Tick – tock

But, “billing time” for professional services, as described in this post, may have spillover effects in the time-keeper’s personal life.  Devotion to the timesheet impacts making decisions about personal time.  Prior legal commentary (Kaveny, 2001) has argued that this can affect lawyers and how they experience or participate in family birthdays, holidays, and volunteer work.  The billable hour mentality, so argued there, can alienate the lawyer from those important events.  Such time-keeper lawyers have difficulty grasping “a noncommodified understanding of the meaning of time.”

A team of organizational behavior researchers extended the insights of that legal commentary, and in an attempt to fill a gap in the research, recently investigated how billing time spilled over into how people make decisions about time in outside of workplace contexts.  Their results show that organizational practices can change the psychology of how people view and make decisions about personal time outside of the work context.  This post identifies an emerging stream of research with implications for individuals who keep time, i.e. lawyers and their organizations, highlights the research study featured in this post and describes what the researchers did, notes their results, and discusses implications for lawyers and their firms.  Tick – tock.

The researchers used a market-pricing decision logic as a core concept in this research.  This means that when a person monitors activities in order to bill time, a precise accounting of a unit, i.e. time, measures value, i.e. price of labor.  Prior experimental studies have shown that when this logic gets used, people will put forth less effort or spend less time when they receive no direct compensation for their work.  This research extended that idea and tested this hypothesis:  “when a market-pricing decision logic for time is made salient by billing or otherwise accounting for time, individuals should be less willing to volunteer their time.”

The second core concept of this research involved “volunteering”.  What does “volunteering” mean?  Simply put, volunteers spend time on unpaid activities that benefit others.  Prior studies have shown that people who get pressured to volunteer have lower intentions to do it in the future.  Also, financial rewards undermine volunteering.  One example relates to blood donations.  Blood donors who received rewards associated with decreased likelihood to donate compared to committed donors who did not receive offers of reward.

Five experiments examined how keeping time affects a person’s decision to allocate time to volunteer activities.  A brief description of the five experiments, the results of each, and selected discussion comments about them follow:

• Study 1 involved graduates from an “elite American university law school” who participated two times:  one week before graduation and 5 months after beginning work as lawyers.  Almost two-thirds of the participants used a timesheet or otherwise had to account for their time at work.  The researchers measured willingness to volunteer and assess their preferences for volunteering time relative to donating money.  While the data showed some change in willingness to volunteer between graduation and five months after beginning work, “respondents who billed their time were significantly less willing to volunteer their time”.  In consideration of giving time versus giving money, the analysis showed that “respondents who billed their time were significantly more interested in donating money rather than time to charity”.
• Study 2 considered causality.  Non-lawyers, undergraduate commerce students, participated in this experiment which involved a mock consulting task.  Some participants kept track of their time in six minute increments and others did not.  After completing the consulting task, the researchers surveyed the participants about future time allocations, e.g. paid work, socializing with family and friends, personal time, leisure, and volunteer work.  The participants also responded to a measure of willingness to volunteer.  Analyses showed that participants in the billing time condition anticipated spending fewer hours per week volunteering.  The billing time group showed also that they were less willing to volunteer.  Billing time, according the researchers’ interpretation of the their results, “affects attitudes and behavioral intentions to volunteer”.
• Studies 1 and 2 considered the effects of time keeping / billing on attitudes and behavioral intentions to volunteer.  Studies 3, 4, and 5 studied the effects of billing on actual volunteering behavior.
• Study 3 utilized participants similar to Study 2.  They engaged in the same consulting task, but for a shorter period of time.  Instead of predicting the future, the opportunity to provide help to the community relations office of the university by volunteering to stuff envelopes.  The volunteer activity did not relate to the work for which the participants billed their time.  This work also lacked intrinsic motivation, i.e. intrinsically interesting.  The results showed that participants who billed their time using a timesheet spent less time on volunteer tasks and did less volunteer work.  The next study considered intrinsic motivation.
• Under a task paradigm similar to the earlier one, the participants in Study 4 experienced a volunteer activity and then also received an an opportunity to take up to five envelopes with postage which would enable them to send a sick child a get well card.  The number of envelopes taken constituted the behavioral measure of volunteering.  The results showed that although the participants in both the billing and nonbilling groups enjoyed the make a child well letter writing activity, i.e. intrinsic motivation activity, the participants in the billing group took fewer envelopes away from the session to write get well wish letters to sick children.  No evidence showed that exposure to billing changed how the participants psychologically enjoyed the prosocial activity of making a child smile.  Study 5 considered the impact of how people who bill their time value money.
• Study 5 utilized business students who performed a consulting task.  Some billed their time.  Others did not.  They had a 10 minute break before responding to a questionnaire.  Before beginning their participation in the study, and as a prerequisite to participation, they responded to a questionnaire which gauges overall importance of financial success and its relative importance to non-financial considerations.  Additionally, the researchers assessed the participants’ self-efficacy, i.e. coping, an internal attribution of success, and their self-determination, i.e. their awareness of feelings, sense of self, and feeling of choice with respect to behavior.  After analysis, the results showed that individuals in the billing condition spent less time volunteering than their counterparts.  Levels of self-efficacy and self-determination did not account for the difference between the groups.  Valuation of money impacted the volunteering activities and those who valued money more highly had greatest susceptibility to the spillover effect of the market-pricing decision rule, i.e. billing time.

The main findings of the research as noted by the authors include the following:

• “Taken together, the survey and experimental data show that billing time promoted an economic evaluation of time that undermined participation in worklike activities lacking monetary profit.”
• Keeping time and using a time sheet does not necessarily undermine a person’s sense of autonomy, but “billing time does affect how people come to understand and comprehend their time and its relationship to money in ways that are psychologically consequential.”
• “The results are consistent with the idea that organizational practices can change the psychology of how people view time and work in ways that have consequences for choices and behaviors outside of the immediate work context.”

This research study provides empirical support for the “insight” provided by Professor M. Cathleen Kaveny (2001).  The professor wrote an essay in 2001 about lawyer unhappiness, its connection with the “billable hour”, and her plea that the profession loosen the “grip of the billable hours framework”.  Long hours, tedium, and the need for constant attention to the labor at hand describes the lot of physicians, clerics, and academics, in addition to lawyers.  Yet, the others do not, according to the professor, experience the same level of professional dissatisfaction nor do they seem as unhappy as lawyers.  Professor Kaveny’s hypothesis about the cause of lawyers’ unhappiness, deemed “insight” by the researchers here, stated in part:  “A neglected but important cause of lawyers’ unhappiness is not the amount of time they work, but rather the way in which they understand the time they spend working, which is directly related to the manner in which they are forced to account for it.”

Professor Kaveny warned about and considered how to “mitigate the harmful gravitational force of a view of time is embedded in the very structure of the legal workday” of many lawyers.  The professor in her 2001 essay posited that an investigation of alternatives to the dominant view of time in professional life – billable hour – rooted in religious and other ways of interpreting the nature and purpose of human life hoped to spark a discussion about developing alternatives to the grip of the billable hour.  The very recent empirical findings of the organizational behavior researcher featured in this post should give lawyers, and others who keep time, greater motivation now to pause, re-think, and adjust somehow so that grip of the billable hour does not become tighter and leave any more ligature marks.  Why?  The concern about the “billable hour”:

“I believe, however, that this way of calculating the value of legal work does more subtle – and more serious – damage to the attorneys forced to bow to its demands than that inflicted by overwork.  The regime of the billable hour presupposes a distorted and harmful account of the meaning and purpose of a lawyer’s time, and therefore, the meaning and purpose of a lawyer’s life, which, after all, is lived in and through time.  The account, which ultimately reduces the value of time to money, is deeply inimical to human flourishing.  Because large firm life can press many lawyers to internalize the commodified account of their time, they may find themselves increasingly alienated from events in their lives that draw upon a different and non-commodified understanding of time, such as family birthdays, holidays, and volunteer work.  The failure of lawyers to participate actively in their family lives and civic communities may not only be attributable to the fact that their heavy work schedules do not give them the time to do so, but it may also be that lawyers imbued with the ethos of the billable hour have difficulty grasping a non-commodified understanding of the meaning of time that would allow them to appreciate the true value of such participation.  As a consequence, they may eventually find that work is the only activity that has meaning for time.”

The research team mentioned many implications of their findings for future research.  These include important organizational citizenship behaviors critical to firm performance, but not part of the reward system; a host of activities such as family, child care, and household chores, which people may view differently as a function of billing time; and the tendency for lawyers to outsource worklike activities and nonwork activities, even though considered generally enjoyable activities.  Reinforcing the “insight” of Professor Kaveny’s essay which, in part, supplied theoretical background to their work, the researchers conclude their discussion by stating regarding time-keepers that “. . . billing time and the economic evaluation of time can cause individuals to make time allocation decisions that ignore other criteria important to their moral identity or even their personal utility, actually leaving them less happy.”

The “billable hour” has a strong grip on the legal profession.  Although not specifically discussed, clients, law, precedent, and ethics rules have relevance here, too.  The equation presents much difficulty.  The 3,600 seconds of the billable hour exact very high personal, interpersonal, and professional costs when all things get considered.  As shown by this research, in addition to his or her client, the lawyer seems to pay too dearly.  Does the relationship between lawyers and the billable hour need to change? How? You? Your client? Your firm?  This “relationship” seems to present a very serious issue for the profession.  Right?

Article Source:  DeVoe SE, & Pfeffer J (2010). The stingy hour: how accounting for time affects volunteering. Personality & social psychology bulletin, 36 (4), 470-83 PMID: 20363903.  See the webpage of Professor Sanford DeVoe here.  The article featured in this post may be accessed here.

Legal Scholarship:  Professor M. Cathleen Kaveny faculty webpage.  Scholarship here.  See and access the 2001 Article Billable Hours In Ordinary Time: A Theological Critique of the Instrumentalization of Time in Professional Life, (the Baker-McKenzie Lecture in Ethics at Loyola University Chicago Law School), Loyola University Chicago Law Journal 33 (Fall 2001) 173-220.

Thank you.  Please visit again soon. Dan DeFoe JD, MS – Adlitem Solutions | Organization Development for Professional Services Firms and the Legal Profession: People. Projects. Practices | www.adlitemsolutions.com |dan@adlitemsolutions.com | Blog www.psycholawlogy.com.  See you next time.

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People ask friends or peers to inflict social pain on others.  These requests stem from  prejudice, e.g. against a member of an outgroup, or relate to personal reasons, e.g. romantic rival.  Decades of research has implied that complying with such directives or threats goes against our “hard-wiring” because we generally care about and typically avoid harming others.  The results of this recent study unraveled the inconsistent results from prior research. We now know that when someone directs you to inflict social pain on another, in complying with that “request”, you get hurt too.  Ostracism hurts not only the victim, but also the perpetrator.

A well-established stream of research has shown that the victims of ostracism – those excluded by others or ignored by others – suffer social pain.  We experience this pain because we depend heavily on social connections.  The social pain of the experience of being ignored or excluded by others triggers the same neural activation as physical pain.  Ostracism thwarts the victims’ psychological needs.  Prior research has also shown that we can vicariously experience this social pain merely by observing the ostracism of others.  The research stream on the experiences of ostracizers has lagged behind research about the suffering of their targets.  The authors assessed that previous work as “sparse”.

Using a framework of self-determination theory of motivation and personality, their study set out to investigate why ostracism might exact psychological costs for the perpetrator and victim alike.  The authors indicate that their findings “shed new light on the psychological dynamics of ostracism”.  These findings, obtained by two experiments guided by self-determination theory, have relevance for workplace managers and leaders.  Ostracism can relate to commitment, effort, high-quality performance, and, concerning relational aggression and bullying, the psychological needs and well-being of employees in the workplace.

Self-determination theory, an approach to human motivation and personality, highlights our inner resources, our personalities, and self-regulation, our behavior.  We all have growth tendencies and innate psychological needs.  These serve as bases for our self-motivation.  The researchers have identified three needs “that appear to be essential for facilitating optimal growth and integration, as well as for constructive social development and personal well-being” (Ryan & Deci, 2000).  The three needs are:  competence (concerns need to feel useful), relatedness (concerns need to feel connected to and cared for by others), and autonomy (need to feel that one’s behavior is your own and what you want to do).   If an individual has these three basic needs satisfied across time, then according to the theory, one will experience an ongoing sense of integrity and well-being.  If not satisfied, the deficit contributes to an individual’s ill-being and pathology.  Ryan and Deci (2000) noted how a study conducted over twenty years ago showed that this need satisfaction predicted employees’ performance and well-being at work (Baard, Deci, & Ryan, 1998).

Findings from studies regarding self-determination theory within the last five years have suggested that helping others satisfies the need for autonomy and un-selfish, i.e. relational goals, satisfy relatedness goals.  According to the authors, these findings suggest that complying with requests to ostracize may undermine the ostracizer’s psychological needs.  Ostracism undermines autonomy because we do not usually choose to harm others.  Ostracism also undermines relatedness because it prevents us from connecting with others.

With that theoretical background, the researchers tested (1) whether the act of ostracism exacted psychological costs by thwarting one’s psychological needs for autonomy and relatedness and (2) compared the psychological costs of ostracism between victims and perpetrators.  They ran two studies, each study had participants play Cyberball, a computerized ball-tossing game.  The participants also had their baseline mood state and state autonomy, competence, and relatedness assessed with the Positive and Negative Affect Schedule (PANAS) and the Basic Psychological Needs scales, respectively.  Following the ball-tossing game, in which the researchers divided the participants into ostracizer, neutral, or compliance groups, in Experiment 1, and ostracized, ostracizer, and neutral, in Experiment 2, the participants completed the same measures used at baseline.

In Experiment 1, which conservatively tested whether the act of ostracizing exacts psychological costs, the ostracizers had higher levels of negative affect and lower levels of autonomy and relatedness.  The researchers concluded “Findings thus confirmed our expectation that ostracizing others leads to negative affect because it thwarts psychological needs.”  Experiment 2 compared the costs of ostracizing with those of being ostracized.  Ostracizers felt more guilt and shame than the other groups.  The ostracized felt more anger.  These two groups felt more distress than the neutral condition.  The researchers’ stated “Thus, being the victim or the perpetrator of ostracism let to higher negative affect, with thwarted psychological needs fully explaining these effects.”

This research study has important implications for the developmental outcomes of people who comply with directives to cause social pain.  They harm themselves by complying with requests to ostracize others.  We know more now about the psychological dynamics of ostracism.  Ostracizers incur psychological costs:  higher levels of negative affect, thwarted psychological needs of autonomy and relatedness, guilt, and shame.  According to the authors, “the affective costs of ostracizing other people were comparable to those of experiencing ostracism as a victim, but that the perpetrators of ostracism showed more thwarting of their need for autonomy than did victims of ostracism or participants in the neutral condition.”  The new light shed on this important topic begins what the authors  describe as a “critical agenda” to take forward.  Why?  The answer has been stated by other researchers:  ”If exposure to ostracism continues over a long period of time, then the individual’s resources for coping are depleted, and he or she is likely to experience alienation, depression, helplessness, and unworthiness” (Williams &  Nida, 2011). It seems that nothing threatens our social nature more than being ignored or excluded or ignoring or excluding others.

The take-away here:  do not ignore or exclude nonthreatening others in compliance with a request to inflict social pain.  You not only hurt another by ostracizing that person, but since you have no immunity, by inflicting social pain on another, you thwart your own psychological needs and hurt yourself, too.

Article Source:  Legate N, Dehaan CR, Weinstein N, & Ryan RM (2013). Hurting you hurts me too: the psychological costs of complying with ostracism. Psychological science, 24 (4), 583-8 PMID: 23447557.  See Also:  Ryan, R.M. & Deci, E.L. (2000). Self-determination theory and the facilitation of instrinsic motivation, social development, and well-being. American Psychologist, 55, 58-78. DOI: 10.1037/0003-066X.55.1.68; Williams, K.D. & Nida, S.A. (2011). Ostracism:  Consequences and coping. Current Directions in Psychological Science, 20(2), 71-75. DOI:  10.1177/0963721411402480.

Thank you.  Please visit again soon. Dan DeFoe JD, MS – Adlitem Solutions | Organization Development for Professional Services Firms and the Legal Profession: People. Projects. Practices | www.adlitemsolutions.com |dan@adlitemsolutions.com | Blog www.psycholawlogy.com.  See you next time.

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Lawyers’ assessments – perceptions and predictions – about important litigation goals occupy a central position in the legal system.  Lawyers make forecasts – decisions about future courses of actions – about cases.  These include whether to take on new clients, case valuations, whom to depose, expert selection, settlement strategies, and resolution option selection, i.e. settle or trial.  In the course of lawsuits, lawyers “constantly make strategic decisions and/or advise their clients on the basis of these predictions.”  These decisions and advice, a lawyer’s exercise of professional judgment, shape cases and the mechanisms to resolve them.  ”Clients’ choices and outcomes therefore depend on the abilities of their counsel to make reasonably accurate forecasts concerning case outcomes.”  In addition to the lawyers’ success, both professionally and financially, the authors also suggest in their summary of the research background, “At the end of the day, it is the accurate predictions of the lawyer that enable the justice system to function smoothly without the load of cases that were not appropriately vetted by the lawyers.”

Lawyers make subjective assessments – confidence judgments – about the probability of reaching their desired goals for litigation.  These predictions play a “pivotal role” in practical legal decision-making.  Drawing upon over twenty years of psychological studies of decision-making and three prior studies involving lawyers, the researchers predicted that lawyers would be prone to overconfidence.  They also sought to explore several factors of calibration, i.e. reliability or accuracy, and examined whether a cognitive intervention task would reduce overconfidence and improve decision-making.

Psycholawlogy will consider this very interesting study, which the authors describe as “the largest study of American legal practitioners of its kind involving data drawn from actual cases” in two parts.  Part 1 describes the background; participants, methods, and procedures; and notes highlights about the results.  Part 2 will discuss several practice and policy implications for lawyer-client relationships, case management strategies, court efficiency, and lawyer training and education.

Psychological research of decision-making processes describes overconfidence as a “ubiquitous phenomenon”.  Recent research, according to the authors, distinguishes three forms of overconfidence:  overestimation [inflated perception of ability or chance of success], overplacement [relative judgment of self compared with others], and overprecision [excessive "certainty" of the accuracy of one's beliefs].  Overconfidence occurs in professional judgments.  Regarding systematic overestimation of capacity to reach stated goals, the authors describe this as a “calibration deficit”.  Research has also identified “predictors of calibration”.  These factors can affect the realism of lawyers’ assessments of future goals.  Prior research has shown that feedback, perception of control, and temporal circumstances as factors which may influence the realism of judgments about success.

Four hundred eighty-one (481) attorneys [men outnumbered women by four to one], each with one case [337 civil (wide variety including personal injury, vehicle accident, construction, real estate, intellectual property, and workplace disputes), 144 criminal (crimes against persons, victimless crimes, and crimes against property)], from 44 states participated in the study.  Having a case scheduled for trial within 6-12 determined the lawyers’ eligibility to participate.

Each lawyer answered this question “What would be a win situation in terms of your minimum goals for the outcome of this case?”  Each lawyer indicated the degree of certainty about achieving the stated goal by answering this question “From 0 to 100%, what is the probability that you will achieve this outcome or something better?”  The investigators conducted follow-up interviews by telephone after the date of the expected trial.  The questionnaire asked for factual information about how the case resolved, negotiations, the final outcome, attorneys’ perceptions about the outcome, and what factors affected the outcome.  The cases resolved as follows:  fifty-nine (59%) percent of the cases resolved by out-of-court settlement; thirty-one (31%) percent had trial resolutions; and ten (10%) percent got resolved by procedural mechanisms.

The results showed that the majority of the study participants expressed confidence estimates which exceeded 50%.  While some cases exceeded the minimum goals (24%), and some did not meet the minimum goals (44%), “a larger proportion of the prediction deficits came from lawyers who erred in the direction of overconfidence”, according to the researchers.  Using six confidence intervals (0-45%, 46-55%, 56-65%, 66-75%, 76-85%, and 86-100%), the researchers investigated “calibration”, i.e. whether lawyers who provided high (above 65%) confidence limits had shown more or less accuracy in their judgments relative to lawyers who provided low (0-45%) or moderate (46-65%) confidence estimates.

After tabulating the results on the first part of their study, the authors stated “In summary, far more lawyers were susceptible to overconfidence bias than to the underconfidence bias.  In general, the higher the expressed level of confidence, the greater the overconfidence.”  Other results noted by the authors include the following:

• Only those female lawyers with confidence rates above 75% showed bias in the direction of overconfidence and compared with female colleagues, male attorneys whose confidences rates exceeded 66% showed systematic bias towards overconfidence;
• The data did not support the hypothesis that more lawyers with more legal experience associates with better calibration relative to lawyers with less legal experience – years of practice “does not count for much, as far as calibration goes”;
• No difference in either confidence estimates or success rates between civil and criminal lawyers;
• No relation between confidence levels and temporal distance to trial;
• Lawyers’ subjective reactions to case outcomes showed a tendency toward overconfidence – approximately two-thirds of all lawyers were pleased or very pleased with their case outcomes, but lawyers achieved their goals in only 57% of those cases; although 43% failed to achieve their minimum goals for litigation, fewer than one-fifth, 18%, were very disappointed or somewhat disappointed with their case outcomes, and in this group of failure to achieve minimum goals, two-thirds actually reported they were somewhat pleased or pleased with the actual case outcomes;

The second part of the study considered “debiasing”.  The investigators predicted that lawyers who generated reasons why they might not reach their litigation goals would show better calibration.  The reasons for not achieving litigation goals can vary widely:  your opponent has more skill; client not attractive; case has large emotional component or controversial issues; judge and/or jury as unpredictable fact finders; witness factors; venue or jurisdiction; and other client factors.  ”Surprisingly, the reasons least frequently cited were ‘attorney factors’ comprising only 3.2% of the reasons stated and referring to the skill, preparedness, or experience of the participant or opposing counsel.”  The research team compared the confidence estimates of lawyers who, upon request, provided reasons, with lawyers who did not get requested and did not provide reasons why they might not reach their litigation goals.  Generating reasons, i.e. debiasing, according to the authors, did not accomplish the predicted result.

Part 2 will discuss the meaning of the results, relate suggestions from the study about how lawyers may improve calibration and mitigate the effects of overconfidence bias, and the practice and policy implications for lawyer-client relationships, case management strategies, court efficiency, and lawyer training and education.  Part 2 will discuss how clients, lawyers, the justice system, and the public can benefit from the results of this “largest of its kind” research study, and the new pathways for further study illuminated by this research team.  Finally, Part 2 will briefly glimpse into his legal career, and in the context of the discussion about the research study results, suggest how Abe Lincoln practiced as a well-calibrated lawyer.  To be continued. . . .

Article Source:  Goodman-Delahunty, J., Granhag, P., Hartwig, M., & Loftus, E. (2010). Insightful or wishful: Lawyers’ ability to predict case outcomes. Psychology, Public Policy, and Law, 16 (2), 133-157 DOI: 10.1037/a0019060.

Thank you.  Please visit again soon. Dan DeFoe JD, MS – Adlitem Solutions | Organization Development for Professional Services Firms and the Legal Profession: People. Projects. Practices | www.adlitemsolutions.com |dan@adlitemsolutions.com | Blog www.psycholawlogy.com.  See you next time.

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A leading scholar recently published The Psychology of Trial Judging in Current Directions in Psychological Science, a leading psychological science journal.  This scholar combed through the “very small” existing body of empirical research, and explored several topics related to those influences.  With a stated purpose of “engendering broader interest in trial judge decision-making”, the piece offers some suggestions on how the psychology of trial judging can mature as a discipline.  This post highlights main points from that discussion.

Can psychology explain trial judging behavior and decision-making?  If so, what factors must psychological science consider?  According to the author, “a mature psychology of judging field will need to consider the influence of the bureaucratic court setting, the judges’ legal training, and the constraints of legal precedent.”

At least three things, according to the author, constrain investigation into judges make decisions.  Judges must follow the law.  Trial judges must defer to precedent and statutory requirements.  Review by appellate courts looms over trial courts.  A second problem relates to the sources of information considered by American trial judges.  In contrast to their European counterparts, American trial judges have no powers of investigation.  The information presented to the trial judge affects the quality of the decision.  The third constraint relates to bureaucracy.  The daily decision-making work of trial judges occurs in chambers.  Much of legal decision-making by trial judges provides little opportunity for researchers to investigate.

Prior research has investigated the issue of cognitive error and trial judge decision-making.  One of the first studies occurred about twenty years ago. The researchers investigated the effect of inadmissible information upon decision-making and compared judges’ decisions with jurors’ decisions in the context of a products liability case.  A control condition omitted the prohibited information.  Another condition included an instruction which addressed the inadmissible information.  The authors characterized the results obtained as striking.  In that study, “despite their legal training, judges were similar to laypersons in that they could not disregard the legally prejudicial and impermissible facts in rendering a verdict.”  Some twenty years later, different research teams in a couple of studies investigated how inadmissible information affected trial judges’ decisions.  Plaintiff criminal history, sexual history of a rape victim, and settlement discussion information constituted some of the inadmissible information.  With some important exceptions, i.e. inadmissible confessions or searches, the trial judges studied showed that they could not disregard inadmissible evidence.  A few years later, researchers “found that judges were as prone as other persons to exhibit stereotypes of Black Americans on an implicit association test; and in a series of vignettes that subtly primed racial issues, the judges were prone to impose harsher penalties on Black defendants than on White defendants.”  When the investigators made race explicit, Black judges showed themselves more prone to convict White defendants than Black defendants.

The true impact of cognitive bias errors upon judicial decision-making eludes investigators.  The author suggests that the lack of real-world context in experiments affects the error rate.  The more recent study suggests that “when judges have more detailed information or deal with settled legal doctrines, such as those bearing search or seizure, and have more time to consider and deliberate, their training allows them to process information differently than laypersons.”  The outlier, according to the author, relates to sentencing decisions.  He states “Yet, research on actual sentencing decisions in which race is implicated gives us reason to pause.”  Some areas for future research include study of how physical appearance affects sentencing decisions.  Also, the author suggests that better understanding of the currently uncharted areas of the effects of defendant’s demeanor and language in the courtroom and the influence upon sentencing judges may provide insight into differentiated judicial sentencing patterns.

Trial judges have been likened to “gatekeepers”.  They decide who can sue, what evidence gets admitted for consideration, and award damages in civil lawsuits.   A number of studies have considered various aspects of the trial judge’s gatekeeping function.  Some initial studies have shown that intellect, attitude, political leanings, and anchoring can affect trial judges’ decisions.

Psychological science researchers have studied judges versus juries for over forty years.  These studies show that judges and juries agree about 80% of the time about the proper verdict in civil and criminal cases.  Judges have been shown to have higher conviction rates compared to juries.  Some research suggests that judges have access to information about defendants, e.g. prior criminal records, not always available to juries.  Other studies point to different understandings about the burden of proof.  A 1999 study investigated how trial judges decided compensatory award damages.  Lay juries award more money.  Their awards also show greater variability than judges.   Also, laypersons tend to characterize injuries as more severe than judges.

Much about the psychology of trial judging, if a psychology of trial judging can exist, seems to remain well below the water line.  In the final part of the essay, the author envisions certain issues or topics as important for future research to grow the psychology of trial judging into a more mature discipline.  One relates to the “how” of investigating judges and their decision-making.  In order for the discipline to mature, more direct observation of judicial decision-making needs to occur.  To gain more information so that deeper insight can develop, researchers, according to the author, need to perform qualitative research.  They need to see and hear how judges do their work.  This “systemic effort” will “complement archival and experimental research in order to better understand judicial behavior.”  The author describes this type of research as having “an especially important role to play in a mature field of the psychology of judging.”  For example, prior research has shown that cognitive errors affect trial judges’ decisions.  But, research has not yet shown how those errors influence the outcome of real trials.

The number of people who pursue or defend claims without a lawyer continues to increase in state and federal courts according to the author.  Some have been concerned that these persons have a different experience in the justice system relative to those who have lawyers.  What factors explain this difference?  Perhaps, some have suggested, trial judges’ concerns about substantive justice impacts pro se litigants’ perceptions of procedural justice.  Also, do trial judges make exceptions for these litigants?   A more mature psychology of trial judging may provide better insight into these important issues.

The article began with a discussion about how trial judges must defer to legal precedent.  Trial judges’ “personal beliefs about the most just outcome of a particular dispute must often be subjugated in deference to consistency with the relevant body of law.”  The article ends on the same topic.  Referencing another scholar, Schauer (2008), the author concludes his piece by emphasizing that “there exists no clear articulation of a theory of judicial psychology taking into account the critical role of precedent in legal decisions.  Moreover, issues of precedent apply to many areas beyond the legal context, such as organizational decisions. A substantial effort to explore the effects of precedent in judicial decision-making could open a much broader field of inquiry.”

It seems that a psychology of trial judging exists.  It provides fertile ground for psychological science researchers.  By its investigators perhaps gaining a better insight into the unique personal and organizational factors and using observational and descriptive techniques to explore that rich context, the discipline can mature.

Article Source:  Vidmar, N. (2011). The Psychology of Trial Judging Current Directions in Psychological Science, 20 (1), 58-62 DOI: 10.1177/0963721410397283.

Image Source:  The Honorable Learned Hand, http://en.wikipedia.org/wiki/Learned_Hand.

Thank you.  Please visit again soon. Dan DeFoe JD, MS – Adlitem Solutions | Organization Development for Professional Services Firms and the Legal Profession: People. Projects. Practices | www.adlitemsolutions.com |dan@adlitemsolutions.com | Blog www.psycholawlogy.com.  See you next time.

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Psychological science provides evidence from a number of different types of empirical studies, cross-sectional, longitudinal, and experimental, which shows that brief, self-administered, and cost-effective positive intentional practices, e.g. writing letters of gratitude, counting blessings, performing kind acts, visualizing ideal future selves, and meditating, can actually improve well-being.  Happiness-increasing strategies work.  The authors drew upon theory and that empirical proof to construct and test a new model – “positive activity model” – which provides an overview of activity features and person features which combine to how and why those happiness-increasing strategies work best.  According to them, millions of people can now benefit from empirically based advice.  This post highlights the moderators and mechanisms of and the beginning understanding afforded by the new model into “the how, what, when, and why of happiness-increasing strategies” reported in the article.

The positive-activity model depicts a process in which positive activities operate as such for an individual only if they increase positive emotions, positive thoughts, positive behaviors, and need satisfaction.  Together, these increase happiness, or well-being.  Activity features, e.g. type of behavior and how often practiced, and person features, e.g. person motivated to pursue happiness, render a positive activity optimally effective.  The person-activity fit between the person and the activity influences and predicts an activity’s success.  These three constitute the moderators of the positive-activity model.

Features of the positive activities influence success at increasing happiness.  The general points, categorized as “across activities” or “between activities”, shown by prior research, include:

Across Activities:  Conceivably Applied to Any Positive Activity

• Dosage, i.e. frequency and timing, matters:  determining the ideal dosage varies by person and by activity; some patterns may dilute effectiveness while other patterns may overdo it; your own happiness choices appear to do better than following instructions;
• Variety:  performing varied activities more likely to promote sustained change than performing same kind of activity;
• Trigger activities:  certain activities better at triggering increases in well-being than others;
• Social Support: social support from peer can bolster benefits of positive activities compared to those who do not receive support.

 Between Activities:  Differentiates Positive Activities From One Another

• Other vs. Self-Oriented:  certain activities work best for certain people;
• Social vs. Reflective:  social-behavioral in nature, e.g. being kind differs from reflective-cognitive, e.g. savoring happy times, the latter benefitting lonely people perhaps;
• Time Orientation:  present (savoring the moment) vs. future (thinking optimistically) vs. past (expressing thanks).

According to the authors, in consideration of the above, “Overall, positive activities that have optimal features are more likely to promote durable well-being.”  Features of the person matter, too.  Those attributes get summarized below.

Features of the person engaging the activity influence success at increasing happiness.  Researchers have identified several areas, and a summary of the key points from research studies appears below:

• Motivation and Effort:  self-improvement, i.e. increasing happiness requires effort and motivation to become happier;
• Efficacy Beliefs:  have to believe that your efforts will pay off;
• Personality:  Extraverts and persons open to experience have predispositions to benefit from happiness-increasing activities;
• Initial Affective State:  predicts degree of success, but research results currently split;
• Social Support:  happiness seekers who receive / feel more support from close others have relatively greater happiness gains;
• Demographics:  older people benefit more than younger from practicing happiness activities.

The mechanisms of happiness remains an opportunity area for scientists.  The science of happiness, according to the authors, has begun to show the conditions under which positive activities increase well-being.  But, “investigators still know little about how positive activities work and about the the processes by which they boost well-being.

Research has shown that simple, intentional changes in thought and behavior can create meaningful increases in happiness and well-being.  Through the “positive-activity” model, the conditions under which positive activities do their best work have been pinpointed.  The model also addresses the activity features and the person features which influence the success of positive activities as people perform them.  This very readable article concludes by stating “In sum, as researchers begin to understand the how, what, when, and why of happiness-increasing strategies, they will become better positioned to provide empirically based advice to the millions of people  - in family, school, work, health, organizational, or mental health settings – who yearn to happier.

Professor Sonja Lyubomirsky, the lead author of the article featured in this post, wrote The How of Happiness: A New Approach to Getting the Life You Want in 2008.  The book’s webpage, www.thehowofhappiness.com, sets out twelve (12) happiness-enhancing strategies in summary format.  These “relatively simple intentional changes in one’s thoughts and behaviors can precipitate meaningful increases in happiness.”  These activities, based on experimental data as reflected in her book’s hundreds of end-note scientific journal citations, include:

1. Count your blessings: Express gratitude for what you have or convey your appreciation to one or more individuals whom you’ve never properly thanked.
2. Cultivate optimism: Imagine and write about the best possible future for yourself, or practice looking at the bright side of every situation.
3. Avoid overthinking and social comparison: Cut down on how often you dwell on your problems and compare yourself to others.
4. Practice acts of kindness: Do good things for others, whether friends or strangers, either directly or anonymously, either spontaneously or planned.
5. Nurture relationships: Pick a relationship in need of strengthening, and invest time and energy in healing, cultivating, affirming, and enjoying it.
6. Do more activities that truly engage you: Increase the number of experiences at home and work in which you “lose” yourself, which are challenging and absorbing.
7. Replay and savor life’s joys: Pay close attention, take delight, and go over life’s momentary pleasures and wonders – through thinking, writing, drawing, or sharing with another.
8. Commit to your goals: Pick one, two, or three significant goals that are meaningful to you and devote time and effort to pursuing them.
9. Develop strategies for coping: Practice ways to endure or surmount a recent stress, hardship, or trauma.
10. Learn to forgive: Work on letting go of anger and resentment towards one or more individuals who have hurt or wronged you.
11. Practice religion and spirituality: Become more involved in your church, temple, or mosque, or reading and pondering spiritually-themed books.
12. Take care of your body: Engaging in physical activity, meditating, and smiling and laughing.

Science has shown that effective, accessible, and inexpensive happiness-enhancement strategies exist.  Next step?  The self-administration of these cost-effective positive interventions to improve our subjective well-being . . . .

Article Source:  Lyubomirsky, S., & Layous, K. (2013). How Do Simple Positive Activities Increase Well-Being? Current Directions in Psychological Science, 22 (1), 57-62 DOI: 10.1177/0963721412469809.

Thank you.  Please visit again soon. Dan DeFoe JD MS – Adlitem Solutions | Organization Development for Professional Services Firms and the Legal Profession: People. Projects. Practices | www.adlitemsolutions.com |dan@adlitemsolutions.com | Blog www.psycholawlogy.com.  See you next time.

The post The How, What, When, and Why of [Lawyer] Happiness Increasing Strategies: Initial Understanding From the “Positive-Activity Model” appeared first on Psycholawlogy.

Workers experience discrimination and therefore they need coping tools.  These researchers show how targets experience and manage their social identities and stereotypes in order to psychologically cope with discrimination.  The phrase “balancing act” appropriately describes that process as the targets must do a cost / benefit analysis since these identity management coping strategies provide, at best, short term solutions in our current organizational workplace discrimination environment.  That teeter/totter motion becomes more unbalanced, however, as the diversity policies of organizations can hinder coping strategies by targets.  This post will attempt to provide a sketch of those main ideas and note some implications.

Workplace discrimination occurs in many ways, some direct and open, and others indirect or very subtle [stigmas with disabilities; incivility such as condescending tone or interruption; or microaggressions, such as slights or insults targeting a person or group].  It injures people, both targets and witnesses [economic, such as in fighting discrimination or physical, such as health, psychological], harms organizations [legal costs, damages settlements or awards, productivity and bottom line], costs multiple millions of dollars per year [see the EEOC webpage for frequent reports about settlements, judgments, and consent decrees, which total millions of dollars] and because context moderates its impact, i.e. a person who has “majority” status and experiences no discrimination in one context can become a target of discrimination in another context, workplace discrimination can affect almost everyone.  With those issues, we can reasonably agree with the authors that “Examining discrimination in the workplace is of utmost importance for several reasons.”  Drawing upon years of psychological science research, their piece “explores strategies to deal with discrimination in general and does not focus on specific groups.”

Workers may use identity management strategies to deal with discrimination.  We each have multiple social identities.  These identities already reside within us and identity management strategies do not depend on the identities of others in the situation.  The worker can choose to emphasize characteristics or create new associations. The authors introduced two classes of identity managements strategies:  identity switching and identity redefinition.

Identity switching involves two processes.  Deemphasizing must occur first.  A negatively valued target identity gets deemphasized.  It then gets replaced with a more positively valued one.  Research has shown that the first component process, deemphasis of a negatively valued target identity, can occur by concealment [e.g. sexual orientation minorities do reveal their personal lives], discretion [keep the disadvantageous identity in background], and disidentification [e.g. older worker uses "youth" language].  The second process of identity switching involves recategorization with a positively valued identity.  The negatively valued identity gets replaced with one of more positive value.  One example of this management strategy from prior research involved undergraduate medical students dressing more formally in order to help them assume professional roles.  The authors show that as a workplace discrimination coping strategy, identity switching has positive [avoid blows to self-esteem in short term; performance boosts when advantageous identities emphasized] and several negative [increased cognitive load due to concentrating on features trying to hide; performance decrements; some organizations have no tolerance / discourage switching; higher incidence of depression and other health problems with concealment; long-term leads to unstable sense of self and poor well-being] consequences.

Workers can also use identity redefinition as a coping strategy.  Through stereotype reassociation, disassociate from negative stereotype [e.g. women deemphasize quantitative aspects of tasks and emphasize social skills] and stereotype regeneration, redfine traits or behaviors associated negative stereotype [e.g. think of women as strong negotiators] workers can redefine the meaning of an identity within an organization.  The identity redefinition coping strategy can protect self-esteem. The authors point to studies which have associated better psychological outcomes.  But, downsides occur, too, with this coping strategy.  One example noted involved successful women who redefined themselves from “warmth” to more assertive, but only to suffer backlash from getting perceived as “less likeable”.  The authors noted also that longer term harmful consequences can flow from identity redefinition.  This many include dissociation with one’s social identity group, which can deprive a person of social support network.

The authors discuss how organizational diversity policies “affect how easy or difficult it is for targets to use identity management strategies”.  Organizations communicate how much emphasis will get directed on minimizing workplace discrimination by their diversity policies.  See this example This communication occurs in many ways.  From formal statements in an organization’s mission statement to board of directors statements to day-to-day management communication, workers, and the public, can pick up cues on about the need for identity management strategies.  Diversity policies moderate and “can have a tremendous impact” on the ability of victims to cope with discrimination.  Two basic diversity policies exist:  color-blind and multicultural.  Each differ in the underlying assumptions.  Each has benefits and downsides in terms of identity management coping strategies.

Some organizations assert that they have a “color-blind” policy.  Here, the focus gets directed at the organizational identity.  Group identities get ignored.  This policy stress individual accomplishment and merit.  A color-blind diversity policy does not recognize different social identities.  Everybody gets treated equally as individuals.  Under this policy, aspects of the individual’s identity get deemphasized.  According to the authors, “organizations using a color-blind approach make it difficult for targets to switch and maneuver among their many social identities and deflect negative consequences through this strategy.”  This type of diversity policy tries to eliminate direct, deliberate bias.  However, research has shown that col0r-blind diversity policies do not address implicit bias.  ”A color-blind approach is associated with greater racial bias than multicultural approaches.”  Other studies have shown that minority members perceive these approaches as exclusionary.  This results in minority employees having lower engagement.  A final consequence of “treating everyone equally” involves the evaluation process.  An organization which uses “majority norms” as evaluation criteria actually can perpetrate discrimination against certain groups.  Color-blind organizations, however, do not recognize group identities.

Multicultural diversity policies “celebrate group differences and identities encouraging individuals to learn about and accept differences among groups.”  Minorities tend to favor these types of policies, according to the authors.  Members of nonminority groups can sometimes feel excluded and view multicultural efforts as “preferential treatment for minorities, rather than as efforts to level the playing field.”  Some research has shown that nonminorities discredit multicultural efforts and in some instances hostile behavior to minority can actually increase.

This recent comprehensive article in the flagship journal of the APA shows how targets of discrimination can use identity management strategies to cope with workplace discrimination.  Identity management and identity switching each have upsides and downsides.  Each strategy provides only short term solutions to the far-reaching problem of discrimination in the workplace.  These general psychological identity management coping strategies have the potential for harmful consequences if used long term.  The authors also noted that while individuals can use these strategies, “Organizations should also take steps to reduce the potential for harm associated with the use of these strategies.”  The authors also showed how diversity policies have tremendous impact on the ability of discrimination victims to use identity management strategies.  The social context of the organization moderates the effectiveness and collateral consequences of the use of identity management coping strategies.  The authors call for more research because discrimination continues to occur and they conclude their piece, stating “Thus, individuals who use these strategies must determine whether the benefits of these strategies outweigh the costs – a difficult task when the consequences are unknown.”  The same types of considerations apply to organizations, too, as they develop and implement diversity policies.  Teeter-totter.

Article Source:  Shih M, Young MJ, & Bucher A (2013). Working to reduce the effects of discrimination: Identity management strategies in organizations. The American psychologist, 68 (3), 145-57 PMID: 23586490.

Thank you.  Please visit again soon. Dan DeFoe JD MS – Adlitem Solutions | Organization Development for Professional Services Firms and the Legal Profession: People. Projects. Practices | www.adlitemsolutions.com |dan@adlitemsolutions.com | Blog www.psycholawlogy.com.  See you next time.

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Psycholawlogy features emotional intelligence as one of its main topic areas.  The research reported in this post also relates to another topic, affective forecasting, which has connections with judgments about workplace discrimination, another of Psycholawlogy’s main topic areas.  For those interested in learning more about emotional intelligence and its possible applications in personal, professional, and organizational life, read on.  I hope that you enjoy.

Broadly defined and considered, these researchers stated that emotional intelligence exists as a “core set of cognitive emotional processes that involve perceiving, using, understanding, and managing emotions.”  Prior research has associated emotional intelligence with laboratory performance related to identifying, judging, and reasoning about emotions and other studies have suggested it facilitates academic achievement, job performance, and social adjustment.  The authors describe these immediately observed benefits and potential future advantages of emotional intelligence as “significant and far-reaching”.

According to the authors, several research studies over the past decade and later shows at least an indirect link between emotional intelligence [a. skill in perceiving one's emotions; b. understanding individual differences in emotional reactivity and coping; c. emotional knowledge and memory] and affective forecasting skills [related to a., mindful awareness and attention to emotional processes; related to b., not overlooking impact of personality, attachment style, and coping processes; related to c. knowledge of normative emotional reactions and ability to learn from emotional experience].  The foregoing background provides the theoretical basis for the first study, in which the researchers examined whether emotional intelligence has any association with affective forecasting accuracy.

In Study 1, the researchers examined affective forecasting and had the study participants view 10 “emotionally evocative” pictures [e.g. cemetery, woman with a black eye, moldy bread, children sledding, family wedding photo] and the participants rated their predictions for how the pictures would make them feel  [after reading written descriptions] and actual reactions [8-10 weeks later, after viewing each picture]. The participants predicted/reacted to this question “How does this picture make you feel?”.  The study participants took performance-based emotional intelligence assessments [Interpersonal Judgment Inventory and Judgment of Emotions Test] and self-report surveys of emotional intelligence [Self-Rated Emotional Intelligence Scale (SREIS), Trait Emotional Intelligence Questionnaire-Short Form (TEIQue-SF), and Survey of Emotional Intelligence (SEI)].  The investigators assessed cognitive functioning, for purposes of control, with four different indicators:  ACT score, college GPA, a brief, i.e. 26 item, test of general information, and the Verbal-Mathematical-Logical Test.  Without elaborating here about the statistical techniques employed in the first study’s analyses, after controlling for cognitive functioning, the investigators showed that certain individual difference variables of three (3) emotional intelligence measures accounted for incremental variance in prediction accuracy: well-being, perceiving emotions, and the Judgment of Emotions Test.  The investigators stated that the “Results supported our hypothesis that emotional intelligence is associated with greater prediction accuracy.”

The second study investigated whether affective forecasting skills change with experience.  If so, do memory processes explain that relationship?  According to the authors, no prior study has investigated specific memory processes in the development of emotional skills.  The researchers investigated whether encoding [first stage in memory process in which cognitive processes turn stimuli into meaningful units of information] and consolidation [process of retaining encoded units] play a role in explaining any link between emotional intelligence affective forecasting improvement.  The theory behind this study relates to the premise that emotional intelligence abilities confer advantages in acquiring and benefiting from knowledge gained through emotional experience.  This should improve affective forecasting over time.  This briefly explains the theoretical background for Study 2.

The participants in Study 2 completed the same measures as Study 1 and also an additional performance-based measure of emotional intelligence, the Situational Test of Emotional Understanding (STEU).  They completed two affective forecasting tasks, each involving 20 emotional pictures.  After viewing a written description, the participants predicted their reactions to each of the pictures.  Next, they viewed each picture, from a random listing, and then rated their actual reactions.  A period which averaged about 3 minutes separated the predicted ratings and the actual ratings.  The researchers then collected recollected reactions.  They asked the participants to “Please attempt to recall how you felt when you viewed each of the pictures described below. . . . ”  After reading the descriptions of the pictures, the participants rated their recollections.  The researchers then presented the second set of 20 pictures and followed the same procedures as with the first set.  In summary, the participants made four sets of emotion ratings:  predicted, actual, immediately recollected, delayed recollected.  Without elaborating on the statistical analyses part of the results and discussion, the study showed that performance-based emotional intelligence accounted for incremental variance in prediction accuracy, encoding accuracy, consolidation accuracy, and total improvement, when controlling for cognitive function and self-report emotional intelligence.  Self-report emotional intelligence did not explain improvement in prediction, encoding, and consolidation accuracy.

The investigators noted the importance of their study, “Emotional intelligence was associated with enhanced affective forecasting accuracy, better memory for affective reactions, and improved affective forecasting skills with experience.”  Without detailing the limitations of the studies that the researchers acknowledged, they also noted that the research provides preliminary evidence which suggests that emotional intelligence has a relationship with improvement in affective forecasting and that memory processes may have an important role for the development of affective forecasting skills.  The research showed that individual differences in memory of personal reactions to emotional situations can explain improvements in affective forecasting.  ”Consolidation – the process of retaining previously encoded experiences in memory – may be particularly important for the development of affective forecasting skills.”

Some may ask wonder this research has any potential application for decision-making and affective forecasting in the legal profession.  Arguments for and against probably exist.  Lawyers will make these arguments.  But, researchers have explained that we make choices about important life events based upon our predictions of future emotional reactions.  Logic persuades that this easily applies to legal decision-making.  The study authors suggest that fertile research areas exist for decisions about health care, public policy, and personal finance.  Affective forecasting errors involve overpricing and underpredicting the intensity of emotional reactions.  While no prior research has specifically studied legal decision-making, affective forecasting problems have occurred “across a variety of contexts”.  Predictions about our  future emotional reactions to choices about clients, strategies, issue evaluations, negotiation, compromise, and dispute resolution impact the day-to-day work of lawyers.  There seems to be no escape from emotions in the practice of law.

Paying attention to the application of the science of emotional intelligence and its link with affective forecasting quite possibly will become an important piece of “best practice” for the practice of law in the future.  Can you accept this challenge?  Let us know your thoughts, please.

Article Source:  Hoerger, M., Chapman, B., Epstein, R., & Duberstein, P. (2012). Emotional intelligence: A theoretical framework for individual differences in affective forecasting. Emotion, 12 (4), 716-725 DOI: 10.1037/a0026724.

Thank you.  Please visit again soon. Dan DeFoe JD MS – Adlitem Solutions | Organization Development for Professional Services Firms and the Legal Profession: People. Projects. Practices | www.adlitemsolutions.com |dan@adlitemsolutions.com | Blog www.psycholawlogy.com.  See you next time.

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A very important emerging stream of psychological science research shows that predictors take on a perspective similar to investigators, jurors, lawyers, and judges and from their perspective they react differently compared to the perspectives of those who experience the misconduct (complainants) and those who observe it (fellow workers).  The authors suggest that these differences in judgment about harassment experiences have implications for the law of hostile work environment harassment.  The authors suggest that their work “can make a contribution to our understanding how the law can and does influence our everyday lives.”

A team of leading psycho-legal researchers developed an experimental paradigm which simulates the perspectives of the targets, observers, and predictors.  This experimental analogue of sexual harassment encompasses the law’s subjective and the objective tests specified by federal law.  The research team utilized sexual objectification and affective forecasting to create an experimental model.  They investigated the effects of overt and intentional messages conveyed by sexual objectification on judgments of hostile work environment harassment.  As discussed below, the results showed that predictors have a lower threshold for discrimination than the experiencers.  This post highlights a synthesis of the psycho-legal concepts and theories which provides the research background, summarizes the research methods, notes the results obtained, and notes how the authors relate how this research has implications for the law of hostile work environment harassment.

This research study applied the legal perspective of Title VII of the Civil Rights Act of 1964 (as amended) in the experimental model.  Several states have their own human rights or workplace rights laws and many incorporate the federal standards.  This study did not consider any state law.  Under federal law, an employer who subjects a worker, because of sex, to unwelcome misconduct, i.e. social sexual behavior, of sufficiently severe and pervasive character to alter the conditions of employment may become liable for harms.  The complainant must experience such behavior, i.e. the “subjective” test, and a from the viewpoint of a “reasonable other”, similar findings of unwelcomeness, severity, and pervasiveness must result.

Prior research has identified several factors which can predict judgments about allegations of sexual harassment in the workplace.  Situational factors shown to predict judgments of allegations include power relationships, occurrence of pornography in the workplace, and the gender and race of the complainant.  disposition factors, such as ambivalent sexism, the attribution style of the observer, and attitudes toward rape, according to the authors, have been shown to predict judgments about sexual harassment.  Several other factors, e.g. such as expert testimony, the work status of the evaluator, and, among others, the behavioral tone of the complainant, have been associated with predictions of sexual harassment.  Against that background, the researchers stated “The current research examines the effects of overt and intentional messages conveyed through sexual objectification on judgments of hostile work environment harassment.”

The researchers utilized subtle sexual objectification behaviors and appearance comments to examine whether uninvited sexual conduct may create a hostile work environment from the perspectives of experiencers, observers, and predictors.  Drawing upon over twenty years of prior studies, the authors state that sexual objectification “occurs when people’s sexual parts or functions are separated out from the person, reduced to the status of mere instruments, or else regarded as if they were capable of representing the people.”  The targets may view such behavior as unwelcome misconduct.  Sexually objectifying behavior runs on a continuum from violent behavior, like assault, less common in the workplace, to subtle behavior, like objectifying gazes and appearance remarks, more common in the workplace, and it can become sufficiently severe and pervasive to create a hostile work environment.  Several prior studies show that women experience objectifying gazes, e.g. fixated gaze at chest, and complimentary appearance remarks, e.g. “you’re looking great”, 1-2 times per week in their workplaces.  These experiences cause adverse consequences, including negative body perceptions and work consequences, according to prior research.  According to the researchers, no prior studies have examined the effect on performance of subtle sexual objectifying gazes paired with appearance remarks.

A concept called “impact bias” provided the researchers a theoretical basis to explain the differences between the subjective and objective standards used to make judgments about sexual harassment.  A couple of other concepts come into play here.   A person’s psychological immune system controls their reactions to positive and negative events in their environment.  It protects experiencers from the negative emotional consequences of sexual misconduct.  Prior studies have established that persons who experience those events automatically and unconsciously adjust their emotional reactions and gain a rapid return to equilibrium.  Related research has shown that those who observe and predict the targets’ behavior expect them to experience a longer lasting and deeper emotional experiences.  This asymmetry has been identified as the Asymmetric Immune Knowledge Hypothesis.  We know more about our own coping abilities than others. Prior studies have shown that we predict shorter emotional reactions for negative events ourselves than for others.  Another aspect of affective forecasting theory concerns “focalism”.

The term “focalism” as used in the literature connotes another kind of inaccurate judgments about emotional experiences of others.  Those who have investigated this mechanism, have suggested that predictors of future affect focus too much attention on the focal future event and to little on co-occurring events.  Transporting those concepts to the research at hand, the research team suggested that “Predictors, and to a lesser extent observers of social sexual misconduct, may overestimate the negative emotions associated with sexual objectification under conditions in which the objectification is neither severe nor pervasive because they focus on the negative event and underestimate the ability of experiencers to cope with objectification.”

The experiments subjected the female participants to a job interview for a secretarial type position.  The researchers simulated the three perspectives of experiencer, observer, and predictor.  Trained male research confederates for the experiencer perspective stared at the participants’ chests for two seconds and specified times after asking closed-end questions and made comments, some of which included the phrase “. . . you’re looking good. . . ” or “. . . for a woman as good looking as you . . . ” They also completed a measure of current emotion,  a work performance test, and a sexual harassment questionnaire.  Those in the observer perspective observed a randomly sampled DVD video showing a participant in the experiencer perspective.  The observers completed a questionnaire in which they recorded their perceptions of the feelings of the woman in the video, predicted the work performance of the experiencer, and a sexual harassment questionnaire from the objective and self-referenced, i.e. perspective of the experiencer.  The predictor condition participants read a description of the interview.  They completed same measures as the experiencers and observers.

The results obtained and brief discussion of the main points includes the following:

• The sexual objectifying gazes coupled with appearance comments had no negative impact on the experiencers ‘ performance – their psychological immune systems worked to help them interpret the objectification in a slightly positive way;
• Predictors, but not observers of the objectification, forecasted negative impact on performance and stronger negative emotions than the experiencers actually reported or than the observers expected them to report;
• Predictors, who take the perspective similar to that of investigators, jurors, lawyers, and judges, who evaluate discrimination claims from the perspective of third person observer, found stronger evidence of harassment than the experiencers actually reported. The authors stated “Our data suggest that these individuals have a lower threshold for discrimination than do the experiencers themselves.”
• Experiencers did not report differences in the positive or negative emotions that they actually felt because of the sexual objectification, but predictors forecasted stronger negative and weaker positive emotions when compared to the control group.  The researchers noted that third party evaluators may react more emotionally to complainants than is justified by the complainant’s own responses and further stated “The implication of this finding for investigations of mild allegations is that hearing examiners in the organization or the E.E.O.C. could overestimate the impact of social sexual conduct on the emotion well-being of the complainant.”
• Because the law requires that judgments of harassment take the subjective experiences of the harassment victim into consideration, then “evaluators may have a tendency to fall short of that requirement, and instead base their judgments on their own anticipated experiences and forecasted emotions.”
• The research study demonstrated that the effects of subtle sexual objectification and appearance commentary vary according to perspective and the results here suggest that the female targets cope better than observers and predictors believe that they can.

This research, like any other study, has limitations.  No analogue can capture the richness of the workplace environment.  But, this study broke new ground.  It constitutes the first attempt, according to the authors, to manipulate unwelcome social sexual misconduct so that its impact as sexual harassment could get evaluated from multiple perspectives – experiencer (victim), observer (co-worker), and predictor (investigator or trier of fact). According to the authors, “the findings begin to show that experiencers, observers, and predictors evaluate sexual objectification very differently and that those differences have implications for the law of hostile work environment harassment.”

The emerging science and topic of affective forecasting and the psychological immune system as described in this article should catch the eye of judges, lawyers, EEO investigators and others charged with various tasks concerning judgments and decision-making and hostile work environment, sexual harassment, and discrimination.  Watch for future posts on Psycholawlogy.

Article Source:  Wiener, R., Gervais, S., Allen, J., & Marquez, A. (2012). Eye of the Beholder: Effects of Perspective and Sexual Objectification on Harassment Judgments. Psychology, Public Policy, and Law DOI: 10.1037/a0028497.

Thank you.  Please visit again soon. Dan DeFoe JD MS – Adlitem Solutions | Organization Development for Professional Services Firms and the Legal Profession: People. Projects. Practices | www.adlitemsolutions.com |dan@adlitemsolutions.com | Blog www.psycholawlogy.com.  See you next time.

The post Predictions About Workplace Sexual Harassment: Experiencers, Observers, Predictors, and the Psychological Immune System appeared first on Psycholawlogy.

As a trial attorney who has tried civil and criminal cases for over twenty years, and who has served as a civil juror, I hope that you share my interest in this unique institution.  Our jury system serves as a cornerstone of our government.  The American jury resolves fewer cases now.  But, it assumes a role of central importance in the law.  Predictions about verdicts drive resolutions of civil and criminal cases on a daily basis.  A summary of the researchers’ review of the current state of psychological and legal scholarship about jury decisions, juror decisions, jury decision processes, their conclusions, and thoughts about future directions appears below.

Psychologists and legal scholars really do not have the ability to tell that a jury has reached the “right” verdict.  Instead, the question should ask whether the jury, in consideration of the evidence and law, rendered a reasonable verdict in the circumstances.  So, the issue becomes how to assess jury performance.  The authors outline three ways to analyze that issue:  comprehension, reliance on evidence, and expert decision-makers.  Each way carries psychological implications.

Jurors struggle with jury instructions.  The authors describe juror comprehension of instructions as “generally poor”.  My wife, a nurse with over 30 years of experience in ER, ICU, and surgery,  recently served on a criminal jury.  She reported after her service ended that she and her fellow really jurors struggled with trying to make sense out of the jury instructions.  She asked “. . . where do you guys get those instructions. . . who writes them?”  Also, she questioned why “nobody explained what the instructions mean.”  She related a pretty typical experience as the psychological research indicates that jurors’ comprehension, especially of instructions, is generally poor, according to the authors.  Many jurisdictions have heeded direction from the ABA, and have undertaken writing projects.  Even though some individual jurors may understand and clarify instructions for fellow jurors, the authors indicate that “deliberations do not improve comprehension or correct misconceptions”.  The bottom line, however, stated by the authors is “better comprehension does not necessarily mean better performance”.

Jurors must process so much information as they decide cases.  Teams of attorneys and an army of assistants will march into the courtroom armed with laptop computers, boxes and boxes of documents, and trial notebooks with hundreds of pages of exhibits, deposition transcripts, and a number of other items.  Trial assistants or “hotseat” operators can locate one document out of hundreds and project it on a projection screen in the courtroom in a matter of seconds.  Yet, the jury in most cases must sit in silence, sometimes for days, unable to speak with their fellow jurors about the evidence and must process the evidence presented and then “remember” everything that they have seen and heard until after final arguments and it comes time to deliberate.  Most jurors must suffer in silence in their jury service experience.

The authors suggest that the second possible answer to the question about how to assess jury performance relates to whether the jury properly relies on legal evidence.  Do juries rely on information admitted into evidence?  They should.  Jurors should ignore information not admitted into evidence.  The authors state that research shows that jurors generally do rely on legal evidence.  Injury severity serves as the best predictor of damage awards in civil cases.  They explain ”In fact, the substantive evidence presented in a trial is the most powerful determinant of jurors’ verdicts.”  But, some circumstances degrade jurors’ ability to make appropriate use of trial information.  In injury cases, research has shown that jurors have difficulty awarding damages consistent with each plaintiff’s injuries.  Inadmissible evidence sometimes taints jury deliberation processes.  Preexisting beliefs about the law, known as cognitive schemas, and heuristics, short-cuts which can lead to erroneous judgments, affect jurors’ proper consideration of trial information.

A third answer to the issue of assessing jury performance pertains to “experts”.   That is, do judges make better decision-makers?  According to the authors, research shows that overall, “judges agree with jury verdicts roughly 75% to 80% of the time.”  Furthermore,  ”this high rate of agreement occurs across cases of varying factual and legal complexity.”  Also, when judges and juries disagree, the authors state “there is usually credible evidence to support both sides.”   Citing to extensive legal scholarship, the authors close this part of their survey of the research by stating that “judges need not be considered the ‘gold standard’, as their reasoning is susceptible to the same sorts of biases as jurors’ reasoning.”

Jury trials “involve contradictory accounts of past events and, often, uncertainty about future events as well.”  According to the authors, research shows that jurors engage in an explanation-based decision process.  In that process, they construct narrative frameworks which provide plausible interpretations of evidence.  Jurors have different perspectives of the trial evidence.  These different perspectives exist because jurors’ filter the evidence through their experiences, attitudes, values, and beliefs.  In jury deliberations, jurors must reconcile their different perspectives.  This process involves remembering and rejecting.  Research shows that jurors remember trial information which aligns with their initial verdict preferences, which can come from general legal attitudes, preexisting cognitive schemas, pretrial publicity, opening statements, and early trial evidence, and that they reject information which does not.

Jury decision-making involves active information processing.  Research shows that more than just the evidence and legal guidelines influences jurors.  Matters peripheral to the evidence, such as credibility of witnesses, credentials of an expert, or even the attractiveness of a witness can affect their information processing.  How a juror processes the trial information has impact, too. This can occur through systematic effort in which a juror uses expertise or quickly, by jurors using automatic responses, known as cognitive heuristics.  Jurors use heuristics, e.g. for damages, juries utilize “anchoring” – an estimate during trial, when evidence concerns issues about which they lack familiarity or experience.  Recent research has examined how jurors’ emotions and moods can influence information processing.  Jurors construe evidence in a direction consistent with their moods.  Post-trial research indicates that jurors think that they carefully evaluate evidence and jury instructions.   Also, similar research shows that jurors desire to carefully evaluate and report that they spend much time discussing expert testimony.

Group processes produce jury verdicts.  ”The strongest predictor of a jury’s verdict is the distribution of individual pre-deliberation verdicts:  In approximately 90% of trials, the position favored by the majority at the beginning of the deliberations becomes the jury’s verdict.”  But, the genie of understanding how to translate individual preferences gets translated into a group decision has not yet been let out of the bottle.

A final piece of recent research reported by the authors relates to styles of deliberation.  This relates to the “decision rule”.  When all jurors must agree on the verdict, the research shows that the evidence drives the verdict.  This contrasts with verdict-driven deliberation style.  When all must agree, the jurors seek to find the “truth” from the evidence.  With a non-unanimous verdict, the verdict-driven style has those juries taking early and frequent votes as they seek to find the verdict option most acceptable to jurors.

The authors concluding remarks begin with them describing the jury as a “curious institution — a hallmark of Anglo-American legal procedure, yet one that is used sparingly.”  The study of jury decision-making encompasses a number of social and cognitive psychological processes.  The study of juror behavior shows that “jurors’ task is not an easy one”.  Psychological science research has a number of things to address now and the future concerning this “curious institution”:  animations, virtual-reality reenactment, cell phone use by jurors, and social networking, to name just a few.

As suggested by the “jury box” image, jury service and jury decision-making has kept its role of central importance in our system of justice.  The image also suggests that jury service has become much more complicated, complex, and challenging for jurors, parties, lawyers, judges, and the courts.  Lawyers should appreciate the give and take between psychological science and the American jury system.  Psychological science gives reasons and instructs lawyers that they must strive to make their jury presentations simple, direct, concise, understandable, and authentic.  Those who do will honor their oath and serve their clients, their profession and our system well.

Article Source:  Bornstein, B., & Greene, E. (2011). Jury Decision Making: Implications For and From Psychology Current Directions in Psychological Science, 20 (1), 63-67 DOI: 10.1177/0963721410397282.

Thank you.  Please visit again soon. Dan DeFoe JD MS – Adlitem Solutions | Organization Development for Professional Services Firms and the Legal Profession: People. Projects. Practices | www.adlitemsolutions.com |dan@adlitemsolutions.com | Blog www.psycholawlogy.com.  See you next time.

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A team of Australian psychological science researchers recently investigated the relationship between emotional intelligence [EI] and psychological health and law students.  Their purpose statement noted:  ”Knowing more about the EI of law students may help us to understand their apparent high incidence of depression, which has been reported extensively in the United States and more recently in Australia. The evidence from the United States shows that law students experience a significant deterioration in their mental health status during law school, whereas the Australian research confirms law students have higher rates of psychological distress and depression than community members of similar age and sex and that the deterioration in mental health may begin in the 1st year of study.”  The investigators use reports of America’s experience as a backdrop as they endeavor to address a serious concern about Australian legal education and that country’s legal profession:  the apparent vulnerability of law students to depression and mental health problems and the continuation of those problems for many as they enter the practice.  Reading this might make one ask “What about the USA?”

The researchers sought to identify the relationship between EI, personality, and a number of indicators of psychological well-being among law students.  They aimed to provide a way to better understand law students’ association with poor mental health indicators, such as depression.  Few studies have considered how EI and personality interact with law students.  This research involving Australian law students addressed that gap.  The study’s research foundations appear below.

One theoretical foundation rested with the past research employing various EI measures [ability- focus on relation between cognition and emotion; trait-emotions as adaptive in helping reduce tensions and improve well-being; capacity-skills, abilities, competencies that can be learned and developed] has shown that EI has correlated positively with leadership theory and practice and workplace performance as well as with psychological measures of well-being it has negatively correlated with anxiety and depression.

The second theoretical foundation derived from the “Big Five” theory of personality.  Extraversion, agreeableness, conscientiousness, openness, and neuroticism comprise the five domains of that dominant theory of personality.  Several studies have correlated one or more of the Big Five domains with job performance, subjective well-being, and career satisfaction, to name a few.  The personality factor neuroticism correlates with and predicts psychological well-being and distress.  Earlier studies of undergraduate medicine and psychology students have linked it with psychiatric symptoms.

The final theoretical foundation of this study concerns indicators of psychological health, EI, and personality.  The psychological health measures used by the investigators included the following:  a coping responses and coping skills inventory (Coping Responses Inventory – CRI) applied to stressful situations in the opposing psychological domains of approach and avoidance; self-esteem, as measured by the Performance Based Self-Esteem (PBSE) scale; psychological well-being, as measured by the Brief Symptom Inventory (BSI), which measures nine symptoms, including depression, anxiety, hostility, and phobic anxiety dimensions, and the General Severity Index (GSI), a global index of distress; alcohol dependence and abuse, measured by the Alcohol Use Disorder Identification Test (AUDIT), which can indicate high risk, harmful drinking behavior and possible alcohol dependency; and a measure of life satisfaction, measured by the Satisfaction With Life Scale (SWLS), an instrument which measures cognitive judgments about satisfaction with life.

The investigators used a 16 item self-report emotional intelligence assessment.  This relatively new instrument captures the following aspects of EI:  appraisal of own emotions, appraisal of emotions in others, use of emotion, and regulation of emotion.  The final measure assessed personality.  This assessment measured the Big Five personality factors of openness, conscientiousness, extraversion, agreeableness, and neuroticism.

The results obtained by these researchers points to a serious problem which merits further concern:  training for and entry into the legal profession implicates serious risks involving members’ psychological health.  While acknowledging their study’s limitations, the main take away points include:

• EI had a negative relationship with the presence and severity of psychiatric symptoms;
• EI had a negative relationship with the use of alcohol;
• EI had a positive relationship with satisfaction with life;
• The statistical analysis showed that EI did not significantly account for variance in psychological well-being over and above that accounted for by personality;
• The analyses showed significant and negative correlations between personality factors of agreeableness, conscientiousness, extraversion, and neuroticism with the symptoms of psychological health;
• Although EI has been found by other researchers to account for outcomes in other areas, e.g. job performance, this research did not establish its usefulness as a construct which accounts for additional variance over personality factors with regard to psychological health

The Australian researchers concluded their article by noting future directions:

•  Because law students appear to have dispositional factors which make them prone to depression and other mental health problems, and because those problems continue with the transition into legal practice, the need for further research appears important;
• Longitudinal studies must replace cross-sectional research;
• Future research should involve peer and other reports in addition to self-reports about experiences;
• The last sentence emphasizes the importance of this concern:   ”In the meantime, law (and other) schools should be motivated to develop programs that effectively engage and help law students to become aware of the risk factors for poor psychological health, including dispositional factors, and to provide skills training in how to take responsibility for their psychological well-being within the demands of their studies.”

Regarding the psychological health of law students and their early career entry, as defined, explained, discussed, and studied by this team of researchers, what about the future of American legal education and transition into the profession?  Where does the compass point?  Where does the pathway lead?  Does a dispute about its reality exist or has the American legal education system noted and considered this reported problem, engaged students accordingly, and implemented appropriate skills training?

Article Source:  James, C., Bore, M., & Zito, S. (2012). Emotional Intelligence and Personality as Predictors of Psychological Well-Being Journal of Psychoeducational Assessment, 30 (4), 425-438 DOI: 10.1177/0734282912449448.

Image:  School of Law, Tate Hall, University of Missouri – Columbia, alma mater of Psycholawlogy’s owner and lead blogger, Dan DeFoe JD MS.  A newer building now serves as home for MU’s School of Law.  The last law school class to begin and end law school studies at MU’s Tate Hall included the author.  Vivid memories of a sweat-drenched Torts professor during late afternoons in Mid-Missouri’s sweltering heat in a classroom with no air conditioning, apart from impossible hypotheticals, made a lasting impression.

Services. Adlitem Solutions, through its lead consultant, Dan DeFoe, JD, MS, a working lawyer with over 20 years experience also has a MS degree in organizational development psychology, and who is educationally qualified/certified to purchase, administer, interpret, and provide confidential feedback to clients about the results from the leading scientifically validated emotional intelligence assessments, including the EQ-i 2.0 and the MSCEIT, and the Hogan Assessments personality assessment inventories, Hogan Personality Inventory (HPI), Hogan Developmental Survey (HDS) and the Motives, Values, Preferences Inventory (MVPI), specializes in designing and providing custom interventions and solutions strategies for law students, lawyers, other professional service providers and their member organizations.

Thank you again. Please visit again soon. See you next time.  Dan DeFoe JD MS – Adlitem Solutions | Organization Development for Professional Services Firms and the Legal Profession: People. Projects. Practices | www.adlitemsolutions.com |dan@adlitemsolutions.com | Blog www.psycholawlogy.com.

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