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Archive for the ‘Pre-trial research’ Category

pew-researchWe like Pew Research here and wanted to bring you two new articles they’ve recently posted that may have relevance for knowing your jurors. It’s been a while since we’ve heard the term “boomerang generation” in regard to Millennials and maybe it’s because they are not planning to go anywhere anytime soon. Yet, if you look at the definition of “boomerang generation” now, it isn’t about moving out and moving back and moving out and moving back again, it’s about staying in place. And Pew has a new article addressing the issue.

Multigenerational households: 2016 

According to Pew Research, we now have a “record 60.6 million Americans living in multigenerational households”. That translates to 1 out of every 5 Americans living in a multigenerational household (defined as two or more adult generations or a home that includes grandparents and grandchildren). Further, the trend is growing among nearly all racial groups (whites are less likely to live multigenerationally) as well as Hispanics in the US, among all age groups, multigenerationaland across genders.

While older adults used to be the ones most commonly living in multigenerational households, now it is young people for whom this living arrangement is most common. It is becoming more common for not just two adult generations to live together but even common for three generational groups. Pew thinks this is the result of immigrant families increasing in the country and a more frequent tendency in those cultures to share households. It is interesting to examine the graph (taken from the Pew site). The number has increased but not sharply. It is a gentle upward trend reflecting the changing demographic of America. As the nation  changes, so do our housing norms.

Religious affiliations of “none”: 2016

Between 2007 (16% of those surveyed) and 2013 (23% of those surveyed), Pew Research says the number of religiously unaffiliated (aka the “nones”) grew rapidly from 35.6 million Americans to 55.8 million Americans saying they had no religious affiliation. Recently, Pew interviewed religious “nones” to see why they had left the church. Their reasons vary widely and as Pew says, the “nones” are far from monolithic. Here is the largest reason those who were raised in the church say they ended up leaving as adults:

religious-nonesAbout half of current religious “nones” who were raised in a religion (49%) indicate that a lack of belief led them to move away from religion. This includes many respondents who mention “science” as the reason they do not believe in religious teachings, including one who said “I’m a scientist now, and I don’t believe in miracles.” Others reference “common sense,” “logic” or a “lack of evidence” – or simply say they do not believe in God.

The others may have objections to organized religion, be religiously unsure, or simply inactive due to other obligations. Pew describes the “nones’ as composed of three groups:

They can be broken down into three broad subgroups: self-identified atheists, those who call themselves agnostic and people who describe their religion as “nothing in particular.”

From a litigation advocacy perspective, these findings are important. We need to realize both living arrangements and religious affiliations are changing. Some of this reflects the changing racial and ethnic makeup of the country and some of it reflects changing values and beliefs in our society. Sometimes these changes catch us off guard and other times we just think what we knew “back then” still applies today. Pay attention. Don’t be surprised when your assumptions (based on outdated information) are just wrong.


Comments Off on Two facts about potential jurors: Multigenerational  households and a religious preference of “none”

icky-sickWe’ve written about American attitudes toward interracial marriage a fair amount here and (at least once) questioned poll results suggesting dramatic improvement in attitudes toward  interracial marriage among Americans (an 87% approval rating?!). While interracial relationships may be more acceptable to many more Americans, there is also the recent report of an attack on an interracial couple in Washington State. Additional reports about the self-proclaimed white supremacist who stabbed the interracial couple without provocation said if he was released by the police he would attend the Trump rally and “stomp out more of the Black Lives Matter group”.)

Recently, we found an article that reflects some of what we think about the state of race relations and attitudes toward interracial marriages. And, as if in response to the event linked to above (which had not yet happened at the time the article was published), here is how the authors close their paper (after reporting that interracial couples were dehumanized relative to same race couples):

“These findings are meaningful given the negative consequences associated with dehumanization, most notably, antisocial behaviors such as aggression and perpetration of violence”.

The researchers say that they skeptically question the increased approval poll numbers when it comes to comfort with interracial marriage. They also express a general belief that if the poll questions used subtler measures about racial attitudes (rather than asking explicitly how approving the respondent was of interracial marriage)—the results would reflect significantly lower levels of approval for interracial marriage.

They refer to, as an example of attitudes toward interracial marriage, a 2013 Washington Post column by Richard Cohen saying that the interracial family of New York mayor Bill de Blasio must result in a “gag reflex” among conservatives.

The researchers conducted three separate studies (all with undergraduate student participants). We mention the participant pool for two reasons—one, because undergraduate students are perhaps a bit different from jury-eligible citizens, and two, because the Millennial generation is seen as most accepting of interracial marriages (according to Pew Research, Fusion’s Massive Millennial Poll, and CNN) although PBS, Politico and the Washington Post question whether that really means Millennials are overall more racially tolerant. It would seem to us that, if Millennials show evidence of implicit bias against interracial marriage, older generations would likely show even more.

And sure enough, Millennials (the undergraduate participants) did show bias against interracial couples. The implicit measures showed reactions of disgust as well as a tendency to dehumanize the interracial couples compared to same race couples.

The researchers hypothesize there is still a tremendous amount of emotional and under-the-surface bias (aka implicit bias) against interracial couples and, they say, emotional bias (aka disgust) is more predictive of discriminatory behavior than are racially based stereotypes.

The researchers also describe what happens when we dehumanize others—as the participants in these experiments dehumanized the interracial couples. We do fewer nice things and increase our “antisocial behavior” toward dehumanized others. There is less empathy, and more avoidant behavior. We are less likely to help and more likely to use aggression and perpetrate violence against dehumanized targets. We are more accepting of police violence against a black suspect and more accepting of violence against black people in general. We see the dehumanized targets as less evolved and civilized. These statements represent past research findings summarized in the article by the researchers.

The researchers also say that their results indicate the individuals in the interracial couples would likely not be dehumanized if evaluated separately, but there was something about the interracial pairing that elicited both the emotional and dehumanizing responses.

From a litigation advocacy perspective, this is very disturbing and certainly brings to mind our work on when to talk and when to stay quiet about racial bias in court. We are not living in a post-racial society, and basing your case strategy on such a rosy assumption is likely to be hazardous to your client. When race is absent from the relevant facts— but not from extra-evidentiary optics—think carefully about how to proceed. Remember that when the case facts are not salient to the fact your client is in an interracial relationship—that is when the bias is most likely to emerge. It’s a tricky and frustrating situation.

Skinner, A., & Hudac, C. (2017). “Yuck, you disgust me!” Affective bias against interracial couples. Journal of Experimental Social Psychology, 68, 68-77 DOI: 10.1016/j.jesp.2016.05.008


Comments Off on Interracial marriage is more accepted in 2016, except for those who find it “icky”

dont-trust-bookHere’s a round-up of articles that could be “all about voir dire” or simply interesting things to ponder as you go about your daily tasks.

You may not think of Lemony Snicket as an expert on voir dire but he may have a point with the quote illustrating this post when it comes to voir dire.

In this post, we are combining four separate research articles to give you multiple examples of how academic research can assist you in thinking as you complete voir dire.

Want people with more empathy for others?

We’ve written before about the power of a good story to transport the reader (or the watcher since it works with videos and films as well). When it comes to voir dire, new research tells us that people who read have more empathy for others and are thus, more capable of taking the other’s point of view. The important thing is that they are reading narrative fiction as opposed to non-fiction. The researchers say the process of entering a fictional world allows the reader to have more empathy than a non-reader or a non-fiction reader (citation below the post) would have.

And on another (not voir dire related) note, a new study from Yale University tells us those who read more than 3.5 hours a week live “a full 23 months” longer than those who do not read—so you may want to stop and buy a book once you’re done reading here! (Just for your edification, we’ve also included the citation to this article at the bottom of the post.)

On self-appointed experts in the jury pool…

We’ve also written about the self-appointed expert who is not really an expert (but thinks they are) who lands on your jury. Here’s some new research that explains why being over-confident can lead to poor decision-making (and why you want to read our earlier posts on this topic to teach jurors how to “de-throne” that self-appointed expert). The researchers in this new study say that when you are exceptionally confident in your knowledge, you are less able to carefully think through your decisions and so you make bad decisions.

It is like the group agreement that undermined decisions about the Bay of Pigs invasion during the Kennedy administration. Follow the preceding link for more information on how JFK changed decision-making processes after that horrible lesson in bad decision-making.

What happens to the disempowered when they become a juror?

Finally, here’s a fairly creepy study (summarized impeccably by Alex Fradera over at BPS Research Digest). The study examines how someone given “high power over another” on a temporary basis can result in sexualized aggression (like sending sexualized text messages to a co-worker whom you find attractive but who has never given you any reason to believe the attraction is reciprocal and other strange and creepy things). What the researchers found (and this is interesting to consider in voir dire) is that when you put temporary power in the hands of those who have been chronically powerless, they will be more likely to exploit their temporary power (by doing sexually inappropriate things in this example—and we’d hypothesize they might also be more prone to more extreme responses to whichever party they most dislike). We’ve written a number of times on the differences in how powerful people are perceived versus how powerless people are perceived—but haven’t really tapped into sexual aggression and powerlessness before on this blog. (You’re welcome for that.)

In the article itself, the researchers say that those who see  themselves as “chronically denied power appear to have a stronger desire to feel powerful”. They also note that there was no definitive demographic information (as we’ve always said!) to identify those with chronic feelings of powerlessness and they recommend future research to explore identification of a low subjective sense of power (and the hostility and aggression often accompanying it). Some researchers have said (according to the current researchers whose article is also cited at the end of this post) that there may be a difference “between construing power as an opportunity to do as one wishes, versus a responsibility to look out for others”. It’s an intriguing idea to consider during voir dire.

We should also note that three of the five experiments run by the researchers writing this article used exclusively male participants while the remaining two used both male and female participants—so these results may be more generalizable to men than women.

So there you have it. Who is reading fiction? Who is over-confident about their knowledge (when they clearly do not have a lot of it)? And who has likely been chronically powerless? Food for thought when conducting voir dire and otherwise preparing for trial.

Oatley, K. (2016). Fiction: Simulation of Social Worlds. Trends in Cognitive Sciences, 20 (8), 618-628 DOI: 10.1016/j.tics.2016.06.002

Bavishi, A., Slade, M., & Levy, B. (2016). A chapter a day: Association of book reading with longevity. Social Science & Medicine, 164, 44-48 DOI: 10.1016/j.socscimed.2016.07.014

Williams, M., Gruenfeld, D., & Guillory, L. (2016). Sexual Aggression When Power Is New: Effects of Acute High Power on Chronically Low-Power Individuals. Journal of Personality and Social Psychology DOI: 10.1037/pspi0000068


Comments Off on Impaneling a jury? Remember this (and that) during voir dire! 

bias switch onDespite Hillary Clinton’s historic shattering of the glass ceiling with her Presidential candidacy and Barack Obama’s Presidency (which was predicted to start a national conversation on race)—both sexism and racism are alive and well and living (not very peacefully) in our midst. It’s time for an update on racism and sexism—and spoiler alert—this will not be particularly uplifting content.

On sexism in 2016: “The obstacles that once made it harder for women than men to get ahead are now largely gone”

If you’ve followed this blog for long, you will know we are fans of the Pew Research Center and appreciate their surveys on the shifting opinions of Americans. Recently, Pew published a survey that likely made women everywhere groan (or mutter other things) in disbelief. Specifically, the question to which Pew asked for a response was: “the obstacles that once made it harder for women than men to get ahead are now largely gone”. Almost half of Americans (45%) agree with this statement—among those agreeing are 56% of men, 34% of women, 63% of Republicans, and 30% of Democrats. Older men are more likely to say there are still significant obstacles facing women than are younger men—although, Pew reports that Democrats overall are more likely to think women face significant obstacles than do Republicans.

The Atlantic (another favorite site of ours for publishing thought-provoking articles on societal attitudes) recently published an article entitled “The era of ‘the bitch’ is coming”. In that article, they opine a Hillary Clinton presidential victory will “usher in a new age of public misogyny” (also described with historical examples by Malcolm Gladwell in the first episode of his excellent new podcast, Revisionist History). Both the article and the podcast are sobering examples of just how far we have not come, baby. On the other hand, the American Bar Association finally banned sexist language in court so there should now be no more ‘honey’ or ‘darling’ or ‘sweetie’ used when addressing women in the courtroom.

On racism in 2016: “America isn’t more racist. It’s just shouting it instead of whispering

While some have been appalled by Donald Trump’s bigotry and racism, others have welcomed it as long overdue in public discourse. Some have tried to explain his candidacy’s success and others say it is simply not explainable. Presidential campaign politics aside—there is plenty to talk about in racism news in 2016.

A new Gallup poll says 46% of American blacks report being treated unfairly in the last thirty days and Jay Newton-Small, the Washington correspondent for Time Magazine tells the story of widely varying differences in perspective based on race while he served as a juror on a multiracial jury in the assault trial of Carlos Galloway (accused of assaulting a fellow black male). Here’s a paragraph describing Newton-Small’s experience:

The jury consisted of five black women, two white men, four white women and me, a Eurasian mix. Our views on what happened, what we knew and how we should vote were starkly different based upon our backgrounds. To most of the white jurors, there was overwhelming evidence: A motive; a broken, blood-covered knife; and two impartial eyewitnesses. But the jury overall ended up convicting Galloway of misdemeanor simple assault, meaning that while we acknowledged that an assault had happened, we did not find him guilty of using or even possessing a knife.

He goes on to describe in detail how race related to how the individual jurors saw the facts of the case very, very differently. The article is well worth the read.

The poll numbers on racism are not as bad as those on sexism, 61% of Americans in a new Gallup poll say racism against blacks is widespread in 2016—although 41% say racism against whites is also widespread (this is up from 32% in 2015). In Washington State, a self-proclaimed white supremacist stabbed an interracial couple after seeing them kiss outside a restaurant. When he was taken into custody, the police noted this was a “purely racial crime” and that the perpetrator had multiple tattoos with racial slogans such as skinhead and white power.

This happened despite the fairly recent Pew survey finding interracial marriages rising and multiracial babies on the rise as well—while Americans are warming to the idea of interracial marriages. (However, some new research questions the poll results showing more approval for interracial marriage—come back next week for a post featuring that research.)

From a litigation advocacy perspective, we are far from justice being meted out fairly and equitably. We see that still in lower awards to both black and female plaintiffs as well as in the bias that often leaps out at us during pretrial research for a wide variety of cases. Our advice has (sadly) been the same for the past twenty years—if your client is female or a minority or a foreign national and the facts of the case have nothing to do with that reality, watch intently for bias since this is when you will need to raise the flag of awareness for jurors.

If you do nothing, bias will be silent until  the verdict is read.


Comments Off on Where are racism and sexism in 2016? They haven’t gone  anywhere….

CRISPR teaching videoWe’ve written about CRISPR (aka gene editing) before and even about concerns of Americans about use of emerging technologies, and while this post is sort of about CRISPR—it is also about visual evidence done right.

We often work on cases where jurors will need to understand very complex information. It may be a patent case or a complex business litigation case or something else that is technically daunting—but jurors often need to understand something very complicated. And often that something is very technologically advanced (and thus intimidating to the jurors).

It is almost always a very difficult process for the attorneys in a complex case (in which they have often been buried for years) to see through the many details of a complicated technology and tell a simple (yet accurate) story for jurors. We often test visual evidence in our pretrial research to see what resonates with jurors, what they remember, and what helps them to make sense of abstract and esoteric technology, processes, or patented ideas.

When we see terrific examples of visual evidence (culled from many different areas) we like to share them here to help you understand there really is a way to take very, very complex facts and details and make them accessible to those who have no experience whatsoever in the area and may be very intimidated by even attempting to understand the information.

Here is just such a video tutorial. This video uses cartoon images and plain language to explain the gene editing technique referred to as CRISPR. While the last parts of the video place it clearly in the pro-CRISPR camp, the first parts explain the technology clearly and succinctly. Because it is in a cartoon format (with which we are all familiar from childhood) it is non-threatening. Since it is visually presented, we are able to understand a tremendous amount of technical information without jargon or numbers that make less technical viewers’ eyes glaze over.

If CRISPR can be explained in a few minutes of cartoons, you can explain anything in ways the most naïve juror can understand. All you need is a fabulous visual evidence consultant. We happen to know a few of them!


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