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Archive for the ‘Simple Jury Persuasion’ Category

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.

belief-in-science-scale

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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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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