Archive for the ‘Witness Preparation’ Category
Earlier this month I was on a Wi-Fi and Cable TV enabled flight. Passengers thought it very funny that two of the shows accessible on the cable TV channels were on plane crashes and jetliner engine failures. Well, some of the passengers thought it was funny. I was fortunate enough to be in the window seat while an over-sized traveler was in the middle seat and a man with a horrific and very productive cough (thank you very much!) was in the aisle seat. He hacked and hacked and hacked during our 6 hour flight and at one point, I looked at the middle seat passenger and whispered “ebola”. It was intended to be a joke but she began to sweat profusely and lean into me. It was not a good flight and from now on I will not crack jokes about potentially deadly things.
So today, I saw the headlines on CNN: Ebola hysteria. And then I checked my email to find an update from Rasmussen Reports saying Americans are not panicking over ebola. While I certainly prefer the Rasmussen Reports perspective, it does give a moment of question often voiced by our mock jurors: when you have dueling experts–how do you know who to believe?
We’ve answered this question before, but here are a few ideas on how to make your witness be the voice of authority in the jury room:
Establish the expert’s credentials, then let it go. If the expert is so insecure that they insist on acting intellectually superior, the jury will hate them. And as ridiculous as it might sound, during preparation emphasize to the witness the need to be nice. Expert witnesses are the worst when it comes to arrogance and gamesmanship. Getting them to be friendly, useful, and charmingly geeky is often quite a challenge.
Your expert witness is not there to tell what they know. Their job is to teach the material to a (usually) ignorant but motivated class of students. Not to teach the attorneys or the judge, but to teach the good folks in the jury box.
Give the jurors the dueling testimony but also let them know why what you are offering is more supported by the literature, has stronger support from professionals in the field, or other pieces of data that bolster your expert’s testimony.
Frame the testimony in a way that mitigates the values or belief conflicts that the skeptical jurors are likely to have. We know that (as with political polarization) jurors are going to ‘hear’ what supports their own belief systems, giving jurors for whom your message is pro-attitudinal the ammunition to support your position in the deliberation room is essential.
Make sure your expert’s testimony is factually accurate and examine the opposing witness’ testimony for factual accuracy. Showing jurors how a portion of an expert’s testimony is self-serving will kick in their tendency to doubt the expert’s credibility in total.
These are but a few strategies to help jurors to choose your expert as the one they believe or find most credible. You can find more on the blog by simply clicking here: dueling experts.
Not very Black at all. In fact, according to the 2013 American Values Survey from the Public Religion Institute, “the average white American’s social network is only 1% black”. But wait. It gets worse.
“Three-quarters of white Americans haven’t had a meaningful conversation with a single non-white person in the last six months.”
We are not talking about Facebook networks. Instead, we are talking about a much more meaningful definition of network. The researchers asked respondents to identify “up to seven people with whom you have discussed important matters in the past six months”. Respondents were then asked to provide descriptors of those individuals’ “gender, race and ethnicity, religious affiliation, 2012 vote preference, and relationship to the respondent”. In fairness, seven people in 6 months could mean that you have a pretty small circle for sharing significant things, but the results remain telling. For most people, this circle could mean family and close, intimate friends. For others, it could mean work collaborators and neighbors. It’s hard to predict. But what is clear is that most people live insular lives, accompanied by others much like themselves.
As you might imagine, the networks of some people were actually quite small.
While only 8% had no one identified in their network, 50% named between 1 and 3 people, and 43% named 4 or more people (up to 7).
People in the networks of Americans responding to this survey were only slightly more likely to be immediate family members (average: 1.8 people) than to be non-immediate family members (average: 1.5 people).
The picture becomes more surprising when we see just how segregated American society is by race and ethnicity. The following is a direct quote from the report.
“The degree of racial and ethnic diversity in Americans’ social networks varies significantly according to their particular race or ethnicity.
Among white Americans, 91 percent of people comprising their social networks are also white, while five percent are identified as some other race.
Among black Americans, 83 percent of people in their social networks are composed of people who are also black, while eight percent are white and six percent are some other race.
Among Hispanic Americans, approximately two-thirds (64 percent) of the people who comprise their social networks are also Hispanic, while nearly 1-in-5 (19 percent) are white, and nine percent are some other race.”
This table shows the tendency toward racial segregation among those with whom we talk about “important issues”.
You may think you know why this is the case. It is likely due to commonalities and differences other than race. But we cannot explain away the lack of racial diversity in our social networks by using our go-to arguments like age, political affiliation, gender, or even geographic residence. What differences there are, are fairly small.
It is a startling picture to contemplate considering the way race and the different ways the racial groups view race in this country have been highlighted with first, the Trayvon Martin shooting and now the Michael Brown shooting. We simply “self-segregate” says Robert P. Jones recently in the Atlantic in an article on Ferguson, Missouri. We self-segregate so much that it is no wonder white Americans and black Americans have very different perspectives on race in America. We just don’t talk to each other.
It’s another good reason to reinforce the idea that your client, witness, party is similar to the jury even if they are racially different. We need to expose our white jurors to the experience of black and brown Americans. We call it using universal values. This survey data would say our social networks and our day-to-day lives are not filled with an awareness of how universal those values actually are.
The American Values Survey: Race and Americans’ Social Networks. 2013 Public Religion Research Institute. http://publicreligion.org/research/2014/08/analysis-social-network/
According 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
Just 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
Here’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.