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Archive for the ‘Simple Jury Persuasion’ Category

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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moralityHere’s a research finding that some might call a “silver bullet” for litigation advocacy. We are always looking for nuggets of wisdom in research findings and this is one we think makes a lot of sense for use in court.

These researchers wanted to see if people could “be induced to view their own attitudes as grounded in moral bases”. And what they found was pretty powerful. Across three experiments, people who were told their attitudes seemed to be based in morality were much more resistant to changing those attitudes when pressed to do so.

In the first experiment, 138 college students (undergrads from Ohio State) read an essay supporting the adoption of a “senior comprehensive exam policy” at their university and were asked to provide their reactions to the essay. Then, regardless of the reasons the student gave, the researchers told them their beliefs appeared to be based on “morality, tradition, or equality”. Then they were asked to rate their willingness to sign a petition in favor of the new policy and whether they would vote for or against the new comprehensive exam policy.

The students who were told their views on the exam policy were based on morality were more likely to predict a willingness to sign the petition than students told their views were based on equality or tradition.

The second experiment involved attitudes about recycling. Participants (73 undergraduates at Ohio State University) read a statement in favor of recycling and then expressed their reactions to the researchers. Much like in the first experiment, the researchers then told participants what their attitudes were grounded in, and this time they were told their attitudes were based in either morality or the “practicality of recycling”. Almost all of the participants had positive attitudes, so the researchers had them read an anti-recycling argument and then measured attitudes again.

Those who were told their views on recycling were based on morality were less likely to change their minds than those who were told their views were based on practical concerns.

The third experiment used an online sample of 100 community adults rather than college students (54% male, 46% female, average age 39.23 years) and again focused on recycling (telling participants their views either represented a moral grounding or a practicality basis for recycling). As with the earlier work with undergraduates, most of the participants were positive about recycling. They were then presented with the anti-recycling message and their attitudes were assessed again.

As with student samples, these community adults were less likely to change their attitudes on recycling after the anti-recycling message if they’d been told their views were based in morality rather than practicality.

The researchers were surprised at just how easy it was to modify people’s opinions/attitudes by simply telling them (whether it was true or not) that their attitude was based in morality. They close their article this way:

“Political figures, advocacy groups, and advertising agencies could feasibly utilize these findings to encourage strong attitudes. For example, political candidates who guide voters to view their attitudes as morally based could effectively instill relatively firm, unchanging attitudes in their constituencies.”

From a litigation advocacy perspective, this is powerful stuff (if it is actually true). While you do not want to beat a constant morality-morality-morality drum in your case narrative, incorporating this interpretation into witness testimony (“For me, it was a moral issue”) and closing statements (“When all is said and done, this comes down to a moral issue…”) could be an effective way to lock in “your jurors” so they advocate strongly in deliberations. We’d recommend testing it in pretrial research to make sure it works the way you think it will though.

Luttrell, A., Petty, R., Briñol, P., & Wagner, B. (2016). Making it moral: Merely labeling an attitude as moral increases its strength. Journal of Experimental Social Psychology, 65, 82-93 DOI: 10.1016/j.jesp.2016.04.003

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mike-nicholsBecause I am away from home so much, I have my DVR set to record episodes of PBS’ American Masters series. I like history and biographies so this is meant to fill that interest and not aimed at trial consulting per se. Yet sometimes the nexus is a wonderful surprise. Recently, as I watched the American Masters episode featuring Mike Nichols—I was intrigued when I realized this master storyteller had valuable lessons for us on case narrative.

First, the documentary has been described as “obsessively loving” and it truly shows how much those who worked with Mike Nichols absolutely adored him. Produced by his former creative partner Elaine May, it is both insightful and beautiful. He didn’t always hit home runs with his films, but when he did make a winner, he really did! Consider The Graduate, Who’s Afraid of Virginia Woolf, Catch-22, Carnal Knowledge, and Charlie Wilson’s War. If your tastes run to theater, he is the director who first brought to the stage Barefoot in the Park, The Odd Couple, Plaza Suite, Streamers, and Annie. It makes me tired to even read the list of his accomplishments.

Here are just a few of the gems in this documentary which allows Nichols to tell the story of his life and how he honed his craft. In explaining his approach to writing and directing, he said that many choices relate to a very simple but critical question that he poses to himself, as an advocate for the audience:

“Why are you telling me this?”

His primary area was comedy, and in that context he says there are two answers. First, he says, an answer to this question can be “Because it is funny.” But the second answer, in addition to the first (not instead of it) is “Because this is about you.”

I don’t think most people would react to this simple exchange the way I did (pausing the show, replaying it in my mind, rewinding, watching it again, and pausing once again to think about it). He went on to say that he realized over time that he makes films about the “human experience” and often it was only in “looking back” on the experience of making a film and directing characters to tell the story that he would find himself realizing—“I know that guy! Wait, I am that guy!”. His final comment on this theme was that the goal was to get the listener to ponder the same questions as the writer or speaker does in creating a narrative.

“Do you also…”

“Have you felt…”

“How do you make sense of that?”

“Do you know what that is like?”

From a litigation advocacy perspective, we would say Mike Nichols tried to incorporate “universal values” into his films. It’s a theme we often talk to clients about—how to tell your story so it reflects back shared societal values to the listener. Ultimately, every story (on stage, screen or courtroom) succeeds no better than the director (that is you, counselor) is able to build a connection between the facts—or the significance of the facts—with what is important to the audience. In work with clients I have framed Nichols’ question differently, but with a very similar intent. I have spent countless hours brainstorming how the facts of a trial story answer the question “Why should a jury care about this?” The correlate of the first answer Nichols offered varies somewhat depending on the case.

In a personal injury case that is easy for jurors to relate to, the connection is easier to imagine. In a complex commercial case or an intellectual property case, litigators often overlook the question altogether. If the story necessarily involves engineering or technical matters clearly beyond their capacity to understand, jurors always wonder what the point of the testimony is, since they really can’t make a lot of sense of it. In post-trial interviews, it isn’t unusual for jurors to comment that the 3 days of testimony on arcane accounting relating to damages was a total loss, or that the ‘death march’ through the prove-up of patent claims and prior art was pointless. The ‘director’ failed Nichols’ test for those jurors.

The missing link is that the jurors weren’t told why it is important. The “why are you telling me this?” question was not answered for them. The answer is that the story needs to be told on two levels— at 10,000 feet for the jury to fully appreciate, and at the granular level for later review by courts of appeals. So you tell the story in two languages: ‘common sense’ and ‘science’. You tell them that’s what you’ll be doing, you do it (linking the common sense they understand as the translation of what the science means), you re-state the connection, and move to the next issue, where you do it once again. Afterwards, the jurors are more likely to say “I get why she told it two ways, but I sure prefer the easy way.”

But the second answer is paramount. If they accept the answer to the first question (it needs to include the technical for completeness, and I will build the bridge between that and what you already know), they will be more open to the answer to the second. And the second answer (“Because it is about you”) has to do with connecting the evidence to what is meaningful to the jurors.

Every trial is about personal rights and property. I should be able to do X without being hurt. we should be able to have control of our land, our activity, our inventions, our ideas, our future, our health and well-being. I have a right to be free, to keep others from mistreating me, to exercise my freedom to do XYZ, and no one has a right to cause me suffering.

It applies equally well to complex commercial cases as it does to personal injury or Oscar-winning films. Everyone wants their rights protected. In an intellectual property suit, Plaintiffs typically are accusing Defendants of theft (of trade secrets, identity, invention, et cetera.). As a value, it often resonates well. After all, who wants their stuff stolen?

But the same theme is fair game for Defendants, as well. Because if the Plaintiffs are over-reaching in their claims which are alternatively public domain, they aren’t stealing from the Defendant, they are stealing from everyone—the Defendant, yes, but also from the world of innovators, from the marketplace, and from the jurors themselves. And that story can be told with equally credible passion.

Telling the story in a way that shows your client isn’t necessarily “like them” is still okay, if they see a connection between your client and what is important to them as individuals and as jurors. Let’s face it—the jury will never be fooled into thinking a patent holder with a PhD in genetics or computer engineering is “like me”, but the story can be told in a way that allows the jurors to see that “what is important to [your client] is the same as what is important to me”.

We’ve seen the same strategies used with corporations when attorneys will talk about the organizational commitment to volunteerism and community involvement. How is this company making its community better? What values of mine does this company share? Do I find company representatives likable and credible? Are company representatives the sort of people I would like to work with or enjoy spending my work hours around?

We very much agree with Mike Nichols’ comments about his work and how he learned the importance of telling a good story. After all, everyone loves a story that could be about them. We don’t know if every filmmaker knows these things or not—but after watching this documentary, it was pretty easy to see why everyone who worked with Mike Nichols just adored him. If you can find this episode online somewhere—it is well worth watching. You can’t help but be shocked at just how many iconic films and plays were directed by Mike Nichols, and you will definitely learn a few things about telling a story in a way that invites the listener to identify and to believe.

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Simple Jury Persuasion: What would Jesus do? 

Wednesday, February 24, 2016
posted by Rita Handrich

WWJDA few years ago we were doing a mock trial in New York City and I saw a Rastafarian street vendor selling coffee cups with WWJD on them in block print. I thought it was odd and so looked more closely to find in teeny tiny letters under WWJD, it said “What would Jung do?”. I brought it back to Austin and took it to my favorite Jungian. So when I saw this article, I immediately thought of that event and the irrepressible grin on the face of that Jungian therapist when he saw the coffee cup. And then I thought I should blog about the new research article, since it’s a perfect example for our Simple Jury Persuasion series of posts.

The researchers (also coincidentally from New York) presented 555 Palestinians (half male and half female, between the ages of 12 and 18, and living in the West Bank and Gaza) with a classic ethical dilemma (the trolley problem). Essentially in this exercise, there is a runaway trolley careening down the street. If no one takes action, the trolley will plow into a group of five children and presumably will kill them. However, if an innocent bystander is pushed in front of the trolley, the trolley will kill the bystander and the children will be saved. Since trolleys would be atypical in the area, the researchers used the “lorry” (a large, heavy truck for transporting goods or troops) as their example rather than a trolley.

Being researchers however, there was a twist. All 555 participants were Muslim and so in one version of the thought experiment, the children in danger were all Muslims and in the second version, they were Jews. In both situations, the bystander was a Palestinian whose religion was not specified. The researcher asked them to consider how one ought to act—and then how they thought Allah would want people to act.

What the researcher was interested in was whether sharing a religious faith would make a difference in how the participants would solve this ethical dilemma. Dr. Ginges (the senior author) thought he would test a common theory that religions promote violence because it leads believers to denigrate those who believe differently or not at all. He figured (and it makes sense to us as well) that if this theory were true, the Palestinian territories would be a good place to test it.

Here is what he found:

What would you do? When simply asked to think about what they would do in the trolley dilemma,

55% said the religion of the children in danger would make no difference in their behavior

42% said they would be more likely to save fellow Muslims than Jewish children

3% said they would be more likely to save Jewish children than their fellow Muslims.

What would God (in this case, Allah) want you to do? And when asked to consider how Allah would want them to act, the pattern intensified.

66% said the religion of the children in danger would have no impact o their behavior, and

30% would be more likely to save the Muslim children.

The researchers say that in this example, religious beliefs (i.e., thinking from the perspective of what Allah would want them to do) decreased bias towards others with differing religious beliefs. In other words, when asked what Allah would want to have done—participants thought Allah would want them to value all the children’s lives more equally (regardless of whether the children were Jewish or Muslim). The researchers point out that these findings are not always what one finds when exploring religious conflicts and more work needs to be done. However, they do say that their findings show religion is not always promoting intergroup conflict or violence.

From a litigation advocacy perspective, it would feel extremely risky—even if the court would permit it—to could ask jurors (in closing statements) to think about what their God would want them to do—but we think this research calls out for one of our favorite strategies.

Ask jurors to look inside themselves and think about the very best “them” there is—the highest expression of who they are—who they strive to be—and to then think if skin color (or religious belief, country of origin, sexual orientation, political perspective, or other hot button issue) should make a difference in their judgment.

Ginges J, Sheikh H, Atran S, & Argo N (2016). Thinking from God’s perspective decreases biased valuation of the life of a nonbeliever. Proceedings of the National Academy of Sciences of the United States of America, 113 (2), 316-9 PMID: 26711991

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Our top ten blog posts of 2015 

Monday, February 15, 2016
posted by Douglas Keene

top 10 2015Here are our top ten blog posts of 2015—as chosen by our readers. This is not necessarily the top 10 we would have chosen out of our 2015 writing but, it is the top 10 you have chosen. Take a look to see what our readers especially enjoyed.

 

The Witness Credibility Scale. The Witness Credibility Scale was developed by Stan Brodsky and his then-students at the University of Alabama. If you don’t recognize his name, trust us on this one: the fact that this scale was developed by Stan Brodsky makes it worth careful consideration.

Female Serial Killers: Who they are and how they kill. Women stalk. Women also kill. In fact, it is believed that about 16% of serial killers (about 1 in 6) are female. Although it is hard for many to see women as capable of extreme crimes like murder, the researchers whose work we feature today have no such illusions. [If you can’t wrap your brain around that notion, we suggest you spend an evening alone in your house with all of the lights turned down, and watch the film Monster, an account of the convicted female serial killer Aileen Wuornos.]

Nomophobia: What happens when you are without your smartphone. Nomophobia is considered “a 21st century disorder resulting from new technologies” and even has an entry in the Urban Dictionary which is suitably brief so as to more succinctly illustrate the horror that is nomophobia: Fear of being away from a mobile phone. “That guy has serious nomophobia.” Technically, nomophobia refers a fear of being unable to communicate via a mobile phone or via the internet.

The Personal Sense of Power Scale. Essentially, this is an 8-item measure you can use to determine the sense of personal power an individual believes they have. And even if you have no intention of making use of the scale, you can look at it to understand what researchers identify as the characteristics of personal power.

Cognitive biases: A pictorial primer. You may have seen the Wikipedia page devoted to cognitive biases but here’s something novel: a pictorial representation of 20 common cognitive biases that you can print out on a single 8.5×11 page of paper. And it’s published in an unexpected place: The Business Insider website.

Simple Jury Persuasion: Who is more likely to be convinced of the highly unusual? This is a new and somewhat unusual perspective on persuasion. If you have an unusual explanation for your client’s behavior or motivations—is there a way to know which potential juror might be more predisposed to accept that unusual explanation? According to today’s research…maybe so.

The Dirty Dozen Scale. This is not a scale to help you determine if your fruits and vegetables are dirty. This is for a different kind of dirt commonly referred to as the dark triad. Psychopathy, narcissism and Machiavellianism make up the dark triad of personality traits and they are traits we all want to identify at different points in time. You might think of the dark triad as ubiquitous in the truly “bad boy” to whom many are drawn (for brief periods).

Simple Jury Persuasion: Hey, look over here for a second! This is sort of scary research. We all like to think our views on moral issues are pretty consistent and not easily shaken. That would be incorrect. They are not consistent and they are easily shaken. At least these are the conclusions reached by this research.

Why does Adam Benforado gotta be so mean? I have not read Adam’s book. I have only read reviews of it and many of them are good although the book has not yet been released. The book was brought to my attention by trial consultants who saw early reviews and were disturbed by it. It was hard for me to believe that such a champion of the intersection between psychology and the law would trash the trial consulting profession as a whole with only one unattributed quote from a trial consultant who apparently speaks (in Benforado’s mind) for the profession. So I went to the Amazon webpage of the book which allowed me to peer at the book’s index and then review the pages about trial consulting (pages 249-256). Oh, Adam. I am so disappointed.

Psychopaths cannot understand punishment: What does that mean for the courtroom? There actually are researchers who would say that because the brains of psychopaths are abnormal—they should not be punished for their behavior. Today’s spotlight is on an article which is of that ilk. These researchers say “one in five violent offenders is a psychopath”. That number is not really surprising since prevalence rates for psychopathy have been estimated at 15% to 25% of the male offender population. The researchers continue by saying psychopaths have higher rates of recidivism and do not seem to benefit from rehabilitation. The researchers say they know “why” this happens and they hope their work will improve childhood interventions to prevent or at least decrease violent behaviors in those with psychopathy.

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