue to see between men and women in 2014.

 

Unmitigated communion scale

The items in this scale were designed to measure a focus on others even when that focus resulted in one’s own detriment back in 1999. And we still get gender differences in responses to the seemingly dated questions from this scale in 2014? Wow. Just wow.

Haselhuhn, M., Kennedy, J., Kray, L., Van Zant, A., & Schweitzer, M. (2015). Gender differences in trust dynamics: Women trust more than men following a trust violation Journal of Experimental Social Psychology, 56, 104-109 DOI: 10.1016/j.jesp.2014.09.007

Fritz, H., & Helgeson, V. (1998). Distinctions of unmitigated communion from communion: Self-neglect and overinvolvement with others. Journal of Personality and Social Psychology, 75 (1), 121-140 DOI: 10.1037//0022-3514.75.1.121

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workingmomOr if you already are a mother, do not have any more children. On the other hand, if you are a man, have as many children as you would like. And preferably with a woman who doesn’t mind taking a dramatic payroll hit at work. With children (as a man) you get an average 11.6% bump in your salary according to this report. The author opines that fatherhood “is a valued characteristic of employers, signaling perhaps greater work commitment, stability, and deservingness”.

But we must remind you that this applies only if you are a man who is a father. And if you are a woman? According to today’s research report, with every additional child, you lose another 4% in income. So it isn’t just gender that reduces your salary. It’s having children as well. And yes. It is an article written in 2014. Don’t shoot the messenger here, it isn’t our research or our vision of a “just world”.

“For men, it’s just the status of being a father that raises their wages. For women, each additional child she has makes the penalty worse.”

Becoming a mother means women will earn less over their lifetimes while fathers earn more. This is but a small part of the disconcerting, disturbing, and depressing findings in a new report from the Third Way think tank. You may wonder what happened to the 2010 ABC World News report of women now earning 8% more than men. Well, that report only referred to young (early career) and childless women–not women with children.

Michelle Budig, the author of this report, calls what happens to women the “life cycle effect”. She points out the small gender gap in pay for 20-somethings (women earn about 96 cents on the dollar compared to men). That small gender salary gap grows as you hit 30-something and then 40-something though, and Budig thinks it is because of developmental milestones like marriage and children.

“Things happen in people’s lives like marriage and children, that trigger new behaviors and differential treatment in the workplace” for men and women.

Specifically, she says, the period between age 35 and age 44 is when we generally see the largest growth in salaries. This is also the time when many college-educated women stop delaying childbearing and are actively involved in caring for young children.

A caveat to this news comes if you are at the top of the salary distribution. If you are a man you get an even larger fatherhood bonus. And if you are a woman, while you don’t get a bigger bonus for being at the top of the income distribution, there is no motherhood penalty at all.

Another caveat also relates to privilege. White fathers receive larger fatherhood bonuses that Latinos or African-American men. In fact, African-American men have the lowest fatherhood bonus of any racial/ethnic group.

Budig suggests stereotypes of what makes a “good mother”, a “good father” and a “good worker” are likely at play here. If we believe that mothers should be focused on caring for children over workplace/career ambitions, they “will be suspect on the job and even criticized if viewed as overly focusing on work”. The opposite is apparently true for fathers who are likely perceived as trying hard to be a “good provider”.

From a workplace perspective, this report is a pointed reminder of the importance of identifying (and using) concrete, behavioral indicators for salary increases. That is one way to avoid making salary decisions based on stereotypes that cast either a halo effect (on fathers) or the opposite (on mothers). Creating a professional environment that welcomes both men and women means having specific indicators of “success” that apply equally to all employees, regardless of gender, ethnicity, age, or parenthood status.

Budig, M. 2014 The fatherhood bonus and the motherhood penalty: Parenthood and the gender gap in pay. Third Way.

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female in surgical researchMore than two decades after the 1993 Revitalization Act was signed (stating women and minorities must be included in NIH funded research), females are still under-represented in both “basic science and translational surgical research”.

The authors acknowledge that medical research on human subjects is only a small subset of all medical research. However, even those studies using animals and cells have females under-represented. Why? Females, whether cell, animal or human (due to hormonal fluctuations) are harder and more expensive to study and including them may make the research much more complex to analyze. They are simply not as predictable as male cells, animals or humans.

Yet, there is a growing body of research showing “men and women may manifest diseases differently, experience illnesses differently, and benefit from treatments differently”. The authors list disease processes where male and female patients respond differently, including “but not limited to cardiovascular disease, lung cancer, depression, obesity, osteoporosis, thyroid disorders, multiple sclerosis, and Alzheimer’s Disease”. Yet, the authors tell us, in 2014, “all medications except for zolpidem (Ambien) are dosed the same for men and women, including anesthetics and chemotherapeutics, drugs that can be lifesaving”.

This is a fascinating (and disturbing) article to read and we will simply hit the high points (or should that be low points?). The authors looked at the top 5 surgery journals (i.e., Annals of Surgery, American Journal of Surgery, JAMA Surgery, Journal of Surgical Research, and Surgery) from January 2011 through December 2012. Here is some of what they found on medical research:

One-third of all publications using animals or cells did not specify the sex studied, and when they did specify, 80% studied only males.

For research on cells, 76% did not specify the sex of the subject from whom the  cell studied was drawn. When they did specify, 71% studied only males.

Although a larger percentage of publications now state sex of the animal or cell studied than they did one and two decades ago, more male-only studies are being published. The authors say this reflects the sex disparity in basic research is growing rather than decreasing over time.

Thyroid and cardiovascular disease are female-prevalent disorders and so we might expect more female subjects in those articles. Only 12% of those publications studied females or both sexes.

The authors offer several memorable quotes:

“With robust and surmounting evidence that women are clearly different from men with respect to cardiovascular mortality, it is unacceptable that less than 25% of current cardiovascular trials are designed without apparent regard to sex in terms of trial design, patient selection, and analytic processes.”

“Furthermore, recent population-based outcome studies show that even as mortality has decreased in most counties in the United States from 1992 to 2006, female mortality increased in 42.8% of these counties.”

This, say the authors, is not simply a problem of surgical research, but rather, based on recent review articles, “sex disparity is pervasive across all disciplines for biomedical and clinical research, with most studies showing no improvements over time”.

The good news is that several of the surgical journals revised their requirements after receiving this information from the authors. Now all authors are required to state the sex of the animal or cell used and if they did not use both sexes, they need to give a rationale. It’s a good first step, but certainly not a solution to such a significant problem in medical research. This article does not address whether minorities also remain under-represented, but we’d take a wild guess they may be as well.

From a litigation advocacy perspective, it is worth considering whether this work applies to a personal injury Plaintiff. If there are known differences between how male and female patients respond to a particular disease or surgical procedure or medication–check to see if their treatment was appropriate for their gender or if a female patient was treated “like a man”. These authors (some of them surgeons) cite a 2005 study showing “only one in five physicians across multiple specialties was aware that more women than men die from cardiovascular disease each year, and most of these physicians did not rate themselves as effective in treating sex-tailored cardiovascular disease”. Similarly, product liability cases involving medical products or medicines could be informed by this research as well.

What should they have known?

What should they have considered?

What would it have cost them to use both male and female research participants?

Yoon DY, Mansukhani NA, Stubbs VC, Helenowski IB, Woodruff TK, & Kibbe MR (2014). Sex bias exists in basic science and translational surgical research. Surgery, 156 (3), 508-516 PMID: 25175501

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Men-Lie-to-WomenBack in 2012, we wrote about which gender was the more moral in negotiations. (Spoiler alert: it was women.) Now we have a new article on why women get lied to in negotiations. Not when or if–but why. Basically, people believe women are more easily misled than men and people believe women to be less competent than men. Therefore, “negotiators deceived women more so than men, thus leading women into more deals under false pretenses than men”. The researchers completed three separate studies and (to add insult to injury) these were not experiments using the ubiquitous undergraduate. These research participants were adults in the working world.

In Study 1, 131 employees (75 male and 56 female) at an online marketing research website participated in the research. (Gender was the only demographic information collected so we don’t know their educational backgrounds, average age or racial identity.) Participants were asked to imagine they were selling a used car and posted an ad on a community website. They were then approached by a male (or female) buyer. The participants were told that the buyer appeared to be a typical (male or female) negotiator. They were then asked to rate the imagined buyer on eight different traits: warmth, kindness, business sense, ambition, gullible, naïve, arrogance or stubborn. The researchers added four additional traits: easily misled, impulsive, confident and knowledgeable.

Women were perceived as both less competent and more easily misled in negotiations than were men. (These variables were derived using multiple traits rated by participants: Ease of being misled = Easily misled + Gullible + Naïve + Impulsive; and Competence = Good business sense + Confident + Knowledgeable + Ambitious.)

In Study 2, 394 employees (116 female, average age 32 years, 74% White, 7% Black, 5% Hispanic, 11% Asian, 1% Native American and 2% ‘other’) at Amazon Mechanical Turk participated in the research. These participants were asked to imagine someone (the Seller) was selling an antique chair said to be worth $1,250 according to a popular buying guide. However, one of the legs was broken and would cost $250 to repair correctly. Instead, the Seller fixed it temporarily knowing it would become wobbly again with use. The only way the Buyer would know the chair was defective is if the information was disclosed by the Seller. Again, a male and female buyer approached the Seller.

Again, women were perceived as more easily misled and as less competent. Women were believed to be less able to detect deception on the part of the Seller.

Undaunted, the researchers continued on to Study 3. This time the participants were 298 full-time MBA students (221 of whom were male) enrolled in a negotiations course. They were paired into 149 dyads (65 male-male, 23 female buyer-male seller, 48 male buyer-female seller, and 13 female-female). Research participants completed the “Bullard Houses” role-playing exercise which basically simulates a real estate transaction. They were randomly assigned to negotiate as the buyer’s agent or the seller’s agent. The buyers’ agents could either tell the truth, misrepresent, or tell an outright lie about their intentions in order to lure the sellers’ agents into a deal. And you will never see this finding coming.

Female negotiators were deceived more than male negotiators.

The researchers say that women at the negotiating table are going to be offered less favorable deal terms (based on past research) and they are going to be lied to more often than men. As the researchers looked more closely at the ways in which women were deceived, they found that women were told more blatant lies than were men and men tended to be told the truth. The researchers summarize their findings this way:

“The gender bias in deception appears driven by a greater propensity to tell women blatant lies in a situation in which men tend to be told the truth.”

This study is disheartening for any number of reasons, and it raises questions about how universal this general pattern is. From a litigation advocacy perspective, this series of studies tends to indicate women may simply be lied to rather than being allowed to engage in actual negotiations about case issues. Are they more subject to men failing to properly disclose in discovery? More often victims of spoliation of evidence? Dirty tricks at trial?

The researchers wonder if their findings could help explain the gender gap at high levels in business organizations. Women, say the researchers, may shy away from negotiations since they will be lied to and thus be at increased risk of entering into deals on the basis of false pretenses. While okay as a hypothesis worthy of testing, it is not at all supported by evidence. Let’s see an experimental design that looks at “what do women do when they know that they are being lied to by men?”. And, let’s be clear– it is more than ironic (“sexist” comes to mind) to think of this in terms of women somehow being less effective because of their weariness over men lying to them. Aren’t we talking here about being lied to? By men? We would say that until the social stereotype that women are easy to mislead is changed, and men stop lying in ways that are less likely when dealing with other men, awareness will do little to change the outcomes of their negotiations, mediations, and settlement talks.

Kray, LJ, Kennedy, JA, & Van Zant, AB (2014). Not competent enough to know the difference? Gender stereotypes about women’s ease of being misled predict negotiator deception. Organizational Behavior and Human Decision Processes.

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