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im-not-racist-butWe just can’t keep up with all the research on racism. So today, instead of a single article, we’re going to cite 3 of them! They are all disturbing examples that racism is alive, well, and measurable. 

Was s/he a good professor? We’ve all sat through disorganized and incoherent lectures at some point in our lives but students now often look at websites akin to to raise their chances of identifying good instructors. According to new research, however, when you look at a site like that, “the very best instructors were more likely to be White, whereas the very worst were more likely to be Black or Asian”. Unfortunately, those students looking at those “objective ratings” may simply be looking up negative racial stereotypes that may have repercussions on the ability of racial minority faculty to obtain promotion and tenure (Reid, 2010).

Didn’t that stuff kill Michael Jackson? Yes. It’s called propranolol. And researchers gave it to 36 “healthy volunteers” and asked them to complete an explicit measure of prejudice and the IAT (a measure of implicit racial bias). The propranolol “abolished implicit racial bias” while not affecting the measure of explicit bias at all (Terbeck, et al., 2012). Okay. We think this is unlikely to catch on as a means of reducing implicit prejudice in jurors.

Just keep talking: Researchers presented 51 participants with “a brief vignette describing an instance of subtle racism” and asked them to explain what happened in that situation. Those participants who tested higher in prejudice and social dominance, wrote much longer situational explanations and were more likely to not see the situation as racist. Here are examples of short and long explanations participants offered for what happened in the vignettes:

“The server was prejudiced against Black people and did not hesitate to serve his/her White customers first.”

“I am not a racist person by any means; however, I don’t think this situation can be best described by racism given the facts. While it is completely unacceptable to wait over an hour for food, there seem to have been a larger number of people in your party than the woman who ate alone. I think it is unfair to assume that just because the server was White and you and your friends are African American that racism is going to be involved. It very well may be the reason, but I tend to give people the benefit of the doubt.”

The researchers believe the lengthier explanations were used to help research participants explain away subtle racism and to attribute the interactions to chance (Reid and Birchard, 2010).

We see examples of racism and ethnocentrism almost every time we do pretrial research where race is present. Whether it is:

“Is this an American company?”, or

“Are they legal?”, or even,

“Why does it have to be racism? Maybe s/he was just a bad employee.”,

it’s important for us to be alert to the underlying message contained in subtle (or not so subtle) questions posed by our mock jurors. We cannot afford to explain it away and pretend it doesn’t matter or happened by chance.

Reid, L., & Birchard, K. (2010). The People Doth Protest Too Much: Explaining Away Subtle Racism Journal of Language and Social Psychology, 29 (4), 478-490 DOI: 10.1177/0261927X10377993

Terbeck S, Kahane G, McTavish S, Savulescu J, Cowen PJ, & Hewstone M (2012). Propranolol reduces implicit negative racial bias. Psychopharmacology, 222 (3), 419-24 PMID: 22371301

Reid, L. (2010). The role of perceived race and gender in the evaluation of college teaching on RateMyProfessors.Com. Journal of Diversity in Higher Education, 3 (3), 137-152 DOI: 10.1037/a0019865



priest abuse wrongful terminationWe can’t think of a single thing. Except last week we were listening to mock jurors hearing a wrongful termination case and their comments sounded very familiar. It was odd. It wasn’t another employment case that was ringing the memory bell for us. It wasn’t even a contract case. Instead it was pretrial research on allegations of sexual abuse by a priest (who had been convicted and sentenced for the sexual abuse of children). The mock juror comments from these two cases were almost interchangeable. And it was all about fraudulent claims. 

Jurors in the earlier sex abuse research project were sure the Plaintiff was lying. They knew the priest was a pedophile. But there was no evidence of abuse of this particular Plaintiff. In that case, the mock jurors suspected the Plaintiff’s family member who had been abused and received a large financial settlement from the Church, had given the Plaintiff ideas for a windfall of his own. The jurors felt uncomfortable supporting the Church against someone alleging priest sexual abuse. The religious mock jurors felt especially ambivalent and were obviously still feeling very betrayed by the Church leaders. But, they could not support the Plaintiff. He just wasn’t credible.

In the same way, mock jurors in the recent wrongful termination project were sure the Plaintiff was lying. They knew very well that harassment and discrimination happen in the workplace. A number of them had had similar experiences to what the Plaintiff claimed had happened, and others, as managers, had been sensitized to the issues and educated about the laws protecting US workers. They wanted to see proof. Anything. They asked for email, memorandums, voicemail, texts, something–anything that would support the Plaintiff’s claims. There was nothing. Just the Plaintiff’s testimony with lots of “I feel”, “my opinion is”, and “it seemed to me” language that the jurors were not willing to accept without evidence to support it. They wanted to support the Plaintiff because they knew bad things really do happen in the workplace. But the Plaintiff simply wasn’t credible.

As we debriefed the jurors in both cases, here is the message both groups had for the attorneys and clients:

Bad things do happen. We know that. But cases like this, where there is obvious fraud and deceit by the Plaintiff, cheapen the actual legitimate cases of abuse and discrimination so that people don’t take them as seriously. We can’t allow that to happen. We support the Defense.

It’s an odd thing. Priest sexual abuse and wrongful termination. As different as cases can get. And yet, they elicited the same feelings of disgust, unease, and a desire to take a stand for what is right–even if it makes you a little uncomfortable.

Two very different cases. One identical message from the mock jurors. Very often this work warms your heart as you watch everyday people struggle to find what is right at the conclusion of all the evidence. They stood up for what they saw as right, even when it distressed them to do it. It felt like justice.




im-watching-youAnd they want you to stop abusing their Adverse Event Reporting System (FAERS). We’ve worked a number of cases recently where FDA warnings were used as evidence at trial and were very interested to see this article in the American Journal of Gastroenterology. And the answer to the skeptic’s question is “no”. No, we don’t accept that a medical journal, clearly an outlet for industry points of view, is blind to their own interests.

The author uses the example of the drug, Isotretinoin (also known as Accutane). The FDA and Hoffman La Roche issued warnings of a “possible causal association between isotretinoin and inflammatory bowel disease” and litigation ensued. According to the author, hundreds of lawsuits were filed and paid out substantial awards for damages due to the use of this medicine. The author lists examples of $10.5M for ulcerative colitis, $25.16M for inflammatory bowel disease, and two $9M awards for bowel disease. In 2009, “as the number of adverse events reported to the FDA and lawsuits from patients continued to grow”, La Roche recalled Accutane from the market–not because they believed it was dangerous (according to their public statements) but because generic medications were taking a large share of the market.

So, what’s the problem, you may wonder. Well. It turns out there is strong evidence Accutane doesn’t actually cause inflammatory bowel disease. There is another side to the story. The early warning system (FAERS) was used as a method to recruit Plaintiffs, who went to court and prevailed. Now evidence from a “large pharmaco-epidemiologic database” is being published that seems to exonerate Accutane.

A new French study of 7,593 patients with inflammatory bowel disease (including ulcerative colitis, Crohn’s Disease, and indeterminate colitis), and 30,372 control subjects who had been exposed to isotretinoin but had not developed the diseases has just been completed. The study concludes the use of Accutane/Isotretinoin is “not associated with increased ulcerative colitis risk but was associated with a decreased Crohn’s Disease risk”.

The author thinks the litigation system and the FDA both try to protect consumers. The litigation system works to compensate for harm caused by defective products and the FDA sets rules and enforces regulation, says the author. He believes the problem comes in when instead of operating independently, trial lawyers use warnings issued by the FDA to assign blame to specific drugs when research has not yet been done to ascertain responsibility for harm done by the specific drug. He says the FAERS was developed for hypothesis testing–not to establish blame. His solution is for pharmaceutical manufacturers to be shielded from state tort law. “By inhibiting trial lawyer misuse of science, especially the FAERS, there will be a decrease in wasteful, expensive, premature litigation.” The adverse affects are listed because they were observed to some degree in clinical trials, but a research study large enough to determine causation, as opposed to association, can’t be done until the drug is taken by much larger numbers than are typical for routine clinical trials. The FDA required the disclosure in order for the extremely profitable drug to be marketed.

So– what are Plaintiffs supposed to do? Should they wait the decade or so until a large-scale study can be done? Or should more testing be required up front prior to new medicines being released?

It is undisputed that the cost of large-scale impact testing would be prohibitively expensive and exert a huge impact on drug development and availability. And it is inevitable that drugs that cause long-term changes in metabolism and human biochemistry have impacts on organ systems that are not anticipated. If the risks were deemed significant, Hoffman could have requested a more limited indication for the drug, perhaps in cases of exceptionally severe or prolonged acne, rather than using it for routine and embarrassing conditions. What is clear, and not unexpected in a medical journal, is that the pharmaceutical industry wants to have a long litigation-free window to market and sell the product before anyone can sue for damage that might have happened during the first year it was released. I can’t blame them, but does that sound like justice?

Tenner S (2014). Editorial: Isotretinoin and inflammatory bowel disease: trial lawyer misuse of science and FDA warnings. The American Journal of Gastroenterology, 109 (4), 570-1 PMID: 24698863

Racine A, Cuerq A, Bijon A, Ricordeau P, Weill A, Allemand H, Chosidow O, Boutron-Ruault MC, & Carbonnel F (2014). Isotretinoin and risk of inflammatory bowel disease: a French nationwide study. The American Journal of Gastroenterology, 109 (4), 563-9 PMID: 24535094



Imacon Color ScannerWe often associate people who are especially trusting with gullibility, low self-esteem, and lower intellectual function. However, we seem to have it backwards according to new research (which successfully replicates the results of studies from 2010 and 2012). 

Intelligent people are more likely to trust others while those lower in intelligence are less likely to be as trusting. The authors think it is due to intelligent people being better at judging character and thus befriending those less likely to betray them. Our take is that while they may or may not be better, they appear to have more confidence in the accuracy of their impressions.

The British researchers analyzed data from the General Social Survey (a public opinion survey administered to a nationally representative sample of US adults every 1-2 years since 1972). Their study is the first to ever use GSS data to look at the relationship between generalized trust and intelligence. Ultimately, they find that intelligence and generalized trust are strongly associated and that, even after “adjusting for intelligence, generalized trust continues to be strongly associated with both self-rated health and happiness”.

Here is their primary finding:

Those with the highest verbal ability are 34% more likely to trust others than those with the lowest verbal ability.

This relationship holds for both “men and women, among both blacks and whites, among the young, the middle-aged and the old, and in all five decades since the GSS began”.

From our general perspective, that’s a pretty fabulous finding. It’s nearly universal as it holds true across gender, age, and ethnicity–as well as across the past forty-two years. We don’t know of many personality descriptor variables that do that.

From a litigation advocacy perspective, it’s a quick way of assessing intellectual function for those situations where you cannot look at educational achievement, management experience, or leadership roles. If you know you want smart jurors, you may want to ask them how trusting they are of others. Or conversely, if you need someone to trust your client beyond the immediate facts, you would do best to pick someone smart enough to keep focused on a broader reality.

Carl N, & Billari FC (2014). Generalized trust and intelligence in the United States. PLoS ONE, 9 (3) PMID: 24619035



paranoia-240x300Not long ago we blogged about the reality that half of Americans believe in at least one public health conspiracy. The same researchers have now looked into other conspiracy theories and found similar trends: half of Americans believe at least one conspiracy theory. So. Let’s take a look at what the researchers say about the sort of personality that lies behind the acceptance of conspiracy theories.

First, you need to have a tendency to attribute the reason behind unexplained or extraordinary events to “unseen and intentional forces”.

Second, you need to also have a tendency to be attracted to “melodramatic narratives” as explanations especially those narratives that interpret historical events as a classic struggle between good and evil. (If you want to stump your friends, this sort of duality is known as a Manichean narrative.)

This time, rather than public health conspiracy theories, the researchers examined various general and ideological conspiracy theories popular among your friends and neighbors (and perhaps even you!) as sampled by a YouGov/Polimetrix survey of 1,935 individuals in 2011. Here are the conspiracy theories they assessed (and the percentage expressing a belief in them).

The US invasion of Iraq was not part of a campaign to fight terrorism, but was driven by oil companies and Jews in the US and Israel. (This was called the “Iraq War conspiracy” and was familiar to 44% of respondents and 19% agreed.)

Certain US government officials planned the attacks of September 11, 2001 because they wanted the US to go to war in the Middle East. (“Truther conspiracy” was familiar to 67% of the respondents and 19% agreed.)

President Barack Obama was not really born in the US and does not have an authentic Hawaiian birth certificate. (“Birther conspiracy” was familiar to 94% and 24% believed it.)

The current financial crisis was secretly orchestrated by a small group of Wall Street bankers to extend the power of the Federal Reserve and further their control of the world’s economy. (“Financial Crisis conspiracy” was familiar to 46% while 25% believed it.)

Vapor trails left by aircraft are actually chemical agents deliberately sprayed in a clandestine program directed by government officials. (This was called the “Chem Trails conspiracy” was familiar to 17% of respondents although only 9% believed it.)

Billionaire George Soros is behind a hidden plot to destabilize the American government, take control of the media, and put the world under his control. (The “Soros conspiracy” was familiar to 31% and 19% believed it.)

The US government is mandating the switch to compact fluorescent light bulbs because such lights make people more obedient and easier to control. (“The CFLB conspiracy” was familiar to 17% and believed by 11%.)

Overall the researchers say that 55% of the 2011 respondents believed at least one of these theories. The most popular (at 25%) was the Financial Crisis conspiracy, followed by the Birther conspiracy, which was also followed closely by the Truther, Iraq War and Soros conspiracies. The Chem Trails conspiracy theory was far behind the other conspiracies. They do not initially mention the light bulb conspiracy but it was comparably accepted to the Chem Trail conspiracy.

Later the researchers confess to having made up that CFLB theory just to see if anyone would bite. (It’s so hard to trust those conspiracy researchers although they do confide in the reader that there actually are conspiracy theories that CFLB “lights contribute to greater fatigue or may serve as a weapon to induce mercury poisoning through a massive electromagnetic pulse”.)

They remind us that large portions of the population are drawn to the Manichean-style narrative with the struggle between good and evil and that this tendency is particularly strong in “the high proportion of Americans who believe we are living in biblical end times”. The researchers seem to believe that conspiracy theories are simply part of the American experience particularly for the many of us for whom “complicated or nuanced explanations for political events are both cognitively taxing and have limited appeal”. Conspiracy theories are more exciting and engrossing and thus, we choose, in some cases, to believe them.

From a litigation advocacy perspective, it’s a good reminder (again) of how often the message you mean to send can trigger associations to something altogether different. And if in voir dire, you make a joke about an absolutely nutty conspiracy theory, keep in mind that a good number of your jurors are going to believe it, while others will be muttering to themselves on break that they had no idea that your theory was true, and still others will think you are out of your mind. This is a variation on our general advice to avoid making jokes during trial about anything or anyone but yourself. And yet, sometimes it is just irresistible…

Oliver, J., & Wood, T. (2014). Conspiracy Theories and the Paranoid Style(s) of Mass Opinion American Journal of Political Science DOI: 10.1111/ajps.12084