When Is Facial

on ClieKnts and Witnesses?

BY JAN MILLS SPAETH & ROSALIND R. GREENE S N O M M O C

E V I T A E R C / Z M L I H P T A H P E H T ©

Traditional attitudes toward men’s have certainly taken a G R

turn in recent years, with O . V T C

the popularity and media R M coverage of and © mustaches skyrocketing. The Boston Red Sox definitely enhanced the Brian Wilson’s $1M national trend for growing beards two years ago when the entire team sported whiskers for solidarity before their World Series win. Famed baseball player Brian Wilson gained applause and fans when he refused in 2013 Michael Johnson, 2014 Freestyle Beard Winner

16 ARIZONA ATTORNEY JULY/AUGUST 2015 www.azbar.org/AZAttorney JAN MILLS SPAETH, Ph.D., and ROSALIND R. GREENE, J.D., are litigation consultants with Advanced Jury Research, based in Tucson. Working throughout the state and nationally, they assist with jury selec - tion, witness preparation, case strategy and focus groups/mock trials. Dr. Spaeth has published DVDs on witness preparation with the American Bar Association. They can be reached at 520-297-4131. www.adjuryresearch.com.

A recent World Beard and Mustache Championship was held in Portland. With roughly 300 entrants from around the world, and 18 categories, it was a media extravaganza. As can be seen by Michael Johnson’s whiskers (winner of the freestyle beard), the trend was toward the extreme.

Opinions of Beards and Mustaches Roughly 33 percent of American men sport facial hair. 1 Numerous studies over the years have had sharply contrasting results regard - ing the correlation between facial hair and perceptions of character, maturity, creativity, competence, kindness, strength, and attractive - ness. These findings differ based on trends at the time of the study, K C O T S R E T T U H S © to shave his beard for the chance to play with the New York Yankees, or to get $1 million from 800razors.com. Other people and events have unquestionably amplified the full beard’s esteem (or its notoriety, via the occasionally con - troversial Duck Dynasty ). Beards have taken on new attention with the now-annual “No Shave November” (also known as Movember , for the mustache) in support of health issues. In 2013, it was in support of cancer. In 2014, it was in support of men’s health awareness. Even the Today Show male anchors and staff sported beards and mustaches for the November event.

Duck Dynasty full beards

www.azbar.org/AZAttorney JULY/AUGUST 2015 ARIZONA ATTORNEY 17 When Is Facial Hair OK? K K C C O O T T S S R R E E T T T T U U H H S S © © the styles of beards shown to respondents, and the types of respondents (women, men, employers, college students, etc.). So how do you decide whether facial hair is OK for your clients or witnesses when testifying before fact finders, such as juries, judges or arbitrators? First, consider how your clients or witnesses currently present to others. Second, determine how you want them to present. Third, assess the impact of facial hair on case issues . In general, numerous research studies have shown that men with facial hair are often perceived as confident, mature, com - petent, and composed. 2 Other researchers have agreed, adding intelligence and Ashton Kutcher, baby face to bad boy courage to this mix. 3 On the other hand, facial hair can be suggest dominance and competitiveness. 5 rape case, and which belonged to a plaintiff viewed as intimidating, threatening, mean These perceptions are amplified if the men in a head-injury case. A total of 78 percent and aggressive, even when all other factors appear to be angry. 6 picked the bearded photo as being the rape were identical. 4 Beards and mustaches also In a New Jersey study by researchers defendant. 8 at Montclair State Uni- versity, 371 people were K C

O asked to sketch the face T

S Studies have shown R E

T of a criminal defendant. T U H S

E Surprisingly, 82 percent that men with facial © of these sketches con - tained facial hair. 7 hair are often perceived These studies sug - gest that if your client as confident, mature, has been accused of competent, and discrimination, child abuse, assault, kidnap - composed. ping, murder, or any count that involves dominance and control over To play it safe, clients charged with sex - another, you may want your ual offenses or sexual harassment should be client to be clean-shaven. clean-shaven, as this has been shown to This is also true if you have suggest innocence and openness more than an angry client who has diffi - bearded faces. 9 In addition, facial hair sug - culty keeping anger or impa - gests more sexuality and higher testos - tience in check. terone levels than does a clean-shaven In another study by these face. 10 Note the difference in Ashton same researchers, 63 mock Kutcher’s projection of sexual innocence jurors were shown two pho - without facial hair. tographs of men who were similar, but one was clean- Facial hair may not be viewed negatively shaven and one had a beard. in child custody cases, however, if the They were asked which photo father has not been accused of being abu - Ben Affleck’s full beard may suggest good parenting skills—though it belonged to a defendant in a sive with any family members. A 2012 may not prevent divorce

18 ARIZONA ATTORNEY JULY/AUGUST 2015 www.azbar.org/AZAttorney When Is Facial Hair OK? K C O T S R E T T U H S study found that women © is in an unconven - rated men with full beards tional field, such as as potentially better parents a professor, artist, because of perceived maturity author, actor, musi - and competence. 11 Bearded cian, or researcher, men were perceived as better beards and mus - able to protect and invest in taches are consid - offspring. Another study ered acceptable, confirmed that bearded men and often expected. were viewed as having more But facial hair in maturity and greater respon - professions such as sibilities. 12 law, finance, medi - K C O T

S cine, and politics R E T T

Researchers also have U is less tolerated or H S found that a stubble growth © expected. In 1908, was rated high by women in Tom Hanks’ two sides: Which face comes across as a better team player? William Howard terms of sexuality and attrac - Taft was the last tiveness, but this would be inappropriate as they became more common. 14 president to be elected with facial hair. 17 and potentially disrespectful for a deposi - Some studies have also correlated men’s Keep in mind that there is less tolerance tion or courtroom setting. 13 Their studies beards and mustaches with leadership, and appeal for untrimmed or shaggy facial also indicated that beards were attractive to knowledge, education, and confidence. 15 hair, long beards, or flamboyant styles. women when rare, but this effect wore off So if you want a plaintiff to project as expe - rienced, accomplished, Employers generally prefer clean- and qualified (such as shaven job applicants, as they are perceived S N in employment qualifi - as more cooperative, helpful, open, cheer - O M

M 18 O cation, management or ful, and socialized. This is especially true C

E V I

T patent cases), facial hair when employees are involved in sales or A E R C could be a benefit to marketing. Keeping this in mind, if you the plaintiff. This also have a client who comes across as sullen, applies to expert wit - defensive, resisting, unsocial, and/or nesses who need to proj - unhelpful, he might present better without ect competence, knowl - the facial hair. Also, if you have jurors edge, experience, and whose jobs involve hiring others, they may confidence (especially if be more accepting of clients and witnesses they appear young, hesi - without facial hair. tant, uncertain, or have “baby faces”). Neatly Those with beards are often seen as trimmed beards and more courageous and uncompromising mustaches (which is the M

key here) can give a look O C . G O

of sophistication and L B S T E

authority to expert wit - J E H nesses. T Facial hair is also considered more appro - priate for some occupa - tions than others, according to research. 16 If your client or witness Antonio Garay’s artistic beard while playing for the President William Taft, the last President with facial hair (so far) San Diego Chargers

20 ARIZONA ATTORNEY JULY/AUGUST 2015 www.azbar.org/AZAttorney 4 1 0 2

, 4 1

. N

A Jurors whose jobs involve hiring J / R U O H S

W others may be more accepting of clients E N / G R O . S

B and witnesses without facial hair. P ©

Elaborate and extreme K C

19 O than their clean-shaven counterparts. If and conservative is usually favored over T S R E T you have a client or witness viewed as a unique or eccentric. T U H S

“whistleblower,” or as an initial plaintiff in Any facial hair that stands out from the © a class-action suit, for example, facial hair norm should probably be avoided for could be an advantage. On the other hand, clients and witnesses. For example, if you those with beards can also be viewed as want them to be taken seriously, they rebels and uncooperative, so this could be should avoid the elaborate and extreme. a disadvantage for clients who have been charged with breaking rules and violating Unless you want to emphasize the cre - regulations. 20 ativity and entrepreneurial aspects of your One study found that bearded men are client (such as an inventor, software pro - perceived as 38 percent less generous and grammer, sports figure, or musician), you 36 percent less caring than are clean- will probably want your witnesses and shaven men. 21 Considering this, defendants clients to avoid artistic expressions with involved in personal injury matters, facial hair. Although jurors may find it fas - employment issues, and medical malprac - cinating, they may not relate to the person tice cases, for example, may want to be testifying, and they may be distracted by clean-shaven before depositions and trials. the artwork. In general, clean-shaven faces Jurors are very criti - and those with

cal of defendants K are typi - C O T S who appear to be R cally considered E T T U

stingy or indifferent H to be more cre - S to plaintiffs’ diffi - © ative than mus - culties. taches or full beards. 22 K C O T S R E T T

Your clients U H

Opinions S and witnesses © David Beckham, disheveled and groomed of Specific will also want to Taliban look Beards and avoid dark, long, Mustaches untrimmed beards, as these are too often who will be projected as careful, detailed, and Although there has been extensive research associated, unfair as it may be, with religious meticulous (e.g., doctor, engineer, account - on facial hair in general, there is less fundamentalists, terrorists, 23 and Taliban ant), beards and mustaches will need to research on the effect of specific types members. be meticulously trimmed as well. Disheveled of beards and mustaches. The styles beards and mustaches (and hair) will belie of mustaches and beards are endlessly A bald head with a full beard is typically the claim of a careful, meticulous person. The diverse, with some being considerably too much of a contrast—even overcompen - contrast between David Beckham’s “messy” more acceptable sation—and fact finders look and his trimmed K C K O than others. For may discount or disre - look makes this point T U / S S R E W E T instance, neatly gard testimony to vari - well. T N / U K H U . S trimmed beards and ous extents as a result. Obviously, any O © C . D mustaches are typi - Credibility could be R mustache resembling O C E R Y

cally favored over questioned. L Hitler’s should be I A D .

unruly ones. In W avoided at all costs W W / / ;

terms of relating to If you have a client or P for clients and wit - T T H

others, traditional witness with facial hair © nesses. Overcompensating Adolf Hitler’s mustache, and Hitler mustache lookalike

www.azbar.org/AZAttorney JULY/AUGUST 2015 ARIZONA ATTORNEY 21 X K When Is Facial K C C O F O O Y T T R S S U R Hair OK? R T E E N T T E T T U U C h H H t S S 0 2 © © ©

Current NBC Online Study Recently, an NBC News website conducted an online sur - Apolo Ohno’s (Olympic Chris Daughtry’s chin-strap Hugh Jackman’s mutton chops Speed-Skating Winner) (musician, American Idol contestant) S K vey to determine which beards and mustaches were the S C N W O O E T

24 N M S most offensive to people. They received more than 7,500 Y M L R I E O A T C D T E Y U V

responses. Participants were restricted to vote for only 1 I N H T S © A E © choice out of 9 options. R C / N E R

The results below rank the nine choices and include the R A W N

percentages of each in terms of offensiveness. The soul A L L A

patch and chin-strap beards were considered the most © offensive, followed by mutton-chop and pencil mustaches. These would certainly be facial hair options David Niven’s pencil mustache Samuel L. Jackson’s full beard that clients and witnesses should avoid when testifying at John Travolta’s Fu Manchu K K K C C depositions or trials. The traditional mustache was the least C O O O T T T S S S R R R E E offensive in this study. E T T T T T T U U U H H H S S S © © © The Most Offensive Facial Hair Soul patch 22 percent Chin-strap beard 18 percent Mutton-chop sideburns 16 percent Johnny Depp’s George Clooney’s 5:00 shadow Tom Selleck’s traditional mustache K C

Pencil 14 percent O T

In summary, facial hair on clients and S R E T

Fu Manchu mustache 8 percent T witnesses, if present, should be conservative, U H S Full beard 7 percent trimmed, and traditional. This is, of course, © Goatee 6 percent unless your client is Brad Pitt, who could get away with walking into almost any court - 5:00 Shadow 6 percent room looking as shaggy as he wants in front

AZ Traditional mustache 3 percent of most jurors! AT

Brad Pitt’s shaggy look endnotes 1. G. Jack Brown, Leadership Secret #39: Facial Hair and Perception. 10. Dixson & Brooks, supra note 3. www.bodylanguagesuccess.com, June 2, 2014. 11. Id. 2. A. A. Lino de Souza, V. B. U. Baiao, & E. Otta, Perceptions of 12. de Souza et al., supra note 2. men’s personal qualities and prospects of employment as a function 13. Dixson & Brooks, supra note 3. of facial hair , PSYCHOL . R EP . 98(1), 2003. 14. Z. Janif, R. C. Brooks & B. J. Dixson, Negative frequency- 3. B. J. Dixson & R. C. Brooks, The role of facial hair in women’s dependent preferences and variation in male facial hair, BIOLOGY perceptions of men’s attractiveness, health, masculinity and parent - LETTERS , Mar. 24, 2014. ing abilities, EVOLUTION & H UM . B EHAV . 34(3), May 2013. 15. de Souza et al., supra note 2. 4. Antonio Centeno, The science of facial hair: What signals do beards, 16. Centeno, supra note 4. stubble, and mustaches send to others? www.artofmanliness.com, 17. Brown, supra note 1. Mar. 25, 2014. 18. Id. 5. J. A RCHER , D OES SEXUAL SELECTION EXPLAIN HUMAN SEX 19. de Souza et al., supra note 2. DIFFERENCES IN AGGRESSION ? (2009). 20. Id. 6. Id. 21. Centeno, supra note 4. 7. R. P. Conti & M. A. Conti, Mock jurors perceptions of facial hair 22. de Souza et al., supra note 2. on criminal offenders , PERCEPTUAL & M OTOR SKILLS 98(3c), 23. Id. 2004. 24. Brian Alexander, Sorry, guys: We judge you by your facial hair . NBC 8. Id. News survey, www.bodyodd.nbcnews.com (June 18, 2014). 9. Id.

22 ARIZONA ATTORNEY JULY/AUGUST 2015 www.azbar.org/AZAttorney