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Back in 2010, we posted on an article called Artful Dodging that talked about how politicians in particular, answer the question they prefer to answer rather than the question you asked. We talked about responding to that strategy in voir dire. Now, we have another article from the same group of researchers and this one is on lying by using the truth. Here’s how a press release describes paltering:

The ability to deceive someone by telling the truth is not only possible, it has a name — paltering — it’s common in negotiations and those who palter can do serious harm to their reputations, according to research published by the American Psychological Association.

Before talking about paltering specifically, the researchers start by saying that most research on lying has focused on what these researchers think is a false dichotomy: either lying by omission or lying by commission.

Lying by omission: This is the passive act of misleading by failing to disclose relevant information. In this sort of lying, if I am selling you a computer with a faulty hard drive, I will not mention the hard drive if you do not specifically ask about it.

Lying by commission: This is the active use of false statements—probably what we think of as common lying. In this sort of lying, if I am selling you a computer with a faulty hard drive, I will lie and tell you the hard drive is fine.

This paper identifies a third (and commonly used) strategy for lying. Paltering is perhaps a more nuanced form of deceit. The researchers say that rather than misstating facts (lying by commission) or failing to offer information (lying by omission)—paltering involves actively making truthful statements to create a mistaken impression. That is, someone who palters, uses truth to lie. If this is still confusing to you, the authors offer perhaps the most famous paltering example of recent times.

Here is a paragraph from the article commenting on the preceding YouTube clip. [Boldface font added for clarity.]

Referring to his relationship with Monica Lewinsky, U.S. President Bill Clinton claimed “there is not a sexual relationship.” The Starr Commission later discovered that there “had been” a sexual relationship, but that it had ended months before Clinton’s interview with Jim Lehrer. During the interview, Clinton made a claim that was technically true by using the present tense word “is,” but his statement was intended to mislead: Jim Lehrer and many viewers inferred from Clinton’s response that he had not had a sexual relationship with Monica Lewinsky. We categorize Clinton’s claim as paltering: the active use of truthful statements to create a false impression.

You likely have to be pretty quick-witted to palter and after seeing paltering defined and watching this classic video example—many of us can likely think of people who have paltered with us and whom we no longer trust due to this behavior. In this series of experiments, participants preferred paltering to lying by commission but the consequences they assigned to those who paltered with them were just as harsh as those who lied directly by stating false facts.

As for liars who palter—they seem to deceive themselves by not accurately predicting just how harshly someone who discovers their deception will respond. Reputations are ruined and relationships are broken (just as they often are over lying by commission).

From a litigation advocacy perspective, the researchers found that paltering was often used in negotiations. Just as in personal relationships, the paltering party does not accurately predict just how much damage will be done if the deceptive paltering is discovered. Negotiations can be discontinued and those involved may be unwilling to enter in future good faith negotiations with the palterer.

The paragraph below is a selection (edited for brevity) from the article itself on paltering in negotiations.

Paltering is a common negotiation tactic. [snip] It may be effective in the short-term but harmful to relationships if discovered. Paltering is less aversive to negotiators than lying by commission and just as likely to be effective. [The researchers think this is part of why paltering is so seductive to the dishonest negotiator. They can always defend themselves by carefully saying “my statement was truthful”.]

[snip] Our findings have particular application to negotiations, where deception poses a unique challenge. Deception is prevalent in negotiations, influencing the negotiation process, negotiated outcomes, and negotiator reputations.

[snip] Our studies reveal that when detected paltering may harm reputations and trust just as much as does lying by commission. Quite possibly, however, negotiators who palter may misperceive their behavior to be more acceptable than it is and thus fail to forecast the harmful relational effects their actions trigger—if their paltering is subsequently detected.

In short, effective negotiations are no place for lies—whether they are by commission, by omission, or by parsing the truth to mislead—as in paltering. The researchers say paltering is common in negotiations but is also likely common in some long-term personal relationships and they suspect it is particularly common among politicians (at least among those bright enough to do it successfully).

Rogers T, Zeckhauser R, Gino F, Norton MI, & Schweitzer ME (2017). Artful paltering: The risks and rewards of using truthful statements to mislead others. Journal of Personality and Social Psychology, 112 (3), 456-473 PMID: dang ky nhan tien cuoc mien phi27936834

The image illustrating this post is what you would see in the dictionary if you looked up paltering. No, really. It is the photo Merriam-Webster uses to illustrate the word and we think the sly and conniving expression is perfect. If only people would telegraph their intent so obviously by looking like this when they are actively paltering—it would be much easier to catch a liar.


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manipulatorWe’ve written a lot about those with what are called the “dark triad” of personality characteristics. Narcissists. Psychopaths. Machiavellians. These are not people we recommend doing business with—either personally or professionally. Their only interest is self-interest. So this is an interesting study as it shares a possible way to inoculate yourself against these untrustworthy folks who can be (for brief periods of time) quite persuasive and charming.

Here is how the authors of today’s article describe those with dark triad personality characteristics:

They “are callous and interpersonally exploitative. [snip] Psychopathy is related to an antisocial lifestyle, Machiavellianism to? calculated manipulation and being goal-oriented, and narcissism to grandiosity and self-adoration.”

Or as my kids would say, “they will cut you”. In short, they are not nice people and cannot be trusted. The authors note that there is ample evidence of exploitative behavior from these “dark personalities” in face-to-face interactions but that no one has yet explored whether their negotiation skills will be preserved when forced to negotiate in a text-based (“computer-mediated”) environment (which would delete their interpersonal presence and non-verbal behavior).

To cut to the chase, what the researchers found was that when you take away the impact of interpersonal presence—dark triad personalities are much less persuasive in text and they are much less threatening to those intimidated by interacting with them face-to-face.

From a litigation advocacy perspective, it is unlikely you will be able to conduct actual negotiations via text. However, if you end up in mediation, remember that much of the bluster of the machiavellian, the manipulation of the psychopath, and the preening behavior of the narcissist will be eliminated when they are interacting with you not in person, but through the mediator.

Make yourself think concretely—not “what does that really mean?” but, “what was offered?”.

If you find yourself feeling threatened or charmed, remind yourself that the person embodying the dark triad is not in the room; give yourself time to step back and consider how to respond.

The reality of the dark triad character is that there is a large display of style but not much substance. When you distance yourself from their interpersonal impact (by texting, memorandum, or an interacting through an intermediary) they simply become bad people, but not particularly productive, persuasive or threatening people at that.

And when you have to interact in person, say in the courtroom—focus on being as likable, sincere, and straightforward as you can and trust that the jury will see your genuineness. The contrast will be refreshing for them. You are there to do a job for your client and that means advocating for them and not focusing on the malevolence of your opponent.

Crossley, L., Woodworth, M., Black, P., & Hare, R. (2016). The dark side of negotiation: Examining the outcomes of face-to-face and computer-mediated negotiations among dark personalities Personality and Individual Differences, 91, 47-51 DOI: 10.1016/j.paid.2015.11.052


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We are now in ABA’s Blawg 100 Hall of Fame!

Monday, November 30, 2015
posted by Douglas Keene


We’ve recently been informed that The Jury Room has been inducted into the ABA Journal Blawg 100 Hall of Fame! Okay, it’s not a Pulitzer, but we are wildly happy about it. To our way of thinking, it is the greatest honor The Jury Room could be given. We appreciate the recognition. Closer to truth, we are shocked. Every December from 2010-2014 we have been delighted to be included in the Blawg 100, but this was not even on our radar screen. Here’s a link to the 2015 ABA Blawg Hall of Fame and a link to the 2015 Blawg 100 honorees.

Here’s how the ABA describes the Blawg 100 Hall of Fame:

In 2012, we established the Blawg 100 Hall of Fame for those blogs which had consistently been outstanding throughout multiple Blawg 100 lists. The inaugural list contained 10 inductees; this year, we added 10 more, bringing the total to 40.

And here is how they described this blog on their roster:

Trial consultants Douglas Keene and Rita Handrich find the research to alternately back up what you think you already know about human psychology (Is rudeness contagious? Yes.) and alert you to the unexpected (Are “beer goggles” real? No.) Posts are both fascinating reads and lessons on how not to base your cases on stereotypical assumptions.

We were inspired to begin blogging by Anne Reed (formerly of Deliberations blog and now leading the charge at the Wisconsin Humane Society). Once we got started blogging, we realized it was a wonderful way to keep up with the changing literature and to share what we were learning along the way. Looking back over the 900+ posts, we still find it interesting to blog as well as a great impetus for our own continuing education. Thank you, ABA Journal, for your recognition of our work over the last 6-1/2 years.

Doug and Rita

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Men-Lie-to-WomenBack in 2012, we wrote about which gender was the more moral in negotiations. (Spoiler alert: it was women.) Now we have a new article on why women get lied to in negotiations. Not when or if–but why. Basically, people believe women are more easily misled than men and people believe women to be less competent than men. Therefore, “negotiators deceived women more so than men, thus leading women into more deals under false pretenses than men”. The researchers completed three separate studies and (to add insult to injury) these were not experiments using the ubiquitous undergraduate. These research participants were adults in the working world.

In Study 1, 131 employees (75 male and 56 female) at an online marketing research website participated in the research. (Gender was the only demographic information collected so we don’t know their educational backgrounds, average age or racial identity.) Participants were asked to imagine they were selling a used car and posted an ad on a community website. They were then approached by a male (or female) buyer. The participants were told that the buyer appeared to be a typical (male or female) negotiator. They were then asked to rate the imagined buyer on eight different traits: warmth, kindness, business sense, ambition, gullible, na?ve, arrogance or stubborn. The researchers added four additional traits: easily misled, impulsive, confident and knowledgeable.

Women were perceived as both less competent and more easily misled in negotiations than were men. (These variables were derived using multiple traits rated by participants: Ease of being misled = Easily misled + Gullible + Na?ve + Impulsive; and Competence = Good business sense + Confident + Knowledgeable + Ambitious.)

In Study 2, 394 employees (116 female, average age 32 years, 74% White, 7% Black, 5% Hispanic, 11% Asian, 1% Native American and 2% ‘other’) at Amazon Mechanical Turk participated in the research. These participants were asked to imagine someone (the Seller) was selling an antique chair said to be worth $1,250 according to a popular buying guide. However, one of the legs was broken and would cost $250 to repair correctly. Instead, the Seller fixed it temporarily knowing it would become wobbly again with use. The only way the Buyer would know the chair was defective is if the information was disclosed by the Seller. Again, a male and female buyer approached the Seller.

Again, women were perceived as more easily misled and as less competent. Women were believed to be less able to detect deception on the part of the Seller.

Undaunted, the researchers continued on to Study 3. This time the participants were 298 full-time MBA students (221 of whom were male) enrolled in a negotiations course. They were paired into 149 dyads (65 male-male, 23 female buyer-male seller, 48 male buyer-female seller, and 13 female-female). Research participants completed the “Bullard Houses” role-playing exercise which basically simulates a real estate transaction. They were randomly assigned to negotiate as the buyer’s agent or the seller’s agent. The buyers’ agents could either tell the truth, misrepresent, or tell an outright lie about their intentions in order to lure the sellers’ agents into a deal. And you will never see this finding coming.

Female negotiators were deceived more than male negotiators.

The researchers say that women at the negotiating table are going to be offered less favorable deal terms (based on past research) and they are going to be lied to more often than men. As the researchers looked more closely at the ways in which women were deceived, they found that women were told more blatant lies than were men and men tended to be told the truth. The researchers summarize their findings this way:

“The gender bias in deception appears driven by a greater propensity to tell women blatant lies in a situation in which men tend to be told the truth.”

This study is disheartening for any number of reasons, and it raises questions about how universal this general pattern is. From a litigation advocacy perspective, this series of studies tends to indicate women may simply be lied to rather than being allowed to engage in actual negotiations about case issues. Are they more subject to men failing to properly disclose in discovery? More often victims of spoliation of evidence? Dirty tricks at trial?

The researchers wonder if their findings could help explain the gender gap at high levels in business organizations. Women, say the researchers, may shy away from negotiations since they will be lied to and thus be at increased risk of entering into deals on the basis of false pretenses. While okay as a hypothesis worthy of testing, it is not at all supported by evidence. Let’s see an experimental design that looks at “what do women do when they know that they are being lied to by men?”. And, let’s be clear– it is more than ironic (“sexist” comes to mind) to think of this in terms of women somehow being less effective because of their weariness over men lying to them. Aren’t we talking here about being lied to? By men? We would say that until the social stereotype that women are easy to mislead is changed, and men stop lying in ways that are less likely when dealing with other men, awareness will do little to change the outcomes of their negotiations, mediations, and settlement talks.

Kray, LJ, Kennedy, JA, & Van Zant, AB (2014). Not competent enough to know the difference? Gender stereotypes about women’s ease of being misled predict negotiator deception. Organizational Behavior and Human Decision Processes.



salary-negotiation-300x258We’ve written before about salary negotiations in general, the difference in what men and women are paid,?and salary negotiations for women only.?So here’s another new study that says, whether you are male or female, going in with a specific number (like $5,015 rather than $5,000) gives you an edge in negotiations.

Researchers examined the use of round numbers in negotiations (in both the classroom and on Zillow–a real estate website). They found round numbers were much more often the initial offer on the table. For example, when looking at Zillow in four American cities, 73% of homes in the $10K to $99.9K range and 71% of homes in the $100K to $999K range “ended with at least three trailing zeros”. 98% of homes in the $1M to $10M range had listing prices that contained at “least three trailing zeros”.

So, the researchers wondered what would happen if you gave a more precise number rather than one with multiple zeros at the end. After multiple experiments, the researchers concluded that precise initial offers (that is, specific numbers not ended with trailing zeros) acted as “more potent anchors” than did round numbers (with trailing zeros). Round numbers have appeal, say the researchers, because they are easier to remember, fairly noncommittal, and “imprecision is a form of prudence”. (We are not sure exactly what that means but it’s an evocative phrase.)

The researchers believe that when you lead with a precise number, in any sort of negotiation, you send the message that you are prepared, informed, and knowledgeable about the value of either the item for which you are offering money or for salaries in your field. This precise offer leads the recipient of your opening bid to offer a returning number that is higher (when negotiating salaries or bartering on CraigsList items) than you might get if you offer a round initial request.

It’s an interesting piece of work, with applications to salary, mediation offers, jury charge “asks”, auto purchases, and even bartering at the farmer’s market. The researchers recommend bumping a $50 item to $49.75 (if you are the seller) or offering $50.25 if you are the buyer. They also comment that the research “highlight[s] how a lack of awareness about the power of precision may put the recipient of a precise offer at a disadvantage”. It’s intriguing research to experiment with in your day-to-day life–whether for mediation or that nice bunch of carrots next to the bright red radishes.

Mason, MF, Lee, AJ, Wiley, EA, & Ames, DR (2013). Precise offers are potent anchors: Conciliatory counter-offers and attributions of knowledge in negotiations. Journal of Experimental Social Psychology, 49, 759-763