WHAT WERE (WEREN’T) THEY THINKING

Jules Epstein: WHAT WERE (WEREN’T) THEY THINKING

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AND NOW FOR SOMETHING NEW

Grant Rost: And Now For Something New

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REPEAT AFTER ME

Jules Epstein: REPEAT AFTER ME

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THE VIROLOGY OF AUTHENTIC ANGER

Grant Rost: The Virology of Authentic Anger

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PERSUASIAN SCIENCE

Jules Epstein: PERSUASIAN SCIENCE

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FUNDAMENTAL ATTRIBUTION ERROR

Jules Epstein: FUNDAMENTAL ATTRIBUTION ERROR

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WILL OUR ROBOT OVERLORDS BE GOOD STORYTELLERS?

Grant Rost: Will Our Robot Overlords be Good Storytellers?

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RAP AS EVIDENCE

Jules Epstein: RAP AS EVIDENCE

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THE WORDS IN A SENTENCE OF GUILT

Grant Rost: THE WORDS IN A SENTENCE OF GUILT

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ORDER AS A FORM OF PERSUASION

Jules Epstein: ORDER AS A FORM OF PERSUASION

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MATERIAL & METAPHOR

Grant Rost: MATERIAL & METAPHOR

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FLAG THIS

Jules Epstein: FLAG THIS

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LOVE CHOCOLATE AND STORYTELLING

Grant Rost: LOVE CHOCOLATE AND STORYTELLING

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THE PERSUASIVE POWER OF UP

Grant Rost: THE PERSUASIVE POWER OF UP

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IS A PICTURE INDEED WORTH THE PROVERBIAL THOUSAND WORDS?

Jules Epstein: IS A PICTURE INDEED WORTH THE PROVERBIAL THOUSAND WORDS?

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WOULD YOU OR WILL YOU? QUESTIONING YOUR JURY AND SPARE TIRE.

By Grant Rost

It’s finally starting to get cooler and October is upon us. I think instantly of Keats’s poem, Ode to Autumn, in which he lovingly describes how the season itself conspires with the sun to produce fruit, and imagines the season, personified, sitting patiently by a cider-press to watch “the last oozings hours by hours.” I’m not nearly so winsome about the season. I am conspiring with my stomach to consume as many new pumpkin-spice flavored sweets as I can. My level of commitment to this annual task is quite real. In fact, last autumn, I found myself involved in a deep and meaningful conversation with one of Liz Lippy’s mock trialers over the wonders of pumpkin-spice flavored Frosted Mini-Wheats. By Christmas, I was oozing myself into jeans that weren’t nearly as loose as they were on October1st. A few weeks after Christmas I asked myself a New Year’s question: “Will you exercise?” Of course I will. “I will exercise!” I shouted into the void. I was wrong—about a great many things, actually. 

In voir dire we might, often because of the pressure of a ticking clock, ask our jurors questions such as “Will you fairly consider the defenses we will raise against the claims here?” or “Will you presume throughout the trial that Dr. Jonathan Crane is innocent of the charges?” As it turns out, clock or no clock, science suggests we could be wrong about trying to secure commitments that way and there might be a better way—a brain way—to try to produce the fairness or presumptions we want. 

Way back in 1980, a clever researcher by the name of Steven Sherman decided to run some interesting experiments on the citizens of Bloomington, Indiana.1 In one experiment, he had a researcher call up random numbers from the phone book. The people surveyed were asked  one of two things. The first group was told that a survey was being conducted by the university because the researcher heard the American Cancer Society (ACS) was calling people asking for help. The researcher then asked, “If they called you, would you volunteer 3 hours to help them with their cancer research funding drive?” Three days later, the same people were called by a researcher posing as a solicitor from the ACS and asked if they actually would commit the three hours. None of those surveyed knew the two calls were related in any way. The second group, however, was called just by the presumed ACS solicitor and asked, “Will you help us by giving three available hours to our cancer research funding drive?”2 

Of those in the latter group—asked immediately to volunteer—only 4% volunteered. However, those in the first group who were first asked to predict their later behavior…well, nearly half of everyone in that group predicted they would volunteer if asked. When they were ultimately asked to volunteer, 31% of everyone in this “make-a-prediction” group actually did volunteer. More importantly, 92% of those people who actually did volunteer on the second call  were people who predicted they would volunteer!3 A rather startling number when one considers that only 4% of test subjects volunteered immediately without first making a prediction about their future behavior. The author attributes the high-percentage prediction of one’s later volunteerism to human beings following a kind of internal, moral script or “stereotyped response sequence” in which we humans will tend to over-predict our own moral goodness. If you’re saying to yourself, “Well, shoot, I recognize all this behavioral stuff as the self-fulfilling prophecy!” then you’re doing much better than Steven Sherman who decided 41 yearsago to call  it “the self-erasing nature of errors of prediction.” 

Now here is the fun part. Sherman is perhaps more whimsical than his hyper-technical word choice suggests. He conducted another experiment similar to that above. Here, one test group was asked to predict whether they would sing the Star-Spangled Banner over the telephone  if they were later asked to do so on a different phone call. The second group was just asked to belt it out on the spot—no prediction. In the first experimental group, 44% predicted they would sing it and 40% of the group ultimately sang it when asked a few days later. However,a full 72% of those directly asked to sing it gave proof through the call that they were up to the musical task asked of them! I am sure you spotted a bit of a difference in singing as opposed to volunteering for cancer research: Those predicting whether they would volunteer for cancer fundraising were predicting their own moral behavior. Those predicting their willingness to sing  were not following any similar moral “script.” By now, we can see the potential applications tothe formatting of questions on voir dire, so I need not spell it out for the trial lawyers in the room. 

I must, however, and for the sake of my future autumn-involved, pumpkin-spice- consuming self, mention one related study. As you might imagine, marketers have seized on this self-fulfilling prophecy phenomena. A marketing professor at Washington State University conducted an experiment on people who had a gym membership but hadn’t attended their gym in  at least a month.5 The first subject group in the experiment was asked if they expected (read: “predicted”) they would use the gym in the next 7 days. Like Sherman’s experiments above, the second experimental group was simply asked if they were members of a health club and not asked to predict anything. Researchers then tracked the gym attendance for both groups over the    following week and then for 6 months afterward. 60% of those asked to predict their attendance said they thought they would attend the gym during that week. However, only 7% of those not asked to predict their attendance actually did attend the gym that week. Sherman’s study above helps us understand that over-estimated prediction of future good behavior. But here’s the whip cream on that slice of pumpkin pie: Over the next six months, those who were asked to predict their usage ended up using the gym twice as much as those who made no prediction at all!6

Yes, there is something wonderful and fascinating about autumn. The intermittent, trundling parade of Monarchs flying south, guided by some mysterious and magnetic pull. The brassy chimes of dry leaves stirred by northern winds. The last, sweet oozings from the cider press. Pumpkins.Spices for pumpkins. I am just going to say that I predict this fall will be no different from the last—andI will be full-filled.

Notes

  1. Steven J. Sherman, On the Self-Erasing Nature of Errorsof Prediction, 39 J. PERSONALITY & SOC. PSYCHOL. 211 (1980). 
  2. See Id. at 217.  I am really summarizing the spirit of the questions asked and not directly quoting the questions posed. Even Sherman doesn’t provide the words used for the questions posed to each group. I use “would you” and “will you” here to draw the distinction between being asked to predict and being asked to commit. 
  3.   Id. 
  4. Id. at 218.
  5. Eric Spangenberg, Increasing HealthClub Attendance ThroughSelf-Prophecy, 8 MKTG.LETTERS 23 (1997).
  6. Id. at 27.
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“Do you see the duck?”

Jules Epstein

Eyewitness error, the product of inadequate perception and/or failed or altered memory, is generally the ‘stuff’ of criminal procedure courses.  “The vagaries of eyewitness identification testimony” language dates back to Justice Frankfurter, and courses on wrongful conviction remind students that in the DNA exoneration cases 70% or more involved the mistaken claim of “that’s the person.”  But the lessons of eyewitness error are not limited to the practice of criminal law; and indeed are not limited to testimony in civil and criminal cases where a person is being identified.  Rather, the lessons are those of the limits of memory in general, and as such need to be drawn upon when training our students (and ourselves) in better client and witness interviewing techniques (and in understanding why a courtroom account of an event may be a far cry from what actually happened months or years earlier). 

Take a look at the below image.  It was made famous nearly 70 years ago by the Austrian philosopher Ludwig Wittgenstein in his posthumous Philosophical Investigations (1953) to explain “aspect perception,” but was first used in 1899 by American psychologist Joseph Jastrow.  When used in trainings for lawyers and investigators handling eyewitness-based cases, a blank screen is shown and the following instructions are provided: “I am going to show you an image for 3-4 seconds.  Please make note of what you see.”  The presentation advances to the next slide where the image appears, and after 3-4 seconds the screen goes blank.  When the audience is asked “what did you see,” some see a duck but others a rabbit.  

DUCK

The lesson in eyewitness cases is easy – people see some details and miss others, and an identical object can have different meanings and appearances depending on the viewer’s predilections and orientation. 

But wait.  The title of this article is not “make note of what you see” but instead is “do you see the duck?”  That adds a confounding problem, one that leads to better interviewing techniques.  The problem here is simple – by suggesting what the observer will see, it creates an expectation.  And when interviewers suggest what the witness recalls, it can do precisely that – creates a new memory. 

This second point is supported by now-legendary research by Elizabeth Loftus.  Participants viewed a brief video of a car-on-car accident and then were asked one question: About how fast were the cars going when they (smashed / collided / bumped / hit / contacted) each other?”  Different participants had different verbs.  The results were stark – the more potent the verb, the faster the speed estimate: 

chart, contacted, hit, bumped, collided, smashed

The problem did not end there.  A follow-up interview conducted one week after the film was shown asked whether there was any broken glass.  There was none in the film.  A significant number of those who had been asked whether the cars “smashed” recalled broken glass. 

chart responses

https://www.simplypsychology.org/loftus-palmer.html (last visited July 15, 2021). 

What are the lessons, then, for students when they study interviewing (and when they weigh how reliable deposition or trial testimony actually is when offered months or years after an event)?  First come the general principles of memory science – perception is often inaccurate or incomplete to begin with, and even if a witness will never forget the gist of an event (who will ever forget September 11, 2001) that person loses detail memory within hours and then progressively over time (think 9/11 – which tower was hit first, and what airlines were involved). 

With that fragility of memory comes the need for better modes of eliciting accurate memory.  The rule is simple – don’t ask “do you see the rabbit” or “how fast were the cars going when they smashed?”  Words trigger beliefs or affect perception.  Instead, turn to more accurate modes of interviewing [note  “interviewing,” not “interrogating”].  And this is where eyewitness research again offers tools for all forensic investigations – the cognitive interview. 

Developed in the 1980 and 90s, the cognitive interview has various iterations but in its basic formulation has a series of stages: 

  • Establish rapport with the witness 
  • Let the witness first set the scene/environment (sometimes accomplished by asking the witness about general activities and feelings from the day at issue) 
  • Making an open-ended request for a narrative, letting the witness speak and later going back for details and follow-up 
  • Suggesting that the witness recount the events from more than one perspective, describing what they think someone else at the scene or even the perpetrator saw 
  • Asking the witness to tell the story backwards, from the ending to the beginning 
  • Instructing the witness to share all details, no matter how trivial 

Is this actually better?  In one study, test subjects observed a video of an event and then were questioned 48 hours later in one of three ways – a standard police interview, under hypnosis, or with the cognitive interview.  In terms of the number of facts that were recalled accurately, the results were stark: on average, those with the cognitive interview recalled 41.2 facts, those under hypnosis 38, and those questioned in the typical police format 29.4. 

Teaching about eyewitness error is critical as we explain the limits of trials and the weaknesses inherent in the criminal investigation process; but lessons from eyewitness research are memory lessons and should inform our teaching of witness interviewing and the limits of witness [or client] accuracy. 

Special thanks to Temple Law Professor Ken Jacobsen, who teaches Interviewing and Negotiation; and University of Pittsburgh psychology Professor Jonathan Vallano, an expert in eyewitness memory and cognitive interviewing, for their critical input. 

Resources: 

For the latest book on the science of memory, see REMEMBER by Lisa Genova (https://www2.law.temple.edu/aer/can-we-trust-memory/)  

 For the original duck-rabbit research, see https://en.wikisource.org/wiki/Popular_Science_Monthly/Volume_54/January_1899/The_Mind%27s_Eye 

For “aspect perception” see https://qrius.com/what-is-aspect-perception/ 

For the basics of cognitive interviewing see https://www.simplypsychology.org/cognitive-interview.html 

For how many details we forget, see Hirst et al, Long-Term Memory for the Terrorist Attack of September 11: Flashbulb Memories, Event Memories, and the Factors That Influence Their Retention, Journal of Experimental Psychology 2009, Vol. 138, No. 2, 161–176 https://psycnet.apa.org/buy/2009-05547-001  

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MINIATURE GOLF, STEREOTYPE THREAT, AND SUPPORTING OUR STUDENTS

by Jules Epstein

A number of college students were tested on their ability to play miniature golf. “All were told that they would complete a brief questionnaire, perform a sports test that was based on the game of golf, and then answer questions about their performance after the test was completed.” But one extra factor was added: Half were told the test was of “natural athletic ability [NAA]”; the others were told this was a measure of “sports intelligence [SI],” a.k.a. “the ability to think strategically during an athletic performance.”

The results were stark. White students who were told the test measured SI played golf better (23 stroke average) than those told it was a test of NAA (27 stroke average). Dishearteningly, Blacks who were told the test was for SI performed more poorly than those told it was testing NAA.

The study was Stone, J., *Lynch, C., *Sjomeling, M. & Darley, J. M. (1999). Stereotype threat effects on Black and White athletic performance. Journal of Personality and Social Psychology, 77, 1213-1227. But what does miniature golf have to do with law students studying advocacy or doctrinal subjects such as Evidence?

Look out at a law school advocacy classroom and (hopefully) you will be confronted with a sea of faces from diverse backgrounds. A natural reaction might be that since they all were accepted at law school, made it through first year, and now are 2Ls, they are all equally comfortable at the performance tasks we will be giving them. Perhaps we need to think again. Certainly we need to proceed with care and affirmation.
Valerie Harrison and Kathryn Peach D’Angelo, in their exceptional book DO RIGHT BY ME: LEARNING TO RAISE BLACK CHILDREN IN WHITE SPACES, explain that “Black students in a predominantly white school may feel pressure that white students do not experience to dispel the stereotype of intellectual inferiority. The extra pressure to succeed can…deplete the student’s memory[] or require energy to suppress negative thoughts, which means that less of the student’s energy and effort can be focused on the task.” Id. at 103-104.
The label for this phenomenon, studied for a quarter-century, is “stereotype threat.” It has been defined alternately as
• When people are aware of a negative stereotype about their group, they often worry that their performance on a particular task might end up confirming other people’s beliefs about their group. Psychologists use the term stereotype threat to refer to this state in which people are worried about confirming a group stereotype. https://www.thoughtco.com/what-is-stereotype-threat-4586395
• [N]egative stereotypes raise inhibiting doubts and high-pressure anxieties in a test-taker’s mind, resulting in the phenomenon of “stereotype threat.” Psychologists Claude Steele, PhD, Joshua Aronson, PhD, and Steven Spencer, PhD, have found that even passing reminders that someone belongs to one group or another, such as a group stereotyped as inferior in academics, can wreak havoc with test performance. https://www.apa.org/research/action/stereotype
Research studies have shown the following:
• When students were asked to note their race on a questionnaire prior to taking a vocabulary test, Black students scored lower than White students and lower than Black students who were not asked about their race. https://www.thoughtco.com/what-is-stereotype-threat-4586395
• When women were given a math test, some were told that men and women had performed equally well on this type of challenge and others were told that men and women scored differently. Those who received the latter type of information scored lower than those told that men and women did equally well. All were “top performers” in math. https://www.apa.org/research/action/stereotype
These are exemplary of numerous studies confirming the phenomenon of stereotype threat. They leave two questions. How can such threats be mitigated or removed; and is there anything in how we teach advocacy skills that might engender such threats?
Without studies in the law school (and skills course) contexts there aren’t specific proven preventive or ameliorative steps. But drawing from the numerous studies in other educational setting, some possibilities emerge. These include:
• Having a diverse faculty.
• Encouraging self-affirming reflections before or at the beginning of a semester. [One option is to ask every student to submit a paragraph or two listing what strength(s) or trait(s) the student believes will make them good advocates and to elaborate on why these are positives. This proposal models ones detailed in the Cohen et al paper listed in the resources section, below, and in the book THE GUIDE TO BELONGING IN LAW SCHOOL by Professor McClain.]
• Affirming abilities and performances.
• Showing videos or having demonstrations of skills using diverse students rather than only Whites.
• Having testimonials (live or video) of students of all backgrounds explaining how, even if difficult at the beginning of the course, they gained the skills and excelled.
• Finding video clips of more than My Cousin Vinny – whether Hollywood or actual trial recordings – where the lawyers are from diverse backgrounds.
• Making clear that the skills practices are not a test but a tool for learning. The same may be true with practice exams in doctrinal classes.
• Avoiding any messaging that certain skills are proxies for or correlate with intelligence or that might trigger concern over stereotypes (e.g., critiquing attire or speech patterns).
I don’t claim expertise here. There is more to be studied and learned, but one thing is beyond dispute. Stereotype threat is real, and ‘disabling’ and avoiding triggering it should be core to our teaching and coaching.

For more resources beyond those cited here, see
Claude M. Steele, WHISTLING VIVALDI, W.W. Norton & Co. (Norton 2010)
Russell McClain, THE GUIDE TO BELONGING IN LAW SCHOOL (West, 2020)
https://www.learning-theories.com/stereotype-threat-steele-aronson.html
http://www.ascd.org/publications/educational-leadership/nov04/vol62/num03/The-Threat-of-Stereotype.aspx
https://www.sciencedirect.com/science/article/abs/pii/S002210310191491X?via%3Dihub
https://www.reducingstereotypethreat.org/home
Cohen, G. L., Garcia, J., Apfel, N. & Master, A. (2006). Reducing the racial achievement gap: A social-psychological intervention. Science, 313, 1307-1310, https://www.researchgate.net/publication/6842991_Reducing_the_Racial_Achievement_Gap_A_Social-Psychological_Intervention
Mindset and Stereotype Threat: Small Interventions ThatMake a Big Difference
Posted By Marie K. Norman, PhD, and Michael Bridges, PhD On January 11, 2018 @ 5:52 am InDiversity and Inclusion,Motivating Students | https://www.occc.edu/c4lt/pdf/Faculty Focus _ Higher Ed Teaching and Learning Minds

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Brain Lessons: The Consequence of Excising Emotion

by Grant Rost

Two weeks ago, my wife propped open the door of our (too-long-for-any-reasonable-use) screened porch.  She was shuttling plants in and out every night and got tired of latching and unlatching the porch door.  Well, it’s closed now—for good—because a hummingbird got into the porch.  I can’t seem to forget that little bird and I thought I should write about him.

I saw him from the breakfast table.  He was whizzing past the doors out to the porch, left and right, passing like a pendulum.  Like every wasp and moth before him, he didn’t know how screens work—how they entice you with light and scenery but abruptly stop you with mesh.  I went to try to herd him out the door.  He just flew higher than my head and hands.  Back and forth he went, missing the narrow porch door and smashing into the screens at each end.  I got a pillowcase to try to catch him.  It didn’t work.  At one point in my end-to-end pursuit, I thought his tongue was lolling out of him, from exhaustion, but I quickly realized that he had irreparably damaged his delicate black beak.  I made a fast and inexorable decision and I sent my wife back inside.  Nobody needed to see the place where the two of us were going—fleeing and chasing.

I eventually caught him in the pillowcase.  As I held him folded in the pillowcase, his squeakings, so familiar to me while I photograph them at our feeders, increased in tempo and timbre. I quickly picked up the nearest rock—and who knows why it was there on the deck outside—and put the whole affair to an end.  The rest of the day, however, I just re-lived it…over and over.  Our mutual helplessness.  The sounds.  The small red spot on the baby-blue pillowcase.

The rock.

I have been trying to ignore it.  Ignore what?  The emotion of the whole thing.  Pushing it down, shooing it away and, finally, coolly rationalizing each of the events; or, to put it more honestly, my decisions within those events.  Even as I write about it now, my eyes feel swollen with the press of tears that I’m blinking back.  If I can’t be free of the memory, can I at least be free of the emotion that always arrives with it?  Weeks have passed.  Then, just tonight, I read about a man suffering from a small brain tumor who, upon the excision of the tumor, had no apparent capacity for emotion left within him. He was rendered emotionless. But, the surgery didn’t perfect him.  It didn’t turn him into a most-intriguing rational razorblade, like Spock.  As I read about him, I thought of my hummingbird and I knew what I had to write my June blog about.

Before his brain tumor, writes Jonah Lehrer, “Elliot” was a rather intelligent and successful man with a near genius IQ.  Surprisingly, and despite losing a part of his brain to the surgery, he suffered no loss of intellect.  He remained rational and high functioning in most respects.  However, after his surgery those around him at work and home noticed two major differences: First, nothing seemed to touch him or move him. Not love, nor anger, nor fear.  That’s expected when one loses one’s emotional senses.  Now here’s the stunning part: Along with the absence of emotion, he seemed to utterly lose the ability to make even the simplest decisions.[1]  If he tried to decide something as perfunctory as where to have lunch, he would drive to various restaurants, weigh their menus, evaluate seating, and check their wait times, but struggle to choose where to eat.  His life crumbled around him.  His wife left.  He lost his job.  He had to move back in with his parents.  The more closely linked to things personal or social the decisions were, the harder it became for Elliot to make them.[2]  After watching Elliot weigh for 30 minutes the pros and cons of two different appointment times, the researcher working with Elliot said, “It took enormous discipline to listen to all of this without pounding on the table and telling him to stop.”[3]

Based on his work with Elliot and other similar patients, Antonio Damasio was able to isolate the small bundle of nerves in the brain, just behind the eyes, that “integrat[es] visceral emotions into decision-making.”[4] The excision of Elliot’s small tumor damaged this area, the orbitofrontal cortex (OFC), just enough to remove Elliot’s emotions and his capacity to decide.

It should go without saying that connecting law to fact has been a rational business. We, as lawyers and educators, have made it that way.  In neither semester of my torts class were we ever asked by our professor—a good and empathetic man—“Class, have you stopped to think what it must be like to have participated in the crippling of your own child because you yelled at him in order to stop him from drinking from a container of baby oil?[5]  And, if you’ll forgive my hyperbole here, I think it’s a sin if we don’t ask that question in torts, and if we teach our trial advocacy students, or foist on our jurors, a cool and completely rational opening or closing. Who knows?  We may be participating, in some small way, in the crippling of their decision-making.

The great trial lawyer, Gerry Spence, says of effective trial lawyering, “To move others, we must first be moved.  To persuade others, we must first be credible.  To be credible, we must tell the truth and the truth always begins with our feelings.”[6]  However, it’s hard to feel sometimes and even harder to adjust to the idea that others, jurors for instance, can or even should be let into our own feelings. There are so many things about law school that condition us against the instinct to share our emotions, don’t you think?  Well, may I just say to you, as an encouragement, that I think it’s a terrible idea for you to catch your feelings up in a pillowcase and reach for the nearest rock.  I hope none of us ever asks our students or jurors to do it.

[1] Jonah Lehrer, Feeling our way to decision, The Sydney Morning Herald (Feb. 18, 2009), https://www.smh.com.au/national/feeling-our-way-to-decision-20090227-8k8v.html.

[2] Id.

[3] Id.

[4] Id.

[5] A rough summary of a failure-to-warn case that hasn’t left me in 23 years.  Ayers v. Johnson & Johnson Baby Products Co., 147 Wash.2d 747 (1991).

[6] Gerry Spence, Win Your Case 32 (2005).

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Brain Lessons: The Seven Percent Delusion

by Jules Epstein

Advice from mock trial judges must be taken with the proverbial grain of salt.  Especially from one who, after expressing surprise over a move by students to use the defendant’s deposition in the plaintiff’s case, opined that “you don’t necessarily have to meet your burden during your case.”  But I was intrigued, if abashed by my lack of knowledge, when she later told the students “Here is one piece of advice I give all my students – communication is only 7% word choice; the balance is 55% body language and 38% tone.”

Had I missed something?  Was there a knowledge base to support this?  The competition round ended, and I began to search.  It turns out to be myth, just like the “80% of all trials are won or lost in the opening statement,” but tracking it was revealing.

The claim comes from early 1970s research by psychologist Albert Mehrabian.  It is prevalent in web searches:

It is discussed in wonderment:

The 7–38–55 rule is something that has been explained over and over and over. Albert Mehrabian’s 7–38–55 Rule of Personal Communication is something that has been shared and examined and taught frequently.

At first, I was quite surprised that it is split up the way that it is. Then, I made an intentional effort to look to recognize it in others and in myself.

Wow.

I would like to say that this is just a general rule and there are, of course, times when the words are more than just 7% of communication. But, I would be hesitant, at least from my own experience, to say that the order of importance or value would change in any situation.

Id.  It is even depicted in vivid imagery:

Communicate Efficiently, supra. But just 5 minutes of delving revealed this to be myth and deceptive.

Why?  Mehrabian was testing a limited issue – when a single word was being used to convey an emotion, was it word choice or delivery that did the better job of conveying the sentiment?  And Mehrabian himself cautioned as to its limited utility:

  1. Inconsistent communications — the relative importance of verbal and nonverbal messages. My findings on this topic have received considerable attention in the literature and in the popular media. “Silent Messages” contains a detailed discussion of my findings on inconsistent messages of feelings and attitudes (and the relative importance of words vs. nonverbal cues) on pages 75 to 80.

Total Liking = 7% Verbal Liking + 38% Vocal Liking + 55% Facial Liking

Please note that this and other equations regarding relative importance of verbal and nonverbal messages were derived from experiments dealing with communications of feelings and attitudes (i.e., like-dislike). Unless a communicator is talking about their feelings or attitudes, these equations  are not applicable.

http://www.kaaj.com/psych/smorder.html

A thorough debunking of this myth, or stated more kindly, an explanation of the limited focus and utility of Mehrabian’s research, can be found in the Neurodata Lab article “Experts Say…Is Communication Really Only 7% Verbal? Truth vs. Marketing,”  https://medium.com/@neurodatalab/experts-say-is-communication-really-only-7-verbal-truth-vs-marketing-9a8e7428fd0f Here are some of the concerns:

·         Mehrabian was testing “the liking of one person to another.”  Extrapolating findings in this one context (and, of course, without repeated studies validating this assessment) has no foundation.

·         The experiment used photographs, frozen images of facial expression.

Scholarship has also acknowledged the limits of Mehrabian’s findings.  See, e.g., Bucklin, More Preaching, Fewer Rules, 35 Ohio N.U.L. Rev 887, 947-948 (2009), emphasizing that

[i]t is emphatically not the case that nonverbal elements convey the bulk of the message regarding moral values.   The point is that when the conveyed message is about values, about what is good and what is bad, actions and nonverbal clues are more important than words. The Mehrabian Factor can be simply stated: actions showing values will displace words stating values.

There is even a youtube explanation of the lmits of this rule – Busting the Mehrabian Myth .

What are the take-aways?  Certainly, what one says can’t be divorced from how the message is delivered.  It may be that the more time spent on how the ideas are delivered will enhance persuasion.  This is brought home in a research paper, How The Voice Persuades.  Van Zant, A. B., & Berger, J. (2019, June 13). Journal of Personality and Social Psychology. Advance online publication. http://dx.doi.org/10.1037/pspi0000193  See also, Stockwell and Schrader, Factors That Persuade Jurors, 27 U. Tol. L. Rev. 99 (Fall, 1995); Epstein, It’s How You Say It https://www2.law.temple.edu/aer/its-how-you-say-it/

And in the world of zoom trials, where the face dominates the screen, it may be that a facial expression will convey more than the words the advocate selects.  But there is no validity to the 7% rule; and no reason for anyone to teach this as the standard for persuasive advocacy.

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