ABA Journal Blawg 100!
We Participate In:
Archive for the ‘Witness Preparation’ Category
Asian stereotypes: Furtive, sneaky, dishonest and trying to one-up Americans
Recently, a client sent us a link to a political ad run by Texan US Senate candidate David Dewhurst. The ad essentially attacks Dewhurst’s opponent (Ted Cruz, an attorney) for representing a Chinese company in an intellectual property lawsuit with an American company. Ted Cruz is painted as a “China sympathizer” who is guilty of helping the Chinese steal American jobs. The ad has gotten heavy airplay all over Texas, and the coverage of the dispute related to it has raised the prominence of the controversy even more.
It made us think about several recent projects where bias against Asians was expressed in a joking fashion by various mock jurors. But it was clear that the joking tone was a thin veil for attitudes that were not at all funny. All of the cases involved intellectual property (patents or trade secrets) and the accusations that the Asian entity had reverse-engineered the American IP unfairly. The merits of the cases are one level of analysis, but more prominent was the readiness of most jurors to find guilty conduct in these Asian parties in a way that speaks of confirmation bias.
As many readers of our blog are aware, confirmation bias is the tendency we all have of seeing the world as we believe it to be. People remember evidence that confirms their attitudes and biases, and have weaker recall for contradictory points. Someone with such a bias may say “Because of [X fact], I think the Defendant should pay the Plaintiff”, but you are able to rebut their reliance on [X fact] absolutely. They reply not by changing their conclusion, but by changing their justifying argument. Often, this pattern is an indication of confirmation bias, not of the power of the evidence itself. When I was in graduate school, we referred to this as “drawing the curve before you plot the data”.
In one project, the plaintiff was a very successful American businessman with a Middle Eastern last name, and was suing a major retailer, alleging that they knowingly purchasing and sold black market counterfeit products manufactured in Asia. Given the last name of the plaintiff, we were expecting racism. And we saw it. Interestingly, the racist comments were directed at Asian countries who were (in the minds of jurors) counterfeiting the [American] products and profiting off the backs of a good [American] product name. Slurs were directed (all in a seemingly joking fashion) at China, Korea and Asian countries in general. When questioned about these comments and the basis for them, our mock jurors denied the importance of the comments and then made additional racist comments–again, veiled as jokes.
In another case, a Chinese scientist invited himself to an American university to ‘study’ with an established inventor. While there, the Chinese scientist copied documents and beat the American inventor to the US patent office by filing a patent through his Chinese company with stolen documents. The Chinese scientist later wrote a letter to the American inventor apologizing for his own poor manners and ethics. Again, we heard slurs and stereotypes about Asians being not trustworthy, sneaky, ethically challenged and more. And again, there was no explanation for this from the mock jurors other than additional “joking” comments.
Since we are based in Texas, it might be tempting to say “Wow, those Texas rednecks are pretty closed-minded”. [We would then encourage you to consider the bias implicit in that belief…] But in fact, we conduct research all over the country, and IP cases from coast to coast. The same pattern applies all over. Ethnocentrism is thriving in every community, as it has forever. Globalization is only a good thing if you, your family, and your friends all have the jobs they want.
As we have discussed in other posts about racism and ethnocentrism, people usually deny racial bias, but if the question becomes one of “What do you think your neighbors and co-workers would think about this [racially loaded] issue?”, the jurors often warn us that the minority party is facing a difficult burden due to race. Obviously, such a person doesn’t want to be seen as racist, but doesn’t mind us knowing that their best friends are racist. Not too wily.
Despite recent surveys depicting a positive sense of each other by American and Chinese citizens, we have been seeing a different picture from our American mock jurors for the past few years.
Perhaps it’s due to the flagging economy and perceptions of China overtaking the US as a global superpower.
Perhaps it’s fear of the Asian intelligence that apparently leads to discrimination against Asians in our educational institutions.
Perhaps it’s the leftover stereotypes from 1960’s James Bond movies portraying Asian men as super-villains.
Perhaps it is a combination of all those factors.
Whatever the reason, we are regularly reminded of the need to carefully prepare Asian and Asian-American witnesses for testimony in American courtrooms, and to carefully prepare trial teams on strategies for dealing with overt and covert anti-Asian bias. Just as we carefully prepare other “different” witnesses–whether they be atheists, homosexuals, powerful women, African Americans or Muslims. We focus on clarity of communication (using translators if necessary) and how to introduce the witnesses to the jury so they are seen as trustworthy and credible. Without making that connection, their testimony is corrupted by bias that can creep in and define the witness.
It appears that when bias against Asians is used in high-profile political campaigns, it has achieved mainstream acceptance, and we should all be paying close attention. Running the anti-Ted Cruz ad is estimated to have cost more than $600,000 and we’re guessing money like that isn’t thrown around “just in case” there are a few voters out there who are biased against Asians.
Dining while black: “Because they tip for ****!”
Wow. So much for that “post-racial society”. On the heels of the new Duke study about all white juries in Florida convicting black defendants 16% more (still) than juries with even a single black member, we also have a study out of North Carolina State University on what the authors dub “tableside racism”. In other words, if you go out to eat, are you treated differently based on race? In a word, yes.
Here are two questions from a survey conducted of 200 waitstaff working at 18 full-service restaurants in 2004.
“Which is the most ideal race to serve?”
White: 64.7%
“Which is the least ideal race to serve?”
African American: 54.6%
Further, 38.5% said race influenced their manner of waiting on restaurant patrons and 52.8% of servers saw co-workers providing poorer service to African American patrons. More than half of the servers [57%] acknowledged they also had provided poorer service to African American patrons. A 2012 follow-up paper offers specific documentation of waiters paying each other to wait on the “black tables”, discriminatory behaviors clearly evidenced while African American patrons waited to be served, and comments by wait staff clearly evidencing wide-spread bias against African American customers for being poor tippers and “difficult” customers.
Denny’s and Cracker Barrel are perhaps the most well-known of the restaurant discrimination lawsuits, but a full 23.5% of the 81 published federal court opinions between 1990 and 2002 involved dine-in restaurants. [When fast food restaurants are included, the percentage increases to 36% of the identified opinions.]
It’s a disturbing and intriguing study when we consider the role of race in litigation advocacy. The restaurant servers had multiple negative adjectives to describe African American patrons: picky, demanding, hyper-sensitive, rude, mean, et cetera. It is likely a reflection of the attitudes just beneath the surface for many Americans. Yet, there are some differences:
Our mock jurors often deny bias on their own part but emphatically insist that “the real jurors from this area” will undoubtedly be biased. Over the years, we’ve only had one overtly race-driven conflict in our pretrial research groups but we’ve had a lot of covert conflicts (some of them very thinly veiled).
In this survey, more than half of the servers reported they both saw discrimination by peers and participated (i.e., were discriminatory) themselves. This may reflect the difference between completing questionnaires anonymously and having a face to face discussion with peers and a facilitator. Our mock jurors may simply be (usually) less willing to acknowledge their own biases.
Customer service work is hard. It is likely servers make sweeping generalizations about customers since their salary is largely tip-based. As the researchers say, it behooves restaurants to discourage this sort of behavior and to encourage good service for everyone to avoid a self-fulfilling prophecy where African American customers are lower tippers based on poor service.
Being aware of these stereotypes is important as you prepare your case narrative, introduce your African American client or witness to the jurors, and prepare your witness for testimony. The pervasiveness of racial discrimination is rampant. You have to intervene directly and strategically to have the optimal outcome for your client.
We are a long, long way from being a post-racial society. Until then, we need to plan, assess, investigate, and intervene strategically to keep covert and overt bias from preventing a fair trial.
Brewster, Z., & Rusche, S. (2012). Quantitative Evidence of the Continuing Significance of Race: Tableside Racism in Full-Service Restaurants Journal of Black Studies, 43 (4), 359-384 DOI: 10.1177/0021934711433310
Sarah E. Rusche, & Zachary W. Brewster (2008). ‘Because they tip for shit!’: The Social Psychology of Everyday Racism in Restaurants. Sociology Compass, 2 (6), 2008-2029
An update on disrupting suspicion of atheists
We’ve written a number of times about atheists in the courtroom and the general lack of trust in atheists in this country. One recent study pointed out we trust atheists about as much as we trust rapists! Identifying biases that are deep-seated and seem to be permanent is one of the things we do as trial consultants. Sometimes they are unexpected. They are almost always disheartening.
So we are grateful to social science researchers who sometimes identify strategies to disrupt permanent and deep-seated biases. And here’s one for disrupting biases against atheists. It’s simple, straightforward and free: remind jurors about the government.
Researchers point to research noting distrust of atheists who do not believe a “watchful and judging god monitors their behavior”. Most people think we behave better when reminded there is a god watching over us. That atheists have no such moral force judging their behavior makes the rest of us suspicious of their moral trustworthiness. The observation by a supernatural being gives believers a sense of psychological control over the behaviors of all believers. On a none-too-subtle level, it also suggests that mostly, we don’t trust that people to do the right thing if they don’t fear punishment.
There is also recent research showing that secular authority can also give a sense of psychological control in the world. When reminded of secular authority (and thus the awareness of monitoring by powerful figures, albeit not a deity) which also enforces prosocial behaviors–believers should also exhibit less distrust toward atheists. The idea is that there would exist some sort of behavioral control over the atheist–we don’t have to be so afraid of what they might do.
Researchers wanted to explore these ideas to see if bias against and fear of atheists would diminish if research participants were reminded of secular authority. They conducted 3 separate experiments:
In Study 1, researchers emphasized “police effectiveness” by having participants watch a video of the Vancouver police chief’s year-end report “which detailed many successes of the Vancouver Police Department during 2010”.
They found that being reminded of secular authority decreased the level of distrust toward atheists.
In Study 2, researchers examined distrust of atheists and the prevalence of disgust for homosexuals. Again the “police effectiveness” video was shown.
Again, researchers found that being reminded of secular authority (i.e., “police effectiveness”) reduced distrust for atheists but did not affect antigay prejudice.
In Study 3, researchers wanted to see if reminders of secular authority would reduce distrust in atheists and (at the same time) reduce distrust toward gays.
And again, the researchers found that being reminded of secular authority reduced distrust in atheists but did not affect distrust of gays.
What this research progression shows is that reminders of secular authority/effectiveness decrease distrust in atheists but do not decrease prejudice in general. This is a powerful finding although it will of course be moderated by how effective and trustworthy people find their government. Overall, though, it makes sense, if the secular authority is a replacement for religious authority. Bias and prejudice is not unidimensional, it is a complex response. No unidimensional explanation will capture all of the potential vagaries of bias and prejudice.
From a litigation advocacy perspective, if you have a client who is atheist (and ‘out’), you would do well to find ways to remind jurors of secular authority–either through law enforcement, regulatory agencies, or other reliable secular institutions relevant to the facts of your case. Society is safe, even if this person doesn’t perfectly mirror the religiously observant jurors. Jurors need to have a sense that “this atheist” is contained and law-abiding so they can trust the atheist’s future behavior.
It’s a simple yet powerfully, and pointedly targeted strategy.
Gervais WM, & Norenzayan A (2012). Reminders of Secular Authority Reduce Believers’ Distrust of Atheists. Psychological Science PMID: 22477103
Everyday racism at work: Hope for African American Women?
Black women are expected to behave like white men when they have reached a higher level of leadership. That is the conclusion of new research looking at black women leaders.
Traditionally, white men are expected to be assertive and even aggressive leaders, but black men and white women are often perceived negatively for those sorts of behaviors in the workplace. Researchers wondered about black women and what they found was that “one size does not fit all women” when it comes to leadership expectations.
This is a surprising and counter-intuitive finding–yet, there are familiar themes along the way. We know from earlier research that African American women are more likely to confront racist statements than are Asian American women. We also know that women leaders in general are penalized more severely if they make mistakes at work. That theme comes up in this research as well. So yes, it’s still hard to be a woman–but, in this research, once you arrive, you may sound more like Aretha Franklin than Tammy Wynette.
In the research, supervisors were presented in two modes: dominant or supportive/caring. The researchers showed both male and female supervisors and both white and black supervisors and asked the participants to rate the supervisory effectiveness.
Here’s what the researchers report:
White women were evaluated more negatively when they expressed dominance rather than caring support. However, black women did not get this same negative reaction.
Black men were penalized for expressing dominance but white men were not.
In short, black women were expected to behave more like white men when in a leadership role and (unlike white women and black men) were not punished for behaving dominantly in a leadership role. The researchers wonder why, then, are there not more black women in positions of leadership? They hypothesize that black women don’t look like the stereotype of ‘leader’ (e.g., for most people a ‘leader’ is a white male) and thus are punished more harshly for making mistakes since they don’t fit the ‘leader’ stereotype. The researchers presume it’s harder for a black female to rise to high levels of leadership due to heavy punishment for mistakes along the way. However, once she has arrived, the black female leader is given permission to act like a white male in leadership: dominant and assertive, even aggressive at times.
This research has relevance for both litigation advocacy and for law practice management as well as for women of color striving for leadership positions.
In witness preparation, a high ranking African American female can show dominance and assertiveness in her testimony without being punished for it by jurors. Remember though that a white female or African American male will be expected to express support and caring for subordinates while still expressing a belief that direct communication as to performance expectations is a must for effective management.
If this research is accurate, a senior African American female attorney can question on cross-exam as aggressively as a white male attorney. There is likely a fine line on this behavior though, as it is often expected that women will behave more sensitively to others.
In your law practice, ensure you are not censuring African American female attorneys more harshly for mistakes than you would censure a white male attorney. Make your performance standards measurable and concrete so they can be applied equally and with a minimum of bias.
Overall, this is intriguing research and the researchers plan to explore the realities for African American women struggling to climb corporate ladders. We’ll be watching for their future work.
Livingston, R., Rosette, A., & Washington, E. (2012). Can an Agentic Black Woman Get Ahead? The Impact of Race and Interpersonal Dominance on Perceptions of Female Leaders Psychological Science, 23 (4), 354-358 DOI: 10.1177/0956797611428079
“I feel pretty, oh so pretty!” but I’m not shallow about it.
Natalie Wood cooed these words in the musical West Side Story years ago–well, at least the first clause of our title. And now, fifty years later, science is reminding me of that old song.
It’s a long-standing tenet of social psychology that we tend to see physically attractive people more positively. Yet, at the same time, we often see the beautiful as shallow and vain. Thankfully, science has come to our rescue by examining whether the beautiful really are shallow.
Researchers had ‘judges’ [3 male, 3 female, and all professional model recruiters in London, England] rate the attractiveness [based on photographs] of more than 100 research participants. They also had the participants complete a personality measure [the Personal Orientation Inventory] assessing “self-actualization”. You may recognize self-actualization as the peak level in Maslow’s hierarchy of needs. Turns out beautiful people are more self-actualized than the not-so-beautiful. Wow. And I thought beauty was skin deep.
The beautiful research subjects scored significantly higher on 7 out of 12 scales [and generally higher on all 12 scales] on the measure of self-actualization. They were significantly more inner-directed, more emotionally responsive, more spontaneous, higher in self-regard and self-acceptance, had more capacity for intimate contact and were more likely to see themselves as autonomous, independent, and self-sufficient. It just isn’t fair.
The researchers chalk this result up to the positive feedback and reactions experienced throughout life by the beautiful. These reactions are internalized so that the beautiful person is more confident, assertive and in general, more “self-actualized” or psychologically accepting of themselves. So it likely isn’t that the more attractive are “born” more self-actualized but that their experiences throughout life make them more self-accepting and confident.
What does that say about jury selection? More confident and self-assured jurors tend to speak up more, and assert their views more authoritatively. If it can be assumed that physically attractive people have more of these tendencies, a juror who would otherwise be expected (by age or socio-economic status) to be low-impact might be a surprisingly compelling voice.
It’s also an interesting finding to ponder when considering witness preparation strategies. We need to help witnesses be seen as more likable, credible, truthful and confident (all contribute to a sense of attractiveness) and so perhaps we are working from the opposite end of the spectrum from these researchers. That is, are we perhaps helping the not-necessarily-attractive to seem more attractive by helping them to exhibit characteristics of self-actualization? Now that is sort of cool.
Ivtzan, I., & Moon, HS (2008). The beauty of self-actualisation: Linking physical attractiveness and self-fulfillment. European Journal of Psychology, 4 (4)
See complete article here.
Recent Comments