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October 17, 2019 Feature

The Millennial Juror

What should the trial lawyer do in selecting a jury panel when confronted with a prospective millennial juror?

Chip Babcock

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I had some millennials—people born between 1981 and 1996, according to the Pew Research Center—on a jury last year. That should be no surprise, as they are now the largest generation in the U.S. labor force and in the electorate.

After the jury returned a compromise verdict that tilted to the defense, I had an opportunity to speak with the panel immediately after the trial and at a reception for them a few days later.

None of the millennials in the group wanted to talk much after the trial, and none showed up for the reception. So my profile of their reactions to the case is derived through the lens of jurors from other generations.

They reported that the millennials were very pro plaintiff and that two were passionate, combative, and outspoken during the deliberations. These millennials shared some of the characteristics jury research has attributed to the millennial generation overall. These millennial jurors were said to have a strong sense of entitlement, which they projected onto the plaintiffs’ case.

As jury consultant Jason Bloom has written, millennial jurors often take on the role of “social justice warrior,” often seeking retribution for what they perceive to be unjust circumstances thrust upon them by older generations. And that was true in our case even though one of the plaintiffs described himself as an “old rich white guy.” But he and the other plaintiff were seeking additional compensation from a large corporate defendant for their lifetimes of service. The plaintiffs’ case was a classic for the millennial jurors, but they were outnumbered by equally passionate and committed defense jurors from Gen X and the baby boom, which is what led to the compromise.

This sense of social justice and antipathy to large corporations has been explained by the unfortunate truth that many millennials entered the workforce after expensive educations. Their education was supposed to ensure them meaningful jobs upon graduation. Instead, they graduated in significant debt. The 2008 recession eliminated many of those jobs just as millennials were ready to work.

Another trait of the millennial juror is, as Bloom says, a capacity to express his or her views even though those views may be rejected by others. This generation has been influenced by unique historical events (9/11 and the 2008 recession), but they have been trained by technology that allows them to express their opinions in 140 characters and the push of a button. Because they have grown up expressing their opinions—even when contradicted by others—there is no persuading the millennial juror that he or she is wrong.

And yet, most observers say they work well in groups. A jury consulting firm, Litigation Insights, Inc., reports that a national survey of mock jurors finds that 68 percent of millennials agree that they work best in groups. One could say that my case validated this view. The jury did reach a verdict, but the millennials did not modify their position and, instead, went with the majority-led compromise in order to complete their jury service.

And that ties into another frequently observed characteristic of millennial jurors: They are used to instant gratification and are impatient when something takes too long. To me, that makes them fit in well with most trials. Millennial jurors want the answer in a snap, they reward the litigant who uses graphics and technology, and they’re driven crazy by the court’s instruction that they can’t use their electronic devices during many hours of the day (the trial) and may not do internet research.

Jury consultants contend, and I agree, that the teaching function of a trial lawyer is more important with millennials than with other generations. Technology has helped make them more educated than any previous generation. Pew reports that 39 percent of millennials have a bachelor’s degree or higher, and that an additional 28 percent have attended some college, compared with 24 percent (college or above) and 21 percent (some college) for what Pew calls “early boomers.”

They also have some disturbing leanings for my line of work, which is litigating to keep protections for free speech at the maximum. Pew reports that an astonishingly high percentage of millennials—40 percent—would approve the government’s prevention of statements that are offensive to minority groups. This compares with 27 percent for Gen Xers and 24 percent for baby boomers. The lawyer with a free speech case will have to pay special attention to prospective millennial jurors.

What should the trial lawyer do in selecting a jury panel when confronted with a prospective millennial juror? Of course, it depends on the case and the client. But most consultants will tell you that the millennial is dangerous for the corporate defendant. So the defense lawyer has to pay special attention to the attitudes of these jurors toward big business, whether they work in the corporate environment and have been treated fairly, whether their friends and colleagues have been treated fairly, what their work ethic is, whether they have educational debt, and whether they got participation trophies when in school (I’m serious). One of my favorite jury questions is this: “Do you believe in the letter of the law or the spirit of the law?” The answers should help you tell the millennial who will hurt the defense case from the one who will help it.

I selected a state court jury recently that had a number of millennials, and when they were seated, I broke into a cold sweat. I said to myself, “How could you have allowed this to happen? This is the most pro-plaintiff jury I have ever seen.” And then I remembered—I was representing the plaintiff. The jury awarded “additional” damages beyond what we were asking.

Chip Babcock

The author is a partner at Jackson Walker, LLP, Houston.

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