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Archive for the ‘Simple Jury Persuasion’ Category

highly unusual experiencesThis 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.

Researchers in France wanted to know if non-reflective thinkers (those who trust their initial intuition) would be more likely than reflective thinkers (those who use analytic reasoning to question their initial intuition) to believe an unusual or uncanny experience was the result of some supernatural explanation such as astrology or extra-sensory perception. They conducted three separate experiments to see if participants who appeared to have their minds read “through telepathy” by a fellow participant would see the experience differently based on whether they were reflective or non-reflective in their personal style.

Of course, you have likely already guessed that the “fellow participant” was not a participant at all but rather what researchers call a “confederate” who was able to “read” the actual participant’s mind and identify the cards the participant chose at random. (In truth, the experimenter could see the cards chosen and the confederate was cued about which card it was by the language the experimenter used to tell the confederate to focus on the “image” of the card the participant was “telepathically sending” to the confederate.) So the participant (either a reflective or a non-reflective thinker) was incredibly able to telepathically send the images of the cards to the confederate. And guess what? When asked how they explained their heightened ability to telepathically communicate, the reflective and non-reflective thinkers had varying explanations.

The reflective (analytical) thinkers thought it was a fluke and the non-reflective thinkers thought they were fabulous telepathic communicators.

The researchers comment that it is traditional to avoid implying one style of thinking (reflective versus non-reflective) is better than the other. When it comes to gullibility, these researchers clearly see reflective thinking as better than non reflective thinking.

“We showed that a single uncanny experience may be enough for non-reflective thinkers to seriously consider the possibility of supernatural causation. This makes them especially vulnerable to scammers who attempt to leverage paranormal beliefs into profits. A common trick, for example, consists of pretending to detect a paranormal ability in an individual, only to offer him or her an expensive training aimed at developing this potential. Individuals with a predominantly non-reflective cognitive style should be well warned against their own reaction to such and other encounters with the supernatural.”

From a litigation advocacy perspective, it makes sense that those who tend to be non-reflective (likely also known as being low in “need for cognition”) would be less likely to analyze or question your unusual conclusions since doing that takes a lot of mental energy. Need for cognition and those who are more cognitively (rather than emotionally) driven has been an area of interest in jury selection for years. You likely recall that old voir dire question that has been updated a bit recently from “Do you enjoy crossword puzzles?” to questions like “Do you enjoy Sudoku?” or “Do you enjoy solving complex problems?”. That question is meant to assess whether the potential jurors’ need for cognition is high or low—or, as these researchers label it, reflective versus non-reflective thinking. So who is easiest to persuade or influence? These researchers would say it is the non-reflective thinker. The question then becomes whether they are more likely to seize on your trial story to drive that rush to judgement, or the version offered by the opposition. A topic for several dozen other blog posts…

Bouvet R, & Bonnefon JF (2015). Non-Reflective Thinkers Are Predisposed to Attribute Supernatural Causation to Uncanny Experiences. Personality & Social Psychology Bulletin PMID: 25948700


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persuasionWe are always on the lookout for subtle but effective ways to persuade and here’s a new one. You are going to get more of what you want in any sort of negotiation if you use a very simple language style change. Instead of focusing on what the buyer stands to lose (in this case, $9,000), help them focus on what they will gain (your fabulous car).

If you are the seller, instead of saying, “I would like $9,000 for the car”, you say, “I will give you this car for $9,000”.

That simple change in language focus makes a huge difference to the buyer according to today’s research, and results in better outcomes consistently for the seller. But the seller isn’t the only winner with this language focus shift. It works for buyers too!

Instead of saying, as the buyer, “I would take the car for $9,000” (which makes the seller think of losing their beloved car), you say, “I will give you $9,000 for your car” (and the seller thinks of all that money).

It even works when the transaction you are attempting to negotiate does not involve money but rather, involves the trading of goods. The researchers had fourth grade children use this language in trading card transactions and found that those who said, “My Obi Wan against your Yoda” were more successful that those who said, “Your Yoda for my Obi Wan”. Again, placing the focus in your language on what the other party will receive will result in better outcomes for you consistently.

And here’s another tactic (this article is filled with useful tips!). Don’t lower your price immediately—instead try to add something to the offer—like a full tank of gas, winter tires, gentle cleaning fluid for the paint work. Again, the idea is to focus the person with whom you are negotiating on what they will get— not the money they will lose.

From a litigation advocacy perspective, consider the argument you make as a transaction of sorts with jurors. You are not asking for a damages award. You are giving them an opportunity to restore the losses your client has suffered. You are not asking them to send a plaintiff home empty-handed or send a defendant to prison, you are encouraging them to do what justice requires. And in every case, from every perspective, their vote is not for you, or your client— it is an affirmation of what they know in their hearts and minds is right.

Trötschel R, Loschelder DD, Höhne BP, & Majer JM (2015). Procedural frames in negotiations: how offering my resources versus requesting yours impacts perception, behavior, and outcomes. Journal of Personality and Social Psychology, 108 (3), 417-35 PMID: 25751716


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eye_gazeThis 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.

We’ve written before about on which side of the courtroom you want to place your exhibits (it’s on the left), but this is far above and beyond that. According to these researchers, you can actually change someone’s mind about an ethical issue by where you have them looking. And, this is the worst part: it takes less than a second! Here is what they did.

The researchers (from Sweden, the UK, and the University of California) had participants sit at computer screens and listen to 63 different statements taken from Moral Foundations Theory while the researchers measured the participant’s eye gaze. For example, statements like “Murder is sometimes justifiable” would play through their headphones and then two responses would be presented simultaneously on their computer screens: “sometimes justifiable” and “never justifiable”. The participants were told to “choose the alternative they considered morally right”. The researchers measured how long the participant looked at each alternative response and found the participant’s chose the response at which they gazed for a longer period of time.

So the researchers wanted to see if they could “make” the participants choose a specific answer by simply waiting until the participant had looked at the response identified by the researchers as the “target” response longer than the alternate response on their screen. They recruited new participants for two additional experiments and sure enough.

By monitoring eye gaze and requiring a decision from the participant as soon as they had looked at the target response longer than the non-target response—the researchers were able to bias the participants’ moral decisions toward the randomly set ‘target’ response.

Even on moral questions the participants described as “important”, researchers were able to steer them toward the target response 80% of the time! It’s all about where you fixate your gaze. Or, as I thought about it, you endorse whatever you are thinking about when the music stops. Indeed, say the researchers, “the process of arriving at a moral decision is not only reflected in a participant’s eye gaze, but can also be determined by it”.

From a litigation advocacy perspective, this is a good reason to be thankful eye gaze science is not perfected and used by opposing counsel. But it is also a good reason to be wary of manipulation in the courtroom. We’ve written about priming and how it can influence jurors, about embodied cognition, and even about the persuasive effect of tilting your head.

This research strategy is interesting, because it requires a disruption of the natural thought process used by the person. In a way, it resembles the distortion of findings we see when someone only considers one side of a dispute. The story that imprints on them is the one they go with— and that imprinting can evidently occur quickly. On the other hand, while it is effective, it isn’t possible to really implement it during trial. Some jurors will be looking at one part of an exhibit, while others will be gazing at an alternative. Thankfully, like fMRI imaging, this is technology that is not nearly ready for courtroom use. And as long as both sides are effective in making sure the jurors get the complete story—not a story artificially truncated by researchers or wily opponents, this effect won’t sway your jury. It will only keep you up at night.

Pärnamets P, Johansson P, Hall L, Balkenius C, Spivey MJ, & Richardson DC (2015). Biasing moral decisions by exploiting the dynamics of eye gaze. Proceedings of the National Academy of Sciences of the United States of America PMID: 25775604


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homophobiaHere’s an odd counter-intuitive research finding. You might think that, if you have a gay or lesbian client, other minorities (like racial or ethnic minorities, for example) would be a good bet for your jury. It only makes sense that those who have experienced discrimination themselves would be more tolerant toward members of other oppressed groups. While that idea may have been fantasized about in the late 1960s, it unfortunately is not true based on recent research.

Instead, it appears (based on the findings of today’s highlighted research) that racial minorities reminded of their own group experiences with discrimination are more likely to express bias toward gay and lesbian individuals.

The researchers remind us that in 2008, when Barack Obama was elected President of the United States, an “unprecedented number of racial minorities participated” in the election. However, at the same time (in California) Proposition 8 was on the ballot (asking voters to amend California’s laws and only recognize marriages between opposite sex pairs. It was expected that Black and Latino  Americans would vote with gay Americans due to their own experiences with institutionalized discrimination. That did not happen.

Instead Black and Latino voters supported the ban on same-sex marriages to a greater extent than did White and Asian voters. The Black and Latino vote confused many who thought it odd that racial minorities (who fought so hard for civil rights) did not support gay and lesbian marriage rights.

Today’s research was designed to focus on whether the assumption that minorities would automatically empathize with and support each other was a sound one. (Hint: It was not.) To explore this question, the researchers looked toward “intra-minority intergroup relations”. What that means is, the researchers looked at differences within minority groups—like skin color (light or dark), status (low or high) and how those within group differences can result in bias.

The researchers did three separate experiments with the first two studies using data from the General Social Survey archives.

Study 1: 1,230 respondents who identified as African-American and who were US-born were used. Researchers wanted to see if there was a relationship between perceptions of racial discrimination against African-Americans and the respondents’ attitudes toward homosexuality.

African-American respondents who perceived higher levels of racial discrimination directed at their group also had more negative attitudes toward homosexuality.

Study 2: Using the same data from the General Social Survey archives, this time the researchers looked at Asian American respondents (N = 3511) and were able to access responses to questions assessing both the respondent’s sense of group discrimination and their experience of personal/individual discrimination due to their ethnic identity. The researchers predicted the Asian Americans would respond similarly to the African-American respondents.

Asian Americans who perceived higher levels of discrimination against their ethnic group, as with the African-American respondents, did have more negative attitudes toward homosexuality.

However, those Asian Americans who had personally experienced discrimination due to their ethnic identity (perhaps a more direct experience than a theoretical one), had more positive attitudes toward homosexuality.

Study 3: In the third study, the authors wanted to complete some experimental research (as opposed to the archival research done in the first two studies) to further explore the relationships between the sense of group ethnic discrimination and attitudes toward homosexuality. In this study, there were 35 participants (15 Latino and 20 African-American). All participants read three “newspaper articles” but received different final (i.e., “third”) articles depending on the condition to which they had been assigned.

Half the participants (in the control condition) were given an article to read that was related to risk factors for lupus—with higher risk factors identified for Black and Latino populations. The other half of the participants were given an article to read that focused on the “social and economic consequences of racial discrimination against Blacks and Latinos”. In other words, for half the participants, racial discrimination was relevant. Other researchers refer to this process as “priming” the respondents. Basically, the researchers made sure that group discrimination was on the minds of the half of the participants.

Those who read the racially loaded article for their third reading expressed more negative attitudes toward homosexuality than did those in the control condition.

The results of this research are a very good reminder that sometimes what makes good intuitive sense just isn’t true. These results also highlight why using demographics as predictors of behavior just isn’t good practice for litigation advocacy. Just because a group has experienced discrimination does not mean all members of that group would be “good” for your client who has experienced discrimination. In other words, African-American and Latino jurors are not good jurors for you just by virtue of their ethnicity.

What may make a difference here is the personal/individual experience of discrimination due to one’s ethnicity. When you have been personally discriminated against, you may be more likely (and more able) to experience empathy for someone else—even though that someone may be very different from you.

Inescapable, though, is the implication that being a victim of discrimination doesn’t create empathy for other victims, especially when the victimhood is based on a different dynamic. There is also a body of research that highlights the relationship of age and education (younger age and higher levels of education are more open-minded) in acceptance of gay marriage and homosexuality. Other research has highlighted social conservatism among ethnic minorities that might otherwise be liberal.

Strong personal values and lifestyle are likely to trump sensitivity to injustice among racial minorities, as it tends to with everyone.

In other words, it’s all about attitudes, values and beliefs. And that is a hypothesis we’ve used in our work to facilitate litigation advocacy for almost two decades.

Craig, M., & Richeson, J. (2014). Discrimination divides across identity dimensions: Perceived racism reduces support for gay rights and increases anti-gay bias Journal of Experimental Social Psychology, 55, 169-174 DOI: 10.1016/j.jesp.2014.07.008


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Simple Jury Persuasion: Ways to lie with charts

Wednesday, January 7, 2015
posted by Rita Handrich

lie with chartsMock jurors often confound attorneys by noticing evidence not highlighted on PowerPoint slide shows during presentations. They will bring up “the paragraph right before what was highlighted” during deliberations and use it to torpedo attorney credibility.

In a recent mock trial, one of the Defense attorneys questioned why the Plaintiff had not done due diligence prior to taking a job. Later, a Plaintiff-oriented mock juror commented that “due diligence goes both ways” and wondered if the Defense had done their own due diligence prior to buying the company over which they were now being sued. It is impressive how much is seen, understood, and retained as exhibits are quickly shown, deposition excerpts are reviewed, and attorneys present their cases in record time to mock jurors. But those jurors are watching.

So when we saw this impressive and brief presentation on the web about how to lie with charts, we thought it was a useful tool to show how visual evidence can mislead and to reiterate the idea that simple is better when it comes to accurately depicting data. We know the power of first impressions when it comes to meeting people. The same goes for data presented visually. How you present information carries a powerful wallop. Here’s a chart illustrating how perspective can alter your interpretation of data even in a simple pie chart showing “labor” taking up about 30% of the total.


lying with charts

The pie chart is seen as the most simple of charts and yet, as you can see, perspective makes all the difference in our intuitive interpretation of the chart. The labor slice on the right just “seems bigger” and our brains realize that. Once you see the chart for the first time, you may think “labor” takes up a bigger chunk of the pie than it actually does.

From a litigation advocacy perspective, it becomes important to critically eye your own graphics and the graphics of opposing counsel. This easily accessible primer for lying with charts is a good training tool to help you begin to assess the ways in which data is misrepresented for one reason or another.

Five ways to lie with charts. Nautilus.


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