Archive for the ‘Voir Dire & Jury Selection’ Category
We write a lot about tattoos here—perhaps because we have Millennial aged kids and at least half of them have tattoos. Okay, more than half. The meaning of tattoos has changed over the years and there seems little stigma still associated with them any longer. The authors of new research on college students (2,394 of them from six different North American public universities, most between 18 and 20 years of age, 67% White and 59% female) opine that a “single rose or zodiac sign [tattoo] is no more edgy today than the Beatle haircut in the early ‘60s”.
In their review of the literature, the authors indicate that tattooed individuals are more likely to be risk-takers and to have a need to express their uniqueness. While historically the opposite, more women (23%) than men (19%) now have tattoos. However, women—in addition to being more likely to have tattoos—are also more likely to seek tattoo removal. There appears to be a relationship between having tattoos and having a history of emotional, physical or sexual abuse and in fact, there is a relationship between having multiple tattoos and also having a history of suicide attempts.
These researchers wanted to update the research on tattoos and well-being and here are some of their major findings:
Females were more likely to report at least one suicide attempt and to have lower self-esteem and more depression.
The number of tattoos on any one individual had no association/relationship to suicidal thoughts (aka ideation) but was related to reports of at least one suicide attempt, to depression, and to self-esteem (higher self-esteem).
Suicide attempts were related to depression and suicidal thoughts. Higher self-esteem was more likely to occur in the absence of suicide attempts.
A fair reading of those two sentences raises some odd questions. How can it be that among those who report depression and suicide attempts there is a boost to self-esteem? It may speak to two (or more) subgroups within the younger tattooed population. So the researchers wanted to learn more—particularly as higher numbers of tattoos have been associated with greater amounts of deviant behavior in past research. So they dug in (statistically speaking) and found a bit more.
The level of self-esteem among those with tattoos increased as they got more tattoos. For example, those with four or more tattoos reported one or more prior suicide attempts (and this was at a rate three times higher than those with no tattoos at all). For women with four or more tattoos, the suicide attempt rate was even more dramatic—almost four times higher than among those without tattoos.
But where does the increased self-esteem enter the picture? Overall, the self-esteem of women was lower than the self-esteem of men participating in the study. (This is not really a news flash since women do tend to report higher depression and lower self-esteem than do men.) However, as the researchers continued to statistically delve into their data, what they found was that while women with four or more tattoos did have a history of prior suicide attempts they were also more likely to have higher self-esteem. It is, say the researchers, as though there is something restorative and life-affirming for women about getting tattooed.
“We know that breast cancer survivors sometimes get tattoos in an effort to express, control, or reclaim ownership of their bodies.”
Perhaps, they say, women who are struggling with depression and/or suicidal thoughts seek out tattoos and imbue the process with meaning or symbolism that elevates their self-esteem and is therefore emotionally restorative. It’s an intriguing statement. And certainly a more positive one than saying that when you have multiple tattoos you are likely deviant.
From a litigation advocacy perspective, this research tells us to, once again, keep up with the times and the changing meanings of tattoos. Rather than a sign of deviance—perhaps that young woman with at least four visible tattoos is a survivor of trauma who has reclaimed her life. And that simple fact may move her from being a juror you might think is anti-social or unreliable, to one with a compelling story and persuasiveness, who can lead a deliberation focused on themes of re-invention, reclaiming the self, and rising above negativity.
Koch, J., Roberts, A., Armstrong, M., & Owen, D. (2015). Tattoos, gender, and well-being among American college students. The Social Science Journal, 52 (4), 536-541 DOI: 10.1016/j.soscij.2015.08.001
Here at KTC our kids are all Millennials (and we happen to be very fond of them), so we’re sensitive to the experience of Millennials being treated like children even though they have, in some cases, been in the workforce for years. Two recent experiences bring the work of the Pew Research Center to mind.
In the first instance, during a recent focus group we asked individual potential mock jurors if they could maintain confidentiality if they found the story particularly interesting (which it was). One young man we had recruited worked in IT support and was clearly bright and articulate. As we questioned him about confidentiality, he blurted out in frustration, “Oh come on! I’m 26 years old” and we both grinned and said, “Oh, well then!” and laughed a bit harder than he probably believed the comment merited.
The next day, I took my car in for warranty work and was waiting in the service area trying to read and blog in what I’d hoped would be a quiet environment. An older woman was making phone calls to multiple volunteers for a community meal of some sort where they would require those bringing food to give the food “an interesting holiday themed name” and repeated the same lines on every call at several decibels louder than she needed to speak. She was behind me and I looked up in frustration several times only to make eye contact and share mutual eye rolls with multiple 20-somethings also obviously trying to get some work done. Finally, one of the young people sharing my tall table with power outlets went over to her and politely (and quietly) asked her to make her calls outdoors as some of us were trying to get work done. The three of us seated at the table all turned and looked at her so she knew it was not just one person making the request.
It is one thing to be in your 50s (or older) and have to ask someone older than you to keep it down in a public shared space. It is another to be in your 20s or early 30s and do the same thing and I admired the courage and assertion of that young woman who spoke up for all of us making meaningful but silent eye contact. Then I thought back to the young man frustrated by our asking him if he could maintain confidentiality (which in truth is something we ask everyone—not just Millennials) when he’d been working for a number of years and had “signed multiple non-disclosure agreements”. He probably was insulted by our laughter and for that, I apologize as well. It just struck both of us as so funny since it was not at all why we were inquiring. Discretion has little to do with chronological age.
According to Pew Research, Millennials are now ages 18 to 34 years but only about 40% of them identify with the label “Millennial generation” and 33% (mostly the older Millennials) consider themselves part of Generation X. And despite the constant media sniping toward Millennials, the Millennials themselves are the most likely generation to identify with negative labels as descriptors for their generation (while Boomers and Silents see themselves most positively). On the other hand, young adults think there is strong evidence of climate change and that we should prioritize development of alternative sources of energy. Oddly, given the Millennial support of climate change and alternative energy sources, there is no difference in how people across different generations describe themselves as environmentally conscious.
It’s a reminder to us that how we see ourselves and how others see us are not necessarily the same. Whether you are 26 or 66—there are more similarities than differences across generations. Some of us are able to maintain confidences and others are not. Some of us are tolerant and others are not (although they may describe themselves as tolerant). Some of us are organized and capable and others are disorganized and yet can still get things done. We find Pew’s work on describing the generations useful as it tells us (over and over again) how similar we all are—regardless of age. Remember that when you are approaching voir dire and jury selection. Know how we are different but also remember how we are the same.
Pew Research Center. 2015. Most Millennials Resist the ‘Millennial’ Label—Generations in a Mirror: How They See Themselves. September 3. http://www.people-press.org/2015/09/03/most-millennials-resist-the-millennial-label/
How about trying this: Make it interesting. Despite stereotypes that older adults may not have the intellectual or memory capabilities to serve as good jurors in complex cases, reaching the older adult juror appears to rely on the same principle we apply to jurors in general: engage them. In fact, some new research says that when they find it interesting—they remember more than younger people do even a week later. In other words, there is really no reason to assume older jurors won’t keep up. If they are curious and you present your case in an interesting way—you will find them invested and engaged as jurors.
Here’s a brief description of the research:
Researchers used 24 older adults (13 female/11 male with an average age of 72.9 years) and 24 younger adults (16 females/8 males with an average age of 20.3 years). The participants were recruited from the Los Angeles area—both in the community and through UCLA. They all had good self-reported health ratings and the ability to repeat a series of numbers from memory (known to psychologists as the Digit Span test) was not significantly different between the younger and older participants.
They were asked to respond to a series of “60 obscure trivia questions”. First they answered the questions and rated how confident they were in their response. Immediately thereafter, they were shown the correct answer for 6 seconds and then rated how interesting they thought it was now that they knew the correct answer. Finally, they were asked how likely they thought it was that they would remember the answer to the question.
After this, the participants were involved in an unrelated task for an hour and then given an unexpected “quiz” on half of the “obscure trivia questions”. After a week, they were contacted by phone and were tested again on the other half of the questions.
What the researchers found was unexpected (at least unexpected if you think the memory of older adults is faulty).
Whether you are young or old, if you find material interesting, your memory for the material is enhanced. (There was no age-related difference in performance on memory for the trivia questions.)
Younger adults scored a little better on the hour delay than they did on the week delay when it came to recalling the answers to the trivia questions. However, for older adults, the effect was reversed. Older adults remembered more on the week after telephone follow-up than they did in the initial hour delay task. (The researchers think this may say something about the importance of being interested in a topic for older adults to retain the information a week later.)
While these were healthy and non-memory-impaired older adults, there was no sign of memory gap between younger and older participants. And in truth, our experience tells us that most older adults with health issues that might impact their ability to see/hear, their energy, attention, fatigue, pain, et cetera, are not shy about discussing them in voir dire if asked.
What that means for litigation advocacy is that memory and recall is likely not a function of the individual juror but the quality (engaging or not) of the case presentation in court. You can not only rely on older jurors to engage and invest (and thus remember), you can rely on them as much (and perhaps more) than you can rely on younger jurors. We have often seen this in our pretrial research. We look for curiosity and involvement in the world today. We’ve had long-retired bankers who were able to explain banking practices to younger jurors who did not believe attorney presentations of fact. We’ve had long-retired teachers and college professors help to organize how a presentation unfolds for maximum understanding. We’ve had a retired African-American male defuse racial tension during mock deliberations with grace and good humor.
Whether a venire member will be an attentive juror isn’t about age, it’s about whether they find the presentation interesting and engaging.
McGillivray, S., Murayama, K., & Castel, A. (2015). Thirst for Knowledge: The Effects of Curiosity and Interest on Memory in Younger and Older Adults. Psychology and Aging DOI: 10.1037/a0039801
Most of us don’t know how much we rely on smartphone use and this is likely a very important piece of information to help us understand why it’s so very hard for many jurors to stay away from their phones while serving jury duty. While only a small study (29 participants between the ages of 18 and 33 years all using Android smartphones), the disconnect between how much we think we use our smartphones and how much we actually use our smartphones is striking.
Here are just a few of the findings from the study:
Young people in this study used their smartphones for an average of five hours a day (which is 1/3 of the time they are awake).
The average time participants thought they used their phones was actually only about half the time they actually spent on their phones.
During their waking hours, on average they checked their phones 85 times a day.
They used their phones for internet searches, to check the time, to look at email and social media and to listen to music.
The duration of smartphone use was highly skewed with 55% of all uses less than 30 seconds in duration.
The researchers comment that research often relies on individual estimates of mobile phone use but this finding suggests those estimates should be interpreted with caution (and are likely very wrong). The researchers placed an app on each person’s phone so they could compare estimated use with actual use. The app simply calculated the duration the phone was active (using screen on/off as the indicator). In addition, the researchers asked participants to complete the Mobile Phone Problem Use Scale (MPPUS, a 27 item questionnaire that has “positive correlations with self-reported mobile phone use”). One of the issues we see with use of this scale is that it was developed in 2005 (before the current smartphone usage level) but the questions seem to still resonate with what we know of smartphone use in the current day.
Here are a few of the questions from the MPPUS:
When out of range for some time, I become preoccupied with the thought of missing a call.
Sometimes, when I am on the mobile phone and I am doing other things, I get carried away with the conversation and I don’t pay attention to what I am doing.
I have used my mobile phone to talk to others when I was feeling isolated.
I find it difficult to switch off my mobile phone.
The researchers say that, when compared to smartphone use from six years ago—the amount of time we spend on our phones has not increased. They also, like us, express concern with using the MPPUS in the current day as a measure of “problem” use since there is a difference between “heavy” use and “problem” use. Additionally, there was no correlation between scores on the MPPUS and either actual or estimated use of smartphones. It may be that the MPPUS has been outgrown as the technology changes. The researchers report, for example, that all but one of the participants in their study used their phone as an alarm clock and many indicated that they use their phone last thing before sleeping. As smartphones have added additional tools, many people are using them for the new functions.
Overall, the lesson from this research is that our estimated use of our smartphones is likely quite different from our actual use of them and that a measure developed in 2005 has a very different outcome today than it did in 2005 when mobile phone use was relatively new and researchers wanted to see when it might cause a problem for those who loved their phones too much. And from the perspective of litigation advocacy, we need to understand that for many of us, our own acknowledgement of just how much we depend on the ubiquitous smartphone severely underestimates our usage.
Andrews, S., Ellis, D., Shaw, H., & Piwek, L. (2015). Beyond Self-Report: Tools to Compare Estimated and Real-World Smartphone Use. PLosOne, 10 (10) DOI: 10.1371/journal.pone.0139004
We have a new article in the just uploaded new issue of The Jury Expert on lessons we’ve learned from mock jurors in patent and IP cases over the past 15 years. We hope you enjoy it and will go take a look! Here’s how the article begins:
Few types of cases involve more complexity—legal as well as technical—than intellectual property disputes. The nuances are often subtle, the distinctions (“is this code the same as that code?”) virtually impossible to understand without a graduate degree and years of experience. Naturally, jurors don’t have that kind of background, but they are determined to make sense of a dispute that is way over their heads. They want facts, they want testimony that they can trust, but ultimately they aren’t going to judge the case based on a granular understanding the technology. They judge the case with the facts in the background and their values and life experiences in the foreground. And what they have taught us over the last two decades is that what we understand about life’s lessons can guide remarkable understanding. Not only of a patent or a trade secret, but also about what makes society work better, and how values can direct decisions in even the most arcane situations.
We wanted to share some of those lessons–and in each lesson, we link to posts on our blog in the event you wish to learn more. We often find that our mock jurors can speak much more eloquently than we can on how to conduct the best presentations. One of our East Texas patent jurors who described himself (after hearing the first round of evidence in a large mock trial) as a “confused good ol’ East Texas boy” told us:
“I have no trouble judging what’s right and wrong. Just tell me the facts. Don’t sugarcoat it. And I’ll tell you what I think is just.”
That sort of common-sense and straightforward approach is how we typically try to structure case narrative in patent and IP cases. We want to bring the theoretical into practical and relevant lessons that make sense to jurors who have no knowledge of the patent process but have strong beliefs as to what they know is right and wrong. We are indebted to our mock jurors who have shared their decision-making processes with us and we hope they are both interesting and useful to you as well.