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Archive for the ‘Witness Preparation’ Category

forgiving infidelityAccording to new research, you can’t have both. Inspired by women who told them they “would not vote for Hillary Clinton [in the Presidential primaries a decade later] because she forgave then-President Bill Clinton’s infidelity”, these researchers looked at how male and female observers viewed male and female victims of infidelity based on how they responded to their partner’s behavior.

The researchers did three separate experiments:

The first experiment used 100 male fraternity members (aged 18 to 24 years) who read a story about (ostensibly) a member of their own fraternity whose significant other had posted photos of her infidelity on Facebook. (This is tempting to visualize–what sort of photos do you imagine were purportedly on Facebook?) When confronted, the woman apologized and in response, the fraternity brother either forgave her, broke up with her, or slashed his (ex-)girlfriend’s vehicle tires.

In the second experiment, 114 “female voters” (aged 20 to 79 years) read the story of a woman who was presented as a political candidate. Her spouse of 25 years had an affair with his secretary and when confronted, he apologized. The “female voters” in this study read that the woman either forgave him, divorced him, or slashed his car seats.

In the third experiment, (dare we anticipate the use of a knife again?), 94 male and 131 female undergraduate students (ranging in age from 17 to 55 years of age) participated. Half of them read the story (ostensibly published in their college newspaper) of “Natalie Lewis, a student at a “sister” campus who learned that her male partner, a student body president at another campus and chair of the statewide student senate, was unfaithful”. The other half read a similar scenario but in this case it was a male student leader (“Brandon Thomas”) who learned his female partner had been unfaithful. When confronted, as in the other two experiments, the unfaithful partner apologized. In response to the infidelity, the victim either forgave the partner, broke up with the partner, or (wait for it) posted embarrassing details about the partner’s sexual inadequacy on Facebook. (Well, at least the aggression avoided knife-play!)

We think maybe these researchers have some anger issues (and what is it with all these knives and public shaming?), but here is what they found:

The young fraternity brothers in Experiment 1 rated the “brother” who forgave as about the same level of maturity but as less competent than the brother who left the relationship. However, they did see the forgiving brother as violating shared values as to how one should respond to a publicly revealed infidelity. They rated the brother who forgave as more competent and less damaging to their group reputation in comparison to the brother who slashed her tires. (This is reassuring.)

The “female voters” in experiment two rated the forgiving politician as less competent, slightly weaker, and less worthy of support in comparison with the politician who divorced her philandering spouse. The female voters thought the forgiving politician damaged the group’s (presumably all of womankind) power and status and violated their shared values. They did see the car seat slashing politician more negatively than the forgiving politician (which again, is reassuring).

Finally, in the third study which included male and female undergraduates and featured male and female student leaders with unfaithful partners–observers rated the leader who forgave his or her partner as just as mature as the leader who broke up with the partner and as more mature than the one posting scandalous information on Facebook. However, the one who forgave was seen as weaker, less competent and less worth voting for than the student leader who left the relationship. The one who forgave was seen as violating shared group values and damaging the group’s power and status more so than the one who left. Overall, they preferred the leaver to the forgiver, but in one final gesture of reassurance, these undergraduates preferred forgiveness to retaliation.

In other words, even though participants across all three studies agreed that forgiveness can be mature–it also can make the forgiver appear weak and incompetent. In every experiment, the participants preferred the partner who left the relationship (despite the researcher’s insistence on incorporating slashing knives and public shaming into the scenarios) to the one who forgave–although they preferred the one who forgave to the one who retaliated.

From a litigation advocacy perspective, you need to think carefully about how to repair perceptions of competence and strength if your client has chosen to remain in a relationship after a public infidelity. Obviously, this is more often in the news with male politicians publicly apologizing to their constituents and to their spouses who stand (publicly shamed and likely humiliated) behind them. But, regardless of whether your client is male or female–choosing to stay has consequences. Mature but incompetent and weak political candidates are less electable. We’d guess Hillary’s consultants are on this one, and, if not, she can call us.

It would be interesting to see whether there are correlates of these findings for other forms of trust betrayal. What happens if a company finds an employee has used company assets improperly for personal reasons? Or violated confidentiality? Or violated behavioral guidelines (drinking or drugs on the job, or making sexist jokes, or aggressive behavior). Certainly the current controversy about the degree to which domestic violence should result in workplace ramifications is the biggest headline in professional football right now. Is this going to be treated as an anger management problem that calls for treatment, or misogyny and thuggery that is intolerable? This is an intriguing first phase of a research design with huge social ramifications.

J. Smith, H., Goode, C., Balzarini, R., Ryan, D., & Georges, M. (2014). The cost of forgiveness: Observers prefer victims who leave unfaithful romantic partners European Journal of Social Psychology DOI: 10.1002/ejsp.2054

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“S/he is just not one of us…”

Wednesday, September 3, 2014
posted by Rita Handrich

she-is-not-even-one-of-us.american-apparel-unisex-long-sleeve-tee.black.w380h440z1b3Just over a year ago, The Jury Expert published an article on bias and ambiguity in times of economic stress. The article was titled Does This Recession Make Me Look Black? –and it focused on how White Americans see racially ambiguous appearing others as in-group members until times are tough and then we see them as out-group members (i,e, Black). In that case, it was about multi-racial targets who were seen as White in times of economic plenty but as African-American in times of economic recession.

Today’s article looks at very similar patterns but through the lens of social dominance orientation and right wing authoritarianism. These are two long-studied ideas in the social sciences but they apparently have not been looked at before in terms of how we see [racially] “ambiguous others” as either “one of us” or “not one of us”. As a review, let’s briefly look at a summary of these two ideas (as presented by the researchers):

Social dominance orientation: If you are high in social dominance orientation (SDO), you favor maintaining anti-egalitarian, hierarchical relationships between social groups and favor the domination of “inferior” groups by “superior” ones.

Those high in SDO will be primarily concerned with the status of the ambiguous targets, since they are concerned about maintaining and strengthening group boundaries. High SDO people are likely to cast out those with low status (since they might bring the status of the SDOs superior group down) but to maintain the membership of [racially] ambiguous targets who have high status.

Right-wing authoritarianism: If you score high in right-wing authoritarianism (RWA), you are concerned with tradition, submission to recognized authorities, and aggression toward those who violate the social norms of the in-group.

Those high in RWA will be especially sensitive to the conformity of [racially] ambiguous targets in their willingness to identify them as members of the in-group. When ambiguous targets do not conform to group norms, those with high levels of RWA would see the target as a threat to group cohesion and thus be more willing to see them as out-group members.

The researchers completed four separate studies where they used racially ambiguous targets to see how those high in SDO and/or RWA might react to them. They were curious about what drives in-group versus out-group attributions/assignments when the target is racially ambiguous. Instead of working our way through the four separate studies, we are going to skip to the findings.

Individuals high in SDO were less likely to perceive a low status ambiguous target in in-group terms. Those high in RWA were less likely to perceive a nonconformist ambiguous target in in-group terms. (These two findings were based on participant reactions to two different and highly negative news stories with racially ambiguous villains.)

Individuals high in SDO were less likely to see a target as White if they were low status rather than high status. (In this study, the participants were asked “how White the target looked”.) Those low in SDO did not differ significantly in their sense of “how White” the target appeared. The researchers saw this as reflecting the high SDO individual’s desire to resist “contamination” of their superior group with low status targets but also the desire to adopt high status targets who might enhance the status of the group to outsiders.

Those high in RWA saw targets that conformed as “more White” than targets that did not conform. For those low in RWA, there was no such relationship. The researchers saw this as the high RWA individual’s desire to maintain conformity within their group.

The results are consistent with what the article in The Jury Expert found–we welcome those that are racially ambiguous as long as we are in financial plenty (and they won’t leave us hurting for resources), or if they are high status (and will make us look good), or if they conform (and won’t make us look bad).

It’s a chilling and current assessment of race relations in America. As long as the boat doesn’t get rocked, you’re okay. If I perceive any sense of threat, you’re not okay. All the more reason, given the fickleness of our sense of whether we are threatened, to work to help jurors see your racially ambiguous or racially different client/witness/party as being as similar to the jurors as possible by using universal values in descriptions and testimony.

Kteily, N, Cotterill, S, Sidanius, J, Sheehy-Skeffington, J, & Bergh, R (2014). “Not one of us”: Predictors and consequences of denying in-group characteristics to ambiguous targets. Personality & Social Psychology Bulletin

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less than fully humanHere’s an intriguing article on how some nurses cope with stress. If you think, based on the title of this post, they do it by dehumanizing their patients, you would be correct. Somehow we think this is not a good thing to admit on the witness stand, but it is an understandable and human reaction to the stressful and often upsetting work that nurses have to do.

Essentially, what these researchers found was that “the more patients are perceived as rational and moral, the more nurses are likely to suffer from stress, while the more patients are perceived in terms of instinct, drive, impulsiveness, the less nurses suffer from stress. In other words, it seems that perceiving patients as less than human makes more bearable their suffering and protects nurses from stress symptoms”.

There is no argument that those in the nursing profession experience very high levels of stress. There are likely a range of coping mechanisms nurses employ to maintain their emotional balance and avoid burnout.

A few years ago, we were in Kentucky researching juror reactions to a wrongful death case and watching deposition excerpts of a nurse struggling to maintain her composure while answering questions about her own actions during the ultimately catastrophic delivery of a child. She was clearly distraught in our eyes. However, when mock jurors observed her, several saw her as cold, uncaring, and “not even shedding a tear for this poor baby”. It was so far from what the labor and delivery nurse was really feeling that the mock juror reactions were a shock to her.

It became important in witness preparation to help her share the joy and privilege she felt at assisting in the birth of a child, feeling the joy of each family over her years of service, and then juxtaposing the trauma of seeing a childbirth go terribly wrong despite doing everything she felt able to do to prevent it. She went from being cold and uncaring during pretrial research to being one of the best witnesses for the Defense. And the best way to prep her and to structure her direct examination would not have been clear without that pretrial research. Instead of being professionally aloof, she was encouraged to join with the jurors in their emotional distress, while talking about the reasons she was unable to prevent the tragic outcome. In this case it did appear that the responsibility for the birth trauma was not hers, and once she became more ‘real’ to the jurors, they saw it the same way.

It’s interesting, with that case in mind, to review this research. It is one thing to use various strategies to cope in the moment. It is another to use that same strategy in an attempt to seem strong and competent on the witness stand when the observing jurors want to see your humanity and your caring for the person (or in this case, newborn) who died. Part of being mentally healthy is being able to flexibly move between different modes of self-presentation depending on the situation in which you find yourself.

When we are under stress (like when testifying about our role in the death of a newborn in a wrongful death suit), it is natural to become more rigid and less flexible. Anyone who has a heart is deeply disturbed by the outcome, and the best nurses want to distance themselves from the tragedy. The challenge is to understand what the listener wants from you. They want to trust your skills, but also your humanity. They want to know you care. They want to know you feel sad for the parents that will never again hold their child. You don’t have to have done anything wrong to have those feelings and jurors will understand that. It’s a strange concept, but sometimes witness preparation is a lot like a mini-therapy session wherein  the goal is to learn to communicate the whole of your message effectively.

Trifiletti, E, Di Bernardo, GA, Falvo, R, & Capozza, D (2014). Patients are not fully human: a nurse’s coping response to stress. Journal of Applied Social Psychology. 

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The American Bar Association is seeking nominations until August 8, 2014 to help it decide on the Top 100 law blogs (“Blawgs”). We have been in the ABA Top 100 for the past 4 years and would like to make it 5! If you like this blog, please nominate us (it’s fast and free) here. THANKS! Doug and Rita

gay or straightAt least so says CBS News. Recently, CBS News reported on the results of a 2013 Center for Disease Control and Prevention survey (the National Health Interview Survey) of almost 35,000 adults. This was the first time the CDC asked people to report their sexual orientation as part of the survey and while the numbers may be a bit low, here is how CBS described the survey respondents:

The survey, conducted in 2013, included nearly 35,000 adults. Among the participants, 96.6 percent identified themselves as straight, while 1.6 percent identified as gay or lesbian, and 0.7 percent identified as bisexual. The remaining 1.1 percent didn’t select any of the options.”

Here are some of the ways those respondents who self-identified as gay, lesbian and bisexual described their health differently than those who self-identified as straight. We point out that this is self-report and the numbers of those identifying as lesbian/gay/bisexual total only 2.3%, which is dramatically lower than population estimates from other sources. (This begs the question of how those who self-identified as lesbian/gay in the survey may differ from the actual community of people who are lesbian/gay. Is this sample representative of the lesbian/gay community, or does it differ in a meaningful way?) Nonetheless, it is the first time we’ve had a national survey that allowed respondents to self-identify sexual orientation and it is a useful tool for beginning to describe health issues and how they differ across subgroups in our society.

Gay/lesbian (35.1%) and bisexual (41.5%) respondents said they had 5 or more drinks on one day at least once in the past year compared to just 26% of those who identified themselves as straight. A higher percentage of gay/lesbian/bisexual people said they were smokers when compared to straight respondents.

Bisexual people (11%) reported higher levels of “serious psychological distress” in the past 30 days than did their straight (3.9%) counterparts.

There were no differences in level of physical activity or in the numbers of men and women saying they were in excellent or very good health. However, a lower percentage of lesbian and bisexual women had “a usual place to go for medical care” than did straight women. On the other hand, straight respondents were more likely than gay or bisexual respondents to not seek medical attention due to cost.

The new report discusses the significance of being a minority group member when  health issues are concerned, and cites differences in health based on race and ethnicity, gender, and income which are well-documented. This is the first time being a part of a sexual orientation minority has been studied on such a large scale. Hopefully, as people feel more comfortable acknowledging sexual orientation in such research the number of respondents reporting being gay, lesbian or bisexual will become more realistic. This will help us know more about specific health concerns, targeted interventions, and access to or use of healthcare. In addition to understanding more about health differences, researchers will also examine the role of social stressors (stemming from unequal treatment) in the reported health disparities.

From a litigation advocacy perspective, this is yet another reminder that we need to identify differences and similarities between our clients and the jury pool. The comments following the CBS article make it clear there is much anger and hatred directed at gay, lesbian and bisexual people. And it affirms our general impression of the kinds of people who make comments on popular news websites.

Health of gay and straight people compared in first major survey. CBS News: http://www.cbsnews.com/news/health-of-gay-and-straight-people-compared-in-first-major-survey/ 

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The American Bar Association is seeking nominations until August 8, 2014 to help it decide on the Top 100 law blogs (“Blawgs”). We have been in the ABA Top 100 for the past 4 years and would like to make it 5! If you like this blog, please nominate us (it’s fast and free) here. THANKS! Doug and Rita

dittohead1

Here’s an intriguing study about how consensus is assumed and how it may inspire both activism and a false sense of confidence about the future. Despite a new Pew survey showing the perception is not accurate, conservatives assume more consensus among those sharing their political perspective than do liberals.

NYU researchers conducted three separate experiments looking at assumptions of consensus as related to political beliefs (i.e., liberal or conservative). The researchers say this false sense of consensus may be related to the shock and disbelief expressed by conservatives after Barack Obama won re-election in 2012.

Study 1: 107 online participants (72 female, average age 34.7 years with a range of ages from 18 to 64) viewed photos of 30 White male undergraduates and were asked to indicate whether the man pictured was gay or straight, the likelihood that the man pictured was born in November or December, and finally, whether the man pictured preferred fruit or vegetables. Then, once that descriptive task was done, they were asked “What percent of participants overall made similar judgments as you did?” and then, “What percent of participants who do not share your political beliefs made similar judgments to one another?”. While there was no consensus on judgments about the photographs with regard to birth dates, conservative participants had a stronger desire to see other conservatives agreeing with them than did liberal participants. Oddly, conservatives did reach consensus on whether the male pictured in the photograph was likely gay or straight.

Study 2: 150 online Americans (94 women, average age 34 years with a range of 18 to 65 years of age) who described themselves as “active members of a political party” performed the same tasks as in Study 1. This time the researchers wanted to see if perceiving consensus among like-minded others would be related to seeing your political party as “efficacious”. Again, conservatives actually were more in consensus on whether the male pictured was gay or straight (perhaps conservatives have better gaydar?). And, again, conservatives believed there would be higher consensus among ideologically similar participants while liberals did not. Conservatives were also more likely to see their political party as effective.

Study 3: For this study, the researchers wondered if seeing your political party as effective would make one more likely to vote. Three hundred and eleven online American participants (210 female, average age 32.9 years with an age range of 18 to 70 years) were asked to complete a study “focusing on the beliefs of individuals who belonged to a political party”. This time the participants were divided into three conditions: one group was the control group, another group was primed with a task for affiliating and the last group was primed with a task for not affiliating. Each participant judged only one of the ratings included in the first two studies. That is, 101 participants judged sexual orientation, 106 judged birth month, and 104 judged the likelihood of eating fruits or vegetables. Again (this is so odd) conservatives had more consensus on sexual orientation. Those conservatives who saw their beliefs as more in consensus with those sharing their ideology were more likely to see their political party as more effective and more likely to report plans to vote in the 2012 elections. (The researchers do not say if the conservatives were accurate in identifying sexual orientation, they just say they were in agreement as to who “looked gay”.)

Overall, say the researchers, conservatives may be motivated to perceive consensus while liberals may be motivated to perceive their beliefs as relatively unique. They cite other 2014 research showing conservatives over-estimate their similarity in beliefs to other conservatives while liberals under-estimate their belief similarities to other liberals.

From a litigation advocacy perspective, this work speaks to our belief in the importance of presenting your case with “universal values” rather than allowing hot-button (e.g., political perspective) issues to shape jurors’ perspectives on the case. To the extent that this research is accurate among your jurors, there are some important implications:

Conservative jurors are more likely to expect consensus with other conservatives and more likely to expect a lack of consensus with liberal jurors.

Don’t tell the story in a way that pushes juror’s political beliefs.

Focus on shared values of fairness, education, community involvement, and family connections.

Stern, C., West, T., Jost, J., & Rule, N. (2014). “Ditto Heads”: Do Conservatives Perceive Greater Consensus Within Their Ranks Than Liberals? Personality and Social Psychology Bulletin DOI: 10.1177/0146167214537834

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