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Archive for the ‘Simple Jury Persuasion’ Category

pseudo BSWe 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

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We are now in ABA’s Blawg 100 Hall of Fame!

Monday, November 30, 2015
posted by Douglas Keene

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We’ve recently been informed that The Jury Room has been inducted into the ABA Journal Blawg 100 Hall of Fame! Okay, it’s not a Pulitzer, but we are wildly happy about it. To our way of thinking, it is the greatest honor The Jury Room could be given. We appreciate the recognition. Closer to truth, we are shocked. Every December from 2010-2014 we have been delighted to be included in the Blawg 100, but this was not even on our radar screen. Here’s a link to the 2015 ABA Blawg Hall of Fame and a link to the 2015 Blawg 100 honorees.

Here’s how the ABA describes the Blawg 100 Hall of Fame:

In 2012, we established the Blawg 100 Hall of Fame for those blogs which had consistently been outstanding throughout multiple Blawg 100 lists. The inaugural list contained 10 inductees; this year, we added 10 more, bringing the total to 40.

And here is how they described this blog on their roster:

Trial consultants Douglas Keene and Rita Handrich find the research to alternately back up what you think you already know about human psychology (Is rudeness contagious? Yes.) and alert you to the unexpected (Are “beer goggles” real? No.) Posts are both fascinating reads and lessons on how not to base your cases on stereotypical assumptions.

We were inspired to begin blogging by Anne Reed (formerly of Deliberations blog and now leading the charge at the Wisconsin Humane Society). Once we got started blogging, we realized it was a wonderful way to keep up with the changing literature and to share what we were learning along the way. Looking back over the 900+ posts, we still find it interesting to blog as well as a great impetus for our own continuing education. Thank you, ABA Journal, for your recognition of our work over the last 6-1/2 years.

Doug and Rita

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black baby white babyWho’s scarier? Connor or Jamal? Or consider these names and think of who’s scarier: Wyatt or DeShawn? Raven-Symone recently got into trouble on the television show The View for saying she would not hire someone with a “ghetto name” (“I’m not about to hire you if your name is Watermelondrea”). We blogged about this issue back in 2013 and Raven-Symone is certainly not alone in her assessment (at least based on that research from 2008). Things have probably changed by now though.

Or not, according to today’s research. The researchers completed a series of studies (with participants totaling more than 1,500 people) to explore what’s in a name—or rather, what our assumptions are about others based solely on their first name. They add to the body of literature on “formidability representation hypothesis” (the idea that the relative threat someone poses is represented by a conceptual metaphor of physical size and strength). This is not an easy study to read. In fact, the lead author commented “I’d never been so disgusted by my own data”.

Science Daily has a very thorough write-up on the article and how the research was conducted. Go there to read it and then come back for our reactions. As a comment to clarify, there were several conditions—a control group read a neutral vignette, while others read a successful vignette of a college graduate who owned a business (with a character having either a black- or white-sounding name) and others read a threatening vignette (where the character with either a black- or white-sounding name had been convicted of aggravated assault). The researchers wanted to see if participants would imagine the black characters in the vignettes as looming larger and thus more dangerously than when the character had a white-sounding name. And they did. It’s also important to note that all the participants identified as politically “left of center”. Even liberally minded people have inaccurate and racist stereotypes—a point made by the senior author that he was sure would make his liberal participants feel badly about their reactions.

Here are just some of the various findings in the work:

Participants thought the characters with black-sounding names were larger in size (in their mind’s eye) than those characters with the white sounding names. But it went further than that.

If the character had a black-sounding name, the participants thought they were not only physically larger but also less financially successful, had less social influence and had less respect in their community.

If the character had a white-sounding name, the more status participants imbued them with—they were financially more successful, had more social influence and more respect from their community.

When the participants were asked to rate each character on muscularity, height and size and the researchers combined those ratings into a composite score—what they found was that the participants had imagined the black neutral character to be statistically similar to the white criminal character (e.g., the threatening scenario).

When the researchers varied the project using Asian and Hispanic names, men with the Hispanic names were seen as “physically more formidable and aggressive” than were the men with Asian names. (However, the association of Hispanic males names and aggression was below Black male name level of aggression.)

From a litigation advocacy perspective, this research is consistent with our long-standing recommendations to enlist universal values on behalf of helping jurors see your (very different) client as more like them. First names leave a first impression that can be laced with racist stereotypes even though most of us do not have the luxury of choosing our first names. In short, when your client has a black-sounding first name, it isn’t just Raven-Symone who is likely to have significant bias against them based on name alone. It’s probably most of the jury.

Make sure you help jurors to see that this particular DeShawn or Jamal shares their values and thus, becomes more real, and less of a large, looming, and dangerous stereotype.

Holbrook, C., Fessler, D., & Navarrete, C. (2015). Looming large in others’ eyes: Racial stereotypes illuminate dual adaptations for representing threat versus prestige as physical size. Evolution and Human Behavior DOI: 10.1016/j.evolhumbehav.2015.08.004

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feelings as informationYou know this theory from painful and frustrating first-hand experiences. You present evidence and the jury ‘hears’ something else and bases their decisions on what they believe you said (or meant) rather than on the evidence as presented. While you (and we) know this happens over and over again, this week we finally ran across what it is actually called—the “feelings as information” theory.

Essentially, what this theory says is that feelings are often accepted as though they, in and of themselves, constituted information (aka facts).

While this theory describes what we see over and over again during mock juror deliberations, we are not going to focus on the theory itself as we are going to instead focus on how to disrupt the occurrence. That is, we are going to identify the ways feelings are not accepted as facts—so that you will have strategies to attempt to get jurors to decide based on the evidence.

In this chapter from a book of social psychology theories, the author says that when feelings are considered as a source of information—judgment ensues. However, there are times when feelings are not typically seen as a source of information:

When someone questions the informational value of the feeling/emotional reaction, you are less likely to use the feeling as information.

When you are making decisions for yourself rather than for others, you are more likely to allow feelings to serve as information.

When you have high expertise in the area, you are less likely to rely on your feelings as a source of information.

When you are exerting effort and have high motivation in a situation requiring decision-making, you are less likely to use feelings as information.

From a litigation advocacy perspective then, there are at least four ways to attempt to interrupt this cycle (or intentionally allow it to progress) so that your jurors make decisions on evidence—or on their feelings depending on what version reinforces your trial themes.

When someone questions the informational value of the feeling/emotional reaction, you are less likely to use the feeling as information. So if you want jurors to allow their feelings to cloud their decision-making, do not say a thing. Don’t highlight the issue. And if you want them to minimize the emotions, make a point of saying it’s easy to be swayed by emotional reactions to a story but what is important today is to make decisions based on the law.

When you are making decisions for yourself rather than for others, you are more likely to allow feelings to serve as information. We’re not sure this is really true when decisions are being made about someone else in the courtroom. If it was, we wouldn’t see the theory in action repeatedly.

When you have high expertise in the area, you are less likely to rely on your feelings as a source of information. Jurors who have high expertise on a topic that is central to the case are often excluded from jury service. Keep in mind that this involves experience with technical matters, but equally important, it also includes life experiences. For instance, if someone is an engineer, you have an idea of what she knows or what kind of training she has been through. But what if the critical experience has to do with caring for someone with a brain injury, or a friend who has been a victim of violence, or they grew up in a family with a deceased parent? Voir dire is crucially important on these sorts of issues, even if they know nothing about the mechanical cause of an injury.  If the case is one where the information is technical and you need to teach jurors to understand it, be sure your “teaching” is understood so jurors make the decisions you expect. When jurors believe they understand the information, they will hold firm to decisions made because they believe they “get it”. (We see this a lot in very esoteric patent information disputes where presenting attorneys have done great jobs helping mock jurors understand a process, or an idea, or an innovation that has been patented. Once jurors think they “get” a very theoretical argument, they will not change their minds.)

When you are exerting effort and have high motivation in a situation requiring decision-making, you are less likely to use feelings as information. If you want jurors to make decisions quickly and without much thought, they are going to use feelings as information if you do not help them understand the dispute (and there are times you will not want to help clarify). If, on the other hand, you want jurors to thoughtfully and carefully consider the facts, you need to teach them how to do that and give them information to help challenge less motivated jurors in the deliberation room. Sometimes, it can be as simple as instructing them that they shouldn’t vote until they have a have clear knowledge of the facts supporting a correct answer.

Schwarz, N. In P. Van Lange, A. Kruglanski, & E. T. Higgins (Eds.) (2012). Feelings-as-information theory. Handbook of theories of social psychology., 289-308 DOI: 10.4135/9781446249215.n15

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head-vs-heartAnd….do you think I can now guess your opinion on abortion? And brain death? It’s like a dream-state voir dire question. Today’s researchers used 8 different studies to explore the relationship between participants identifying with either the head or the heart and the participants’ positions on various hot-button issues.

It’s a question that has been with us for centuries—does the heart or the brain represent “the seat of the self”? Current-day scientists are now saying how individuals respond to this question is related to their beliefs about hot button issues and even the charities they support. How so, you say? We thought you’d never ask!

First, the researchers did a series of 6 studies where they were checking to be sure that how participants think about themselves is related to whether they self-describe as following the head or the heart. To test this question, they ‘primed’ some of the participants with what they refer to as an “independent self-construal” (basically a sense of self as autonomous, self-directed, and having impact on the world—more common in American males) and primed other participants with what they called “interdependent self-construal” (basically valuing being part of a group and maintaining harmonious relationships—more common in American females). They hypothesized that those primed with independent self-construals would more often say they identified with the head than the heart. They were correct.

Then they did two additional studies. In study two, 156 participants (82 male, 73 female, and one unspecified; average age 33.65 years) were recruited online in the US. First they were asked whether they identified more with the heart or the head. Then the researchers had them engage in a “filler task”—which is research-speak for a throw-away activity meant to distract the participant from the initial question prior to having them do the real experimental task. Finally, after completing the filler task, participants were asked for their opinions on the “legal definition of death and abortion legislation”.

In this study, the researchers report that people who identified with the heart were more likely to agree with the cardiac definition of death than with brain death than were people who identified with the brain.

Participants who identified with the heart were also more likely to be persuaded by and agree with a restrictive abortion law based on the idea that life begins when the heartbeat can be detected.

In the third study, the researchers wanted to show that the relationship between “self location” (i.e., head or heart) and opinions on hot button issues was causal and not correlational. So they recruited 127 undergraduate student participants (41 male, 86 female and average age 24.6 years)who were randomly assigned to conditions. First, the researchers primed the participants to be identified with either the brain or the heart (the researchers assigned this priming—the participants did not self-identify) and asked them to “write about” why they thought the brain or the heart was most connected to our sense of who we are (i.e., “the seat of the soul”).

The researchers also assigned each participant to be in one of two “charity conditions”: either a brain charity condition (a charity focused on research for Alzheimer’s Disease) or a heart charity condition (a charity focused on research on coronary artery disease). In each case, participants read a paragraph with information on the disease to which they were assigned and then they were asked to write a support letter the charity could use in promotional letters. The researchers measured the amount of time participants took to write the letters and counted the number of words in each letter in an effort to assess “effort expended” by the participant. Finally the participants were given the option to donate the $8 payment they received for the experiment either in part or in full to the charity.

Participants primed to locate the self in the brain exerted more effort in letter-writing and gave more money to the charity that focused on fighting a disease of the brain than the charity that focused on fighting heart disease.

Conversely, those primed to locate the self in the heart exerted more effort in letter writing and gave more money to a charity when it was the heart association charity rather than a brain charity.

We think an interesting aside here is that only 9 of the 127 participants rebelled against their assignment to the heart or the head condition and argued for the opposite side to which they’d been assigned. It’s odd —if this is such an important source of self-identity— that such a small number would protest. Especially since these are 20-somethings who, in our experience, protest thoughtfully about a lot of things. The researchers say that “leadership speeches, entrepreneurial pitches or marketing materials” referencing the head or the heart could be effective with those listeners identifying with one or the other.

From a litigation advocacy perspective, we think it’s an idea that could be useful in pretrial research but we aren’t willing to expect online participants and small undergraduate samples would respond the same as your potential jurors. The seriousness of a courtroom carries with it a gravitas that is absent in online studies. If, on the other hand, you ask opinions about whatever hot button issues are relevant to your case and ask if mock jurors tend to identify more with the head or the heart—you might have something you can use in voir dire and jury selection. As we are forced to say often, “it just depends”.

Adam, H, Obodaru, O, & Galinsky, AD (2015). Who you are is where you are: Antecedents and con sequencing of locating the self in the brain or the heart. Organizational Behavior and Human Decision Processes, 128, 74-83

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