By Dr. Ken Broda-Bahm:
America's new president-elect may see a courtroom before he moves into the oval office. While the Defense has filed a motion to delay in order to allow time for settlement, the trial in a lawsuit by former Trump University students is currently scheduled to begin in San Diego on November 28th. In a recent article in Reuters, a number of lawyers weigh-in on the expected difficulty in picking a jury if the case doesn't settle. "Parties often hire specialized jury consultants to pick jurors, but New York lawyer Robert Anello said they were not infallible. 'If experienced pollsters can't get it right,' he said, 'how can a jury consultant who is not spending as much time studying the demographics?'" The article goes on to quote Harvard Law professor Alan Dershowitz, "This is a jury consultant's nightmare to pick in a case like this," and "It will be taught in jury consulting school." While the article isn't clear on the reason for it being a nightmare, the reason won't be the demographic point that Anello makes. With a written juror questionnaire being used in the case, the parties won't have to make fancy pollster-driven demographic guesses on who the Trump supporters are: They'll just ask. Even if they cannot request specific voting behavior, they can ask about issues and attitudes that should make it easy enough to determine. The real reason it will be a nightmare is that both sides will face a jury pool dominated by people motivated to use their role as a juror to either attack or defend America's most polarizing leader.
Beyond that case, last Tuesday's election results add information that will be relevant to future jury selections in many cases. While Clinton exits stage left, Trump will be with us for at least four years, and identifying and understanding the Trump supporters in your panel and your jury will help in selecting and persuading your jury. How the attitudes underlying a Trump vote will influence that persuasion, will naturally depend on your case, but there are reasons to believe this electoral victory will embolden and disinhibit this particular group, potentially helping them be more vocal on the jury and more likely to lead. If the greatest unifying factor among Trump voters was a feeling of powerlessness and not being heard, then that is likely to change after the election. How it all plays out will, of course, depend on your case, but it adds a factor to think about. In this post, I will try to set aside the idea of seeing that group as a single undifferentiated mass, and will instead share some thoughts of the several slices of Trump-supportive attitudes that could be relevant depending on the case.