Effective Advocacy—Taking It to the Next Level Edward P. Schwartz, Ph.D. DecisionQuest 800 South St Ste 190 Waltham, MA 02453 (781) 891-8300 [email protected] Edward P. Schwartz, PhD, MSL, is a Consultant in DecisionQuest’s Boston office. In his role, Dr. Schwartz provides quantitative and qualitative analysis of pretrial jury behavior—from interviews and focus group studies to mock trials and large-scale statistical analyses—to provide clients with feedback on case themes, strategies, evidence, witnesses, and presentation style. Further, he consults on case evaluation, provides advice on trial strategies, and assists with jury selection as well as post-verdict juror surveys and interviews. Dr. Schwartz is a nationally recognized jury consultant with excellent analytical acumen and strong market research skills who is noted for his ability to blend the strategic focus of game theory and decision theory with the real-world insights of social psychology to gain a complete picture of how people absorb, analyze, and process information. Dr. Schwartz has conducted jury behavior research, aided with witness preparation, consulted on trial strategy, and assisted with jury selection on dozens of cases, including several high-profile criminal trials. Dr. Schwartz is regularly asked to provide insight on jury trials in the news, having been interviewed by CNN, the Associated Press, the New York Times and countless regional media outlets. Effective Advocacy—Taking It to the Next Level Table of Contents I. “He Said What?”: Deception Detection and Employment Litigation—Part I: The Gullible Juror ...........5 II. “He Said What?”: Deception Detection and Employment Litigation—Part II: The Fallible Juror .........14 III. Less Is More? Detecting Lies in Veiled Witnesses .....................................................................................21 Effective Advocacy—Taking It to the Next Level ■ Schwartz ■ 3 I. “He Said What?”: Deception Detection and Employment Litigation—Part I: The Gullible Juror “He Said What?”: Deception Detection and Employment Litigation – Part I: The Gullible Juror ometimes people lie. And yes, sometimes people lie under oath in a court of law. Despite S having taken an oath to “tell the truth and nothing but the truth,” witnesses aren’t always honest and forthcoming – and jurors understand this. The court does too, as evidenced by jury instructions regarding judging the credibility of witness testimony. To wit, consider this language from the Illinois Model Jury Instructions regarding witness credibility: “You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness, you may consider that witness' ability and opportunity to observe, memory, manner, interest, bias, qualifications, conclusions, the Court anticipated that “If he were allowed to testify, a experience, and any previous the criminal defendant would soon lose guilty defendant might of course inconsistent statement or act by his life. That fact alone didn’t seem to perjure himself in an effort to the witness concerning an issue particularly bother anyone; however, avoid conviction. At the important to the case.”1 the authorities did not want the Founding, many believed that defendant to die having just sinned lying under oath was an especially The temptation to lie in court in order against God by lying under oath. As grievous offense against man and th to protect oneself has always been a such, until the 19 century, criminal God…. Alas, a liar might lose his 2 source of concern and the subject of defendants in the British common law soul even if he saved his skin.” judicial notice. Historically, the courts system were not permitted to testify were very worried about placing a under oath at trial. The prohibition against self-interested criminal defendant’s soul in peril by testimony under oath was not limited asking him to swear to God to tell the As Akhil Amar succinctly states in his to criminal defendants. Until the mid- th truth in court. Since most crimes were recent book, America’s Unwritten 19 century, interested parties to civil capital in the Middle Ages and well into Constitution: The Precedents and Principles litigation were similarly precluded from the Enlightenment, and most We Live By, convictions were foregone 1 A copy of these model instructions can be http://www.state.il.us/court/circuitcourt/civilj 2 From Chapter 3, as excerpted in Amar, Akhil found at uryinstructions/1.00.pdf Reed. “America's Lived Constitution,” 120 Yale Law Journal 1745 (2011). 1 Effective Advocacy—Taking It to the Next Level ■ Schwartz ■ 5 testifying under oath.3 As Blackstone expert who honestly believes the conducted in a variety of settings over noted, attorney’s client is in the right than for decades of research, the primary, and an expert who is willing to testify remarkably robust, result is that we, as “All witness, of whatever religion contrary to her own honest opinion. a species, do little better than flipping a or country, that have the use of coin when it comes to detecting their reason, are to be received There are cases, however, in which deception. The average success rate at and examined, except such as are dispositive issues revolve around telling truth from fiction is about 54%.7 infamous or such as are interested in whose version of a key event most The second key finding from the the event of the cause.”4 resonates with the jury. That is, the experimental research is that we all plaintiff says one thing happened and think we are much better at So, while the adversarial system that the defense counters with a different discriminating honesty from lies than characterizes the Common Law story. The jury is asked to resolve a “he we really are.8 This result has profound tradition is touted as an effective said – she said” dispute.5 Employment implications on at least three fronts. method of truth revelation, everyone litigation, especially that involving an First, those in human resources, or who has always understood that interested allegation of discrimination, tends to manage others in the workplace, need parties would sometimes – if not often involve this kind of dispute. On the one to be cognizant of the very real – lie in court. hand, the dissatisfied employee (or possibility that they make regular former employee) claims that a mistakes when evaluating the veracity This is not to say that all cases are supervisor or fellow employee made a of claims made by employees under created equal and that all litigants have particular statement or behaved in a their purview. Second, attorneys equal incentive or opportunity to particular way. On the other, the should not presume that they can effectively misrepresent facts in court. supervisor or human resources correctly ascertain whether a friendly Many types of disputes revolve around manager counters that either the witness is being completely long, ongoing relationships with statement/behavior never took place forthcoming and honest with them in extensive “paper trails.” As such, it is or was completely misinterpreted by preparation for trial. Finally, litigators difficult for a witness to testify to the complaining party. The jury is faced should never rely on jurors’ abilities to certain facts that are simply with the unenviable task of correctly sort out a “he said – she said” inconsistent with too much evidence to determining who is telling the truth – dispute to win a case. There are ways to the contrary. It is hard to argue against and who is lying under oath. increase the likelihood that the jury will accounting statements, signed correctly detect truth and deception, contracts or letters written in one’s own This article (first in a two-part series)6 but the case must have a strong hand. is devoted to reviewing what we know foundation in other areas. about people’s tendencies to lie – both Other kinds of disputes involve more generally and about issues related to the The final empirical result from the interpretive questions than factual workplace – and about our own literature of interest to us here – and ones. Many torts cases require the jury abilities to correctly identify who is the focus of the second article in the to evaluate what constitutes lying to us and who is telling the truth. series -- is that people regularly look to “reasonable care,” even when there is Using these results as a foundation, I exactly the wrong indices of deception. little disagreement among the parties will discuss along the way how issues of We have all heard someone ask that about who did what when. While an deception detection should be handled another person, “look me in the eye expert might lie about his opinion in employment litigation. and say that.” It turns out that liars regarding what qualifies as reasonable typically do a pretty good job of care, this presents the jury with a There are several key lessons here for controlling their facial expressions different type of credibility dilemma human resources professionals and while truth-tellers pay less attention to than the possibility of a litigant lying on attorneys working in the employment the emotional expressions associated this stand. Most experts build their litigation arena. First and foremost, with their speech.9 As such, focus on a reputations and their practices on being human beings are supremely bad at speaker’s face during message reliable, credible witnesses. So, differentiating true statements from transmission actually reduces a listener’s attorneys more often shop for an lies. Over hundreds of studies, ability to tell whether she is being told 3 Ibid at 1746. Maine became the first 5 The genders of the pronouns here are purely 8 See Vrij, A., Granhag, P. A., & Porter, S.