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Archive for the ‘Witness Preparation’ Category

mexican-immigration1Donald Trump unleashed a divisive furor earlier this summer when he announced his candidacy for President while referring to Mexican immigrants as rapists and drug dealers.

“I don’t see how there is any room for misunderstanding or misinterpretation of the statement I made on June 16th during my Presidential announcement speech,” Trump wrote, adding, “What can be simpler or more accurately stated? The Mexican Government is forcing their most unwanted people into the United States. They are, in many cases, criminals, drug dealers, rapists, etc.”

Trump’s comments resulted in multiple allegations of racism and being “tone deaf” to the impact of his words on the listening audience. More recently, Gallup published a survey (a random sample of 508 Hispanics aged 18 and older living in all 50 states and the District of Columbia) showing that immigration status is tied to discrimination among Hispanics. It is well worth your time to review their entire report.

About 10% of US Hispanics (those born in the US and those born in other countries but now living in the US) report discrimination in the past month at their place of work, in dealings with the police, in healthcare, and in bars or restaurants. Slightly fewer (7%) say they felt discriminated against while shopping. Overall, at least 25% of Hispanics have felt discriminated against in at least one of these situations.

There are significantly different experiences with discrimination between those Hispanics who are US-born and those born outside the US. Those born outside the US are more likely to say they have experienced discrimination in each of the situations listed above (work, police, healthcare, bars and restaurants and shopping).

Foreign-born Hispanics are more likely to say they were treated less fairly at their workplace (18%) than US-born Hispanics (5%). Foreign-born Hispanics are five times more likely (15%) than US-born Hispanics (3%) to report discrimination due to ethnicity while receiving healthcare. Their reports of discrimination when dealing with police are much closer, with 8% of US-born Hispanics reporting discrimination compared to 12% of foreign-born Hispanics.

The National Academy of Sciences published a 400 page report on Sept. 21, detailing a huge effort to examine how well recent immigrants to the US are assimilating compared with those of previous eras. For a summary of the report, the New York Times has a worthwhile article about it. The conclusions are interesting and for the most part, reassuring. Among the more well-educated immigrants (such as those from Asia and Europe), educational attainment, identification with American culture, learning of English, and low crime rates prevailed. For Hispanic immigrants who typically come from educationally and economically impoverished circumstances, the same pattern is seen, but education and professional careers lag behind due to having started way behind. Researchers found that English is a struggle for most immigrants (especially those with lower education levels), but kids of the third generation (their parents were born in the US) for the most part don’t speak the language of the immigrant grandparents. They speak English.

In an odd twist, immigrants are far less likely to break the law than US citizens! By a factor of nearly 1:4, immigrants stay out of trouble far more successfully than most Americans. In fact, by that third generation mentioned above, the crime rates rise to levels similar to the general US frequencies. And finally, these patterns of success and assimilation are consistent with previous studies. There is no ‘new crisis’ on the borders. The problem there is attributed to immigrants, but in fact, it is due to drug runners on both sides of the border, a population that does not reflect the immigrant community at large.

We live and often work in Texas and the suspicion directed toward Hispanic parties in litigation is often a factor. We regularly hear “are they legal?” or other racist statements like “those Mexicans will do whatever you tell them to do”. If they are told a jury would not know if “they were legal”, the tendency is for them to presume that they are illegal, and awards plummet. Interestingly, this stands in contrast to a medical negligence case we worked on in Chicago five years ago. After the group deliberations were largely over (resulting in a very large award, later mirrored in the verdict of the trial court), the mock jurors were asked whether they had any thoughts about whether the mother of the child who was born following a botched delivery, was in the US legally or not. The jurors all assumed that she was here illegally. The assumption was so strong it didn’t even come up in the conversation. The difference is, that in Chicago 5 years ago, jurors didn’t care what her status was. In border states especially, immigration status is not likely to be ignored.

From a litigation advocacy perspective, the uphill battle Hispanics tell Gallup they experience is akin to what we see in the suspicion of our mock jurors to parties of Hispanic origin. We’ve seen cases of blatant medical malpractice resulting in permanent and devastating injuries to children, the death of two children in a horrible fire caused by a faulty product, and the untimely death of a parent due to a lack of attention from healthcare professionals. All were horrible situations. And for each one, questions about their legal status drove down damages awarded.

In other words, it isn’t just Donald Trump. It’s probably many of us and you need to pay attention to how racial bias emerges when race/ethnicity is not salient to your case.


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kinsey-scaleIllustrating this post is the Kinsey Scale of Sexual Behavior. As you can see, the scale asks people to describe themselves sexually on a scale ranging from “exclusively heterosexual behavior” to “exclusively homosexual behavior”. In the wake of Caitlyn Jenner’s emergence into the public eye, there’ve been many articles about gender identity and sexual preference as people attempt to sort out how a hyper-masculine Olympian has always felt like a woman on the inside.

A well-regarded polling company ( decided to ask 1,632 adults in Britain to simply place themselves on the Kinsey scale. They made some interesting discoveries about age and sexual identity.

72% of the British public identifies as “completely heterosexual” and 4% identify as “completely homosexual” while 19% say they are somewhere in between. (Kinsey classified the in-betweeners as “bisexual in varying degrees”.) Of those in the 19% in-between group, 15% are closer to the heterosexual end, 2% place themselves directly in the middle, and 2% are closer to the homosexual end of the scale.

However, reports that “with each generation, people see their sexuality as less fixed in stone”. They say the results for 18-24 year olds are particularly striking with “43% placing themselves” in the “in between” areas and 52% placing themselves at one end or the other. In this group 46% say they are “completely heterosexual” and 6% say they are “completely homosexual”.

The authors say that people (regardless of age) now accept the idea that sexual orientation is on a continuum (60% of heterosexuals and 73% of homosexuals support this idea) rather than a completely binary choice. They see this as indicative of an increasing open-mindedness to sexuality.

The full results of the study can be seen here. In the first URL, you can see from the intensity of the comments that this entire idea remains one which inflames the senses for some people.

From a litigation advocacy perspective, this is important information of which to be aware. While Caitlyn Jenner’s very public transition has precipitated a national (and perhaps international) discussion on sexual identity and sexual orientation, the bottom line is that younger jurors may well have more fluid definitions of their individual sexual orientation. It’s one more thing to remain cognizant of as you present cases where sexual identity may or may not be an issue.


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Barry-White-at-the-Printe-008I watched the second Republican debate last week after reading two more articles on voice pitch and winning elections. Not coincidentally, I had to struggle to keep from focusing on who had the deepest voice among the candidates. We’ve written about this line of research before and tend to think of it as the Barry White or James Earl Jones effect. Deep resonant (and yes, male) voices are tied in our minds with strength, competence and leadership.

Oddly, when you (and your deep male voice) are running against a female opponent (like Carly Fiorina in the Republican debates) you won’t do as well. Researchers looked at the 2012 outcomes of the US House of Representatives elections.

When two males competed, the one with the lower voice won a larger vote share.

However, when facing female opponents, those candidates with higher voices were more successful, especially for male candidates. Why? Perhaps (says Casey Klofstad who authored both of today’s studies) a male candidate with a lower voice will be seen as too aggressive when paired against a female opponent.

Those most biased in favor of lower voices are older, well-educated and politically engaged voters (and also the most likely to vote).

In the second study, researchers asked study participants (400 men and 400 women in each of two studies) to listen to pairs of recorded voices that had been manipulated to vary only in pitch. Participants were asked to choose a voice in each pair who they believed was stronger, more competent, older, and which voice they would vote for. Again, lower pitched voices were preferred as leaders and were seen as significantly stronger and more competent.

Overall, even when you are educated, older, and politically engaged—deeper voices persuade us more unless there is a mixed gender competition and then we prefer men who have higher voices (although we may still choose the female candidate).

From a litigation advocacy perspective, this has several implications:

Voters (and therefore jurors) are not as sophisticated as they might believe themselves to be. A deep voice is more appealing to the senses and may have undue influence on our decisions as to which candidate we vote into office. Be thoughtful as you consider hiring an expert witness— does voice quality have impact on how your expert will be received?

Just as tall men are often believed to be good leaders, deep voices seem to communicate strength and competence so if you have a deep and resonant voice, use your power for good. If your expert has a deep voice, use that to your benefit.

Just because your witness or the client has a deep voice, don’t forget the importance of witness preparation. If you have that deep voice but don’t seem credible or likable to the listener—your deep voice will not help you. If, on the other hand, you are seen as credible and likable and you have a deep voice, it isn’t going to hurt you at all. If anything, it is likely to pull in your favor with jurors.

While we’ve seen studies on voice pitch before, this is the first one we’ve seen that says voice pitch actually influences election outcomes. That makes us wonder if it isn’t also influential in jury deliberations.

Klofstad, C. (2015). Candidate Voice Pitch Influences Election Outcomes Political Psychology DOI: 10.1111/pops.12280

Perceptions of Competence, Strength, and Age Influence Voters to Select Leaders with Lower-Pitched Voices. 2015 Casey A. Klofstad, Rindy C. Anderson, Stephen Nowicki. DOI: 10.1371/journal.pone.0133779


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As you know by now, I edit The Jury Expert for the American Society of Trial Consultants and we try to alert you when new issues upload 4 times a year. This issue is special since it focuses on the perhaps premature reports of the death of the civil jury trial. Here’s the Editor Note from the new issue of The Jury Expert explaining how it all evolved and with some extra  links thrown in so you can go directly to the articles themselves. –Rita

When we at The Jury Expert saw Renée Lettow Lerner’s writing on the collapse of the civil jury system in the Washington Post when she guest-blogged for the Volokh Conspiracy it was clear the ideas she expressed were not ideas that resonated with our own experiences in the courtroom. So we asked her to write for our readers here at The Jury Expert and she graciously agreed. Professor Lerner discusses her perspective and a trial consultant (Susie Macpherson) and a well-known litigator (Tom Melsheimer) offer very different points of view.

After Professor Lerner’s thoughts on problems with the US justice system, we have an article on changes in the Swiss civil system as they moved to abolish jury trials. This article is by two Swiss scholars (Gwladys Gilliéron and Yves Benda) and an American scholar (Stanley Brodsky). It describes the existing Swiss system and how abolishing the civil jury trial changed (and did not change) the application of justice in Switzerland.

Shortly after Renée Lerner’s work in the Washington PostAdam Benforado wrote an excerpt from his new book UNFAIR that was published at The Atlantic website and titled: “Reasonable Doubts About the Jury System: Trial consultants allow the affluent to manipulate the biases of those who judge them, putting justice up for sale”. As you might expect, the article isn’t likely to fit the point of view of most trial consultants, so his viewpoint is important for any trial consultant to understand. I contacted Professor Benforado, and invited him to write an article for us that addressed the issues he raised in The Atlantic. He agreed, in the face of knowing there was vigorous disagreement among trial consultants with the position he took in The Atlantic. His article elicited thorough responses from Diane Wiley (representing all trial consultants), Jason Barnes and Brian Patterson (representing visual trial consultants), and Stanley Brodsky (representing academic and research trial consultants).

Following those first three articles about problems in our justice system, Hailey Drescher (a trial consultant) offers an interview with Steve Susman (a well-known litigator) and Tara Trask (a trial consultant) on Susman’s new Civil Jury Project at New York University. This ambitious, long-range project is unlike anything that’s been done before in this country and will attempt to examine the civil jury trial and offer suggestions for improving it. Read the interview if you want to know more about this project or the upcoming conference they will be sponsoring.

Then we move on to other exciting new research and ideas on the jury system from here in the United States. Krystia Reed and Brian Bornstein (academic researchers) offer recommendations on how to use joinder differently if you are in a civil versus a criminal trial. Sonia Chopra and Charli Morris (trial consultants) respond to this article and offer insightful questions and suggestions on implementing the research. Richard Gabriel (a trial consultant) saw the issue of peremptory strikes in the New York Times (again) and provides us with new ways to think about strikes (both peremptory strikes and strikes for cause). Allen Campo (a trial consultant) describes a newer way he’s been helping attorneys understand their cases—he calls it a feedback group. And finally, Bill Grimes updates us on the research literature about deception—do we know how to tell who’s lying yet?

It’s an intriguing quandary—the numbers of civil juries are declining, yet there is a plethora of ideas, programs, research, and strategies for improving our ability to work together to improve litigation advocacy. Is our system dying? That is questionable, although it is undoubtedly changing, as it always has. The energy around these new and exciting ideas makes me think perhaps our system isn’t dying. It is merely evolving and thus has to face hard questions as a new definition of our justice system emerges.

The role of trial consultants has evolved over time, as well. The idea that the trial consulting profession contributes to bias (while most trial consultants feel they are in the business of rooting out bias, not creating it) produced deep reactions from responders who are members of the American Society of Trial Consultants. Many of the founders of the profession are still alive and actively practicing—trial consulting is a young profession. I appreciate the measured responses from our trial consultant members in this issue and I appreciate the generosity and courage shown by Renée Lettow Lerner and Adam Benforado in writing about and standing behind their convictions despite disagreement. Both their offerings and the thoughtful commentary by ASTC members give us all much to consider. Combined, these contributors keep The Jury Expert an intellectually and morally stimulating forum, for which we are all grateful.

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narcissist 2015We’ve written about narcissists a fair amount here and today’s post shows us that the brains of narcissists are indeed very special—but not in a good way since they have “weakened frontostriatal connectivity”.  But you probably knew that already. It’s a sort of neural disconnect, say the authors, between the self and reward. That disconnect may lead the narcissist to seek excessive reassurance from others.

Researchers from the University of Kentucky at Lexington recruited 50 undergraduate students and asked them to complete the Narcissistic Personality Index. Then they completed a specialized form of MRI with the participants: diffusion tensor imaging (a tool to measure the amount of connectivity between different brain areas). A very simplistic explanation of the technology is that it produces a spiderweb-like visualization of connections between different areas of the brain—you can literally see how much various parts of the brain are communicating.

The researchers were especially interested in an area known as the medial prefrontal cortex (MPFC) which is associated with thinking about ourselves, and a second and deeper region of the brain that is associated with reward and feeling good (the ventral striatum).

Even more specifically, they were interested in what they call “the density of the white matter tracts” between the two areas. The “white matter density” would highlight the level of connectivity between these areas of the brain—or, in other words, it would tell us how much these two areas of the brain are talking to each other. How often is the individual experiencing reward and feeling good about themselves?

So, the participants who have completed a measure of narcissism are lying in the MRI machine and having the number of connections between these two areas of the brain measured. Narcissists would say they have very high self-esteem and if that were true, they would have a high number of connections between these two parts of the brain since someone with high self-esteem would internally say nice things about themselves often.

Alas for the narcissists, the specialized brain scan did not show they had strong self-esteem. Instead, the higher the participants scored on the narcissism measure, the fewer connections they had between these two areas of the brain.

The researchers considered the finding and concluded that they see this as indicative of an “internal deficit in self-reward connectivity” in narcissists. In other words, if the narcissist is not having many rewarding thoughts or feelings about the self, they may seek out praise and admiration from others. Finally, the researchers suggest that the brain’s white matter can be modified: “clinical interventions can readily alter white matter integrity”. This fact, they say, suggests another way for narcissists to feel better on their own: repeated self-affirmations. This could help the narcissist refrain from what the researchers describe as characteristic “exhibitionism and immodesty”.

While intellectually interesting, from a litigation advocacy standpoint, we don’t think anyone will be putting neural evidence of neediness on the witness stand soon. But this study still points out an important reality: narcissism may indicate neediness.

Understand what to do when faced with a narcissist (in this case, the narcissistic witness).

Draw out the narcissist in cross-examination by asking for a sharing of expertise. Let jurors see how self-involved and arrogant the narcissist is when unscripted.

Use this understanding (of narcissistic neediness) to help you interact without rancor with a narcissistic colleague, client, or supervisor.

Chester, DS Lynam, DR Powell, DK DeWall, CN 2015 Narcissism is associated with weakened frontostriatal connectivity: a DTI study. Social Cognitive and Affective Neuroscience.


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