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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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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, today is the last day to vote for us here in the Litigation Category.

loved and cared forIs this perhaps the anti-reptile theory? We don’t know, but it is potentially a powerful stealth weapon for cases where your opponent is attempting to frighten jurors into making emotional decisions because they feel threatened. And it is so very simple (and cheap) that you will thank the brain scientists responsible for doing such a complicated study with such simple findings.

In brief, the researchers wondered if there were ways to quiet the brain’s fear center (the amygdala) by priming research participants to feel loved and cared for prior to being threatened. They hooked 42 “healthy individuals” up to fMRIs to study their brain responses when exposed to threatening words or threatening faces. (All of the participants were right-handed and had no history of either neurological injury or psychiatric illness. None were on psychotropic medications.)

Half of the participants were shown “48 pictures of people engaging in caregiving behaviors and enjoying close attachment relationships (e.g., hugging loved ones)” and the other half were shown 48 pictures of household objects. Thus, the first group was primed for feeling loved and cared for while the second group (the control group) received no emotional priming, but merely neutral household objects. Then they were shown 128 word pairs that were threatening or neutral and then 60 sets of faces that were fearful or angry. (In between the word and faces tasks, the participants were re-shown either the “close attachment” pictures again or the household objects again in an effort to “re-prime” them.)

And here is what the researchers found: “participants who viewed secure attachment-related stimuli prior to completing two threat-reactivity tasks showed attenuated amygdala responses to both threatening faces and threatening words”.

In other words, those who saw the photos of other people being loved and cared for felt less threatened and frightened by anxiety-arousing faces and words than those who did not. From a litigation advocacy perspective, this leads to an intriguing (and potentially stealthy) strategy for the trial lawyer facing attempts by opposing counsel to frighten the jurors into emotional decision-making. In other words, if we harbor a feeling that the world is safe and warm, we are more resistant to upset.

Use visual imagery of caretaking and close attachment relationships during case presentation.

Consider visual evidence that repeats this imagery and is consistent with case themes.

Your goal is to remind jurors that they are safe, and thereby reduce their fear and sense of threat. We can’t know if it will work to calm those amygdalas in the jury box, but it is certainly worth a try!

Norman L, Lawrence N, Iles A, Benattayallah A, & Karl A (2014). Attachment-security priming attenuates amygdala activation to social and linguistic threat. Social Cognitive and Affective Neuroscience PMID: 25326039


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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

message framingTrial lawyers (and others who communicate to persuade) are always looking for a “silver bullet” with which to gild their courtroom presentations. Today’s research offers a glimpse at this holy grail… as long as your listeners are either all male or all female. But fear not, there is also something very useful embedded in the results that allows you to improve the receptivity of a mixed gender audience to your message.

Researchers wanted to see if varying message delivery and message framing would make a difference in how the same message was perceived by male and female listeners. In other words, they wondered if you need to communicate differently to a male audience than to a female audience. They examined 2 kinds of message delivery and 2 kinds of message framing in a study focused on being physically fit.

To explore this, they created four (45 second long) videos about the importance of regular exercise (a male actor played the part of narrator “Dr. Linton”, a health expert). The messages on the video were delivered in either an eager or a vigilant style and with either a gain or loss framing. (That means there were four versions of the video: eager delivery style with either a gain message or a loss message or a vigilant style with either a gain message or a loss message.)

On the videos, message delivery was either “eager” or “vigilant”:

Eager: This message delivery system is framed in terms of ideals and aspirations–exemplified by openness to possibilities and not wanting to miss opportunities for improvement. In this condition, the speaker “leaned and reached forward using upward and open hand motions. He also used an upbeat and excited tone of voice.”

Vigilant: This message delivery system is framed in terms of safety and security–exemplified by obligations, duties, and rules and guarding against mistakes and loss. In this condition, the speaker “presented the message while leaning backward and using downward, closed hand motions along with a more somber and staid tone of voice.”

The videos also had 2 kinds of message framing, gain or loss:

Gain: This message was framed to help the listener see the potential gains made from exercising. Here is the gain-framed message used in the study [keywords are in bold]:

Well, that’s a good point. Of course not everyone is physically able. Still, in general I am eager in my practice to encourage people to begin exercising now! A growing body of medical research shows that exercising has multiple benefits. By exercising daily, you stand to gain energy, muscle-strength, and the ability to maintain an ideal body weight. You can also gain optimal mental health and brain function. Overall, with regular exercise you gain both physical health and mental health. These are good reasons for why exercise should be a non-negotiable part of your daily routine. Again, as a health professional, I am eager to help promote positive lifestyle choices.

Loss: This message was framed to help the listener see the ways exercise could keep one from losing physical function. Here is the loss-framed message used in the study [keywords are in bold]:

Well, that’s a good point. Of course not everyone is physically able. Still, in general I am vigilant in my practice to encourage people to begin exercising now! A growing body of medical research shows that not exercising has multiple costs. By not exercising daily, you stand to lose energy, muscle-strength, and the ability to maintain an ideal body weight. You can also lose optimal mental health and brain function. Overall, without regular exercise you lose both physical health and mental health. These are good reasons for why exercise should be a non-negotiable part of your daily routine. Again, as a health professional, I am anxious to help prevent negative lifestyle choices.

What the researchers found was an intriguing gender difference in how the message was received.

Men preferred the eager message delivered in a gain frame while women preferred the vigilant message delivered in a loss frame.

So, based on this research, when speaking to men you would use one style (eager + gain)  and when speaking to women you would use another style (vigilant + loss) for maximum effectiveness. That is all well and good, but since it is unusual to have an all-male or all-female jury, what is the lesson? Fortunately for us, there is more to what these researchers found than just a gender difference in preference for how a message is delivered. What they also found was that it is important for your message delivery and message frame to match.

“One practical implication of our findings is to encourage those who wish to influence others to match their body language to their message. One should eagerly emphasize the benefits to be gained or cautiously present the potential losses that can be avoided by complying with the message.”

This may seem simplistic and to be common sense advice. However, it is something to keep in mind when you are preparing an expert witness. They can speak enthusiastically with regard to benefits and also cautiously about the losses that can be avoided and thus appeal to both male and female jurors who are listening to their testimony.

You may already prepare your experts to use this sort of dually delivered communication. But, now you have a way to understand another reason why it’s effective.

Jacks, J., & Lancaster, L. (2014). Fit for persuasion: the effects of nonverbal delivery style, message framing, and gender on message effectiveness Journal of Applied Social Psychology DOI: 10.1111/jasp.12288


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