The stereotypical Generation-Xer is an unmotivated slacker--angry at society, shaggy haired and flannel-shirt wearing, suspicious of authority and reluctant to get a job. From the traditional corporate defendant's perspective, that's the last person you'd want to decide the company's fate in a large litigation. But litigators can no longer afford to simply ignore that segment of the population. The people who grew up alongside Kurt Cobain are now in their 30s. Generation X and the one that follows it, Generation Y, now constitute about 52 percent of the jury pool, and companies will undoubtedly have to place those people on juries going forward.
Instead of automatically eliminating young people in voir dire or hoping Gen-Xers will fall in line with older jurors, companies need to learn the strategies that will enable them to present their cases in ways that capture the attention of younger jurors.
"Even in remote areas such as rural counties in Texas, Gen-Xers comprise about 50 percent of the jury pool," says Jonathan Leach, a senior trial consultant with Courtroom Sciences Inc., a jury-consulting firm based in Texas. "You can't avoid this change by trying the case in the boondocks."
However, preparing to present an effective case to younger people is difficult and requires litigators to rethink many tried-and-true courtroom tactics.
"The old wives tale among trial lawyers is that a good hook in any jury trial is to appeal to a sense of injustice inherent in all of us," says Philip Kircher, co-chair of the commercial litigation department at Cozen O'Connor in Philadelphia. "But that may not apply when you're dealing with people in their early 30s. They're not children of Vietnam or the civil rights movement, and they're not essentially children of today's events. They grew up without being confronted with the injustices."
A trial lawyer's ability to understand this generation's perspective and accommodate the ways in which it best processes information has a profound impact on the lawyer's potential for success in today's courtroom.
The biggest accommodation trial lawyers have to make to sell their case to the new generation of jurors is to adjust to the different way in which they learn. Generation-Xers (people born between 1965 and 1980) typically spent more of their childhoods in front of TVs than in classrooms, and therefore are more receptive to information that a lawyer presents visually.
"Generation-X jurors are visual learners to a much greater degree than baby boomers," Leach says. "The written word does not matter as much. And you can't rely on your oratorical skills. Older folks are better at listening to the story and remembering the details without the visual aid."
Presenting an effective visual case means a lot more than flying bullet points in a Power Point presentation. Gen-X and Gen-Y jurors are highly technology savvy and grew up using the Internet. They are comfortable with technology and their expectations will be that a lawyer use sophisticated graphic presentations. Therefore the traditional fear that a tech-intensive trial will make your client look "too slick" no longer applies. Digital audio, sophisticated streaming-video depositions and digitized documents that you can highlight and edit instantly are all good ways to keep a young jury engaged.
Along with being tech-savvy has come facility with receiving information from many sources at the same time and a short attention span.
"People in this generation will watch CNN, listen to music on their headphones, play Xbox and study all at the same time," says Brent Dobbs, president of Courtroom Sciences. "This means that they are accustomed to receiving constant streams of information from a variety of sources at once. You have to mix up the media you use."
Secondly, trial lawyers must combat the often-unrealistic expectations about the legal process that Gen-X and Gen-Y jurors bring to a proceeding. TV shows such as "CSI" and "Law and Order" top the Nielsen ratings, and people who've grown up watching courtroom dramas may expect some of the same spectacles in a real-life courtroom.
"After watching 'CSI' for years, people expect lawyers to produce rock-solid scientific proof in any case," says Ronald Schutz, head of the IP litigation department at Robins Kaplan Miller & Ciresi. "You need to address this head-on and manage their expectations. Tell them it's not like TV, where the ability of science to come up with answers seems effortless. If that were truly the case, we wouldn't need jurors in the box exercising their human judgment."
Additionally many Gen-X and Gen-Y jurors have watched televised trials of celebrities such as O.J. Simpson and Michael Jackson or sensationalized trials such as Scott Peterson. While televised trials provided viewers with some knowledge of how a trial works, they also have bred cynicism about the efficacy and fairness of the legal system.
"A side effect of celebrity cases is that people believe a trial is less about the truth and more about winning," says Dr. Joseph Rice, president of the Jury Research Institute. "They believe neither side is truthful."
This cynicism can cut both ways--while a juror may be more suspicious of businesses, they also are less likely to be swayed by a plaintiff's flashy opening argument or podium-pounding histrionics. The upshot of this cynicism is that both sides have to present their cases with more detail and substance.
"You have to dig deeper and cover additional bases so your presentation is air tight," says Simon Bloom, a litigation partner at Powell Goldstein in Atlanta. "This means you want more specialized experts. It's not enough to paint with broad strokes and tell them, 'that's the way it is.'"
Maintaining The Balance
Although the increasing presence of Generation-X and Generation-Y people on juries is requiring companies to rethink some of their strategies, this rethinking also can help lawyers address the growing sophistication of traditional jurors. Everyone now in the jury pool grew up with television, was witness to some of the more sensational trials of the past decade and expects information to be available more-or-less instantly.
Tailoring your strategy to the expectations society has bred is the key to appealing to jurors young and old. What it comes down to is abandoning notions of putting on a show, and developing a story that will truly satisfy your audience's questions.
"The most important thing for any juror, but particularly for the younger jurors, is presenting information in a way that lets them come to their own conclusions," says Tucker Clauss, a litigation partner with Wiggin and Dana. "Don't hit them over the head with a hammer. You need to present the information and allow them to do their own analysis and thinking."