Most of us are familiar with the strategy of destroying a reputation with a barrage of nastiness. We all bemoan the ‘negative campaigning’ that is ramping up in this election year. But the problem is–it works. That is, “if you throw enough mud against the wall, something sticks”. And as it turns out, it doesn’t even have to be that much mud. New research from the realm of politics has something to teach us about addressing everything from pretrial publicity to opening statements. It’s a somewhat sad commentary on our tendency to “fill in” missing negative information. And a clear directive to pay attention to what we say and don’t say.

Researchers wanted to know how to go about diminishing those people who support universally held values (like wanting what is good for the environment) without being seen as directly attacking the value itself. Their belief was that political communicators “vilify their opponents as extremists in order to discredit their appeals to common values”. Further, they believe that “extremism is depicted as the error of turning a virtue into a vice through dogmatic, single-minded devotion”.

Through a series of experiments, the researchers discovered that simply labeling those on the other side as feminists or environmentalists created a significant backlash against the opposition. When the descriptor “radical” was added (i.e., radical feminists and radical environmentalists”), the negative reaction was stronger. When information on immigration was presented with the opposition being labeled as “extremist immigration lawyers and pressure groups”, participants again rejected the extremist group and supported those saying immigrants cost cities too much money.

The researchers believe this ‘extremist effect’ (i.e., calling someone an extremist) results in negative associations for the listener, and is especially effective in our current political environment.

“The extremist tactic is attuned to a political environment that features conflicting values and an ambivalent public unsure about what its priorities should be.”

We would agree that the current political environment makes this tendency worse–but the tendency is always present. There is a tendency to assume the worst in general, but particularly in litigation situations. The strategy of turning a virtue into a vice in public opinion is a powerful one that has easily transferrable strategy for the courtroom.

For example:

You are a snowmobiling association being sued by environmental groups to block access to public lands. You diminish their position by saying, “Sporting enthusiasts may not get to enjoy our national parks this winter because [radical] environmentalists care more about rabbits than the local economy”.

In other words, you do not attack directly and seem uncaring about the environment. Instead, you tar their position as extremist and tie your position to something positive–in this case, the local economy.

Nelson, T., Gwiasda, G., & Lyons, J. (2011). Vilification and Values. Political Psychology, 32 (5), 813-835 DOI: 10.1111/j.1467-9221.2011.00844.x

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“I know that’s what he said, but this is what he really meant…!”

From early sibling conflicts and on into adulthood, we know the power of innuendo. Now we have academic research findings that corroborate that childhood experience (especially for women). Researchers were curious about how hearing only positive information might still be construed negatively by the listener. They looked at the effect of describing a person when you leave out one of two key qualities that people tune into when judging others– warmth and competence. For example:

“Ryan seems like a fun-loving guy”. If Ryan applied to work in your workplace, how would you expect him to perform?

Or “Molly is very gifted, hard-working and passionate about her job”. If Molly were seated next to you at a social event, how much do you think you would enjoy socializing with her?

The researchers point out that the descriptions in the study contain only positive characteristics. Yet, we tend to interpret deficiencies when what we have heard is only a facet of the person.  There is a tendency to assume that the omitted description is also absent from the person being described. For instance, when only warmth information is expected, giving information on competence will lead to negative inferences on warmth (see Molly, above). They call this “the innuendo effect”.

To study it, they offered vignettes in which peers described a person in one of two contexts: social (a travel group) or work (an academic group). In other words, the descriptions addressed warmth or competence, but not both. They asked participants to imagine being in a group (either social or work-related) for a month and that their task was to choose an additional person to add to the group based on the descriptive vignettes. Some participants were given straight-forward competence descriptions for the work context and straight-forward warmth descriptions for the social context. Others (those in the innuendo condition) had descriptions reversed so that warmth descriptions were given for the work context and competence descriptions were given for the social context.

In the initial study, the researchers found that the innuendo effect was stronger than anticipated. Not only did participants assume negatives when the description was contextually mismatched, (i.e., warmth/work and competence/social) they also assumed negatives when the descriptions matched the context! If someone was described as competent in a work situation, participants assumed they were not warm. A follow-up study showed the innuendo effect was even stronger with female targets than males. That is, we assume the negative more when assessing females.

The main lesson we take from this research relates to the need to be careful of what we don’t say, in addition to what we do.  Overlooking a balancing quality of a person will leave people thinking that they lack the quality that is omitted.  This is particularly true when jurors are looking for character in witnesses or parties.  An executive is expected to be smart and hard working, but if you forget to mention that s/he also volunteers at the community food pantry, the jurors will see the witness as another selfish, career-obsessed person.  Conversely, if someone is a manual laborer (including homemakers), emphasizing their thoughtfulness and dedication will make them more credible and respected.

 
Kervyn, N., Bergsieker, H., & Fiske, S. (2012). The innuendo effect: Hearing the positive but inferring the negative. Journal of Experimental Social Psychology, 48, 77-85

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Growing older is not for sissies. ‘Some people’ have ‘senior moments’ and then tend to mock ourselves while we secretly worry that it signals the onset of dementia. Many trial lawyers avoid the older juror due to concerns about sleepiness, inability to track the evidence, or simply being checked out during the trial. It isn’t any more reasonable to do this than it is to strike women jurors from cases involving infidelity.

New research shows us that there are good reasons to seek out the older juror for jury service. People in their 20s and 30s tend to behave more impulsively without the benefit of planning. They are often better at making decisions involving short term benefit. Conversely, people who are 60 years of age and above are better at making decisions which will reward them in the long-term.

A feature story in Britain’s Daily Mall offers this description of one of the experiments:

“About 50 men and women aged 67-82 and a group of 50 aged 20-36 were asked to store oxygen on a virtual mission to Mars. They could choose between an option which increased rewards in future trials, and one which decreased future rewards but offered a larger immediate one. In each case, older participants outperformed the rival group by figuring out which option led to the most long-term rewards.

University of Texas professor of psychology Todd Maddox added: ‘Broadly, these results suggest that younger adults may behave more impulsively, favoring immediate gains, while older adults are better at considering the long-term ramifications of their actions.

‘We found that younger adults performed equivalently in the experiment, but older adults were more adept at adjusting their strategy to fit the goals of the task.’”

Obviously, you will need to have older adults on a jury who can be leaders in order for their long-term perspectives to be heard and adopted. The good news is there are sound, logical reasons to consider older adults for your jury.

 We made the ABA Blawg 100 list for the second year! Please take a minute to vote for us HERE under the Trial Practice category.

Worthy DA, Gorlick MA, Pacheco JL, Schnyer DM, & Maddox WT (2011). With Age Comes Wisdom: Decision Making in Younger and Older Adults. Psychological Science. PMID: 21960248

Image taken by Doug Keene on a recent vacation in Scotland.

We are sophisticated decision-makers. As jurors, we consider the whole of the evidence with a lifetime of maturity and experience incorporated into our contemplation. Or not.

Remember those old psychology studies about whether a short squat glass of liquid was ‘less than’ a tall narrow glass of liquid? [The glasses usually held the same volume, but tall glass always seemed like more]  As it turns out we still have trouble with that concept as adults–thinking we drink more from tall thin glasses than from short squat ones when the opposite is true. We take our cue from the height of the liquid rather than the width of the glass! Consider how this can affect how you design demonstrative evidence (such as the shape of boards, the scales used on charts, and whether you want a concept to be maximized or minimized).

And we have other more childlike ways of evaluating evidence. Want to persuade someone to your point of view with a boatload of evidence? It won’t help you to haul it in on a big wagon and show it to them all at once. They don’t process it en masse. It’s best to show them one piece of evidence at a time because when you do that (rather than showing them the entire collection at once), people tend to see the evidence as stronger.

A terrific article in Scientific American succinctly describes the experiment researchers performed:

“In their study, people looked at a display on a computer screen. At the bottom of the screen was a little pond connected to two big lakes. The pond contained three fish – say, two white ones and one black one. Then the two big lakes were filled with different proportions of white, black, and yellow fish. People looked at the lakes and the pond, and used a sliding scale to judge the probability that the fish in the pond came from Lake 1 or Lake 2. Sometimes there was strong evidence, or a high probability, that the fish were from Lake 1 (Lake 1 had mostly white fish, and some black fish, like the pond). Sometimes it was weak evidence, or a low probability, that fish were from Lake 1. Also, sometimes the fish in the lakes were added in sequence: all the white fish appeared, then the black ones, then the yellow ones. Other times, all the fish were added all at once. When the fish were added one at a time, people perceived the evidence to be stronger.”

While it may have been more fun had the researchers followed Dr. Seuss and made the fish red and blue, they made the point well. In a bit more ‘academic’ turn of phrase, the researchers summarize:

“In our data, the effect of gradual evidence accumulation was present regardless of whether the evidence favored the focal hypothesis or favored its alternative. If gradually accumulated, evidence supporting the focal hypothesis was seen to support it more strongly, while evidence supporting the alternative was seen to refute the focal hypothesis more strongly.”

In other words, no matter what side you are on, presenting evidence is more effective if you do it progressively. Relentlessly. As if to give the impression that the chain of proof might keep going on forever. Your arguments will be more persuasive. So how do we apply this to litigation advocacy?

Whether you are plaintiff, prosecutor or defense: you want to present your pieces of evidence in discrete pieces– one at a time.

Consider the tried and true method of ‘building’ an exhibit board of accumulating evidence where various visual representations of key facts are affixed as you introduce them.

The important thing is that you show evidence accumulating over time until the sheer volume of evidence appears quite large. When it comes to evaluating evidence, most of us simply think: more is more.

Whitman JC, & Woodward TS (2011). Evidence affects hypothesis judgments more if accumulated gradually than if presented instantaneously. Psychonomic Bulletin & Review, 18 (6), 1156-65 PMID: 21822566

With a nod to: Douglas Adams.

We made the ABA Blawg 100 list for the second year! Please take a minute to vote for us HERE under the Trial Practice category. 

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