The Jury and GenXers

GenXers are getting older. They are the generation bumping up against the Boomers who are slowly but surely on their way out. Which means you are seeing more of them in the jury box – individuals born between roughly 1961 and 1981, who are now in their late 30’s to mid 50’s. They are no longer entry-level hires, they’ve moved up into managerial or supervisor ranks, or commonly, headed off into entrepreneurial ventures of all types and sizes.

Why does this matter to you? 

GenXers are still among the more skeptical, if not downright cynical, generation. Thus, when it comes to liability, GenXer skepticism tends to favor defense because GenXers aren’t particularly emotionally swayed. They require more data, more evidence and the science behind it in order to find liability.

Liability is a major obstacle for plaintiff’s attorney when arguing in front of GenXers, so if your jury box is loaded with GenXers, be sure to back up your every argument with as much documented evidence as possible.

The downside for defense is, once GenXers are convinced of liability--especially GenXers in their late 30s and 40s--they will award higher damages than any other generational group. GenXers believe that people should be held accountable for their own actions. Awarding substantial damages is a way of holding people accountable.

The solution is the same as for plaintiff--but in the opposite direction. As defense, do everything you can to back up your arguments countering liability with documented, “hard” evidence, so as not to be hit with a big award.

Vocal Tone Matters During Voire Dire

Vocal tone matters, not just when you’re delivering your opening/closing or in questioning witnesses, but also in voir dire. Voir dire is when you create your first impression with what will be your jury panel. How you speak to prospective jurors is every bit as important as what you say.

"Well, the lawyer asked OK questions and all, but boy was he/she cold!" "I'm not a kid, you know, I didn't appreciate getting a morality lesson from the lawyer." These are the type of comments heard in jury debriefings when an attorney negated the good questions asked in voir dire by using an authoritarian or parental vocal tone. Jurors like to be guided, not told what to do.

Ask jurors whether they can be, for example, "fair to both sides," don't demand it of them. Think of jurors as fellow-travelers, about to embark on an expedition with you, not as the enemy. As best you can, use a conversational pace as you go through the intricate dance of question-response with prospective jurors. Keep your voice modulated for warmth and directness. Be sincere. Ask questions as if you really want to know the answer, not as if you're dictating to the prospective juror what he or she must think.

Character Matters In Court

In the political world, character has been a subject of considerable interest over the past year. In the trial world, this is nothing new. An attorney’s character is always a subject of interest to jurors. The more you exhibit sound moral character, the more favor you are likely to find with the jurors.

Behaviors that are characteristically interpreted as evidence of sound moral character include the following:       

1. Be professional toward opposing counsel. Don't stoop to snide references about the way the opposing side is presenting its case or avoid making other editorial comments. Treat opposing counsel the way you would want to be treated, with good gamesmanship and fairness. You can demolish opposing counsel's points and maintain a moral stance; just don't demolish opposing counsel.

2. Be respectful of the judge at all times, whether you agree or disagree with the judge's rulings and decisions. Keep in mind that jurors consider the judge as the final arbiter of what is moral and just in the courtroom. Don't whine or indulge in petty behavior; arguing for the sake of arguing, for example. Even when you are engaged in a sidebar, the jurors are watching. Keep your tone and body language toward the judge respectful throughout the proceedings.

3. Be courteous to the bailiff, court reporter and other courtroom personnel. No matter how tired, annoyed or frustrated you become during trial, be polite to those around you. Moral and upstanding individuals are expected to behave "better" than the rest of us in trying situations.

Character matters. When you display sound moral character, jurors are more likely to agree with your interpretation of the facts.