Shortly after the Civil War, the author Stephen Crane reflected on the ongoing factional divisions in the United States, noting “[i]t was not well to drive men into final corners; at those moments they could all develop teeth and claws.” His famous novel, The Red Badge of Courage, portrayed a soldier’s perspective on that bloody conflict. Although certainly less violent, in recent times jury deliberations have devolved into high-conflict zones such that to describe their service as a “badge of courage” is not entirely absurd. The term captures the increasing hostility, stress, and tumult encountered by those summoned to their local courthouse.
In many jurisdictions, this rising cultural animosity has bled into the jury room. Federal courts in red and blue states alike draw jurors from all over the political spectrum. Jurors who are used to conveying their thoughts in 160 characters or less are suddenly forced to articulate their position face-to-face with peers in a deliberation. Boomer jurors—long the dominant majority on jury panels—are confronting the fact that millennials are poised to overtake them as the largest jury-eligible population in the coming years (with apologies to Gen Xers, who are caught in the middle).
This cultural minefield can be daunting for even battle-hardened litigators. Jurors come into voir dire already finding themselves in corners; those teeth and claws are developed and primed not only against each other but against the attorneys, the litigating parties, and even occasionally the judge. The impact can be felt at every stage of the trial, from jury selection through deliberations. How are litigators to navigate these stormy waters?
The voir dire process has always been intended to identify deep-seated biases. Theoretically, more of those partisan hardliners, and grumpy old men and angry young women should stick out. A couple open-ended questions, maybe some individual follow-up—all you have to do is get them talking and eventually they will say the magic words:
“I cannot put this aside.” “I don’t see any way that I could change my mind on this.”
“Your Honor, we would like to thank and excuse Juror 91 for cause.” Those jurors on the polarized margins get whittled out by the cause challenge process, and each side is left with a final seated jury with attitudes and opinions scattered around the middle. Voir dire worked as intended, right?
There are two issues with this hypothetical. First, it assumes a perfect and meticulous jury selection process, which does not always happen as intended given the increasing caseloads that courts face from COVID-19. This means that many courts push to complete voir dire quickly, offering trial lawyers a now-familiar experience of undertaking jury selection in the morning with opening statements taking place before lunch the same day. The result is courts have been increasingly moving away from methods that are proven to identify the strong biases among jurors and moving toward fewer supplemental jury questionnaires, fewer individual follow-ups, less time for attorney-led voir dire, and more standardized (rather than case-specific) judicial voir dire.
Second, the extremes are increasing in number. That final remaining group in the middle may not even be big enough for a panel. A decade ago, a standard venire of 40 jurors in a Dallas federal court might have eight hardcore liberals and seven hardcore conservatives. Plenty of room to seat a final eight or nine people in the middle. The calculus may have changed in recent years. Ultimately, there might be twice as many of each group—maybe 16 hardcore liberals and 15 hardcore conservatives out of the 40—and, suddenly, finding those eight or nine moderates is more challenging, especially if the judge is motivated to qualify as many as possible.
Along with the increasing numbers of potentially extreme panelists, some jurors are becoming more adept at hiding their true beliefs. “Voir dire” is from the French for “speak the truth,” but being honest about diehard beliefs does not come easily for some keyboard warriors. Consider the following example from a recent wrongful incarceration jury panel: A juror’s Facebook page boasted about signing numerous petitions related to denying famous convicts parole. In court, the same juror was shown a picture of himself and his family on the same page, and he suggested that someone must have created the disturbing profile in his name.
Although the judge ultimately excused that juror for cause, oftentimes it is much harder to tie a panelist to a pseudonymous Twitter handle. These types of “stealth jurors” have long concerned both attorneys and in-house counsel. Those extremists may not be asked about their hardliner opinions, they may be posting online under an assumed identity, and they may not volunteer their most polarizing beliefs. One could easily see a firmly anticorporate millennial gritting his or her teeth during voir dire in the hope of driving a punishing verdict against a Fortune 500 company. The incidence of those jurors may indeed be rising.
Even if trial counsel successfully identifies the most extreme jurors, there’s no guarantee that the most thorough voir dire and the most reasonable judge will result in a final group devoid of those polarized attitudes. Recall that nearly two-thirds of the federal venire may include such partisans, and at the state level it could be even higher. Thus, it is likely that a few strong-willed panelists will make it to the final group. Well, perhaps this is merely the calling of the inspired trial lawyer—persuade the unpersuadable, right?
The challenge facing most attorneys is that extremists on both sides are becoming increasingly intractable. Jurors skeptical of one side during opening is nothing new for most litigators, but jurors feeling as though they have predetermined the outcome presents a novel challenge. Recall the anticorporate millennial juror just biding time to help drive a nuclear verdict; the entire defense may fall on deaf ears. And some of those extreme attitudes are foundational to the point that they have become an identity for jurors: They literally wear propaganda on their sleeve. They discuss these opinions on first dates. They advertise their beliefs in social media profiles. An hour-long opening statement that contradicts those sentiments will not move them.
Skilled attorneys often tailor their openings to those themes they expect to face in a jury. Traditionally, understanding your venue unlocked the ability to use locally flavored metaphors and phrases, coupled with a manner of presenting that would fit equally in the courtroom and a nearby political stump. It’s an entirely different animal when the occurrence of outliers has increased; those carefully considered strategies may work for some of the jurors, while leaving others even more resolute against your side.
This challenge remains throughout trial because many such beliefs stem from a deep-rooted skepticism. When some jurors believe fully in “fake news” and have been told that the media is the “enemy of the people,” why would they trust anything presented to them by litigants? Conspiracy theorists are more common than ever, and the story model of juror decision-making is exceptionally dangerous in their hands. They will fill in a case narrative with “everything they aren’t telling us.” Indeed, most jury consultants and attorneys have witnessed mock jurors concoct wild assumptions that defy all testimony and evidence actually shown them. It can be incredibly frustrating and disheartening for attorneys to attempt to craft arguments that appeal to such jurors.
Trial lawyers also employ specific tactics to tap into these “grand scheme” notions. Although studies have debunked “Reptile Theory” as pseudoscientific, skilled plaintiffs’ attorneys have refined these strategies to effectively empower those extremist jurors. The notion of a public threat to safety scratches those theorists right where they itch. A company’s wholesale effort to cut costs at the expense of the public’s well-being fits neatly within these jurors’ preexisting beliefs. A nuclear verdict becomes the culmination of their ideology, their polarization manifested in a newsworthy blow to the bedrock of the corruption.
After all, nuclear verdicts are rising. Some have pointed to social inflation as the root cause, while others hearken back to the proliferation of baser tactics. A better explanation is simply that the juror audience has changed, and attorneys are struggling to find themes that resonate with both the moderates and the extremists that now populate their jury. And worse yet, it isn’t just the attorneys who cannot persuade them. Nuclear verdicts might also reflect the growing divide between the jurors themselves, which impedes compromise.
Many juries have reached the damages discussion in a case only to list each juror’s damages number and calculate the average. From there, it is simply a matter of getting the entire group on board with the average, which, despite potential instructions to the contrary, seems to be a fair and unbiased representation of the jury’s thinking.
But imagine now that two or three of those jurors have gone to the extremes. Most jurors are in the millions, but the extremists start in the billions. Even where the majority remains reasonable, the group can still end up with an extreme verdict because of the outliers. But a more volatile outcome is equally likely: What if those extreme jurors refuse to agree to any amount that doesn’t end in “billion”? Other moderates try to reason with them or even negotiate the average a little higher, but hours drag on and the hardliners refuse to budge.
At this point, two possible outcomes remain: a hung jury or the reasonable jurors relent. Particularly when all that is standing between a jury and the end of their service is a damages figure, the latter seems more likely. After all, they do have common ground in finding the defendant liable, insurance will probably pay it, they can afford it. . . . The moderates’ rationales for giving in to the hardliners are plentiful.
It isn’t only the moderates dealing with the hyperpolarized jurors either—they have to negotiate with people from the other side of the spectrum. The common ground becomes even more difficult to find. Politically, they have witnessed Congress at a standstill in voting on laws simply because handshaking across the aisle is taboo. People enter online echo chambers of news and social media, further vilifying the “other side.” Millennials meme boomers and boomers battle “wokeness.” These polarized groups are so used to fighting each other that the prospect of unanimity seems far-fetched. The effect is only compounded by that intractability, which creates a substantial challenge for attorneys trying their case.
When a conglomeration of these people find themselves seated around a table in a deliberation room, polarized attitudes butt up against each other. Newton did not have a compelling theory on “two immovable objects,” but as noted earlier, recent history tells us that hung juries and nuclear verdicts may be the product. Those jurors do not want to compromise with each other, so they don’t. A liberal, anticorporate millennial resists a nominal damages award that publicly declares wrongdoing, and the conservative, pro-economy boomer is no longer satisfied with even a minuscule damages award. Their dogmatism has sunk the deliberations from the start.
As a result, it is not surprising to see an uptick in reported stress among jurors who have served through a verdict. Some courts have even begun offering post-verdict counseling for jurors. Deliberations can get more intense and the temperature of the discussion can be untenable. Two uncompromising factions attempting to reach unanimity can be exhausting for everyone involved. Jury duty begins to feel less like civil service when it loses its civility. This environment can be daunting for litigators to face. The above describes a landscape that is acrid for those seeking to cultivate persuasion. Why endeavor to bring a case to a jury of peers if that group has devolved into the same partisanship and hostility that can all too often define settlement discussions?
All is not lost. For one, as the COVID-19 backlog abates, many judges are back to embracing progressive jury selection policies. Some courts have realized the efficiency of administering jury questionnaires online. That practice not only encourages greater disclosure from prospective jurors—they’re back behind their keyboard again, after all—but it also provides an additional opportunity to identify the extremists beyond voir dire. Other judges are significantly stepping back from participation in voir dire and encouraging attorneys to use their opportunities to get to know jurors more directly through virtually unrestricted voir dire. Each of these actions embraces a world in which the hardliners make up a greater proportion of the jury pool.
But there’s also evidence to suggest that the extremism might not endure. Millennials have registered as political independents at record rates, defying the political trends of preceding generations. Government organizations have finally begun to push social media organizations to meaningfully crack down on hate speech and identify and prosecute those who proliferate it. Millennials admire their neighboring generation in Gen Z at a relatively high rate, and that pair is growing in prominence within jury pools as boomers age out of qualifications for summons and Gen Z ages into them.
Moreover, the majority of jurors still report a positive experience with their service. It may indeed require a “juror badge of courage” to report and participate, but jurors frequently describe pride in getting to know diverse strangers in their community and managing to reach a resolution with people they might normally disagree with.
Trial attorneys can also empower this notion in jurors. They can lower the temperature in the courtroom by treating the opposing counsel and witnesses with civility, adhering to ABA ethics guidelines, and acknowledging the disagreements between the two sides. Indeed, plaintiffs can strengthen their credibility by conceding that their victimhood may be imperfect, just as defendants can inoculate jurors by admitting their side’s missteps. All-or-nothing arguments belie all-or-nothing verdicts, rather than the true aim of litigating: a fair and just outcome.
Some “civil war” cases are probably inevitable for the present. Jurors are living in a hyper-polarized world, tuning into partisan media, and engaging in an extremist online environment. But the law can be a bastion for civil discourse, and both the courts and the litigators working in those courtrooms can encourage jurors out of the corners.
