Deliberations

What Great Basketball Coaches Can Teach Us About Trial Prep

Dean Smith, the hall-of-fame University of North Carolina basketball coach, was a master at preparing his players for opponents.  I once heard a story that described a time when Coach Smith had to get his Tarheels ready for an opposing team that had significant height at numerous positions around the court.  Rather than having a normal practice, he gathered brooms and mops from the janitorial closet and distributed them to defenders as arm extenders to block shots.  If Coach Smith’s players could shoot over brooms, then they could certainly shoot over their upcoming vertically-enhanced opponents.

Like many of the best coaches, Dean Smith knew that effective preparation often meant stacking the deck against oneself in practice.  This mantra also holds true for trial preparation.  It is easy to assume that a motion will be won to exclude damaging testimony or evidence, but what if the judge decides in favor of your opponent?  What if opposing counsel is more capable than first anticipated or an expert witness handles his or her deposition swimmingly?  

In my opinion, the best planning must assume that everything will go very well for one’s opponent.  In witness prep, this means helping those who will testify by practicing difficult cross-examination questions with great intensity.  In mock trials and focus groups, err in favor of the opponent when it comes to planning case presentations.  In mediation and negotiations, have a strategy that realizes the other side (rightly or wrongly) may be even more confident in their case than you are in yours.

Ben Franklin famously said, “An ounce of prevention is worth a pound of cure.”  While he was actually talking about house fires, the idiom has lasted for centuries for a reason.  There is an exponential return on carefully considered preparation that imagines and practices a variety of potential negative outcomes.  By imagining your opponents with brooms in their hands, you will be sure to arrive at the game with a perfect fade-away jump shot. 

Blogger: Matt McCusker

 

Don’t Call Me Fluffy: One Perspective on Mock Trials

As a profession, litigation consulting sometimes faces a fluctuating level of credibility within the legal community.  At times, trial attorneys question the necessity and even the validity of some trial consulting techniques.  Similar to the blowback psychologists encountered at the birth of their field, uninformed naysayers have readily utilized the terms “fluff science” and “voodoo” to describe our work.

In my opinion, this is not an accurate description.  While I have anecdotally heard of incidents of litigation consultants ignoring a full analysis of questionnaire results in favor of “the gut feel”, I believe that most would agree that carefully reviewing all collected data is crucial to providing well-founded recommendations.

Sometimes, trial attorneys have been encouraged towards “do it yourself” mock trials or have attended workshops where abbreviated and truncated litigation focus groups are demonstrated by their faculty.  This has potentially left an impression that these demonstrations, often using actual case content, are templates for valid and reliable pretrial jury research.  However, these demonstrations do not show the detailed analysis that most consultants give the data they collect.

Typically in mock trials, 3 or more panels of jurors have been recruited and subject to extensive background questionnaires to get a sense of their attitudes, beliefs and life experiences prior to hearing about the case.  Next, these participants are shown detailed case presentations with exhibit books and asked who they favor throughout the day (Plaintiff?  Defendant?  Is there proximate cause?  Etc.).  Then, armed with a treasure trove of information, litigation consultants can analyze the results and search for associations between opinions/experiences and case leanings.  Both qualitative and quantitative analysis are often used to glean the most useful information.

Unlike some services offered by litigation consultants, mock trials fall into a very specific set of social science standards and practices.  Careful research methods must be maintained to ensure that clients are provided with  quality results.  According to the American Society of Trial Consultants Small Group Research Practice Guidelines, when discussing mock trial research with clients, consultants shall:

(IV.D.) “Communicate to the client the research methodologies employed in the study design, juror-participant recruitment (insert footnote), data analysis and reporting of research results.”

Accordingly, I believe it is very important to explain the mock trial process to clients so they understand what data is being collected and how it is being analyzed and interpreted.  Without this communication, clients may be confused about the reliability and validity of the recommendations that are reported.  For example, if certain questionnaires that are filled out by jurors are never really analyzed, I would be uncomfortable presenting a report that suggests these questionnaire results were part of the report development.

In my opinion, strong mock trial recommendations should be the result of carefully analyzing all of the information gathered.  While litigation consultant expertise/experience is also a vital component, I cannot allow myself to leave any data by the wayside.  Instead, everything from initial questionnaires to exit interviews serve as important pieces of the puzzle that eventually transform into recommendations.  Otherwise, clients may actually be purchasing the “fluff” the detractors try to say this field is selling.

Blogger: Matt McCusker

 

Defending Corporate America In Court: Bigger Is Not Better

As Wall Street zombies block the Brooklyn Bridge, the American public is struggling with an acute case of Dissociative Identity Disorder.  (*Note: Possibly, my best opening line ever.)  We don’t trust big corporations, but we need them to create jobs.  We don’t trust big government, but we need it to protect us from the corporations.  However, the many bailouts since 2008 have suggested there may be some connection between big government and big corporations (he said sarcastically).  Small local companies seem to have genetic immunity to our vitriol, but who can tell what is small anymore (see Starbucks’ 15th Ave Coffee & Tea).

The public (a.k.a. your jury), seems to be going through a phase where bigger is not better.  As a result, companies will often be entering the courtroom carrying very heavy and expensive baggage.  (Think Eva Gabor in Green Acres.)  This presents attorneys who represent large entities with a quandary: How do I overcome the “bigger” bias?

Marissa Alkhazov sets the stage in her blog entitled “The Top 5 Misconceptions Juries Have About Insurers.”  Insurers are like traffic cops, no one likes them until they need them.  The media caricature of an insurance company is often the most vivid image in a juror’s mind.  This is a problem that also plagues other industries like banks, oil companies and big pharma.  In theory, jurors should dismiss these mental images.  In reality, that is asking the impossible.

The first step in combatting this bias is voir dire.  Those whose judgment is particularly vulnerable to emotional clouding should be spotted and dismissed for cause.  (Why waste a peremptory?)   This can only be accomplished through carefully designed and executed questioning with follow ups. 

Secondly, the company must create a connection with the jury.  Many attorneys use blunt-force humanization.  For example, “This Company was founded in 1902 by Cletus Goodfellow with a few dollars and a dream.”  However, mock trial research often demonstrates that jurors see this is as an overt attempt at manipulation.  Instead, the best humanization comes from an actual human: a well-prepared witness.  Creating abstract emotional connections with a company brand is very challenging in court.  Creating a sympathetic connection with a person testifying on the stand is much easier.

Finally, focus on the story, not the characters.  If framed appropriately, jurors will be discussing the questionable actions (not actors) on the other side.  Your narrative and themes will keep people centered on the job of a jury: to decide a lawsuit, not to judge a beauty pageant.

Blogger: Matt McCusker

 

The Real Danger from Casey Anthony's Trial: Scary Scientific Precedents

A cause of death that cannot be determined by the State’s medical examiner, but can be asserted on the stand by an anthropologist who has never done an autopsy.  The morphing of a projected child’s photo into a picture of her skull.  The description of a colorless decompositional  fluid (which is typically black).  Air samples that contain "the smell of death."  A phantom image of heart sticker that “disappeared” before the examiner could return to photograph it.

These are some of the worst examples of “evidence” that the State has used to make its case against Casey Anthony.  Most of these forensic techniques have never been allowed in any trial in the U.S.  Prior courts deemed them inadmissible because questionable scientific analyses should not be presented to laymen jurors (especially when a death penalty sentence is on the line).  The average juror does not have the expertise to differentiate between “good science” and “junk science”, so the court must help them by excluding dubious evidence.

For example, the “lie detector” or polygraph machine has been around for over 70 years.  Despite being regularly featured in crime shows and suspense movies, it is still generally inadmissible in our justice system.  This is because the machine is too unreliable and jurors will make more of polygraph results than can be scientifically substantiated.

 Chief Judge Belvin Perry is a very experienced legal mind.  He made his name as a prosecutor and actually brought the first woman to death row in Florida in nearly 150 years ( Judy Buenoano).  In fact, he attended the execution, so Judge Perry knows what the stakes are in capital murder cases.  This is why I have been so surprised by some of his rulings.

Casey Anthony very likely had something to do with her child's death.  However, I believe this case may well be overturned on appeal based on the reckless use of overreaching evidence.

Despite this, the alternative possibility is even more disturbing.  Once a technique has been admitted as evidence (especially in a case as high profile as Casey Anthony’s trial), it has a much greater chance of being allowed in other trials.  If this happens, the ramifications of this trial will span far beyond the salacious intrigue that has captured the nation.

Blogger: Matt McCusker

 

Using Metaphorical Language Can Cure an Ailing Case (Research proves it!)

We have all felt beaten down at one point or another while preparing for trial. We’ve been lost in the woods and unable to keep our heads up as we slowly sank into a seemingly inescapable abyss. Then suddenly, an idea landed out of nowhere. We grasped it and utilized the concept to climb out of the desperate circumstances. After a little sweat and tears, we freed ourselves from old themes and ran to victory with a new strategy.

Okay, so going too metaphorical may be overkill. However, it is undeniable that the paragraph above relayed a palpable scene of being physically stuck and then escaping through pulling. What if I had described being lost in the dark (instead of the woods)? Would grasping a concept seem less helpful than discovering a bright idea or seeing the light?

A recent study out of Stanford University has demonstrated that metaphors may be even more powerful than we previously thought. More than simply conveying a concept, they may also subtly direct us on how to process and react to the information.

In this research, participants were given one of two versions of a media report on crime to read and then offer suggestions. The only difference was that one report described the crime as “a virus ravaging the city”, while others suggested crime was a “beast ravaging the city”. They then asked the participants to give recommendations for a solution.

Interestingly, those who read the “beast” metaphor were more likely to suggest utilizing increased police enforcement than those who read the “virus” version. Instead, the “virus” readers showed a greater propensity towards discovering the root issue of the problem and curing it.

All it took was a single word change and the result was a significant shift in problem solving style. Imagine if this was a case in front of a jury, arbitrator or judge. Could word choice have the same type of impact on the trier of fact?

This research demonstrates that beyond making a case more palatable or comprehensible, one can actually influence the manner of problem solving a jury might utilize. Ever reminding us that a good metaphor is like a key to the unconscious mind. (Damn, I think that was a simile.)

Blogger: Matt McCusker

 

One Underwear Bomb = 10 Million Nudie Pics (The Question of Body Scanner Legality)

“Opt out!” the TSA officer yelled at me in a startling manner as I stood in the security line at Reagan Washington National Airport. “Opt out!” I heard in the distance.  “Opt out!” was yelled for a third time from another direction as my head swiveled and everyone seemed to be staring at me.  Suddenly, my bags were swept off the X-ray machine and I was instructed to remove everything from my pockets (boarding pass, a gum wrapper, a crumpled Starbucks receipt), untuck my shirt, hike up my pants and “assume the position” for a disturbingly invasive frisking that seemed eerily similar to a pre-conjugal visit pat down (or so I’ve heard).

As I spread my legs, I had visions of Harvey Keitel in Bad Lieutenant while a very unhappy man intimately touched me in ways that I will not recount on this blog (but can assure you have historically been preceded by a first kiss).  Simultaneously, another TSA officer opened my bag for a bout of aggressive rummaging and began testing my unmentionables for bomb residue.  When I asked why all this was necessary, I was gruffly informed that it was for my security and I should “get used to it.”  To quote my new TSA friend with benefits: “Don’t you remember the underwear bomber? That’s why.”  When they were done, I put my clothes back on and gathered my belongings, meekly skulking away towards my gate like Jodie Foster in The Accused.

What had I done to instigate this unsettling ballet that would be aptly titled “Le Opt Out”?  Simply told, I declined a TSA officer’s request to leave my much faster metal detector security line for the body scanner security line. As a result of this insubordination, I won a trip through the metal detector (which I was already set to go through) and endured what I have dubbed the “Sanctioned Crotch Reach ‘Opt Out’ Deterrent” (or SCROOD for short.)

For those have not yet experienced this wonder of modern technology, the body scanner is able to allow your friendly neighborhood TSA officers to look under you undies (assuming you have no Flying Pasties) to make sure that you are not smuggling weapons onto a plane (although there is serious debate on its effectiveness).  Don’t worry, the program apparently blurs your face, it’s only everything else that is exposed to a stranger sitting 10 feet away. Also, as a bonus, it blasts you with “safe levels” of radiation through a “backscatter X-ray process” that is not powerful enough to send radiation all the way through your body, only through your skin.

A recent NY Times piece seems to have ignited a powder keg of anger on the web that has been growing over the last year.  In fact, there is a National Opt Out Day Protest planned for this November 24 (where everyone is asked to “Opt Out” on the busiest Thanksgiving travel day).  A brief Google search uncovers that it’s hard to find a news organization that is not taking a negative slant on this new technology (CNN, Fox News, ABC, CNET, CBS, NPR, etc.). The question is: Is this legally acceptable?

The Electronic Privacy Information Center (EPIC) has filed a lawsuit that moves to stop the utilization of body scanners through a number of interesting arguments (you can read the brief here).  Amongst its claims, EPIC argues that the scanners violate the Fourth Amendment, the Privacy Act, the Administrative Procedure Act and (most interestingly) the Video Voyeurism Prevention Act.  This last assertion utilizes a law that was passed to prevent people from installing cameras to look up women’s skirts. (Who needs that ancient technology anymore?)

A similar backlash has been ongoing in the U.K., where the scanners were forced to become optional for children under 18 years of age because the naked images would violate child pornography laws.  What has not yet been brought into legal question is the regular use of invasive pat downs for children that do not go through the scanners.  Even the U.N. Human Rights Council has weighed in on the question of privacy rights lost through the use of body scanners and pilots unions are advising their members to avoid the scanners based on health concerns and employment rights.

Litigation consultants travel a lot and this is the life I have chosen.  I am not one to downplay the need for security on planes, especially since I spend so much time on them.  However, it is also necessary to ask the question “Where is the line that makes the sacrifice greater than the gain?”  Luckily, I’m not the only one asking this question.  Given the current plan to rapidly replace all metal detectors with radiation-driven body scanners in the name of security, it’s nice to know that some people are forcing us to take a breath and think about the health concerns, privacy rights and fiscal responsibility that we find equally as valuable.

(Click Here for a funny Top 13 list on why Consumer Traveler loves body scanners and check out the new online game Celebrity Body Scanner here.)

Blogger: Matt McCusker

 

 

If Miss Cleo Couldn’t Predict a Jury Outcome, WHO CAN?

In an end to an illustrious career, Miss Cleo and her Psychic Readers Network came to a landmark settlement with the Federal Trade Commission where the company sacrificed $500 million dollars in fees and paid a $5 million fine for deceptive business practices.  This result brought three questions to my mind:

1. A $500 million settlement! How much money was Miss Cleo Making?  How much did she “psychically predict” a jury would award?
2. This is just one example in a sea of settlements based on predictions of trial outcomes, I must ask: How accurate are these predictions?
3. If I wore a turban and spoke in Jamaican accent, could I be a successful psychic litigation consultant? (Seriously. I cannot get over that $500,000,000 figure for a psychic hotline.)

A recent analysis out of Cornell Law School attempted to explore the meaning of “jury predictability” in the United States and if such a thing even exists.  They utilized a national comparison of jury verdicts via the 2005 National Center for State Courts Civil Justice Survey (an amazing study I have cited before) and the 2005 and 2006 U.S. Chamber of Commerce State Liability Ranking Studies.  Through a process I won’t go into here, Valerie Hans and Theodore Eisenberg established a creative method of analyzing the relationship between corporate and insurance attorneys’ assessments of juror predictability and the actual verdicts that were eventually rendered in various States.

Their results demonstrated that predictability ratings had little relation to jury compensatory damage awards, but were surprisingly in synch with punitive damage awards.  It suggests that the outcomes of cases with punitive damages (awarded in only 5% of judge or jury civil plaintiff verdicts nationally) are dominating defense attorney assessments of jury predictability.

In 2008, a paper published in the Journal of Empirical Legal Studies entitled "Let's Not Make a Deal" analyzed 9,064 decisions in contested litigation cases to examine the number and magnitude of errors made by attorneys and clients in failed settlement negotiations that ended in jury verdicts.  The results reconfirmed the findings of three prior empirical studies: both plaintiff’s counsel and defendant’s counsel frequently make dramatic miscalculations when predicting trial outcomes.  Interestingly, plaintiffs had a high rate of miscalculations (61.2%) with mid-level financial magnitudes, while defendants had a lower rate of miscalculations (24.3%) that resulted in very high financial magnitudes.  In other words, the plaintiffs guessed wrong regularly but only took a medium hit to the pocketbook, while defendants miscalculated less often but it cost them tremendous amounts of money. (I call it a tie.)

So, what does this mean? I would suggest that there could be several factors at play:

• Current methods of predicting potential case outcomes may be lacking due to an over-reliance on a small sample of similar jury trial outcomes.
• The stronger side may be sacrificing too much during mediation and settlement negotiation due to an unrealistic fear of loss or a lack of preparation towards fully establishing the power of the case.
• The idea of what a case is worth may be too heavily based on what similar cases have settled for, furthering a vicious cycle of faulty settlements.
• There is an over-dependence on Jamaican mystics and psychic hotlines.

Predicting jury outcomes is tremendously difficult task and every situation is different.  The best insurance against faulty guessing is to spend significant time learning one’s case and developing the strongest possible strategy prior to negotiation.  Just remember, that attorney who just had the embarrassing loss on a similar case down the road may have been depending on a very questionable strategy that began with 1-900…

Blogger: Matt McCusker

 

The other definition of "LAW PRACTICE"

 Attorney James Earhart had done an admirable job defending Karen Sypher.  For those unaware, she is the the woman who was accused of attempting to extort money from Louisville basketball coach Rick Pitino.  However, according to jurors, Mr. Earhart inexplicably went off-script at the end of the trial and lost them.  The following excerpt from an article in the Courier-Journal says it all…

…in his closing argument, James Earhart seemed to abandon his carefully scripted defense, Elder [the foreperson] and other jurors said.  First, the defense lawyer admitted that [Pitino] had been the victim of extortion, after previously arguing that it was Pitino who bribed Karen Sypher.  Then, Earhart abruptly offered up a culprit for all the threats delivered to the coach — Tim Sypher, Karen's then-husband, Pitino's longtime aide and equipment manager.

“It was a surprise,” Elder [said] “It was the first time we had heard it. There was no evidence to support it. It almost was like it was an after-thought.”

Ouch.

Many overestimate their ability to perform “on the fly” or “off the cuff,” but still choose to attempt it.  Some say the delivery of an impassioned speech is more “organic” or “real” when put together at the last minute.  Others just like the adrenaline rush or are serial procrastinators.  No matter the rationale, those who think a closing argument (or opening statement; or direct examination) is more powerful and effective without practice are mistaken.

This paper out of the University of Miami utilized quantifiable measurements to demonstrate that practicing speeches in front of an audience is very helpful to performances.  Moreover, it found that the larger the practice audience, the more adept the speaking presentation in front of a real audience.  So, while it may be more comfortable to stand in front of your bedroom mirror, it would be more useful to gather your family or co-workers.

Don’t have anyone to use as a practice audience?  No worries.  Researchers from Washington State University have shown that even simple visualization can substantially aid in the delivery of speeches.  Not only did those subjects exposed to visualization perform better than the control and placebo groups, but they also had significant reductions in trait and state communication apprehension.

Some people may feel like they are “special” or have a “unique ability” to deliver presentations extemporaneously.  That is certainly possible.  However, those who have read Malcom Gladwell’s book Outliers will know of the “10,000-Hour Rule” which suggests that the key to becoming an expert in any discipline includes thousands of hours of practice (and some luck).  How many of us could claim to even having 1,ooo hours of “off the cuff” speaking experience in high-pressure situations like a trial?

I realize that preparation levels vary by the importance of the performances (a deposition interview is not an opening statement).  However, I would suggest that we all sometimes cut corners under the belief that practice is unnecessary.  This is especially true when we are confident about our subject matter feel connected to it.  With that in mind, I leave you with this clip of testimony from a Santa Cruz City Council meeting.  This woman was passionate and felt like she had to make a strong case for her position, however she obviously skimped on the preparation.  As you can see, it didn’t quite work out. (Miss Teen South Carolina has met her match.)

Blogger: Matt McCusker

FACTS? We (the jury) Don't Need No Stinking Facts. (Or, do we?)

 I would like to begin this blog by directing you to the definition of irony.  Well, it’s not really the definition of the word, but instead a recent Boston Globe article (“How facts backfire”) that had the blogosphere aflutter.  I’m not going to lie, I was excited about this article too.  In fact, I quickly began formulating a brilliant blog post about jurors’ propensity to ignore the facts in favor of instincts and emotions.  Until, of course, I checked the facts.

Sadly, I actually tracked down the cryptic 2005 and 2006 University of Michigan studies that served as the basis for the article and was disappointed to find questionable methods and obvious bias within the research design. However, I would not be curtailed by the facts of a bad study.   I had already made my decision to write a blog on this subject, so I would find the facts that supported my belief (with the help of Science Daily).

Then, I found a piece by the researchers at Emory University that saved my day.  They produced an fMRI study (active brain scans) that scientifically demonstrated politically partisan voters (i.e. Republicans and Democrats) had no trouble using their reason to detect factual contradictions in the opposing party’s presidential candidate.  (Duh.)  However, their neural processing changed when they had to deal with inconsistencies from their own nominees.  In this situation, the partisan subjects' brains' emotional centers (not reasoning centers) went off like pinball machines when encountering disconcerting statements by their own favorite son. 

Most interestingly, was the following statement by Dr. Drew Western (lead researcher) “We did not see any increased activation of the parts of the brain normally engaged during reasoning… Essentially, it appears as if partisans twirl the cognitive kaleidoscope until they get the conclusions they want, and then they get massively reinforced for it, with the elimination of negative emotional states and activation of positive ones.”  In other words, when we don’t like the facts we switch to using a part of the brain that doesn’t need them, and then reward ourselves when we find a way to get around them.

Sure, this is a study about emotionally charged elections, but that doesn’t change the fact that the results would likely apply to jurors on a two-month long IP trial, right?  For the sake of my blog, I continued searching for more evidence that jurors will search for ways around the facts.

Coincidentally, I found another piece of evidence from my friends at Emory University (also using fMRI technology.)  Dr. Gregory Burns demonstrated that expert advice may in fact shut down the decision-making processes in the brain.  Even better, this is more likely to happen when the brain needs to assess some level of risk.  For this research, subjects’ brains were scanned when interpreting expert financial advice for making financial decisions.  Dr. Burns noted, “This study indicates that the brain relinquishes responsibility when a trusted authority provides expertise…The problem with this tendency is that it can work to a person's detriment if the trusted source turns out to be incompetent or corrupt.”  According to this research, when we have a risky decision with expert advice available, we decide that someone else can better consider the facts and we will just decide if we trust the expert or not.

While this was closer to my goal of demonstrating that jurors will often ignore facts, it was still not perfect.  My Hail Mary came when I saw an article in the Journal of Advertising Research entitled "TV Ads May Be More Effective If We Pay Less Attention".  This was it.  The study I had been searching for to prove my point.  Then, sadly, I discovered I might be undone by the facts.

In this research, subjects’ attention was measured for different TV ads aired during an episode of Frasier.  “Results showed that viewers paid less attention to likeable, creative adverts, and more attention to factual information-giving adverts, even when they didn't like them.”  What?  Factual ads work better?  Factual ads that people don’t like work better?  Say it ain’t so!

But then Dr Robert Heath said: "There has been a lot of research which shows that creative TV ads are more effective than those which simply deliver information, and it has always been assumed that it is because viewers pay more attention to them.  But in relaxed situations like TV watching, attention tends to be used mainly as a defense mechanism. If an ad bombards us with new information, our natural response is to pay attention so we can counter-argue what it is telling us. On the other hand, if we feel we like and enjoy an ad, we tend to be more trustful of it and therefore we don't feel we need to pay too much attention to it.”

And there it was.  I could exhale.  I had to search for it, but I was able to find the evidence to support my personal beliefs.  Even brainiac Frasier fans are more susceptible to ads targeted towards one’s emotions, over ads that are aimed at one’s intellect.  Take this to heart when planning your next opening statement, direct examination or closing argument.

 

Blogger: Matt McCusker

 

NO BASIS FOR BIASES: How Demographics Fool Even the Best Lawyers

 Let’s face it, we all stereotype.  We all make assumptions about others based on visual information alone.  These could be conjectures about grey hair, obesity, a tight skirt, or a body piercing; but people continually make visual judgments of others founded only on personal biases and prior experiences.  Think of the last time you were forced to stand in line (the DMV, the bank, the post office, etc.).  Did you notice the people around you?  What did you think of them?  What basis did you have?

While I do not endorse the practice of stereotyping, I accept it as an evolved part of the human condition.  Without these assumptions, the world would be a chaotic place where every new person would be an outright enigma (and even a potential threat).  Stereotyping provides order and a sense of security, even if it is often highly inaccurate.

Stereotypic predictions about individuals on looks alone come with three major downfalls:

1.       Making assumptions about individuals based on broad demographic stereotypes is simply not a reliable method.  Studies and analyses (Debunking Stereotypes, Objective Reality, Fourteenth Amendment) have shown that trying to apply large group characteristics (gender, race, age, hair color) to specific questions about an individual (Are they intelligent? Are they dangerous? Are they likely to convict?) is a generally ineffective technique.  Typically, the larger the group, the more flawed the assumption. 

For example, it is popular for some people make stereotypic assumptions about the automobile driving ability of particular demographic groups.  Let’s take a hard look at the stereotypes.  Which group reference do you think would likely be a good predictor for spotting an unsafe driver?

 

• Asian drivers (racial stereotype, approximately 4.5 billion people);
• Women drivers (gender stereotype, approximately 3.5 billion people);
• Drivers who have received speeding tickets (very common experience, certainly  in the tens of millions);
• Drivers who have rear-ended another vehicle  (less common experience, no data available); or
• Drivers who self-report on a questionnaire that they tend to speed and/or engage in “risky behavior” on the road (small group that is limited by how many are asked).

Notice that the smaller and more focused the pool, the more comfortable we feel in our assumption?  

2.      It’s easy to be right when one never knows the correct answer.  For the most part, none of us are typically able to test our stereotyping hypotheses.  These broad generalizations are only maintained for those people who we never get to know (the stranger in the DMV line will always remain a stranger).  Those who we actually meet (strangers who become new friends or acquaintances) will give us more individual information, thus making the stereotype unnecessary.  For everyone else (strangers who remain strangers), we simply get to move on with our lives assuming that we were right (which reinforces the stereotype).

3.      In several key areas of our society, we are specifically prohibited from depending on particular stereotypes (race, gender, age, sexual orientation, etc.) to make particular decisions (housing, employment, education, peremptory challenges, etc.).  This is generally because we have found that faulty decision making based on inaccurate stereotypes can have drastic consequences.

Recently, there has been a fervent discussion about the removal of peremptory challenges from the jury selection process.  The primary reason for this outcry is the belief that despite the Batson v. Kentucky ruling, attorneys depend too heavily on racially-based stereotyping when utilizing strikes (which this research suggests is likely).  As a result, some assert that minority criminal defendants are being placed at a disadvantage at trial, violating their 6^th Amendment right.  .

Banning peremptory challenges would remove racial prejudice through the restriction of information, rather than the promotion of openness and honesty.  While it’s true that this solution would limit race-based strikes, it would also come at the cost of increasing many other types of juror bias.  Without the presence of peremptory challenges, the courts would likely perform even less voir dire than the limited amount we see today.  By further reducing potential jurors’ ability to speak during voir dire, we would see even more serious cause and bias issues influencing our jury deliberations and verdicts (as the Mize study demonstrated).

Rather than denying the existence of stereotyping or asking people to continually suppress a basic human instinct, there is a better way to help reduce demographic profiling in forbidden areas.  The simple answer is to increase the time for voir dire and utilize jury questionnaires.  The minimal cost associated with these processes will exponentially increase the amount of information provided by individual jurors.  As we have seen, the best weapon against stereotyping is simply allowing a person to talk about their opinions and life experiences (something many of us are happy to do).

Blogger: Matt McCusker

WHAT AN UMPIRE CAN TEACH BP AND TOYOTA: How Truly Being Sorry Can Change the Legal Game

 It was a deeply sympathetic moment that we will all remember; Toyota’s CEO (Akio Toyoda) immediately delivered a heartfelt apology to his company’s consumers as soon as it became evident that there was a safety problem with some Toyota gas pedals.  What?  You don’t remember that?  Well, maybe it was more of a very belated, quasi-apology in front of the U.S. congress teamed with a commercial contrition that was more of a salute to prior Toyota glory and their “commitment” to be a top auto manufacturer again.

However, BP’s Tony Hayward wasn’t going to make the same mistake.  He released an ad that actually said “I’m deeply sorry” only 6 weeks after the disaster (a.k.a. 20 million gallons of oil later).  While this was slightly quicker, it also mixed the “deeply” remorseful message with touts of all the great things BP was doing to fix the problem.  By the way, congratulations to BP on the largest cleanup effort in U.S. history,  the polls are showing that bragging about this is really helping their image (or not, as this Ace Metrix data shows.)

Then there is Jim Joyce, the umpire who mistakenly blew a call that would have given Detroit Tigers’ pitcher Armando Galarraga a perfect game (which is amazingly rare in major league baseball).  Sadly, instant replay undeniably confirmed that that call was wrong.  So, upon seeing the evidence, Mr. Joyce immediately asked to personally see Mr. Galarraga to apologize profusely and tell him how terrible he felt (face to face).  The meeting ended with a hug and Armando said “I understand.”

Jim Joyce did not try to make excuses or point out all of the great calls he had made in the past.  He quickly owned up to his mistake and gave a heartfelt mea culpa that showed his distress about the situation.  He did not wait for a chorus of negative press.  He did not need to see if thing blew over.  He acted like a man who truly felt sorry.

Studies out of the University of Illinois have shown that apologies can “resolve legal disputes ranging from injury cases to wrongful firings, giving wounded parties a sense of justice and satisfaction that promotes settlements and trims demands for damages.”  This includes significant reductions in financial demands.

In an article published in Contemporary Accounting Research, a collaborative study between George Mason University and Oklahoma State University found that jurors reduced the frequency of negligence verdicts when auditors expressed regret for mistakes that resulted in damage. “We found that apologies reduce the jurors’ need to assign blame to the auditor for any negative outcomes to the client,” said one of the authors.  The same has been shown at Johns Hopkins for patients who feel that their doctor was legitimately sorry about malpractice and did not try to make excuses.

In fact, an investigation out of the Nottingham School of Economics found that if a company says “I’m sorry” to wronged customers, it can be more effective than sending a check.  This research asked consumers to withdraw a negative evaluation of a company for a delay in the shipping of a product to them.  Some consumers were offered money (“As a goodwill gesture, we can offer you €5 if you would consider withdrawing your evaluation.”) while others were told “We are very sorry and want to apologize for this.”  Twice as many respondents withdrew their complaint after the apology than when offered compensation.

While BP and Toyota said they were sorry (sort of), the public has not felt that it rang true.  Their messages were mixed with self-serving statements and attempts to spin the message.   Umpire Jim Joyce (and the research on apologies) has demonstrated that when a mistake is made with dire consequences, sometimes the most beneficial path is just admitting fault and asking forgiveness.  The court of public opinion (and juries) are sometimes not as blood-thirsty as some might imagine.

Blogger: Matt McCusker

CONNECTING WITH JURORS? Just Look to Kindergarten (and Neuroscience)

 I want to begin this blog by saying that this piece is not a hatchet job on juries or attorneys.  Both are the backbone of our justice system and a very important part of putting takeout food on my table and a roof over my three dogs’ heads.  That being said, many of us have seen a rift growing between jurors and litigators.  Jurors are frustrated with the legal process while attorneys complain about jurors’ inability to understand case arguments, basic premises of law, and instructions. 

Unfortunately, this disconnect has spawned sayings like “The only people on juries are those who were not smart enough to avoid jury duty.”  However, I believe that this confusion (often thought to be a lack of intellect) is often due to poor communication.  Jury duty is tough.  Jurors must face complex legal issues, sit like silent sponges without interaction, delay deliberation, and proceed with little guidance.

Imagine if 12 attorneys were brought to a conference of astrophysicists to judge who had the correct theory about the size of the universe.  Let’s suppose that the lawyers were told to sit and watch days (even weeks) of presentations by top physicists, were not allowed to ask real-time questions, and were not allowed to deliberate until the very end.  What would physicists say about the attorneys who could not understand such basic premises: The Planck epoch, relativity, and the cosmological constant?  My guess is that it would not be complimentary.

The problem, as with many of the world’s ills, is one of common language.  So, I suggest we go back to the basics and look to the rules of Kindergarten to find our answers.

(BTW, as a shout-out to Science Daily's hard work, the following links all go to their articles.)

The Golden Rule:  In 1992, Bill Clinton famously uttered the phrase, “I feel your pain.”  New research suggests that this may have been more than rhetoric.  A study published in Cell Press found that our brains show similar patterns of activity both when we feel pain and when we see familiar pain in someone else.  However, the study suggests that it is much more difficult for us to process unfamiliar pain.  This impediment can have big implications on both jury selection (looking for those who have common pain) and the need for metaphors and similes to bridge the gaps (speaking to those without common pain).

Say Thank You (or at least think it):  Researchers from the field of management consulting have discovered that thinking about worse case scenarios connects us more strongly to our actual (if imperfect) reality.  Their study found that employees (concerned about the economy) who were asked to think about potential pitfalls that their company had survived, were more likely to have greater attachment and positivity towards their employer.  For example, FedEx employees felt better about the company after focusing on the thought of what would have happened if the founder (Fred Smith) had not chosen to make his desperate 1973 flight to Las Vegas to help his company meet payroll. In other words, counting our blessings both makes us appreciative of what we have and tends to mitigate negativity about the present.

More Pictures:  Researchers at North Carolina State University have discovered that the saying “less is more” does not necessarily apply to charts and graphs.  They found that rectangular bar charts were actually processed more quickly with a circular (filled with circles) background than with a blank/white background.  They posited that contrast was the key to identifying important information, not simplicity.  Throw out the boring demonstratives, complex ones can actually increase retention and attention.

Nap Time: While I know it’s unconventional (yet unintentionally partaken by many), I end this blog with a plea for a national “nap time” to be inserted into the trial day.  In support of my call, I point to research out of Beth Isreal Deaconess Medical Center that shows dreaming about a complex task (doing a maze) during a nap increased performance by 10 times over those who did not nap.  Don’t we want our jurors maximizing their retention and processing?  Support the national call for nap time, Winston Churchill did: “Don’t think you will be doing less work because you sleep during the day. That’s a foolish notion held by people who have no imagination.”

Blogger: Matt McCusker

THE ART OF PSYCHIC MIND CONTROL (In Three Easy Steps)

 Let’s face it, we have all been in the position where we wanted to use psychic mind control to influence the actions of someone around us (spouse, child, neighbor, juror, etc.).  Unfortunately, no matter how well we explain our position, sometimes the other person just doesn’t “get it.” Well, argue no more.  Now, for the price of a free cup of coffee, you too can utilize your brain to its maximum potential and psychically control your family, friends, and even perfect strangers! 

(DISCLAIMER: Brain maximum potentials may vary.  Consult your doctor before participating in any brain maximization exercises. Deliberations is not responsible for any injuries resulting from brain overuse or unfortunate consequences associated with psychic mind control.)

How is this possible?  It’s easy! Just follow these three basic steps and watch everyone do whatever you say:

1)     Assess the Subject

2)    Identify the Narrative Goal

3)    Manipulate Your Presentation

Or, as I like to say: “Tune up your brain and A.I.M.”

Step One: Assess the Subject

Research has shown that we all have the ability to read minds.  At last year’s American Society of Trial Consultants Conference in Atlanta, Dr. David Matsumoto of Humintell taught us how microexpressions are universal indicators that humans from Fiji to Finland display regularly.  Amazingly, I found that after two hours of video training, I increased my accuracy at correctly identifying these brief emotional indicators from around 40% of the time to over 80%. 

We can even read minds “remotely” through photos.  A blog by Katie Moisse at the Scientific American outlines research that suggests people can predict a person’s political party affiliation (Republican or Democrat) based on facial photos.  This study utilized black and white pictures of U.S. Senate candidates and college year book photos of voters to test whether people could accurately predict which party they aligned with. The results showed significant success (although generalized and imperfect) based on stereotypes about Republicans and Democrats. (Which begs the question: Should covers actually be used to judge books?)

For attorneys, step one would entail making an honest assessment of the community and jurors involved in their case.  This could include: Thinking about the attitudes of the area, doing pre-trial research, designing strong voir dire or juror questionnaires, and most importantly, paying close attention to the responses. 

Step Two: Identify the Narrative Goal

While it would seem easiest to simply tell someone what you want them to do, psychic mind control requires more finesse.  Rather than dragging them along, it’s better to decide on a finish line and offer signposts to help your audience arrive where you want them to.  The most basic method of accomplishing this is by engaging in the art of storytelling.

Whether it be through religion or culture, the most lasting stories of human history are those that impart some sense of morality or learning experience.  The Bible; The Koran; The Torah; Buddhist Sutras; all of these impart morals that highlight the benefits of being a good member of society (and the potential downfalls of not).  Theories of sociocultural evolution suggest that we have a predisposition to attach to these stories of morality because, as humans, we need the group to survive.  Ted Kaczynski types aside, we are a very social species and naturally attach to themes that engage this premise.

Some of the best examples of lasting stories come from a Greek slave named Aesop.  His fables became so imprinted in the cultural lexicon that we now only need to speak a few words to impart the entire story: “Sour grapes”, “cried wolf”, “the Tortoise and the Hare.”  One of the best methods of accomplishing psychic mind control is to create a story that taps into this internal need for social justice (honesty, hard work, selflessness, etc.).

Step Three: Manipulate Your Presentation

You have measured your listener(s) and catered your goals, the final step of psychic mind control is to change your message transmission; this means altering your language.

Research has suggested that something as simple as word choice can have dramatic surprising psychological and physical effects to the state of the listener.  One method of utilizing this phenomenon is to build themes on common turns of phrase and imagery (“taking a step back”, “unclean thoughts”, “that’s heavy”, etc.).

The Association for Psychological Sciences published an article (The Body of Knowledge) which outlines a variety of studies exploring the field of embodied cognition.  This area is based on the premise that many common sayings actually provide cognitive/neurological reactions from the recipient.  For example, one study found that subjects who were asked to think about a time they were rejected by someone, assessed the temperature of the experiment room as significantly colder than those who were asked to think about a time they were accepted by someone (“out in the cold” versus “warmly received”.)

By choosing your words carefully, your listeners will both hear and feel the power of your story. Thus, rendering them helpless to your metaphysical manipulations. It’s as easy as 1, 2, 3.  Just (1) know your audience; (2) craft a good story; and (3) use powerful imagery through language; then you too can be an expert in the Art of Psychic Mind Control.

Blogger: Matt McCusker

How the French’s shocking behavior relates to jury dynamics

 

 Last week, TV viewers in France saw a replication of Stanley Milgram’s shocking 1963 experiment  with a 21^st century twist: Reality TV.  Much like the original version, participants on  "The Game of Death" were asked to progressively increase the voltage of electric shocks administered as punishment to an unknown person. The recipient of the shock was obscured from vision, but the screams of pain were clearly audible (and eventually ceased due to supposed unconsciousness or death).  Unbeknownst to the shockers, the shockee was an actor who was faking it.

The 80 contestants (shockers) were told that this was a pilot game show, so there was no money to be won.  Everyone was asked to sign releases indicating that they would be willing to shock another person for incorrect answers.  Unlike Milgram’s study, this whole process was being conducted in front of TV cameras, a very enthusiastic live studio audience and directed by an eager game show host.

Those who know Milgram’s work will not be surprised with the results: 80% of the contestants went “all the way” and shocked the man into unconsciousness. However, as a jury consultant, I am more interested in the 16 people who said “No!” and ceased pushing the button.  The people who went against the group, despite intense social pressure to do otherwise.  In the legal world, we call these people “The Holdouts.”

This blog series will examine “Hung Juries” and “Holdouts” in three parts:

1)      Hung Juries and NFL Ties: Both are Unsatisfying and Rare

2)    “Can’t We All Just Get Along?”: How Juries Get “Hung”

3)     A Peek into the Mind of a “Holdout Juror”

(Part 1) “Hung Juries” and NFL Overtimes: Both are Unsatisfying and Rare

As terrible as a loss feels, ending in a tie (or being forced into a redo) can sometimes feel worse.  Granted, this depends heavily on your goals (excuse the pun).  Some criminal defendants and winless NFL teams ('82 Colts) may see a tie as a victory.  However for many, a draw is synonymous with a wasted effort.  Given the emotions involved, a hung jury can often epitomize this feeling.

How often do hung juries occur? Due to a lack of access to state court records, there have been a limited number of studies investigating the percentage of “hung juries” (and most have been in the criminal arena).  Research has suggested rates varying from 1% to 12%.  Much of this variability is based on jurisdictional changes and differing working definition of “hung” (one count, all counts, the most serious count, etc.). 

The National Center for State Courts (NCSC) completed an ambitious account of hung juries in 2003.  Data on Federal civil and criminal cases provided by the Administrative Office of the U.S. Courts (1980 to 1997) suggested a very low, consistent and stable hung jury rate.  Over the seventeen year span, Federal civil juries were hung less than 1% of the time and Federal criminal juries less than 3%. 

Data collected from State criminal courts in 1996-1998 by the NCSC was very different.  These numbers suggested a much higher hung jury rate and significant variability.  While the national average calculated was 6.2% (over 30 counties in 13 states), the percentages ranged from a low of 0.1% in Pierce County, WA to a high of 14.8% in Los Angeles County, CA.  To throw more confusion into the mix, an analysis of all 62 counties in the State of New York found an average hung jury rate of 2.8%.

I know percentages can be misleading, but this data confirms our belief that hung juries are rare.  This begs the question: What causes these rare occasions when agreement is impossible to find? Jeffrey Rosen wrote a piece in The New Yorker ("One Angry Woman: Why Are Hung Juries on the Rise?") suggesting racial divides were the primary root of jury nullification (a popular theory). Part 2 of this series looks at this and other theories/research investigating why juries hang.   

Look for the next installment, (Part 2) “Can’t We All Just Get Along?”: How Juries Get Hung, to arrive within the next week.

Blogger: Matt McCusker

When They Don't See What You See

A recent study highlights what might be the most important thing lawyers and clients miss about how juries will react to their cases.  The same evidence that makes you angry at the other side might make jurors angry at you.  I'll show you how it works.

Here's a fact about health care.  Ready?

Many people get diabetes because of social or economic factors in their neighborhoods, such as lack of neighborhood grocery stores or safe places to exercise.

Does that fact make you more supportive of public policies to prevent diabetes, or less supportive?

Existing attitudes change perception

If you're like the subjects in the study by University of Michigan researchers Sarah Gollust, Paula Lantz, and Peter Ubel, your answer depends on what your political orientation was in the first place. "If you are more liberally minded the 'neighborhood explanation' can be motivating, but for people who are more conservative politically, that message can backfire and make them even less interested," Ubel said in the study's press release. "The same information can polarize people."

Mock trials have convinced me that this isn't just a political phenomenon.  A single piece of evidence can bring one juror adamantly to the plaintiff's side and send another firmly into the defense camp. The difference isn't the evidence, it's the jurors themselves -- their backgrounds, attitudes, frameworks.

Unlike many trial pitfalls, lawyers and clients often don't see this one coming.  After all, the same forces are working on them too. They arrive at the mock trial personally convinced, deeply convinced, that the facts are not only indisputable but irrefutable -- that they can only be interpreted one way. When it takes a mock juror less than a minute to use the same facts as evidence for the opposite conclusion, they're shocked.

"Advocacy groups need to be very careful in thinking about who their audience is and what framing will work best for that audience," says Michigan researcher Ubel.  Individual advocates do too.

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The full paper will be in the upcoming December issue of the American Journal of Public Health.

(Photo by Kate McCarthy at http://www.flickr.com/photos/soyunterrorista/48433453; license details there.) 

A Good Week For Research

It's only Tuesday, but the news this week is already unusually rich with research of interest to jury folks.  Samples:

--The power of rudeness.  Via BPS Research Digest, the blog of the British Psychological Society:  "Seeing one person be rude to another can stunt a person's creativity, impair their mental performance and make them less likely to be civil themselves. "  The study is Porath and Erez, "Overlooked but not untouched:  How rudeness reduces onlookers’ performance on routine and creative tasks," in the May issue of Organizational Behavior and Human Decision Processes.  Maybe that's why your opponent's style sometimes seems like it's working.

--Alcoholics among us.  From Jane Brody in the New York Times, startling numbers on the alcoholics who "are able to maintain respectable, even high-profile lives, usually with a home, family, job and friends."  It's millions.  And "serve on juries" is something else they can do.

--Holier than thy client.  Also from the Times, a collection of the research showing not only that people "tend to be overly optimistic about their own abilities and fortunes" -- we've "long known" that -- but that "this self-inflating bias may be even stronger when it comes to moral judgment."  If you've watched mock jurors tell each other what they would have done in the crisis the defendant was faced with, this won't come as a surprise.

--Bad mood, good memory?  From the Situationist blog, a study where "subjects were able to remember three times as many items on cold, windy, rainy days when there was sombre classical music playing as they were when conditions were sunny and bright.  Rainy-day shoppers were also less likely to have false memories of objects that weren’t there[.]"  If your case is complicated, the solemn courtroom atmosphere might be a good thing.

Just some things to think about.

(Image by Jim Sher at http://www.flickr.com/photos/blyzz/407850690; license details there.)

Susan Boyle In The Eye Of The Beholder

You've seen it, right?  Tens of millions of people have.  It's the video of plain, middle-aged Susan Boyle, stunning the "Britain's Got Talent" judges and then the world with her lovely voice. 

Exceeding expectations

There are at least two jury lessons in her story.  One is already covered at the Situationist and at Eric Turkewitz's New York Personal Injury Law Blog, so I can be quick with it:  expectations are critical.  If Susan Boyle had been beautiful, beautifully made up and coiffed, and presented to us as a professional opera singer, no one but her family would have watched her YouTube video.  (The Situationist describes an experiment "in which persons listen to acclaimed violinist Joshua Bell–either while he is disguised as a subway peddler or while performing normally at a symphony," and the difference "enormously influences how they regard his music.")  It's what some researchers call the "talking platypus phenomenon" -- the idea that we judge people not on their skill and talent alone, but on their skill and talent as compared to what we expected. 

Eric explains ways to use this knowledge.  It's not only the strategic tool he describes, though; it's also a confidence builder.  If you're, say, a woman, and concerned about the research suggesting that jurors perceive male lawyers as more competent than women, here's your answer.  Exceed expectations -- and if you're good, you will -- and the research suggests you'll actually get a "bump" in jurors' perception.  The same is true for anyone whom jurors might judge harshly at first sight.

The eye of the beholder

The second lesson doesn't have much to do with Susan Boyle -- which is the point.  When everyone is talking about somebody, it's easier to see something we often miss.  Each person is different, and therefore each person's impression of the thing we're describing is different. 

So Susan Boyle changes depending on who's looking at her.  The New York Times notes that she's "become a heroine not only to people dreaming of being catapulted from obscurity to fame but also to those who cheer her triumph over looks-ism and ageism in a world that so values youth and beauty."  Meanwhile to an unromantic Milwaukee Journal/Sentinel business reporter, she's a sales driver; an article there this week describes how her fame has boosted local sheet music sales.  An op-ed piece in the Washington Post collects other reactions. 

My favorite demonstration of the Susan-Boyle-is-what-you-make-her effect was in the roundtable discussion on This Week With George Stephanopoulos on Sunday.  (The Susan Boyle conversation starts with about 2:40 left in the video.)  From four well-known pundits, we got four Susans: 

• To Peggy Noonan, she was about reality television and the way we respond to it.  "Sometimes you know you're being manipulated a little bit; you know it, you watch, and you still burst into tears."

• To George Will, she was all that's great about democratic government.  "It plays to a perennial belief that democracies are bumpy with undiscovered talent, and it happens to be true."

• To Sam Donaldson, she invoked our personal ambitions.  "All of us Clark Kents want to be Superman.  We want more Harry Trumans to be great presidents.  I myself want to sit down and play piano at the Kennedy Center, and play so that Rachmaninoff's ghost turns up his ears."

• To Cokie Roberts, she was about authenticity.  "I couldn't get over the contrast between her and the judges.  . .. They were Barbie and Ken; they were the most fake-looking people I've ever seen.  And there she was, this totally genuine person.  It was so refreshing."

To me, she's about us -- how different we are, and how differently we see things.  One of the biggest mistakes lawyers make in jury trials is to assume that if they like the key witness and think the evidence is strong, the jurors must react the same way.  They won't, because each juror is different.  Call it the Rule of Susan Boyle.

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Related posts here:

• Beauty And The Juror, Parts I and II

• Sometimes It's Hard To Be A Woman

• What We Are Is What We See

(Photomosaic image by Gilberto A. Viciedo at http://www.flickr.com/photos/viciedo/3450613461/; it's amazing at full size, tiny tiles of butterflies, flowers, and birds.  License details on the Flickr page.)

Sleepers

Two jurors who fell asleep have been replaced at an Ohio financial fraud trial heavy in testimony about bookkeeping and check-writing.

That's the opening line from an Associated Press story out of Akron yesterday, but unless you're following that particular trial (of former executives of Evergreen Homes), the main thing that's newsworthy is that these sleeping jurors made the paper while other jurors slept in trials all over America. 

It's been covered here before, but it's worth revisiting.  If you're a trial lawyer, you've seen jurors sleeping.  The key points are:

1.  People are tired.  Really, really tired.  They're holding two jobs, or staying up late with kids, or standing up all day, or all those things.  Put one of those folks in a chair, in a quiet room, with no talking required or even allowed, and it's amazing they stay awake as long as they do.  And like many things, our national fatigue is getting worse, not better.  The National Sleep Foundation's 2009 survey concludes that "The number of people reporting sleep problems has increased 13% since 2001. In the past eight years, the number of Americans who sleep less than six hours a night jumped from 13% to 20%, and those who reported sleeping eight hours or more dropped from 38% to 28%."  (The National Sleep Foundation is funded in large part by mattress and drug companies, but they claim research independence, and even if you discount their numbers, people are tired.)  On top of our other worries, nowadays we're losing sleep over the economy.  "One-third of Americans are losing sleep over the state of the U.S. economy and other personal financial concerns," the NSF said in March. 

2.  Fatigue affects decisionmaking.  Fatigue not only impairs memory and learning generally (Newsweek had an article last week summarizing recent research), but a a 2007 study suggests it specifically impairs moral judgment. 

3.  You can often spot fatigue in voir dire if you remember to look.  Tired jurors often look tired, will say they're tired, and will make you tired when they describe what they have to do in a typical day.  You'll miss it if you're focus only on themes and attitudes in jury selection. 

4.  Sustained sleepiness is reason to dismiss a juror.  In most courts and most states, this is a no-brainer.  A dozing juror can't hear the evidence and thus cannot decide the case on the same evidence as the others.  If a juror who keeps falling asleep isn't dismissed, it's usually because a lawyer forgot to ask, unless the trial has gone on so long and the panel is so small that the dismissal would mean (or threaten) a mistrial.

5.  You might be boring.  As we've noted, people are tired, so if a juror falls asleep while you're talking, it's usually not entirely your fault.  But think about whether it partly is.  The juror was awake earlier, right?  And if one juror slept through your expert's testimony, how many others daydreamed?  Even if your trial is "heavy in testimony about bookkeeping and check-writing," like that Akron fraud trial, you need to figure out how to make it interesting -- preferably before anybody falls asleep.

___________________

Related posts here:

• Are You Sleeping, Brother Juror?

• Sleep And Moral Judgment

(Photo by Tambako the Jaguar at http://www.flickr.com/photos/tambako/853748895/; license details there, and follow the link to see the rest of his animal pictures, which are wonderful.)

The Price Of A Poker Face

It may be the single most frustrating piece of jury advice for young lawyers:  "Watch the jury."  Watch them what?, I used to think.  They're just sitting there!  I felt like I could watch the jury for hours and never see a facial expression.

There are many exceptions, but often, jurors keep very straight faces through even the most disturbing evidence.  A new study suggests this may be harder on them than it is on you, enough so that it might make a difference in your trial.

. . . and now we'll show you -- oh yuck.

This would have been a fun study for ten-year-old boys to plan.  The researchers asked half their subjects to hold a pen between their lips, not telling them the reason for this was to hold their facial muscles still.  Then they showed all the subjects a series of really disgusting images, like a dirty toilet or film of an amputation.  (The press release doesn't say how much they paid the subjects, and I can't find the paper itself.  I hope it was a lot.)

The subjects who couldn't move their facial muscles experienced more negative emotions and held them longer, in what lead researcher Judith Grob called a "negative spiral."  This happened even though the subjects didn't realize that their facial expressions were being blocked by the pen.

The researchers wonder about the implications for Botox®.  I'm wondering about the implications for jurors.  They don't all succeed, but most jurors try very hard not to let their emotions show in court.  When the evidence is difficult, does this effort itself make them react more strongly?  And if so -- or if maybe -- is there something you should do? 

Think about voir dire questions asking not just how jurors feel about disturbing images (you'd ask that anyway, right?), but also how they react, whether they tend to be stone-faced or expressive.  Think too about a sentence in opening statement that gives them permission to react in the moment.  "I know we'll be able to see on your faces how difficult it is to look at those pictures," you might tell them.  For one or two, it might be that momentary "rehearsal" that will let them respond fully when the pictures come. 

__________________

Related posts here:

• A Jungle In There: The Dysfunctional Jury

• When They Look Away

• Jury Notes From Elsewhere (see item one, "Helping jurors with sad facts")

(Photo by Phillie Casablanca at http://www.flickr.com/photos/philliecasablanca/2052720494/; license details there.)

Looks Can Kill

These studies keep coming up, probably because it’s so hard for us to accept what they teach us.  It matters what you look like, and what your client and witnesses look like.  It matters so much that both children and adults can accurately pick the winners of real elections – in countries other than their own where they know nothing about the candidates – just by looking at the candidates’ pictures.

The latest study like this is in the new Science magazine, and came to me via BPS Research Digest, the blog of the British Psychological Society.  (Subscribe here; it’s a great blog.)  From BPS:

John Antonakis and Olaf Dalgas presented photos of pairs of competing candidates in the 2002 French parliamentary elections to hundreds of Swiss undergrads, who had no idea who the politicians were. The students were asked to indicate which candidate in each pair was the most competent, and for about 70 per cent of the pairs, the candidate rated as looking most competent was the candidate who had actually won the election.

They did the same thing with kids, asking the question in kid terms -- which candidate they’d choose to captain their ship from Troy to Ithaca.  The kids picked the election winners to be their ship captains.  (In the picture above, it was the calm-looking engineering type on the right, not the handsome but unpredictable-looking guy on the left.)

She doesn’t look like an engineering professor . . .

There’s a reason why we use the phrase “straight out of central casting.”  When we see someone, we immediately and usually unconsciously judge not just her looks, but her character, building an entire personality based on looks alone.  Thus jurors think they know something about what you’re like before you stand up in voir dire.  They’ve formed a sense of what your client is like long before he takes the stand.  If your client is a criminal defendant who isn’t testifying, they form a sense of what he’s like without ever hearing him speak at all.

The lessons for lawyers in this are the same as always.  Don’t think you’re immune.  Understand the visual impact you and your witnesses make, and if it needs to be changed, change it.  And if your witness looks different from what the jury needs to understand she really is, spend extra time to make sure her real qualities come through.  Looks matter.

_________________________

Related posts here: 

• Beauty And The Juror, Parts I and II
• Overweight Jurors Are . . .
• How To Be Better Looking

If It's Difficult, It Must Be Important

 Keep it simple, they say.  Maybe not, or maybe not always.

I’m reluctant to generalize much from this study, but it’s interesting.  University of Chicago psychology professor Aparna A. Labroo and Ph.D candidate Sara Kim wondered how people respond when you make something difficult. 

They assigned each of their research subjects a “goal” – either feeling good or being kind – and then had them watch an ad for something that might help them reach that goal, either chocolate (for the “feeling good” group) or a children's charity (for the “being kind” group).  The difference was that half of each group saw an ad that was clear and easy to read, while the other half’s ad was blurry and hard to read.

Whatever it is, I want it

If the “keep it simple” advice is always right, you’d think the folks who saw the clear, easy ad would respond to it more, right?  That’s not what happened.  The blurry ad for chocolate made subjects want chocolate more than the clear one did.  And the blurry ad for the charity made subjects want to donate more.

Labroo and Kim acknowledge – and provide a useful list of – prior studies finding that the easier something is, the more we like it.  But the reverse is true, they argue, when we’re trying to achieve a goal:  “Perception of high effort arising from subjective difficulty of processing the means makes it appear highly instrumental for goal achievement.”

That feels right, when you think about it.  When we’ve had to really work at something, we naturally think it was important to our success, if only because we’d hate to have to explain why we worked so hard to get it if it wasn’t important. 

Keep it simple anyway

But when the goal in question is a jury’s effort to understand a complex case, don’t think this research means you should blur and obscure your most important points.  After all, if the researchers had blurred their ads even more, at some point the subjects would have given up and stopped trying to understand them.  You don’t know where that point is, and it’s different for each juror.  You’re in trouble if you leave some behind in an effort to challenge the rest.

One lesson you probably can take from a study like this, though, is that you don’t need to oversimplify.  Lawyers are often tempted to skip difficult areas, even if they’re central.  You probably don’t need to do that.  Jurors enjoy learning – and once they’ve gone to the trouble of learning what you’ve taught, this study suggests they may value it even more than if it had been easy.

The paper is “The ‘Instrumentality’ Heuristic: Why Metacognitive Difficulty Is Desirable During Goal Pursuit” (gotta love those social-science titles), in Psychological Science.  At least right now, the paper is on line in full.

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Related posts here: 

• To Persuade Jurors – Confuse Them?
• The Jelly Bean Theory Of Keeping Jurors’ Attention

(Photo by Casey Lehman at http://flickr.com/photos/islandfreedom/2891290813/; license details there.)

Sometimes It's Hard To Be A Woman

"Being a woman is a negative, all other things being equal, but all other things are never equal."

That’s me talking, and I can explain.  I was quoted last month in an article by Nora Tooher in Lawyers USA about challenges women lawyers face in the courtroom.  (The article was inspired by Elizabeth Parks-Stamm’s article in the November issue of The Jury Expert about how female jurors respond to successful women; Nora found me because I wrote a short comment to Ms. Parks-Stamm’s article for TJE.)

It’s a negative

It’s hard for women lawyers to hear, but it’s true.  There are exceptions, but when social science researchers isolate lawyer gender in mock jury experiments, some have found that male lawyers do better.  The main two studies I’m aware of are:

• Hahn, Peter W. and Susan D. Clayton, 1996, “The Effects of Attorney Presentation Style, Attorney Gender, and Juror Gender on Juror Decision,” in Law and Human Behavior.  College student subjects read a written case summary and then saw a videotape of the purported defense lawyer examining a witness.  The defense lawyer they saw was passive or aggressive and male or female, four permutations in all.  Aggressive lawyers did better, and male lawyers did better.
• McGuire, Mary V., & Bermant, Gordon, 1977, “Individual and Group Decisions in Response to a Mock Trial: A Methodological Note,” Journal of Applied Social Psychology.  When the defense attorney in a mock murder trial was a woman, jurors were less likely to vote not guilty.

(I’ve seen one other article cited for the proposition that women struggle in the courtroom, but I don’t have either a copy or the abstract.  It’s Hodgson and Pryor, 1984, “Sex Discrimination in the Courtroom: Attorney’s Gender and Credibility,” in Psychological Reports.)

It’s a positive, sometimes

At least two other studies suggest a different gender effect in the courtroom:  an advantage, in rape cases.  Obviously in these cases the defendant is almost always male, the victim almost always female, and the crime itself sexual.  Gender is practically bouncing off the walls, and the way it all works together is being studied from several directions right now.  The two attorney gender studies are:

• Villemur, Nora K. and Janet Shibley Hyde. 1983. “Effects of Sex of Defense Attorney, Sex of Juror, and Age and Attractiveness of Victim on Mock Juror Decision Making in a Rape Case,” in the journal Sex Roles.  Mock jurors heard audiotape of a rape trial.  Here the women defense lawyers did better to the men; 71% of them got acquittals, while only 49% of the male defense lawyers did. 
• Plourd, Brian J., masters' thesis study, 2007, The Effects of Alcohol and Attorney Gender on Perceptions of Sexual Assault Cases, Central Connecticut State University.  When mock jurors heard that alcohol was involved in a sexual assault, they were more likely to find the defendant guilty – unless the defense lawyer was female.  “[S]ignificantly fewer respondents perceived the defendant as guilty in the alcohol scenario when the defense attorney was female as opposed to male.”

It’s neutral, or might be

Three studies I know of did not find an effect of attorney gender.  In each case, however, the study was testing something else as well as gender, and I’m left wondering what would have been different if they had tested gender alone:

• Cohen, David L. and John L. Peterson, 1981, “Bias in the Courtroom: Race and Sex Effects of Attorneys on Juror Verdicts,” in Social Behavior and Personality.  In a study varying the lawyer’s race and sex, white lawyers did better, but gender had no effect.
• Barge, J. K., Schlueter, D. W., & Pritchard, A. P., 1989, “The effects of nonverbal communication and gender on impression formation in opening statements,” in Southern Speech Communication Journal.  I only have the abstract on this one, which says the conclusion is that “attorney gender may not influence the impression formation process in the courtroom.”
• Janet Sigal et al. 1985, “The Effect of Presentation Style and Sex of Lawyer on Jury Decision-Making Behavior,” in Psychology: A Quarterly Journal of Human Behavior.  This study varied both gender and style -- aggressive, assertive, or passive.  Assertive and aggressive worked better, for both men and women.

Many, many disclaimers are in order here.  A few of them are:

• Many of these studies are quite old.  A lot has changed in gender roles and perceptions since the 1970s and '80s, although I'm not sure we've evolved in a straight line toward equality.
• The subjects in these studies are almost always college students, because they’re handy for the researchers.  Your thoughts about gender have changed as you’ve gotten older, right?  Theirs will too, and these studies don’t say how.
• There is no such thing as a definitive mock trial experiment.  To reach any scientific conclusion, you must isolate the factor you’re looking at; but real trials never isolate any factor. 
• Same point, but from the lawyer’s point of view:  Don’t give up – or, if you’re a man, get confident – over the studies where men did better.  All things are never equal.  I kind of like the way I said it later in the Lawyers USA article, so I’ll just quote myself:  You can gather better evidence, present it more clearly, pay more attention to jurors and understand your particular jury and what might appeal to them better. 

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If you know of other studies that should go on this list, please do let me know. 

Related posts here:

• When Women Judge Women (on a different article by Elizabeth Parks-Stamm)
• Women Lawyers, Juries – And Stress?
• Asking For Forgiveness
• Beauty And The Juror, Parts I and II

(Photo by at http://flickr.com/photos/binaph/571756665/; license details there.)

Women Lawyers, Juries, -- And Stress?

At a litigation low point many years ago, my frustrated client stammered around for awhile and finally sighed, "I can't help wondering if this would be going better if you were wearing pants."  He meant if I were a man; women lawyers wore skirt suits all the time in those days.  I forget my exact response, but I'm pretty sure it wasn't the one that was really in my mind, which was "Sometimes I wonder that too."

In a year when every possible facet of the Gender Issue is being played out in the nightly political headlines, we know the question is still valid.  It's so loudly and omnipresently valid, in fact, that it's easy to tune it out sometimes.  That must be why the article that most recently caught my attention about gender didn't have anything to do with the presidential election.  It was a psychological study about gender in the workplace.   Both male and female employees reported more stress -- more headaches, more fatigue, more "psychological stress" -- when they were supervised by a woman than when they were supervised by a man. 

Women especially

I don't mean to be depressing.  I really don't; there's plenty else to be depressed about these days.    And I'll admit there's a small ray of light in the study's finding that for male employees, the stress difference disappeared when they only had one boss.  But female employees were consistently more stressed when they worked for other women.  Here are the overall findings, from the study's press release:

Scott Schieman and Taralyn McMullen of the University of Toronto reviewed the psychological distress levels and physical symptoms (e.g., headaches, fatigue) of workers who were managed by either two supervisors (one male, one female), one same-sex supervisor or one supervisor of a different sex.

The findings revealed that women working under a lone female supervisor reported more distress and physical symptoms than did women working for a male supervisor. Women who reported to a mixed-gender pair of supervisors indicated a higher level of distress and physical symptoms than their counterparts with one male manager.

The researchers also found that men working under a single supervisor had similar levels of distress regardless of their boss’ gender. When supervised by two managers, one male and one female, men reported lower distress levels and fewer physical symptoms than men who worked for a lone male supervisor.

Do jurors feel the same?

Is this relevant to female trial lawyers?  It sure feels that way.  Although some research goes the other way, there are plenty of studies suggesting that all other things equal, juries respond better to male lawyers than to women.  (See the notes below for links to a few, and note well the caveat in the next paragraph.)  If it's true that people literally experience stress when they take direction from -- or, by analogy, listen to arguments and cross-examination by -- a woman, well, that could explain a lot.

Of course, that doesn't mean that women lawyers are always, or even ever, at a disadvantage in the real courtroom.  Most obviously, all things aren't equal in real trials.  Strength of evidence is by far the strongest factor in predicting jury verdicts, and then there are all the other moving parts:  the lawyer's skill, her personal qualities, the impression her opponent makes, the individual jurors, the issues in the case, and so on.

The contrast effect

In addition, a woman lawyer who performs better than jurors expected her to may actually have an advantage.  The jury consultant Reiko Hasuike explained this "contrast effect" in a 2000 article in The Practical Litigator, "Credibility and Gender in the Courtroom:"  "[I]f a woman advocate is seen as being more competent than expected, she will also be considered more competent than she actually is, because her perceived competence is outside of the expected range."  (I don't think there's a free link to the article, but it's on Westlaw.) 

With the vice-presidential debate scheduled for tomorrow, I don't think I'm the only one thinking about the contrast effect tonight.

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Notes:

1. Just for the record, we did win that trial where the client wished he'd hired a man.
2. Studies suggesting that attorney gender affects jurors' thinking include Nelson, The effect of attorney gender on jury perception and decision-making, 28 Law & Psychology Review 177 (2004) ("A comprehensive review of the literature and studies available indicates that, though the increasing presence of women in the legal profession has decreased the effect of an attorney's gender on his or her success, attorney gender continues to be a pervading factor in jury perception and decision-making."); McGuire & Bermant, Individual and Group Decisions in Response to a Mock Trial: A Methodological Note, 7 Journal of Applied Social Psychology 220 (2006) ("Jurors in the male defense attorney conditions were more likely to vote not guilty following deliberations than were jurors in the female defense attorney conditions."); Hahn & Clayton, The Effects of Attorney Presentation Style, Attorney Gender, and Juror Gender on Juror Decisions, 5 Law & Human Behavior 533 (1996) ("The results [of a controlled mock trial] indicated that, overall, . . . male attorneys were more successful than female attorneys")

Related posts here:  When Women Judge Women; and Beauty And The Juror, Part I and Part II.

(Photo by Clare at http://www.flickr.com/photos/clarice77/2189045806/; license details there.)

 

The City Jury And The Country Jury

Which would you rather have:  twelve jurors who lived in the closest major city to you, or twelve who came from that city's suburbs?

A new study sheds light on this question -- at least in criminal cases and perhaps civil cases with similar facts.  It sheds even more light, though, on two other, related issues:  how difficult it is to apply scientific analysis where juries are concerned, and how risky it is to assume you can predict a juror's verdict from her demographic description.

Are urban juries more lenient?

"Baltimore Juries Less Likely To Convict," said the headlines on this study's release the other day.  The research, done for Baltimore's Abell Foundation by researcher Shawn Flower of Choice Associates, analyzed 293 jury verdicts from juries in the City of Baltimore and in nearby suburban Anne Arundel and Howard Counties.  Flower found that the Baltimore juries were significantly more likely to acquit criminal defendants than their suburban counterparts were:  "On average, Baltimore City juries convict defendants of one or more charges 57% of the time compared to 72% of defendants convicted in [comparison suburban] jurisdictions – a significant difference of 15% (p<.05). Similarly, Baltimore City juries are 29% less likely to find defendants guilty of the most serious offense (p<.01) than the other jurisdictions."

Does this mean that urban juries are soft on crime?  You may see the study cited that way, but as Flowers explains, it's more complicated than that. 

Certainly the "typical" urban and suburban jurors are different from each other in important ways, as the study explains (I've omitted citations, of which there are many):

• Wealth.  "Generally speaking, citizens in the three [suburban] jurisdictions tend to be more advantaged in all respects than those in Baltimore City – they are better educated, are wealthier and are more likely to own their homes."
• Crime's effect on social structures.  "Prospective jurors in Anne Arundel, Howard and Baltimore counties, relative to Baltimore City, are also less likely to suffer from the structural disadvantage and social disorganization which often results in higher incidence of crime, and victimization from crime."
• Criminal offenders in the family, and the neighborhood.  "[I]ndividuals eligible to serve on a jury in Baltimore City are more likely to have a family member, partner, and/or friend that have been involved with the criminal justice system."
• Distrust of police.  "Further, studies of police indicate that members of minority race and ethnic groups express 'much more negative attitudes about the police and having lower trust and confidence in institutions of social control.'"   

Or are urban prosecutions weaker?

But jurors aren't the only variable when you compare urban and suburban juries.  The whole court system is different, and in ways that can change results.  The study sets out some of them:

• Urban prosecutors handle more cases than suburban prosecutors do, so many more that  that their charging decisions almost certainly are different.  "According to court personnel, the number of cases processed in Baltimore City in half a day equal the number of cases processed in the other jurisdictions in a week."
• Voir dire can be different, and in Baltimore it apparently is.  "One informant advised that the voir dire process in Baltimore City Circuit Court is conducted primarily by the judge using formulaic questions chosen by the Defense and State’s Attorneys; it is routine, perhaps standardized. . . .  In contrast, jury selection in other locales may be quite involved." 
• The police in a particular case may be more likely to have earned distrust.  The study cites a 2006 report of a Baltimore grand jury, finding problems with police officers ranging from witness intimidation, perjury, and robbery to simple unfamiliarity with the neighborhoods they patrolled. 

And can we know?

Finally, Flower recites with candor the things he couldn't test.  Did suburban juries hear more eyewitness testimony?  Did defendants testify more often?  Were weapons involved?  Were defendants unemployed, or did they have more prior convictions?  And how strong was the evidence?  All these variables correlate to conviction rates (Flower's source here is the wonderful article by Prof. Dan Devine and his colleagues, "Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups," 7 Psychology, Public Policy & Law 622 (2001)), and none of them were contained in the computer database from which Flower drew his data.

This work raises terrific questions, then, and few answers.  In that way, it's like a great deal of other jury research; the task is just very difficult.  When you study real juries, you can't eliminate dozens of variables.  When you use a mock trial to eliminate variables, you can't study real juries.  And when a lawyer is standing in front of a single real jury box in a single real case, no research can say for sure what that tiny group of individuals will decide.

With all those flaws, though, jury research makes us better lawyers:  it surprises us, it makes us wonder, it makes us think of things we wouldn't have, it makes us aware.  You might have thought urban juries convicted more often.  We think of crimes as more serious downtown, and defendants more "criminal," so it would make sense that suburban defendants had a better shot.  If you thought that, and now you see how the opposite could be true, this study helped you.

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Related posts here: 

• A Helpful Way To Think About Race 
• It's About Race.  It's Not About Race 
• Bringing Unconscious Bias Out Of The Dark 

Others writing about the Baltimore study:

• Paul Mark Sandler at The Art of Advocacy, a blog I somehow failed to find before;
• Thaddeus Hoffmeister, whose Juries blog continues strong;
• And lots of non-law blogs.

(Photo of Baltimore by Michael King at http://www.flickr.com/photos/oslointhesummertime/125498077/; license details there.)

Back To School: Today's Psychology Reading List

You know August is really over when the new Personality And Social Psychology Bulletin lands in the feed reader.   It's the only scholarly journal I see where I regularly want to read everything, no matter how dense the writing is.  (And it's dense.)  Samples from the October issue, with my abstracts of the authors' abstracts:

• I'm Hot, So I'd Say You're Not: The Influence of Objective Physical Attractiveness on Mate Selection, R. Matthew Montoya of the University of North Carolina:  The more attractive you are, the less attractive you think other people are and the more you expect you'll get a date if you ask.  We already know that beauty makes a difference in the courtroom; think about this study as you're deciding whether to strike that great-looking juror.
• Bringing Automatic Stereotyping Under Control: Implementation Intentions as Efficient Means of Thought Control, Brandon D. Stewart of the University of Queensland B. Keith Payne of the University of North Carolina, Chapel Hill:  Subjects who "made an intention to think specific counterstereotypical thoughts whenever they encountered a black individual" in fact did reduce not only conscious stereotyping but "automatic" stereotyping as well.  Add it to a growing list of studies suggesting it might be possible to challenge jurors to find their own openness and compassion.
• Insurance, Risk, and Magical Thinking, Orit E. Tykocinski of the Interdisciplinary Center, Herzliya:  Deep down, we believe that buying insurance policies protects us from harm.   That causation issue in your next trial may not be as simple as you think it is.
• Paying for Someone Else's Mistake: The Effect of Bystander Negligence on Perpetrator Blame, Clayton R. Critcher and David A. Pizarro of Cornell University:  When a bystander's negligence helps make a crime possible, we actually think that makes the criminal more culpable, not less.  Criminal defense lawyers, nobody said it would be easy.
• Narcissism and Social Networking Web Sites, by Laura E. Buffardi and W. Keith Campbell of the University of Georgia:  Heavy users of social networking sites like Facebook are more narcissistic and more self-promoting than the rest of the world.  You're asking jurors whether they're on line, aren't you?

Those are only the first five of the ten articles, so check out the issue.