Entries for month: November 2015

Jury decides insurer should pay $14.3 million in medical malpractice case

News and Views , Medical Malpractice No Comments »

http://www.chicagotribune.com/business/ct-ismie-malpractice-judgment-1112-biz-20151111-story.html

 

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Leveraging Social Media for Litigation Psychology

Social Media , Wizpor , News and Views No Comments »

November 9, 2015

By Amy Singer, Ph.D. and  Kemberlee Bonnet

Social media is allowing researchers the chance to study human behavior in a new context, as users are freely revealing more and more information about themselves at both the individual and community levels. Researchers can analyze interactions that a person has with another individual or their announcements or “rants” at the public level. The information is given to us without restrictions, allowing researchers to collect data unobtrusively. 

In data collection in the context of litigation psychology, it is important to consider that jurors bring with them their own life experiences, attitudes and outlooks that ultimately guide the decision-making process at trial. As trial consultants, we explore potential jurors’ thoughts, feelings, prior knowledge and experiences on a given topic as part of our analyses in that decision-making process. It is remarkable that this information can be discovered, not only in live voir dire, but through social media, and can be explained by psychological theory and phenomena.

Mining social media has its potential to extract valuable data patterns that can be beneficial researchers. We have put together some of the interesting psychological phenomena and theory applied to social media participation and a glimpse of how they guide attorneys in trial strategy.

Transparency Effect

One of the most fascinating and unusual phenomenon that manifests in the use of social media, is the transparency in personal expression. Researchers are using this information to their benefit and are now collecting data via online focus groups, discussion boards and social networking sites, as this raw and unfiltered data is like gold to a social scientist. In litigation, this phenomenon enables attorneys to obtain case-specific information via data mining or online focus groups, expressive information of which is direct and less censored. As trial consultants, we advise attorneys to take advantage of the unfiltered opinions and outlooks on the given issue that individuals would not provide in a live focus group or voir dire. The data is used to scientifically create successful trial strategies and voir dire techniques, specifically, to de-select jurors from a panel.

Social Influence

Another psychological theory pertinent in social media participation is Social Influence Theory. Social influence typically occurs when one’s emotions, opinions, decisions or behaviors are affected by others, and can be seen in conformity and leadership, for example. Most social influence studies have been traditionally conducted in laboratory settings, but research through social media is giving us a more generalizable and up-to-date context.

Social influence takes on many forms. One way in which the theory reveals itself is via “influencers”. An influencer on a jury panel is seen by the rest of the panel as an “expert” on a given case-specific topic and this individual has typically had similar life experiences that are critical to deciding the case. He or she will most likely express that familiarity with the experience and their opinions and views regarding those experiences.

Social media research and online focus groups enables us to identify influencers before a trial begins. For example, via online focus groups and discussion boards we have successfully identified the type of data that an influencer provides and ways in which to spot and steer clear of them if they are in favor of the opposition. Influencers are extremely important, as they help sway the group decision one way or another.  We analyze cognitions, affect and life experience to help identify these, importantly, negative influencers and de-select the ones that will most likely yield the least favorable outcome (negative influencers), while keeping positive influencers under the radar to opposing counsel so that they can remain on the panel.

Attitudes

In Social Psychology, attitudes are considered to be the fundamental orientation to evaluate people, situations and ideas. Attitudes are not always consciously accessible, but nevertheless guide decision making. Importantly, attitudes can foster identification with social groups.

Attitudes are difficult to measure via self-report and that form of data collection is less reliable, due to social desirability effects. This can be combatted, however, in measuring attitudes via social media. On social media, it is fascinating that implicit attitudes become apparent, via the transparency effect.

For example, stereotypes associated with a defendant can have a significant impact on a jury’s verdict. Jurors on a live face-to-face face panel might go out of their way to suppress prejudicial attitudes. Nevertheless their attitudes, however implicit, still remain. In social media participation, those attitudes tend to manifest themselves, thanks to the transparency effect. Social media focus group research can tap into those attitudes because these participants are less likely to go out of their way to filter their responses. Such information is valuable to litigators whose case may involve, for example, a racially-charged crime.

Conclusion

Transparency and greater external validity leveraging social media is all well and good. However, many of my clients ask: “what does this really mean”? As Sigmund Freud once said, “once we name a thing by its rightful name, we begin to alter its  power”. The research questions become: What are we identifying? How do we analyze this phenomenon? How do we interpret this data?  What is our criteria for measurement? Fortunately, today’s litigators can use computer programs, such as Wizpor® to provide text analysis, sentiment analysis and channel analysis for predictive mined data.

The prevalent use of social media has produced extraordinary amounts of social data, as social media provides easily an accessible platform information sharing. Social media is beneficial in that you can collect real-time data, as peoples’ posts reveal the most-recent events, opinions and attitudes. If you are looking to find out about what a potential juror might think about your case, online interaction will help you obtain the valuable information from your target population in our society; information that would otherwise be nearly impossible to obtain at the face-to-face level.

The best way to tap in to all of these constructs is to work closely with a litigation psychologist well versed in applied research.  These experts are skilled at the analysis of psychological constructs using the societal trajectory of interaction.

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Applied Kabbalah: 10 Sacred Attributes to Integrate into Litigation – Part Four: Kindness

Jury Selection No Comments »

November 3, 2015

By Amy Singer, Ph.D. and Kemberlee Bonnet 

In our prior article we discussed the sacred attribute of Chokmah, which translates to “wisdom” (Applied Kabbalah: 10 sacred attributes to integrate into litigation – Part three: Wisdom, June 17, 2015), and that the attributes of knowledge and understanding must be appropriately combined to form wisdom.  Knowledge, understanding and wisdom are considered the three  “intellect” attributes. Without the jury having knowledge, understanding and wisdom of your testimony, evidence and arguments: you lose.

Now we will move to the remaining seven attributes that deal with the emotional aspects of your case. The first emotional attribute in the Sephroit is Chesed, which translates to “kindness.” Chokmah and Chesed are connected, as wisdom provides us with the capacity to connect with our emotions intelligently, not making decisions on some arbitrary whim. This is how the Sephroit works- the attributes are not exclusive; rather, they work as a system.

Jurors are instructed to make decisions based on fact, but as humans, it is difficult to leave one’s emotions behind. We all have emotions, but in actuality, they have us. Although emotions are considered irrational when it comes to making a decision, they are useful in getting us in tune to a situation, but only if we are intelligent with them. Too much of any Sephroit attribute is not good- although it might sound odd to say there can be too much kindness, it is not. Imagine if a juror feels more kindness towards one side versus the other? In order for there to be justice, there must be kindness; kindness towards both sides equally.

So what is kindness? Kindness (Chesed) is a core ethical virtue.[i] It is much more than being pleasant and wishing someone well, it is associated with action, a pro-active virtue.[ii]  The difference between kindness and “being nice” or empathetic is that kindness is associated with action. Chesed is properly described as an act that has no “cause”- it is a gift in which the receiver owes nothing in return.[iii] For example, you run out of gas and someone has a gas can and helps you. If it is truly a Chesed act, they will expect nothing in return for letting you use their gas can.

Kindness is different from compassion. In kindness, a person may feel sorry for someone but will not reflect the suffering person’s feelings.[iv] Compassion is a deeper and stronger feeling, as compared to kindness. An act of compassion would involve, for example, talking to a person and understanding their emotions and problems, delving much deeper into the situation at hand at a more personal level. This, of course would be impossible for a juror to do from the jury panel. Kindness is not sympathy. Litigators do not want sympathy, they want kindness in judgment. Justice can never be based on sympathy.

Kindness Must be Equally Felt Among the Parties

A juror must separate the head from the heart and follow the law. There is an expectation that the law be followed. It sounds contradictory to Chesed, where nothing is to be expected from one’s actions; however, justice is always expected- but to get to justice one must be impartial. One cannot expect a certain turnout because of his or her own beliefs, values or morals. So in order to dispense justice you truly have to expect nothing of benefit for yourself but the truth. To do otherwise would be unfair or unkind to one side of the law either to the state, the victim or even the defendant.

I consulted on a case where a young drunk driver killed an elderly woman. Obviously those individuals who felt sorry for one side more so than the other were excused for cause. The other jurors were kind in their judgments to both sides. They had the intellectual attributes of knowledge, understanding and wisdom for both sides. They understood the tragedy for both sides. In their minds, justice was awarding exactly what the plaintiff asked for in compensatory damages. Furthermore, they awarded exactly as much as the defense wanted in punitive damages. The verdict was not appealed. Both sides felt that justice was served.

Conclusion

Even a positive trait such as Chesed has undesirable spin-offs if it is not applied correctly. One should not want to have Chesed at the expense of another. Further, if a person does not have well-defined boundaries then he may find it difficult to avoid misrepresentation because honesty requires the ability to follow the boundaries of truth.[v] A juror might have the natural propensity for Chesed, but he cannot allow his natural dispositions to lead him instinctively. Rather, he must balance his Chesed when necessary.



 

 

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