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Many people are shocked and amazed when they find out that the juries are susceptible to lies of unscrupulous experts or witnesses.  They often state with incredulity that the truth should come out in trial.  Unfortunately, however, the truth doesn’t always come out.  Recently, a study from Australia helped to give a better understanding why people — as voters in an election or voters on a jury — are susceptible to lies.  The simple truth:  Inherent Laziness.

“A study led by Stephan Lewandowsky of the University of Western Australia explains part of what may happen. The researchers found that ‘Weighing the plausibility and the source of a message is cognitively more difficult than simply accepting that the message is true — it requires additional motivational and cognitiveresources.’

If the subject isn’t very important to you or you have other things on your mind, misinformation is more likely to take hold, according to the researchers. They point out that rejecting false information requires more cognitive effort than just taking it in. That is, weighing how plausible a message is, or assessing the reliability of its source, is more difficult, cognitively, than simply accepting that the message is true. In short, it takes more mental work. And if the topic isn’t very important to you or you have other things on your mind, the misinformation is more likely to take hold.”  (Pyschology Today, Why You’re Likely to Believe Political Lies )

When a person does take the time and effort to question the lie, they only take limited mental resources to do so.  They ask questions such as does this fit within my understanding of the world?  Do others believe it?  Is the source reliable?  So in essence, they filter the information even when they are questioning it.  As such, in order for the truth to come out, it must first overcome the mental laziness, and then must find its way through limited mental filters.

The problem with that filtration system is that only information that is consistent with your own beliefs will come through.  So on many occassions, the filter creates a self fulfilling prophecy that the false information will be believed.  In other words a lie is given, filtered, and then believed, which then reinforces your position or belief about issues related to the lie.

Moreover, when someone tries to demonstrate factually that the developed viewpoint is wrong, the entrenched parties often become even further entrenched citing the inaccuracy of the data.  For example, “The GOP had emphasized their conviction that unemployment would remain above 8 percent — and benefit Romney’s campaign. However, following the report that unemployment dropped to 7.8 percent during September, several Republican spokesmen immediately claimed that the figures had been falsified. And despite factual corroboration that the numbers were accurately determined, some doubled-down on their allegation that a conspiracy to cook the numbers must have occurred. ” (pyschology today)

The consequences of this misinformation are dramatic for mediation and litigation.  First, this demonstrates why people might believe the statements of experts.  At first, the information seems to be plausible; second, it fits into the system of beliefs that the juror believes, and thus becomes even more plausible.  Finally, in order for a person to really break down the lie, that juror must really care.  Many jurors do care; but certainly others can’t be bothered.  They don’t care enough to break down the intricate lie.  Thus they decide to accept it.  At least this way, they can go home earlier.

Second, in mediation the problem persists with the parties.  Many times, regardless of what facts you might present to one side or the other, they simply won’t believe the facts.  Instead,  you must work to change their view within their belief system.  In other words, you must find something that they believe and apply it to convince them that the position that they have taken is contrary to their beliefs.   In order to do this you must understand the specific advocacy position as it relates to the negotiation, and then look to their interests and beliefs.

By Steven G. Mehta

How does a person’s self esteem affect his or her ability to make judgments about others?  Well a new study shows that a person is more likely to be biased against another person who is different if they have lower self esteem.

“This is one of the oldest accounts of why people stereotype and have prejudice: It makes us feel better about ourselves,” says Jeffrey Sherman of the University of California, Davis, who wrote the study with Thomas Allen. “When we feel bad about ourselves, we can denigrate other people, and that makes us feel better about ourselves.”

In their study, Sherman and Allen asked participants to take a an impossible test with 12 difficult questions.  No one got more than two items correct. However, half of the group was told that they scored well below average – creating a level of self consciousness and low self esteem.  The others were told their tests would be graded later. All of the participants then completed a testing of their prejudices.    The people who were feeling bad about their test performance showed more evidence of implicit prejudice.  The researchers also discovered that that people who feel bad about themselves show enhanced prejudice because negative associations are activated to a greater degree.

“If the problem was that people were having trouble inhibiting bias, you might try to train people to exert better control,” Sherman says. But his results suggest that’s not the issue. “The issue is that our mind wanders to more negative aspects of other groups. The way around that is to try and think differently about other people. When you feel bad about yourself and catch yourself thinking negatively about other groups, remind yourself, ‘I may be feeling this way because I just failed a test or something.'”

This research has interesting implications for litigation and adr.  First, in jury selection.   It might be helpful if you have a jury that is from a different background than your client to try and investigate issues regarding self worth, self esteem, and recognizing one’s place in the social society.  By doing so, you can attempt to find the persons who may be more prejudiced against your client.

Second, in ADR, it may be possible to try and change a person’s feelings about him or herself.  If a person is potentially biased about how the other side feels or acts, you might attempt to create an environment which is conducive to bolstering a person’s self esteem.  For example, you might compliment (only if true) a decision made during the mediation or actions taken previously by the person.  You could also change the topic to something that the person knows a considerable amount about.  By doing so, that person with self esteem issues may be able to demonstrate his or her expertise – and in turn raise self esteem for the moment.  All of this could be done before asking that person to consider the other side’s actions, response, or feelings.

Research Source:

Association for Psychological Science. “People with low self-esteem show more signs of prejudice.” ScienceDaily 23 February 2011. 24 February 2011 <http://www.sciencedaily.com­/releases/2011/02/110223151945.htm&gt;.

By Steven G. Mehta

There is a common feeling amongst trial lawyers that the first moments of a trial are often the most important. Indeed, there is research that shows that the jury has made its mind up in voir dire. Well new research suggests that people make decisions very quickly and often those decisions are not on the merits; but instead on other superficial factors.

According to researchers Christopher Olivola from University College London and Alexander Todorov from Princeton University, voters’ choices are heavily influenced by superficial, nonverbal cues, such as politicians’ appearance. People such as voters (or in trials, a jury) make decisions about candidates’ (or parties’) competence based on their facial appearance. The researchers were able to reliably predict outcomes of votes based on facial appearances of the participants.

The researchers also addressed the fact that appearance is most likely to influence less knowledgeable voters who watch a lot of television. In essence the researchers discussed that because voters (or the case of a jury, the jurors) need to navigate their way through volumes of information about the candidate or the party, it is not surprising that they take unconscious “mental shortcuts” to make their final decision.

Based on a computer model, the researchers were able to manipulate the appearance of candidates, which affected the votes regarding competence. They found that facial maturity and physical attractiveness are the two main criteria used by participants to make competence judgments.

Olivola and Todorov explained that “Getting people to overcome the influence of first impressions will not be an easy task. The speed, automaticity, and implicit nature of appearance-based trait inferences make them particularly hard to correct. Moreover, often people don’t even recognize that they are forming judgments about others from their appearances.”

This research could be very helpful in understanding how juries may make their decisions. Just like voters, the jury has a huge amount of information to sift through in order to make its decision. There are already studies that show that the more attractive a person is the more likely that the jury will vote for that person. Moreover, studies have also shown that the more attractive people get higher verdicts.

In that light it is also helpful to explain this process to a party during mediation. The more that the parties realize that the trial process is less about the merits and more about a beauty contest, the more likely they will not want a jury to make the final decision regarding the supposed merits. Story Source:

Journal Reference:

  1. Christopher Y. Olivola, Alexander Todorov. Elected in 100 milliseconds: Appearance-Based Trait Inferences and Voting. Journal of Nonverbal Behavior, 2010; 34 (2): 83 DOI: 10.1007/s10919-009-0082-1

By Steven G. Mehta

The legal and ADR might just have a new tool to use in their conflict resolution toolbox.  I recently wrote an article about this in the Daily Journal.  I thought you might like to see the content of the article…

Los Angeles Daily Journal, Friday March 26, 2010

Let A Global Audience Decide Your Dispute

By Steven G. Mehta

It is 8:30 a.m. in Department 9 ¾  of the Los Angeles Superior Court.  John Smith, an attorney for seventeen years arrives in the courtroom yawning slightly.  The Court clerk asks him for two business cards, which he obligingly gives even though he only has two business cards left in his wallet.  He sits down and now waits for the judge to appear so that he can attend the case management conference.  Another routine hearing on another employment dispute in which he is representing an employer in a case brought by a disgruntled former employee claiming wrongful termination.

The Judge quickly leaves her chambers and sits down at her chair.  “Good Morning counsel,”  she says.  “Good morning, your honor,” respond all the attorneys in the room.

The judge then calls the calendar saying, “The matter of Potter versus TMOM, Inc..”    John Smith approached the counsel table and identified himself, “Good morning your honor.  John Smith for the defendant.”   At the same time, the opposing counsel, a new attorney from the plaintiff’s office also identified herself.”

“Counsel.  I have reviewed your file,”  said the Judge.  “You have both agreed to alternative dispute resolution, Correct?”  Both attorneys answered “Yes.”

So far, this hearing was just another routine hearing with routine orders.  But what the judge was about to do was going to change the attorneys’ views of alternative dispute resolution for a long time to come.

The judge continued.  “I am then ordering you to both submit your dispute to sidetaker.com.”

“Excuse me, your honor,” said Mr. Smith. “Sidetaker.com.  What is that?”

“Sidetaker.com is a website where you can submit your dispute to anonymous third parties who will then vote on your dispute and will give you feedback to help you see a different perspective,” said the Judge.

“The site’s message “Let The World Decide Who’s At Fault.”  You wanted a jury trial counsel, well now you have one,” said the judge.

This story is fiction and has not happened in a courtroom – yet.  But what an amazingly interesting site.  What if all disputes in court used this site to find out what third parties think about their dispute?

Sidetaker.com let’s you air out your differences anonymously.  No matter the dispute. Sidetaker.com lets you get a third party perspective and get an indication of whether other people with agree with you or not.

Currently, many of the disputes that are on sidetaker.com are of a personal nature, such as disputes between spouses, neighbors, co-workers, and friends.  Take for example, one couple.  She claims that her husband attended a two day bachelor party in Las Vegas.  After that, he has acted suspiciously.  She believes he cheated.  She has now called all of his friends.  She stated, “When he got back, I could tell he was being nicer than he usually is but he was also fumbling over what he was saying when I asked him what went on. he said none of the guys did anything. He said he didn’t even talk to a single girl.”  He, on the other hand, claims that nothing happened  He further states that it was wrong to call his friends.  He said, “I never lie to my wife. We did a hell of a lot of drinkin’ up there but we never fooled around with any girls. I confessed I danced with a few and we hung out for a while but I never saw them after like 10 o’clock…and what really could happen before that?”

Well, according to Sidetaker.com, 55% of the over 2400 responses agreed with the wife.   Here is a comment from a male user: “Usually, when you can tell a difference in attitude, it’s a pure sign of wrongdoing. I’d have to say he did something wrong;”  Another man commented as follows: “You got caught! I can’t believe you couldn’t come up with a more believable excuse than what you did…Sorry but I’m going to side with Nikki. Admit it because it’s much harder to keep a lie going than it is to tell the truth.”

The fascinating thing about sidetaker.com is that it is an automatic and quick mock jury.  I remember having mediated a premises liability case where a woman tripped and fell in a hole  The actual accident had been videotaped and broadcast on youtube.com.  There had been many comments from viewer describing different perspectives relating to the accident.  I was able to print out those comments and use them during the mediation to assist the parties to evaluate the case and re-evaluate their extreme positions.

Sidetaker.com does a similar thing, but with voting.  The obvious problem with sidetaker.com for legal disputes is that the parties may not submit their dispute voluntarily.  But that is where – in this hypothetical world – a court could require the parties to submit the dispute.  The parties would get fascinating feedback about the dispute.  Many times, the parties’ extreme position could get tempered because of the comments made by the users.  Just as with focus groups, the comments of the thousands of jurors could help one or both sides realize that their dispute is not cut and dry and that there is room for compromise.  Otherwise, if they don’t decide the dispute, then perhaps one of those thousands of anonymous users will be on their jury.

Often, disputes end up in litigation and in trial because the one or more of the parties fervently believe that they are right and that there is no other way of seeing the matter besides their own.  Focus groups, mock juries, and sidetaker.com can help clients and attorneys better understand the different perspectives.  By understanding those perspectives, they will be better armed in being able to resolve their disputes short of costly and divisive trials.

Well, the story was fictional.  The website is real.  The concept is hypothetical.  But the principal is sound.  Hopefully, the resolution of disputes will be easier with sidetaker.com

Steve’s Book

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