February 28, 2013

Don’t Hate on Younger Jurors

By Dr. Ken Broda-Bahm: 

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The fact that we ourselves are bracketed in time makes us want to see that span – a generation – as terribly important to who we are. Projecting that onto others as well, we tend to see people as products of their generation. That is the frame of mind that leads us to draw conclusions about what older jurors and younger jurors are like. In the case of the younger jurors, the stereotype-driven reaction might be something like this:

Great, here is a juror with an attention span of two minutes. They’ll have a sense of personal entitlement, but a sphere of moral concern extending only to themselves, their friends, and their favorite celebrities. They’ll be cynical and distrustful of every representative of “authority” including me and this court. They’ll love technology but even if I could use holographic projections as demonstratives, they’d still believe that they have better technology in their own pocket. And they’ll feel a need to post, tweet, check-in, follow, like and share on that device roughly every two minutes. They’ll devote less mental attention to this case than to their latest piercing or tattoo because the claims, the law, and the broader notions of “justice” aren’t personally relevant. Ultimately, me, my client, and this case will be about the most boring thing they’ve done all day. 

While your own perceptions may be different, many of those elements are shared when it comes to thinking about younger jurors. But there is a problem when it comes to perceptions and stereotypes: They can be compelling, particularly when they’re formed on the basis of your own experience, but that doesn’t make them reliable. Effective litigators and other persuaders should work hard to set aside stereotypes in order to deal with the true target. To the greatest extent possible, our analysis of our audience should be based on data and not assumptions. In this post, I review a bit of what is believed and known (mostly believed) about the newcomers to the venire and provide some ideas on the best ways to communicate across the generational divide. 

So What Is It We Think We Know About Younger Jurors? 

The latest cohort has garnered a variety of monikers, including “Generation Y” and “Generation Me,” but the name that has appeared to stick is the “Millennials,” referring to the group who came of age near to the turn of the century. Based on the latest US Census Data, this group including those born in 1980 or later, is now the largest segment of America’s population. Two professionals in my field, Doug Keene and Rita Handrich who blog at The Jury Roomhave made it one of their main preoccupations to track what is known and what is felt to be known about generational differences in the courtroom and the law office, and have written up many of their observations and recommendations in a series of articles in The Jury Expert. As they synthesize, the Millennials are generally viewed as being: 

  • Optimistic and upbeat
  • Socially liberal
  • Embracing of diversity
  • Entitled
  • Narcissistic
  • Technological natives

But What Do We Actually Know About the Millennials? 

As Keene and Handrich note in detail, there is a very wide gulf in this case between what is believed and what is known. To take one of the most extensively documented and debated differences, the Millennials are seen as being overly narcissistic, hence the name “Generation Me” (Twenge, 2007). And there are at least some indications from nationally representative survey samples of a modest to high tendency for the Millennial generation to have an inflated sense of their own importance and a reduced tendency to think in communitarian terms. But there are also some strong reasons to believe that such differences are not uniform across either the Millennial population as a whole or the spectrum of narcissistic attitudes. As Keene and Handrich (2013) note, it is a mistake to assume “that all members of generations are the same and every person of this age will share the same characteristics. If that were true, voir dire would be a simple matter indeed.” In contrast, there are probably close to as many individual differences within a given generational cohort as there are between different generations. At the same time, there are some distinctions that can be drawn very broadly at the aggregate level. Aiming to get beyond the stereotypes and find real and measurable distinctions between the Millennials and their older peers in the jury box, Keene and Handrich (2010) do note the research supporting some differences in the following categories: 

  • Political Affiliation: They’re politically and socially liberal
  • Religion: They’re less religious, or at least less likely to affiliate with organized religion
  • Education: They’re the most educated generation in history
  • Employment: They’re hard-hit in the current economy and less likely to have full-time jobs
  • Tolerance: They’re open to different beliefs, sexual orientations, and other lifestyles
  • Technology Use: They were born into high levels of personal technology use 

While these facts are observed in the data, it is important to remember that they’re aggregate generational differences within the jury pool and serve a heuristic function (a reason to ask further), but demographics is not destiny. They don’t provide a complete answer – at least not one that reliably applies to a given individual in the jury box. Even when differences are evident across the broader population, they serve as only weak and unreliable markers of what really counts when the case comes down to deliberations: attitudes. So, the best way to know something about the Millennials is still to use oral voir dire to ask the ones you see on the panel. 

And How Should We Be Talking to Them? 

First, We Should Be Talking to Them. Of course, I mean that literally in the event that your judge allows oral voir dire and post-verdict interviews. But also, in your pretrial research — your focus groups and mock trials — it is getting easier to simply miss them. If you recruit your mock jurors through telephone sampling, for example, your younger cohort is less likely to have a landline telephone. And if you do reach and recruit the younger research participant, particularly the younger male research participant, they are less likely to show up. For this reason, we have begun adding the additional expense of buying cell phone samples, and over-sampling the younger age ranges on the panels. If you don’t do that, you run the risk of missing the Millennials. 

Second, We Shouldn’t Stereotype. Don’t assume, and don’t ask a prospective juror whether she agrees with a particular attitude you associate with that generation. Instead, ask open-ended questions and then listen carefully to what they say. 

Third, We Should Ask About Case-Relevant Attitudes. It is what they think that counts, and everything else — including generation, other demographics, and even experiences — are at best fuzzy indications of what that thought might be. So spend some time identifying the keystone attitudes that help or harm your case and find safe, clear, and non-leading ways to ask those questions. There are several potential attitudes of younger jurors that are highly relevant in a litigation context. Jurors with a higher external locus of control will find it easier to side with a plaintiff in blaming factors like management and work conditions for a termination, and will be less likely to focus on that worker’s personal responsibility. Jurors who tend to be more individualistic rather than relational may be less interested in evidence about a given manager’s poor interpersonal style in the same case. Jurors who are less oriented toward rule-following can more easily base their verdict on fairness or personal ethics rather than the law. Those jurors who show less empathy may be less motivated to identify with the interests of the plaintiff as the injured party. The relevance of each of these attitudes will vary for every trial. Ultimately, you’ll need to identify the specific relevant attitudes in a given juror instead of relying on broad categories like the juror’s generation.

While attorneys and consultants will have many ways of addressing locus of control, individualism, and the like, there are also themes to be drawn from the Narcissistic Personality Inventory questions which could serve as a foundation for voir dire. While some questions would seem too personal or too “psychological” to ask a juror in open court, others could sound more natural. For example, the common question about whether one “enjoys managing other people on the job,” gets at the dimensions of leadership and authority. The question of whether a person “enjoys taking responsibility for a decision” or whether they “feel better about a decision made by a group” gets at the dimension of individualism.  The question of whether “accidents just happen,” or whether “accidents usually have a cause” gets at the dynamic of locus of control. 

Ultimately, your concern is with people: individual, quirky, nuts-and-bolts collections of personality, experiences, and attitude, not the broad abstractions of data relating to that individual’s cohort. It is the juror and not the generation who will decide your case. 

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Other Posts on Juror Demographics: 

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Some of the ideas and small amounts of text for this post were drawn from the author’s comment to a 2009 Article published in The Jury Expert. 

Keene, D. & Handrich, R. (2013). Values, Priorities and Decision-Making; Intergenerational Law Offices, Intergenerational Juries. The Jury Expert 25: 1. URL: http://www.thejuryexpert.com/2013/01/values-priorities-and-decision-making-intergenerational-law-offices-intergenerational-juries/

Keene, D. & Handrich, R. (2010). Tattoos, Tolerance, Technology, and TMI: Welcome to the Land of the Millenials (AKA Generation Y). The Jury Expert 22: 4. URL: http://www.thejuryexpert.com/2010/07/tattoos-tolerance-technology-and-tmi-welcome-to-the-land-of-the-millennials-aka-generation-y/

Photo Credit: Currybet (Martin Belam), Flickr Creative Commons

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