by Grant Rost

We are in a new world, aren’t we?  I am starting to get this strange feeling that the vocational “me” is really just a hologram—merely an image of me that others interact with.  I see him too.  He’s there in the lower corner of my screen, and he can’t even make eye contact with me!  Perhaps, he feels as estranged from me as I do from him.  This is our new world for a moment, let’s hope.  It makes me wonder where to look.  Surely, I’m not alone in this.  Each of you has wondered the same thing: look at the camera, look at your materials, or look at the people on your screen.  And if we teach advocates, how should we advise them in this new medium?  This month, I’m reviewing a recent study on how a presenter’s gaze and body position affects learning on the other side of the screen.[1]

The study was fairly simple.  Participants watched one of six different presentations teaching the same subject.  In each of the six presentations, the presenter’s eye gaze and body position changed.  Participants were then tested on the subject taught and those results were matched to the presenter’s eye gaze and body position.  There were three eye positions employed.  In the first, the presenter appeared to “look” at the material next to her on the screen—like a weather forecaster.  The courtroom equivalent is a lawyer next to a white board or demonstrative.  In the second, she looked directly at the camera.  In the third, she looked away from the material and the camera, as if speaking to an in-person group to her left.  There were three body positions tested as well: torso turned toward the material, toward the camera, or away from the material and the camera.  The presenter only ever appears from the waist up.

Before I share the results, it’s worth noting that the authors cite to a host of other materials which have revealed the importance of looking directly at one’s camera while communicating or teaching digitally.  If you are the type who looks at the people on your screen instead of the camera, don’t fret too much.  There is good data that people watching you sense that you’re trying to making eye contact with them and still feel a level of connection to you, even if you appear to them to be looking downward and not staring into their soul.[2]

The study revealed that the body position of the presenter simply didn’t matter.[3]  Eye tracking data from participants showed they rarely looked at the presenter’s body and her body position didn’t affect learning or retention.[4]  Second, the study showed that the participants who viewed the presenter “looking” at the material she was presenting—referred to as “guided gaze”—scored highest on a subsequent test.  The participants who saw her looking right at them—referred to as “direct gaze”—scored a little lower.  Finally, those who saw her teach with her head turned from the material and the camera scored the lowest.[5]

Though there is no good argument for the averted gaze, the data reveals that the guided gaze, where material is co-apparent with the presenter, and the camera-staring direct gaze, where it isn’t, are essential tools for our new world of computer teaching and persuasion.

[1] Zhongling Pi et al., Instructor Presence in Video Lectures: Eye Gaze Matters, but Not Body Orientation, 144 Computers & Educ. 1 (2020), https://doi.org/10.1016/j.compedu.2019.103713.

[2] See generally David M. Grayson & Andrew F. Monk, Are You Looking at Me? Eye Contact and Desktop Video Conferencing, 10 ACM Transactions on Computer-Hum. Interaction 221, [PINCITE] (2003).

[3] Pi et al., supra note 1, at 5.

[4] Id.

[5] Id. at 5-6.

by Grant Rost

Consider an argument you made to your jury just before they deliberate and hand you your hard-fought victory.  Did you persuade them or did you convince them?  Perhaps you just dissuaded them from finding for the other side.  However, if you dissuaded them, why can’t you also say that you dis-convinced them?  Or disvinced them?  Don’t try “deconvincing” either as that, too, is a dead end.

So, what gives?  Why can you persuade and dissuade but you cannot both convince and dis-convince?  It’s likely the case that you have never considered that while “dissuade” is the antonym of persuade there is no such lexicological opposite to the word “convince.”   According to Professor Adelino Cattani there is a very good reason for this—and it’s not simply a trick of the tricky English language. This missing antonym is missing from other languages too and, for the advocate, it’s worth thinking about whether persuading and convincing are really the same thing. [i]

Persuading and convincing, suggests Cattani, largely employ two different methods and seek different aims.  Persuading largely employs the powers of rhetoric, which can be both artful but largely manipulative, whereas convincing employs the powers of logic and sets of rules but can be spoiled by fallacious argument.[ii]  The dialogue of persuasion “aims at modifying people’s opinions and behaviours” which is why persuasion and dissuasion can work as opposites and produce actions or omissions in the receiver.[iii]  The dialogue of conviction, however, seems to refer “to the realm of thinking, not that of doing; it does not serve to induce someone to act, but to gain intellectual agreement or assent” and is, thus, more focused on the addressee than what the addressee can do.[iv]  Persuading is more like a gaming process, artful but still manipulative to gain its advantage.  Convincing, however, is more like a demonstration of one’s proofs—showing, rather than telling.[v]  One can begin to see why “convince” has no antonym.

I see two quick points to ponder for the trial advocate reading this blog post:  The first is that it might be worth considering which things one must persuade upon and which things one must convince one’s jury about.  A closing argument can gain more structure and become more purposeful with a little meditation on these two ideas.  Second, there seems to me to be a real difference in the rhetorical power of the two words in the minds of jurors and judges who will largely regard them as interchangeable.  It might just be me, so let me take the two terms for a test drive in a hypothetical courtroom:  It seems quite a bit more powerful to ask a jury if the state has convinced them that the defendant is the man who committed the crime than to ask them if the state has persuaded them to that fact.  What do you think?  Have I persuaded you or are you convinced?

* I have to give special thanks to Nathan Wilson, a rising 3L at UNC, who has helped me twice now with my Bluebook citation formatting for this blog—a task I loathe.  Nathan is the kind of student I wish I could clone and hand out to other law schools.

[i] Adelino Cattani, Persuading and Convincing, U. Windsor (June 4, 2020) https://scholar.uwindsor.ca/cgi/viewcontent.cgi?article=2528&context=ossaarchive&fbclid=IwAR3LxAMt0MnRGpsVk1pIo3RK87C8x0gdBkriIiIgHNinoM7luHdEst8rrcI.

[ii] Id. at 2-3.

[iii] See Id. at 2.

[iv] Id. at 3-4.

[v] See Id. generally.

by Jules Epstein

It may be silly but bears repeating – experts are people too, subject to a variety of influences that may distort their thinking, approach and conclusions without realizing this is occurring. This understanding of expert non-neutrality is nothing new – the 2009 report STRENGTHENING FORENSIC SCIENCE – A PATH FORWARD emphasized this.

Some initial and striking research has uncovered the effects of some biases in forensic science procedures, but much more must be done to understand the sources of bias and to develop countermeasures…The traps created by such biases can be very subtle, and typically one is not aware that his or her judgment is being affected…Decisions regarding what analyses need to be performed and in what order also can be influenced by bias and ultimately have the potential to skew results.

Id., 184-185.  And the audience for expert testimony – often, the courts – is sometime oblivious to this as well.  This arises from the perception of neutrality and objectivity that understandably comes along with the entry of science into the courtroom.

A new article offers a comprehensive paradigm for grasping and potentially responding to expert bias. “Cognitive and Human Factors in Expert Decision Making: Six Fallacies and the Eight Sources of Bias” (Anal. Chem. 2020, 92, 7998−8004, available at  https://pubs.acs.org/doi/10.1021/acs.analchem.0c00704 ) is among the latest from researcher and cognitive psychologist Dr. Itiel Dror.

Dror begins with his list of prevalent fallacies, ones he has identified in years of studying and training experts and the consumers of expert knowledge – judges and lawyers:

• Bias is a problem only with “corrupt and unscrupulous individuals” and thus is a matter of personal integrity.
• Bias occurs only among the “bad apples” of the community, people who have yet or do not care to learn “how to do their job properly.”
• There is no bias as experts are immune as long as they perform competently and with integrity.
• When forensic analysis is based on the use of technology, instrumentation or other non-human machinery there can be no bias.
• The “blind spot” phenomenon of seeing other experts as being biased but not oneself.
• What Dror calls “Illusion of Control: ‘I am aware that bias impacts me, and therefore, I can control and counter its affect. I can overcome bias by mere willpower.’”

The list is not just anecdotal; for each, Dror identifies confirming sources.

Why is understanding of the fallacies essential?  Without having them as a starting point, experts will be blinded to their own limitations, and those who retain, rely on or challenge experts will be unable to critically assess their work.

Dror offers more.  Having identified the fallacies that impede fair assessment of whether a particular expert’s approach or conclusion was hindered by biases, he then identifies eight forms of bias to test for.  This is his illustration.

The article walks the reader through how each level has a risk of biasing the examination and/or the resulting decision.

• The case specific circumstances, such as the data/material being examined, the reference material [e.g. a “target suspect” whose features can affect what is being looked for in a crime scene sample or a latent print], and contextual domain irrelevant information.
• Environment, culture and  experience include base rate [e.g. what the ‘normal’ conclusion is when finding certain features], organizational factors such as “allegiance effect” and “myside bias,’ and education and training that may predispose an examiner to look at evidence from only one or limited perspectives.
• Human nature is the last confounding source of bias, ranging from the purely individualistic motivation and belief system to the general aspects of decision-making such as top-down thinking.

To keep these from merely being labels, Dror provides illustrations.  How might reference materials bias?  “[T]his source of bias is not limited to circumstances that have a “target” suspect per se, but can also arise from pre-existing templates and patterns, such as in the interpretation of blood pattern analysis or a crime scene. It can even impact what color is observed.”

Contextual information can have its own ramifications.

In toxicology, for example, contextual information can bias testing strategies. Consider, for instance, when a post-mortem case is provided with contextual informant, such as “drug overdose” or/and that “the deceased was a known to have a history of heroin use.” Such information can impact the established testing strategies, such as to go straight to the confirmation and quantification of a limited range of opiate-type drugs (morphine, codeine, 6-monoacetylmorphine, and other heroin markers), without running the other standard testing, such as an immunoassay or looking for other opioids that may have been present (e.g., fentanyl). Hence, the contextual information caused a confirmation bias approach and deviation from the standard testing and screening protocols.

So, too, can “base rate,” illustrated by an example from forensic pathology.  If there is a hanging that results in cerebral hypoxia, that correlates primarily with suicide; and if there is strangulation resulting in the same condition it correlate highly with homicide.  But occasionally there can be homicides by hanging; and failure to consider this can skew not only the ultimate determination but “other stages of the analysis, even the sampling and data collection, as well as detection of relevant marks, items, or signals, or even verification.”

Are there solutions or at least mitigating steps to take?  Some are clear – preventing exposure to domain irrelevant material, using “linear sequential unmasking”  – and others are ore difficult, as they involve overcoming defensiveness on the part of examiners that bias is not a problem for them.  But without a fundamental understanding of bias and its sources and a corresponding system for checking and correcting for bias, the risk of error in core forensic analysis will persist.

By Grant Rost

We have all seen it.  We have all seen the lawyer or the student so involved with her notes or his script that they seem to have uncoupled from the courtroom itself.  I take that moment to study the faces of the jury.  What are they doing while the scribe at the podium has a private waltz with his scribblings?  In most instances, I see that the jury has also uncoupled.  Cognitive science has shown that the advocate here has not simply made a misstep with her dancing partner, but has missed the opportunity for the most amazing kind of dance: a cognitive coupling.[1]  A brain waltz taking place between two or more people.

The brain science behind “cognitive coupling” has been around for more than a decade, but the phenomenon might be new to you and is almost certain to be new to your students or the other trial warriors you work with.  Cognitive coupling is an electrical waltz between the brains of a speaker and listener—a fascinating Rogers and Astaire unison of brain activity shared when two people are truly involved in that phenomenon we so dismissively call “communication.”  Let us break down the science a little more from just one important study on the subject.

To study brain activity in both a speaker and listener, researchers recorded a subject telling a story that was personal to her and told without direction.[2]  While her voice was recorded, researchers also recorded her brain activity by fMRI.  This recorded story was then played for other subjects while their brains were being scanned by fMRI for processing activity.  As a control, they had someone tell a story in Russian and played that story for English speakers who knew no Russian at all.  I have spoiled the ending already, haven’t I?  The brain activity seen in the speaker, after a short processing delay, was mirrored in the listener.  When non-Russian speakers listened to the Russian storyteller, there was none of this mirrored coupling at all.  To tie up the loose ends that could account for the mirrored brain activity, the researchers had enough data to conclude that the speaker’s brain activity was not the result of hearing herself speak her own story.[3]

It gets better though.  The easier the communication was to understand, the delay between the speaker and listener’s mirrored brain activity shortened toward synchronicity.  Even better: When the listener could predict where the speaker was going, the listener’s brain activity would “predict” the brain activity of the speaker.  The speaker’s brain would then mirror the activity of the listener’s “prediction.”  Researchers next compared the brain activities of the various listeners in the study against one another and found that those, too, synced up in a marvelous dance.[4]

So, why should this matter to trial lawyers or trial advocacy professors and students?  It is the difference, as I see it, between communicating and communion.  I can communicate and yet completely fail at communion—the latter being quite simply defined as “sharing.”  In fact, the researchers concluded that the stronger the cognitive coupling activity between speaker and listener, “the better the understanding” of the story being told.[5]  How beautiful!  I often share the science of cognitive coupling with my students to refocus their goals in trial.  It cannot all be about the words on the paper.  It cannot be all about conveying the content we are certain will make or break our proof.  Our goal should be a connection at the electrical level, where jury and advocate swing, and mirror, and move, and predict, and dance the dance—all while opposing counsel sits and broods on the bleachers at the side of the gymnasium, wondering how he might cut in.

[1] Also referred to as neural coupling or brain synchronization, among other similar names.

[2] Greg J. Stephens et al., Speaker-Listener Neural Coupling Underlies Successful Communication, 107 Proceedings Of The National Academy Of Sciences Of The United States Of America, no. 32, 2010, at 14425, https://doi.org/10.1073/pnas.1008662107

[3] Id. at 14427

[4] Id. at 14426

[5] Id. at 14427