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Archive for the ‘Voir Dire & Jury Selection’ Category
There are six types of Millennials. That’s right. Six.
Marketers are always trying to figure out how to distinctly describe various groups of us. This time it’s the often-studied Millennial Generation. Apparently there are six discrete types of Millennials (those aged 16 to 34) and they are not all what marketers seem to think.
Boston Consulting Group identifies the various groups of Millennials. And because they are marketing consultants, they have to give each market segment a goofy name that would embarrass any member of that segment: Hip-ennials (29%); Millennial Moms (22%); Anti-Millennials (16%); Gadget Gurus (13%); Clean and Green Millennials (10%); and the Old School Millennials (10%).
Their graphic succinctly describes these young people as separate and distinct segments within the Millennial generation.
So while marketers continue to parse and define subgroups of the Millennials, they are looking at different reasons for describing this group than makes sense for trial lawyers. We recommend you stay focused more on the values, beliefs and attitudes that resonate with your case and identify the jurors that won’t be good fits when it comes to hearing your story.
We’re all for debunking stereotypes (as the title of this report trumpets) but this approach simply looks like another way of sticking people in categories that aren’t useful in the courtroom.
Barton, C. Fromm, J. Egan, C. 2012 The Millennial Consumer: Debunking stereotypes. Boston Consulting Group.
Asian stereotypes: Furtive, sneaky, dishonest and trying to one-up Americans
Recently, a client sent us a link to a political ad run by Texan US Senate candidate David Dewhurst. The ad essentially attacks Dewhurst’s opponent (Ted Cruz, an attorney) for representing a Chinese company in an intellectual property lawsuit with an American company. Ted Cruz is painted as a “China sympathizer” who is guilty of helping the Chinese steal American jobs. The ad has gotten heavy airplay all over Texas, and the coverage of the dispute related to it has raised the prominence of the controversy even more.
It made us think about several recent projects where bias against Asians was expressed in a joking fashion by various mock jurors. But it was clear that the joking tone was a thin veil for attitudes that were not at all funny. All of the cases involved intellectual property (patents or trade secrets) and the accusations that the Asian entity had reverse-engineered the American IP unfairly. The merits of the cases are one level of analysis, but more prominent was the readiness of most jurors to find guilty conduct in these Asian parties in a way that speaks of confirmation bias.
As many readers of our blog are aware, confirmation bias is the tendency we all have of seeing the world as we believe it to be. People remember evidence that confirms their attitudes and biases, and have weaker recall for contradictory points. Someone with such a bias may say “Because of [X fact], I think the Defendant should pay the Plaintiff”, but you are able to rebut their reliance on [X fact] absolutely. They reply not by changing their conclusion, but by changing their justifying argument. Often, this pattern is an indication of confirmation bias, not of the power of the evidence itself. When I was in graduate school, we referred to this as “drawing the curve before you plot the data”.
In one project, the plaintiff was a very successful American businessman with a Middle Eastern last name, and was suing a major retailer, alleging that they knowingly purchasing and sold black market counterfeit products manufactured in Asia. Given the last name of the plaintiff, we were expecting racism. And we saw it. Interestingly, the racist comments were directed at Asian countries who were (in the minds of jurors) counterfeiting the [American] products and profiting off the backs of a good [American] product name. Slurs were directed (all in a seemingly joking fashion) at China, Korea and Asian countries in general. When questioned about these comments and the basis for them, our mock jurors denied the importance of the comments and then made additional racist comments–again, veiled as jokes.
In another case, a Chinese scientist invited himself to an American university to ‘study’ with an established inventor. While there, the Chinese scientist copied documents and beat the American inventor to the US patent office by filing a patent through his Chinese company with stolen documents. The Chinese scientist later wrote a letter to the American inventor apologizing for his own poor manners and ethics. Again, we heard slurs and stereotypes about Asians being not trustworthy, sneaky, ethically challenged and more. And again, there was no explanation for this from the mock jurors other than additional “joking” comments.
Since we are based in Texas, it might be tempting to say “Wow, those Texas rednecks are pretty closed-minded”. [We would then encourage you to consider the bias implicit in that belief…] But in fact, we conduct research all over the country, and IP cases from coast to coast. The same pattern applies all over. Ethnocentrism is thriving in every community, as it has forever. Globalization is only a good thing if you, your family, and your friends all have the jobs they want.
As we have discussed in other posts about racism and ethnocentrism, people usually deny racial bias, but if the question becomes one of “What do you think your neighbors and co-workers would think about this [racially loaded] issue?”, the jurors often warn us that the minority party is facing a difficult burden due to race. Obviously, such a person doesn’t want to be seen as racist, but doesn’t mind us knowing that their best friends are racist. Not too wily.
Despite recent surveys depicting a positive sense of each other by American and Chinese citizens, we have been seeing a different picture from our American mock jurors for the past few years.
Perhaps it’s due to the flagging economy and perceptions of China overtaking the US as a global superpower.
Perhaps it’s fear of the Asian intelligence that apparently leads to discrimination against Asians in our educational institutions.
Perhaps it’s the leftover stereotypes from 1960’s James Bond movies portraying Asian men as super-villains.
Perhaps it is a combination of all those factors.
Whatever the reason, we are regularly reminded of the need to carefully prepare Asian and Asian-American witnesses for testimony in American courtrooms, and to carefully prepare trial teams on strategies for dealing with overt and covert anti-Asian bias. Just as we carefully prepare other “different” witnesses–whether they be atheists, homosexuals, powerful women, African Americans or Muslims. We focus on clarity of communication (using translators if necessary) and how to introduce the witnesses to the jury so they are seen as trustworthy and credible. Without making that connection, their testimony is corrupted by bias that can creep in and define the witness.
It appears that when bias against Asians is used in high-profile political campaigns, it has achieved mainstream acceptance, and we should all be paying close attention. Running the anti-Ted Cruz ad is estimated to have cost more than $600,000 and we’re guessing money like that isn’t thrown around “just in case” there are a few voters out there who are biased against Asians.
Black? On trial in Florida? You don’t want an all-white jury!
Infographics are fabulous inventions. We can spend a long time describing the results of a study or we can simply show you a picture. In this case, it’s an infographic designed by Duke University.
Yes, you saw that right. Some new research mirrors the findings of research conducted three decades ago!
If you were a black criminal defendant in Florida between 2000 and 2010, with an all white jury you were convicted 81% of the time. On the other hand, if you were a white criminal defendant with an all white jury, you were only convicted 66% of the time. If, however, there were African Americans (even just one) on your jury–the difference in conviction rates between black and white defendants almost disappeared.
Justice is not intended to be a random event and one of the researchers speaks to that in a story on the research.
“The findings imply that the application of criminal justice is “highly uneven,” Bayer said, because conviction rates vary substantially with random variation in the racial composition of the jury pool.
“Simply put, the luck of the draw on the racial composition of the jury pool has a lot to do with whether someone is convicted and that raises obvious concerns about the fairness of our criminal justice system,” Bayer said.”
There are clearly issues that need to be addressed and it likely is not only in Florida. While there are ways to reduce these sorts of verdict discrepancies by raising jurors’ awareness of the need to behave in a non-biased fashion, it is disturbing that the difference between conviction of white and black defendants is demolished by having a single juror of color.
If you are a defense attorney, this is likely a good article as evidence that, even in 2012, your African American client is less likely to get a fair trial with an all-white jury.
Anwar, S., Bayer, P., & Hjalmarsson, R. (2012). The Impact of Jury Race in Criminal Trials The Quarterly Journal of Economics, 127 (2), 1017-1055 DOI: 10.1093/qje/qjs014
The foreign-language effect: ESL Jurors
We’ve seen multiple examples of jurors being excused because they learned English as a second language (ESL) and their English is limited. But new research shows us that there may be an advantage to the juror thinking in English when it is their second language.
Researchers were interested in if and how the use of a foreign language affected judgment and decision making. They tested three groups of university students: Americans, Koreans and native English-speaking students studying in Paris, France. All of the research participants had chosen a language to study at university. The researchers discuss two different points of view on decision-making and bias. One view is that thinking in a foreign language takes so much effort that you will make fast and not particularly systematic decisions. The other view is just the opposite–that when thinking in a foreign language, you make slower and more systematic decisions.
After conducting four experiments, the researchers reported that when you are thinking in a foreign language, you are more likely to apply systematic thinking to what you hear than you are to rely on stereotypes and heuristics. In other words, you have less (not more) bias in your decision-making processes.
The researchers hypothesize that when you are thinking in a foreign language, you automatically have more psychological distance from the situation and are more able to consider rationally without excessive emotional interference.
We know that the more emotions enter into a decision-making process, the more biased the thinking processes.
We also know that trial lawyers are often wary of the English-as-a-second-language juror.
What this research says is that, if English is chosen as an area of study with the goal of mastering the language, these jurors will focus and exert cognitive effort to process the evidence in a non-biased and non-emotional way. [We can’t know about those who end up in America but exert little effort to learn the language as this research was done on students who had chosen to learn foreign languages in a university.]
This study is an interesting start, but the limitations of this study are several, as they relate to trial advocacy. First, these are college students with a heightened interest in different cultures (they are studying outside their native culture and language). They may be brighter than many jurors. Second, many ESL jurors in the United States are undereducated, disempowered, and poor. They are not likely to be as assertive as the native English speakers in the jury. The effects described in the study may be exactly on point for the study subjects, but they may not generalize in a way that is meaningful for jury applications. Other biases and perspectives need to be kept in context when the goal is one of determining trial outcomes.
It’s another “don’t guess and don’t generalize” lesson for voir dire. Not all for whom English is a second language should be automatically discounted for jury participation.
Keysar, B., Hayakawa, S., & An, S. (2012). The Foreign-Language Effect: Thinking in a Foreign Tongue Reduces Decision Biases Psychological Science DOI: 10.1177/0956797611432178
“I feel pretty, oh so pretty!” but I’m not shallow about it.
Natalie Wood cooed these words in the musical West Side Story years ago–well, at least the first clause of our title. And now, fifty years later, science is reminding me of that old song.
It’s a long-standing tenet of social psychology that we tend to see physically attractive people more positively. Yet, at the same time, we often see the beautiful as shallow and vain. Thankfully, science has come to our rescue by examining whether the beautiful really are shallow.
Researchers had ‘judges’ [3 male, 3 female, and all professional model recruiters in London, England] rate the attractiveness [based on photographs] of more than 100 research participants. They also had the participants complete a personality measure [the Personal Orientation Inventory] assessing “self-actualization”. You may recognize self-actualization as the peak level in Maslow’s hierarchy of needs. Turns out beautiful people are more self-actualized than the not-so-beautiful. Wow. And I thought beauty was skin deep.
The beautiful research subjects scored significantly higher on 7 out of 12 scales [and generally higher on all 12 scales] on the measure of self-actualization. They were significantly more inner-directed, more emotionally responsive, more spontaneous, higher in self-regard and self-acceptance, had more capacity for intimate contact and were more likely to see themselves as autonomous, independent, and self-sufficient. It just isn’t fair.
The researchers chalk this result up to the positive feedback and reactions experienced throughout life by the beautiful. These reactions are internalized so that the beautiful person is more confident, assertive and in general, more “self-actualized” or psychologically accepting of themselves. So it likely isn’t that the more attractive are “born” more self-actualized but that their experiences throughout life make them more self-accepting and confident.
What does that say about jury selection? More confident and self-assured jurors tend to speak up more, and assert their views more authoritatively. If it can be assumed that physically attractive people have more of these tendencies, a juror who would otherwise be expected (by age or socio-economic status) to be low-impact might be a surprisingly compelling voice.
It’s also an interesting finding to ponder when considering witness preparation strategies. We need to help witnesses be seen as more likable, credible, truthful and confident (all contribute to a sense of attractiveness) and so perhaps we are working from the opposite end of the spectrum from these researchers. That is, are we perhaps helping the not-necessarily-attractive to seem more attractive by helping them to exhibit characteristics of self-actualization? Now that is sort of cool.
Ivtzan, I., & Moon, HS (2008). The beauty of self-actualisation: Linking physical attractiveness and self-fulfillment. European Journal of Psychology, 4 (4)
See complete article here.
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