Archive for the ‘Simple Jury Persuasion’ Category
Because 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.
A 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
Here 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.
We think these authors are trying to be amusing but they are very, very serious about their work and have even attracted the attention of someone they target in their article (Deepak Chopra). Essentially the authors focus on who falls prey to “profound pseudo-bullshit” and why. And that, is an important thing for us to know when it comes to litigation advocacy.
First the authors define what they call “pseudo-profound bullshit” as “consisting of seemingly impressive assertions that are presented as true and meaningful but are actually vacuous”. To study this concept, they presented participants with “bullshit statements” which used buzzwords randomly organized into statements with no discernible meaning (e.g., “Hidden meaning transforms unparalleled abstract beauty”). They asked participants (in four separate studies) to rate how “profound” their randomly generated phrases were. Here are the instructions participants in the first study read:
We are interested in how people experience the profound. Below are a series of statements taken from relevant websites. Please read each statement and take a moment to think about what it might mean. Then please rate how “profound” you think it is. Profound means “of deep meaning; of great and broadly inclusive significance”.
To illustrate the concept in the article, they use an actual tweet from Deepak Chopra (“Attention and intention are the mechanics of manifestation”) as an example of “real-world pseudo-profound bullshit and say that this sort of communication always includes vagueness and an attempt to impress rather than to inform. They reference the New Age Bullshit Generator website and the Wisdom of Chopra site (neither of which appear to be impressed by Deepak Chopra) and used these sites to design their own Bullshit Receptivity Scale which is not included in the article and varies from study to study (i.e., there is no specific scale to be found). To make a fairly lengthy article short, here is what they found as to just who is likely to “fall prey” to this form of pseudo-profundity.
“Those more receptive to bullshit are less reflective, lower in cognitive ability, more prone to ontological confusions and conspiratorial ideation, are more likely to hold religious and paranormal beliefs, and are more likely to endorse complementary and alternative medicine.”
Intriguingly (but perhaps not surprising), those who are not prone to pseudo-profundity are more cognitively analytical and skeptical toward paranormal phenomena.
The researchers also say that being gullible is a risk factor for pseudo-profound bullshit receptivity (and say the statements are like “Barnum statements” for the gullible)—while those who are more critical and analytical are less at risk for these sorts of pseudo-profound statements. Finally, they conclude the article by saying that “although this manuscript may not be truly profound, it is indeed meaningful”. You can read the entire article here as well as serious blog posts lauding the article here and here.
From a litigation advocacy perspective, what this article describes are those individuals likely to be victims of what WC Fields famously referred to when he said: “If you can’t dazzle them with brilliance, baffle them with bullshit.” Perhaps this blog post is especially timely during an election year…
During voir dire and jury selection, part of what you want to see are people who are analytical and skeptical if you don’t want to have folks on your jury who will be baffled and yet dazzled by nonsensical patter from opposing counsel.
On the other hand, if you are the one who will be attempting to baffle the jurors—you want to select people for the jury who are less reflective, not as smart, and prone to conspiratorial beliefs.
Pennycook, G, Cheyne, JA, Barr, N, Koehler, DJ, & Fugelsang, JA (2015). On the reception and detection of pseudo-profound bullshit. Judgment and Decision Making, 10 (6), 549-563 DOI: 10.3410/f.725974620.793511899