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Archive for the ‘Witness Preparation’ Category

cat-glasses-tieHere’s another installment of things we think you might want to know but to which we don’t wish to devote an entire blog post. Keep reading to have tidbits worthy of sound bytes over drinks.

The onset of ‘real’ adulthood

Five years ago we were distressed to discover that middle age begins at 35 and now we have the definitive word on when “real adulthood” begins. It isn’t upon graduation from college, hitting age 25, or even having children. As with many things, it appears to be about money. When we hit economic milestones, we are truly considered “adult”.

“The latest Allstate/National Journal Heartland Monitor Poll asked Americans to define what it means to be starting out in life—and what milestones mark the end of that early stage of experience. Consistently, both younger and older respondents said that adults could put the “starting out” stage of life behind them only after they had crossed major thresholds, not just taken the first steps toward independence.”

For some that means paying off student loans, for others it is having a job that is the beginning of a career, and for others it means having disposable income or a savings plan. These are not measures easily definable with a numeric age.

Watching cat videos could be a good thing!

More Americans than you can possibly imagine enjoy watching cat videos on the internet. A recent publication surveyed “almost 7,000 people” about their cat video watching behavior and found that far from this being a waste of their time, cat video viewers reported they were more energetic, positive, less anxious and less sad after watching cat videos. Future work, says the author, could explore how cat videos might serve as a low-cost form of pet therapy. It’s a good thing, says the author, who, as an assistant professor, will also move closer to tenure with an article on the impact of watching cat videos. That could be yet another positive benefit…at least for the author.

And you think frivolous lawsuits are bad in the United States!

While it is not news that mock jurors routinely bring up the “hot coffee” lawsuit as an example of frivolous lawsuits (a discussion we do not wish to reopen here), they refer far less often to the suit over the hot glue left on toilet seats in big box stores, but of course that has happened, too. Our jurors were too smart for that trick though, so when it came up they thought it was likely your own fault if you did not look before sitting. This conclusion was heightened the more they reflected on the general condition of toilets in big box stores… Mock jurors can be very cold and judgmental. But here’s a lawsuit from China about a TV watcher suing a television actor for “staring at him too intensely” through the TV set and causing “spiritual damage”. Wow. We think someone needs a cup of hot coffee.

News for witness preparation

You can appear more trustworthy, according to new research, but there are limits. You can’t fake looking competent so easily, as some researchers have determined that this is simply not alterable. All it takes, apparently, to look more trustworthy is to look happier rather than angrier. On the other hand, it matters not if your face is happy or angry when it comes to assessments of competence. Observer ratings of your competence are “immutable” say the researchers. We don’t believe this, having prepared lots of witnesses to help them demonstrate their competence and trustworthiness. That is why this one is in a post like this rather than one of its own! We share this with you in case the research achieves viral fame and you are left wondering whether to believe it. Don’t.

How open to experience are you?

We tend to believe the curiosity of an individual is an important factor in considering potential jurors during voir dire. PsyBlog has been doing a series on quick personality tests and here is one to consider: a one-minute measure of openness to experience. While the scoring is a little ambiguous (at least in this presentation) and the interpretation seems a little like a series of Barnum statements, it’s an interesting factor to consider while pondering who would be most likely to listen to your evidence rather than closing off their mind to things they do not yet understand.

Hehman E, Flake JK, & Freeman JB (2015). Static and Dynamic Facial Cues Differentially Affect the Consistency of Social Evaluations. Personality & Social Psychology Bulletin PMID: 26089347

Myrick, J. (2015). Emotion regulation, procrastination, and watching cat videos online: Who watches Internet cats, why, and to what effect? Computers in Human Behavior, 52, 168-176 DOI: 10.1016/j.chb.2015.06.001


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halo effect devil effectThis is one of those clever studies where you would never guess the real purpose of the experiment. Researchers from Eastern Kentucky University wanted to see if homely men would be punished more for violating social norms than would attractive men. So they chose a black and white photo of a homely man and an attractive man (described only as “white males with brown hair, facial stubble, similar eye shape and wearing white t-shirts”).

It always bugs me when researchers do this. They tease that they used a homely man but then they won’t show you the photo so you can check to see if it’s your cousin or old classmate. They tell you they also used an attractive man (“with more prominent brow and chin and a greater degree of facial symmetry”) but again, they don’t show you what that “attractive man” looks like. They slyly say “the two faces clearly presented different levels of attractiveness”, but don’t show us so it leaves us having to trust their sense of what is attractive and what is not attractive. They do say they retrieved the male faces from an “online facial database” which is, again, unnamed. It’s very irritating. Especially for those of us who are more visually inclined.

So, the researchers recruited participants (170 female students who are not described demographically) for their study and presented them with one of two scenarios accompanied by a photo of either the “attractive man” or the “homely man”.

The first scenario involves a male asking a female classmate to borrow a pen.

You arrive early to your first class of the day. As you enter you notice only a few people are already there. While waiting for the class to begin, you search your bag for your textbook and decide to take the few extra minutes to study for today’s quiz. You flip through the chapters and find the material for today’s test. After a few minutes of going over the chapter, the individual in the next desk over coughs and speaks up: “Hey I’m sorry but do you have a pen I could use? I guess I forgot one.” You glance up and see he man sitting beside you. You do not recognize him from your class, but perhaps he changed seats.

The second scenario is about a male approaching a female on a college campus and asking to take her photograph for modeling opportunities.

After finishing your last class of the day, you decide it’s time to head home and tackle the last homework before the long weekend. You enjoy the walk to the car and think about your plans for later tonight. As you glance around you see that campus has already cleared off. Your path branches off towards the library and the parking lot beyond. You notice a man ahead around the entrance of the library. As you approach, the man stops you. “Excuse me, would I be able to take your picture? I think you would be a great model for a project I’m working on. Have you ever tried modeling before?” You don’t recognize the man from around campus.

The salient twist of course, is not whether the creepy photographer or the pen-requestor is the scenario you received but whether you are given the photograph of the attractive man or the homely man. What the researchers were interested in was whether we cut attractive men more slack when they “violate social norms”. That’s what the researchers call a man lurking in a deserted area of campus with a camera asking a lone female if she’s ever modeled before: a violator of social norms. We’d have a different term than that but then, this is not our study.

And to make a long story short—we might call this the Ted Bundy effect—attractive men get more slack when they are creepy than do homely men. While both attractive and homely men in the creepy photographer scenario were seen more negatively—the homely men got what the researchers labeled the “double devil effect”.

Specifically, when the man was “homely” and creepy, the female participants responded much more negatively.

Level of attractiveness didn’t matter when participants were asked to loan a pen in a class. But take the situation to a “creepy” one and attractiveness matters in terms of how we respond. (You will be happy to know that 93% of the women approached did not let the creepy man take their photo—although no doubt you are worried about the 7% who did pose for a photo taken by a creepy man in a desolate and deserted area of campus). And as for the pen? Ninety-six per cent of the participants would loan a pen whether the man was attractive or homely.

The researchers say this has ramifications for online dating and for the “judicial system”. We cannot make things like this up. They actually compare those two realities as settings in which these findings matter. They say that if a male posts “unusual or alarming information” in their online dating site profile and attach a homely photo—that man is “at risk for an attractiveness devil effect to occur”. Oddly, the researchers say that a “facially attractive male posting the same information” would not have the same reaction. So, on dating sites, you are supposedly only seen by others signed up to that same site—so they know (or can look to see) whether you are homely or snazzy or creepy or sweet. But in court, you are only known by what they learn by looking and listening.

Okay. This is sort of ridiculous and insulting. The researchers seem to be saying that women are so swayed by a pretty face that they would completely overlook “unusual or alarming profile information” on an online dating site. Seriously? I thought to myself that these researchers must be young. That resulted in an online search to see if that were true and the LinkedIn profile for Jeremy Gibson (who has just graduated college) and the faculty profile for his co-author, Jonathan Gore. Someone should let Dr. Gore know to not teach his student writers to make comments like the one above.

The authors also, almost as an aside, toss out the concept that those who are attractive are often given lighter sentences than “homely” defendants and cite the ample research literature to that effect.

From a litigation advocacy perspective, we see this as a study that speaks to the importance of what we think of as a witness preparation basic. You need to help your witnesses speak to the universal values we all share.

Jurors may see the witness (or party) as so very different from them and your goal is to help the witness testify to their family and community involvement, church attendance, school involvement, volunteerism, and so on.

When we see that even someone so very different from us shares our same values, we tend to like them more and thus, also see them as more attractive. What this research says to us is that when your client has potentially violated norms already by being party to a lawsuit, you want to make your witness, party, or client as attractive to jurors as possible.

Gibson, J., & Gore, J. (2015). You’re OK Until You Misbehave: How Norm Violations Magnify the Attractiveness Devil Effect Gender Issues DOI: 10.1007/s12147-015-9142-5


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facebook creeperYou’ve likely run across the statistics on Facebook being the cause of many divorces or relationship failures as unhappy individuals reunite with past loves lost. There is also of course, often heartbreak as online loves turn out to be not quite who you thought. Now Facebook is also implicated in prolonging the unhappiness after a relationship breakup with 88% (!) of Facebook users “creeping” ex-partners. Imagine a darkened room, a pint of ice cream, a laptop with a high-speed connection, and you are never far away from seeing what your ex is up to now that you are no longer part of his or her everyday life.

Researchers in Canada asked 107 participants (ranging in age from 18 to 35 years with an average age of 23 years) who reported relationship breakups in the past 12 months to complete questionnaires and participate in a structured face-to-face interview on the relationship between Facebook ‘creeping’ and their ongoing distress following relationship breakup. On average, these participants reported their (now defunct) relationship had lasted 2.29 years (with about half having broken up in the past six months and the other half having broken up 7-12 months prior to the study).

In brief, here is what the researchers found:

The more “creeping” (also referred to as “internet electronic surveillance”) one does, the more emotional upset is reported related to the breakup.

The most commonly distressing factor was the ex-partner’s Facebook profile and 88% of the participants reported “creeping” their ex following a breakup. When the participant had remained Facebook friends with their ex, 100% monitored the behavior of the ex after the breakup.

“A breakup without Facebook, you can’t really see what your ex is doing, but with Facebook you just have to click and you know exactly what they’ve been up to. That’s a little frustrating.”

The second distressing factor was the Facebook “relationship status” feature. Changing the relationship status to “single” after “in a relationship” involved multiple questions from “friends” (for 62% of the participants) which raised distress level.

“In some weird way, it kind of feels like you’re breaking up all over again when the status comes down. It angered me at the time that something as trivial as a Facebook status could make me feel so shitty.”

The third distressing area was content posted on Facebook by the participant’s ex-partner which was then seen in the participant’s newsfeed. Participants seeing new content found themselves ruminating over happy memories and wondering why the relationship had ended. Unexpectedly, those who “unfriended” their ex on Facebook had more emotional distress than those who kept the ex as a Facebook friend. For some, like the participant quoted below, “unfriending” helped manage the emotional distress but that was untrue for the majority of participants.

“I would say pull off the Band-Aid as quickly as possible and block the person if you’re finding it as painful as I did to see their continuing existence in your sphere. You’ll immediately feel better, or at least I did.”

It’s an intriguing study that highlights the differences in breaking up in public as opposed to having a private (non-Facebook) breakup. While it is easier to keep up with family and friends on Facebook—it is also more painful post-breakup since your “relationship status” trumpets your pain to all your Facebook friends. The more “creeping” done, the more emotional distress experienced.

The authors also developed a new scale to measure Facebook distress related to creeping an ex after a breakup. The scale does not appear to be named yet but here are a few items from it:

I over-analyze old messages, wall posts or photographs of me and my ex together.

I can’t help feeling angry about content my ex posts on Facebook.

I feel paranoid that people posting on my ex’s wall are potential romantic interests.

Looking at my ex’s Facebook page is self-destructive.

From a litigation advocacy perspective, it seems important to recognize the power of a relationship breakup disclosed through social media, and the identification young people in particular could have with a party publicly shamed, belittled, discarded, or otherwise rejected. In this case, social media (i.e., Facebook involvement) makes the emotional pain last longer and be more intense and it is likely that shame feeds the flame of that sense of public rejection or perceived failure. Every time a Facebook post is re-mentioned (like, for months on end following a breakup when yet another person comments about it after not checking their timeline in a while) it can be traumatizing. If someone feels that they were wrongfully terminated (or are just embarrassed about it) and they get questions about the change in their LinkedIn status from “District Manager at Acme Industries” to something less clear, it can be very difficult for them to explain. That which was once self-promotion can quickly blow up. It’s a potentially powerful theme for case narrative. And it raises questions about how a company might want to guide the use employees make of social media when it involves references to employment status.

Lukacs, V., & Quan-Haase, A. (2015). Romantic breakups on Facebook: new scales for studying post-breakup behaviors, digital distress, and surveillance Information, Communication & Society, 18 (5), 492-508 DOI: 10.1080/1369118X.2015.1008540


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caitlyn-jennerCaitlyn Jenner has been in the headlines pretty continuously since the publication of her Vanity Fair cover photo. And many of us have heard the voiceover quote from her about the number of years she has been in hiding, protecting secrets, and feeling imprisoned.

“Bruce always had to tell a lie. He was always living that lie. Every day he always had a secret, from morning till night. Caitlyn doesn’t have any secrets. As soon as the Vanity Fair cover comes out, I’m free.”

I thought of Caitlyn Jenner when I saw this new research from the Harvard Business School. This is a research team whose work we’ve written about before. Essentially, the authors say that hiding your true self can leave you feeling morally tainted. If these results are true, hiding transgender status would surely leave you feeling morally tainted. It’s as Shakespeare wrote so long ago, “This above all, to thine own self be true.” [Johns Hopkins has a webpage on transgender identity and the importance of being able to honestly show your true self.]

So today’s researchers conducted 5 separate experiments to assess the impact of behaving inauthentically by having participants recall times they’d acted authentically or inauthentically and how each type of behavior (authentic vs inauthentic) resulted in them feeling. Here are some of their findings:

When participants behaved inauthentically, they felt more impure and less moral than they did when behaving authentically. It did not matter if the inauthentic behavior involved only lying to themselves or lying to others as well. Inauthentic behavior left the participants feeling badly.

Participants who behaved inauthentically reported an increased desire to cleanse themselves. This is a common theme in the disgust research—if you want to wash yourself, then that disgusting thing you did probably left you feeling unclean.

Behaving inauthentically was rated more negatively by participants than was failing an exam. The negative feelings elicited by acting inauthentically resulted in more participants attempting to “cleanse themselves” through what the researchers called “moral compensation” (offering to help the experimenter by completing an unrelated 15 minute survey).

Even when participants chose to write about being inauthentic versus being authentic, their desire for cleanliness following inauthentic behavior remained the same. In other words, even if you consciously choose to be inauthentic, it still leaves you feeling dirty.

Participants only chose “moral compensation” when they did not “cleanse themselves” during the experiment. (In this final experiment, half the participants were asked to clean their hands thoroughly and then rate the cleanser while the other half [the control group] were asked to hold a pen in their hands and examine it carefully and then rate the pen. The pen-holders were more likely to participate in the cleansing moral compensation task than the hand washers [who presumably had already been cleansed]).

The researchers conclude that behaving inauthentically leads to a sense of moral tainting or impurity and that this research is the first to tie together the experience of being inauthentic and wishing for cleanliness.

From a litigation advocacy perspective, this is a powerful example. We have all had experiences of being untrue to ourselves (or inauthentic) and we know how bad that can feel. Using that emotional identification with inauthenticity as part of your case narrative can help jurors empathize with your client’s dilemma. And, circling back to Caitlyn Jenner—in her last interview as Bruce, she commented to Diane Sawyer that part of her reason for publicly sharing her decision was to make a difference.

“What I’m doing is going to do some good,” Jenner said of the very public interview. “And we’re going to change the world.”

At another point in the interview, Jenner made a statement that affirms Shakespeare’s insight so long ago and the conclusions the researchers made in this research:

“I want to do the right thing and be true to myself.”

Obviously, we cannot know from these statements if Caitlyn felt “morally tainted” when she lived as Bruce. What it sounds like though, is that Caitlyn plans to live the rest of her life in a way that allows her to match her insides and her outsides and in so doing, to “change the world”. A noble goal to be sure.

Gino F, Kouchaki M, & Galinsky AD (2015). The Moral Virtue of Authenticity: How Inauthenticity Produces Feelings of Immorality and Impurity. Psychological Science PMID: 25963614


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morals value shiftAccording to a recent Gallup survey report, Americans continue to shift to the left in terms of “key moral issues”. For some, this is a cause for celebration and for others, it may lead to a question of “what has happened to our country?”.

But that’s not all! The same poll trumpets that the majority of those in the US say that moral values are getting worse (not better). Further, most Americans apparently believe the death penalty is “morally okay”. Other behaviors that Gallup says were “once taboo” (i.e., suicide, polygamy, cloning) are now acceptable to some Americans. As many of the Gallup polls point out, Americans are divided on whether moral shifts toward the liberal end of the continuum are a good thing or a bad thing for our society.

We read these polls a lot (perhaps too much) and are used to the somewhat contradictory responses to varying but related questions. But it’s reminiscent of what jurors go through with dueling expert witnesses. We’ve posted a number of times about what our mock jurors have to say about dueling experts. They don’t like them. They prefer what they see as “case-neutral” experts who have no stake in the case outcome.

Recently we had an expert who was called in by the Defendant (to determine environmental impact and direct remediation efforts) after a potentially toxic chemical spill. The expert had impressive academic professionals, had exhaustively evaluated the site, tested the air to ensure citizen safety, and then testified in a straight-forward and objective manner. But he was still paid by the Defense, which raised questions about how he would be seen. Our mock jurors (and ultimately the trial jurors) reacted to him as though he were a treating expert rather than a testifying expert— they imbued him with credibility, objectivity, and a neutral perspective. He was not a “witness for hire” in their eyes. He was an observing expert who made the spill site safe again. Jurors believed and trusted him. They were willing to trust him because he never appeared to be an advocate for the Defendant— he reported his findings in a straightforward manner without any hint of advocacy.

We’ve written a lot about how to apply the research to discredit the opposing expert witness. We’d encourage you to read a number of those posts on dueling experts.


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