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Archive for the ‘Pre-trial research’ Category

“Smart people ask for (my) advice!”

Monday, September 15, 2014
posted by Douglas Keene

smart people ask for adviceWe are often wary of asking for advice for fear of looking dumb or appearing incompetent. Oddly enough, our fears may be unfounded based on some new research out of Harvard Business School. According to the researchers, asking for advice does not make you appear either dumb or incompetent. Instead, asking for advice makes you seem more capable.

While initially this may seem unlikely, think about how much people love to give advice. When someone is asked for advice, they experience a boost in self-confidence, which, say the researchers, in turn enhances their opinion of the person seeking advice. It is, in truth, a win-win situation. The person asking for advice gets some feedback and they are seen as more competent while the person being asked for advice feels better about themselves (and about the person asking for advice).

The researchers (we’ve covered some of their earlier work here) conducted 5 separate experiments and here is what they found:

Asking for advice actually increases other’s perceptions of your competence.

When the task is difficult, asking for advice causes the person seeking advice to appear more competent than when the task is not difficult. However, even when the task is easy, seeking advice did not lower perceptions of the person’s competence!

When someone is asked for their specific advice, they see the asker as more competent. However, if they see the person asking someone else for advice, they do not see the advice seeker as more competent. The researchers believe there is a “direct flattery” component involved here since “being asked for advice caused advisors to feel more self-confident, and, in turn, to view the advice seeker more positively”.

Finally, the advice-giver needs to believe themselves competent and experienced in the area in which they are asked for advice. [Of course, a lot of people have an inflated sense of the scope of their qualifications…] If the advice seeker asks for guidance in an area of the advisor’s expertise, the advisor sees the seeker as more competent. However, if the advisor is obviously not experienced in the area, “then the advice seeker seems less competent than if s/he had not asked for advice” at all.

The researchers say our fears about appearing incompetent by asking for advice are unfounded and that, in truth, there are benefits to both being the advice-seeker and being the advisor. They believe that organizations benefit from encouraging advice-seeking as it will help spread useful information and improve relationships between colleagues and co-workers. The dilemma is that if you educate your employees on the advantages of advice-seeking to both the advice-seeker and the advice-giver–you run the risk of the advice-giver feeling manipulated and the advice-seeker wanting to “not be that guy/gal”. The authors do not offer advice to the manager looking for ways to build this dynamic into their office culture–they simply say it would be a positive and productive thing. (See the full text of the paper here.)

This explains why one of our favorite strategies for both debriefing mock jurors and conducting voir dire are so productive. At mock trials and focus groups, I introduce the process by sharing with the mock jurors my hope that through their collective wisdom we can tell the disputing parties and their lawyers what ‘real people’ think about the issues, and guide a resolution that doesn’t require a trial. It elevates them from being there for a couple hundred dollars to being there to solve a problem. They really like it. At trial, asking the venire questions framed in terms of “help me understand” and “Is that important to you?” makes them feel that you are seeking their perspective, not quizzing them or boxing them in. It credits them with having a contribution to make, that they are smart enough to have a valid opinion, and that you recognize the validity of their point of view. It’s not about you or your client at that point, it’s about the jurors. And that can’t hurt.

Brooks, AW, Gino, F, & Schweitzer, ME (2014). Smart people ask for (my) advice: Seeking advice boosts perceptions of competence. Harvard Business School Working Papers

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“S/he is just not one of us…”

Wednesday, September 3, 2014
posted by Rita Handrich

she-is-not-even-one-of-us.american-apparel-unisex-long-sleeve-tee.black.w380h440z1b3Just over a year ago, The Jury Expert published an article on bias and ambiguity in times of economic stress. The article was titled Does This Recession Make Me Look Black? –and it focused on how White Americans see racially ambiguous appearing others as in-group members until times are tough and then we see them as out-group members (i,e, Black). In that case, it was about multi-racial targets who were seen as White in times of economic plenty but as African-American in times of economic recession.

Today’s article looks at very similar patterns but through the lens of social dominance orientation and right wing authoritarianism. These are two long-studied ideas in the social sciences but they apparently have not been looked at before in terms of how we see [racially] “ambiguous others” as either “one of us” or “not one of us”. As a review, let’s briefly look at a summary of these two ideas (as presented by the researchers):

Social dominance orientation: If you are high in social dominance orientation (SDO), you favor maintaining anti-egalitarian, hierarchical relationships between social groups and favor the domination of “inferior” groups by “superior” ones.

Those high in SDO will be primarily concerned with the status of the ambiguous targets, since they are concerned about maintaining and strengthening group boundaries. High SDO people are likely to cast out those with low status (since they might bring the status of the SDOs superior group down) but to maintain the membership of [racially] ambiguous targets who have high status.

Right-wing authoritarianism: If you score high in right-wing authoritarianism (RWA), you are concerned with tradition, submission to recognized authorities, and aggression toward those who violate the social norms of the in-group.

Those high in RWA will be especially sensitive to the conformity of [racially] ambiguous targets in their willingness to identify them as members of the in-group. When ambiguous targets do not conform to group norms, those with high levels of RWA would see the target as a threat to group cohesion and thus be more willing to see them as out-group members.

The researchers completed four separate studies where they used racially ambiguous targets to see how those high in SDO and/or RWA might react to them. They were curious about what drives in-group versus out-group attributions/assignments when the target is racially ambiguous. Instead of working our way through the four separate studies, we are going to skip to the findings.

Individuals high in SDO were less likely to perceive a low status ambiguous target in in-group terms. Those high in RWA were less likely to perceive a nonconformist ambiguous target in in-group terms. (These two findings were based on participant reactions to two different and highly negative news stories with racially ambiguous villains.)

Individuals high in SDO were less likely to see a target as White if they were low status rather than high status. (In this study, the participants were asked “how White the target looked”.) Those low in SDO did not differ significantly in their sense of “how White” the target appeared. The researchers saw this as reflecting the high SDO individual’s desire to resist “contamination” of their superior group with low status targets but also the desire to adopt high status targets who might enhance the status of the group to outsiders.

Those high in RWA saw targets that conformed as “more White” than targets that did not conform. For those low in RWA, there was no such relationship. The researchers saw this as the high RWA individual’s desire to maintain conformity within their group.

The results are consistent with what the article in The Jury Expert found–we welcome those that are racially ambiguous as long as we are in financial plenty (and they won’t leave us hurting for resources), or if they are high status (and will make us look good), or if they conform (and won’t make us look bad).

It’s a chilling and current assessment of race relations in America. As long as the boat doesn’t get rocked, you’re okay. If I perceive any sense of threat, you’re not okay. All the more reason, given the fickleness of our sense of whether we are threatened, to work to help jurors see your racially ambiguous or racially different client/witness/party as being as similar to the jurors as possible by using universal values in descriptions and testimony.

Kteily, N, Cotterill, S, Sidanius, J, Sheehy-Skeffington, J, & Bergh, R (2014). “Not one of us”: Predictors and consequences of denying in-group characteristics to ambiguous targets. Personality & Social Psychology Bulletin

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TJE_logoThe August issue of The Jury Expert is up and we think you’re going to want to see this. Here’s a rundown of the articles you’ll find at the website.

Demographic Roulette: What was once a bad idea has gotten worse. Authored by Doug Keene and Rita Handrich with a response from Paul Begala, this article takes a look at how the country has changed over the past 2 decades and our old definitions of Democrat or Republican and conservative or liberal are simply no longer useful. What does that mean for voir dire? What should it mean for voir dire? Two very good questions those.

If it feels bad to me, it’s wrong for you: The role of emotions in evaluating harmful acts. Authored by Ivar Hannikainen, Ryan Miller and Fiery Cushman with responses from Ken Broda-Bahm and Alison Bennett, this article has a lesson for us all. It isn’t what that terrible, awful defendant did that makes me want to punish, it’s how I think I would feel if I did that sort of terrible, horrible awful thing. That’s what makes me want to punish you. It’s an interesting perspective when we consider what makes jurors determine lesser or greater punishment.

Neuroimagery and the Jury. Authored by Jillian M. Ware, Jessica L. Jones, and Nick Schweitzer with responses from Ekaterina Pivovarova and Stanley L. Brodsky, Adam Shniderman, and Ron Bullis. Remember how fearful everyone was about the CSI Effect when the research on the ‘pretty pictures’ of neuroimagery came out? In the past few years, several pieces of research have sought to replicate and extend the early findings. These studies, however, failed to find support for the idea that neuroimages unduly influence jurors. This overview catches us up on the literature with provocative ideas as to where neurolaw is now.

Predicting Jurors’ Verdict Preference from Behavioral Mimicry. Authored by Matthew Groebe, Garold Stasser, and Kevin-Khristián Cosgriff-Hernandez, this paper gives insight into how jurors may be leaning in support of one side or the other at various points during the trial. This is a project completed using data from actual mock trials (and not the ubiquitous undergraduate).

Our Favorite Thing. We often have a Favorite Thing in The Jury Expert. A Favorite Thing is something low-cost or free that is just fabulous. This issue, Brian Patterson shares the idea of mind mapping and several ways (both low-tech and high-tech) to make it happen.

The Ubiquitous Practice of “Prehabilitation” Leads Prospective Jurors to Conceal Their Biases. Authored by Mykol C. Hamilton, Emily Lindon, Madeline Pitt, and Emily K. Robbins, with responses from Charli Morris and Diane Wiley, this article looks at how to not “prehabilitate” your jurors and offers ideas about alternate ways of asking the question rather than the tired, old “can you be fair and unbiased?”.

Novel Defenses in the Courtroom. Authored by Shelby Forsythe and Monica K. Miller, with a response from Richard Gabriel. This article examines the reactions of research participants to a number of novel defenses (Amnesia, Post-Traumatic Stress Disorder (PTSD), Battered Women Syndrome (BWS), Multiple Personality Disorder (MPD), Post-Partum Depression (PPD), and Gay Panic Defense) and makes recommendations on how (as well as whether or not) to use these defenses.

On The Application of Game Theory in Jury Selection. Authored by David M. Caditz with responses from Roy Futterman and Edward Schwartz. Suppose there was a more predictable, accurate and efficient way of exercising your peremptory strikes? Like using a computer model based on game theory? In this article, a physicist presents his thoughts on making those final decisions more logical and rational and based on the moves opposing counsel is likely to make.

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Just how diverse is this group, really?

Wednesday, August 27, 2014
posted by Douglas Keene

Diverse PeopleWe often make assumptions when discussing diversity that we all perceive a group’s diversity in the same way. Today’s research shows that simply isn’t so. That is, you and I (depending on our racial in-group) can look at the same group and you might say it is diverse while I say it is not. What makes the difference? It’s an intriguing question.

These researchers discuss how diversity means different things to different people and yet, we often discuss diversity as though “everyone ought to know it when they see it”. In other words, we often conceptualize ‘diversity’ as objective rather than as something that will vary across individuals and situations. Their belief is that racial minorities look at groups and assess whether there is anyone else in the group from their own in-group since they believe that is the best predictor of whether they would be treated fairly by the group. The researchers review the lengthy history of research and polling results showing varying perceptions of race relations by Whites and minority group members. They then focus on differences in how groups are perceived (in terms of diversity) by African-Americans and by Asian Americans.

African-Americans, say the researchers are often lower status, have more negative stereotypes and report more discrimination than do other minority groups.

Asian Americans, on the other hand, are often granted higher status and report lower levels of discrimination than other minority groups. (We would point out that just because Asian Americans report less discrimination doesn’t mean they do not experience discrimination.)

The researchers completed three separate studies to see if there were differences between African-American and Asian Americans in terms of the perception of group diversity.

Study 1 included 1,899 American (391 Asian American, 620 African-American and 888 non-Hispanic White) members of a polling panel maintained by GfK. Participants read a short statement about a large corporation forming a management team for a new project and saw a photograph of the 6 managers. The racial composition of the management team was manipulated so there were 4 conditions: the Asian representation condition had 2 Asian-Americans and 4 White managers; the African-American representation condition had 2 African-American managers and 4 White managers; the Asian + African-American condition pictured 1 Asian American, 1 African-American and 4 White managers, and the final group was composed of a WhiteOnly condition that pictured 6 White team members. Participants were asked how diverse they thought the group pictured was.

Asian Americans thought the Asian representation group more diverse than the African-American representation group. African-American participants thought the African-American representation group was more diverse than the Asian representation group. This relationship was stronger for African-American participants than for Asian American participants.

Asian-Americans saw more diversity in the Asian + African-American representation than did African-American participants. The researchers say this means Asian-Americans and African-Americans responded differently to racial minority “out-group representation”.

Study 2 included 1,080 Americans recruited by Qualtrics of which 471 were Asian American and 574 were Black. The group was 57.8% female and ranged in age from 18 to 72 years with an average age of 34 years. 13% had graduate degrees, 32% had bachelor’s degrees, 39% had some college coursework completed and 15% had completed high school or earned a GED. Some participants in this study read that a research group found prejudice and discrimination against African-Americans had increased in recent years especially in terms of employment. Others read the same article but the words “Asian Americans” replaced “African Americans”. Then they looked at either the Asian representation, African-American representation, or Asian + African-American representation photos used in the first study and rated how diverse they thought the group pictured was.

Both Asian American and African-American participants saw the teams as more diverse when it included members of their racial in-group compared to when it included members of another racial minority group. (The effect was once again stronger for African-American participants.)

The need for in-group representation to see a group as diverse was stronger for Asian-Americans who read about higher levels of discrimination against their group in the workplace. For African-American participants, however, the level of in-group representation was equally important whether they had read about higher levels of discrimination against their group or not. The researchers thought this indicated discrimination was more chronically salient for African-American participants than for Asian American participants.

Study 3 included 380 upper-level undergraduate business majors (210 non-Hispanic White and 126 Asian American). Participants read that a large company had formed a new management team and saw headshots of eight people in business attire. Altogether, there were four racial compositions for the management team: Asian Majority (5 Asian and 3 White team members), African-American Majority (5 African-American and 3 White team members), Asian + African-American diversity condition (2 Asian, 3 African-American and 3 White team members), and White Only (8 White team members). Again they were asked to rate the diversity of the team and also asked to indicate how likely they thought the team was to be able to manage discrimination issues.

Asian American participants saw each team as differently diverse. They saw the Asian + African-American team as most diverse, then Asian Majority, then African-American Majority, and finally, White Only.

White participants saw the Asian + African-American condition as most diverse and the White Only condition as least diverse but thought the Asian Majority and African-American Majority conditions were the same in terms of diversity.

This research highlights the complexity of “diversity” and the importance of assessing perceptions of different racial groups when it comes to diversity. Overall, say the researchers, African-Americans are more chronically attuned to issues about race than are Asian-Americans. Therefore, how diverse a group is seen as being depends on how many African-Americans are represented.

There are many more details to be found in this complex and nuanced work. It’s also interesting to consider in light of the research on race and death penalty juries. Perhaps part of the reason African-Americans are so sensitive to whether a group will treat them fairly is because so often they are not treated fairly. We write a lot about bias. In this line of work, we see a lot of it. This particular research helps us understand some of the nuances more fully.

Bauman CW, Trawalter S, & Unzueta MM (2014). Diverse According to Whom? Racial Group Membership and Concerns about Discrimination Shape Diversity Judgments. Personality & Social Psychology Bulletin PMID: 25106545

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RIP Demographics? Well, probably not…

Friday, August 22, 2014
posted by Douglas Keene

RIP demographicsWe’ve just published a new article in The Jury Expert that “should” signal the death of the simplistic use of demographics in voir dire and jury selection. Will it? Not likely. Partly this is the fault of courts that are becoming increasingly restrictive of time and the scope of questions posed to jurors. If litigants cannot ask substantive questions, they are left to rely on the broad impressions, which are often wrong and are generally based on stereotypes rather than knowledge of individual biases.

Be that as it may, we still think it’s important for all of us to know how changes in society as a whole will make a difference in how we need to think about voir dire. There are changes that have shifted the landscape of our communities and venires, and even our basic assumptions about there being a continuum from liberal to conservative with a moderate center. Some of these big changes have now been documented. You know that moderate center? Well, to the extent it is still there, it is vastly more complex, and defies labeling. You know how Democrats are more liberal and Republicans are more conservative? We can no longer make those blanket assumptions.

Americans are now more focused on specific issues. You will find, for example, a Democrat who leans left on many issues but is more conservative on issues involving faith and family. You will find, as another example, Republicans who lean right on many issues but support other issues that “Republicans just don’t support”. And in the center, you will find many people (indeed, the majority) who are not consistently liberal and not consistently conservative. On the other hand, they are also not consistently moderate. We’ve been watching this shift for almost a decade now with political affiliation simply no longer being an effective way of understanding individual mock jurors.

It really is about the issues. It’s something we have said for years– it isn’t demographics, it is the person and what matters in their life experience. Demographics (even tidy, long-standing descriptors like political affiliation and whether one is liberal or conservative) do not tell the story nearly as well as the individual’s values, attitudes, beliefs and experiences. But, don’t just take our word for it. How about considering the results of a 2014 survey of more than 10,000 Americans (randomly selected and nationally representative)? The results represent an eye-opener that allows us to compare American opinions and how they have shifted and turned upside down in the two decades since Newt Gingrich’s Republican Revolution of 1994.

Please visit our new articleDemographic Roulette: What Was Once a Bad Idea Has Gotten Worseover at The Jury Expert. We are pleased and flattered that Paul Begala (Democratic strategist, author and CNN Contributor) reviewed the issues and our article, and offered his take on the study.

Tell us what you think. We think it should be a game-changer.

Douglas L. Keene, & Rita R. Handrich (2014). Demographic Roulette: What Was Once a Bad Idea Has Gotten Worse. The Jury Expert, 26 (3.)

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