Deliberations

Your Client, The Jury, And You

One of my law partners was called for jury duty awhile back.  He returned with a striking story, a sort of Tale Of Two Lawyers.  Defense counsel, he reported, sat with his client at counsel table during voir dire.  But plaintiff's counsel sat alone; his clients had to watch from the gallery.  Even my experienced friend, who could list twenty reasons why a lawyer might or might not want to have the client at his elbow during voir dire, couldn't miss the message:  defense counsel liked his client, and plaintiff's counsel didn't.

I was reminded of the story this week when Capital Defense Weekly listed new scholarship related to the death penalty.  The list included a Howard Law Journal article with what sounded like an impossible title: "Death Without Due Consideration?: Overcoming Barriers to Mitigation Evidence By 'Warming' Capital Jurors To the Accused," by H. Mitchell Caldwell & Thomas W. Brewer. (I can't find a free stand-alone copy of the article, but the entire issue of the Howard Law Journal, including this article, is in pdf here.) 

My client, my friend

How do you "warm" jurors to the defendant in a horrific murder case?  Caldwell and Brewer, expanding on Brewer's earlier analysis of data from the Capital Jury Project, suggest one thing above all others:  treat your client with warmth and respect. 

When they searched the data for reasons why some jurors were receptive to "mitigating" evidence supporting a mere life sentence, Caldwell and Brewer say, "[t]he primary explanatory variable . . . was the jurors’ perceptions of the attorney client relationship."  "A significant sampling of capital jurors," they go on, "reveals that jurors are more receptive to mitigation evidence when they view the relationship between the attorney and client as 'warm and friendly.'"  But it's easy to appear too close:  "Ironically, that same study of capital jurors revealed that they became less receptive [to mitigating evidence] if they perceived that the attorney and client worked too closely together."  The Howard article puts this conclusion in context, and suggests several practical ways to help the jury get to know an accused client.

Civil trials too

Civil as well as criminal lawyers need to learn from this, as my colleague's story shows.  Of course you should be treating your client with warmth long before the jury ever walks in; that's your client, for heaven's sake.  But your public relationship has an extra dimension -- as important or more, this research suggests, than the opening, closing, and cross-examinations you worked so hard on.  In every case, from a slip-and-fall to a corporate contract dispute to a death penalty trial, the jury wants to know what treatment your client deserves.  They take the answer in part from the one person who is interacting with your client from the first to last moment of the trial.  That's you.

________________

Source note:  Prof. Brewer has two related articles, including his 2003 Ph.D. dissertation that first worked with the lawyer/client relationship data, on SSRN here. 

(Photo by Michael K. Dorsey at http://flickr.com/photos/thechairman/247088786/; license details there.)

Eggs, Milk, Butter, And . . . Darn It.

New research confirms two things.  First, I'm not the only one who keeps forgetting that fourth thing I need at the grocery store.  And second, I probably won't get better at remembering it.  Translation for lawyers:  if you need jurors to keep more than a handful of facts in working memory, you have to give them special tools.

"A certain number of objects" -- and no more

"We found that every person has the capacity to hold a certain number of objects in his or her mind," said Jeff Rouder of the University of Missouri.  He's the co-author with Nelson Cowan of "An assessment of fixed-capacity models of visual working memory," published this month in the Proceedings of the National Academy of Sciences.  (Note:  that link is to the PNAS abstract.  Rouder posts the whole article here at his Missouri bio page, a generous move I hope more scholars follow, but it's extremely heavy going.  Unless you love statistics or have time on your hands, the excellent press release is where you want to be.)

It wasn't easy for Rouder and Cowan to confirm our "fixed capacity," because we've developed clever tricks like "chunking" to get the most out of limited memory space:

Rouder said that to remember a series of items, people will use "chunking," or grouping, to put together different items. It can be difficult for someone to remember nine random letters. But if that same person is asked to remember nine letters organized in acronyms, IBM-CIA-FBI, for example, the person only has to use three slots in working memory.

Nine slots, or three?

Our habit of "chunking" information into our memory slots makes it hard for researchers to understand how working memory really works.  Until Rouder and Cowan devised an experiment that "wiped out" prior information as the subject went along, no one could tell whether subjects who remembered nine facts had kept each one in a different memory slot, or chunked them into, say, three groups of three. 

It doesn't matter to the subjects, of course, how many memory slots they have, as long as they end up remembering nine facts.  But it matters a lot to lawyers.  If you need jurors to remember nine facts, Rouder and Cowan's research suggests, you've got three or four slots to put them in.  If you can't form the facts into meaningful groups, they won't stick.

Remembering to pay attention

In fact, if you can't sort facts into related groups (or give jurors some other tool to remember them, like notetaking) jurors may end up not listening to you at all.  The press release goes on:

Working memory is closely related to attention because it requires attention to hold a number of items in mind at once. People with high working memory capacity have more focus. Those with a lower attention span are more easily distracted.

Next time jurors start staring at the ceiling during your client's testimony, don't get mad; think back.  Where did you lose them?  Likely somewhere around the fifth fact.

___________________

Related topics here include:

• Thinking, And Talking, In Segments
• The Jelly Bean Theory of Keeping Jurors' Attention

(Photo by  tracy the astonishing at http://www.flickr.com/photos/tracy_the_astonishing/2375583350/; license details there.) 

Lawyers: So Certain, So Wrong

Watch a few mock trials and you'll start to suspect that lawyers have no clue how to argue to juries.  A new study suggests one reason why.

"I rest my case."

Remarkably often in mock trials, here's what happens.  Lawyers tell me they have an analogy or chart or argument they're sure will conclusively show their case is a slam-dunk win.  They present this to the mock jurors, in a voice full of hard-earned pride.  Then they listen to the jurors deliberate, and they're mortified.  The jurors hate the analogy, trash the chart, use the argument to support the other side.  The lawyer was so sure, and so wrong.

Good news from the world of social science:  it's not just lawyers.  Everybody does it.  We all assume that if we like something, the rest of the world is going to like it too -- and when we assume that, we're usually mistaken.  That's the conclusion of the wonderfully named paper "What’s Not to Like: Preference Asymmetry in the False Consensus Effect," by Andrew D. Gershoff, Ashesh Mukherjee, and Anirban Mukhopadhyay, in the coming June 2008 Journal of Consumer Research.  A good press release is here. 

With walnuts and hot fudge?!

The method used in the study was simple:  ask people what they like and how much they think other people like it, and then ask those other people.  So:

• "Participants in one study were asked to choose a movie they like. They were then asked to guess what percentage of their peers liked the movie as well. On average, people estimated that 51.2 percent of other people also liked the movie, a significant overestimate. They also estimated that only 18.2 percent of people, on average, disliked it – a reflection of the belief that more people agree with us than disagree.   In contrast, when asked to choose a movie they dislike and make the same estimate, participants were less self-centered: they thought people would agree and disagree with their opinion in roughly the same numbers."
• "Another study of ice cream sundaes found that those who liked a certain flavor combination – say, mint ice cream with walnuts and hot fudge – overestimated that people would share their fondness for the sundae by 9.9 percent. Those who disliked it only overestimated that people would share their repulsion by 0.8 percent."

I can't help pointing out that a mock trial is essentially that same research method, minus the statistical precision.  Lawyers bring in arguments they really like, and think other people will like them too.  Then we ask those other people, and often they don't.  Best of all, after the mock jurors are done chuckling at the argument, we listen to them talk about what did convince them, and we watch whether and how they're able to convince each other.

Where you're most certain you're right, then, is where you might be most wrong.  A mock trial is one good way to find that spot, and set yourself straight.

(Photo by Nic McPhee at http://www.flickr.com/photos/nicmcphee/428035441/; license details there.  McPhee's blog is I Am . . . Unhindered By Talent.)

The Brand-Name Brain

My favorite psychology research is the stuff that sounds like it might be an April Fool's joke, but it isn't.  Studies on the phenomenon called "priming" almost always fit the bill. 

Here's a great one, about corporate brand logos.  We see them all the time, and companies spend millions trying to get us to associate them with the specific qualities they want to represent in our minds.  How successful are they?  Very, according to researchers Gavan Fitzsimons and Tanya Chartrand of Duke and Gráinne Fitzsimons of the University of Waterloo.  When we're exposed to a famous logo for even a microsecond, they conclude, we act out the qualities we've learned to associate with that picture.

All of a sudden I'm hungry

Remember learning when you were a kid how the movie theater could slip a split-second frame of steaming, buttery popcorn into the movie, and suddenly everybody would line up for popcorn without knowing why?  These researchers used the same trick.  The subjects watched a screen explaining what they were supposed to do -- but also on the screen, too fast for them to notice, corporate logos flashed momentarily.  When subjects turned to the assigned task, which logo they'd seen made a difference:

• Subjects who saw the Apple logo, symbol of creativity, thought of more possible unusual uses for a brick than did subjects who saw the IBM logo, symbol of corporate sameness.
• Subjects who saw the Disney logo, which we associate with earnestly pure things like Mickey Mouse and Snow White, confessed to more bad behavior (like calling in sick) than did subjects who saw the E! network logo, which we associate with celebrity gossip, honest or not.

What it means in real trials

Can lawyers use this?  I say yes, but maybe not in the way you think. 

There are trial lawyers out there who can use priming to underscore ideas and themes in trial, while still keeping track of where their cross-examination outlines are and whether the client understands what's going on and who's doing the jury instruction argument and whether they brought enough matching socks.  I don't think those lawyers read this blog, though.  They don't need to.

For the rest, here's a message from priming research we can all use.  Jurors make decisions without knowing why.  So don't expect so much from your direct questions to them.  When you ask in voir dire how they'll approach one issue or another, they'll tell you, so far as they know -- but that's not very far.  If you get to interview them after the trial and ask how they reached their verdict, the same is true.  Ask the questions anyway, of course.  But work to develop an intuition that goes beyond the answers.

________________

Source notes: 

1. The paper is "Automatic Effects of Brand Exposure on Motivated Behavior:
   How Apple Makes You 'Think Different'".  The press release says it's to be in the April issue of the Journal of Consumer Research, but it's not in the table of contents.  Luckily, Duke University generously puts its faculty papers on line at their site, so you can read the whole paper here.
2. I've written previously about priming here. 

(Image by Julian Povey at http://www.flickr.com/photos/jpovey/2051196149/; license details there.)

The $1.99 Effect

Which is more, $395,425, or $395,000?

In civil trials, damages evidence is almost never clear to the penny.  Instead, lawyers make judgment calls about the exact amount of damages to ask for.  A new study suggests the decision may make more difference than you thought.

This paper has been out for awhile, but I missed it until it was on NPR this morning.  Researchers from Cornell University's Johnson School of Management report that many of us misunderstand basic quantities because we're fooled by whether the number is "precise," like the $395,425 figure above, or rounded.  And we're fooled in the same way:  we think the precise number is smaller than it really is.  In the example above, a surprising number of people respond that $395,425 is the lower price -- and it isn't.

I'll take that one

And the "precision heuristic" doesn't stop at simple miscalculation.  In an experiment that assigned precise and rounded numbers to hypothetical home prices, the researchers found that subjects were more willing to buy when the price was precise.

Why are we so easily fooled?  The authors considered whether the precise price sent a stronger signal that the seller had taken more care to set the price, or was more willing to bargain, than a rounded price would.  They couldn't rule these possibilities out, but another explanation seemed more likely:  we've learned to think this way.  From the discount store to the gas pump, we're conditioned to think "discount" when we see a precise number.  The experiment itself gave support to this learned-behavior theory; when the researchers primed the subjects with pairs of numbers where the rounded number was lower, the subjects got the hang of the comparision, and stopped making the mistake.

If precise numbers are more acceptable and credible until listeners are taught otherwise, the lesson for lawyers seems clear.  Plaintiffs' lawyers should think about not rounding.  And defense lawyers should teach jurors the fallacy of assuming precise numbers represent real precision. 

_____________

Notes:

1. The Cornell paper is "Do Consumers Perceive Precise Prices to be Lower than Round Prices?" by Manoj Thomas, Daniel H. Simon, and Vrinda Kadiyali.  It can be downloaded here from SSRN. 
2. I've written before here on research showing we can change the way our listeners do math by changing the words we use to express math concepts. 

(Photo by Matt McGee at http://www.flickr.com/photos/pleeker/133232691/; license details there.)

The New Personality And Social Psychology Bulletins Are Here!

My clients and colleagues wouldn't understand if I took a few days off every time the new Personality and Social Psychology Bulletin came out.  But I wish I could.  Every day I troll the new science stories for studies relevant to juries, and then every month clunk, PSPB's RSS feed delivers a whole pile of articles that are right on point. 

You have to work through some pretty dense writing in this journal sometimes, but it's worth it.  Here are a few of the articles in the April issue, released today:

1.  "Attitudinal Ambivalence and Message-Based Persuasion: Motivated Processing of Proattitudinal Information and Avoidance of Counterattitudinal Information," by Jason K. Clark of Indiana University and others.  The abstract says:

Attitudinal ambivalence has been found to increase processing of attitude-relevant information. In this research, the authors suggest that ambivalence can also create the opposite effect: avoidance of thinking about persuasive messages. If processing is intended to reduce experienced ambivalence, then ambivalent people should increase processing of information perceived as proattitudinal (agreeable) and able to decrease ambivalence. However, ambivalence should also lead people to avoid processing of counterattitudinal (disagreeable) information that threatens to increase ambivalence. Three studies provide evidence consistent with this proposal.

Translation:  If you're ambivalent, the feeling is so unpleasant that you can actually start shutting out information that, if you considered it fully, would make you even more ambivalent.  If you've lately been shutting out the latest on Hillary Clinton and Barack Obama, you may be a case study for this one.

2.  "Justice for Whom, Exactly? Beliefs in Justice for the Self and Various Others," by Robbie M. Sutton of the University of Kent and others.  The abstract says: 

The present studies examine why people think the world is more just to themselves than to others generally. Beliefs in justice for the self were uniquely associated with psychological adjustment, consistent with the theoretical motive to believe in justice for the self (Studies 1 and 2). However, this "justice motive" did not appear to affect the relative strength of justice beliefs. Instead, self–other differences in justice beliefs appeared to reflect objective assessments of the justice received by various demographics. Undergraduates believed the world to be more just to themselves than to others but not their undergraduate peers specifically (Study 1). Participants of both genders believed the world to be more just to men, and to themselves, than to women (Study 2). Women did not exempt themselves individually from injustice but believed, similar to men, that undergraduate women receive as much justice as men (Study 3).

Translation (I think):  Most of us think the world is fairer to us than to others, but that doesn't particularly skew our assessment of the treatment others get.

3.  "More Eyes on the Prize: Variability in White Americans' Perceptions of Progress Toward Racial Equality," by Amanda Brodish and two others from the University of Wisconsin-Madison.  The abstract says:

Much recent research suggests that Whites and non-Whites think differently about issues of race in contemporary America. For example, Eibach and Ehrlinger (2006) recently demonstrated that Whites perceive that more progress toward racial equality has been made as compared to non-Whites. The authors of this article sought to extend Eibach and Ehrlinger's analysis. To this end, they found that differences in Whites' and non-Whites' perceptions of racial progress can be explained by the reference points they use for understanding progress toward racial equality (Study 1). Furthermore, they demonstrated that there is variability in White people's perceptions of racial progress that can be explained by self-reported racial prejudice (Studies 1 and 2). Finally, they demonstrated that White people's perceptions of racial progress predict reactions to affirmative action (Study 2). Implications for better understanding intergroup relations and reactions to social policies are discussed.

Translation:  Not surprisingly, white people's assessment of racial progress depends on the prejudice they themselves report -- and in turn, their attitude toward affirmative action turns on their assessment of racial progress.

4.  "What Happens When Groups Say Sorry: The Effect of Intergroup Apologies on Their Recipients," by Catherine R. Philpot and Matthew J. Hornsey of the University of Queensland, Australia.  The abstract says:

Despite the increased incidence of intergroup apology in public life, very little empirical attention has been paid to the questions of whether intergroup apologies work and if so, why. In a series of experiments, Australians read scenarios in which Australian interests had been harmed by an outgroup. Participants were then told that the outgroup had either apologized or had not apologized for the offense. Although the presence of an apology helped promote perceptions that the outgroup was remorseful, and although participants were more satisfied with an apology than with no apology, the presence of the apology failed to promote forgiveness for the offending group. This was the case regardless of whether the effectiveness of apology was measured cross-sectionally (Experiment 1) or longitudinally (Experiment 2). It was also the case when the apology was accompanied by victims advocating forgiveness (Experiment 3) and was independent of the emotionality of the apology (Experiment 4). In contrast, individuals who apologized for intergroup atrocities were personally forgiven more than those who did not apologize (Experiment 4).

Translation:  An apology is nice, but it doesn't really help others forgive you.  A fascinating layer on the forgiveness study I talked about the other day.

Asking For Forgiveness

Many trials, civil and criminal, depend on whether jurors can forgive a defendant.  A recent study suggests that women forgive more easily than men -- but more importantly suggests which arguments might best convince men to forgive.

The article is "Not so Innocent: Does Seeing One's Own Capability for Wrongdoing Predict Forgiveness?" by Case Western Reserve University psychologist Julie Juola Exline, with Florida State's Roy Baumeister and Anne Zell, Arizona State's Amy Kraft,and Hope College's Charlotte Witvliet.   It's in the Journal of Personality and Social Psychology, a journal cited often here.  The press release is good, so I'll let it explain:

Forgiveness can be a powerful means to healing, but it does not come naturally for both sexes. Men have a harder time forgiving than women do, according to Case Western Reserve University psychologist Julie Juola Exline. But that can change if men develop empathy toward an offender by seeing they may also be capable of similar actions. Then the gender gap closes, and men become less vengeful.

In seven forgiveness-related studies Exline conducted between 1998 through 2005 with more than 1,400 college students, gender differences between men and women consistently emerged. When asked to recall offenses they had committed personally, men became less vengeful toward people who had offended them. Women reflecting on personal offenses, and beginning at a lower baseline for vengeance, exhibited no differences in levels of unforgiving. When women had to recall a similar offense in relation to the other's offense, women felt guilty and tended to magnify the other's offense.

"We actually got aggravated"

Many studies confirm the researchers' hypotheses, but not this one.  The press release continues: 

"The gender difference is not anything that we predicted. We actually got aggravated, because we kept getting it over and over again in our studies," said Exline. "We kept trying to explain it away, but it kept repeating in the experiments."

There but for the grace

What transcended gender in the study was whether the subjects could see themselves as capable of doing something like what the offender did -- a reaction the researchers invoked in men by asking subjects to remember their own transgressions, or in the case of political offenses, those of their own government.

The researchers found that people of both genders are more forgiving when they see themselves as capable of committing a similar action to the offender's; it tends to make the offense seem smaller. Seeing capability also increases empathic understanding of the offense and causes people to feel more similar to the offenders. Each of these factors, in turn, predicts more forgiving attitudes.  "Offenses are easier to forgive to the extent that they seem small and understandable and when we see ourselves as similar or close to the offender," [Exline] said.

Exline found this ability to identify with the offender and forgive also happens in intergroup conflicts in a study that she related to forgiveness of the 9/11 terrorists.

"When people could envision their own government committing acts similar to those of the terrorists, they were less vengeful," she stressed. "For example, they were less likely to believe that perpetrators should be killed on the spot or given the death penalty, and they were more supportive of negotiations and economic aid."

Women, on the other hand, were actually more forgiving before they recalled their own transgressions; it was as though they transferred their own guilt to the offender. 

More on forgiveness

Exline's study doesn't address a related and important question:  which men, and which women, are more likely to forgive than others.  For that, you might start with Michael E. McCullough's 2001 paper "Forgiveness: Who Does It and How Do They Do It?", in Current Directions in Psychological Science and available here for a fee.  The abstract says: 

People who are inclined to forgive their transgressors tend to be more agreeable, more emotionally stable, and, some research suggests, more spiritually or religiously inclined than people who do not tend to forgive their transgressors.

(Image by Windy Angels at http://www.flickr.com/photos/windyangels/1571206885/; license details there.)

The Case Of The Troubled Jury Foreman

The trial judge thought it was merely glossophobia.

Eric Turkewitz passed on this story from Thomas Swartz's New York Legal Update, on a February 21 New York appellate opinion, People v. Figueroa.  The trial itself in Figueroa's robbery case apparently went smoothly -- but after the jury sent word that it had reached a verdict, something unusual happened. "The foreperson sent a personal note to the [trial] court indicating that he did not feel 'comfortable' about reading the verdict," the appellate court explained.

Please don't make me read aloud

What does a trial judge do with a note like that?  Talk to the juror.  This trial judge did that, and concluded the problem was simple stage fright:

The court inquired of the foreperson about the meaning of the note, outside the presence of defendant, his codefendant or any of the attorneys. Subsequently, the court informed counsel of the note, and related that during the inquiry, no mention of the verdict itself was made; instead, the foreperson stated that he was uneasy about having to read the verdict out loud in some sort of narrative form. The court related to counsel that when it assured the foreperson he would only have to answer the clerk's questions, the foreperson, who had not served on a jury before, was "relieved" and satisfied. In response to the prosecutor's question, the court stated that the foreperson never indicated any discomfort with the verdict itself, which was simply not discussed.

That put things back on track, or seemed to:  "Neither defendant objected to this procedure or sought a further inquiry of the foreperson. The jury then rendered its verdict, and, when individually polled, each juror including the foreperson agreed with it."

So the trial judge was probably surprised when, in postverdict motions, Figueroa claimed juror coercion.  He filed the foreman's "affidavit, which was obviously drafted by an attorney, in which he claimed that other jurors had coerced his verdict, and that he had communicated to the court that this was why he was uncomfortable announcing the verdict."  But the juror in turn recanted that testimony in a postverdict hearing and went back to the stage-fright version, so the conviction was upheld.

Of course there's a Glossophobia.com

Can stage fright really make a juror afraid to read a verdict out loud?  To find the answer, you'd of course start at Glossophobia.com, and find that even those smooth-talking airplane pilots get stage fright:

Glossophobia can exhibit itself in many ways, including:

• Actors, actresses and musicians finding shows and concerts extremely difficult
• Businesspeople having a fear of making presentations
• The fear of making speeches at weddings
• The fear in anticipation of a public speaking event
• The avoidance of situations that might include public speaking
• Pilots and cabin crew feeling intensely uncomfortable having to make announcements to passengers during a flight
• Stuttering or stammering in public speaking situations

The prevalence and power of this fear are worth remembering in voir dire, especially attorney-conducted voir dire when you're the one making someone speak in front of a group.  There's a chance your simplest question is making someone queasy.  That's not the first impression you want to make.  Watch for glossophobia, and find ways to show compassion.

(Image from www.moviewallpapers.net posted by Mickey Glitter at http://www.flickr.com/photos/mickey_glitter/2081677243/; license details at both sites.)

Bringing Unconscious Bias Out Of The Dark

Last week I wrote about the troubling study suggesting that "many Americans subconsciously associate blacks with apes."  Commenter Roy Wilson asked for a constructive response:  "Any thoughts about this topic in relation to jury composition as it might affect deliberation?"

I do have a thought -- not an answer, but a thought.  More accurately, Tufts professor Samuel R. Sommers has a thought, explained in his 2006 paper in the Journal of Personality and Social Psychology.  The thought is:  jury diversity.  Prof. Sommers's research suggests that diversity in the jury itself can bring unconscious biases out of the shadows.

Diverse juries, better juries

In the study described in the paper, Prof. Sommers and his colleagues recruited enough people to make up 29 separate six-person juries.  (Unlike many university-based psychological studies, this one used jury-eligible adults from the community, not college students.)  Some of the juries included only white jurors; the rest were composed of four white jurors and two black jurors.  Each jury listened to a Court TV summary of a sexual-assault trial of a black defendant. 

When the groups deliberated about the summarized trial, the diverse groups performed far better.  They raised and discussed more of the evidence they had seen.  They mentioned more "missing" evidence, things they had not seen that they thought would have been helpful.  And they were more willing to mention, and discuss, the possible role of racism in the case.

Discussing what's uncomfortable

Most striking, it wasn't only the black jurors who added to the discussion in the diverse juries.  Instead, the white jurors were more willing to raise and discuss issues when the black jurors were there.  On the topic of racism, for example, Sommers quotes several exchanges from his juries, and concludes: 

Participants in all-White groups seemed surprised at and were made uncomfortable by the mention of racism during deliberations. Perhaps they had given little thought to racial issues to that point in the experiment. True, the defendant was a Black man, but race was not discussed during the trial, nor would a cursory look around the room suggest that such a potentially controversial issue would be brought up during deliberations. Whites in diverse groups, on the other hand, reacted differently. They did not automatically change the topic when racism came up, but rather engaged in substantive conversation about it. Members of diverse groups did disagree while deliberating, at times vociferously, but they devoted time to discussing even polarizing and uncomfortable topics.

It rings true, of course; you've seen it happen yourself.  When you're talking to a person of another race, you're more conscious of racial context, overtones, and issues.  Diversity works like a flashlight.  It may not cure racism, but it can bring racial biases out where we can talk about them.

_____________

Notes:

1. Prof. Sommers has spent the last several years studying race and juries.  I wrote here on his paper on purportedly "race-neutral" peremptory challeges under Batson; his other papers are linked to, in full, on his Tufts bio page.  Thanks to him and Tufts for that.
2. Not surprisingly, diverse juries are also perceived as more fair and legitimate by the public than all-white or all-black juries are.  Northwestern professor Shari Seidman Diamond and Dr. Leslie Ellis (now of TrialGraphix) showed that in their paper "Race, Diversity, and Jury Composition:  Battering and Bolstering Legitimacy," in the Chicago-Kent Law Review in 2003. 
3. So does Batson let you strike white jurors in the name of a diverse jury?  Don't expect a case on point soon, but probably not.  Another obstacle on the Batson collision course.
4. Related posts here:

• Batson, Day To Day
• Another Day, Another Unconscious Bias Study
• A Helpful Way To Think About Race.

(Photo by Dan at http://www.flickr.com/photos/ladnlins/1822774622/; license details there.)

Walk This Way

If you want to get better at persuasion, maybe you should practice imitating other people. 

Anything that increases the common ground and reduces the distance between you and the other person is a good thing.  And the quickest way to accomplish this it so synchronize as many of the other person's aspects as you can -- adopt the same attitude, make the same motions and speak the same way.

There's some good jury learning in self-help books.  That quote is from Nicholas Boothman's How To Make People Like You In 90 Seconds Or Less, and before you unsubscribe to a blogger who would own such a thing, read Benedict Carey's article "You Remind Me Of Me," in the science section of tomorrow's New York Times.  It turns out that research supports this idea:

Psychologists have been studying the art of persuasion for nearly a century, analyzing activities like political propaganda, television campaigns and door-to-door sales. . . . They have found that immediate social bonding between strangers is highly dependent on mimicry, a synchronized and usually unconscious give and take of words and gestures that creates a current of good will between two people.

Toe-tapping their way to higher sales

Mothers unconsciously imitate babies, friends unconsciously imitate friends -- but conscious imitation is powerful too.  Carey describes a number of studies, including this one by Duke researchers Robin Tanner and Tanya Chartrand: 

The team had 37 Duke students try out what was described as a new sports drink, Vigor, and answer a few questions about it. The interviewer mimicked about half the participants using a technique Dr. Chartrand had developed in earlier studies.

The technique involved mirroring a person’s posture and movements, with a one- to two-second delay. If he crosses his legs, then wait two seconds and do the same, with opposite legs. If she touches her face, wait a beat or two and do that. If he drums his fingers or taps a toe, wait again and do something similar. . . .

None of the copied participants picked up on the mimicry. But by the end of the short interview, they were significantly more likely than the others to consume the new drink, to say they would buy it and to predict its success in the market.

"A delicate balance"

But wait, you say.  I won't do it right, and I'll get caught.  It's true; you might, especially if you jump on the other person's gestures too quickly.  The article continues:

Dr. [Jeremy] Bailenson, the Stanford psychologist, has been testing the effects of different forms of mimicry by programming a computer-generated figure, an avatar, to mirror the movements and gestures of people in a study.

He has found that his subjects pick up the mimicry when it is immediate and precise. If the avatar is slightly out of sync, however — waits four seconds, for instance — then the mimicking goes unnoticed, and the usual rules apply. The virtual creating comes across as warm and convincing, as if controlled by another human.

“The point is it’s a delicate balance to get it right, and I suspect that people who are good at this know how to do it intuitively,” Dr. Bailenson said.

Too much to remember

It's all fascinating, but does it mean you should add mimicry to your list of trial skills?  Probably not, unless you're already a natural at it.  Most obviously, whether conscious or unconscious, it's a way that one person relates to another.  It wouldn't make sense to mirror six or twelve people.  And there's far too much else to remember in trial.

A more modest, goal, though, is worth striving for.  Two or three times during your next trial, or next anything, try to notice a gesture or posture that you could mirror.  You'll probably be surprised at how difficult this is.  The thing that keeps us from doing it is the same thing that keeps us from connecting better with jurors:  we're too wrapped up in ourselves.  You'll be planning your next sentence, or thinking about your last meeting, and suddenly you'll realize that for the last several minutes you've hardly known whether the other person's eyes are open.

Anything that makes you notice will make you better -- and this is fun.  Try it.

____________

Note:  What a relief.  For years I thought I'd never remember the punch line that responds to the old line "Walk this way."  Riddle solved; there are more than a dozen, used over decades, and they're catalogued in Wikipedia from "After The Thin Man" to "M*A*S*H" to "Rugrats."

(Image by Jim Crossley at http://www.flickr.com/photos/raindog/10550156/; license details there.)