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Archive for the ‘Pre-trial research’ Category
How a picture can be worth less than a hundred words
We are big fans of visual graphics. They condense complex ideas into digestible images. They help the layperson understand technical jargon in ways that make sense to them. Visual graphics help us to see that our fears are not necessarily in sync with the facts (as you see in this visual on the true odds of airborne terror). A good visual gives us perspective and information that informs us quickly and thoroughly.
And similarly, if we can see a video of a person (even for only 100 milliseconds) we can infer facial expression more accurately than we can in a still photograph. The video gives us context for our interpretation. Given these pieces of information, you might think that a picture or graphic is always better than words to communicate information. And if you think that, you would be wrong. Very wrong. How could you imagine such a thing?!
A new study reported by Research Digest blog provides an example of when we do better with text than graphics. In the hospital. Those graphs and charts are apparently often misinterpreted by harried and distracted staff! Researchers conclude that if those graphs were replaced or supplemented with short passages of text conveying the same information—fewer mistakes would be made.
It reminds me of a birth trauma case I recently consulted on that involved questions about proper interpretation of fetal monitor strips. One problem was that there were no strips. The entire system was digital—you read it on a monitor. The complication is that in order to see the pattern that has evolved throughout the labor, or through the last hour, you have to page back and back and back… and you can’t flip back and forth as easily. The image becomes less clear.
In the life and death decisions often made in hospitals, we want our medical professionals to make the most informed and accurate decisions they can. This study would indicate we should make sure medical professionals accurately interpreted graphic information in hospital charts and that their choices for intervention were consistent with those charts.
van der Meulen, M., Logie, R., Freer, Y., Sykes, C., McIntosh, N., & Hunter, J. (2010). When a graph is poorer than 100 words: A comparison of computerised natural language generation, human generated descriptions and graphical displays in neonatal intensive care. Applied Cognitive Psychology, 24 (1), 77-89.
Propaganda, Dogmatism & Bias: Who are your jurors?
As the country becomes increasingly divided (again), we are seeing increasing indications of closed minds on jury panels. This is reflected in the blogosphere and in recently emerging research findings. Sadly, this appears to be a time of seeking to affirm pre-existing beliefs rather than informing ourselves and coming to our own conclusions about hot button issues.
It has become commonplace to think that the news channels prospective jurors watch can tell us about their politics. We blogged about this here and here. So it isn’t surprising when we hear the results of a study in the journal Media, War & Conflict telling us that we don’t seek out television news to inform ourselves, but rather to affirm ourselves. That is, we watch television news shows that support our pre-existing beliefs, rather than those that could challenge those pre-existing beliefs.
Or, as Robin Hansen at Overcoming Bias blog tells us, we are “built to rationalize”. In other words, Hansen says, “our minds often unfairly defend our most deeply held beliefs” and “when we sense such beliefs being threatened, our minds distract us, refuse to comprehend alternatives, and grab onto weak excuses as though they were timber”. It is what we do. We use cognitive shortcuts like stereotypes to help us defend against new information and maintain confidence in our pre-existing beliefs.
So given the resistance of entrenched beliefs to change and the relatively short timeframe of most jury trials, how can you attempt to seat a jury most open to actually hearing your case?
- If your case resonates with conservative and/or religious values, you may like jurors who show evidence of dogmatism which is, essentially, being powerfully wed to a particular belief system. These jurors will hear your case and dismiss opposing counsel (particularly if you show them how the other side does not resonate with their strongly held values).
- If, on the other hand, your case resonates more with liberal or pluralistic values (the more ‘gray’ areas), you want to identify jurors (for disqualification or peremptory strikes) who will dismiss your case without listening. Look for group affiliations that would indicate the likelihood of dogmatic beliefs.
And for those of you curious about a short-hand way to identify those more open-minded—here’s a tidbit. The same study finding that we seek to affirm rather than to inform through our television news habits, also found something that may surprise you. Those who watch television news on the Al Jazeera English network become less dogmatic! And the longer they watch, the more open they are to opposing points of view. We find that very intriguing. Opposing counsel may well know ‘who’ watches Fox or listens to NPR—but do you think they know who listens to Al Jazeera? Ah, but now you’ll make sure to know.
Lighter Skin, More Like Me
Matthew Harrison has an article on Colorism in the January issue of The Jury Expert. He discusses the role of colorism (or “skin color bias”) in the workplace and then three trial consultants discuss his work in the context of the courtroom. There’s a lot of good information for litigators in the trial consultant responses and we recommend you go take a look if you are interested in learning more about the relationship between skin color and bias (in the workplace or in the courtroom).
It’s a timely piece. As the country becomes increasingly polarized, researchers keep churning out work on our biases and how they result in us modifying how we see others. For example, the Atlantic reports on a study showing that our own partisanship determines how we perceive skin color. The more we believe the person shares our own values and political perspective, the lighter skinned we believe them to be. If we do not believe they share our perspective and values, we see them as darker skinned. (This was measured by asking participants to choose the photo they thought best depicted Barack Obama—a darker skinned photo or a lighter skinned photo.)
Miller-McCune website also discusses this study and wonders if we are likely to like people less if we see darkened images of them. They cite the infamous photo published by Time Magazine of a skin-darkened O.J. Simpson during his 1994 trial. The racially ambiguous, according to Miller-McCune, are harder to categorize than the clearly white (for example, John McCain) or clearly black (for example, Michael Steele). The very ambiguity may require more cognitive effort on our part to process and we know that ambiguity can be disorienting and confusing.
We’ve said it before. Race and racism is becoming more nuanced. Your dark-skinned client/witness/party/self may be seen more negatively than your light-skinned client/witness/party/self and you need to prepare for that before entering the courtroom.
What to do when your case is reduced to a country western song…
We’ve written about a country western song before but this is different. And we’re not talking a divorce case themed as a Kenny Rogers song. We’re talking about that sick feeling you get in the pit of your stomach when you see that your case is really mimicking a country western song.
Last month, we worked on a commercial case and although no one in the mock jury mentioned Jerry Lee Lewis, as we drafted the report for our client we suddenly realized that the lyrics to one of Jerry’s greatest hits would say about everything we needed to say. Yes. You guessed it. The plaintiff was just middle-aged crazy. And once that song starts playing, it is really hard to get out your head! (The Germans call this phenomenon the ‘earworm’ but that is another post.) And we started to think, what happens when jurors get songs like that stuck in their heads and the only way they can see your client is as a really pathetic country western song? (We offer our sincere apologies to Jerry Lee.)
Fortunately for us, we were working the defense side so we enjoyed the earworm and concentrated on how to tell the story in a way that subtly evoked Jerry Lee (and thereby would undermine the plaintiff’s story). But what if you are not so fortunate and the case you carefully chose suddenly becomes liable to send jurors into fits of giggles or to dismiss your position as silly and “just desserts” for a man who lost his way? Here are some of the thoughts we had on shaking that earworm:
- Change the story. Mark Bennett had a nice post on this dilemma a few months back when he saw a taped outline of a victim on the courtroom floor and that post resulted in a flurry of comments on what opposing counsel might do in this situation.
- Don’t kid yourself. Reframe it, don’t ignore it. What does the improved storyline need to be? We can’t know what will work for your next case, but a well-conducted focus group can come up with a dozen potential alternatives for you. In our case, mock jurors blamed the plaintiff’s much younger paramour for seducing him and leading him astray. It doesn’t take much encouragement for a jury to focus on that sort of dynamic.
- Redeem the hero. Just as Americans love to see our heroes fall, we love to see them redeemed. We’ve blogged about this dynamic here and here. You want a case narrative that shows your client expressing awareness of the relevant social values, insight into the bad behavior and asking (without groveling) for redemption. Like Toby Keith does in ‘Broken Bridges’. What has your client learned from this downfall? How has your client suffered? What does your client intend to do differently in the future as a result of these lessons? Your goal here is not to excuse the behavior (because you know it was bad and the jurors know it too) but to show awareness of the impact on others, insight into reasons it happened and a genuine desire to do things differently in the future.
Of course, it’s best to watch out for sappy themes in the cases you consider taking. But when the story suddenly turns sudsy, you need to think fast about how to shift the focus, reframe the theme, take control of the narrative, and perhaps rewrite the song.
And as a personal aside, neither Doug nor Rita want the timelessness of country western music themes to be taken as a sign that we like listening to the songs. Well, maybe some of them are pretty good… They seem to work better at trial than our Beatles collections.
Questions, rabbit trails and how to know when a bear is “disturbed”
Attorneys often ask how we keep mock jurors so engaged and focused over long days of evidence presentation and discussion. The answer is simple if a bit tongue in cheek: we keep them busy and they know there’s going to be a test (in the form of group discussion) at the end.
Obviously you can’t be handing out questionnaires and engaging actual jurors in discussion of their reactions to evidence presented as it unfolds at trial. But there are things you can do that dramatically improve juror focus and engagement. Here are two strategies to increase juror engagement.
Let them ask questions: In Tennessee, jurors can ask questions if the judge allows it. The questions must be submitted and attorneys and judge confer to determine legality. A recent jury submitted one question following more than an hour of testimony from a psychiatric expert witness: “Does he know right from wrong – yes or no?”. Juror questions can cut to the heart of the testimony.
If you can’t have jurors asking questions, use pre-trial research to identify what their questions will likely be and address those questions as you walk witnesses through testimony. “In your expert opinion, Dr., does the defendant know right from wrong, yes or no?” Answering the questions jurors wonder about ensures you more than likely know how the ‘holes’ jurors see in the story are being filled in. Jurors appreciate knowing the facts that matter—and when they do, it’s much easier for them to refute “conspiracy theories” or idiosyncratic interpretations of evidence in the deliberation room.
Identify potential rabbit trails: Jurors can be distracted by the oddest things! Part of your job is to ensure they do not wander off on “rabbit trails” that lead nowhere and are ancillary to the story itself. An example of this type comes from San Francisco and a jury deliberating on a charge of “disturbing dangerous animals” after a mentally ill man snuck into the home of two female grizzly bears at the San Francisco Zoo. The question was whether the defendant had known he was entering a bear enclosure. Jurors however, became preoccupied by how one would know if you had indeed “disturbed” a bear and eventually acquitted the defendant.
This is obviously an unusual story for a jury to hear. What is more important is that the jury became sidetracked and engaged in a lengthy discussion of how one knows if a bear is disturbed. Walking the jury through the charge via over-sized exhibits is a terrific way of helping them to focus their attention in deliberation. Let them know what the operative (i.e., important) terms are in this case. Then, when faced with a rabbit trail, jurors can appreciate the humor in a “define disturbed” segue but return quickly to the (relevant) task at hand.
Responding to juror questions by providing evidence and testimony to answer them allows jurors to focus on the facts rather than on their fantasies about ‘why’ certain things happened. Walking jurors through the jury charge teaches them what the task is they are charged with completing. Both of these tactics reduce juror stress and uncertainty as they walk to the deliberation room. Answer questions and give them direction. It’s not that hard.
A picture is worth a thousand words…
Pictures communicate tremendous amounts of information in digestible and comprehensible bits of visual data. Sophisticated concepts can be broken down into something anyone can understand.
Cutting $100M from the federal budget: See, for example, this classic YouTube video of what it means that Obama is going to cut $100M from the federal budget. Wow. It seemed a lot bigger when I heard it than it did when I saw it.
Lifetime risk of maternal death in developed vs developing countries: Don’t use pie charts—they don’t work well when trying to depict small numbers. Instead, use bar charts and columns to show the difference between 1 in 8,000 and 1 in 76. Look how clear those hard-to-visualize numbers become!
Risk of being killed by animals: What are the most dangerous creatures in the world? Would it be sharks, bears or lions? Surprisingly, no. The most dangerous creature is the mosquito (killing 3M/year)!
Pictures stay with us. They summarize information for us in a succinct and clarifying fashion. We remember them and integrate the learning we take from them into our stored memories and experiences.
When you have a technical, complex, or simply dry and tedious fact pattern, a picture (also known as visual graphics, infographics, or demonstrative evidence) can help jurors wade through the hours and hours of testimony in words and have a visual in mind as they consider the evidence. We’ve seen the powerful graphics and the weak. Images that hit and efforts that miss. Invest money in visual evidence and test it in pre-trial research. You’ll get invaluable feedback on the user-friendliness of the visuals and your message will be communicated clearly and carried into the deliberation room by each juror.
Trial Skills Journal on the Web: The Jury Expert
The Jury Expert (TJE) is a trial skills journal–meant to improve your litigation advocacy while educating and informing you about new research, new tactics and strategies, or new ways of thinking. We think the content in The Jury Expert is novel, relevant, practical, and often challenging or thought-provoking. It’s a different perspective on improving litigation advocacy based on years of experience in witness preparation, pre-trial research, case theming, persuasion strategies and life in general.
Every issue contains an article or two from academic researchers who translate their work into plain English. These articles are commented on by ASTC-member trial consultants who further translate the work into how they would use (or not use) the research findings in the courtroom. This issue, the articles from academics cover Sex & Race in the Courtroom (how it’s changed over time) and an introductory primer (in the form of an annotated bibliography) to the specialty area of Not Guilty by Reason of Insanity (NGRI) and Guilty But Mentally Ill (GBMI). Trial consultant responses add value and relevance to these pieces.
The remainder of the articles in November’s TJE are written by trial consultants. This is your chance to hear how different trial consultants think and practice. A chance to hear how we do what we do (and why) on a variety of litigation-related topics. Visit The Jury Expert website to see the November 2009 issue with pieces on:
- Googling Jurors: Understanding what is happening and how to minimize the intrusion of the internet in your case (This piece is from Keene Trial Consulting and is conveniently hyperlinked to serve as a reference for you and to give you the best ideas about how to mitigate internet intrusion in your case.)
- Jury Research on Defense Settlements (Melissa Gomez on negotiation and settlement)
- When Jurors Nod (Stanley Brodsky & Michael Griffin acknowledge our excitement when we see jurors nodding and explore what it really means and when we should pay closest attention to nodding)
- Best Practices in Live Communication (Katherine James distills 30 years of courtroom practice and 50 years of stage acting into lessons for litigators) and
- Don’t Poke Scalia: Lessons for litigators from observing the Supreme Court (Tara Trask & Ryan Malphurs observe and offer ideas on how we can learn from missteps at the nations highest court).
We’re proud of The Jury Expert. It’s grown exponentially in the year and a half it’s been on the web. Have we mentioned it’s free? Take a look. Post comments. Download at will. You’ll be glad you did.
Case Strategy Tip: Do you want your jury to think about their verdict or not?
This is really not a facetious question. Depending on your case facts and which side you are representing (plaintiff, prosecution, or defense)—you will do better to craft a case story that will either carefully think through the evidence or not think carefully and rely instead on pre-existing attitudes.
Jurors that carefully think through the evidence are generally highly motivated and become personally involved in the decision-making process. These jurors will engage in a more thoughtful and systematic review of the evidence and make their decisions based upon that.
Conversely, jurors that are not highly motivated and do not find case issues personally involving will sit back and use their own pre-existing attitudes and biases or use a ‘consensus equals correct’ model and therefore agree with the majority of other jurors (Wood 2000).
There will be times when you don’t want your jurors to think carefully—but rather, to simply go with their gut (i.e., their pre-existing beliefs) and make their decisions based on stereotypes. While this is often not a politically correct tactic, it is often a winning one.
To increase the likelihood that your jurors will not think carefully, try the following:
Suggest a ‘common sense’ approach to verdict-finding—jurors are more likely to gravitate to positions for which they can easily generate supportive agreements and to reject positions where they cannot easily generate those agreements
- Use familiar sayings (i.e., clichés) that provide cues to agreement
- “The apple doesn’t fall too far from the tree” to discredit by implying similarity between parents with poor histories and the defendant or plaintiff
- “Corporate misconduct” to evoke automatic negative reactions to corporate defendants
- “Money won’t bring their loved one back” to decrease tendencies to award large amounts
Reference unbiased, expert sources or, even better, sources with an apparent allegiance to the opposition
- “The Surgeon General says” or “Dr. Famous Expert says”
- “What is interesting is that the plaintiff’s own expert says…”
Suggest a ‘common sense’ approach to verdict-finding—jurors are more likely to gravitate to positions for which they can easily generate supportive agreements and to reject positions where they cannot easily generate those agreements
- “It just makes sense that the nurses would follow the same procedures they always use—just because they were so busy taking care of Mr. X and didn’t write it down doesn’t mean it wasn’t done…”
- “How much of a coincidence would it take and how many of these witnesses who have never met would have to be working together to make the defense story hold water? Let’s be reasonable…”
Suppose, however, you’re on the other side of the fence and you do want your jurors to think carefully, to process and sift through the evidence, and truly examine the facts as they come to a decision. What can you do? Social science research again provides multiple strategies for you:
Frame your messages in an unexpected format
- “Truth can be stranger than fiction…”
- “If only this hadn’t happened. But sometimes bad things do happen, sometimes they just do…”
Increase the self-relevance of your messages for jurors
- “This corporation is based here in our town. And how they do business effects all of us.”
- “Mr. Plaintiff/Defendant is/was a hard-working man with a family who loves/loved him. He got up every day just like all of us do…”
Use phrases that ambiguously signal broader values (e.g., “family values”)
- “This case isn’t just about Mrs. X—it’s really about being a mother and about being the kind of mother who doesn’t accept bad behavior from her children or toward her children. This is a case about the kind of mother we’d all be fortunate to have in our corner.”
- “This community expects better from our business owners. This community has shared values that say businesses should treat their customers fairly and that they should provide good service in return for payment.”
Overall, as part of your case strategy, you want to be thinking about whether you want your jurors to be thinking or simply acting. Depending on the facts of the case and on the good or bad facts regarding your client and your opposition—you will do better with either jurors that think or jurors that fall back on their own pre-existing beliefs and values.
Think and decide whether you want your jury to be composed of thinkers or impulsive actors.
A great many people think they are thinking when they are really rearranging their prejudices. –Edward R. Murrow (1908 – 1965)
Wood, W. (2000). “Attitude change: Persuasion and social influence.” Annual Review of Psychology 51: 539-570.
Litigation consulting and the meaning of life
I like to work on cases that I care about. Who doesn’t?! Life is more meaningful when we spend it on activity that has personal meaning, right? As a litigation consultant, I am faced with cases with facts that are obviously compelling, as well as others whose appeal is, shall we say, ‘non-obvious’. What my kids ask me, though, is “are you working for the good guys?”
What a simple question. “Are you working for the good guys?” And how complicated. But it is, at bottom, what jurors want to know, too. And it is the challenge of every trial lawyer and every litigation consultant to find a path to “yes” when asked that question. In morally ambiguous cases the answer may become “there are no bad people in this story, it is simply sad.” Or “these are good people who really lost their direction.” But the challenge is to find a way to feel good about them.
My experience working with new attorney clients is that the first time we work together, like any ‘first date’, is a bit tentative. I feel my way around their approach to doing things, and they learn my strategic ideas. The second time is more fluid, as most second dates tend to be. When we have an opportunity to work together a third time, we do it as friends and collaborators.
Several years ago a client/friend and I had a meeting about a new case for which he had sent me the documents for review, and at the beginning of the meeting I said “I really like this case”. He burst out laughing and said that he knew I was going to say that, and he questioned whether I was seeing the case realistically. What ensued was an extremely fruitful exchange of ideas about the risks of the case, the points of attraction, and what it will take for a jury to “like our case”. What he realized (and now, years later, what he has come to expect from me) is that part of my task is to see the path jurors need to take to “like our case”, as well as the detours that will cause them to find against us.
As a determined optimist, I want to believe that a verdict in favor of my clients represents justice. That is what juries want to believe as well, and the job of a litigation consultant is to assist the trial counsel to illuminate that path. If I can’t find a way to make a positive verdict for my client feel like a good thing, I can’t expect a jury to. Juries are extremely good at detecting authenticity. Belief about the merits of our case, even with the conscious awareness of its flaws, is the tightrope we walk every day. Thousands of jurors have told me what they care about, and where the threads of tolerance are woven into the fabric of their beliefs and values. We keep this knowledge foremost in our minds, from discovery to resolution.
So yes, kids. I am working for ‘good guys’. But the opposition might feel that they’re working for good guys, too.
But they did it on purpose!
We know that when we think someone hurt us on purpose, we are more angry and perhaps even morally indignant. The idea that we were hurt intentionally makes our blood boil (or tears flow). We know this anecdotally. And now, we know it to be scientifically true!
Harvard researchers have found that pain hurts more intensely if we think it is being inflicted intentionally rather than accidentally. The authors use the example of why we stay in abusive relationships—if we presume the hurt is accidental, it’s okay to stay. When we finally realize the hurt is intentional and will continue, we can often muster the courage and integrity to walk away.
This is an intriguing study because it speaks to the heart of telling the emotional story at trial. You want jurors to have an emotional response—a connection to your story, to your client. You want them to ‘want to’ find for your client, and see him or her as a worthy recipient of their support. What this research tells us is that if the pain inflicted on your client was ‘intentional’, jurors may have a stronger emotional response to it. Here is how we might use this research finding to inform practice:
- In a divorce case: S/he purposely deceived your client knowing full well that if these behaviors had been known, our client would have ended the relationship.
- In a contract case: They entered into this verbal agreement with no intention of performance, their intent was simply to delay competitive progress while they worked on their own plans.
- In an intellectual property case: S/he purposely worked with us to take our research findings to a competitor and secretly filed a patent application before ours was filed.
And so on. Your goal is simply to light the fire of moral indignation in the minds of the jurors. You want to answer both aspects of the common juror refrain “it may be legal but it sure isn’t right”. Show them it isn’t right. Show them it isn’t legal. Give them facts to buttress their feelings in deliberations.
Sometimes what feels wrong is still legal conduct. That is unsatisfying to jurors, but they usually want to track the law. But sometimes the law works as it should, and what is wrong is also illegal. When that happens, jurors become engaged on a very personal level. Let them know: “This one isn’t right AND it isn’t legal.”
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