Category Archives: Uncategorized

January 15, 2018

Expect Task to Determine Perception

By Dr. Ken Broda-Bahm:

Remember “Pong?” For those of us of a certain age, it was probably the first video game we ever played, knocking that pixelated ball back and forth using a flat digital paddle. The game is interestingly the subject of a new social science study focusing on perception (Witt, Tenhundfeld & Tymoski, 2017). The study, covered in a ScienceDaily press release entitled, “Pong Paddles and Perception,” shows that people perceive the pong ball to move faster when the pong paddle is smaller. So, rather than perception being based on the neutral reception of visual information, it depends strongly on the task the perceiver is engaged in at the moment, and when one is urgently moving a smaller paddle toward the ball, the ball itself seems to be faster.

That finding is not new or surprising, and the lead author, Jessica Witt, has demonstrated in many other contexts that tasks influence perceptions: Batters see a bigger baseball when they’re trying to hit it, and hills are steeper when one is carrying a heavy backpack. But what is surprising about the Pong study is that, even when participants correctly guess at the purpose of the study, the perception shift still occurs. “Knowing that perception is influenced by action won’t protect against the effects,” the ScienceDaily release concludes, “In other words, if a hill looks steeper because someone is tired or carrying a heavy load, knowing that won’t change the effects.” The hill is still steeper. This finding has some implications in the perceptual setting of trial.

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January 8, 2018

Ask Your Potential Jurors: Do You Believe in the Legal Process?

By Dr. Ken Broda-Bahm:

 

We live in a hierarchical society, and the courtroom replicates (some would say, entrenches) some of those hierarchies. The law is written in an opaque manner that only the educated can understand, the bar physically separates the attorneys and the players from everyone else, and the judge is literally lifted up above everyone else. And part of that hierarchy is an implicit message: “You should listen to some sources and some information over others because of its status.” The judge has a title, the attorney has a law degree, the expert witness has a Ph.D., so trust them.

But do jurors follow that authority? To some degree, certainly. The courtroom is still a place that inspires awe and obedience. But one feature of modern life has been a weakening of these kinds of institutional bonds. In what’s been dubbed the ‘Alt-Fact’ era, it feels more common that individuals will chose their own information, premises, and opinions, believing things not because the ‘proper authorities’ say so, but believing them because their ideology and their reference groups point them in that direction. In some cases, it may be critical to learn about potential jurors’ attitudes on the authority of the trial process, including their attitudes toward law, attorneys, witnesses, and the oath. In criminal cases, prosecutors will generally want the rule-followers while the defense prefers those at least potentially willing to stretch the parameters of that box. In civil cases, it is more of a case-by-case assessment of which side is going to emphasize the law and the proper process and which side is going to emphasize fairness and equity. In this post, I’ll share some quesitons for potential jurors on those themes.

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January 4, 2018

Ask Your Potential Jurors: Do You Believe in Science?

By Dr. Ken Broda-Bahm:

We don’t always have systematic reasons for believing what we believe. Often, it boils down to a feeling, a preference, or an implicit trust based on how we learned it. Motivation plays a big role. But there is one setting where that rationale is supposed to be systematic, logical, and methodical: expert witness testimony. The law expects expert conclusions to be grounded in a clear and reproducible way of knowing. And when those conclusions are drawn from some kind of science, then the foundation for the testimony is going to be the scientific method.

But do jurors trust the scientific method, and science generally? It’s probably never been fully reliable to assume that they do. In times past, the big question was, “Do they understand it?” Now, however, that question is joined by a question that matters as much or more: “Do they ideologically accept it?” Based on its role in some hot-button issues that have become polarized in recent years, the idea of science has taken a hit. I’ve written previously on some of the alarming data indicating a loss of faith in science. In this post, I’ll share a number of questions that are useful in finding out how much this affects your panel. When your case depends on jurors’ acceptance of science and the scientific method, and especially when your advantage over the other side rests in part on you having the better science, it helps to ask your potential jurors what they think. In this post, I’ll share some questions that can be asked in oral voir dire or in a questionnaire in order to get at their views on science.

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January 1, 2018

Ask Your Potential Juror: Having an Epistemological Crisis?

By Dr. Ken Broda-Bahm:

People have always believed things that aren’t true: the earth is flat, nonconforming women are witches, the moon landing was faked. Currently, we have our own set of false beliefs that have permeated some sectors of society. The difference, perhaps, is that there’s now the feeling that we’re in a unique phase: It is not just that some cling to false beliefs, it is that the mechanisms for correcting those beliefs, or for arriving at beliefs in the first place, are breaking down. A recent Rush Limbaugh program provides a good example: Using a flashy-designed graphic, he laid out what he called the “Four Corners of Deceit,” which include, “academia, the media, government, and science.” So what does that leave? Just religion and the beliefs of your ideological tribe, perhaps?

Epistemology itself, the way we know what we know, is what’s breaking down. The Rush Limbaugh example comes from a Vox article last month by David Roberts, focusing on the provocative question, “What if Mueller proves his case and it doesn’t matter?” Of course, we could also ask the flip side of that question about the special prosecutor looking into Trump campaign collusion with Russia: “What if Mueller exonerates the campaign and it doesn’t matter?” According to Roberts’ analysis, we’ve gotten to this point due to a “tribal epistemology,” or “the systematic conflation of what is true with what is good for the tribe.” Roberts focuses on it as a right-wing phenomena, but of course, there are also examples on the left. Whatever the political stripe, it matters for the potential juror, raising the question of how open-minded or how “tribal” they’re going to be in applying their attitudes to the case at hand. “The only way to settle any argument is for both sides to be committed, at least to some degree, to shared standards of evidence and accuracy, and to place a measure of shared trust in institutions meant to vouchsafe evidence and accuracy,” Roberts writes, “Without that basic agreement, without common arbiters, there can be no end to dispute.” So that’s a reason for testing the open-mindedness of potential jurors and the extent to which this epistemic crisis might influence the pool.

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December 28, 2017

Cooperate

By Dr. Ken Broda-Bahm:

Litigation and trial have a long history of being seen as a kind of logical and verbal combat. Movies and popular culture have contributed to this view that attorneys are going to war on behalf of their clients, and the only holds that are barred are those that are barred by law. Absorbing that mindset, the attorney can see herself as a warrior for her client. That can help to make someone a fierce advocate, but it can also make it harder to see, understand, and negotiate with the other side. And with the vast majority of conflicts ending in agreement rather than in conflict, that mindset can downplay or delay the kinds of thinking that are necessary for a timely resolution.

Ultimately, there is a cooperative dimension to litigation. Each side is trying to maximize its own benefits, of course, and a strong part of that really is zero-sum. However, it isn’t naive to say that both sides also have a shared interest in an outcome that is fair and reasonable to all parties — a shared interest in justice. And particularly when you factor in the time and expense of litigation, when a case ultimately is going to ultimately settle, both sides have a non-zero-sum interest in getting to that settlement earlier rather than later. But the battle mindset can make that something that comes later and with greater effort, only after both sides are exhausted or under duress. I came across some research that adds some perspective, covered in a recent release in ScienceDailythe work of University of Amsterdam social psychologist Carsten de Dreu focuses on experiments in which people are set up to invest in either perceived self-protection or cooperation. His work helps in framing some questions that matter to litigators resolving disputes. 

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December 25, 2017

Make It Vivid

By Dr. Ken Broda-Bahm:

It’s Christmas as I write this, so how about some seasonally appropriate social science. There is a study (Merckelbach & van de Venezuela, 2001), a little old at this point, but quite interesting in its implications. Participants came into a lab in order to listen to white noise over headphones. They were told to press a button if and when they heard Bing Crosby singing “White Christmas.” About a third of the participants pressed the button at least once. However — you guessed it — there really was no Bing: It was just white noise with no “White Christmas.” So, how did people get a specific song and singer out of just the fuzzy static sound that you hear during a bench conference in front a a jury? Through the power of suggestion. So there is one implication if you are presenting something like a surveillance tape, a photo, or an audio recording to a jury: People, to some extent at least, are going to see or hear what they expect to see or hear.

That’s common knowledge, not always remembered in practice, but still familiar. But the other finding of the study is more intriguing. The tendency to hear Bing Crosby singing “White Christmas” was most pronounced among those who were measured to be high in “fantasy proneness.” Yes, there’s a scale for that, and it measures what seems to be a lifelong trait of creating, preferring, and involving oneself in fantasy. So this trait, the one that teachers and parents will sometimes see as an “overactive imagination,” creates a predisposition to experience something, even when it isn’t quite there. Knowing that predisposition is helpful to the persuader, not just in guarding against the power of suggestion, but also in reminding us that many in the target audience don’t just want to hear it, they want to experience it. And they experience it when you make it vivid.

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December 21, 2017

Give Your Client Seven Key Messages About the Mock Trial

By Dr. Ken Broda-Bahm:

Mock trials, and other forms of pretrial juror research, like focus groups, are increasingly common. Particularly in complex or high-stakes litigation, it makes sense to road-test your case in a safe setting. What you learn can help you arrive at a reasonable resolution pretrial, or can help you prepare for the trial if you don’t. Despite the mock trial’s frequency, however, there is still a relative novelty to it that makes it a bright spot in the march up to trial, settlement, or other resolution. In the excitement of what’s often the first real test, clients can sometimes have the wrong ideas about the goals of the research, and what is ultimately most important at this stage. I have written about mock trial best practices before, but for this post, let’s look at it as key goals that the client needs to understand. To set expectations and keep things clear, there are seven key messages that the attorney or the consultant needs to convey to their clients during the research stage.

One, We Aren’t Trying to Win

Yes, absolutely, we are trying to win the trial or the negotiation but, no, we aren’t trying to win the mock trial. We aren’t leaning the test in favor of a good result for our side. But even in a completely fair test, we still kind of hope we lose. Seeing the mock jurors agree with us on everything can be reassuring, but that reassurance comes at a cost. And the cost is that you learn less. Ideally, you probably want a mock trial where you lose, but lose in a way that highlights the ways that you could win.

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December 18, 2017

Don’t Phub Your Jury

By Dr. Ken Broda-Bahm:

Next time you’re in a public place — an airport, a hotel lobby, a train, or a shopping mall — stop and take a moment to look around at the other people in the space. How many of them are staring down into their hand-held mobile phone? Most of them? And, before you stopped to look around, maybe you as well? There is a disconnect: We like our technology and the opportunities for instant information, entertainment and distraction that it brings, but at the same time, the sight of others with their eyes glued to their screens tends to generate negative thoughts. It’s another fundamental attribution error: When we use our tech, we are finding useful information, but when they use theirs, they’re tech-addicted zombies. Now, move that interaction into the courtroom. One special group in that setting, the jury, now doesn’t have phones. They’re either under strict instructions to never take them out, or they’ve been collected and left in the jury room. So what do those jurors think when they look over to counsel table to see lawyers and parties with their heads bowed toward their screen, or look into the gallery to see an upcoming expert witness tapping away with her thumbs? It’s a safe bet that they don’t like it, at all.

It’s called “phubbing” or “phone-snubbing,” and describes the feeling we get when someone else seems absent due to their attention to their phones. While much of the research on phubbing has focused on couples, (e.g., Roberts & David, 2016), a more recent study has looked at more formal settings (Roberts & David, 2017). Looking at what employees think when their boss checks a phone during interaction, the team from Baylor found that phone users are seen as less polite and attentive, and garnered lower levels of trust, and less confidence. The workers themselves were less likely to see the work as valuable when their boss was phubbing. The phenomenon has not been researched in court, but there are plenty of reasons to avoid it — the most important being that, if you can do it but jurors can’t, it’s a reminder of inequality. In this post, I’ll share a bit about the reasons and the solutions.

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December 11, 2017

Conduct an Informed Litigation Risk Assessment

By Dr. Ken Broda-Bahm:

On the path from the initial dispute to the ultimate disposition of a case, there are many forks in the road. In choosing whether to take the path of settlement or to continue on to trial, one of the most trusted advisors is, and should be, the trial lawyer. After all, that is the person with the courtroom chops to provide a solid and realistic appraisal to clients, insurers, and aligned parties. But how good are trial lawyers at making those estimates? Some research seems to point to the conclusion that they’re not good. And experience doesn’t even appear to play a strong role in improving that predictive judgment.

That raises the question of whether attorneys and their clients are ultimately making good decisions on whether to settle or proceed to trial. The subject has been under-studied, in my view, but there are some reasons to believe that the assessment is not as systematic as it could be. Canadian law professor Michaela Keet (2017) recently conducted a study focusing on lawyers and law students to look at the way attorneys think about litigation risks as well as the effects of developing a more comprehensive framework for risk assessment. Taking a look at that research, this post will share some thoughts about the problem as well as the proposed solution.

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December 4, 2017

Nod Your Head

By Dr. Ken Broda-Bahm:

Nodding your head up and down means “Yes.” At least in our culture it does. And world travelers will know that this one thankfully translates to nearly all other countries and cultures as well. There are exceptions, like one country I visited a couple of times on consulting trips: Bulgaria. There, shaking your head up and down, our “Yes,” actually means “No,” and shaking your head from side to side, our “No,” means “Yes.” And if you ask me if that creates the potential for confusion, I’d nod my head…or shake my head “Yes.”

But sticking with the dominant cultural tendencies, the affirmative head nod is a useful and positive form of nonverbal communication. And we now have proof from the researchers that it works. Social scientists in Japan (Osugi & Kawahara, 2017) used animated clips of figures either nodding affirmatively, shaking their heads negatively, or remaining motionless. They found that the nodding head motion significantly increases ratings of subjective likability and approachability. And rather than just enhancing appearance, the positive head-nodding is perceived to indicate a better personality on the part of the target. That stands to reason: It is easy to think well of someone who is nodding in agreement. For that reason, and with some important caveats, the head nod is a good tool for communicators in the courtroom, including advocates, questioners, and witnesses.

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