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Archive for the ‘Voir Dire & Jury Selection’ Category

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

TJE_logoA new issue of The Jury Expert has been published, and as usual, it’s one worth reading. As Editor since May, 2008–I get to see the articles as they come in and am always surprised at (and appreciative of) the creative and stimulating content we receive. The Jury Expert, like this blog, is all about litigation advocacy and understanding how new research can help inform your strategies in the courtroom. Here’s what you can see in the lineup for the November 2014 issue.

Does Video Image Size Affect Jurors’ Decisions? A Look at How Image Size Interacts with Evidence Strength, Defendant Emotion and the Defendant/Victim Relationship

Wendy Heath and Bruce Grannemann ponder how video image size in the courtroom is related to juror decision-making about your case. They discuss how image size interacts with image strength, defendant emotions, and the defendant/victim relationship. Trial consultants Jason Barnes and Brian Patterson team up for one response to this article and Ian McWilliams pens another. This is a terrific article to help you reconsider the role of image size in that upcoming trial.

Moral Outrage Drives Biases Against Gay and Lesbian Individuals in Legal Judgments

Sarah Malik and Jessica Salerno have some original research on bias against gays in the courtroom. This is simple and powerful research that illustrates just how moral outrage drives our judgments against LGBT individuals (especially when they are juveniles). Stan Brodsky and Christopher Coffey team up for one response and Alexis Forbes pens a second. While these findings make intuitive sense, they may also highlight something you’ve not previously considered.

Anti-war Protestors and Civil Disobedience: A Tale of Two Juries

Lynne Williams is a trial consultant who lives in the cold and snowy state of Maine. She is also skilled in picking juries for political trials and a gifted writer as she describes the important differences between picking juries for civil disobedience cases and antiwar protestor cases. This article not only explains what Ms. Williams does, but why and how she does what she does. It’s like lifting up the top of her head and peering inside her brain.

A Qualitative Examination of Self-Care in Lawyers

Mary Wood, Jacklyn Nagle and Pamela Bucy Pierson bring us this qualitative examination of self-care in lawyers. They talk about workplace stress and depression and substance abuse. Been there? Are there? Some kinds of self-care may work better than others but–what’s important is that you actually do some self-care! Andy Sheldon and Alison Bennett share their reactions to this article.

Favorite Thing: Plain Text

Why, you may wonder, would Plain Text EVER be a Favorite Thing. Because it is fabulous. Or, perhaps because, “Plain text is the cockroach of file types: it will outlive us all.”

The Selective Allure of Neuroscience and Its Implications for The Courtroom

Adam Shniderman knows neuroscience evidence can be incredibly alluring. This new study shows us that unfortunately (or perhaps fortunately) it is not universally alluring. Here’s a shocker: the impact of the neuroscience evidence is related to the individual listener’s prior attitudes, values and beliefs about the topic. Robert Galatzer-Levy and Ekaterina Pivovarova respond with their thoughts on the issues raised.

Book Review: Law and Neuroscience

Law and Neuroscience by Owen Jones, Jeffrey Schall, and Francis Shen has just published and is as long as any Harry Potter tale at more than 800 pages. Rita Handrich takes a look at this new textbook and reference manual which covers more than you ever knew existed on the wide-ranging field of neurolaw (which is a whole lot more than the “my brain made me do it” defense).

Promoting Communications between Social Scientists and Lawyers

Roy Bullis is back to talk to us about the wide language gulf between attorneys and their social science expert witnesses. Just because you are talking, doesn’t mean you are actually communicating. How do you talk so your expert knows what you mean?

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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

quackery

We just wrote about popular blogs picking up old survey data and discussing it as though it were new and relevant. Now, Pacific Standard magazine has published a rehashing of the content of a book published in 2002 as though it was fresh and new. Our friend and colleague, Ken Broda-Bahm over at Persuasive Litigator has done a blog post that looks carefully and critically at the claims made and we encourage you to read his post as a counterpoint to the Pacific Standard article by Jane C. Hu. Ken closes his post where we wish to begin ours:

“And in the meantime, those who have questions about the foundation for trial consulting and jury selection assistance should ask an experienced practitioner, and should focus on the actual practices and not on the myths.”

If it wasn’t so annoying in its gross distortions about the practice of litigation consulting, the dated Kressel and Kressel book, Stack and Sway, would be amusing. If trial consultants actually had the power to “stack and sway” juries, we would be very, very wealthy and there would be a lot more of us than there truly are in the country today. And the system would be irreparably harmed. We are not experts in verdict slight-of-hand. We are students of–and aspiring experts in–identifying and uncovering bias. We research and seek to understand what life experiences and values bear upon the decisions juries reach, in an effort to keep those preconceptions from influencing verdicts against our clients. Yes, we would like to see our knowledge assist our clients. But the purpose of “scientific jury selection” is not to “win” but to swear in a jury that will actually listen to the presentation of evidence and make decisions based on what they hear, rather than deciding based on their pre-existing biases and predilections.

Instead of stacking and swaying, we would describe what we do as applied social science. We read voraciously in the social science research literature and apply what we find there, when relevant to our work. Rather than, as Hu suggests, “incentivizing the use of lazy stereotypes”, we work to identify stereotypes and then to excise them from voir dire, jury selection, and case presentation. As Broda-Bahm notes, a skilled and veteran trial consultant has actual knowledge about many (but not all) of the characteristics that identify biased jurors. With no knowledge or insight, all that is left is the “lazy stereotypes”. Hu poses the accusation against trial consultants, and then goes on to note the obvious contradiction–information reduces stereotyping in every area of life, including jury behavior and jury selection.

If you read this blog routinely, you know we focus intently on bias in many shapes and forms. What we know, as many of you also know, is that bias is powerful, pervasive, and persistent. We want to know where bias lurks and how it may twist and turn depending on case facts. It can take a lot of work to identify biases affecting decisions in a given case and it certainly is not a process we would describe as “lazy”.

Ironically, Hu’s example of how trial consultants use lazy stereotypes cites a case wherein a prosecuting attorney used a stereotype to strike a juror. Note to Hu: prosecuting attorneys are not typically trial consultants (nor do they typically use trial consultants).

Recently, I joined the trial team for a three-week intellectual property trial following the completion of a mock trial where we had measured the attitudes, values and beliefs of our mock jurors and looked closely at how those pre-existing characteristics were related, if at all, to eventual verdict in our mock trial. As every trial lawyer and litigant would wish, we tried to figure out as much as possible about who was in the jury box. Hu, in her recent Pacific Standard article, characterizes this as “creepy”. It really is more sensible than “creepy”. I would be intrigued to hear Ms. Hu list the information that, were she a party to a lawsuit or facing criminal prosecution, she would like to keep away from her trial counsel due to excessive creepiness.

When you work on litigation where there is a lot of money on the line, it is very likely that both sides have done pretrial research. The playing field is typically fairly balanced. Just as the trial team is looking into every legal theory that might aid in their client representation, litigation consultants are engaged to help strategize how to overcome bias in juror decision-making.

It is very likely that both sides are doing internet research to identify values, attitudes and beliefs that inform individual decision-making processes of potential jurors.

If there is no time for research on individual jurors prior to voir dire, it is likely that both sides are doing that research once a jury is seated in order to inform tweaks to case narrative.

If no jury research is done, voir dire is rushed or not permitted, and nothing else is known about the venire members–decisions will be made based on stereotypes.  And sadly, the attorneys who are making those calls will do it knowing that it is a lousy way to make strike decisions. Using demographic stereotypes (age, education, socio-economic status, race, employment, marital status, parental status, etc.) is a very crude tool, far too much like doing surgery with a very dull blade.

If you choose not to conduct pretrial research and eventual juror research in cases with budgets that can justify it, you are either naïve, over-confident, unaware, or perhaps you are just a dinosaur. Back in 2002, when Kressel and Kressel wrote their book, internet research was unable to find much. In 2014, the age of social media and online documentation of life, there is much to learn and there are ethical ways to guide that exploratory internet research.

We feel very comfortable with our work and with our attorney-clients. We are fortunate to have clients who are committed to advocacy and fairness. We are not, as Hu suggests, ethically challenged. We are not creepy. We do not stalk potential jurors and we do not attempt to friend them on Facebook. We look at what people put out there in public for all the world to see online. We are informed, educated, principled professionals who work hard to identify bias and level the playing field. Sometimes we win. Sometimes we lose. But we always try our best to identify where a person is at risk of losing track of the evidence and revert back to their historical biases and stereotypes.

We encourage you to read Ms. Hu’s article, keeping in mind what Ken Broda-Bahm has written and what we have shared here. Ultimately, what Ms. Hu writes of is not jury consulting, it is instead, someone’s confused fantasy about what our goals are, what our methods are, and what guides our practices. Our readership is smart and discerning. You’ll figure it out. And eventually, Ms. Hu might, too.

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online pornWe can hear the snickers and gasps now–and likely the immediate objection from (probably) the opposing counsel or (unquestionably) the judge. But not always. So why might this be something you want to know? According to new research in the Journal of Sex and Marital Therapy, a distinguishing characteristic of narcissists is that they watch more porn online. That actually makes intuitive sense since narcissists would want to avoid rejection and objectify others as sexual objects. We are not sure how you would get this sort of question in though–unless the case actually involved online pornography.

More interesting to us (by far) was the information on the frequency of porn viewing online. For the study, researchers asked 257 participants (aged 18-61 years with an average age of 29 years, 63% female, 89.1% heterosexual, 70% White, 12.1% Hispanic, 7.4% Black, and 10.5% Other) to complete measures of narcissism (using the Narcissistic Personality Inventory, the Pathological Narcissism Inventory, and the Index of Sexual Narcissism) and report on the specifics of their internet pornography viewing (they were asked if they had ever viewed, and if they currently viewed internet porn as well as how many minutes per week they viewed internet pornography).

79% reported they had viewed internet porn.

44% reported currently (recently) viewing internet porn.

Current viewers, on average, viewed internet porn 85 minutes per week (or about an hour and a half).

Men spend more time on internet porn (an average of 3 hours per week) than do women (an average of about 1/2 an hour per week).

There was a significant difference in level of narcissism between those (79%) who had ever viewed internet porn and the 21% who had never viewed internet porn.

The researchers comment the sample of those who had viewed porn (the 79%) was skewed by gender since 96% of men reported they had viewed internet porn. Nonetheless, the 4% of men who had not viewed internet porn was lower in narcissism than the 96% who had. As for women, 68% of women had seen internet porn and again, those who had not scored lower in narcissism than women who had seen porn on the internet.

There was also a difference in level of narcissism between those who currently use internet porn for all measures of narcissism. Current users of internet porn (67% of men and 30% of women) were higher in narcissism than were non-current users.

Finally, as the frequency of internet porn use increased, so did the levels of measured narcissism.

What the researchers say is that there is a relationship between “internet pornography use, narcissistic behavior and psychological harm” to the viewer. They believe that using internet porn “inflates an individual’s narcissism (i.e., selfishness, isolation, and entitlement)”. For the researchers, this work focused on narcissism and how it harms relationships.

While we don’t recommend using this as a method for spotting narcissists (the study falls far short of suggesting that), there are clearly cases (copyright cases, sexual violence cases, premises liability cases, and various wrinkles in family law, to name a few) where attorneys and jurors need to be comfortable talking about salacious topics such as this. From a litigation advocacy perspective, this research validates being able to ask about sex and pornography in court* with a reduced fear of offending jurors.

The asterisk is that you need to tell them that virtually all men and over ⅔ of women have watched pornography on the internet. Otherwise, many will feel embarrassment and anxiety. You can normalize by pointing out the truth. When more than 3/4 of a group of 250+ have viewed internet porn, it takes much of the fear of stepping on juror sensibilities away. In fact, you could even say you’ve seen studies saying almost 80% of adults have viewed internet porn at some point in their lives.

There are many times we think the themes in our case are sure to alienate the triers of facts. What we’ve learned in our pretrial research is that when you matter of factly explain the issues, without giggling, blushing, or perspiring, jurors are willing to join you in an adult discussion of case facts.

We’ve also seen glib puns, one-liners, and shared glances with disbelieving grins shared among our mock jurors but they have always been able to quickly redirect their attention when their humor was acknowledged and a focus drawn back to the issues at hand.

Kasper TE, Short MB, & Milam AC (2014). Narcissism and Internet Pornography Use. Journal of Sex & Marital Therapy, 1-6 PMID: 24918657

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ISO LibertariansBack in 2010 we blogged on a survey of more than 150,000 Libertarians. We now have an update on Libertarians in America courtesy of the Public Religion Research Institute! Unlike the original survey, this one was based on a random sample of 2,317 American adults (from people who are part of GfK’s Knowledge Panel). Interviews were conducted online in both English and Spanish between September 21, 2013 and October 3, 2013. The results offer multiple tidbits potentially useful in voir dire (or simply for expanding your knowledge of Libertarians in America). The full text of their study is accessible online, but here are a few of the findings we found interesting.

Only 7% of Americans are consistent Libertarians although an additional 15% lean Libertarian.

Libertarians are nearly all non-Hispanic Whites (94%), male (68%), and under age 50 (62%).

Political affiliation skews more Republican (45%) than Democratic (5%) although (as we’ve pointed out in other posts on how the country is changing) half (50%) say they are either unaffiliated, politically independent, or belong to a third party.

Tea Partiers? A substantial portion are, but not entirely. 39% of Libertarians identify as part of the Tea Party movement but 61% do not. Libertarians are about 26% of the Tea Party movement while the majority of Tea Partiers (52%) describe themselves as part of the religious right and 35% say they are white evangelical Protestants.

Libertarians are more likely to pay attention to what is going on in government or politics than the average American. Only 38% of Americans say they pay attention to politics and government “most of the time or always”. Among Libertarians, the majority (56%) endorse this response option.

Libertarians are more strongly opposed than most to raising the minimum wage, Obamacare, and increasing environmental protections (all issues reflecting government involvement in economic policy).

The libertarian profile on social issues diverges from their conservative economic outlook: 57% of Libertarians support abortion rights, 70% support MD-assisted euthanasia, and 71% favor legalizing marijuana. Oddly, considering these liberal views on social issues–a majority of libertarians (59%) oppose same-sex marriage.

Libertarians have more positive feelings toward atheists (46%) than either Tea Party members (33%) or white evangelical Protestants (25%). They are also more positively disposed toward gay and lesbian peoples (49%) than are members of the Tea Party (44%) or white evangelical Protestants (38%).

Nearly 2/3 of Americans (65%) support making pornography more difficult to access on the internet. However, among Libertarians, only 31% favor making pornography more difficult to access while 68% oppose this movement.

This study offers a close-up view of those Americans who consistently respond to questions in a pattern the authors identify as Libertarian. Their responses, according to this report, are much more consistent than those who call themselves Libertarians but are not really identifiable as such based on their responses to a scale measuring political orientation. (We will write about this scale, the Libertarian Orientation Scale, in our next post.)

It isn’t at all clear whether there is a consistent notion of “I am Libertarian”, and whether those jurors and mock jurors we follow carefully are comparable to those in this study. Stay tuned to a post we have scheduled for Wednesday of this week, and we will let you know how to determine whether a person fits the definition of Libertarian used by researchers. And we will continue to observe and track the reactions of our mock jurors who say they are Libertarian and see how their responses relate to their eventual verdict.

Jones, RP Cox, D Navarro-Rivera, J 2013 The 2013 American Values Survey: In Search of Libertarians in America. Public Religion Research Institute.

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american marital statusWe’ve known for a while that the proportion of American adults who are married is decreasing but in mid-September, 2014 there was a flurry of media coverage over economist Edward Yardeni’s report (titled “Selfies”) that the majority of Americans are now unmarried (he calls that “remarkable”) and believes they are driving economic changes. Unfortunately, his report is behind a paywall and we cannot access it but thanks to Bloomberg, we know some of what he had to say (and much of it appears to be drawn from publicly accessible statistics from the US Census Bureau).

In short, in 1976, 37% of Americans were single and now, in 2014, more than half of Americans are single. Yardeni thinks this changing demographic will result in fewer of us having children and in fewer of us owning homes.

The numbers support his conclusion: Young singles, in particular, are more likely to rent than own.

Never-married singles are less likely to have children and (now divorced and single) older adults are unlikely to have young kids. Yardeni thinks this will have an effect on how much money they spend and what they buy since they have fewer expenses than married people with children.

The percentage of never-married singles in 1976 was 22.1% and now it is 30.4%. (The proportion that are single by divorce, separation, or death of a spouse increased to 19.8% from the 1976 level of 15.3%).

It’s an intriguing set of information, but it is hardly news. In the past ten years, just as we’ve watched political affiliations of our mock jurors shift dramatically, we’ve also been watching the marital status of our jurors shift. While we used to consistently have a majority of jurors report they were married, now we often have a majority who are either never married or have been married previously but are no longer married. It’s another short-hand that has changed for us.

We used to think of our married mock jurors as “connected” to others. Now, we look for other signs of connectedness. Are they in a relationship? Are they involved in community groups or activities? Do they volunteer?

Just as union membership (in many areas of the country) has declined as a short-hand way to assess politics and SES, we can no longer rely on political affiliation or marital status to use as short-cuts to categorize our mock jurors. It is sometimes frustrating as we struggle to understand research results but it is also reassuring to see that change happens and to know that eventually we will wrap our brains around it and have a new short-cut defined–just in time for a new shift to occur.

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