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Archive for the ‘Law Office Management’ Category

leadership-geneA recent symposium for IT executives included a presentation that pitched the idea of genetic screening of job applicants for traits like “honesty, leadership, being a team player, and having a high level of emotional intelligence”. While we think you may want to hang onto your checkbook if offered this sort of service, it is a disturbing outgrowth of the burgeoning research into genetic testing for almost everything. Here is a quote from the Seeker website which brought this possibility to our attention:

Although federal and states laws prohibit employers from requesting or using an employee’s genetic information, genetic testing is mainstream. Millions of people voluntarily pay to have their genomes analyzed thanks to inexpensive DNA kits available from companies like Ancestry DNA , Genome , 23andMe, Family Tree, to name a few. And research is moving forward in fields such as psychiatric genetics, trying to find correlations between genes and behavior.

“We fully appreciated the lack of legality and some of the issues with the science,” Furlonger told Seeker by email. “Nonetheless, it seems clear that work is being undertaken and therefore the current state should not be ignored.”

We are glad they appreciate the “lack of legality”. (Some researchers do not acknowledge the legal concerns—like this group on how to hire the “good psychopath” by testing them pre-hire.) The actual best answer to this question is that there is no gene for leadership (or honesty, or being a team player, or having high emotional intelligence) and there is no way testing of this sort would be useful to a company trying to figure out who to hire.

Neurolaw researchers (like Hank Greeley) are speaking up against this strategy:

“Why would an employer rely on imperfect, and generally weak, associations between genes and test scores instead of relying directly on the test scores?” said Henry Greely, director of the Center for Law and the Biosciences at Stanford University and the chair of steering committee of the Center for Biomedical Ethics. It’s like running, he said. Rather than look for genetic variations that indicate whether someone is a good sprinter or not, just watch a person sprint. That ought to tell you all you need to know.

We agree and are glad to have voices of reason speaking out against the desire to “push the hiring envelope” into areas that make no sense and violate medical privacy (as well as statistical integrity). Because while the genetic testing can’t tell you anything about the purported target traits, they can tell you things about the person that should not be a factor in hiring (including gender, possibly ethnicity, and medical issues). Will genetic testing results be a tool to worsen the problems of women and non-Asian minorities in breaking into STEM fields? Here’s what we wrote in August 2016 when we came across the “good psychopath” workplace fit test. We think it works for this idea too.

From a law office management perspective, we really would urge rejecting this sort of strategy. What they seem to intimate is that you want to find the 10% of the psychopathic population who have moderate psychopathic tendencies and then, divide them into primary and secondary psychopaths and then, figure out which of the primary psychopaths have really good social skills so their behaviors will not wreak havoc in your workplace.

Putting on our duly licensed Psychologist hats for a moment, the distinction seems to be a very slippery slope. Secondary psychopaths are trouble from the beginning. Primary psychopaths have better social skills so they can manage the day-to-day more successfully, but under stress they are going to create havoc, too. And we have never seen a trial team that isn’t under terrific stress. It is the nature of litigation, and stress tolerances need to be higher than average, not a potential area of weakness.

The authors put a troubling amount of faith in a psychological trait scale, when you can assess the same things by looking at work history, length of relationships, and having your own warning signs on high alert during the interview process. Use your intuition about whether someone will be a good fit. It is also risky to assume you can “get around” the Americans with Disabilities Act by using the PPI-R scale with job applicants when what you are measuring is psychopathy and resulting goodness of fit in your workplace.

And a high-functioning psychopathic attorney is just the kind of person to drag you through a lawsuit by claiming that you rejected him or her based on an ADA protected factor.

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ppi-rWe wrote about this scale in our last post when researchers (trying to convince the reader there is such a thing as a good psychopath for you to hire) used it in a study of German adults. The PPI-R is apparently a measure of psychopathy that is able to “detect relatively mild levels of psychopathy traits in non-forensic samples” (the Psychopathy Personality Inventory—Revised—the measure is on page 82 of the pdf to which this link takes you—although it has more than 180 questions on it which is different from what is advertised for the final scale).

The researchers featured in our last post also say this scale is useful for workplace settings since it measures subclinical psychopathy and thus, will not run afoul of the ADA with regard to employment discrimination. We question their conclusion and should perhaps mention the scale has 154 questions on it and some of them are quite odd. We think you could use the administration time for this test much more productively with more face-time spent with your applicant.

Respondents are asked to answer each item with four choices: False, Mostly False, Mostly True, or True. They are also given the following instructions: “Even if you feel that an item is neither false nor true as applied to you, or if you are unsure about what response to make, try to make some response in every case. If you cannot make up your mind about the item, select the choice that is closest to your opinion about whether it is false or true as applied to you.”

The items on the test range from mundane to fairly odd. Here’s a random selection of 10 consecutive items from the many, many questions on this scale.

I would not mind wearing my hair in a “Mohawk.”

I occasionally forget my name.

I rarely find myself being the center of attention in social situations.

It might be fun to belong to a group of “bikers” (motorcyclists) who travel around the country and raise some hell.

I tell many “white lies.”

I often hold on to old objects or letters just for their sentimental value.

I am a good conversationalist.

A lot of people in my life have tried to stab me in the back.

I am so moved by certain experiences (e.g., watching a beautiful sunset, listening to a favorite piece of music) that I feel emotions that are beyond words.

I often find myself resenting people who give me orders.

Some of the more odd questions in the measure include those like “I look down at the ground whenever I hear an airplane flying above my head”, or “I have had “crushes” on people that were so intense that they were painful”, or “I frequently have disturbing thoughts that become so intense and overpowering that I think I can hear claps of thunder or crashes of cymbals inside my head”, or even “When I am under stress, I often see large, red, rectangular shapes moving in front of my eyes”. These are not really the sorts of questions one would think bear much relationship to work environment behaviors.

[NB: As we read over our work on this blog we are occasionally concerned about a critical edge that many posts have toward the research done by social scientists, and its lack of applicability to the legal arena. We own our guilt in that regard, but it has nothing to do with the value of much of the research, such as today’s post, that is worthwhile but not useful for litigators. In every endeavor (chemistry, engineering, genetics, sociology, etc.) there are many milestones that have no practical application, apart from their value as stepping stones for the next innovation. While we don’t see many psychological assessment indexes or personality tests as making a contribution to trial practice, we don’t mean to suggest that it has no value in another context or as a research tool. It is simply that our focus is intended to be more narrowly aimed, and very practical.]

From a law office management perspective, we don’t see this as a useful tool for screening new associates or staff. To the contrary, anyone who does not find this sort of employment test disturbing and intrusive would likely not be someone you would wish to hire. You have no real reason to be assessing an applicant for level of psychopathy and it would be difficult to justify why you turned people down for employment based on a psychopathy score on a screening test. A very slippery slope.

Lilienfeld, S. O., & Widows, M. R. (2005). Psychological Assessment Inventory–Revised (PPI-R). Lutz, FL: Psychological Assessment Resources.

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danger will robinsonWhile those of you who have worked with (or lived with) functional psychopaths before may want to scream “Danger, Will Robinson!” — an international group of researchers (studying German research participants) have identified a “good psychopath” and a “bad psychopath” (when it comes to employment) and they even suggest a scale measuring sub-clinical forms of psychopathy (and earnestly tell the reader this will get around that pesky US ADA restriction against measuring psychopathy on “clinical” scales in an employment setting). They take issue with even the label psychopathy as it loosely means “disease of the soul”. We can quibble about terminology, but their results highlight factors to consider when hiring anyone.

Here’s a brief look at how they came to their conclusions and recommendations for hiring people, some of whom are likely to fall on the troubling end of a psychopathology continuum. First, they explain the differences between primary and secondary psychopathy.

Primary psychopathy, according to the researchers, is characterized by “fearless dominance” (which they describe as wanting to get your own way no matter what the consequences of your actions). Their traits, say the researchers, include “an egotistical personal style characterized by self-promotion and prioritization of one’s own needs before those of others”. Yet, primary psychopaths, they say, are often described by coworkers as helpful, cooperative and pleasant if and only if, the psychopath also had good social skills that were present in the workplace (and those social skills helped them keep their arrogance , egocentrism, and prioritization of own needs and wants over those of others at bay). Or, we imagine, as long as their views are supported by others.

Secondary psychopathy, according to the researchers, is characterized by “self-centered impulsivity”. These psychopaths, according to the researchers, lack an inner braking system and thus have no self-control—they also have no consideration for others. Their traits, say the researchers, include “behavioral impulsivity characterized by disregard for rules and responsibilities”, thrill-seeking, and blaming others for their misfortunes. Consistent with this trait description of secondary psychopaths, coworkers often characterize the secondary psychopath as destructive, not helpful to others, and weak in terms of work performance when it comes to self-disciplined behaviors such as working hard, following workplace rules, taking initiative, being considerate and cooperative, or helping others with their tasks.

By definitions embraced elsewhere, Primary psychopathy might be considered more narcissistic, while the lack of control and the heartlessness of Secondary psychopathy is more aligned with the traditional view of psychopathy.

The researchers think our tendency is to assume that all psychopaths have “the malevolent, exploitive, agentic, and callous personality traits” characterizing heinous criminal offenders. However, they say, that description is only relevant for the “clinical psychopaths” which comprise only about 1% of the entire population of psychopaths. Psychopathy, like other human traits, lies on a continuum and the researchers believe that about 10% of individuals with psychopathic traits have “subclinical” levels of psychopathy. (They do not indicate what this means about the remaining 90% of people in the pool of psychopaths—although they do conclude they do not consider “cold-heartedness” in their model since it was not statistically related to what they we’re trying to measure.)

The issue with employment, the researchers say, is not whether you have multiple (sub-clinical) psychopathic tendencies—but rather, how well your particular form of psychopathy fits with your job description (as well as, naturally, your level of social skill). They opine in their 30+ page paper that primary psychopaths can “be selfless heroes in everyday life, such as life-savers, emergency physicians, or fire-fighters” and think we should differentiate more carefully in the large class of psychopaths—both primary and secondary types.

Again, the paper has to be read with a willingness to accept their use of the term “Primary Psychopath”, which by its definition is a milder form.

The researchers used a measure of psychopathy that is able to “detect relatively mild levels of psychopathy traits in non forensic samples (the Psychopathic Personality Inventory—Revised, we’ll blog about this scale in our next post) and they mention the scale is useful for workplace settings since it measures subclinical psychopathy. (We should perhaps mention the scale has 150+ questions on it and some of them are quite odd—but more on that in our next post.)

Overall, say the researchers, the primary psychopath with good interpersonal skills is a good bet for the workplace but if they do not have good interpersonal skills, they will likely be as destructive as the secondary psychopath for workplace productivity and morale.

From a law office management perspective, we really would not recommend this sort of strategy. What they seem to intimate is that you want to find the 10% of the psychopathic population who have moderate psychopathic tendencies and then, divide them into primary and secondary psychopaths and then, figure out which of the primary psychopaths have really good social skills so their behaviors will not wreak havoc in your workplace.

Putting on our duly licensed Psychologist hats for a moment, the distinction seems to be a very slippery slope. Secondary psychopaths are trouble from the beginning. Primary psychopaths have better social skills so they can manage the day to day more successfully, but under stress they are going to create havoc, too. And we have never seen a trial team that isn’t under terrific stress. It is the nature of litigation, and stress tolerances need to be higher than average, not a potential area of weakness.

The authors put a troubling amount of faith in a psychological trait scale, when you can assess the same things by looking at work history, length of relationships, and having your own warning signs on high alert during the interview process. Use your intuition about whether someone will be a good fit. It is also risky to assume you can “get around” the Americans with Disabilities Act by using the PPI-R scale with job applicants when what you are measuring is psychopathy and resulting goodness of fit in your workplace.

And a high-functioning psychopathic attorney is just the kind of person to drag you through a lawsuit by claiming that you rejected him or her based on an ADA protected factor.

Schutte, N., Blickle, G., Frieder, R., Wihler, A., Schnitzler, F., Heupel, J., & Zettler, I. (2015). The Role of Interpersonal Influence in Counterbalancing Psychopathic Personality Trait Facets at Work Journal of Management DOI: 10.1177/0149206315607967

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grammarpoliceHere’s another sneaky way researchers try to figure out your real feelings rather than your politically correct and overtly verbalized feelings. This is research from Nextions showing bias still exists in the legal field and it’s about your grammar. Well, really, it isn’t about grammar—it’s about race. On the other hand, the sample size is low (slightly above 50 law partners returned the survey) so you could say this isn’t what you would do…and in fact, not everyone would do what was found among this research group.

Here’s what they did in this very simple study. Researchers had five attorneys cooperate in writing up a legal research memo on trade secrets at internet startup companies. The researchers then placed 22 errors of various kinds into the memo. The researchers sent the legal research memo to 60 partners in law firms who were asked to assess it as an example of the “writing competencies of young attorneys”.

Fifty-three of the partners actually returned the writing sample with comments (that’s an 88% return rate which is quite good). In the event you are interested, of the original 60 partners, 23 were women, 37 were men, 21 were racial/ethnic minorities, and 39 were White. The participating partners were asked to edit the memo for “all factual, technical and substantive errors” and then asked to rate the overall quality of the memo on a scale from 1 (“extremely poorly written”) to 5 (“extremely well written”).

So here is the catch: half of the partners were told the writer was Black and half were told the writer (one Thomas Meyer who was described as a third-year associate with a degree from the NYU School of Law) was White. In other words, the associate’s credentials were exactly the same—the difference was that half thought he was Black and half thought he was White. You have likely already figured out how this turned out but we’ll tell you anyway.

When the partners were told the associate was Black, they judged his written memo much more harshly.

The following descriptions of the way Black and White associates writing was critiqued is quoted from Nextion’s report:

“In regards to the specific errors in the memo:

An average of 2.9/7.0 spelling grammar errors were found in “Caucasian” Thomas Meyer’s memo in comparison to 5.8/7.0 spelling/grammar errors found in “African American” Thomas Meyer’s memo.

An average of 4.1/6.0 technical writing errors were found in “Caucasian” Thomas Meyer’s memo in comparison to 4.9/6.0 technical writing errors found in “African American” Thomas Meyer’s memo.

An average of 3.2/5.0 errors in facts were found in “Caucasian” Thomas Meyer’s memo in comparison to 3.9/5.0 errors in facts were found in “African American” Thomas Meyer’s memo.

The 4 errors in analysis were difficult to parse out quantitatively because of the variances in narrative provided by the partners as to why they were analyzing the writing to contain analytical errors. Overall though, “Caucasian” Thomas Meyer’s memo was evaluated to be better in regards to the analysis of facts and had substantively fewer critical comments.”

Vox did a nice summary of this study and translated Sexton’s narrative descriptions into a chart making it easier to ‘see’ the differences identified by law partners when they thought the writing sample was from a White associate or a Black associate.

race insert

Nextion says this study tells us that due to confirmation bias, law partners are more harsh when judging Black associates’ writing. The Vox review cautions us that we are talking about a fairly small sample here (53 partners in total) and each partner only reviewed one writing sample.

If, says Vox, the partners reviewed more than one writing sample and those who reviewed Black associates writing were always harsher—that would mean the partners were harsher for Black Thomas Meyer than they were for White Thomas Meyer. Since the partners only reviewed one writing sample—we cannot be sure if this is an artifact of some partners being harsher than others or if it is truly bias that tells us Black associates are judged more harshly. Or those who reviewed it might have been having a bad day. Maybe.

The qualitative comments shared from the partner’s reactions remind us of the inconsistent comments we often get from our mock jurors as they evaluate witnesses based on brief deposition excerpts. Remember—before reading these reactions to the writing samples—the law partners received identical memos—the only difference was whether they thought the writer was Black or White.

comment insert

From the perspective of law office management—this study reminds us (again) to pay attention to making all of our evaluations as objective as we can so our subjective (and often biased) opinions do not enter into our evaluations. What that means is that you need to look at the specific expectations of the position and list objective criteria for evaluation related to hiring, raises, promotion, and assignments to various cases.

Our biases are almost always hidden from us (it’s called a bias blind spot) and studies like this one, if reliable, tell us we are not as open to diversity as we may want to believe. If you are concerned about managing diversity effectively and other aspects of leadership, you may want to visit our other posts under the Law Office Management category.

Nextions. (2016) Written in Black and White: Exploring confirmation bias in radicalized perceptions of writing skills. http://www.nextions.com/wp-content/files_mf/14468226472014040114WritteninBlackandWhiteYPS.pdf

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strong man circusIt wasn’t long ago we said all you had to do to be seen as a leader was grow a mustache but apparently this also helps! Men who look “strong” physically are presumed to be good leaders compared to men who do not look strong physically. These researchers had mastered Photoshop so we know their results reflect our (stereotypical) beliefs accurately.

The researchers showed groups of men and women photographs of different men (from the waist up in a white tank top to reveal his shoulder, chest and arm muscles) and told their task was to rate some men recently hired by a consulting firm. The participants were asked to rate the men in the photographs on the basis of how much they admired the individual, how much they held him in esteem, and how much they believed he would rise in status. They were asked specifically about whether they thought the man in the photograph would be a good leader and whether they thought he would be effective in dealing with others in a group.

You already know what happened here. The participants chose the men who appeared physically stronger to be leaders and rated them as having higher status than those who appeared physically less strong.

Undeterred, the researchers went to Photoshop and switched the bodies of the strong and weak (rated) men in the photos. That is, strong bodies went to the faces of men who’d been rated as weaklings and poorer leaders and weak bodies went to the faces of men who’d been rated as strong. The same questions were asked of participants in the Photoshopped experiment.

And yes. The results reversed with the previously weak men now being seen as strong and higher in status and leadership qualities. Buff bodies won.

So then the researchers returned to Photoshop and this time used their powers to vary the height of the photographed men who were now presented in small groups (a lineup as the researchers call it). Each subject’s appearance was manipulated so he appeared short, tall, and of equal height to the other men in the lineup.

Yes. Yes. You know. Taller men were seen as stronger and were also rated as being better leaders and having higher status than shorter men.

From a litigation advocacy perspective, this tells us that first impressions matter but then you knew that. But we’ve seen solid testimony and a likable demeanor endear witnesses who do not appear physically strong to juries.

In a mock trial a number of years ago, one of our attorney-clients was curious as to how his witness would be perceived since he was not classically attractive and had a medical condition that affected his voice and appearance. The witness, well aware of the way he came across, was in attendance at the mock trial and also wanted to see if his presentation would be a detriment to the case.

After some planning (since this is not something we usually do—and usually urge that it not be done— at mock trials), the witness went in and engaged in direct and cross-examination in front of the mock jurors. On direct, the attorney asked him about his voice and appearance and the witness answered directly and concisely with a smile. With that matter dispatched, the remainder of the questioning was done and as the witness’ voice cracked and squeaked, the jurors listened intently. What they told us afterwards was that they found him extremely likable and when they knew what caused the “differentness” in his appearance and voice—they were able to focus instead on what he said and how it fit into the case.

First impressions are important but they can be altered and restructured. In our experience with pretrial research—jurors often are very supportive of a case when the attorney tells a good story. But then, if witness depositions do not match up with the juror’s picture of that witness—their predisposition to like the witness shifts and they begin to eye the attorney with suspicion.

The takeaway for litigation advocacy is a simple one: Remember that attractive, strong, tall men (in this case) are seen as better in many ways. Our suspicion is that part of it is related to beauty being admired, but it is likely also related to research on obesity. People who are obese are often seen as less disciplined, less careful, less capable, and less credible than people who are more trim. It seems likely that obviously fit and buff witnesses represent the opposite end of the spectrum, with all of the positive attribution that comes with that.

When your client is not buff or beautiful, focus instead on likability and relatability. Close the gaps in testimony that leave the listener wondering about sincerity and trustworthiness, and help your client tell a story that emphasizes their similarity to the jury—whether that is through shared values, treasured activities, or shared experiences—the more your client is “like” the jurors, the more the jurors are likely to embrace the client and his or her perspective as presented in testimony.

Lukaszewski, A., Simmons, Z., Anderson, C., & Roney, J. (2015). The Role of Physical Formidability in Human Social Status Allocation. Journal of Personality and Social Psychology DOI: 10.1037/pspi0000042

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