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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

trusting too much kills youBack in August we wrote a post on a study saying women are lied to more in negotiations. One of our readers re-tweeted the post and added, “Happy Women’s Equality Day”. Another article from the same research group says women are more likely than men to trust a liar again after they learn of deception.

The authors we are studying today conducted three separate studies to assess gender differences in trust following deception (or what the authors refer to as a trust violation). Their findings were consistent:

Women trust more than men after a deception.

Women are less likely than men to lose trust in others following transgressions.

Women are more likely than men to re-establish trust after repeated transgressions.

It seems to be about socialization–women want to maintain relationships and that desire results in a gender difference in trust after a “trust violation”. If these results are accurate, it is no wonder men keep lying to women. Women are willing to believe the apology. Women, say the authors, are more forgiving, and more motivated to work through relationship problems.  We could go on at some length about these findings but instead we want to focus on one of the measures they used to assess the importance of maintaining a relationship. We had never heard of this scale before but it has a terrific name: The Unmitigated Communion Scale. And the 9 items in the scale below (taken from the article published in 1999) highlight the differences we continue to see between men and women in 2014.


Unmitigated communion scale

The items in this scale were designed to measure a focus on others even when that focus resulted in one’s own detriment back in 1999. And we still get gender differences in responses to the seemingly dated questions from this scale in 2014? Wow. Just wow.

Haselhuhn, M., Kennedy, J., Kray, L., Van Zant, A., & Schweitzer, M. (2015). Gender differences in trust dynamics: Women trust more than men following a trust violation Journal of Experimental Social Psychology, 56, 104-109 DOI: 10.1016/j.jesp.2014.09.007

Fritz, H., & Helgeson, V. (1998). Distinctions of unmitigated communion from communion: Self-neglect and overinvolvement with others. Journal of Personality and Social Psychology, 75 (1), 121-140 DOI: 10.1037//0022-3514.75.1.121


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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

Trust-InfidelityOur clients are routinely stunned by the accuracy of  mock juror impressions of witnesses and parties based on a 6 to 8 minute video clip from depositions. Mock jurors quickly assess character and are often eager to share their insights. Their comments can be insightful, surprising, and sometimes biting in their judgments. So, okay. It’s probably reasonable that brief observation can point out annoying or distracting behaviors, impressions of trustworthiness, and unflattering attire or hairstyles. But what about predicting infidelity after watching romantic partners interacting for no more than 3 to 5 minutes?

The researchers conducted two different experiments. The first included 51 undergraduates (16 men and 35 women aged 18-23 years with a median age of 19) who participated along with their romantic partners. The undergraduates (N = 51) completed questionnaires prior to the experiment to assess their “emotional and physical infidelity”, while the romantic partners (who may also have been college undergraduates) did not complete questionnaires. Then the couples were videotaped completing a drawing task where one of the partners was blindfolded and the other gave instructions on what to draw. Later, six trained coders watched the videotapes (with a focus on the five questions listed below in this post) and accurately predicted infidelity at a level above chance (p=.05).

In the second experiment, 43 undergraduates (21 male, 22 female, ranging in age from 18 to 33 years with a median age of 20) participated with their respective romantic partners. This time, both members of the partnership completed questionnaires and the researchers summed “infidelity mean scores” for each participant based on their responses to whether they had been unfaithful and how “far” their infidelity had gone. The participants then completed the same drawing task the participants in the first experiment completed. Five trained coders viewed the videos and rated the participants with a “perception of cheating index” (based on their own observations when considering the five questions listed below). Specifically, what that means is that the participants self-reported on their own infidelities (the mean infidelity score) and then the coders observed and rated the participants (the perception of cheating index). Again, the observers (aka coders) were able to identify who had cheated on their partner at a level above chance (p=.01). In this second experiment, the researchers found that the observer’s sense of how trustworthy and committed a person  was to the relationship mediated the judgments of infidelity.

What does this mean? Apparently, we can “see” infidelity, if we are simply asked to observe interactions and then consider the “right questions” (such as those the coders were assessing as they watched the videos).

“How likely is it that this person has shown interest in an alternative to his/her partner?”

“How likely is it that this person flirted or made advances on someone other than the partner?”

“How likely do you think it is that this person has had sexual intercourse with someone other than his/her partner?”

“How committed is the participant to the relationship?”

“How trustworthy did you perceive this person to be?”

While we have never asked the first three questions, the last two questions are quite similar to some of the judgments we ask our mock jurors to make about our witnesses based on short snippets of videotaped depositions.

A number of years ago we did a focus group on a case with salacious tales of infidelity, strained family relations and abortion. The Plaintiff was a wealthy Mexican-American man, and many of our mock jurors were Hispanic (of various national origins). We wondered how the bad facts of our client’s behavior would be heard by those jurors. What we saw was intriguing. The Plaintiff was honest. He neither denied nor minimized his behavior. He described what he’d done and was direct and engaging in his testimony. The jurors loved him! While they didn’t want a friend of theirs to date him, they also felt that he was honest, in spite of his infidelity. The mock jurors (from all ethnic groups) did not like his sexual behavior (well, to be fair, some of them did!), but they liked him and were actually more critical of his spouse (whom they saw as cold and punitive).

It is an intriguing case to consider in light of this research. What if that Plaintiff had lied or minimized his multiple infidelities? What if he had not been seen as trustworthy? We will never know because he did not and he was. While we can apparently “see” infidelity, it appears that trust trumps infidelity in the eyes of the observer.

Witnesses who tell the truth about bad facts but are also likable, may elicit unexpectedly positive reactions from the triers of fact.

LAMBERT, N., MULDER, S., & FINCHAM, F. (2014). Thin slices of infidelity: Determining whether observers can pick out cheaters from a video clip interaction and what tips them off Personal Relationships DOI: 10.1111/pere.12052


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euphemism treadmillIt’s a constantly moving target. Just over a year ago, we wrote about this on-going question and cited a Gallup Poll saying 65% of Black Americans have no preference when it comes to labels used to describe their racial or ethnic group. The authors of today’s research article would disagree. They say there are consequences (and loads of meaning) behind the two labels.

Stephen Pinker first coined the phrase euphemism treadmill in 1994. The phrase refers to a descriptive term that was once acceptable, but has now become pejorative. An example would be the word “crippled”, replaced by “handicapped”, which was then replaced by the phrase “person with disabilities” or, in some circles, “differently challenged”. When you write, and use an outdated, once acceptable but now pejorative phrase, you run the risk of being seen as biased, unaware, old school, or downright insensitive.

So, in 2013, Gallup said it really didn’t matter. Today’s writers demonstrate, via four separate studies, that we have very different associations to the labels “African-American” and “Black”. Specifically, we make assumptions about “Blacks” being lower in social status, less educated, and less competent than the “African-American”. In brief, here are their findings:

The label “Black” signals lower social class and status than does the label “African-American”. Further, the label “Black” evokes more negative stereotype content (as well as assumptions of lower status and less feelings of warmth) than does the label “African-American”.

Media articles on crime reports are more negative in emotional tone when they use the label “Black” then when they use the label “African-American”.

Whites view a criminal suspect more negatively when s/he is identified as “Black” rather than “African-American”.

The dilemma with these two polarizing labels (“Black” and “African-American) is that White observers are attaching presumptions based on racial labels. Instead of using either of these long-standing descriptors, these authors propose the use of a new descriptor: Americans of African Descent (AADs). Their belief is that use of a new label will short-circuit the stereotypes (positive and negative) that accompany the currently used labels and require judgements to occur based on the individual. Whether this will catch on or not, is anyone’s guess. But, staying on top of trends and labels is an important part of the work for all of us.

So, is it “Black” or is it “African-American”?

Or, should it perhaps be “Americans of African Descent”?

As mentioned above, Gallup says it doesn’t seem to really matter to the target individuals being described. But today’s authors say it matters a lot to the listener as “Black” and “African-American” have become cognitive shortcuts for many of us. So what to say?

The cynical might say it all depends on the reaction you want to evoke in the listener. That would mean that if you want to evoke a less positive attribution to a person, use the word “Black”, and if you want to imbue them with more of an upscale aura, use “African-American”. Either can be used to evoke the more negative or the more positive associations.

Our guess would be it’s a lot more nuanced than that. While there were a few more than 370 participants across four studies, we would like to see a bit larger sample to ascertain whether this stereotyping of racial labels occurs across the country or if it is limited to certain regions. We also don’t really know what stereotypes might arise if someone was described as an “American of African Descent”. Further, who knows how long the new label will encounter resistance, or how and when it might be co-opted by time.

In short, it’s an intriguing variable to consider. Are we indeed evoking racial stereotypes when we describe individuals as either “Black” or “African-American”? Is that what we really mean to do?

Hall, EV, Phillips, KW, & Townsend, SSM (2014). A rose by any other name? The consequences of subtyping “African-Americans” from “Blacks”. Journal of Experimental Social Psychology. 


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illegal-immigrants3You are likely familiar with the fact that African-Americans and Hispanics often receive harsher sentences than do White defendants. So where do you think the undocumented immigrant or non-citizen would fall in that lineup? The undocumented receive the harshest sentences and non-citizens (who are in the country legally) come in second. Why? The authors of this paper have a hypothesis: we jury-eligible citizens are simply afraid, and are trying to maintain control of our country.

“…dominant group members feel threatened economically, politically, criminally, or culturally, and will step up efforts to maintain control when minority group populations are increasing.”

You may be surprised to know “more than 30,000 non-US citizens from approximately 150 countries” have been sentenced to time in US prisons by the federal courts each year since 2008. In fact, about half of all the offenders sentenced today in our federal courts are non-US citizens and a “large proportion are from Latin America”–leading some scholars to question if there was a “Hispanic penalty” in sentencing. Researchers examined archival data from US federal courts (using the US Sentencing Commission’s Standardized Research Files) in an attempt to examine if sentencing disparities existed between citizens and non-citizens. The findings are nothing less than stunning.

Compared to US citizens, non-citizen offenders are “over four times more likely to be incarcerated, and this effect is larger than the effects for race, ethnicity, gender, age, education, being convicted at trial, and any of the offense types”. (In other words, being a non-citizen trumps all the other extra-legal variables your client may embody.)

Non-citizens receive “roughly an additional 3.5 months of incarceration” when compared to citizens. “As a point of comparison, Hispanics receive between one and two months of additional prison time compared to whites.” This may sound relatively small, but as the authors point out, “When combining the citizenship penalty across the incarceration and length decisions, the cumulative increase in incarceration is 5,765 total prison years for 2008 alone”. While non-citizens receive higher sentences compared to citizens, the undocumented immigrant is at even higher risk for severe punishment than the legal immigrant.

In response to the questions raised about the “Hispanic penalty”, the researchers show that the “magnitude of the citizenship penalty is over four times stronger than Hispanic ethnicity” when it comes to sentencing. They go on to report that Hispanic ethnicity really explains almost none of the overall citizenship effect. These authors suggest that the harsher punishments observed for Hispanic defendants is more a function of their citizenship status than of their ethnicity.

Every ethnic group lacking US citizenship (including white non-citizens) receive harsher punishment than do defendants who are white citizens. For all races, citizens are punished less harshly than non-citizens.

As concerns about immigration have increased, so has the citizenship penalty. That is, the length of prison sentences assigned to non-citizens has grown substantially as the country has become concerned over the “dramatic influx of non-citizens and undocumented immigrants over the past two decades”. In areas where there are a higher influx of non-citizens, there is a higher “citizenship penalty” in sentencing.

From a litigation advocacy perspective, this article is useful to us in many ways. As the authors say, “citizenship appears to trump race and ethnicity when determining punishments for those who violate US law”.

Reading can help you obtain a sentence for your client that is consistent with those assigned to white defendants rather than incurring a citizenship penalty.

It can be used to educate jurors involved in sentencing decisions and judges making decisions on sentencing if your client is found guilty.

And unlike many statistically heavy articles that illustrate their findings with graphs and charts that are completely incomprehensible–this one makes the point clearly. The figure below (taken from the article itself) illustrates the differences in sentencing you see when you examine only race rather than incorporating citizenship status. This figure, presented and explained piece by piece, communicates clearly what happens with sentencing when the defendant is a non-citizen. Bias comes out in multiple ways we cannot see and, as these researchers clearly illustrate: citizenship trumps race and ethnicity.

citizenship insert


Light, M., Massoglia, M., & King, R. (2014). Citizenship and Punishment: The Salience of National Membership in U.S. Criminal Courts American Sociological Review, 79 (5), 825-847 DOI: 10.1177/0003122414543659


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introverted faceOur mock jurors (and many others as well) tend to believe the eyes are the “window to the soul” and that by simply looking at the eyes of another, they can intuit truthfulness and character. But it can be even easier! Just look at the face and you can actually assess introversion/extroversion, competence/incompetence, dominance/submission, and even trustworthiness/untrustworthiness. In short, if you are trustworthy, you have a more feminine face and tend to evidence positive emotions. If you are not trustworthy, you have a more masculine face and tend to evidence negative emotions. (See illustration above for an example. Doesn’t that woman on the right look more trustworthy than the man on the left?)

Unfortunately, this isn’t just some goofy research that we can make fun of and not take seriously. It is an example of the way we quickly look for shortcuts to assess character and personality traits. We all do it. And further, the consequences for the individual being judged are measurable and can be positive or negative. We know, for example, that attractive people get many benefits for simply being attractive. Apparently, we also have stereotypes about who appears trustworthy and who appears competent. We can take a glance at a face and make many assumptions. The problem is that our assumptions may be very wrong and it is very difficult to change first impressions.

The paper that forms the basis of this blog post was written to summarize the work on “facial morphological traits” and how they are linked to various social outcomes. While the early “science” of physiognomy (a system for identifying personality types and even criminality based on facial characteristics) has long been debunked, we still use many of the same sorts of shortcuts to make assumptions about each other. The research has shown many disturbing (and yet not hard to believe) results.

Politicians who possess particular facial characteristics (e.g., those viewed as reflecting competence and sociability) are more likely to win elections.

CEOs with faces that appear competent are more likely to be hired by large successful companies, even though their performance is no better than less competent-looking fellow applicants.

If you are in the military, you are more likely to be promoted to higher rank if your face appears dominant.

Defendants who have certain facial characteristics (e.g., appearing trustworthy or “baby-faced”) are less likely to be convicted of a crime than their peers who lack those characteristics.

There are multiple other findings that are clear examples of how you look being linked to social outcomes. The authors comment that there is causal evidence (not just correlational) showing facial appearance as influential in voting, economic exchanges, and legal judgments. We leap from facial appearance to character judgments of trustworthiness, competence, introversion, and dominance.

From a litigation advocacy perspective, this is obviously problematic if you have a deserving client who is not fortunate enough to have been born with the most acceptable facial characteristics. However, an intriguing fact is embedded in the article.

One study found that voters who have limited knowledge are more likely to vote for politicians with the most competent-looking faces. More knowledgeable voters showed no such tendency.

This bodes well for us. Educating jurors and finding likable things to show them about the client should mitigate first impressions. We often talk about the importance of using universal values in witness preparation and case narrative. The power of our stereotypes as we judge each other is shocking and illustrated clearly in the examples of trustworthy, extroverted, competent and dominant faces in the article itself. We need to pay attention to what we can do to reduce the biasing impact of facial appearance. The authors encourage awareness of just how challenging this goal will be:

“This is a challenging task because people are naturally inclined to draw inferences from faces to an extent that they may find it difficult to inhibit these tendencies. On the positive side, the evidence suggests that people sometimes rely on facial appearances less when they are armed with more relevant and valid types of information. Thus, in some contexts, educating people might be sufficient to reduce facial stereotyping. In other contexts, however, more research will be necessary to identify the best ways to mitigate the biasing influence of facial appearance. For instance, it still remains to be determined how justice can be truly blind – that is, how judges and juries can disentangle case-relevant facial information (e.g., expressions of remorse) from information that should be irrelevant to a case (e.g., facial morphological features perceived as criminal-looking).”

Olivola, C., Funk, F., & Todorov, A. (2014). Social attributions from faces bias human choices Trends in Cognitive Sciences, 18 (11), 566-570 DOI: 10.1016/j.tics.2014.09.007

Image taken from article referenced above.

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