By Dr. Ken Broda-Bahm:
The American dialogue on class has recently shifted. A new Pew Research Center survey finds that a solid majority of Americans, 66 percent, believe there are "strong" or "very strong" conflicts between the rich and the poor. In 2009, that figure was just 47 percent, and the most marked increase has been among those who have historically perceived the lowest levels of conflict: white Americans. In accounting for that change, some credit needs to go to "Occupy Wall Street" and similar encampments across the country, that even lacking a clear agenda have nonetheless succeeded in placing the the rich/poor gap on the national agenda.
The conflict has even found its way into the unlikeliest of places -- the Republican Presidential nominations race -- with Mitt Romney's opponents focusing on his work in the private equity world. Rick Perry called Romney a "vulture capitalist" and New Gingrich noted, "I think there’s a real difference between people who believed in the free market and people who go around, take financial advantage, loot companies, leave behind broken families, broken towns, people on unemployment." Combined with the "occupy" movement and the campaign, credit for the increasing salience of "class warfare" can also be placed on objective conditions: very hard times for most, a shrinking middle class, and a true income gap that is wider than it has ever been. The issue matters for those who work in civil litigation, a forum that is itself often viewed as a fight over money. This post looks at the importance of class-based thinking to civil litigation, and provides some ideas on case positioning for venues and jurors likely to see your case through a rich/poor lens.
Adapt to the New Class Consciousness:
Perhaps nothing captures the new national mood better than a snippet of senate testimony aired recently on "Moyers and Company." Amanda Gruebel, an Iowa teacher who along with her husband holds a Master's degree, told the committee about her challenges and increasing skepticism:
When we turn on our TVs, our radios, or pick up our newspapers, we read about what's going on in our federal and state governments and we start to believe that you don't care about us. We hear that corporate welfare continues and that CEOs get six-figure bonuses at taxpayer expense and we wonder who you're working for. And we look across the kitchen table at our families eating Ramen noodles for the third time this week and wonder how that's fair. We read that the wealthy get bigger tax breaks and hopes that their money will trickle down to us and then we turn the page and read about how our school districts are forced to cut staff, again. We know that money talks around here, and that means you don't hear us.
In that context, it is easy to see how people can become as skeptical of claims made in a civil trial, as they are skeptical of government and commerce. They're also skeptical of jury service itself when it threatens their livelihood or job security. Our own research has shown that those most likely to claim hardship for economic reasons are also those who are naturally pro-plaintiff. Being attuned to these concerns can mean asking yourself how the issue of economic security plays in your case, and asking potential jurors about their experiences and attitudes in voir dire.
Investigate Your Case Equities:
Another way to adapt to increased perception of socio-economic schism is ask whether you are framing your case so that you are asking for a greater equality of result. A recent study (Donovan & Kelemen, 2011) has targeted a natural human tendency to want resources to be distributed fairly, and to infer ill-intent when resources are unequally shared. We've all seen it in children: It is a great thing to have a cookie, unless your playmate has two. But this study found the same basic result in adults. The study scenario showed an individual, either alone or in the presence of another person, receiving a lower reward than they were due. When the individual receiving the reward was alone, study participants viewed the lower reward as a mistake. However, when two individuals were receiving a reward, study participants viewed the lower reward for one as intentional and unfair. The behavior was identical, the only thing that varied was the perceived equity of the situation.
This expectation for equitable outcomes dovetails with our experience at mock trials. In a project earlier this month, for example, a plaintiff in a breach of contract claim was asking for a portion revenue even while admitting that he had done little of the direct work involved in generating that revenue. The argument was that it was owed more than it was actually deserved. But that kind of argument often leads jurors to characterize the award as a "windfall" and to look for every excuse to knock it down. It is not just a matter of whether the outcome would meet the proper legal obligations, but whether the outcome would leave all parties in the position they deserve to be in, righting the scales of justice.
Identify Your Storyline:
At a time when many see increasing conflict between rich and poor, jurors can fit a civil lawsuit into one of a few different storylines.
Rich Guys Fighting Over Money. Commercial litigation in particular can fall prey to the perception that the trial is just a means of transferring or concentrating wealth. To combat that, your trial message needs to emphasize a theme that makes it about much more than money - a principle or a moral.
Big Guy Squashing Little Guy. Lawsuits pitting an individual against a corporation can end up reinforcing the worst stereotypes of class conflict. The answer here is also to emphasize the principle at stake, and to carefully assess which jurors are most prone to these perceptions.
Little Guy Trying to Take Advantage of Big Guy's Image Problem. Jurors, whatever their views, never want to feel manipulated. For that reason, a plaintiff that plays the rich/poor card too obviously risks a backlash. When you know or suspect the existence of helpful attitudes in your venue, then it is best to let those attitudes play out without prodding them along too much. The most trusted narrative is often the one the jury feels like it came to on its own.
We can expect the issue of growing gap between rich and poor to continue to stay in the national conversation. Along with the Presidential campaign optics, the reality of the gap will ensure that the issue stays with us through the coming year, and probably far longer. In that situation, at least part of your trial strategy should be to ask yourself, "How does my case look to someone focusing on the nation's growing disparity in wealth?"
Other Posts on Juror Economics:
- Don't Count on a 'Recession Effect' When it Comes to Damage Awards
- Assess Your Juror’s Economic Security: A Vulnerable Juror Can Make for a Vulnerable Defense (Part One)
- Voir Dire Potential Jurors on Economic Security: A Vulnerable Juror Can Make for a Vulnerable Defense (Part Two)
Donovan, E., & Kelemen, D. (2011). Just Rewards: Children and Adults Equate Accidental Inequity with Intentional Unfairness Journal of Cognition and Culture, 11(1), 137-150 DOI: 10.1163/156853711X568725
Photo Credits: Wannabehipster (Rich), Virtualbri_ (Poor), Flickr Creative Commons