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Archive for the ‘Simple Jury Persuasion’ Category

It is hard to believe that more than two decades have passed since the controversial Time magazine cover featuring OJ Simpson with his skin intentionally darkened was distributed. It was published in 1994 and people were so upset that the magazine’s managing editor issued a public apology for publishing the cover photo. Today, we are covering very recent research that tells us the exact same thing is still going on in a wide variety of publications.

The researchers looked at stories on both celebrities and politicians and found that when the story content was positive, the skin tone on the photos was lighter and when story content was negative, the skin tone on the photos was darker. And this was true regardless of race or gender—darker toned photos were used when the content of the story was negative. The researchers believe there is a pervasive belief that darkness and badness go together. And, in truth, psychology researchers have known this for years. But, say the researchers, this is the first time the reverse has been proven in research: when we hear about an evil act—we assume it was more likely committed by someone with darker skin.

The researchers describe the theoretical background for their work as the “black is bad” literature (the historical associations of darkness with negativity and lightness with positivity). The researchers cite multiple examples of this effect. For example, they point to research that says those who believed Barack Obama’s likeness was best captured in “artificially darkened photos” both evaluated him more negatively and were less likely to have voted for him in the 2008 election. Another example (among many) was that when professional sports teams athletes wore black uniforms, spectators perceived they were behaving more aggressively and referees responded more harshly with penalties.

So, knowing the long history of “black is bad”, the researchers wanted to see if “bad is black”—in other words, “Do people represent actors who commit wrongful acts as having darker skin than actors who commit conspicuously moral acts?”. And, to cut to the chase, the answer is a resounding Yes.

Here are some of their findings:

Across 6 studies, they found people described a person’s skin tone as darker when a morally bad act was committed than when a morally good act was committed.

The “bad is black” effect was associated more strongly with those who reported negative biases against dark-skinned minority groups or those who held beliefs pairing darkness with badness.

Interestingly, both groups displayed bias: the group who strongly associated darkness with negativity show the “bad is black” effect, while those low in a tendency to associate darkness with negativity display the “good is black” effect.

The researchers say it is important for us to understand how the “bad is black” effect emerges so we can sort out how to disrupt it. They express a concern for eye-witness identification (especially the problem-prone area of cross-racial identification). It is certainly possible that an eye-witness could “misremember” the perpetrator as having darker skin and therefore choosing innocent darker skinned people from a line-up rather than the guilty lighter-skinned alternatives.

From a litigation advocacy perspective, this is another point on which you may want to educate jurors with regard to the accuracy of eye-witness identification. However, it is also a point to be aware of for crafting case narrative. The researchers found that “regardless of race or gender” people with darker skins were seen as more guilty whether they were guilty or not. If one of the parties (regardless of race or gender) has darker skin, jurors are more likely to see that party as “bad” in whatever form that may take in your trial.

Alter, A., Stern, C., Granot, Y., & Balcetis, E. (2016). The “Bad Is Black” Effect Personality and Social Psychology Bulletin, 42 (12), 1653-1665 DOI: 10.1177/0146167216669123


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Disinformation is everywhere you turn these days, so we need good tools to debunk those “alternative facts”. Last year we wrote about a strategy to combat distrust of science by using the concept of the “gateway belief”. While that paper received criticism from a well-known law professor, over at the Cultural Cognition blog, the same research team has come back with a new paper wherein they obliquely mention the criticism and then dismiss it in favor of writing about their new research. They are (again) writing about disinformation on climate change but rather than just using the gateway belief (97% of scientists agree climate change due to human activity is a thing) to persuade, they recommend two strategies based on new research.

The authors (an international group from the UK, Yale, and George Mason) have described their work so (instead of repeating it here) here’s a link where you can see their description of what they did and even download the full paper if you like. We will focus here on their two strategies and tell you that they showed participants either the 97% consensus graphic or the Oregon Global Warming Petition Project (a well-known climate change denial project).

The researchers thought that the 97% consensus graphic would increase belief in climate change and the Oregon Global Warning Petition Project would decrease belief in climate change. And they were right on both counts—but they were surprised by how powerful disinformation was—the disinformation cancelled out the accurate information so that there was no net effect of providing accurate information. So, being scientists, they wondered about a “vaccine” of sorts to minimize the impact of disinformation like that contained in the Oregon Petition Project.

They found two of them—one easy and one more complicated but also more potent. The important thing is to deliver the “inoculation” with the legitimate facts and this will disarm the potency of the disinformation.

Strategy 1: Say this: “Some politically-motivated groups use misleading tactics to try to convince the public that there is a lot of disagreement among scientists”.

This general inoculation resulted in participants moving 6.5% toward acceptance of the climate science consensus (despite a followup exposure to fake news). In other words, the fake news “rebuttal” did not work to swing opinions back. Participants were more alert to being misled.

Strategy 2: In this study, the disinformation was the Oregon petition and so they used a detailed inoculation to discredit the petition (after making the Strategy 1 statement). For example, they highlighted signatures that were fraudulent (e.g., Charles Darwin and members of the Spice Girls band) and the fact that less than 1% of those signing the petition even had backgrounds in climate science.

This detailed inoculation (when added to the general inoculation) resulted in almost 13% increases in the general acceptance of climate change (despite a followup exposure to fake news). Again, the fake news “rebuttal” not only did not work but worked even less well than with the general inoculation alone. In other words, much like a recent recommendation from the Poynter journalism group, it isn’t always enough to say it isn’t true, sometimes you need to show them why and how it isn’t true. And that requires more time, and sustained attention.

The researchers comment that tobacco and fossil fuel companies have used these sorts of psychological inoculation strategies in the past to sow seeds of doubt and undermine scientific consensus in the minds of the public. They think this research tells us that the impact of disinformation can be at least “partially reduced” with this approach.

From time to time, every litigator is confronted with a situation in which it is crucial to educate jurors on the disinformation that may be used (as well as giving them information on typical strategies used to undermine accurate information). Then, when they hear the common strategies presented by opposing counsel, they can spot it quickly, and rest assured they have not been fooled. The researchers comment that this strategy works well in our politically polarized society. We think that makes sense but, as always, test it in pretrial research before you roll it out at trial!

Full text is available here.

van der Linden, S., Leiserowitz, A., Rosenthal, S., & Maibach, E. (2017). Inoculating the Public against Misinformation about Climate Change Global Challenges DOI: 10.1002/gch2.201600008


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You may have seen our blog post where we talk about research that informs us in patent work to either allow jurors to examine a disputed invention up close or to simply have them view it from a distance. Which strategy we recommend you use all depends on the evidence and your specific case. Today, we have another one of those sorts of research articles that we think gives insight into a way to persuade unobtrusively by using the hands of your expert witness.

In brief, these researchers examined ways “interacting with our world” changes how we think. They asked research participants to figure out how to group 17 zebras into 4 pens and still have an odd number of zebras in each pen. They had some participants use iPads (the modern-day equivalent of pen and paper) while others were given objects with which to represent pens in which they corralled 17 small plastic zebras.

While the iPad users were unable to solve the puzzle, those who were given a chance to manipulate the small objects with their hands were able to successfully solve the problem. (The solution involves overlapping pens—like those Venn diagrams you were exposed to in high school algebra.)

The researchers explain the results by saying that the idea that problem-solving occurs in our heads, is simply incorrect. For some types of problems, we need the benefit of manipulating objects with our hands to successfully identify solutions.

There was another thing mentioned in this article we found of particular interest. We have always found creative people can sometimes make good jurors in patent or high technology cases because they are able to think outside the box and they understand the importance of intellectual property. In this study, the researchers found that creative participants were able to solve the problem faster than others when given manipulatives with which to attempt solutions.

The researchers think this approach (i.e., engaging with the material world) is “an enabling condition for conceptual change”. What that means is, when you are given objects (whether those are small zebras, or your fingers, or something else you can use to visualize) you are more able to make the creative leaps of inference necessary to solve problems that seem impossible to resolve.

So, here is a creative leap of our own.

Consider using a document camera (like an Elmo), or a magnetic board with movable pieces in the courtroom to have your witness or inventor demonstrate how s/he solved an heretofore impossible problem.

When you are encouraging jurors to be creative, you don’t know where that creativity will take them. The uncertainty makes the strategy feel very risky, and most trial lawyers will opt to go with an approach that involves asserting a position and providing evidence that supports it.

But research strongly informs us that if a person ‘discovers’ a truth through their own internal process, they ‘own’ it much more strongly. If you test an ‘aha!’ approach to presenting the science in a focus group or mock trial you can gauge what jurors do with it, and decide whether it is fruitful for your case and your client.

Jurors in patent and high technology cases are always hungry for the “creative spark of inspiration” that resulted in an invention and if they can “see it” through the inventors’ hands—it would be interesting to see whether they would more strongly identify with the inventor’s position.

Vallée-Tourangeau F, Steffensen SV, Vallée-Tourangeau G, & Sirota M (2016). Insight with hands and things. Acta Psychologica, 170, 195-205 PMID: 27569687


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child-in-aweWhile you don’t want jurors to think your visual evidence was made by poorly trained technicians—here’s a study that tells us something counter-intuitive that you may find useful (we have).

It may not make obvious sense, but you also don’t want jurors to be blown away (i.e., awed, in wonder, overwhelmed by the majesty of your creation) by the videos you show them as you present a case which has scientific or heavily technical information in it.

For this to make sense to you, try to divide your hypothetical jurors into two groups: those with religious beliefs and those without religious beliefs.

When the religious are awed, they are less likely to believe in science as a credible way to understand the world.

When the non-religious are awed they are more inclined to believe in less credible scientific theories that emphasize order over randomness. [Huh?]

Researchers asked 127 undergraduate students to rate the strength of their religious beliefs, using these questions in the following areas [all based on past research]:

Continuous measures of belief in God (anchored at confident atheist and confident believer), belief in an immortal soul, familial religiosity during childhood, and change in belief in God since childhood (i.e., the degree to which the participant had become a more/less confident atheist/believer since childhood). There was also a binary forced-choice question asking whether participants had ever had an experience that convinced them of God’s existence.

Then, the participants were assigned to watch one of three five-minute videos: a neutral nature video, an awe-inducing clip (i.e., a 5-min montage of nature clips from the BBC’s Planet Earth, composed primarily of grand, panoramic shots of plains, mountains, space, and canyons), or a third clip meant to elicit amusement (a montage of comedic nature clips from the BBC’s Walk on the Wild Side).

After the videos, the participants then answered a 10-item “belief in science” scale, using 6 point Likert scales ranging from “strongly disagree” to “strongly disagree” (displayed below and taken from Farias et al., 2013).

You will note these are not questions we can ask in voir dire (at least in most courtrooms) so we are glad these researchers asked them not just once but over three separate studies with a total of 701 participants across the studies.


Across all three studies, the researchers concluded that while awe draws theists away from scientific explanations (and increases their receptiveness to supernatural explanations), their data only tentatively suggests that the opposite is also true— that awe drives the non-religiously inclined toward science. As the researchers put it:

Indeed, it seems that awe attracts non theists to scientific explanations to the extent that science is framed as explicitly providing order and explanation and eschewing the importance of randomness in the process…

From a litigation advocacy perspective, what this study tells us is that you want to pay attention to the videos you show jurors in a case where science and/or scientific explanations are involved. Shoot for ‘easy to watch’ and ‘informative’, rather than ‘blockbuster’. If your video inspires awe, you run the risk of the religious juror attributing the progress or process to supernatural powers (aka God), which may interfere with issues of human error or liability generally.

If you have a complex, science-related case, consider pretrial testing of visual evidence with jurors to see whether it is usefully informative, or whether it crosses in to “awesome blockbuster”.

Farias M, Newheiser AK, Kahane G, & de Toledo Z (2013). Scientific faith: Belief in science increases in the face of stress and existential anxiety. Journal of Experimental Social Psychology, 49 (6), 1210-1213 PMID: 24187384


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beyond-apologyGender stereotypes are powerful things and when your client has broken gender stereotypes and broken trust with others, they need to go beyond mere apology. First, a bit about what gender stereotypes are:

Women are expected to be benevolent and concerned about others while men are expected to be confident, competitive and independent. Go against those expectations and you can expect backlash and distrust.

The researchers give a concrete workplace example of how these gender stereotypes work differently for men and women.

In the workplace, if a woman violates trust while putting her own interests ahead of others, for example by being dishonest or not helping a co-worker, she will find regaining that lost trust much more challenging because she went against gender stereotypes. “Had she not broken gender stereotypes and instead just broke the trust by underperforming, she would have fared better,” said Harrison.

A man who fails to put others ahead of himself, however, will only face consequences for a breach of trust. That’s because men are not expected to help others. Lying or refusing to help a co-worker doesn’t affect those expectations. A man will also face the same double backlash if he performs poorly though. In this case, he will have violated the trust placed in him, but also will have gone against gender expectations that men are good performers.

It’s complicated—this gender role thing. And the researchers also speak to how repairing trust works differently for men than it does for women.

The research seems to show that if a man is trying to repair trust he should do it in a way that is consistent with expectations of what men should be. “One way is to apologize and take personal responsibility for what happened and not blame it on external factors,” said Harrison.

However, if a woman violates trust in a way that breaks gender stereotypes, she is better not to apologize, but deny responsibility or blame external factors.

The researchers say that if you just violate the trust of others but do not breach gender stereotypes at the same time—both men and women will find it easier to regain trust. They recommend organizations pay more attention to the complex relationship between gender and trust in conflict management and diversity training and they offer multiple examples of how both gender stereotypes and trust were broken during the 2016 presidential election campaign.

Their bottom-line recommendation to organizations is this:

In other words, a women’s lack of helping others or a man’s low performance shouldn’t be treated any more severely than if a woman shows low ability or a man puts his needs ahead of others.

Our gender stereotypes are so firmly entrenched that they are unconscious and we do not even realize we are punishing someone for violating gender stereotypes when we would treat a person of the other gender quite differently for the same behavior.

The authors also comment in the article that it is important as well to differentiate between violations of integrity and violations of ability expectations. (These recommendations are based on some research done in 2004 and 2006 finding that “trust repair is more likely when people apologize for ability-related violations and deny responsibility for integrity-related violations”.)

For violations of integrity, you will want to apologize and deny responsibility (i.e., make an external attribution). Women are likely to find these violations more difficult to recover from them men.

For violations of ability, you will want to apologize and accept responsibility (i.e., make an internal attribution). Men are likely to find these violations more difficult to recover from than women.

This article is meant as a working document to guide researchers working to integrate apology and gender stereotypes research. Here are a couple of examples they use from the current presidential election to illustrate the complicated relationship between gender stereotypes and apology.

“With the Hilary [sic] Clinton email scandal, her critics were claiming she put national security at risk for her own convenience, putting her own needs ahead of her responsibility as a public official. This is a clear example of breaking trust and gender expectations,” said Frawley.

Trump faced this double backlash when his critics pointed to a string of failed business ventures and his inability to raise campaign funds. “What these claims are trying to get at is that despite Trump’s reputation and his connections, he’s not performing so well at things that men traditionally are viewed at being good at,” said Frawley. “They were saying he can’t be trusted to perform well and has in fact misrepresented himself which plays into gender stereotypes.”

Take Melania Trump’s speech at the Republican Convention which plagiarized portions of a 2008 Michelle Obama speech. Trump claimed to have written it with “as little helps as possible,” but then a speechwriter took responsibility for accidentally using portion of Obama’s speech. “This is a clear case of Trump blaming external factors,” said Frawley.

Given the three examples above, it is intriguing to consider a fourth real-life example the researchers did not use from the presidential election campaign (perhaps because it happened after they were published).

Hillary Clinton initially said Colin Powell (the former Secretary of State) had told her it was okay to have her server at home (and this would be an example of an integrity violation for which you blame external factors). In this strategy, Hillary followed the rules for successful trust reparation after violating gender stereotypes and damaging trust. But Colin Powell did not back her up and said he’d never said any such thing.

So Hillary and her team apparently went back to the drawing board and she came back in the second debate of the 2016 election and apologized, taking personal responsibility for the error. (This would be a direct contradiction of the recommendations for a woman—she apologized for an integrity violation and took personal responsibility.) Her explanation for why this happened appears to be an attempt to reiterate her integrity and the lack of bad outcome for her error in judgment.

From a litigation advocacy perspective, this shift in strategy may be instructive. We often find during pretrial research that a strategy (like an apology) does not have the desired effect (e.g., mock jurors may find it glib or deceptive but certainly not believable) and so we will work to refine that strategy. Perhaps Hillary and her team did similar research (or they just read the papers and the internet) and decided they needed to be bold and throw gender expectations a curveball.

So she apologized for an integrity violation, accepted responsibility (rather than attributing it to an external cause), and then explained how she still was a person with integrity. While different from what is recommended by the apology research (and the research on gender stereotype violations) it seemed more honest and genuine and that may be a good thing.

Sometimes, you have to toss the rules when a strategy doesn’t work and surprise listeners with unexpected integrity.

Frawley, S., & Harrison, J. (2016). A social role perspective on trust repair Journal of Management Development, 35 (8), 1045-1055 DOI: 10.1108/JMD-10-2015-0149


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