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Archive for the ‘Simple Jury Persuasion’ Category

win-argument-cat-paperThis is something we’ve told our clients about for a number of years because it simply made sense. Now we have a current research citation for it rather than using research that is more than a decade old! We see this “new” strategy as a variation on the “you may want to disagree” strategy–or, perhaps, as an update.

What we especially like about this one is that it tells us how to make something totally implausible seem more acceptable to the listener. Say, something implausible like….Bigfoot! Actually, it goes beyond that. This research shows us how to increase the likelihood you can convince others of supernatural events having occurred. It’s all, as you may have surmised, about the narrative frame. You do not, say the authors, want to begin your narrative by starting off with an admission of long-standing beliefs in the frankly bizarre. That would totally undermine your credibility. Instead, begin by presenting yourself as a skeptic of such events. The authors explain it in this, uniquely academic, fashion:

“The presentation of the evidence that converted the narrator within the account itself offers the audience an invitation to go on the same journey from scepticism to belief along with the narrator.”

We don’t really say it like that (frankly, there should be a rule against anyone saying it like that), but we do essentially recommend that our clients embed their initial skepticism in questions for expert witnesses who explain how something works or in direct examination questions for the witness who is explaining why something was done the way it was done. The off-hand, seemingly casual, inclusion of initial skepticism bypasses juror resistance to persuasion and takes them on our client’s journey of discovery. Just like the author said above.

Here is what the researcher did. She had research participants in two different experiments (a total of 215 participants) read a description of either a “precognitive dream” in which the narrator predicted and ultimately prevented a car accident, or of a telepathic experience in which the narrator thought of “an old friend, Sally” and then half an hour later, learned Sally had been hospitalized. The research participants were placed into three different conditions as they read the descriptions:

The narrator claimed to be skeptical of the paranormal prior to describing the event.

The narrator said s/he really had no interest at all in the paranormal prior to describing the event.

Or, the narrator admitted to being a fervent prior believer.

After reading the descriptions of the events from the skeptical narrator, the disinterested narrator, or the avid believer narrator, the research participants were asked whether they saw the event described as being truly paranormal, just a coincidence, or the product of a gullible narrator.

In both experiments, having a skeptical narrator increased the likelihood participants would see the event as possibly being paranormal. The researcher clarifies that the disinterested narrator did not result in an increase in those seeing the events as paranormal.

“The narrator must establish a prior position contrary to the one they are now assumed to hold in order to influence the audience.”

However, when participants were warned about the “avowal of prior skepticism” technique in Experiment 2, the pattern was reversed–that is, a skeptical narrator was less likely to result in participants seeing an event as paranormal.

When the narrator held a position of prior belief, s/he was seen as more gullible and easily convinced only when female and not male! The researcher thinks it likely is due to men being seen as relatively rational and skeptical when it comes to the paranormal and telepathy while women are not seen that way. We have at least 33 thoughts on this finding.

The author concludes the paper with this straightforward paragraph:

“In conclusion, the present research supports the proposition that an avowal of prior scepticism serves to increase the plausibility of a paranormal causal explanation for an anomalous event as long as the audience are not pre-warned. An avowal of prior belief serves to increase the perceived gullibility of a female, but not a male, narrator, suggesting a bias towards more readily perceiving a woman than a man as gullible.”

From a litigation advocacy perspective, when you have a pretty unbelievable story to tell, embedding skepticism into your narrative can be a powerfully persuasive tool. And if your opponent employs this strategy, you may want to educate jurors on the “avowal of prior skepticism” strategy to “undo” their efforts at persuasion.

Stone, A. (2013). An Avowal of Prior Scepticism Enhances the Credibility of an Account of a Paranormal Event Journal of Language and Social Psychology, 33 (3), 260-281 DOI: 10.1177/0261927X13512115



hapless to hapfulWe’ve written before about visual identity (in the context of covering inflammatory tattoos with makeup for trial) and want to point you to an article in the new issue of The Jury Expert. Bronwen Lichtenstein and Stanley Brodsky (neither of whom are depicted in the image for this post) have an article titled Moving From Hapless to Hapful with the Problem Defendant.

The article describes the way in which one’s appearance can result in assumptions and judgments being made that do not facilitate justice for your client. The authors describe what they call the “hapless defendant” and describe the possible (negative) reactions counsel may have to their client–and by extension, the reaction jurors may have to the defendant based on appearance and behavior.

But then, rather than saying counsel should improve on the defendant’s appearance, behavior, and testimony–the authors actually tell you how to do that in a way that is inexpensive and manageable with an initial investment of time (not money) from you.

We start with the undeniable fact that many aspects of the U.S. court system have enormous rolling momentum that keeps such hapless defendants uninformed, unprepared, and, for the most part, unsuccessful in their own defense. These defendants are sometimes seen as doomed when defended by public defenders with oppressively heavy caseloads or by court appointed attorneys who have little time to work with them. This article is about the need for quick and effective transformations in representation and interactions so that such defendants have a modestly improved chance of success at their own trials.”

This article is not filled with pie-in-the-sky, idealistic notions about permanent changes in how a defendant presents to the world at large. Instead, it recognizes the transient nature of the changes proposed with the idea that by offering these supports to your hapless defendant, you increase the chance of justice being done in the courtroom for this specific trial. Low-cost. Volunteers. A structured process. Okay–so it is kind of idealistic. It is also a practical and very do-able example of how to put the best of our justice system into action on behalf of those who cannot mobilize to do that for themselves.

“These defendants are people who engage in a process of unknowing self-sabotage that is seeded in social and demographic qualities. We have coined the term hapful to counter the notion of the unlucky, socially stigmatized defendant who comes to court. We propose mobilizing transient changes in behavior, improved attractiveness, limited goals, and assistance from helpful others. By becoming hapful for a little while, accused offenders who are often seen as lowlifes or hopeless victims of social injustice might be now presented and briefly re-conceptualized as persons worthy of thoughtful attention and respectful dispositions.”

Lichtenstein, B, & Brodsky SL (2014). Moving from hapless to hapful with the problem defendant. The Jury Expert, 26 (2)



blind-spotThe study of bias fascinates us. We can easily spot prejudice in others but are oblivious to our own biases. We often ask a question at the end of a research project about community values and whether our (uniformly unbiased and considerate) mock jurors think others in the area would be biased against a party involved in the lawsuit about which they have just heard. Maybe the off-topic and irrelevant bias (perhaps religion, country of origin, ability to speak English, thick accent, appearing to be a gang member, sexual orientation, marital fidelity, obesity, etc.). Typically, the answer is, “Well, it doesn’t make a difference to me but it sure would to a lot of other people who live around here!” This response is shared in all sincerity and good faith by individuals who truly do not see themselves as biased.

The problem, as pointed out by today’s researchers, is that none of us see ourselves as having blind spots. We’re better than that–especially when forewarned that biased decision-making could lie ahead. As sensible and logical and rational as that perspective may seem, it simply doesn’t appear to be true. We’ve written about Emily Pronin’s work on the bias blind spot a couple of times before but she has a new article out that illustrates beautifully what we see often in our pretrial research.

Researchers did two different experiments in which they had participants “rate the artistic merit” of a series of 80 different paintings. The first two experiments used undergraduates from Princeton University (63 female and 38 male in the first experiment and 47 female and 27 male in the second experiment).

In experiment 1, half of the participants were told to press a button and the name of the artist would flash onto the computer screen while others were not told to do so and thus evaluated the “artistic merit” of the painting without knowing who had painted it. For those participants that saw the name of the painter, half of the paintings were identified as being created by a famous artist and half attributed to random names (i.e., “an unknown artist”) culled from a print telephone directory.

Not surprisingly, the participants who saw the artist names rated the merit of the paintings attributed to famous artists as higher than the unknown artist’s work. Those who did not see the artist name rated the two groups of paintings the same in terms of artistic merit. Those who saw the artist name acknowledged the knowledge was biasing but believed their final answers were as objective as if they had not seen the artist name. (Alas, they were incorrect.)

In Experiment 2, instructions were modified so that participants could choose to see or choose to not see the name of the artist. Half the participants were told to choose to see  the artist name (this was the explicitly biased condition) and half were told to not choose to see the name of the artist (this was the explicitly objective condition). They were asked to rate how biased they expected their decision-making strategy to be given whether they would see the artist name or not see it.

Once again, the participants who saw the artist names rated the merit of the paintings attributed to famous artists as higher than the unknown artist’s work. Those who did not see the artist name rated the two groups of paintings the same in terms of artistic merit. Those who were in the explicitly biased condition said (in advance) their evaluative strategy would be biased, but (naturally) they saw their own judgments of the paintings (after the fact) as objective.

In other words, even though warned in advance that their strategy would be biasing, and even though they said, up front, their strategy would be biasing–ultimately these participants also felt they were able to rise above that bias. (Alas, they were also wrong.)

So, for Experiment 3, the researchers left the classroom and recruited 85 adults online (52 women and 33 men with an average age of 35.7 years). These participants rated the same 80 paintings with three modified instructions: they rated themselves and their assigned evaluative strategy in terms of how objective their process would be; they were given very detailed information about how bias could easily make inroads into their decision-making on the artistic merits of the paintings; and, they were reminded to be honest in their ratings.

You know what happened. Participants in the explicitly biased condition thought their strategy was more biased but saw their judgments as even better than those participants in the explicitly unbiased condition. Maybe they thought that this special information empowered them to rise above the bias they had expected to display! Interestingly enough, at the pre-task rating, the participants in the explicitly biased condition thought they would be objective and by the end of the task, their estimation of their objectivity had gone up significantly.

The researchers discuss these findings in light of the courtroom (using the example of inadmissible evidence which jurors are instructed to ignore) and the workplace (using the example of HR personnel who see photographs of applicants prior to evaluating the merits of their applications). If we believe we are so objective that we can use biased strategies to make decisions, say the researchers–we are simply fooling ourselves.

They describe our reasoning in this way: “If I am smart enough to know this bias exists and honest enough to acknowledge it, then surely I won’t fall prey to it!”

Alas. Indeed we would. The authors describe the way female under-representation in the symphony has been reduced by having applicants audition behind a screen. Such efforts, they say, clearly reduce bias. So why are we so resistant to using them? The present research provides one such answer:

“Such efforts are likely to seem needless when we believe that we can be objective even in the face of obviously biasing procedures.”

The authors say the idea of “debiasing” doesn’t really work. Maybe it’s like ‘separate but equal’ or pre-Title IX sports budgets. You just cannot unring that bell. We both agree and disagree.

Bias is everywhere and we need to work hard to find ways to stop bias from occurring in the first place. There we agree. For years, we have recommended the use of strategies effective in countering bias by stopping it up front.

But we also have seen a debiasing strategy that is powerful in inhibiting bias. It doesn’t end it, and it isn’t foolproof. But click the link and learn how to cope with a flawed world.

You may not think this is information you need. Alas, according to this research, you really do!

Hansen K, Gerbasi M, Todorov A, Kruse E, & Pronin E (2014). People Claim Objectivity After Knowingly Using Biased Strategies. Personality & Social Psychology Bulletin PMID: 24562289



women-votersYou may recall the story posted on CNN in late 2012 about how women vote differently based on hormonal fluctuations. Unfortunately, because of how our brains work (and our attraction to outrageous stories, true or not), you may not recall that CNN removed the story in 7 hours due to internet backlash over an article based on a (then) unpublished study. One of the more amusing responses to the post suggested CNN investigate how Viagra influences male votes. Instead, CNN just took down the article.

New published research disputes the study CNN relied on. And we should note the original study did eventually publish. The current researchers set out to see if the 2013 results could be replicated and so their design was as close to the original study as possible (at least according to them). Spoiler alert: The new research discredits the basis for the CNN report.

The researchers recruited 1,206 women in an online study. The participants reported they were pre-menopausal, not pregnant, not using hormonal contraception and having regular monthly menstrual cycles (from 25 to 35 days in duration). The participants were classified as either “paired” (N = 730) or “single” (N = 476) and their specific date of ovulation identified (those in days 4-11 of their 25 day cycle, for example, were classified as fertile and those in days 14-22 were classified as nonfertile while those in any other day of the cycle [day 1-3 or day 23-25] were excluded from the primary analyses). Before you question any of these variables or how they were calculated, the researchers were simply faithfully following the criteria in the 2013 study.

The 1,206 participants (recruited prior to the 2012 election) were asked to “imagine walking into the voting booth today” and report whether they would vote for Romney (the Republican) or Obama (the Democrat). Here is what the researchers found:

There was no relationship between actual voting behavior and fertility or relationship status, or as the authors explain: “There was no association between attitudes and fertility.”

The authors go on to talk about Type 1 errors and failures to replicate other published studies on the relationship of menstrual cycles to preferences and attraction. Hot on the heels of their study is the response from the authors of the 2013 study who, not surprisingly, feel grossly misunderstood. And then, bless his heart, along comes the Neuroskeptic to talk about the errors of their ways for both of them!

What we want to talk about is different from what they all want to talk about and that is

a) the tendency of most people to recall the headline about women’s hormones and voting behavior; but

b) not recall that the study was pulled from the CNN website within hours; or

c) ever know that a follow-up failed to support their findings.

The lesson learned is the impossibility of unringing the bell. It’s a cautionary tale for trial lawyers. Motions in limine are often key to keeping the story clean and focused. And whether a case is below the media radar or on the front page, the story that is in the mind of a juror doesn’t necessarily square with what you think the evidence has established.

Just because something is heavily publicized does not mean it is true (or not true). While everyone agrees with that, it doesn’t mean that they are immune from the effect of repetition or of having heard if from a prominent source. The goal is either or both: 1) Discrediting the message, or 2) Discrediting the messenger.

Just because one pontificates loudly and insistently does not mean what they say is true (or not true). One of Ronald Reagan’s best debate lines was to summarily dismiss critics by saying “well there they go again…”, which was extremely effective in shifting the focus from the takeaway message that criticized him to one that casts a disdainful shadow on his critics.

None of us like to be fooled. Use that desire to know the truth to get jurors to listen to your truth even though it may be quieter and less strident than the other voices fighting for their attention. Caution them (as Reagan did very simply) to beware of idle rumors and loose talk–and to focus instead on character and principles.

Harris, C., & Mickes, L. (2014). Women Can Keep the Vote: No Evidence That Hormonal Changes During the Menstrual Cycle Impact Political and Religious Beliefs Psychological Science DOI: 10.1177/0956797613520236




outcome aversionToday’s post focuses on ideas that will be familiar to many of you but the terms themselves will probably seem foreign. The research is about the role of emotion in our  decisions about moral issues. Essentially, the research looks at emotional pathways to moral condemnation. What motivates our reaction to tragic injury? Is it about our empathy for the victim who suffered injury, or is it about our disgust at the method through which the victim was harmed?

Outcome aversion: When someone is hurt or killed through actions of another, empathy for the victim (due to their injuries) is believed to result in a desire to punish (or hold responsible) the perpetrator.

Action aversion: More recent research focuses our attention on the actual act taken that harmed the victim. For example, if the victim was stabbed, some researchers believe the emotional response to the harm/injury/stabbing would be triggered by the act of stabbing itself, rather than due to the harm to the victim.

The researchers illustrate these two concepts with a story about three sailors stranded in a lifeboat in 1884 with a severely ill cabin boy.

“Having no food, water, or hope of immediate rescue, their best chance at survival was to kill the fourth member of their crew, a severely ill cabin boy, and eat him. The idea seemed unthinkable at first, but the poor conditions of their situation quickly made the threat of death too serious to ignore. Early one morning, while the cabin boy lay unconscious, the captain pulled a penknife from his pocket and sliced through the boy’s neck.”

Most research would use our emotional reaction to the poor (dead) cabin boy (e.g., the outcome aversion) to explain our moral revulsion to the captain’s action. More recent thought has focused on our reaction to the act of cutting the boy’s throat itself (rather than our reaction to the poor boy dying). This is a morally complex story, though, similar to the Donner Party caught in a snowstorm, the soccer team whose plane crashed in the Andes mountains, et cetera. It offers opportunity for a listener to sympathize with the boy’s impending death, the hopelessness of the boy’s likely survival, the desperation of the other people in the boat, and the fiduciary duty of a captain to his crew.

The researchers did five experiments to test their ideas related to action aversion (e.g., condemnation driven by an aversive response to the action itself). In all five experiments, they found “consistent and strong support for the importance of action aversion in moral dilemmas”. Further, the researchers found the aversion to be related to an “evaluative simulation” wherein we imagine how we would feel emotionally if we had, ourselves, cut the cabin boy’s throat. They call this “first party aversion” and it can directly influence third-party moral condemnation.

That is, the stronger your aversion to thinking of yourself cutting the cabin boy’s throat, the stronger your condemnation of the third-party who actually did cut the cabin boy’s throat. Simply put, ‘If I wouldn’t do it, they shouldn’t do it, either”.

From a litigation advocacy standpoint, this is an intriguing strategy to consider. Our mock jurors (especially those under 40) often report they dislike lawyers who attempt to manipulate them emotionally by invoking sympathy for the victim.

Based on this research, you can intensify the desire to morally condemn the Defendant by focusing juror attention on what it would be like for them individually to have wielded the veritable knife cutting the cabin boy’s throat.

They will react emotionally and morally condemn, but not because you have manipulated them by calling (overtly) for sympathy for the victim.

Miller RM, Hannikainen IA, & Cushman FA (2014). Bad Actions or Bad Outcomes? Differentiating Affective Contributions to the Moral Condemnation of Harm. Emotion (Washington, D.C.) PMID: 24512250