Deliberations

Psychological Injuries and Legal Decision Making: Dealing with the psychologically injured plaintiff before and during trial

By Jonathan Vallano

Mental and emotional distress is experienced by many individuals at some point in their lives.^[1] Therefore, it should come as no surprise that psychological injury can, and does, result from many forms of negligent conduct. In some cases, this negligent conduct may come in the form of a car accident that leads to post-traumatic stress disorder (PTSD), a slip and fall that initiates a chain of panic attacks, or domestic abuse that results in debilitating depression.  Despite the difficulty of raising these claims in court,^[2] these injuries are frequently adduced by plaintiffs for compensation.  Many plaintiffs’ attorneys will readily endorse the notion that succeeding on a psychological injury claim before or at trial is extremely difficult: and they may have a point (much to defense attorneys’ satisfaction).  This post discusses what we know about psychological injury claims and how they are perceived and handled by legal decision-makers, as well as suggestions for litigators (both plaintiff and defense attorneys) to deal with these claims before and during trial.

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.

Doggie Witness Prep (Coming To A Courtroom Near You?)

Recently, a loveable dog named Rose (Rosie to her friends) sat next to a child witness in court while she gave testimony about the brutal rape and impregnation she endured at the hands of her father.  Yes, a dog sat in the witness stand.  Rosie is a service dog that can sense anxiety and was provided to the young witness to aid her in the process of testifying.  At one point, the help was very evident when Rosie “nosed” the child during a particularly difficult bout of answers.

While this is the first instance of “comfort dog” use during testimony in New York State, (as this article outlines) the practice has actually been happening across the country with child witnesses for some time (Arizona, Hawaii, Idaho, Indiana, etc.).  In this case, Rosie and the witness spent five weeks bonding (and prepping) prior to the trial.  The goal of the training was to help the victim reduce her anxiety about facing her father and being questioned on such painful memories in front of a courtroom full of strangers.

Not surprisingly, the defense attorney was up in arms about the dog’s presence (and is appealing).  It is certainly a valid point to suggest that the presence of a dog could be unduly prejudicial.  Would dog lovers view her more favorably?  Dog haters more unfavorably? Is it possible that a witness could lie more easily with a comfort dog present?  How would the dog impact opposing counsel’s cross examination?

These are valid questions, but the opposing response is more persuasive.

In State v. Cliff, 116 Idaho 921, 782 P. 2d 44 (1989) an eight year old victim of sexual assault was allowed to carry her doll to the stand because the court ruled the calming effect would aid in more accurate testimony.  A similar ruling occurred in Washington [State v. Smith 119 P.3d 411 (2005)] when a teddy bear was allowed to venture into the witness box.  In those cases, the defense unsuccessfully argued that the presence of a psychological security blanket would impede cross examination of the children.

Anyone worth their salt at witness prep will tell you that anxiety is one of the top barriers to effective testimony.  Much of what litigation consultants do is help in reducing witness anxiety so the truth can be more effectively presented on the stand.  Why would the reduction of anxiety in a child be a bad thing?  Further, service dogs for people with physical/mental handicaps have long been allowed in courtrooms.  Has the presence of these dogs created unjust verdicts?

Most importantly, the “comfort dog” accommodation has primarily been utilized with children.  A child witness has a special status with the court, which can be seen in states that allow closed circuit or videotaped testimony for child victims.  As this UST Law Review notes:

“…our Supreme Court  promulgated the Rule on Examination of A Child Witness  which acknowledges the special concerns of child witnesses that need to be addressed while testifying before criminal, civil, legislative, or administrative proceeding…  the main objectives of the said Rule are to ‘create and maintain an environment that will allow children to  give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of the truth.’”

Obviously, the rules of the game change when a minor is giving testimony.  Proper voir dire should spot those jurors who would not be able to set aside the influence of having a dog (or a doll, or a teddy bear) sitting with a child on the stand.  While there is some danger of prejudicial effects, the value of truthful testimony from a calm mind (and reduced emotional damage to the child) far outweighs the potential risk.

Those interested in utilizing comfort dogs in court can check out a sample brief here.

Blogger: Matt McCusker

 

Legal Codes, Moral Codes & Nuclear Codes: Casey Anthony's Radioactive Fallout

(Blogger’s Note: I am reticent to write a blog about the same subject two weeks in a row.  However, an event like the Casey Anthony acquittal is an extraordinary occurrence.  It has garnered a sustained media frenzy that can only be likened to lowering an elephant into a piranha tank.  Moreover, rarely have we seen an episode that seemingly shakes the American public’s faith in the jury system.  As a result, I am centering on Ms. Anthony’s case again in this blog.  Next week: YouTube’s most popular furry animal video.)

Watching cable news, the closest comparison to this trial (by consensus) is the acquittal of O.J. Simpson.  However, imagine explaining this analogy to a man who had been trapped on a desert island for the last 10 years (let’s call him Mr. Robinson).  Mr. Robinson clearly remembers the O.J. trial.  It was the public downfall of an American hero.  A Hall of Fame football star who was building an acting career was accused of a gruesome double-murder in the middle of one of Los Angeles’s wealthiest neighborhoods.  Complete with an on-air Ford Bronco chase and an all-star legal team, this trial (and acquittal) was hard for anyone to forget.

“Tell me about Casey Anthony!” Mr. Robinson asks you with great anticipation.  “She must be a celebrity who did something really bad to merit ‘O.J. level’ attention.”  Then (almost embarrassedly so), you must explain to Mr. Robinson that Casey Anthony was simply an unemployed woman living part-time with her parents who was accused of killing her young child in a middle-class Orlando suburb and not reporting it for a month.  She was not famous and in the terrible annals of child murders, this was not a remarkable cause of death. “Oh.” Mr. Robinson replies quizzically. You add enthusiastically, “There were photos of her dancing in a night club!” Mr. Robinson thinks for a moment and then adds, “Times have certainly changed since I have been away.”  You have no retort.

On the afternoon of July 5, 2011 a metaphorical nuclear bomb exploded in the State of Florida.  Hyperbole, you say?  Probably.  However, it’s difficult to describe the massive reaction to such an unexpected verdict in the Anthony case.  The vitriolic fallout from the public that has arisen from this verdict has been something that caused massive damage to the public’s faith in the justice system and will likely linger for years.

In fact, it could be argued that the greatest victim of the Casey Anthony trial (obviously second to Caylee Anthony) has been the reputation of the American jury system.  Public outrage (fueled by a litany of former-prosecutor TV talking heads) has declared jurors too stupid to be trusted with important decisions.  Debates have raged on the need for more judiciary discretion or “professional jurors.”  If mental deficiency was not the cause, many media experts have suggested that the dreaded “CSI Effect” blinded the jurors (see here for my blog obliterating the CSI Effect).  Without doubt, the sales of pitchforks and torches have skyrocketed this July.

It is here that we come to a crossroads between our legal code and one’s moral code.  The legal code is a set of rules that we live by.  The legal code says that the prosecution must prove its case beyond a reasonable doubt, and Casey Anthony has no requirement to even put up a defense.  One’s moral code says that any mother who doesn’t report a missing child is lacking and likely guilty of wrongdoing.  One’s moral code may wish to punish aberrant behavior (like nightclub dancing) or perpetual lying and assume that these are symptoms of murder.

History has shown us the hazards of blending one’s morality with a justice system. Examples include:  feudalism (land owner morality), monarchy (the king's morality), the inquisition (the church’s morality), fascism (the dictator's morality) and McCarthyism (the witch hunter’s or lynch mob's morality).  

Our system is not perfect, but we tie a blindfold around Justice’s eyes for a reason.  It helps us to find a result determined by law, not morality.  In fact, a rising number of countries are actually turning to the jury system in criminal matters because of rampant judicial corruption.  Hopefully, one murder trial in Florida will not be enough for others to rethink a system that the rest of the world is learning from.

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

 

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

 

MEL GIBSON TO TIGER WOODS: The Science of Settlement Negotiation

 I kinda feel bad for Mel Gibson and Tiger Woods (he said whilst evading flying objects and hostile emails).  I agree they are terrible husbands, have done awful things and have more money than I could imagine how to spend (although my imagination can be pretty ambitious if I have some time).  However, there are few people in history who have experienced the unique sensation of watchinig one’s serious (non-criminal, as of yet) character defects scrutinized by over a billion people within a 24-hour news cycle.  Neither man was torturing puppies or attacking old ladies.  This is a matter of broken hearts, not broken laws (again, as of now). 

(Update: I've never been very politically correct. My comments above are based on the fact that no charges have been filed against anyone involved. Thanks to DA for pointing out that charges may still be coming for Gibson.  When that happens, my opinion may significantly change. In the meantime, I can't make any assumptions about the status of law enforcement investigations.)

What’s intriguing about these breakups (beyond the obvious) has been the seemingly opposite tactics utilized by Gibson and Woods in resolving them. Mel's Anger vs. Tiger’s accommodation.  Mel’s rejection vs. Tiger’s rehab.  Mel’s accusations vs. Tiger's apologies.  One would suspect that the public stances Gibson and Woods have taken in these disputes would not be terribly far from the private positioning at a mediation table.  This begs the question, which technique is more effective?

A study from the Journal of Personality and Social Psychology examined the effects of “angry negotiators” versus “happy negotiators”.  The authors demonstrated that coming to the table angry does in fact cause the other side to ask for less and give more.  However, much to Mel’s chagrin, the research also indicated that this “angry tactic” only works when the opponent feels low power in the relationship, had a low need for cognitive closure, or were under low time pressure.  As Oksana heads for “Dancing with the Stars”, I’m not getting a low-power state of mind.

One must also remember the that personality and cultural background of the opponent in a negotiation will heavily alter tactics.  An article from the Association for Psychological Science compared European American and Asian/Asian American reactions to anger in negotiations.  The study found that “appropriate” anger during negotiations caused large concessions from both European American and Asian/Asian American opponents.  However, “inappropriate” anger caused the Asian/Asian American negotiators to significantly reduce their level of concession and increase impasse.  This begs the question, what is the “appropriate” level of anger of Elin Nordegren to display towards Mr. Woods?

It would be easy to imagine Tiger empathizing with Elin’s plight, but research out of Psychological Science suggests this is not a good idea for achieving a favorable settlement.  They discovered that it is far more helpful to focus on the other side’s logical perspective and goals, rather than their emotional state of mind.  As one of the study’s authors put it:

“Negotiators give themselves an advantage by thinking about what is motivating the other party, by getting inside their head… Perspective-taking gives you insights into how to structure a deal that can benefit both parties. But unfortunately in negotiations, empathizing makes you more concerned about making the other party happy, which can sometimes come at your own expense.”

Interestingly, there is further research that supports the theory of keeping focused on your own emotions.  Another article from Psychological Science asked people to play “the ultimatum game” and try to find the most beneficial settlement that both parties could accept.  The results established that emotional self-talk significantly influenced negotiated outcomes.  The study concluded that those who were primed to “trust their own emotions” fared much better in resulting agreements than those who did not give themselves confidence building pep talks.

So, what is the answer?  If you sit down at the table too angry it may shut the other side down.  If you sit down at the table too happy it may get you fleeced.  If you try to empathize with your opponents then you may lose your own perspective, but empathizing with yourself is an odd path to victory.

Honestly, as a current litigation consultant and former mediator I have not yet found the silver bullet for negotiating conflict.  However, I will leave with a favorite quote from Lance Morrow to aid Mel and Tiger on their search for settlement:

“Never forget the power of silence, that massively disconcerting pause which goes on and on and may at last induce an opponent to babble and backtrack nervously.”  

If you can master the skill of silence, the world is your oyster.

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

“Once Upon a Trial, in a Land Far, Far Away…”

 How many of you decided to read this blog post because the title suggested that I was about to tell a story?  What if I had use the alternative hook “Narratives and Storytelling in Case Strategy” as my opener?  Would you still have been as interested?  (I’m betting not.)

As this article by Jeremy Hsu outlines, we human beings are programmed to attach to stories.  For thousands of years we have utilized stories to teach, entertain, preserve history, and create social bonds.  Long before the written word, we spun tales around campfires and depended on the preservation of these words for future generations to avoid the mistakes of the past.  In essence, stories are our memory.

Given this propensity, why do some attorneys try to keep jurors narrowly focused on very particular facts or arguments when presenting a case?  Sure, there may be some lip service to a narrative or a key theme, but how often do trial attorneys start with “the story” and carry it as a blueprint for jurors through the entire trial? How often is the witness testimony organized by the principles of “the story” and the demonstratives created with “the story” in mind?  How often is “the story” at the base of every major strategic maneuver in trial presentation?

I would argue that the narrative must come first and then the facts can be organized (and often pruned) to support the tale told.  Trials are not about who has the heaviest bucket of facts, but instead about who is able to get jurors to attach to their plotline.  The victor is the side that is able to ride this juror attachment into a favorable deliberation where the group remembers and repeats the facts of “the story” they liked most.

A recent study out of Princeton University published in Scientific American demonstrates this exact point.  Through the utilization of active brain scans, researchers demonstrated that a good story can actually synchronize people’s brains through a form of neural coupling.  (Think Vulcan mind-meld, but without the physical contact.)  However, if the listener does not understand the story, then the bond is broken and the listener disengages.

A post on the blog Neuromarketing makes the same point through a discussion of advertising and The Narrative in the Neurons (by Wray Herbert).  In this post, it is explained that fMRI imaging studies demonstrate that successful storytelling actually activates areas of the brain that increase the experiential effects.  People actually “understand a story by simulating the events in the story world and updating their simulation when features of that world change.” (Click Here for another overview.)  While this research is focused on the written word, it further clarifies the power of a well-crafted narrative.

The law can be a foreign language to many jurors.  Making things more difficult is the high importance placed on jurors’ correct interpretation of technical words.  (As many recall from grammar school) when individuals are unsure of the meaning of a word, they search for context clues to enlighten them.  Without this contextual guidance, the words will often be discarded and forgotten.  I would argue that when presenting a case at trial, the best context an attorney can provide is a well-honed story that causes jurors to want to hear more.  Then, before you know it, they are hooked.

THE END.

Blogger: Matt McCusker

W.W.B.D.? (What Will Blago Do?)

 As some of you might have heard, there was a family style civil war raging in the Blagojevich defense camp this week between a young firebrand and a sage journeyman.  The firebrand (Sam Adam Jr.) wanted to throw caution into the wind and have Blago testify, but the journeyman (his father, Sam Adam Sr.) said that this case would rest without hearing from the infamous governor.  The drama was palpable and the media was salivating.  Think Tom Cruise vs. Paul Newman in The Color of Money; or Tom Cruise vs. Robert Duval in Days of Thunder; or Tom Cruise vs. Craig T. Nelson in All the Right Moves; or pretty much any 1980’s Tom Cruise movie.  (You’re welcome Sam Adam Jr.)

Father versus son in a high-profile trial with a big-haired defendant who has ties to both the oval office and Donald Trump's reality TV office?  Some might say that this sounds too good to be true.  Some might even say that this sounds staged to increase publicity.  Sadly, much like how many licks it takes to get to the center of a Tootsie Roll Tootsie Pop… the world may never know. 

However, it brings up the interesting questions associated with putting witnesses on the stand (or in the deposition chair) who are likely to be liabilities.  While the media typically focuses on whether a criminal defendant testifies in his or her own defense, this is a luxury that most witnesses do not enjoy.  The fact is that witnesses who are friendly (but “unhelpful”) are a common problem for civil and criminal attorneys in all types of cases. 

Thomas Fuller wrote, “A fool wanders, a wise man travels.”  In seven words, I believe this quote sums up one of the key differences between helpful and unhelpful testimony.  Those witnesses who “wander” and try to verbally meander into what they think is “the right” answer are in trouble.  Those witnesses who focus on clearly understanding their departure point (the question) and efficiently “traveling” to their destination (the answer) fare much better.  You should always ask yourself: Is this witness reminiscent of a college student backpacking through Europe or a professional who is traveling to an appointment with a client?

While both direct and cross examinations can be dangerous for “wandering” witnesses, clearly the cross is the most perilous journey.  Dr. Louise Ellison and Dr. Jacqueline Wheatcroft at the Universities of Leeds and Liverpool have scientifically demonstrated this danger and tested solutions.

In their research (“Exploring the influence of courtroom questioning and pre-trial preparation on adult accuracy”), Ellison and Whetcroft showed mock-witnesses a simulated crime and then recorded subjects' reactions to two levels of scripted cross-examination questioning: hard-cross and soft-cross.  The hard-cross was filled with legalese and tricky phrasing (double negatives, leading statements, etc.), while the soft-cross had relatively straightforward questions.  As has been demonstrated before, witnesses were significantly less accurate with the hard-cross.    

However, they then went a step further and repeated the test with new subjects, but provided all witnesses with a simple pamphlet entitled “A Guide to Cross-Examination.”  In the paper, it was described as follows:

“…this document contained a short explanation of the two-fold function of cross-examination - to test evidence and elicit information favourable to the crossexaminer’s case - and practical guidance to assist participants when answering questions which included directions to listen carefully to questions, to ask for clarification if a question was not fully understood and to answer all questions truthfully. The leaflet also included an example of a leading question, a question containing a double negative and a multipart question, and, in reference to leading and multipart questions, advice that participants should not agree with a suggestion ventured by the cross-examiner unless it was accurate.”

Obviously, I wouldn’t be blogging about this paper if the pamphlet did not have a significant effect.  Those witnesses with preparation made significantly fewer errors than those without. (If a pamphlet can enhance skills, imagine what real witness prep can do!)

However, what was most interesting was the increase in requests for clarification by participants.  Research has shown that witnesses are often too intimidated to ask lawyers to clarify their questions.  This study demonstrated that simply reading an informational pamphlet before cross-examination caused the rate of requests for clarification by witnesses to jump in both groups.  Asking for an attorney to be clearer is one of the most powerful defenses while being cross-examined and witnesses seldom use it.  Thus proving the ancient Chinese proverb: “He who asks a question is a fool for a moment.  He who does not ask a question is a fool forever.”  Somehow I can’t see Blago pausing long enough to listen to the questions, much less asking for them to be clarified.

(UPDATE: Blago will NOT testify.  I just heard a thousand news anchors drop to their knees and scream “NOOOO!!!”  Thanks to ASTC President Beth Foley for inspiring this blog.)

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

 

OPENING STATEMENT? We've got an app for that.

 Last year, comedian Louis CK delivered a hilarious rant on the Conan O’Brien Show about our modern-day technological expectations (click here to laugh).  CK makes his point about how accustomed we’ve become to the luxuries of 21^st century life by recounting an interaction with a fellow airplane passenger:

“I was on an airplane and there was internet, high speed internet on the airplane…it’s amazing… then it breaks down and they apologize the internet is not working and the guy next to me goes ‘this is bullsh**.’…Like the world owes him [YouTube clips] he knew existed only 10 seconds ago… Oh really?  What happened next?  Did you fly through the air incredibly like a bird? Did you partake in the miracle of human flight?  Wow, you’re flying!  It’s amazing!  Everybody on every plane should just constantly be going, ‘OH MY GOD!’ ‘WOW!’ …You’re sitting in a chair in the sky!”

Louis CK’s rant went viral through the internet because it rang so true.  Technological advancements have completely altered our daily expectations.  Think of the first cell phones, the first internet connections, the first automobiles.  How would we rate them today?  Progress has caused us to judge harshly those who fail to rise to the lofty goals we set.  The courtroom is not immune to this phenomenon.

Today’s information-age jurors expect well-crafted presentations that include advanced auditory and visual components which are interwoven with the case story.  Moreover, a famous 1963 Weiss and McGrath study demonstrated that there is good reason for this juror preference.  They found that information is retained at a remarkably higher rate when it is presented orally and visually (65% retention), rather than orally alone (10% retention) or visually alone (20% retention).¹  While many attorneys think that a good opening statement or closing argument does not need the aid of visual dynamics, both research and juror comments beg to differ.

However, there is also the danger of going too far.  Presentations should not be so shocking or overwhelming that they serve to drown out supporting evidence that may be key to the foundation of a case. A recent study published in the Journal of Current Issues and Research in Advertising found that commercials shown between “intense war news” segments had much lower retention rates in audiences.  One could see how it would be counterproductive to make key points in a closing argument directly before or after graphic photos were shown.

Interestingly, a similar point was made when researchers tested the efficacy of PowerPoint text animations.  A study out of the University of North Carolina at Wilmington found that college students retained less information when presented with animated PowerPoint slides, than when the same topics were presented through static (non-animated) PowerPoint slides.

Still, it should be remembered that a good PowerPoint presentation, demonstrative computer animation or video clip will only go so far.  This audio-visual array must also be set in a framework that allows jurors to focus on learning, rather than remembering.  Researchers from the University of Amsterdam and Duke University have demonstrated that learning and remembering compete for valuable resources in the brain.  As a result of this battle for brain power, jurors who are constantly trying to recall case elements (Who is who? Why does this matter? When did this happen?) are distracted.  If this happens, all of the money spent on fancy instructional animations could be wasted.  An effective story or narrative framework is essential to making multi-modal presentations stick in jurors’ minds.

Blogger: Matt McCusker

*Image courtesy of the Wake County (N.C.) Bar Awards and Merritt Videoworks.  Click Here to see all of the great work the Wake County Bar is doing for their community and see if you can help.

¹ (H. Weiss and J.B. McGrath, "Technically Speaking: Oral Communication for Engineers, Scientists and Technical Personnel" (1963).)

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

What do Homer Simpson, Fonzie, MacGyver, and Batman have in common?: THE MIND OF A HOLDOUT JUROR

 I begin this post not with Henry Fonda (12 Angry Men), but with a few lesser-known (yet still famous) references to holdout jurors.

Some will remember that Homer Simpson was a holdout juror who argued a man’s innocence in the name of a free hotel room, free food, and free HBO. He noted, “Marge, it was horrible. Everyone was against me in that jury room. But I stood by the courage of my convictions and I prevailed… And that's why we had Chinese food for lunch.”

Both Fonzie (Happy Days) and MacGyver (MacGyver) also held out in the name of justice for the innocent.  Fonzie utilized his knowledge of motorcycles during the deliberation to prove a man not guilty (actually “Not Guiltyamundo”), while MacGyver … well …  pulled a MacGyver.

Despite being sequestered, MacGyver used two soda cans and a coin to distract the guard and sneak out of his hotel room.  He then conducted his own investigation of the crime scene, eventually nabbing the real attacker. (Before you think Hollywood is unrealistic, the judge did admonish MacGyver for these crazy antics… but then thanked him for finding the truth.)

However, my favorite holdout juror comes from the comedy 3rd Rock from the Sun. Putting a nice twist on the 12 Angry Men plot, Dick tries to defend a very obviously guilty man and sway the jury to set him free.  Here is an example of his case theory: “Well, Foster SAID he didn't do it.  Are you calling him ... AND his attorney ... LIARS?"

If you recall, I began this blog series on hung juries and holdouts, talking about the 20% of French faux-reality show contestants who refused to shock a man (actually an actor) into unconsciousness.  I was curious to know what type of people stand up to the group and refuse to comply with the wishes of a badgering game show host and vocal studio audience. 

While this is by no means an exhaustive list, and choices depend greatly on the case at hand, here are a few things to look for when thinking about jurors who are aversive to compromise or don’t play well with others:

1)      Watch the Talkers:  A study on interaction rates amongst members of split juries showed that the smaller the size of the minority faction, the more they talked.  It is easy to sit quietly when supporting the majority in a deliberation.  The holdouts are often required to argue and explain why they won’t go along with the group.  During voir dire, make a note of the people who like to talk.

2)     Strong Houses Rest on Solid Foundations:  Frequently, those who indicate “very strong” opinions about issues of ethics and morals are likely to be unwilling to shift to a position that would be in contradiction with these beliefs.  Those schooled in cognitive dissonance know that often, the stronger the belief, the more extreme the need to stay in line with it (even if it means wild theories with little support).

3)     Agree to Disagree:  There are some people who just like to argue.  They will often place the thrill of debate in front of the search for justice.  Anecdotally, I offer a few potential giveaways for these conflict-magnetic individuals during voir dire:

a.      Debating with attorneys or other jurors during Q&A;

b.      Whispering jokes in the back of the courtroom;

c.       Angrily staring at you with the “evil eye”; and

d.      Giving curt answers that are obviously intended to send you a message.

4)     Step One - Read Instructions:  A study by the American Bar Foundation showed that juries were twice as likely to hang if they began their deliberations focused on votes instead of evidence.  While this is usually out of attorneys’ control, asking judges to give jurors guidance about evidence-based deliberations could go a long way towards finding unanimous verdicts.

*A Caveat:  Those who have read the first two parts of the series already know that research suggests that holdouts are born from a split group that has different interpretations of the strength of the evidence and testimony.  The holdouts seldom begin the deliberation as 11 against 1 , but arrive there after a string of minority defections to the majority.

I end this post as it began, with another reference to a famous holdout juror.  Believe it or not, Bruce Wayne served on the jury of a man whom he captured as Batman.  In this scenario, (possibly due to the lack of evidence associated with “arrest by superhero”) Bruce had to convince the jury that the man was actually GUILTY!  Before you complain about juror deception, you should know that during voir dire, the Caped Crusader openly admitted in court that he would be a poor  juror because he was, in fact, Batman.  As would be expected, everyone laughed but him, the holdout. 

Blogger: Matt McCusker

(BTW, feel free to post comments with other famous juror holdouts.)

 

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.

___________________

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.) 

Why Are Mean Women So Fascinating?

  The most interesting thing about the New York Times article on female bullies in the workplace . . . is how interesting it apparently is.  Four days after it appeared on line and three days after the print edition, it's still among the ten most E-mailed articles on the entire Times site.  Every other article in the top ten (as I write this on Wednesday evening) appeared the print edition today or yesterday.

Here's the article's starting point:

It’s probably no surprise that most of [workplace] bullies are men, as a survey by the Workplace Bullying Institute, an advocacy group, makes clear. But a good 40 percent of bullies are women. And at least the male bullies take an egalitarian approach, mowing down men and women pretty much in equal measure. The women appear to prefer their own kind, choosing other women as targets more than 70 percent of the time.

"We've got enough obstacles"

Out of all the news that's fit to print, what is it that people find so fascinating about that?  It's different for different people, as the article suggests:

• It's surprising to some, since bullying is "antithetical to the way that we are supposed to behave to other women" (said Peggy Klaus, an executive coach in California).

• It's familiar to others, who "will nod in instant recognition" when female bullying is mentioned.

• It's challenging to feminists: "How can women break through the glass ceiling if they are ducking verbal blows from other women in cubicles, hallways and conference rooms?"

• It shows how vulnerable women feel in the workplace, according to Canadian researchers cited as finding "that some women may sabotage one another because they feel that helping their female co-workers could jeopardize their own careers."

• It shows how women's behavior is misunderstood, to those who think the perception of female bullies is "stereotyping and women are only perceived as being overly aggressive".

• It may suggest we're redefining bullying itself, or at least that's how I reacted to the question used in one cited survey to define it:  "Over the last 12 months, have you regularly: been glared at in a hostile manner, been given the silent treatment, been treated in a rude or disrespectful manner, or had others fail to deny false rumors about you?"  (I'm almost as nice in person as I am in this blog, but I have to admit I glare from time to time.)

• Some find it sexist that we're even asking the question, and "will point out that people of both sexes can misbehave."

• Some just sigh:  “We’ve got enough obstacles; we don’t need to pile on any more.”

The article doesn't mention the iconic fascination of a catfight, but that has to be part of it too.

I don't know which of these factors is most meaningful, or which way they will cut, in a case where gender is an issue or, as important, where it's simply something jurors will notice.  (As they will if you're a woman, or your client or your expert is, or your opponent is.)  What's clear is that whatever importance you thought gender had in your case, you might be underestimating it.  In any given few days, the Times has some amazing articles.  But this is the one people are still sending each other.

_________________________

Related posts here:

• Sometimes It's Hard To Be A Woman
• When Women Judge Women
• Women Lawyers, Juries – And Stress?

(Photo by Tommy Jørgensen at http://www.flickr.com/photos/tommyhj/346075714; 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.)

Your Client, The Jury, And You

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

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

My client, my friend

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

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

Civil trials too

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

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

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

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

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

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

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

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

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

Nine slots, or three?

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

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

Remembering to pay attention

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

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

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

___________________

Related topics here include:

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

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

Lawyers: So Certain, So Wrong

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

"I rest my case."

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

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

With walnuts and hot fudge?!

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

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

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

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

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

The Brand-Name Brain

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

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

All of a sudden I'm hungry

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

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

What it means in real trials

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

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

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

________________

Source notes: 

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

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