PICKING 21^st CENTURY JURORS

Hint: It’s not 1995 anymore

 

American Association for Justice

Weekend With The Stars Seminar

New York, NY

December 2014

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

  

Reams have been written about voir dire and jury selection (not to confuse the two).  There have been theories that have been debunked and many that remain in general acceptance among members of the trial bar.

 Some of these are timeless concepts and some are based on jury research, focus groups or science.  Yet the jury panels we 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 remains 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.”[1] One study revealed that eighty percent of jurors have reached a verdict by the end of voir dire.[2] 

Whether this is a consistent fact, and follows true to 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?

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 question is:

  What makes today’s jurors different than the juries we were picking 15 or 20 years ago?

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.

 

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.

 

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 21^st 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.

 

JUROR USE OF ELECTRONIC MEDIA:

 Many states have enacted rules on juror use of electronic communications. One example is Iowa’s Jury Instruction:

 100.23 Use of Electronic Devices.

 You may not communicate about this case before reaching your verdict. This includes cell phones, and electronic media such as text messages, Facebook, MySpace, LinkedIn, YouTube, Twitter, email, etc.

 Do not do any research or make any investigation about this case on your own. Do not visit or view any place discussed in this case, and do not use Internet maps or Google Earth or any other program or device to search for or to view any place discussed in the testimony. Also, do not research any information about this case, the law, or the people involved, including the parties, the witnesses, the lawyers, or the judge. This includes using the Internet to research events or people referenced in the trial. This case will be tried on evidence presented in the courtroom. If you conduct independent research, you will be relying on matters not presented in court. The parties have a right to have this case decided on the evidence they know about and that has been introduced here in court. If you do some research or investigation or experiment that we do not know about, then your verdict may be influenced by inaccurate, incomplete or misleading information that has not been tested by the trial process, including the oath to tell the truth and by cross-examination. All of the parties are entitled to a fair trial, rendered by an impartial jury, and you must conduct yourself so as to maintain the integrity of the trial process. If you decide a case based on information not presented in court, you will have denied the parties a fair trial in accordance with the rules of this state and you will have done an injustice. It is very important that you abide by these rules. [Failure to follow these instructions may result in the case having to be retried and could result in you being held in contempt and punished.]

 The flip side to the electronic communication issue: You can take advantage of the vast amount of information that will be online about and by each prospective juror.  Google, Bing and Yahoo are just starting points.  Twitter, Facebook, LinkedIn, Intstagram and the many other social networks (some of which will show up in searches) are chock full of more information on these jurors than a full old fashioned voir dire would provide.  That presumes your jurisdiction even gives you voir dire.

 Response to the Recession and Difficult Economic Times

 Jury duty is not something most people seek.  Most consider it boring or a waste of time.  But for many people squeezed by the national recession, a jury summons holds a new fear: financial ruin.

 Many Americans “jurors included” are affected by what is happening in their everyday lives. A substantial number of jurors are affected by the recession, whether it has directly impacted them, their family or those around them.  Because jury behavior is so difficult to assess and predict in the first place, adding an additional factor can increase the complexity of jury selection. This is particularly true with Millennials, who may have substantial debt (student loan or otherwise) or be underemployed.

 The financial crisis we have been experiencing takes a toll on the jurors themselves. Jurors are often seeking to be excused because they cannot afford to devote their time to sit on a case.  Some potential jurors have gone from two income families to a single income, or are in other ways struggling to get by.[3] Jurors increasingly are requesting recusal from service based on financial hardship due to the current economy.[4]  This problem, always an issue for some jurors, has become much more severe.  According to Richard Gabriel, president of Decision Analysis, a national trial consulting firm in Los Angeles. Judges are very sympathetic to these issues, especially when a juror stands up and says, I lost my job and my house has been foreclosed on.[5] It appears that the length of trial has a strong relationship to the hardship requests.

 A leading trial consultants echoes this problem. Douglas Keene, PhD., notes that what is unequivocally clear is that jurors are in trouble, even if litigants aren’t. Increasing numbers of jurors are pleading financial hardship. They are afraid of being asked to serve on lengthy trials when they can’t pay their bills, they don’t have enough money for the gas to make it to the courthouse to be excused, their spouse has been laid off, they need to be available for over-time, and their employer will no longer pay their salaries for protracted jury trials.[6] 

 Keene notes that lawyers have valid concerns about keeping reluctant jurors on panels only to face angry and resentful jurors judging the case. According to Keene, these angry jurors are especially of concern to plaintiffs in civil suits because they are seen as having brought the suit and are more likely to be blamed by the jurors for any inconvenience that jury duty caused them. Keene’s advice to trial lawyers is that they need to be very candid and sincere about how much time the trial will take. 

 Another expert trial consultant, Charlotte Morris, suspects that given the Millennial generation’s age and immaturity, as a group they do not comprehend what money really means. Many still live with their parents (or have returned from school or a job to boomerang back to living with them).  Morris suggests that for many of these Gen Y’s, there is less empathy for injured plaintiffs because they are preoccupied with their own troubles in getting “launched” into society.

 The economic crisis is something we as trial lawyers have had little experience with in terms of jury selection.  We were not picking juries during the Great Depression.  There was no jury research then (and not much of a civil justice system).  So the effect of a Great Recession on how jurors perceive civil personal injury litigation bears further study. 

Recently lawyers have been utilizing jury selection techniques that vary from the tradition models.  These often reflect the increasing power of Gen X and Y jurors.  But they also recognize traditional issues of persuasion.  One idea is that if you identify a positive jury foreperson early, and make that person the centerpiece of the venire, the key thereafter is to find passive jurors.  It almost does not matter whether they are a “good” or “bad” juror for the case; the key is to have passive personalities who will allow the strong foreperson to control the deliberations.  It is particularly important to ensure that the strong putative foreperson has a social conscience and some innate empathy.

 

Conclusion 

Voir dire continues to be one of the most significant parts of a trial.  This is particularly so in the face of 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 kingWhen all is said and done, they still need to hear a good story.

 

 

^[1]Crawford, “Developing a sound approach to voir dire”, Trial Diplomacy Journal, 12:1 24 Spring 1989 at 25.

^[2]Jones, “Voir Dire and Jury Selection”, Trial, September 1986 at 60.

^[3]”Call to Jury Duty Strikes Fear of Financial Ruin, New York Times, 9/1/2009. See also Jurors Dodge Duty Amid Financial Fears, Newser, http://www.newser.com/story/68416/jurors-dodge-duty-amid-financial-fears.html (10/12/2009)(While exact figures aren’t available, officials report that jurors increasingly cite financial worries in bids to get out of duty. I cannot even afford the gas to have to come down there, an Idaho resident says.)

^[4]Correy E. Stephenson, Jurors increasingly seek recusal for financial hardship, Virginia Lawyers Weekly, 4/20/2009.

^[5]Id.

^[6]Douglas Keen, Ph.D., The financial crunch echoes in the jury panel, The Jury Room,  http://keenetrial.com/blog/2009/09/02/the-financial-crunch-echoes-in-the-jury-panel/, 10/12/2009.