How to Appeal to Silent Generation Jurors

Because we are living longer, and living for the most part healthier as we age, you may find a surprising number of “Silent Generation” jurors on your panel. These are individuals who were born roughly between 1925 and 1945. They are Baby Boomer and Generation X parents, whose grandchildren, typically, are Millenials.

How is this information relevant to your success? Members of the Silent Generation are likely to be relatively silent during voir dire, and you may have little opportunity to find out what matters to them. Yet this is a generation for whom a great deal matters, and you need to know what.

The Silent Generation is a generation of helpers. Their greatest contribution to our society was to humanize their world: this is the generation that produced the great Civil Rights Leaders and almost every leader of the Women’s Movement. What do they want now? To help ensure a safe world for their beloved grandchildren. And they do listen to those grandchildren. After all, Millenials too are community minded and seek to make a difference.

Take into account, as you develop your case themes, what matters to the generations on your panel. You will have far more juror-appeal and persuasiveness.

How to Help Jurors Discredit the Lay Witness in Cross

We all cooperate more willingly with decisions we’ve had a hand in making. Jurors in trial are no different. Ask your questions in cross-examination in a way that allows the jurors to arrive at the unmistakable, inescapable, conclusion you want them to, rather than force the conclusion down their throats or risking a sympathetic answer from defense’s witness.

For example: The lawyer is cross-examining a lay witness at the scene of a bus-pedestrian accident. The lawyer represents the pedestrian.

Question: Ms. Smith, did you see the bus as it came towards the intersection of First and Main shortly before the accident?
Answer: Yes, I did.
Question: Could you tell us what the color of the light was for the bus as it came down First?
Answer: It was green, a green light.
Question: Really? Isn’t it true that when you spoke to the police officer shortly after the accident you said the light was red?
Answer: Oh, well, I’m sorry, I’m a little nervous. I’m sure the police officer report is right.

Well, at this point, the jurors may very well believe the witness, since she’s being humble and apologetic and who isn’t nervous in court? The lawyer meanwhile has lost the opportunity to show the jurors that the case isn’t as cut and dried as defense would have them believe.

A more effective way to approach this might be:
Question: Could you tell us what the color the light was for the bus as it came down First?
Answer: It was green, a green light.
Question: Ms. Smith, did you talk with a police officer right there at the scene, just after the accident?
Answer: Yes, I did.
Question: And did that police officer ask you what color the light was for the bus as it came down First?
Answer: Yes, I think he did.

Rather than pounce on the witness at this point and give her the opportunity to sympathetically correct herself, the lawyer could produce the police report and show (visuals work!) the portion where Ms. Smith unequivocally said “The light was red,” and simply end his cross on that note.

The jurors can now come to their own conclusion that Ms. Smith is, for whatever reason, being less than truthful, and are now much more likely to accept the police report as stated, which was exactly what the lawyer wanted them to do.

How to Persuade With Jury Instructions

Jurors polled in focus groups and jury debriefings point out again and again that one of their greatest stumbling blocks at arriving to fair and just decisions is jurors' lack of understanding of the jury instructions and how those instructions should apply to the case. No matter how many times jurists attempt to make jury instructions more accessible to the ordinary person, the language remains obscure and convoluted. Lawyers must help jurors make sense of the language - and most importantly - help the jurors understand how these instructions fit with your case.

For example, take the common instruction regarding "negligence." Jurors often interpret the term as meaning deliberately, intentionally failing to do something one should have done. This is, after all, the most common use of the term in our everyday parlance. Unless clearly instructed that the intent to inflict harm is not a prerequisite of a finding for the plaintiff, the jurors, for example, might absolve a physician's incompetence because "the doctor didn't mean to hurt the patient."

In addition, even when jurors understand the words themselves, they can fail to see how the instruction applies to your case. What is obvious to you is often cryptic to jurors. Throughout the trial, relate testimony and evidence to the key terms of your jury instructions, and remind jurors at closing of how you accomplished this. A "bottom-line"-type chart will easily reinforce the connection.

It is a truism that the lawyer who provides the most clarity and logical explanation of a situation is the lawyer who will prevail. Although this is important throughout the trial, it is critical at during closing arguments. Improper handling of jury instructions can damage an otherwise wonderfully prepared and presented case.

Keep Experts Cool for a Credible Response

Experts can shine or be demolished during cross. An easy way for opposing counsel to destroy otherwise sterling expert testimony is to goad the expert into responding defensively by asking questions in an insulting or outright attacking tone.

Your experts do best if they don't consider the question an attack (regardless of vocal tone), but rather as an opportunity to further clarify and educate. Follow this advice and your expert won't feel tempted to negate or fight everything opposing counsel says. Encourage your expert to simply listen attentively to the content of the question, allowing he or she to answer in ways that may surprise opposing counsel and help your expert maintain a positive footing.

For example, opposing counsel asks, verging on the insulting: "Isn't it true that the validity of the psychological tests you gave is suspect?" Instead of answering defensively: "I personally examined the validity scales of every test," a more constructive answer might be "Certainly, validity is always a primary concern, as are reliability, standardization and other such issues." Using the question to clarify an issue, the expert scores with the jurors and in the process sidetracked opposing counsel (who was undoubtedly expecting the defensive response).

Here is another example of the type of question which tends to put experts on the defensive: "Isn't it true that Drs. X, Y and Z have written that the test you used to come to your conclusions is subjective and unreliable?" Experts who get angry and defensive in response to this line of questioning do not do well with jurors. Suggest that your expert concede what is indefensible, and support that which is: "Indeed, these doctors say that under certain circumstances – unlike the circumstances in this case – this test may be of limited value." Opposing counsel is now obliged to ask your expert about those "certain circumstances," (or if not, you can on re-direct) and your expert can reiterate how this test has value in this particular circumstance.

Keeping expert cool inevitably paves the way to a more credible response.

Today's Jurors’ Mixed Feelings About Corporations

National research (Harris Interactive, 2009) shows that a majority of Americans place “a lot” of blame on banks (76%), Wall Street (57%) and big business (55%). In these difficult and trying times, juror attitudes are changing. It is inevitable that among your jurors there will be those who are recently un-employed, some for the first time in their work-lives, and those who have lost savings, homes, opportunities, even careers.

This has corporate defendants very concerned, for if corporations have often fared poorly in jurors’ eyes, they are doing even worse now. However, this is hardly the time for plaintiff’s counsel to cry “Huzzah,” for along with the public’s disdain for corporate greed and malfaisance, comes the public’s disapproval of any case that smacks of the frivolous or the not “truly madly deeply” justified, especially if plaintiff’s win would mean a cut in jobs for employees.

At least some of the jurors in any given panel understand the consequence of large awards. Don’t forget that among the currently unemployed are many who were in the upper-middle white collar strata of the workforce, and that these unemployed are able to educate their less-informed fellow jurors on the realities of what happens to employees, their jobs, wages and benefits, when corporations are hit with huge verdicts.

Whether representing plaintiff or defendant, keep in mind the current composition of your jury pool and current juror attitudes. This will go far in helping you win your case.

Recession Revelations & Your Jurors

The continuing recession and revelations it brings about corporate and other wrong-doing – be it excesses, or cavalier squandering of the ordinary citizen’s financial well-being – have significantly altered juror attitudes. Jurors are no longer taking the position of “What the heck, everybody does it,” rather they are holding lawyers and all parties in the action to a higher standard. For example, taking advantage of others by virtue of contractual technicalities and loopholes is less viewed as a flaky but ordinary way of operating in the world, and more as an unacceptable moral failing. Issues of abandonment and betrayal are rarely excused. Turning one’s back on others and leaving them in a helpless or difficult situation, is virtually always unacceptable.

Jurors are favoring lawyers who express sincerity and genuine belief in their client’s cause, are well prepared, and respectful towards the legal process and all involved. Jurors are less convinced by lawyers who focus on the “letter of the law” and more persuaded by those who incorporate the “spirit of the law” into their arguments. Jurors are more attuned to anything that smacks of a lawyer’s attempt to pull the wool over their eyes, and likely to quickly discredit that lawyer and his or her arguments.

Jurors appear to be more favorable towards the lawyer who admits to problem areas of a case, and then proceeds to give common-sense, believable reasons for those actions. Jurors do not appear to be looking for perfection, or favoring only those “without sin,” but rather for honesty and other “straight-shooter” type qualities, which are quintessential American ideals - sorely lacking these past few years in many a juror’s mind.