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It’s time again for another combination post featuring fascinating tidbits you may have missed were it not for our eagle eyes and constant efforts to keep you informed. And yes, we’ll start at the end since we know you are wondering if smart-phone blindness is really a thing. Would we steer you wrong?

Smart-phone blindness (Yes. It’s really a thing)

You can think of this as a public service announcement meant to protect you from lying in bed and reading your phone when you should be sleeping. Or at least making sure you are looking at your phone with both eyes rather than just one. The condition itself is “transient smartphone blindness” which doctors say is caused when you lie on your side and look at your smartphone in a dark room with one eye inadvertently blocked. Apparently the condition only lasts a few minutes but it is frightening enough that (at least two) people sought medical treatment for it. Let that be a lesson to keep your hands off the phone at night.

Bias at work and at home

Many of us are speaking up when we see or hear bias these days and here are two good resources to help you do that effectively. First, from Harvard Business Review is an article on speaking up when you see bias at work. They offer a three-step process to confront bias that will not embarrass the biased speaker and will not leave you feeling ineffective. It’s a face-to-face process for confronting difficult topics. [Note: The internet is not a face-to-face environment.]

Second, you may wonder how kids are taught social biases and researchers think they learn biases from the adults around them. A recent Scientific American blog explains how the nonverbal behavior kids observe from adults is contagious when it comes to transmitting social biases. So it is not enough to simply not say biased things. When we send mixed signals, kids pick up on them and learn who we like and don’t like, who we think of good and who we think of as bad. The researchers say, in fact, that the nonverbal behavior of adults is especially powerful and formative for kids since they are looking to us to understand their world.

Who judges you if you do not change your surname after marriage?

This research comes from a study of data collected in 2010 from 1,243 US residents. According to this study, done based on reactions to Hillary Rodham Clinton, women and highly educated men do not think about this issue much. However, men with lower levels of education have a more negative view of women who do not take their husband’s name after marriage. According to the research, men with lower education think a woman who does not change her last name is less committed to her marriage and that her spouse had more grounds to divorce her!

We think it quite possible that this study is confounded with attitudes toward Hillary Rodham Clinton since she is something of a lightning rod—and likely especially so among men with lower levels of education.

Share, EF (2017). Hillary Rodham versus Hillary Clinton: Consequences of surname choice in marriage. Gender Issues

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Today, we want to take a moment to highlight the Civil Jury Project at the NYU School of Law. This group examines how the civil jury trial became a vanishing feature of the American legal landscape and looks at the consequence for the legal system and society more broadly. The Civil Jury Project includes practicing attorneys, academics, trial consultants, and others interested in the future of the civil jury trial.

Recently, a nationwide attorney survey was completed by members of the American Society of Trial Consultants in an attempt to gather information on what is causing the decline of the civil jury trial and what recommendations practicing attorneys have to help save the future of the civil jury trial.

Here’s how the survey is described in the free report:

This survey addressed the current involvement by attorneys in jury trials, how they viewed the decline in jury trials, their perceptions of the causes for this decline, their experience with jury trial innovations, and what (if anything) they thought could be done to increase the number of jury trials.

We encourage you to read this initial report from the Civil Jury Project and the ASTC and see what this interdisciplinary group is seeing, recommending, and planning.

Here is the full text of the announcement from the ASTC:

“We are pleased to announce and provide original research produced by ASTC members for a worthy cause. ASTC would like to recognize the following members who recently completed an important survey on the current state of civil trials for CJP at NYU School of Law.

Charlotte A. Morris, M.A. (Project leader)

Tara Trask

David Barnard

Jeffery T. Fredrick, Ph.D.

C.V. “Pete” Rowland, Ph.D.

Susan Macpherson

With a special thanks to Stephan D. Susman Esq. and Richard Jolly.

The Civil Jury Project is engaged in an empirical assessment of the current role of the jury in our civil justice system, the reasons for its decline, and the impact of that decline on the functioning of the civil justice system overall. The basic question is whether jury trials continue to serve the role anticipated by the Framers of the Constitution. Relatedly, it is important to examine the consequences of the decline and what other institutions may currently fill the void.

To help understand the current state of civil jury trials, the American Society of Trial Consultants (ASTC), as part of the Trial Consultant Advisory Group of the NYU School of Law Civil Jury Project, conducted a survey of lawyers who try cases in state and federal courts across the country.

This survey addressed the current involvement by attorneys in jury trials, how they viewed the decline in jury trials, their perceptions of the causes for this decline, their experience with jury trial innovations, and what (if anything) they thought could be done to increase the number of jury trials.

Learn more about CJP/NYU and our work with them in their monthly newsletter.

Citation: Civil Jury Project. (2016). Summarized Results and Recommendations 2016 Attorney Survey: Declining Civil Jury Trials.”

We at Keene Trial and The Jury Room blog hope you will read this report and stay abreast of this important work to address the shrinking civil jury trial and, ultimately, improving our litigation advocacy.

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We have written a lot about how women are treated unequally (which can, sometimes, make it hard to be a woman). Initially, we illustrated these posts with various photos of Tammy Wynette but we decided to stop picking on her for one song (“Stand By Your Man”). So this post illustrates a rough truth (that still exists today) and we are illustrating it with an ironic cross-stitch project.

Researchers wondered if being agreeable (aka ‘nice’) versus being disagreeable (aka ‘nasty’) would make a difference in salary treatment for either men or women. (You know how this works out already.) We should note that the study (using 375 men and women randomly drawn from 1,390 employees) only sampled one company. So, it may not be entirely generalizable. Mmm-hmm—we’ve blogged about this issue before and that study had the same results.

For those that want to know these things, the researchers looked at both objective (e.g., tenure, education, performance reviews) and subjective (e.g., how the individual perceived the fit between their education, experience and performance with their income and professional rank). They also used several research measures for dominance and agreeableness. The researchers compared the objective and subjective data with actual income and promotion statistics within the company.

Let’s just cut to the chase (and you may hum Tammy’s musical lament as you read) and spell this out for you courtesy of a nice summary over at Science Daily.

Dominant and assertive woman (aka nasty) who clearly express their expectations and do not retreat from their demands, are compensated better than their more accommodating (aka nice) female peers.

The same goes for dominant men versus their more conciliatory male counterparts — (wait for it) but even dominant women earn far less than all of their male colleagues, dominant or otherwise.

So, be a dominant and assertive female (aka ‘nasty’ among other things) and you will earn more than your less assertive female colleagues, but the most milquetoast of men will still out-earn you based on nothing but gender. The researchers said something else that was somewhat shocking:

The nice women we polled in our study even believed they were earning more than they deserved. This blew our minds. The data show that they earn the least, far less than what they deserve. And they rationalize the situation, making it less likely that they will make appropriate demands for equal pay. [In comparison, nearly everyone else—nasty women, nice men, and nasty men reported they felt dissatisfied with their compensation.]

From a law office management perspective, this research has much to say about equity, understanding gender bias and gender differences, and how to evaluate, compensate, motivate and retain attorney-associates. The researchers suggest organizational management strategies (thankfully) as follows:

Design evaluation and compensation systems so they are structured and based on objective data (and less dependent on negotiation skills). This may actually help you retain and motivate employees of both genders with varying levels of experience.

Consider being more transparent about compensation so that employees (the nice, the nasty, the male, the female) know what will need to be done to progress in status and compensation within your organization.

Perhaps the most important takeaway from this article is that ‘nasty’ women who complain they are not being treated fairly may very well be accurately assessing their situation. There have been many articles on the exodus of female attorneys from law firms. The ABA Journal, Law Practice Today, law.com, the Washington Post, researchers from Stanford University, and countless blogs have written about the issues. The two recommendations from these researchers (indented above) may well help you staunch that (out)flow when it comes to your individual organization.

Biron, M., De Reuver, R., & Toker, S. (2015). All employees are equal, but some are more equal than others: dominance, agreeableness, and status inconsistency among men and women European Journal of Work and Organizational Psychology, 25 (3), 430-446 DOI: 10.1080/1359432X.2015.1111338

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It is still so early in 2017 and yet, it is time for another installation of tidbits, miscellany, odds and ends, and accumulated wisdom with which you can amaze your friends and impress family members. And that we don’t want to just toss disrespectfully into recycling when it could bring so much joy to your life. So here we go.

Internet commenters: Why they do the things they do

We blogged a while back about people who comment on the internet (and why it might be a good tool for voir dire). Now we have a very readable piece from 538.com telling us what 8,500 internet commenters said about why they post comments online. It is a fun read (and if you read many online publications you will recognize the reasons behind much of the commenting) on why some people (mostly men in this sample) feel a need to comment on internet stories. You will probably not be surprised that most internet commenters do not actually read the entire article before commenting. Go take a look.

Psychiatrist behaving badly (before trial and during trial)

This is a very weird story. And it’s true—which makes it even weirder. A psychiatrist who’d been convicted of raping one of his patients put on a disguise to sneak into the courthouse and post bogus jury instructions in the jury room that were “designed to tamper with the jury before they reached their verdict”. He was caught on courthouse videotape, wearing a “disguise of a leather jacket and baseball cap” and “no longer using the walker he had used during the trial”. The psychiatrist was found guilty, lost his medical license, and was sentenced to three years in prison. If you follow the link to this story, you will not feel at all sorry for this physician-defendant. He has a long history of bad behavior.

Big boys don’t cry (with apologies to both the Four Seasons and Lucky Dube)

Maybe we should also apologize to John Boehner but we won’t. Instead, let’s get right to this: when men cry, it violates cultural norms that men should be emotionally contained and controlled. The researchers (cited below) found that when men cried in response to performance evaluations (which sometimes occurs) they are evaluated more negatively for the crying behavior and are more likely to receive future negative references from the evaluator. The researchers believe that because crying in men is seen as atypical, observers downgrade their assessment of the man and crying can therefore harm the man’s future career mobility.

This might make you cry: Software to analyze your online personality in less than a minute

If you have an online Twitter presence you might want to take a deep, cleansing breath before you read further. Oh—and you’d better sit down. There is a new company (Scale Model) designed to analyze online personalities of organizations or networks or “influencers”. Business Insider says the software can describe your online personality in a “frighteningly accurate” manner. The idea is to identify who your listeners are (so you can market more effectively) and to identify new target groups to whom you can also market. There really is no privacy online and marketers are becoming increasingly savvy about how to approach us.

Are you a good boss? 

While most managers tell interviewers they are terrific people managers, at least half of US adults surveyed by Gallup had left their job to get away from their manager at some point in their lives. Somewhere there is a pretty big disconnect! Forbes has a tool for you to see if you are a good boss. It is only five questions so you might want to go assess yourself.

Motro D, & Ellis AP (2016). Boys, Don’t Cry: Gender and Reactions to Negative Performance Feedback. The Journal of Applied Psychology PMID: 27808525

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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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