John Leighton speaks at national crime victim conference

John Leighton spoke at the national conference for the National Crime Victim Bar Association (NCVBA) in Los Angeles. Mr. Leighton spoke on how millennial jurors will affect negligent security cases and some ideas on jury selection strategies.  The conference is presented by the National Center for Victims of Crime annually, of which the NCVBA is a part.  Mr. Leighton sits on the Board of Advisors and is a frequent lecturer.

The conference featured an attendance of over 800 attorneys, victim advocates and law enforcement. Mr. Leighton’s speech was entitled “How Are Generation X and Y Jurors Different And How Do They See Inadequate Security Cases?”

How Are Generation X and Y Jurors Different
And How Do They See Inadequate Security Cases?

National Crime Victim Bar Association
National Conference
Anaheim, CA
September 2015

John Elliott Leighton
Leighton Law, P.A.
1401 Brickell Ave., Suite 900
Miami, FL 33131
—
121 S. Orange Ave., Suite 1150
Orlando, FL 32801

888-395-0001
John@LeightonLaw.com

www.LeightonLaw.com

Recent years have seen a lot written about Generation X and Y. Because these “millennials” are literally taking over the country at least in numbers, their rising influence is just beginning to be studied. In particular, the issue of how they will change jury trends is of utmost importance to trial lawyers.

Although much has been written about voir dire and jury selection (not to confuse the two), little has focused on how Gen X/Y jurors affect juries and how jury selection should be approached with their views in mind. Most trial lawyers have tried cases and picked juries based on the target juror being a baby boomer. We have been practicing trial law predicated on jury research utilizing a generation that is starting to wane.

Some of these are timeless concepts and some are based on jury research, focus groups or science. The jury panels courts are now seeing are different from those of the past. Part of the change is due to the rising strength and size of the Millennials (a/k/a Generation Y) and what they represent.

Traditionally as trial lawyers we have recognized that jury selection sets the foundation for a successful trial result, and must be viewed as a building block to closing argument. This is still true today. According to Dr. Richard Crawford, “…the opening moments and hours of a trial tend to set in motion a persuasive momentum which is difficult to reverse. Thus, if you win the persuasion battle before your opening statement, you are well on your way toward a favorable verdict.” One study revealed that eighty percent of jurors have reached a verdict by the end of voir dire.

Whether this is a consistent fact, and follows true with today’s jurors is hard to say. What is certain, however, is that jurors develop their first impressions during voir dire: of you, your client, and the meritoriousness of your case. The question today is upon what do they base those first impressions?

So what about cases involving claim of inadequate security or other violent crime cases? How do Millennial jurors perceive these claims and what should be our focus with these panels?

Besides the usual issues facing plaintiffs when they come before a panel with the burden of proof (and other extra-judicial biases that have been provided by the insurance and business communities), the economic reality of today’s jurors interlace into their perceptions and belief systems in ways that we may not easily understand and process. The way their financial burdens may impact the juror’s decision making requires even greater analysis of their answers and responses, both verbal and non verbal. The rise of Generation X and Y as jurors may change many of our previously-sacrosanct jury bias notions.

Resist the traditional fears that if a juror spews their prejudice openly it will taint the rest of the panel. Jurors are not going to change their core beliefs simply because another juror voices a strongly held perception. Your focus should be to look for these land mines, and contrary to conventional wisdom, trying to get them to go off by showing themselves. In fact by not identifying these problem jurors, you certainly run the risk of the mines going off during jury deliberation when it’s too late.

The real questions are:

What makes today’s jurors different than the juries we were picking 15 or 20 years ago, and how do they perceive claims for negligent security and violent crime?

Those first impressions we are concerned with may be fully formed much earlier than previously thought. And formed without regard to what happens in the courtroom. Today’s online-wired-socially-networked-fully-connected-with-every-media-outlet-and-website juror is a very different animal than those of Baby Boomer and earlier generations.

Until recently trial lawyers often ignored the science of jury de-selection. Maybe that is why many of us spend countless hours preparing the case but spend little or no time preparing for jury de-selection. Maybe it’s because we believed that our charisma and talent is enough to carry the case to victory. That strategy may have worked in the past, but these younger jurors are better educated and more aware of local and world events. The arrival of the internet, 24 hour a-day news, social networking, and more realistic TV programming has creating a more enlightened and connected juror. With different expectations of a trial as well. Remember, these generations have watched live “trials of the century” on live TV. Networks have been dedicated to trials (CourtTV), and the employment of trial experts in the media has fueled its own economic resurgence for trial lawyers and law professors who look good on air. They grew up with watching real trials (not Perry Mason).
Millennial Jurors: The Generation Y Phenomena

Social scientists have developed generalized categories for generations in this country. These are our jurors. Generally speaking, they break down this way:

• Traditionalists/Silent Generation (Post-war) (Born 1928 – 1945): Ages 69 – 86; 12% of adult population
• Baby Boomers (Born 1946 – 1964): Ages 50 – 68; 32% of adult population
• Generation X (Born 1965 – 1980): Ages 34 – 49; 27% of adult population
• Millennials/Gen Y (Born after 1980): Ages 18 – 33; 27% of adult population

Baby Boomers (age 47–65): 80 million people
Generation X (age 31–46): 47 million people
Generation Y (age 18–30): 76 million people

Generation X has gotten a bad rap. Originally derided as “slackers” who are disrespectful and non-empathetic. These were the children of a generation with the highest divorce rate and were initially the known as “latchkey” kids. Left to their own devices and less likely to succeed. But recent research and articles refute the slacker label and suggest that they are actually hungrier and more confident than previous generations at their age. (“The Myth of the Lazy, Entitled Millennial,” NBC News, 4/22/2015, http://www.nbcnews.com/business/careers/millennials-hungrier-more-well-educated-past-groups-n345406).

The Millennials (Gen Y) are the most important to focus on right now because they are the newest and least understood. They are the country’s most diverse generation; only 57% identify as non-Hispanic white. Compared to prior generations, the Millennials are significantly less connected with traditional institutions, such as political parties, religious institutions and marriage (only 27%). They generally have more progressive and inclusive social views. Despite being less financially secure than the previous two generations at the same age, they remain relentlessly optimistic, with 49 percent saying the country’s best years are ahead and 8 in 10 reporting that they currently have, or expect to have, enough money to lead the lives they want.

Gen Y grew up in an environment of worldwide disorder: school shootings, 9/11, governmental changes throughout the world, global climate change, enormous natural disasters, BP Oil spill, the great recession. These are the events that have shaped and continue to influence the Millennials. Because their world has involved incidents like Columbine, Sandy Hook, Virginia Tech, 911 and the like, they tend to be more security-conscious than prior generations. They believe there should be security plans in place and security should be considered by businesses. They have always known a world where security was an issue and where businesses and institutions provided security. They are comfortable with security cameras and limited ingress/egress systems. They have never stayed in hotels which handed out real keys. They have never boarded an airplane without having to take off their shoes or go through magnetometers and x-ray equipment. In short, their life experience incorporates security into almost every aspect.

Because of that, there is an expectation of security and an equal expectation that it be competent.

What is important to note is that Millennials have great distrust of others. In studies only a very small percentage feel that “most people can be trusted,” compared to a third of Gen Xers and 40 percent of Baby Boomers. Many studies suggest that both Gen X and Y have strong anti-corporation biases and a generalized sense that if someone is hurt, they should be compensated. Interestingly, as compared to Gen X, Millennials are lest distrustful of the government and are more optimistic about what government can do. While this may be a function of youth – and the likely increasing skepticism that may take place as they mature – it is a factor to keep in mind.

This generation is poised to be the most educated group yet the most under-employed (16.2% unemployment for 18 to 29 year olds). They are graduating into job markets with fewer jobs and often take jobs for which they would traditionally be over qualified (e.g., the barista with a master’s degree). They are debt-ridden, with a substantial number carrying large student loan debt. Some feel that Gen Y has a sense of entitlement; that theory is not yet proven but certainly many in this group have displayed those traits.

Perhaps the defining element of a Millennial is that they are constantly “plugged in” and connected. This generation grew up with technology. They have never known a time when there were no cell phones or internet. Their understanding is derived from being able to “Google” anything they need to know. They are used to instantaneous responses.

Another element of the Millennials is that they tend to defer to policies and procedures (“rules of the road” if you will). If you can get them to realize that the other party has violated policies, they are much more likely to find liability. In this vein, they defer to documentation. If something is not documented, they assume it did not occur. This may play into the fact that this is the most documented generation ever, between social media, computers, video, etc.

Approaching jury selection with Millennials:

Understand that they are keenly tuned in to networks like Twitter. Twitter and similar social networks are the backbone of the Gen Y existence and connectivity. They are used to espousing their opinions, even if limited to the characters allowed on Twitter. This is a generation with opinions which they believe should be freely shared. And often.

Because they are by nature distrustful, you need to build trust. That begins with any opening remarks and throughout jury selection. Credibility is key; exploit perceived credibility gaps in the opposition without succumbing to overreaching arguments or anything that reeks of being manipulative. They want concrete facts and a basis for opinions from experts. They will defer to the superior expertise and credentials of an expert but only if it is supported by credible reasoning and facts.

The social networked and online existence brings about certain characteristics in this group. Due to the overload of data available at warp speed which they have lived in their whole life, they have short attention spans. That is not aided by today’s television and online entertainment. Streaming videos on demand without commercials, the ability to pause anything to then multitask and come back to it later, make this a generation that needs constant information to grab their attention. Twitter’s 140 character limit means that they are accustomed to receiving succinct information. “Snapchat” allows users to view a picture for 10 seconds before it disappears. It’s no wonder that this generation needs rapid fire information and presentation throughout trial. The presentation needs to be simple but no condescending.

Their use of and involvement with technology means that they are not only comfortable with it in the courtroom, but suspicious of a lack of it. Use technology and recognize that you must be adept at using it or its use will backfire.

Some interesting differences between the generations:

Recent jury research found that Gen X is most likely to award damages for emotional distress, while Baby Boomers and Gen Y were slightly less like to do so (but not significantly less). However, Gen Y were much less likely to award damages for loss of capacity to enjoy life compared to the other generations. Most experts consider this to be maturational in nature. These are the people at the earliest stage in life with much less life experience and are most likely to take quality of life for granted.

Keep in mind that even among these “generations” there are substantial age differences. They are also in a constant state of flux, and with the aging of Gen Y we can expect to see differences in attitudes and jury behaviors.

SOCIAL MEDIA: The 21st CENTURY DILEMMA

Virtually every juror uses social media. Many are constantly online. For the Gen Y’s, they are more comfortable texting than conversing. For a generation used to getting any answer online at any time, sitting in a courtroom and being prohibited from internet use is akin to being imprisoned.

You can be sure that every Millennial will consider “googling” as a daily event. If there is something they don’t know or want to learn, they will google it or go to YouTube. This group is least likely to heed the command not to perform any independent research, partly because it comes as second nature and partly because they may not truly consider it research. It is in their DNA.

Courts and Judges have wrestled with the issue of how to prevent jurors from conducting online research. Forget the day where the juror went to the scene of the accident; today’s jurors will get on Google Earth or Google Maps and look at the scene from multiple angles, will check the backgrounds of the parties, witnesses, lawyers and experts, and check out the web sites and social media of those entities. In sum, whatever there is out there on you, your client, the opposing party and the case will be within reach of these jurors. They use electronic communications for virtually everything and it is unlikely that they will stop during trial. You can expect them to try to ascertain what the security situation was like at the time of the incident, check the backgrounds of those involved, and perhaps even attempt to view a crime grid or examine prior criminal acts on or near the subject location.

Interestingly, crime rates have been substantially dropping for those who are in this group. In general there is less violent crime (but more economic and terrorist-related crime). From 1993 to 1998, violent crime committed by people 12 to 17 fell 45%. “The most crime-prone age and gender cohort — 15-to-25-year-old males — are committing far fewer crimes than that cohort did in 1990.” Despite that, about 33,000 Americans are killed by gun violence each year the majority of which are under the age of 30. That is the leading cause of death for those 15 to 24 years-old. Thus the Millennials may be poised to change gun laws and support enhanced security. It might be worth questioning potential Millennial jurors if they or anyone they know has been impacted by gun violence.
Conclusion

Voir dire continues to be one of the most significant parts of a trial. In security and civil violent crime trials, that is particularly so because in most cases the focus of the case is on the conduct of a party who did not commit the crime. We now recognize that there have been substantial generational changes among the jury pool. The rising numbers and power of the Generation X and Y jurors require trial lawyers to alter some of their basic approaches to jury selection. Most importantly, lawyers need to understand Gen X and Millennial experiences to better understand their biases and means of absorbing information.
Today’s Gen X and Y jurors present a much greater need to present trials in an interesting and rapid pace format. The use of multimedia is almost mandatory in order to satisfy these generations’ need for stimuli as well as the fact that they have been wired to process information in that manner. It is a well-accepted concept that Gen X and Y are used to taking in vast amounts of information on a daily basis, much more than Boomers and prior generations. They have been heavily influenced by the media and technological entertainment (“CSI effect”).

There have been various theories and studies of these new generations, but there are a few constants to keep in mind:

• They value technology
• They have short attention spans
• They expect technology and/or graphics in trial
• They are comfortable with a logical presentation order for the trial
• Credibility is king
• They have always known a world where the presence of security is ubiquitous
• They expect security to be provided in commercial premises
• They believe there is a responsibility to care for each other

When all is said and done, they still need to hear a good story. And they need instant gratification. If you want to lose a millennial juror, slow it down and make it boring.

Just like the web site that takes too long to load, they will click elsewhere.