A TRIAL IS A MORALITY PLAY

The December 2016 issue of The Jury Expert  http://www.thejuryexpert.com/2016/12/making-it-moral-how-morality-can-harden-attitudes-and-make-them-more-influential/  features an article by Andrew Luttrell: “Making it Moral: How Morality can Harden Attitudes and Make Them More Influential.” The article brought to mind the writings of Professor George Lakoff.

Professor of cognitive science, George Lakoff at the University of California in Berkeley wrote the well-known book  The Political Mind. In it he argues that politics “is about moral values.” He notes that every successful political leader presents their ideas on the basis that they are “right,” that is that their idea or position is morally correct. He extends this belief to the idea that trials need to be about moral values, ethics and doing the right thing. The appeal must be to the unconscious value system of the jurors and not an approach relying  upon rational logic. He notes that people vote against their own self-interests when they believe they are voting in conformity with their strongly held moral values. This has direct application to how we  approach the trial of our cases to jurors.

This article  expands the professor’s ideas by addressing the significance of moral belief by jurors during trial. Mr. Luttrell  notes that people can have an opinion which in social psychology are known as “attitudes.” Attitude, of course, is a person’s positive or negative evaluation of something. We know from research that attitudes can generally predict a person’s decisions or behavior. For example, a person with a favorable attitude towards the police, would be more likely to vote in favor of law enforcement then someone with a negative attitude.

This article discusses the impact on conduct depending upon whether one’s attitude has a moral  basis. The author observes that an abundance of research indicates that the more a person thinks that his or her attitude has a moral foundation, the more likely it is that person’s behavior will follow the attitude and the less likely that person is to change even in the face of pressure to do so. A perceived basis of morality for the attitude therefore is a strong indicator of that person making decisions in conformity with the attitude.

One of the examples relevant to our recent election is a study done in 2008 which found that the more people thought that their choice for the president involved their moral beliefs, the more likely they were to vote in the election. We know that strongly held values and beliefs of morality will drive a decision even when it is not in the best personal interest of the individual. People will vote for a candidate who may not advocate policies in their best interest when they believe that the candidate positions reflect their moral beliefs. A person is much more likely to vote for a candidate whose position on abortion, same sex marriage or other strongly held moral beliefs conforms to their own even when they don’t like the candidate or when the candidate holds other positions which conflict with the voters personal interests.

The research further indicates that people are less likely to revise their opinion if they see their held opinion as a matter of morality. As the article points out, people are constantly faced with pressures to change their opinions by what they read, their experiences and the opinions of friends and others. In one study, contrived social pressure was brought on participants to rethink their opinion regarding torture to get information. The results showed that the more the participants thought that their initial opinions were a matter of morality, the less likely they were to change even in the face of group social pressure. Therefore the more people believe they have a moral basis for their attitude, the more their behavior will align with that attitude and the less likely they are to change it even under pressure or in the face of evidence.

Previous studies, according to the article, have established that people will act according to their attitudes more when they have taken considerable time to think about and form that attitude. The new evidence, according to the article, shows that when people merely believe that they have thought carefully about a topic – whether it’s true or not – the more likely they are to act in accordance with that attitude. In trial, learning how long the person has held an attitude or the way in which it was  formed would be helpful information.

These findings about moral beliefs have implications for us in trial for obvious reasons. We need to learn what we can about people’s strongly held beliefs and their  moral values  as it applies to the issues or people in your case. These factors will unconsciously drive the verdict irrespective of the evidence. They are strong predictors about how  people will vote. Research has indicated that one can learn about core moral principles, to some extent, by simply asking about it in jury selection. We can ask jurors whether their attitudes towards a particular person, group or issue are based upon their core moral beliefs and convictions. The strength of their belief in that regard will indicate how important it is to them.

We can also characterize the issue in our case or the persons or groups involved in the light of important moral principles. By telling a jury, for example, that their reactions in their verdict are a reflection of their core moral principles, would tend  to harden their beliefs and attitudes, hardening them against later information or arguments to the contrary.

We can ask indirect questions about what they believe are important characteristics to teach a child or persons they admire or similar questions that reflect a person’s moral beliefs. Knowing this can help us in our jury selection and trial presentation.

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CONDUCTING FOCUS GROUP STUDIES CORRECTLY

One year ago, in January 2016, I wrote about correctly conducting focus groups. http://plaintifftriallawyertips.com/how-to-do-focus-studies-for-your-cases-correctly I recommended an article from Trial Magazine by attorneys Philip H Miller and Paul J sculptor. Over my fifty years as a trial lawyer I have been involved in many dozens  of focus  studies. I also have  observed focus studies done by others and read articles about focus studies. My experience was a feeling they were not qualified and the writing often inaccurate. When I read the  article, however, I was struck by the accuracy and quality of their observations so I strongly recommended reading it. Coincidentally, in the January 2017 issue of Trial, the same two lawyers have once again published an article entitled “Five Rules for Effective Focus Groups” which I believe should be required reading for lawyers who want to know how to run a focus group the right way.

My experience has been that the lawyers conducting focus studies and even some consultants have the wrong objective. Rather than having a goal of discovery of initial impression feedback regarding issues, exhibits or other aspects of the case, their goal appears to be testing their ability to convince the group of their position. The authors point out that “focus groups can add ambiguity to the case and suggest misleading answers to case critical issues.” They recommend spending time analyzing what is needed in advance of the study, doing multiple studies and doing them early enough to allow for adjusting discovery before trial. Otherwise, they point out it is a situation of “garbage in, garbage out.”

Here are some other observations they make. They suggest that you consider the following questions from a focus juror perspective  before the study: (1) why is this case important? (2) how can we know we aren’t being scammed or defrauded by this evidence? (3) has this happened before? (4) are there any rules or laws we can use to decide this case and (5) is there a message that needs to be sent?

One of the suggestions they make is that instead of the study being a general explanation of issues, it should test the strengths and weaknesses of the case. They next recommend that in order to get valuable and reliable information, that one uses multiple focus groups, provide a balanced presentation and utilize a question outline they provide in a list. Their list is a comprehensive checklist of items to be covered in the focus group. It includes such things as suggestions like “ask “why?” A lot. Avoid assuming the first response is everything you need to know. Ask “what else?” They recommend a technique which is helpful where the group is asked to “fill in the blank” for such questions such as: the defendant should have…. the person I most want to hear from is…., the evidence that was most important to me was….,and this would never have happened if…”

I’ve written about the problem of “confirmation bias” on many previous occasions. The authors discuss this and point out that all people are affected by this mental process, regardless of education level, social standing or worldview. As they point out “we all hear what we want to hear and see what we want or expect to see. When testimony or evidence in the case contradicts what we already believe our first response is to minimize it by assuming our witness expert or of her evidence has more persuasive weight and when we look at a photograph we see what we want to see and minimize the rest.” Confirmation bias is at its strongest when dealing with emotionally charged issues or deeply entrenched beliefs. Focus groups are a way in which we as trial lawyers can deal with our own confirmation bias problems.

Another source of helpful focus group and communication information is from Frank Luntz. Frank Luntz is unquestionably one of the most experienced experts in communication. He has a website Luntz global.com. http://www.luntzglobal.com/ His book Words That Work, is an excellent source of information about communication. His premise is: “it’s not what you say. It’s what they hear.” His advice is that we understand our audience, the opinions, attitudes and emotions that make them tune in or tune off. His service to the Republican Party has been to pinpoint language that garners support and inspires action by delivering a message that resonates and drives results. The TV program 60 Minutes featured Luntz conducting a focus study following a presidential debate. http://www.realclearpolitics.com/video/2016/10/19/frank_luntz_focus_group_of_undecided_voters_gives_trump_narrow_win.html I recommend reviewing the short video not for the results of the focus study, but to watch how he conducted it. Most notably you will see that more than 90% of the talk comes from the members of the focus study and not Luntz. One of the primary faults of lawyers conducting focus studies is that they reverse that percentage and then some. They do all the talking and even argue with the responses. The other characteristic to note is that his questions are cryptic, short  and call for impressions. Most lawyers conducting focus studies make the same mistake they make in court conducting witness examination. They make their questions too long, too complicated and distracting.

Luntz on the other hand, did things such as saying  to the group “on the count of three yell out which candidate you thought won the debate.” He then measured the respective volume of responses and decided it was evenly balanced. The significant thing is that he asked them to yell it out. Quick, spontaneous and all impression response. He also said “describe in one word what you thought of her performance.” The result was pretty amazing because people had one descriptive word that was very revealing as to their inner feelings. A much better technique than asking for long explanations. He used the the helpful question: “how do you feel about?” a lot. Significantly he never commented about the responses he received, but only moved on to another person. At one point he played a video clip from the debate and said to them: “did he show the temperament you are looking for in a president? Why? He asked questions like: “how many have overall positive opinions about the election? How many have an overall negative opinion about the election?” And, he asked “does this election make you feel more optimistic or pessimistic, raise your hand.” All short and simple questions which produce gut level responses.

For me the significant fact was that this was not an ego trip for Luntz conducting the study. He made sure to minimize himself, ask questions that were simple and short and otherwise facilitate audience response without inhibition by him. My feeling is that lawyers have a over simplistic idea about conducting focus studies and are often wrong about their conclusions. Lawyers generally think they know more than anybody else, but in the case of focus studies my experiences they are badly in need of experienced and competent consultants if they don’t want to have garbage in and garbage out.

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SEEING IS BELIEVING

The Jury Expert www.thejuryexpert.com  this month published an important article by Jason Barnes, an experienced jury consultant,  titled “Graphics Double Comprehension.” My strong belief in the importance of great graphics  in trial is supported by this article which I recommend. Here are some of the major points he made.

You remember what you see far more than you remember what you hear

Barnes notes that our retinas contain 70%  of all sensory receptors in our body and are actually outgrowths of our brain. He says that while the brain’s visual system takes up to 40% of our cerebral cortex, our touch or feel system  occupies only 8% and hearing accounts for only 3%.  He therefore concludes that we are really visual people. He points out that our speaking abilities come from much smaller areas of the brain then our visual. These facts, he says, explain why we are able to remember visual images far more than we are able to remember words alone.

Words and pictures can interact with working memory to form more meaningful connections

The channels for receiving information in our brain are separate for verbal and visual. The article points out that neuroscientists refer to the visual and verbal systems as using a “dual coding model” in which each channel operates independently to process information. When  we combine words  and visuals we create an interlocking of words and picture together that are lodged in long-term memory  so that when we think of words, we see the images and when we think of the image we hear the words.

Combining visuals with words more than doubles comprehension

One of the key truths in the article is the importance of combining visuals with words for  long-term memory and comprehension both. In the study cited in the article participants who heard a lecture only identified 28% of possible correct answers they were presented with. However, when participants receive the same information both by lecture and with visual animation, they were able to identify 62% of all possible correct answers. Clearly combining words and visuals together increases comprehension.

Conclusion

The author succinctly describes the only logical conclusion from this information: “The lesson for trial advocates is clear.  If we want jurors to not only remember our evidence…  but to also understand (it), we must use visuals to strengthen our words.” That’s why when we are presenting our clients story to the jury we need to combine it with visuals like timelines  photos, maps and the like to supplement the words. We  are visual people.

He also makes the important point: “We must  be careful to remember that the jury is always looking; their visual system is a 24 hour news channel that cannot be turned off.” Not only are they observant of all of the nonverbal communication, they are also looking at everything going on in the courtroom. For them everything they see becomes visual evidence. Therefore, it is important that to the extent we can, we control what they see.  Since trial is a battle of impression and not logic that means that our clients and everybody involved in our case should be aware of the jury’s continued visual review.

Ross Perot said: “Talk is cheap. Words are plentiful and deeds are precious.” To which we can add “and, it is also true that seeing is believing.”

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