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ABA Journal Blawg 100!

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Archive for the ‘Social Networking’ Category

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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Know what you did wrong

We first saw this article on Eye on Psych blog and thought it interesting for our use as well. The Eye on Psych blog had previously focused on the assumption that not being on Facebook makes you somehow unsavory (because, after all, everyone should be on Facebook!).

The study we are going to describe today looks at how often you visit Facebook and whether your reasons for those visits are social and personal or more informational in nature.

The researchers predicted that frequent Facebook visitors were caught up in a “culture of belongingness” and thus may not review posts with much cognitive depth. In other words, they may be cognitively lazy as they view Facebook posts and ‘like’ pretty much anything. However, they suspected that would vary between Facebook users with a need to belong and those Facebook users who instead visited more to find information.

Their research participants were 623 internet users (69% female, 18-66 years old with an average age of 23.7 years). The participants had accessed the study through a website of psychology studies. The majority (71%) were students and 94.7% of the sample had a current Facebook account.

Participants reported their frequency of Facebook use and the reasons for which they visited Facebook. After answering some demographic and background questions, participants saw a sample Facebook page of race-related persuasive messages written (ostensibly) by a 26-year-old white male named Jack Brown. “The file picture was a silhouette of the back of a male walking on the beach and no other details about the writer were provided.”

There were three versions of the page shown to the participants: two expressed negative racial attitudes (e.g., the racial superiority and Whites as victims conditions) and one expressed an egalitarian attitude (e.g., the egalitarian condition). The authors describe each stimulus at some length in the actual article.

The participants read the message for whichever condition they were assigned, and were then asked to describe how much they agreed with the message they read, how accurate they thought it was, how knowledgeable they thought the writer was, how much they liked the writer, and how similar to the writer they saw themselves as being. These items were combined to form a composite index of message attitude.

Then, those participants who had Facebook accounts (the vast majority) were asked how likely they would be to ask Jack to be their Facebook friend, click ‘like’ on his post, share his note with others, argue against his note, support his note in a comment, hide his posts, unfriend him, or suggest him to other friends. These items were combined to form a composite index of behavioral intention.

The researchers found the strongest motivation for Facebook use was to connect with others (and say this is consistent with prior research). Information seeking is a less common motivation. Reactions to the messages posted by “Jack” though, were mixed.

The egalitarian message was seen more positively than either the superiority message or a victim message. When it came to Facebook behaviors like “liking” or “unfriending”, research participants thought they would act in much the same way toward the victim message as they would toward the egalitarian message.

The more frequently users logged into Facebook, the more likely they were to agree with the negative messages Jack posted and more likely to have positive behavioral intentions toward Jack. Less frequent users were more likely to disagree with the negative messages.

Those who logged into Facebook for informational purposes were more likely to reject negative messages and more likely to accept the egalitarian message.

The researchers believe that frequent Facebook users process information less critically and agree with posts due to a need to be accepted and belong. Conversely, they believe that those Facebook users seeking information (and not so much acceptance or belonging) tend to more critically assess the information they see on Facebook and are not as interested in being accepted or belonging as they are in rejecting messages that promote racism and accepting messages that promote egalitarian thought.

From a litigation advocacy perspective, it’s an intriguing issue to consider for voir dire.

If you know you want jurors who are not going to think deeply about your case–do you want Facebook users who log on for personal and emotional belonging and connection?

And if you want jurors who will carefully consider the evidence, do you want those who use Facebook more for informational purposes? And how do you ask those questions in voir dire?

As ever-growing numbers of people get their “news” from unvetted and unvalidated social media sources, these are not casual concerns. If there is a pattern (in general) across Facebook users to either log in for social/personal connection or log in for information and that pattern points to different kinds of cognitive processing–that’s an important voir dire consideration.

Rauch, S., & Schanz, K. (2013). Advancing racism with Facebook: Frequency and purpose of Facebook use and the acceptance of prejudiced and egalitarian messages Computers in Human Behavior, 29 (3), 610-615 DOI: 10.1016/j.chb.2012.11.011

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online researchOur friend Charli Morris pointed us to an article published by the Georgia Trial Lawyers Association focused on the online research of potential jurors. In the article, Matt Wetherington discusses ethical boundaries and looks at what constitutes a ‘communication’ with a juror. Given the nature of social media and the internet in general, he gives specific suggestions for gathering information from search engines (e.g., Google, Yahoo, Bing, et cetera), social networking sites (e.g., Facebook, MySpace, Twitter, LinkedIn and Pinterest), and resources for searching backgrounds (e.g., Lexis and Westlaw, state Department of Corrections, Spokeo and TLO).

He covers a huge quantity of information in four pretty pithy pages. He concludes with this:

“Admittedly, the vast majority of information gleaned from these websites will be unhelpful. However any helpful information can be invaluable and the success rate of these searches will only increase as social media usage continues to grow.”

About the same time, John Browning wrote an article for The Jury Expert that offers an update on the issues you must consider as you prepare for online research. John talks about the affirmative duty to research the jury pool and the ethical issues one must consider in such research. John concludes his piece this way:

“Lawyers are increasingly being held to a higher standard of technological proficiency and, as the use of social media platforms becomes more widespread, clients—and not just courts and ethics committees—expect lawyers to avail themselves of every technological weapon in their arsenal. Doing so in an ethical manner is imperative.”

We’ve written before about the painstaking and often tedious work of researching potential jurors. Shortcuts in doing that research have been found over the years since 2010 (when we wrote our post), but it’s still pretty tedious work with rare victories such as that unearthed and brought to light during the recent voir dire for the George Zimmerman trial. Instead of relevant information, you are more likely to find innocuous or potentially embarrassing information or the ever-present photos in random situations, but it is rare to find information powerful enough to strike a juror for cause.

We hope you’ll take a look at both of these articles. The two pieces, in combination, offer a terrific overview and initial strategy for your online research.

Browning, J. 2013 As Voir Dire Becomes Voir Google, Where Are the Ethical Lines Drawn. The Jury Expert, May.

Wetherington, M. (2013). Online research of potential jurors: A survey of resources and ethical boundaries. Verdict: The Journal of the Georgia Trial Lawyers Association (Summer)

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A new issue of The Jury Expert has just uploaded and you will want to see the work collected there.

Pretrial Publicity and Courtroom Umami 

Two trial consultants tell you how to throw a ‘spice bomb’ at negative pretrial publicity.

As Voir Dire Becomes Voir Google, Where Are the Ethical Lines Drawn? 

What is your obligation when it comes to social media research of prospective jurors or witnesses? What do you need to avoid in the process?

Do You See What I See? How a Lack of Cultural Competency May Be Affecting Your Bottom Line 

Used to be that we thought of ‘cultural competency’ as a “nice and politically correct thing”. Not any more. Now being culturally competent is essential to your financial bottom line.

Hackers, Hosts & Help Requests 

The Jury Expert is increasingly popular–with hackers as well as bona fide readers. And that is expensive. Help us out?

The Scared Witness: A Chapter from “Can This Witness Be Saved”

Ever had a witness who was not just scared but rather was truly terrified? Here’s what you need to do.

Why Telling a Witness That It’s OK to Say They Don’t Know Is Good for Justice 

Directly telling a witness they can say they don’t know if the suspect is in the lineup improves their accuracy in identification.

The Interview-Identification-Eyewitness Factor (I-I-Eye) Method for Analyzing Eyewitness Testimony

Here’s a three-step teachable model for assessing the accuracy of eyewitness testimony. For law enforcement, attorneys and jurors. One of the trial consultant responses on this piece is from Rita Handrich of Keene Trial.

80 iPad Apps Attorneys Love, 8 Days a Week: An App Strategy for Work, the Courtroom, and Your Personal Life 

Love your iPad? You’ll love it a lot more when you’ve read through these strategies for improving your work and personal lives. There’s an app for that!

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lucy and hamMy dog was bathed and groomed on Wednesday. On Thursday, I cooked a ham and left it to cool on the stovetop. There were workers in the house all day long and the dog was irritable and behaving badly. I went upstairs to check on work progress and heard a crash and a yelp and came downstairs to see my freshly bathed basset hound covered head to toe to belly in dripping ham juice with the broken glass roaster all around her (not to mention my ham). She was so shocked she didn’t know whether to lick the floor or herself. The groomer got a good laugh out of the story and at the miserable and greasy dog.

Then later on Thursday, I saw a story over at LexisNexis titled “In A Lurid Story Of E-Discovery And Ham, Magistrate Judge Tells Parties To Pay For A Forensic Expert To Sort Through The Data”. Coincidence? I think not. On the other hand, we do need to comment that while this is a light-hearted post, the potential traumatic impact of workplace sexual harassment and wrongful termination is very real, and not funny at all.

In this “lurid” tale of the HoneyBaked Ham company and allegations of both sexual harassment and retaliation–there are multiple elements to consider in the EEOC-filed class action suit against HoneyBaked Ham: social media, workplace climate, the emotional impact of victimization, pejorative labels, sexual harassment, retaliation, and what is private and what is not. HoneyBaked Ham wanted to assess the Facebook account activity of female members of the class action suit and told the judge they thought there would be relevant Defense information to be found via an e-discovery process on those Facebook pages. The judge agreed to the Defense request for e-discovery:

Judge Hegarty determined that “there is no question [HoneyBaked] has established that the documents it seeks contain discoverable information.” For example, he pointed to a photo one of the women posted of herself wearing a t-shirt imprinted with a foul adjective-easily the most offensive term used to describe a woman-a term she says a HoneyBaked employee used to describe her. Also on her Facebook page, according to the judge’s order, this class member shared her financial expectations from the suit, her feelings about the loss of a pet and a broken relationship. She also described her positive outlook on life post-termination, her sexual aggressiveness, her post-termination employment, her sexual liaisons, her income opportunities, and sexually amorous communications with other members of the class. The list goes on. (Are you ready to close your Facebook account yet?)” 

In brief, the judge appointed a special master to go through Facebook, social media accounts, emails, text messages, and so on to find any and all communications that might be relevant to the class action suit. A questionnaire was designed to focus the e-discovery so that not everything was reported simply because it was salacious. Whew. Does this mean there is privacy online after all?

Probably not. This is a cautionary tale. A veritable object lesson. And here is the lesson. Do not leave your freshly baked ham cooling within reach of an inquisitive and food-driven basset hound. And whether you work for the HoneyBaked Ham Company or elsewhere, do not post things on Facebook (or email them, or text them, et cetera, et cetera) unless you are comfortable with them being the subject of e-discovery at some point in the future.

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