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Archive for the ‘Pre-trial research’ Category
When you expect a gorilla you often miss other unexpected things
Many of us have seen the original change blindness video by academics Dan Simon and Christopher Chabris (“the gorilla guys”). And if you haven’t seen it, watch it here! The original video made quite a splash when it was released and now, not content to be one-hit wonders, these two researchers have released a second video. Watch this one and see if they get you again!
While the researchers say this video is instructive regarding our ‘change blindness’—we can see the lessons for trial lawyers. After living with a case for the length of time it takes to go from taking on a case to filing to depositions to preparing for your day(s) in court—attorneys often lose sight of what will appeal to the potential triers of fact. They know what appeals to them. They know what they think is important. They know what “should” happen. In other words, they expect a gorilla. And jurors often see something else.
One of the true benefits of pre-trial research is the opportunity to see what else happens when the case is presented. That is, do jurors see a gorilla or do they see something else and totally miss the gorilla? We’ve had countless examples of jurors missing the gorilla (or perhaps the attorney missing something even more important to the jurors).
- A hospital-based malpractice case where the heart-sick nurses shared their feelings with the attorneys but did not show their emotions in deposition testimony. The attorneys knew the nurses’ pain. The jurors saw cold and uncaring and defensive professionals who were likely responsible for harm to an innocent patient. They wanted the hospital staff to understand it was important to care when you are in a caring profession. Witness preparation focused on helping the nurses to trust their honest feelings, which resulted in them coming across as caring and concerned about patients.
- A high-dollar patent case where the technology explanation was dense and incomprehensible. After two years in case development, the attorneys were in love with the technology. The jurors, hearing the case for the first time, were confused by the technology and wanted to hear about the people involved. Where was the invention development file? Who was hurt? Who was cheated? Whose dream was stolen? If the patent is validated, is anyone harmed?
- A contract case where much of the agreement was not detailed in writing. (“God bless poorly executed transactions” say the commercial litigators…”) The attorney thought the fine reputation for good work in the local community would serve the plaintiff well and that jurors would want them to be able to continue in their work. The jurors thought that good practitioners do not necessarily make good business decisions. They thought the defendant was a schmuck, but also that the plaintiffs had no real case.
In all of these cases (and many others) the attorneys spent so much time and energy on the case that they lost sight of some important facts. They expected a gorilla. If you weren’t expecting a gorilla—what else might you see?
Deliberations: Jurors think and feel as they make decisions
Our legal system assumes jurors will make their decisions without bias. This assumption echoes the ancient words of Aristotle: “the law is reason, free from passion”. Yet, most of us realize that decision-making encompasses both reason and passion. So how do you take that into consideration as you prepare and then present your case?
Researchers have explored both the “need for cognition” in juror decision-making and, more recently, the “need for affect”. Most of us are more familiar (whether we know it or not) with the “need for cognition” research.
Need for cognition: This refers to how much an individual enjoys and engages in effortful cognitive activities. We hear direct applications of this research in voir dire questions like: Do you enjoy doing crossword puzzles or Sudoku? When trial lawyers ask questions like these, they are examining whether jurors are high in the need for cognition (yes responses) or low in the need for cognition (no responses).
Need for affect: This is a newer concept–and therefore doesn’t have its own Wikipedia page! According to a new article by Desirée A. Griffin and Emily Patty in The Jury Expert, “need for affect” refers to “the motivation to approach or avoid emotion-inducing situations”.
Jurors who are high in need for affect will remember more of an emotion-laden message than they will a cognitive-laden message. Thus, depending on whether you want jurors who will respond to a highly emotional argument (or not) you can use their ‘need for affect’ to make decisions on whom to keep and whom to strike. Griffin and Patty, in their article on need for affect in the courtroom, offer the following as suggested queries for voir dire:
To identify jurors high in need for affect, Griffin and Patty suggest:
1) It is important for me to be in touch with my feelings.
2) I think that it is important to explore my feelings.
3) I am a very emotional person.
4) It is important for me to know how others are feeling.
5) Emotions help people get along in life.
6) Strong emotions are generally beneficial.
To identify jurors low in need for affect, Griffin and Patty suggest:
1) I find strong emotions overwhelming and therefore try to avoid them.
2) Emotions are dangerous – they tend to get me into to situations I would rather avoid.
3) I would prefer not to experience either the lows or highs of emotion.
4) If I reflect only on my past, I see that I tend to be afraid of feeling emotions.
5) I would love to be like “Mr. Spock,” who is totally logical and experiences little emotion.
6) I have trouble telling the people who are close to me that I love them.
Overall, identifying jurors who have a relatively cognitive approach or a dominant emotional approach to decision-making can potentially help your case. We always think it’s a good idea to assess jurors using valid and reliable questions from pre-existing measures. It just makes good sense, and sometimes it makes all the difference.
Wow. We want to tell stories like these…
“The power of anecdotes to persuade is established, but there’s a dark side to that power. Quite simply, an effective story can take over our brains to the point where we disregard more valid information: reliable statistics, the opinions of true experts, and so on.”
So begins a Neuromarketing blog post on story-telling. They warn of the ‘dark side’ of effective storytelling. And we rub our hands together and think how much fun it is when a powerful story takes shape.
We had a case a few years back with a very sympathetic plaintiff family (who had lost a child a few years earlier when he was hit by a vehicle). The current case facts had the mom in the family driving to work (she was a healthcare professional) when she was hit by a speeding and inebriated defendant and her car exploded in a fireball. The story itself was horrific enough. But imagine what everyone was thinking when we learned the driver of the car was of Middle Eastern descent: the idea that he used a motorized vehicle as a weapon with no care for loss of life.
As you likely imagine, it was a few years after the terrorist attacks of September 11, 2001. That image was the subtext to the trial story. It was powerful and jurors responded with outrage and sent a message.
More recently, we worked on a case involving a very complex and confusing contract involving a natural gas “farm-out agreement”. Pretrial research showed us that mock jurors were totally confused by the complexities of the industry, the language of the contract, and the lack of clarity as to standards of these agreements—so we changed the story.
Instead of telling the sequence of events, we focused the defense story on the profit pattern and the investors’ (aka the plaintiffs) awareness that the profits would drop precipitously shortly after a particular contract was executed. The story framed the plaintiffs as ‘investors’ in name only. Their real role was that of lawsuit filers who planned all along to sue the sellers. They were betting jurors wouldn’t be smart enough to figure out their actual intent.
Not surprisingly, jurors didn’t like that story at all. They voted to leave the plaintiff’s holding the bag on a bad investment. They wanted to send a message to the plaintiffs that they should behave more honorably in their business dealings.
We don’t always hit homeruns in storytelling. But we find that the more experience we have in differing sorts of cases, the better we get. And that’s what makes it really really fun to be involved in this work. We began with a quote from the Neuromarketing blog and we want to end with another one.
“The combination of a powerful anecdote transmitted via a trusted source, our brain’s need to find cause and effect relationships, and the difficulty in changing beliefs due to confirmation bias work together create an environment where sound science can be trumped by misinformation. This is indeed the dark side of effective anecdotes. Use this power wisely.”
On Hispanic Jurors: Religiosity and Values
As Texas-based trial consultants we see a lot of Hispanic jurors and are always intrigued by the subtle variances in values that pop up from time to time in cases. Even well-intended observers and professionals can make some important mistakes. Assumptions about “Hispanic jurors” are often simplistic and naively racist, as this is as complex a cultural group as any other. There are differences within any group from a given national origin, as well as variance between those from, for example, Mexico versus Venezuela or El Salvador.
A while back we did a focus group on a case involving salacious infidelity, strained family relations, and abortion. Hot button issues for many but we thought especially for our Hispanic jurors for whom “family values” and religion are often driving forces in decision-making on cases. We were curious to see how Hispanic jurors in particular would hear this story.
What we saw was intriguing—Hispanic jurors saw a straight-forward defendant (the party who admitted marital transgressions) and a strained and seemingly withholding plaintiff. They joined with other jurors in supporting the party they saw as honest and credible. The rest of the story fell into place around their perceptions of the witnesses. When questioned about the aspects of the case that contradicted their own values, they simply said that those facts made a sad situation worse but were irrelevant to determining verdict. He was very imperfect, but he was honest, and he loved his kids. They liked his warmth; they were put off by the frosty harshness of the Plaintiff.
Now we see some data from the blog Gene Expression that offers new insights. According to Razib Khan, the blogger at Gene Expression, we often make the assumption that since Hispanics are often Roman Catholic, they will have very conservative social views. Khan uses data from the General Social Survey to examine various religious beliefs and behaviors and compare non-Hispanic whites, blacks and Hispanics on these factors.
What he concludes is that support for the notion that Hispanics are ‘always’ more religiously conservative is spotty at best. According to Khan, Hispanics are more religious than the median American but the main issue where a noticeable difference arises is around the question of abortion. He opines that this is likely a cultural issue since many Hispanics or their families are of recent origin from nations where abortion is illegal.
We like to see data such as Khan provides to help us understand the ‘why’ of various values and behaviors. In our experience, the best attitude for us to have when taking on any new case is one of curiosity. What will jurors think of this case? Will different groups see it differently? Are there group cultural values that interact with this fact pattern or are there shared beliefs that will override general pre-existing attitudes? Curiosity leaves us open to learning. And the more open we are, the more we learn about blind spots in our cases.
Is racial bias fueling anti-Obama rhetoric?
It would seem so. Or, as a particularly erudite friend observed the other day, “Duh!” New research published at Miller-McCune reports that unconscious negative attitudes toward African Americans make the anti-Obama rhetoric seem more persuasive. Contrary to Obama’s campaign calls for a national debate on race the researchers in this study conclude that “An unfortunate side effect of Obama’s ethnic identity, and that of others leaders and politicians of color, is that it may discourage rational debate.”
The Tea Party stridency is only one example of this racial bias directed at Obama. A more disturbing example can be found on the CNN website in, of all places, the fashion section. A May 2010 piece on Michelle Obama’s style sense—meant to highlight her unique sense of style—instead drew intense racist comments from many, many commenters. (Be sure to scroll to the end of the article to review the comments.)
There is something about the anonymity of website comments that frees people to say hateful and spiteful things that we certainly hope they would not say in person. Just as email communications promote dishonesty so too anonymous web comments promote the sense that it’s okay to say racist and negative things about others.
In focus groups, we hear the refrain routinely—“Well, it doesn’t make any difference to me, but it sure would to a lot of other people.” It is akin to the old “I’m not prejudiced, but all my neighbors are”. When we ask directly about bias, our mock jurors deny it. In fact, when it is obvious that flagrant bias (racial or otherwise) is driving focus group discussion, I don’t ask them if they are biased; I ask two alternate questions: 1) “Has this been your perspective for a long time?”, and 2) “Do you think that a random group of your neighbors and co-workers would likely consider [bias issue] a problem?”
Racism is alive and well despite many believing we are now living in a post-racial society. It’s simply better hidden but not really buried too deeply at all.
For real advocacy to happen–
- We have to tell our stories in ways that transcend race while also acknowledging it is there.
- We have to raise the flag (in a carefully crafted manner) to alert jurors to avoid stereotypes and bias and make their decisions based on justice and fairness. (Register at our website to see our article on Juries and Race.)
- We have to trust jurors while also arming them with forewarning so they can avoid bias in their deliberations.
- We have to make our clients, parties, witnesses, and their family members ‘like’ our jurors so that bias is minimized as “these people are like me”.
Your goal is to disrupt the habitual process of our attempts to find justification for pre-existing beliefs and to encourage consideration of facts and unbiased processing of evidence. It isn’t easy. It isn’t fair. But it does give your client their best shot at real justice.
That would never happen to me!
We invest a lot of effort to believe we are safe. We see it in mock jurors routinely. They find ways to question the actions of injured parties not realizing (or simply not admitting) that we see things differently when we know the outcome than we do in the moment. It’s called hindsight bias. It’s one of the most common thinking styles we see in pre-trial research. But these sorts of erroneous, “I am really safe” thinking errors certainly would not happen to those confronted with life and death decisions every day!
Or perhaps they do. Police officers are often first on the scene of motor vehicle accidents involving fatalities. And we are barraged with constant messages to “buckle up” and the statistics that more than 50% of those who die in motor vehicle accidents are not wearing safety belts. Yet many police officers killed in line-of-duty car crashes are not wearing seat belts. They have “good reasons” for not doing so—like they want to get out of the car fast, or control violent prisoners, or perhaps they don’t want to wrinkle their uniforms… It really doesn’t make sense. “Click it or ticket” doesn’t apply to the police themselves evidently.
The point is that all of us find ways to talk ourselves out of doing things or thinking things that threaten our sense of safety. The fears caused by a sense of threat to our safety are outlined by terror management theory. In litigation advocacy, you have to figure out if there are aspects of your story that trigger fears of vulnerability and thus activate the “that would never happen to me” coping mechanism.
Sometimes, it’s easy to see. We’ve worked on wrongful death cases where people were killed in horrible and painful ways. That was a simple relationship “This story will scare people”. The Plaintiff case strategy needs to include consideration of how people will try to invent ways in which they wouldn’t have been harmed as the plaintiff was, because of hindsight awareness. The Defendant case strategy needs to be one of obviousness and inevitability due to factors unrelated to the alleged misconduct.
Other times, it isn’t so easy. Last year, we worked on an investment case where the plaintiff attempted to hold the defendant responsible for the deceptive actions of a third party. So they told their story AS IF the third party behavior was the responsibility of the defendant. Despite evidence and facts supporting the defense, the plaintiff prevailed. The jurors were frightened (as the economy began to slide) by the idea that a third party (who happened to be very, very wealthy and Middle Eastern) could manipulate a sales contract and decimate retirement savings of investors—and they wanted to hold “someone” accountable. Since the third party was not part of the suit, their only option was the defendant.
You have to find out when (especially when it is unexpected) threats to jurors’ sense of security/safety will have unexpected (and potentially very, very expensive) impact on case outcome. What we’ve learned over the years is that you never know when fears about security will raise their (decision-making effecting) heads.
Predicting case outcomes? Lawyers are pretty dismal at it!
A recent paper published in Psychology, Public Policy and Law investigates just how accurately U.S. lawyers predict case outcome. The news isn’t good. Attorneys are over-confident in their predictions across the board.
This does make sense since you need to believe in your case in order to advocate effectively. Yet, having a better sense of potential outcome would be of obvious benefit in case selection. The outcomes from this study are varied:
- Lawyers were extremely over-confident. This was true for defense attorneys as well as prosecutors and attorneys on both sides in civil cases.
- Oddly, years of experience did not improve the likelihood of accurate prediction—although there is some historical evidence that having a niche specialty area does improve predictive accuracy to some degree.
- Lawyers representing defendants in criminal cases involving victimless crimes or crimes against property were more accurate in their predictions of case outcome.
- The authors hypothesize that in these cases (with less ambiguous fact patterns) the attorneys are relying more on objective rather than subjective factors in making predictions.
- Gender makes a difference. Male attorneys were more over-confident than female attorneys. Thus female attorneys had better outcome predictions.
The authors suggest implications for lawyer-client relations, case management strategies, court efficiency, and lawyer training and education. However, none of the experimental manipulations were successful in improving the accuracy of case outcome predictions.
There are several take-aways from this research—although we look at different things than the authors do!
- As you consider whether to take on a case, look at the objective facts. Do not be blinded by the sex appeal of a case, how much publicity it will bring you, or how good you will look in that brown shirt and tie (the one that brings out your eyes) on television. What are the facts—good and bad? The more you want to take on a case, the more you need to stop and consider the objective data.
- If you are male, have a female colleague. Consult. Consider her cautionary input. Go over the objective data with her. Remind yourself (when you want to argue) that she is likely to be more accurate than you in prediction and try to see her point of view.
- Consider the idea of pre-trial research. Well-conducted concept or ‘discovery’ focus groups offer a more objective opportunity to see how the facts affect decision-making, instead of attorney persuasiveness and argument. If not pre-trial research then consider the idea of talking to an experienced trial consultant for an hour or two. Get their perspective. It’s different than yours. (Remember the Bay of Pigs…).
Why an uncertain attorney may be better than a cocky one
Recently, ABC Radio’s The Science Show had a really terrific presentation on the Dunning-Kruger effect. They begin their broadcast with the story of the bank robber who rubbed lemon juice on his face thinking it would make him ‘invisible’ to the bank cameras. He was totally stunned when it didn’t work.
The Dunning-Kruger effect is essentially this: the more incompetent you are, the more inflated your perception of your own talent in that area! And perversely, the competent under-estimated their competency. “The idiots get smart while the smart get modest”.
We see this routinely in pre-trial research when group members take a small bit of knowledge and assume ‘expert status’. If no one questions their knowledge and they present well, a single ‘expert’ can derail your case. That’s why it’s essential that you teach jurors clearly and thoroughly about the essential details of your case. In highly technical cases such as patent disputes, it is often the shade-tree mechanics that are certain, while engineers and scientists presume far less.
There is some good news in the Dunning-Kruger effect. You can lessen the impact of the ‘self-appointed expert’ in the jury deliberation room through educating all the jurors. The incompetent do become more aware of their incompetence once they become more competent, but they need to be provided information that will carry them from their initial posture to a more informed position. They will be equally emphatic either way. Even if they refuse to consider your evidence other jurors will take it in and have information to discredit the (not-so) ‘expert’.
So if you find yourself feeling totally confident about a case—you may want to back up a bit and see where the narrative holes are for the average listener. Find out what questions your story elicits and then prepare your case accordingly.
Apology redux: Doing it right (and doing it wrong)
Beth Foley has a nice article on apology in the current issue of The Jury Expert. She discusses how well-known people exhibit moral hypocrisy in their pseudo-apologies and uses the examples of Eliot Spitzer (bad apology) and Tiger Woods (good apology). Beth is a great trial consultant (and a generally great person) and we like her article.
We like it especially since much of what Beth says agrees with what we’ve said on our blog regarding David Letterman, Tiger Woods, and, yes, even Eliot Spitzer. We’ve written a couple of papers on this issue also: one inspired by Eliot’s misadventures is downloadable from our website: Defending the Uncivil Client and The Art of Apology (all about what makes a good apology and also available to download at our website but you have to register to get to it!)
Apology is a tricky thing. You have to do it right. And ‘right’ means sincerely and genuinely—or at least appearing sincere and genuine—but, it’s better to really mean it. On CBS’s The Good Wife, Peter (played by Chris Noth) is trying really hard to show sincerity in his requests for forgiveness but we don’t know just yet if he really is sincere or playing the preacher or maybe his wife (Julianna Margulies). This television show (which is a lot of fun to watch) painfully illustrates the disconnect we all fear between what the politician shows us and what is real. As a litigator, you need all the tools possible to help your client apologize correctly (or to repair an early failure) and to present the best possible ‘face’ to a jury and the public. Read Beth’s paper and read ours too.
Faulty Logic: Cannabis, psychosis and fish oil
You might want to file this one under “go figure”. It’s an example of how odd research findings that seem related (but probably aren’t) get into our national consciousness. Perhaps our national altered consciousness.
In research coming out in the May 2010 issue of the Archives of General Psychiatry researchers follow nearly 4,000 young adults born between 1981 and 1984. What they find is striking. The longer study participants had used marijuana, the higher the risk of psychosis-related disorders. According to the researchers, those who are more vulnerable to psychosis were more likely to smoke marijuana and that, in turn, could increase their risk for developing mental illness.
In an odd twist, just last month, the same journal published an article on fish oil and psychotic symptoms. The article is discussed briefly at the Psychiatric Times website where they report that taking fish oil “reduced the risk of progression to psychotic disorder in young people with subthreshold psychotic symptoms”. In other words, if you seem vulnerable to psychosis and you take fish oil, you don’t go on to develop full-blown psychosis. “Mom was right”, they say, “fish is good for you”.
Does this mean if you take fish oil supplements you can smoke all the weed you want without becoming psychotic? Probably not. But we see this sort of thinking in mock jurors routinely. They hear the story and take seemingly unrelated facts and combine them in ways that are unexpected and, at times, quite frankly frightening. Sometimes it’s an odd combination of life experience and tangentially related case facts. Sometimes it actually is the result of case facts that jurors tangle together.
It’s one of the benefits of pre-trial research. You get to hear how those unrelated facts are tied together and you can (try to) disconnect them by modifying your case narrative. You are the one telling the story. Don’t let odd associations change the story jurors are hearing.
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