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Happy? New Year – 11 Top Trends That Will Impact Litigation in 2016

Laurie Kuslansky
By: Laurie Kuslansky

Jury Questionnaire, Trial Consultants, Jury Consulting, Trial Consulting, Demonstrative Evidence, Juries, Jury Consultants, Science, Jury Selection, Psychology

CBP1118598.jpgby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

If you deal with the public, and you wish to influence them, it makes sense to know your audience, who they are and what they believe and don’t believe. A recent report by Pew Research highlights “striking findings” from the past year. Here, we cover those most relevant to litigation and take them a step further, by exploring the implications for trial.

1. Most people (81%) do not trust the federal government “most or all of the time,” the lowest rating in 50 years.

Do you represent a federal agency or quasi-governmental one?

While specific areas of government are viewed as competent, such as in protecting public safety, the federal government does not make the grade when it comes to immigration or helping the poor or senior citizens. Those in public office (a.k.a., politicians) are largely seen as self-serving, lacking the “public” aspect of public service. Hence, wrapping yourself in the American flag may not help your case if your issues overlap those in which the government is most distrusted and rated worst. For details, see: http://www.people-press.org/2015/11/23/beyond-distrust-how-americans-view-their-government

2. The middle class is no longer the economic majority in America. 

The biggest shift is that the rich got richer, while the middle class fell even further behind. In dollars, “middle class” now refers in 2014 dollars to a household income of $42,000 to $126,000 annually for a household of three.

Half the U.S. population is upper or lower class (21% and 29%, respectively); half is middle class (50%) (See http://www.pewresearch.org/fact-tank/2015/12/10/5-takeaways-about-the-american-middle-class/).

How will that impact jurors who missed that gravy train? Strife and resentment are likely to motivate jurors who, in 2016, are judging clients who have enjoyed privilege. Specifically, since 1971, some have done better than others financially:

Who’s doing better?

  • Older Americans (aged ≥65)
  • African Americans
  • Married
  • Women more than men


Who’s doing worse?

  • Lacking a college degree
  • Young adults (aged 18 to 29)
  • Hispanics (driven by the increasing number of Hispanic immigrants)

If your or your client’s household income exceeds $126,000 per year, consider whether you really understand the jury or they will understand you or your client. What are the differences in lifestyle, understanding of financial concepts, points of reference and experiences that may not overlap with about 80% of people on a jury, if not more (since affluent and educated jurors tend to be able to get off juries, especially on trials that last more than a few days).

If the income of your jurors is an important consideration, do whatever you can to shorten the trial (for affluent, white collar, educated jurors) or lengthen the trial (for less educated, impoverished or blue-collar jurors).

Also consider calendar issues when presented with options on scheduling the trial: what other events are popular during certain times and do they help or hurt you? For example, tax season, hurricane season for cruising, holiday season, summer vacation for teachers, etc., can all impact the makeup of a jury.

3. More Mexicans have left the U.S. than entered it!

A combination of family reunification, stricter enforcement of immigration laws and a challenging economy contributed to this shift. Most of the million people who left did so of their own volition. (See http://www.pewhispanic.org/2015/11/19/more-mexicans-leaving-than-coming-to-the-u-s/).

4. More Americans see racism as a big problem.

In a year of painful racial tensions and events, there has been a rise in the number of Americans -- regardless of race or ethnicity and across all regions of the country, with more Democrats than Republicans – saying that our country needs to make changes to achieve racial equality. (See http://www.people-press.org/2015/08/05/across-racial-lines-more-say-nation-needs-to-make-changes-to-achieve-racial-equality/)

5. Baby Boomers (aged 51-69 now)... step aside. Millenials (now aged 18-34) are becoming the largest living generation.

(See http://www.pewresearch.org/fact-tank/2015/01/16/this-year-millennials-will-overtake-baby-boomers/)

Consider the implications of what the jury pool will look like. As it fills with more millennials, revisit their frames of reference and consider weeding out ones that may be outdated or risk your points falling on deaf ears. For example, the oldest Millennials were born when the band Paul McCartney was in was Wings – not the Beatles.

Speaking of Millennials, they rely on social media (mostly Facebook) for news about politics and government, rather than on local TV as Baby Boomers do. (See http://www.journalism.org/2015/06/01/millennials-political-news/)

mock jury webinar a2l kuslansky


6. Of teens aged 13-17 years old now, 71% use Facebook (boys more than girls), 50% use Instagram (girls more than boys), and 40% use Snapchat. Most also use other social media applications

(See http://www.pewinternet.org/2015/04/09/teens-social-media-technology-2015/).

While most (92%) go online daily, about one-quarter go online “constantly.”

Race matters:

  • Smartphones are most prevalent among African American youth (85% have them);
  • “Almost constant” use is more prevalent among African American and Hispanic teens (34%, 32% respectively) than for Caucasian teens (19%).

Socioeconomic status matters:

  • Snapchat is used more by teens from higher household income families, while Facebook is used more by those from lower household income families.

In a few short months or years, these people will be eligible to serve on your jury. How quickly will you be able to provide them with facts? How compelling is the visual aspect you are feeding them to compete with their “norm”? What sources are you using to support your evidence that they will believe when they come of age to serve as jurors?


7. The religious landscape:

People in countries with a significant Muslim population hold negative views of ISIS.

Many people in the countries polled, including Lebanon, Jordan, the Palestinian territories, Indonesia and others, but not Pakistan, held a negative view of ISIS.

(See http://www.pewresearch.org/fact-tank/2015/11/17/in-nations-with-significant-muslim-populations-much-disdain-for-isis/)

In addition, people in those countries also bear increased concern over Muslim extremism. (See http://www.pewglobal.org/2015/07/16/extremism-concerns-growing-in-west-and-predominantly-muslim-countries/).

Islam will grow faster than any other religion in the next 40 years, nearly equaling Christians. (See http://www.pewforum.org/2015/04/02/religious-projections-2010-2050/) and http://www.pewforum.org/2015/05/12/americas-changing-religious-landscape/)

The religious profile of the U.S. will change: Muslims will outnumber Jews as the largest non-Christian minority. and more people are disavowing membership in any organized religion.

Consider today’s heavily Christian-based influence on politics and current events as “mainstream,” and how this may shift as the pulse of the nation shifts, including in the courtroom.

 

8. The United States’ near record immigrant population

The imigrant population (14%, largely Latin American and Asian) is expected to increase to almost 1/5 in the next forty years (18%). Until they achieve citizenship status, they cannot serve on juries, even though they will make up a significant portion of the population and impact local – if not national -- opinions.

Is your client or adversary foreign born? How will a growing foreign presence impact community views and will they be more positive and accepting or more separated and hostile? Time will tell, although the advent of a growing number of multiracial individuals in America has helped increase racial tolerance.

 

9. Almost 7% of Americans are multiracial, one of the fastest growing groups.

(See http://www.pewsocialtrends.org/2015/06/11/multiracial-in-america/).

Views about race and identifying with a single race are changing. These views also affect which group multiracial individuals believe they belong to and are, in turn, accepted by or not. Prior divides will become less distinct, so to the extent that race is an aspect relevant to your case, understand how the changing jury pool may have different views and don’t expect stereotypes to apply. Someone you think is one race may or may not see himself or herself that way and, in turn, may or may not identify with someone of the same race as you think.

10. The “truth” may be hard to sell: the public’s view of science and society differs from how scientists see them.

(See http://www.pewinternet.org/2015/07/23/an-elaboration-of-aaas-scientists-views/).

Some ways that scientists and the public are out of sync:

 

% Scientists Agree

% The public Agrees

GMO foods are safe to eat

88%

37%

Favor using animals in research

89%

47%

Foods grown with pesticides are safe to eat

68%

28%

Climate change is mostly due to human activity

87%

50%

A growing world population will be a major problem

82%

59%

Favor building more nuclear power plants

65%

45%


What will it take to close the gap if you are relying on science or other experts to win your case? Can you? Should you? Can facts outweigh jurors’ emotions, fears, concerns or beliefs? If not, should you revisit which experts to present and which facts are worth pursuing, or are they such uphill battles that, even if true, they cannot overcome public beliefs?

For example, although it is factually true that hypoxia caused by a loss of oxygen in the cabin of an aircraft may cause a slight sense of euphoria before unconsciousness sets in, no juror will receive this as good news or rely on this type of scientific testimony to mitigate the pain and suffering of doomed passengers falling to their imminent deaths.

Similarly, although reliable scientific data show that the wage gap between men and women in the workplace is caused significantly by women’s own life choices, socially evolved jurors resent and reject this data and find socially redeeming reasons to dismiss it (“Who else will have babies?”), rather than use it to mitigate liability or damages against employers accused of gender discrimination. On the contrary, many jurors believe the workplace should create a way to even the scale to compensate for those life choices as a form of affirmative action based on gender.

 

11. The scale has finally tipped globally to accept that climate change is a serious problem.

(See http://www.pewglobal.org/2015/11/05/global-concern-about-climate-change-broad-support-for-limiting-emissions/).

There are regional differences, so you must understand local beliefs and the role of climate in the venue before jumping into the jury pool if any issues in your case relate to issues of climate, climate change or global warming.

Other articles about understanding jurors and jury consulting by jury consultants at A2L Consulting:

A2L Consulting Voir Dire Consultants Handbook

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