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Archive for the ‘Voir Dire & Jury Selection’ Category

spiral of silenceWe’ve blogged a fair amount on the impact of the internet and social networking on jurors but here is something unexpected. People that engage in social media are less likely to discuss heated topics in the news, not more likely. This is according to a recent Pew Research report.

Back in 1974, Noelle-Neumann described the “spiral of silence” which basically describes a tendency to not speak up when we perceive our own beliefs and opinions to be in the minority. With the advent of intense social media involvement, researchers had hoped there would be more willingness to engage in discussion that truly reflected a variety of beliefs and values. Alas, it is not so.

The new report on the Pew website essentially says the relative anonymity afforded by the internet doesn’t make us (or at least most of us) brave enough to stand up for what we believe. It’s a sad commentary and what it seems to say is the “new transparency” of social media is just another public facade people who hold minority opinions feel they must maintain. Perhaps it is due to FoMO–another recent blog post of ours.

Regardless, here is some of what the Pew report finds in data collected from 1,801 adults between August 7th and September 16th, 2013–using the example of the Edward Snowden-NSA story. As background, the Snowden story was chosen since previous Pew surveys found the public was split on this story: 44% said the release of classified information harms the public interest and 49% said it serves the public interest. Of the 1,801 adults surveyed, 80% of the adults in this survey were internet users. 71% were Facebook users and (only) 18% of them were Twitter users.

While 86% were willing to have an in-person conversation about the Snowden-NSA story, only 42% of Facebook and Twitter users said they were willing to post about it online. The researchers believe social media users are particularly attuned to the opinions of those around them and are thus less willing to disagree with them.

Even when holding other factors (like age, gender, education, race, and marital status) constant, social media users are less likely to say they would join in (even in person) than non-social media users of the internet. Facebook users are only half as willing to discuss the Snowden-NSA story at a physical public meeting as a non-Facebook user. Twitter users are less likely to be willing to share their opinions in the workplace than internet users who do not use Twitter.

Social media users who think their social media friends and followers disagree with them on the Snowden-NSA issue were “more likely to self-censor their views on the story in both social media and in face-to-face encounters”.

In both face-to-face and online environments, people were more willing to openly express their views if they thought others agreed with them. 86% said they were “very” or “somewhat” willing to have a conversation about the story in at least one face-to-face setting, but only 42% of Facebook and Twitter users would discuss the story on social media.

The Pew Foundation graphic illustrates this clearly:

Pew spiral blog insert

 

From a litigation advocacy perspective, the chilling effect of social media involvement on one’s willingness to state a differing opinion is of great concern. We have always taken the lone naysayer in pretrial research seriously and expressed appreciation for their courage in speaking up in disagreement. This survey highlights the need to establish a friendly and receptive juror-centric tone (rather than one of client advocacy and confrontation) in voir dire. And it is yet another reason to teach jurors in actual trials how to deliberate and to make clear for them the importance of allowing disagreement and the expression of differing opinions.

One day perhaps we will all feel able to express what we believe to others. Social media, contrary to the expectations of many, has not changed the desire to not make waves and to self-censor opinions we believe will be unpopular.

We have all seen the evidence of what are commonly known as “trolls” on comment pages for various news sites and high-traffic. These people are not those identified by this Pew Report and we’ve covered a research study that helped us to understand those who actually comment on major news sites are probably not people we want as jurors!

KEITH HAMPTON, LEE RAINIE, WEIXU LU, MARIA DWYER, INYOUNG SHIN, AND KRISTEN PURCELL (2014). Social Media and the ‘Spiral of Silence’. Pew Research Internet Project.

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“Smart people ask for (my) advice!”

Monday, September 15, 2014
posted by Douglas Keene

smart people ask for adviceWe are often wary of asking for advice for fear of looking dumb or appearing incompetent. Oddly enough, our fears may be unfounded based on some new research out of Harvard Business School. According to the researchers, asking for advice does not make you appear either dumb or incompetent. Instead, asking for advice makes you seem more capable.

While initially this may seem unlikely, think about how much people love to give advice. When someone is asked for advice, they experience a boost in self-confidence, which, say the researchers, in turn enhances their opinion of the person seeking advice. It is, in truth, a win-win situation. The person asking for advice gets some feedback and they are seen as more competent while the person being asked for advice feels better about themselves (and about the person asking for advice).

The researchers (we’ve covered some of their earlier work here) conducted 5 separate experiments and here is what they found:

Asking for advice actually increases other’s perceptions of your competence.

When the task is difficult, asking for advice causes the person seeking advice to appear more competent than when the task is not difficult. However, even when the task is easy, seeking advice did not lower perceptions of the person’s competence!

When someone is asked for their specific advice, they see the asker as more competent. However, if they see the person asking someone else for advice, they do not see the advice seeker as more competent. The researchers believe there is a “direct flattery” component involved here since “being asked for advice caused advisors to feel more self-confident, and, in turn, to view the advice seeker more positively”.

Finally, the advice-giver needs to believe themselves competent and experienced in the area in which they are asked for advice. [Of course, a lot of people have an inflated sense of the scope of their qualifications…] If the advice seeker asks for guidance in an area of the advisor’s expertise, the advisor sees the seeker as more competent. However, if the advisor is obviously not experienced in the area, “then the advice seeker seems less competent than if s/he had not asked for advice” at all.

The researchers say our fears about appearing incompetent by asking for advice are unfounded and that, in truth, there are benefits to both being the advice-seeker and being the advisor. They believe that organizations benefit from encouraging advice-seeking as it will help spread useful information and improve relationships between colleagues and co-workers. The dilemma is that if you educate your employees on the advantages of advice-seeking to both the advice-seeker and the advice-giver–you run the risk of the advice-giver feeling manipulated and the advice-seeker wanting to “not be that guy/gal”. The authors do not offer advice to the manager looking for ways to build this dynamic into their office culture–they simply say it would be a positive and productive thing. (See the full text of the paper here.)

This explains why one of our favorite strategies for both debriefing mock jurors and conducting voir dire are so productive. At mock trials and focus groups, I introduce the process by sharing with the mock jurors my hope that through their collective wisdom we can tell the disputing parties and their lawyers what ‘real people’ think about the issues, and guide a resolution that doesn’t require a trial. It elevates them from being there for a couple hundred dollars to being there to solve a problem. They really like it. At trial, asking the venire questions framed in terms of “help me understand” and “Is that important to you?” makes them feel that you are seeking their perspective, not quizzing them or boxing them in. It credits them with having a contribution to make, that they are smart enough to have a valid opinion, and that you recognize the validity of their point of view. It’s not about you or your client at that point, it’s about the jurors. And that can’t hurt.

Brooks, AW, Gino, F, & Schweitzer, ME (2014). Smart people ask for (my) advice: Seeking advice boosts perceptions of competence. Harvard Business School Working Papers

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The Fear of Missing Out (FoMO) Scale

Friday, September 12, 2014
posted by Rita Handrich

Fomo-Meme 2Social media applications have made it much easier for us to know what our friends are doing. While this knowledge can have positive benefit, it can also result in a paralyzing fear of missing out (popularly known as FoMO). FoMO has even made the Oxford Dictionary and is defined there as “anxiety that an exciting or interesting event may currently be happening elsewhere, often aroused by posts seen on a social media website”. Researchers in 2011 and 2012 defined FoMO as “the uneasy and sometimes all-consuming feeling that you’re missing out — that your peers are doing, in the know about, or in possession of more or something better than you”. The researchers from today’s article define FoMO as “a pervasive apprehension that others might be having rewarding experiences from which one is absent” and say that “FoMO is characterized by the desire to stay continually connected  with what others are doing”.

FoMO is apparently one reason people are so drawn to multiple social media sites. Someone who actively uses Twitter, Facebook, FourSquare, Instagram and Pinterest (for example) could be experiencing FoMO (along with not having time to perform an actual job). FoMO could also be a reason behind the obsessive checking of smartphones during actual face-to-face conversations. There are multiple articles devoted to overcoming FoMO. Obviously FoMO is a serious problem for some people, so it is good academics have come to our rescue and developed a scale (the first) to measure the Fear of Missing Out (FoMO).

The researchers developed a 10-item Fear of Missing Out Scale and their results indicated something shocking: “the young, and young males in particular, tended towards higher levels of FoMO”. Further, they mention those high in FoMO tend to use Facebook during university lectures and compose and read emails and texts while driving. You may wonder what sorts of questions are used to measure something as clearly destructive as FoMO. We are here to serve. This is a 10 item measure and we will share 4 of those questions with you so you have a sense of the kinds of questions that will measure FoMO. These questions are rated on a 5-point Likert scale of “not at all true about me” to “extremely true of me”.

I fear others have more rewarding experiences than me.

I get anxious when I don’t know what my friends are up to.

Sometimes I wonder if I spend too much time keeping up with what is going on.

When I go on vacation, I continue to keep tabs on what my friends are doing.

From our perspective, it makes sense that this is a phenomena largely experienced by the young. Social media activities can take a tremendous amount of time if you really engage in it. The preoccupation with all things social media is a constant concern for trial lawyers and court personnel who worry about what we used to call the Google mistrial. The one benefit of the FoMO Scale we can see for litigation advocacy is the way the scale designers asked about social media involvement.

Rather than asking if participants used social media platforms, they asked very specific questions. They asked participants if they used social media “within 15 minutes of waking up”, “while eating breakfast”, “when eating lunch”, “when eating dinner”, or “within 15 minutes of going to sleep”. They asked how often in the past week (from “not once” to “every day”) they had used social media during all those times. Those with more extreme usage responses were (not surprisingly) higher in FoMO. The lesson?

Heavy social media users are likely to be more distracted, have a shorter attention span, more likely to reflexively use social media during trial, and want to get jury duty over ASAP so they can get back to tracking what really matters. You probably already knew that but with this new information you can impress everyone you know by saying, “This juror is going to be trouble for us since s/he has a high FoMO”. Thank goodness for academic research on scale development.

Przybylski, AK, Murayama, K, DeHaan, CR, & Gladwell, V (2013). Motivational, emotional, and behavioral correlates of fear of missing out. Computers in Human Behavior, 29, 1841-1848

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TJE_logoThe August issue of The Jury Expert is up and we think you’re going to want to see this. Here’s a rundown of the articles you’ll find at the website.

Demographic Roulette: What was once a bad idea has gotten worse. Authored by Doug Keene and Rita Handrich with a response from Paul Begala, this article takes a look at how the country has changed over the past 2 decades and our old definitions of Democrat or Republican and conservative or liberal are simply no longer useful. What does that mean for voir dire? What should it mean for voir dire? Two very good questions those.

If it feels bad to me, it’s wrong for you: The role of emotions in evaluating harmful acts. Authored by Ivar Hannikainen, Ryan Miller and Fiery Cushman with responses from Ken Broda-Bahm and Alison Bennett, this article has a lesson for us all. It isn’t what that terrible, awful defendant did that makes me want to punish, it’s how I think I would feel if I did that sort of terrible, horrible awful thing. That’s what makes me want to punish you. It’s an interesting perspective when we consider what makes jurors determine lesser or greater punishment.

Neuroimagery and the Jury. Authored by Jillian M. Ware, Jessica L. Jones, and Nick Schweitzer with responses from Ekaterina Pivovarova and Stanley L. Brodsky, Adam Shniderman, and Ron Bullis. Remember how fearful everyone was about the CSI Effect when the research on the ‘pretty pictures’ of neuroimagery came out? In the past few years, several pieces of research have sought to replicate and extend the early findings. These studies, however, failed to find support for the idea that neuroimages unduly influence jurors. This overview catches us up on the literature with provocative ideas as to where neurolaw is now.

Predicting Jurors’ Verdict Preference from Behavioral Mimicry. Authored by Matthew Groebe, Garold Stasser, and Kevin-Khristián Cosgriff-Hernandez, this paper gives insight into how jurors may be leaning in support of one side or the other at various points during the trial. This is a project completed using data from actual mock trials (and not the ubiquitous undergraduate).

Our Favorite Thing. We often have a Favorite Thing in The Jury Expert. A Favorite Thing is something low-cost or free that is just fabulous. This issue, Brian Patterson shares the idea of mind mapping and several ways (both low-tech and high-tech) to make it happen.

The Ubiquitous Practice of “Prehabilitation” Leads Prospective Jurors to Conceal Their Biases. Authored by Mykol C. Hamilton, Emily Lindon, Madeline Pitt, and Emily K. Robbins, with responses from Charli Morris and Diane Wiley, this article looks at how to not “prehabilitate” your jurors and offers ideas about alternate ways of asking the question rather than the tired, old “can you be fair and unbiased?”.

Novel Defenses in the Courtroom. Authored by Shelby Forsythe and Monica K. Miller, with a response from Richard Gabriel. This article examines the reactions of research participants to a number of novel defenses (Amnesia, Post-Traumatic Stress Disorder (PTSD), Battered Women Syndrome (BWS), Multiple Personality Disorder (MPD), Post-Partum Depression (PPD), and Gay Panic Defense) and makes recommendations on how (as well as whether or not) to use these defenses.

On The Application of Game Theory in Jury Selection. Authored by David M. Caditz with responses from Roy Futterman and Edward Schwartz. Suppose there was a more predictable, accurate and efficient way of exercising your peremptory strikes? Like using a computer model based on game theory? In this article, a physicist presents his thoughts on making those final decisions more logical and rational and based on the moves opposing counsel is likely to make.

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Just how diverse is this group, really?

Wednesday, August 27, 2014
posted by Douglas Keene

Diverse PeopleWe often make assumptions when discussing diversity that we all perceive a group’s diversity in the same way. Today’s research shows that simply isn’t so. That is, you and I (depending on our racial in-group) can look at the same group and you might say it is diverse while I say it is not. What makes the difference? It’s an intriguing question.

These researchers discuss how diversity means different things to different people and yet, we often discuss diversity as though “everyone ought to know it when they see it”. In other words, we often conceptualize ‘diversity’ as objective rather than as something that will vary across individuals and situations. Their belief is that racial minorities look at groups and assess whether there is anyone else in the group from their own in-group since they believe that is the best predictor of whether they would be treated fairly by the group. The researchers review the lengthy history of research and polling results showing varying perceptions of race relations by Whites and minority group members. They then focus on differences in how groups are perceived (in terms of diversity) by African-Americans and by Asian Americans.

African-Americans, say the researchers are often lower status, have more negative stereotypes and report more discrimination than do other minority groups.

Asian Americans, on the other hand, are often granted higher status and report lower levels of discrimination than other minority groups. (We would point out that just because Asian Americans report less discrimination doesn’t mean they do not experience discrimination.)

The researchers completed three separate studies to see if there were differences between African-American and Asian Americans in terms of the perception of group diversity.

Study 1 included 1,899 American (391 Asian American, 620 African-American and 888 non-Hispanic White) members of a polling panel maintained by GfK. Participants read a short statement about a large corporation forming a management team for a new project and saw a photograph of the 6 managers. The racial composition of the management team was manipulated so there were 4 conditions: the Asian representation condition had 2 Asian-Americans and 4 White managers; the African-American representation condition had 2 African-American managers and 4 White managers; the Asian + African-American condition pictured 1 Asian American, 1 African-American and 4 White managers, and the final group was composed of a WhiteOnly condition that pictured 6 White team members. Participants were asked how diverse they thought the group pictured was.

Asian Americans thought the Asian representation group more diverse than the African-American representation group. African-American participants thought the African-American representation group was more diverse than the Asian representation group. This relationship was stronger for African-American participants than for Asian American participants.

Asian-Americans saw more diversity in the Asian + African-American representation than did African-American participants. The researchers say this means Asian-Americans and African-Americans responded differently to racial minority “out-group representation”.

Study 2 included 1,080 Americans recruited by Qualtrics of which 471 were Asian American and 574 were Black. The group was 57.8% female and ranged in age from 18 to 72 years with an average age of 34 years. 13% had graduate degrees, 32% had bachelor’s degrees, 39% had some college coursework completed and 15% had completed high school or earned a GED. Some participants in this study read that a research group found prejudice and discrimination against African-Americans had increased in recent years especially in terms of employment. Others read the same article but the words “Asian Americans” replaced “African Americans”. Then they looked at either the Asian representation, African-American representation, or Asian + African-American representation photos used in the first study and rated how diverse they thought the group pictured was.

Both Asian American and African-American participants saw the teams as more diverse when it included members of their racial in-group compared to when it included members of another racial minority group. (The effect was once again stronger for African-American participants.)

The need for in-group representation to see a group as diverse was stronger for Asian-Americans who read about higher levels of discrimination against their group in the workplace. For African-American participants, however, the level of in-group representation was equally important whether they had read about higher levels of discrimination against their group or not. The researchers thought this indicated discrimination was more chronically salient for African-American participants than for Asian American participants.

Study 3 included 380 upper-level undergraduate business majors (210 non-Hispanic White and 126 Asian American). Participants read that a large company had formed a new management team and saw headshots of eight people in business attire. Altogether, there were four racial compositions for the management team: Asian Majority (5 Asian and 3 White team members), African-American Majority (5 African-American and 3 White team members), Asian + African-American diversity condition (2 Asian, 3 African-American and 3 White team members), and White Only (8 White team members). Again they were asked to rate the diversity of the team and also asked to indicate how likely they thought the team was to be able to manage discrimination issues.

Asian American participants saw each team as differently diverse. They saw the Asian + African-American team as most diverse, then Asian Majority, then African-American Majority, and finally, White Only.

White participants saw the Asian + African-American condition as most diverse and the White Only condition as least diverse but thought the Asian Majority and African-American Majority conditions were the same in terms of diversity.

This research highlights the complexity of “diversity” and the importance of assessing perceptions of different racial groups when it comes to diversity. Overall, say the researchers, African-Americans are more chronically attuned to issues about race than are Asian-Americans. Therefore, how diverse a group is seen as being depends on how many African-Americans are represented.

There are many more details to be found in this complex and nuanced work. It’s also interesting to consider in light of the research on race and death penalty juries. Perhaps part of the reason African-Americans are so sensitive to whether a group will treat them fairly is because so often they are not treated fairly. We write a lot about bias. In this line of work, we see a lot of it. This particular research helps us understand some of the nuances more fully.

Bauman CW, Trawalter S, & Unzueta MM (2014). Diverse According to Whom? Racial Group Membership and Concerns about Discrimination Shape Diversity Judgments. Personality & Social Psychology Bulletin PMID: 25106545

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