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Archive for the ‘Pre-trial research’ Category

2016 storytelling1Every once in a while, I read something and think, “I could have written that!” and today it happened again. There is a deceptively simple blog post over at the Scientific American site that is actually a wonderful treatise on how to bring life to something complicated and esoteric so that people will actually understand and even care about what you are saying.

You likely remember Alan Alda from the TV show MASH but may not know that he has quite an interest in science and has spent a great deal of time and effort helping scientists figure out how to tell their stories of discovery in an engaging way. The blog post we are pointing you to today is written by a theater professional who works with the Alan Alda Center for Communicating Science but we think it’s a post easy to apply to high-tech patent or IP cases or other cases about an esoteric concept, a complex process, or medical mysteries that do not involve the living (as is the case with the upcoming blog post). .

The post tells the story of a scientist who’d won a contest for discovering something novel and significant but as he told the story of the discovery, it was dry and filled with jargon. This brief blog post shows how the scientist was helped tell a story that grabbed the emotion of the listener and you can even see before and after videos of the story itself.

Here’s the blog post: How to tell an engaging story of scientific discovery.

And here is the before and after video (with the differences in video quality explained in the blog post itself).

We like to say “every story is about people” and based on the blog post linked to above and the video showing you how the story presentation was changed—it looks like Alan Alda agrees.

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landline phoneSometimes we think change goes slowly and other times it goes fast! And the older you get the faster time seems to move! So here is proof that times change quickly! Pew Research Center has announced that in 2016 they will call 75% cellphones to complete their surveys in order to allow for the fact that almost half of American households use only wireless telephone services and the proportion of interviews conducted on cell phones has risen steadily since 2009.

They include some interesting facts about just how much times are changing when it comes to telephone use.

9 in 10 Americans have a cellphone with those adult Americans who use cellphone-only steadily increasing since 2004 according to the US government.

Roughly half of US adults (47%) have only wireless phone service.

People who rely only on cellphones are demographically different from those with landlines as well. They are considerably younger, less educated and lower-income. They are more likely to be Hispanic and urban. If you do not sample cellphone-only users, you do not get a sample representative of US adults. (This is why we follow Pew’s publications closely. They pay attention to societal changes.)

When adults have cellphones whose area code does not match the area they live in, it isn’t a problem in national polls but can be in regional or state polls. So respondents are always asked where they are located so the survey does not end up skewed. Sometimes there are addresses associated with cellphone numbers but not always.

And here is what is most surprising. Contrary to what you may experience when you pick up a call from an unknown number and get the background noise from a call center and a long delay prior to a person coming on the line—federal regulations say cellphones have to be manually dialed by an interviewer and not an autodialer. Obviously not everyone is doing it since it adds significant costs to interviewing (twice the cost of landline interviews, according to Pew).

Overall, this is invaluable information. If people who rely on cellphones-only are younger, poorer, less educated, and more likely to be Hispanic and urban—they represent a different group than the regular population and we need to pay attention to that difference as we conduct pretrial research. On the other hand, the explosion of cell-only users is obviously growing far beyond the profiles of who uses cellphones exclusively. And clearly, polling or sampling that doesn’t incorporate cell phones is missing much of the voter/juror population.

Pew Research Center (January 5, 2016). Pew Research Center will call 75% cellphones for surveys in 2016.

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CRISPRThose of us who work in patent litigation are used to strange bedfellows, but this is irony at its best. You may have heard about CRISPR as it’s been all over the media with hopes and promises and endless controversy. Essentially, it is a way to edit the genome to remove hereditary diseases caused by mutated genes. Here is a nice CRISPR primer from Gizmodo.

The emergence of CRISPR has caused multiple concerns about “designer babies” and what happens if the CRISPR operator snips a bit too much out of someone’s DNA. The international symposium on CRISPR (held in December, 2015) concluded they need to be open to studying the issue further. “

The symposium final statement asserts that germline gene editing for human reproduction — that is, genetically altering sperm, eggs, or embryos and initiating a pregnancy with them — has not been shown to be safe or effective, and that for now “it would be irresponsible to proceed.” Nor should any such effort be made, it says, until “there is broad societal consensus about the appropriateness of the proposed application.”

If you are still wanting clarity on how all this works, you can also watch this 4 minute video explaining CRISPR from MIT.

In the meantime, there is a big fight going on as to just who invented CRISPR. A well-regarded scientist recently wrote an article on the history of CRISPR and has been attacked for trying to cut women out of the picture as well as not disclosing conflicts of interest. The invention has been tied up for years as researchers argue about who got to the USPTO first. Now, like King Solomon and his decision to cut the baby in half so each “mother” could have part of it, the USPTO has decided they will decide using an “interference law” already expired but in place at the time the patents were filed. Here’s what WIRED magazine says in the article:

The US Patent Office will resolve a dispute over one of the hottest biotech breakthrough of the decade, the genome-editing technology Crispr/Cas9, through an arcane proceeding that technically should no longer exist. Because the disputed patents date back to just before a new law took effect in 2013, the patent office will work out who gets credit for inventing Crispr via a so-called interference proceeding—probably one of the last such proceedings ever.

It is the sort of dilemma we can imagine causing high distress for mock jurors. Here is technology that could result in removing inherited and often deadly disease from ever developing. On the other hand, there are those who insist this technology will result in “designer babies” and that scientists cannot be trusted to behave ethically around such hot-button (and financially lucrative) issues. These are case themes that would result in strong feelings all the way around. Yet, there was collaboration amongst the scientists and we think our mock jurors would say they should simply share the wealth. And then there are those who are adamantly opposed to ownership of genetic technology…

Even in dry and often esoteric and confusing cases, ultimately the story is always about people. In this case it is the scientists on both sides of this dispute, and their respective compelling personal stories. This is one we will continue to follow, and we encourage you to follow the links in this post and educate yourself on the hope and the drama this high-tech invention is prompting.

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liberal-vs-conservative 2016It’s a basic tenet of the reptile theory that you want to frighten your jurors to make them vote for your client in deliberation. [The ABA has put out an open-access primer on the reptile theory and you can see that here.] It is also been shown repeatedly that conservatives are more fearful than liberals, but now we have research telling us that if you terrify a liberal, they think more like conservatives. We’ve seen the results of fear in multiple pretrial research with mock jurors but we do not think the reptile theory particularly original. It seems to be an adept repackaging of the terror management theory but it is certainly marketed persuasively as the “only way to win”.

So, on to today’s research. Researchers from the UK analyzed data from two nationally representative surveys (completed about 6 weeks before and about a month after the July 7, 2005 bombings in London). As a reminder, in the bombings in London, the bombs went off on the public transport system. The explosion led to the death of 52 people and injuries to 770 and were part of an Al Qaeda attack carried out by several Britain-born Muslims and a Jamaican Muslim immigrant. (In the event you wonder why this is only being published now, the data just recently became available.)

The researchers looked at questions that represented “four moral foundations”:

In-group loyalty (“I feel loyal to Britain despite any faults it may have”)

Authority-respect (“I think people should follow rules at all times, even when no one is watching”)

Harm-care (“I want everyone to be treated justly, even people I don’t know. It is important for me to protect the weak in society.”)

Fairness-reciprocity (“There should be equality for all groups in Britain”)

Then they looked at the level of agreement with this statement on Muslims (“Britain would lose its identify if more Muslims came to live in Britain”) and this statement about immigrants (“Government spends too much money assisting immigrants”). They wondered if beliefs about Muslims and immigrants would be more negative following the terror bombings and….attitudes were more negative.

However, attitudes were not more negative for everyone! Only liberals attitudes became more negative while conservatives attitudes remained about the same. The researchers believe the liberals were “terrified” and thus more negativity was reported directed at Muslims and immigrants and they wonder if when conservatives experience terror—does it work to consolidate their perspective and make them more resistant to change?

In other words, conservatives hunkered down in their pre-existing beliefs and liberals rushed to join them. The authors make this comment about implications for their research:

“For people working to tackle prejudice, it is important to be aware that terror events may have different effects on the attitudes of people who start from different political orientations. Among people who tend to be conservative, such events may consolidate their existing priorities, making them resistant to change. Among people who tend to be liberal, the same events may prompt a shift in their priorities and propel them toward more prejudiced attitudes.”

It’s an interesting finding when considering the reptile approach since it would support long-standing terror management theory beliefs that say when you are threatened, you seek safety. Apparently, for liberal Brits, safety was found in numbers among their own kind (and conservative Brits were more “like the” liberal Brits than were the terrorist Muslim immigrants). So, let’s say opposing counsel has frightened your jurors to death (metaphorically speaking). What can you do to (quickly) help them feel safe again?

While we feel a need to make clear that we have never tried any of these in the aftermath of a terrorist attack, here are a couple of strategies you can employ to counteract the reptile approach.

Ultimately, we still like this strategy (blogged about earlier) to counteract the fear purposely instilled by the litigator employing the reptile approach—we even called it the anti-reptile theory and have used it to good effect at trial.

Our colleague Ken Broda-Bahm also wrote an article in The Jury Expert on the Defense approach to the reptile theory at trial.

Van de Vyver, J., Houston, D., Abrams, D., & Vasiljevic, M. (2015). Boosting Belligerence: How the July 7, 2005, London Bombings Affected Liberals Moral Foundations and Prejudice Psychological Science DOI: 10.1177/0956797615615584

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multiracial 2016We began to see an increase in mock  jurors endorsing multiple racial categories perhaps 10 years ago, and modified our questionnaires to make it easier for them to express that view. We’ve had jurors list as many as half a dozen racial categories and have had mock jurors whom we would describe as multiracial describe themselves as White (in one case due to extreme anger at the juror’s African-American mother who had abandoned the family). It’s been an issue we’ve thought about a lot but apparently we haven’t thought about it as carefully as has Pew Research Center.

Regular readers know we think highly of Pew Research and their work to measure and document changing social norms but this time they’ve done something pretty amazing. Pew now gives us six different ways to measure racial identity or the concept of being “multiracial”. It’s a fascinating comparison since each method of measuring seems to result in slightly different answers. If you ask about the individual, for example, you may get one answer, but if you ask about the racial identity of the individual’s parents or grandparents you may get a different racial category than the individual uses to describe their own race.

According to the Pew report, the most common way to measure racial identity is to simply ask a respondent to “select one or more races, with a separate question measuring Hispanic ethnicity”. From this question, the Pew estimates 3.7% of Americans are mixed race (which they define as self-selecting two or more races).

However, then they looked at multiple other ways to identify race in survey respondents. First they examined a question being considered for the 2020 census which does not list Hispanic origin separately. The question will simply be “mark one or more” and when using this format, Pew says 4.8% of adults indicate they are multiracial.

The next strategy is to also ask about the race and ethnicity of parents. With this method, the share of those reporting a multiracial background jumped to 10.8%! Then Pew looked at adding in grandparents race and ethnicity by asking if “any of their grandparents were ‘some other race or origin’ than their own” and the proportion leapt to 16.6%. (Pew goes into detail explaining why they believe this number overestimates the multiracial population due to the follow-up questions.)

The fifth strategy is to give respondents ten “identity points” and ask them to allocate the points across different racial and ethnic categories as they see fit. In Pew’s exploration of this method (developed by UC Berkeley political scientist Taeku Lee) “some 12.7% of adults gave points to two or more races”. And finally, Pew asked people directly, “Do you consider yourself to be mixed race; that is, belonging to more than one racial group?”. Using this strategy, 12.0% of adults identified themselves as multiracial.

Based on all these ways of measuring racial identity, Pew revised their estimate of the percentage of Americans who self-represent as being multiracial from 3.7% to 6.9% and they indicate that if great-grandparents and earlier ancestors racial identity been taken into account, their estimate would rise to 13.1%.

It’s a long ways from 3.7% to 13.1% and it speaks to the changing demographics of our society (or perhaps to the increased comfort in acknowledging being multiracial). And it may speak of some delicacy about the issue of race. It seems possible that we are seeing a contrast between what someone’s ethnicity is by history, and how they view themselves culturally and ethnically today.

As jurors, if race is a factor (either because of the issues in dispute or by sheer coincidence) does it matter more that a person derives their genetics from one or more racial groups, or that they identify with a particular racial group? It’s a valuable piece of work for us since we always take a look at whether racial identity is tied to ultimate verdict (even though it infrequently is related). Our own belief is that we want to keep up with changing ideas and attitudes in the country as we craft our pretrial research questionnaires and Pew is terrific at helping us do that. Take a look at their new report.

Pew Research Center (November 6, 2015). Who is multiracial? Depends on how you ask: A comparison of six survey methods to capture racial identity. http://www.pewsocialtrends.org/2015/11/06/who-is-multiracial-depends-on-how-you-ask/

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