The critical takeaway from any meaningful discussion about primacy theory and its role in persuading jurors is often the one that is least discussed. Those who tout the importance of primacy theory often talk about priming the jurors to achieve victory, but research shows the real takeaway should be to avoid the early mistakes that cost you the trial. In short, you cannot win your case in jury selection or opening, but you can lose it there.
Everybody knows first impressions are important, but some research shows that negative first impressions are much more powerful than neutral or positive first impressions. This is called the negativity bias and it has been investigated extensively by academic researchers. Specifically, negativity bias recognizes that negative experiences or perceptions have a greater effect on one’s psychological state than neutral or positive experiences. Continue reading →
The other day I was watching FBI Director Comey’s testimony to Congress regarding the FBI’s Clinton email investigation and findings. It began as a test of my mental fortitude, but I found that I enjoyed watching how Comey handled the questions and delivered his responses. In particular, I admired the way he kept his composure while still being strong and, when necessary, a bit indignant.
Comey wasn’t angry or rude. Instead, when needed, he used righteous indignation. A good example of this came when Comey was being “asked questions” by Florida Representative John Mica. Towards the end of the allotted five minutes, Comey had had enough of the insinuations and thinly veiled attacks on his investigation and conclusions. He sat up a bit straighter, talked a bit louder and clearer, and he stated, “I hope what you’ll tell the folks in the café is ‘look me in the eye and listen to what I’m about to say. I did not coordinate that with anyone. The White House. The Department of Justice. Nobody outside the FBI family had any idea what I was about to say. I say that under oath. I stand by that….’” He ends by saying, “I want to make sure I was definitive about that.” You can watch his testimony here. Continue reading →
Reptile has become a popular topic of discussion for attorneys across the country, perhaps because folks like myself continue to write about it. Most of us have witnessed the fall-out, whether it be panicked pleas for feedback on defense forums or pre-trial motions to preclude “Reptilian” tactics. I’ve written extensively on defense strategies to counteract Reptile, but the more important question is whether or not defense attorneys should even worry about it in the first place.
If we focus on the science alone, this discussion quickly ends. Keenan and Ball claim to have derived their theory from the work of Paul MacLean, a neuroscientist who did most of his work in the 1950s, 1960s, and 1970s. MacLean proposed the triune theory of the brain, a three-component theory of the brain. One of those components, under MacLean’s theory, is the reptilian complex, which houses our survival instincts. Unfortunately for MacLean, contemporary research has shown that many of his assumptions and conclusions associated with the triune brain theory are wrong. Continue reading →
If you’re a woman, there’s probably been at least one time in your life when someone (my money says it was a man) has told you that you “need to relax.” I’ve been told this a few times and, each time, the person pretty quickly realized it wasn’t the smartest move. Recalling these events, two thoughts come to mind: 1) I can honestly report that I wasn’t out of control, yelling, or being irrational. Instead, I was simply strongly asserting an argument about an issue – usually something political. And, 2) I’ve never witnessed or participated in a “heated” discussion and heard someone tell a man who is aggressively arguing his point that he should “relax.”
I was reminded of all of this as I read “One Angry Woman: Anger Expression Increases Influence for Men, but Decreases Influence for Women, During Group Deliberation.” The research, conducted at Arizona State University and the University of Illinois at Chicago, is a fascinating look into how a man’s versus a woman’s “anger” is perceived and then utilized by others when making decisions. While years of research (and real life experiences) show that women are often subjected to harsh criticism for being “too emotional” and are often labeled as “Bitches” (and worse) when behaving in similar ways to men (i.e., being aggressive or dominant in work situations), this particular study goes one step further and explores how aggressively advancing one’s position is undermined by simply being a woman. Continue reading →
Plaintiffs’ attorneys approach case development and presentation in a multitude of both predictable and unpredictable ways, but none is more dangerous to defendants than what I call the “referendum” strategy. In short, the “referendum” strategy is a clever strategy that, when successful, allows plaintiffs to sidestep their burden of proof under the law and instead, create what is essentially a reverse burden of proof for the defense. It shifts the focus of the case to the defense and forces defendants to cope with a barrage of seemingly-disorganized attacks. In reality, what can sometimes seem like disorganization and foolish decision-making by a plaintiff’s attorney is often a very calculated attack. The results can be devastating. The “referendum” strategy is often the source of headline-grabbing or record-breaking damage awards. Continue reading →