Recently, a legal blog that I follow, A2L Consulting, posted two very interesting commentaries on the Millennial generation describing ways in which their attitudes, values and behavior differ from the behavior and attitudes of Baby Boomers and the GenX cohort and how those differences may influence Millennial behavior within the context of legal processes. Both blog posts are reprinted below FYI.
– Mark I Levy MD

A2L Consulting
The Litigation Consulting Report

Millennials and Jury Psychology: Why Don’t They Follow the Rules?
Posted on Tue, Feb 2, 2016 @ 08:49 AM
by Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Baby Boomers (yeah man, those who “grew up” in the ‘60s) raised kids to buck the system. No surprise there. They raised kids to think for themselves, to be more independent and not follow rules blindly, and to distrust institutions.

The result? Millennials (born roughly between 1981-96) are the least religious generation yet. It isn’t that they started off very religious in the first place. They tended to start by being less religious than their parents, and then drop off from there.

This trend applies equally to a distrust of other nonreligious organized institutions such as the labor market, government and marriage, as well as less confidence in the press, government and churches. The study shows, in part, that the biggest shift is the rise of those, heavily represented by Millennials, who claim they do not belong to any organized faith. This isn’t a wholesale rejection of all things spiritual, just of the traditional, institutional variety of beliefs and practices.

How does this relate to litigation and jury psychology?
Historically, jury research has shown that people who are dogmatically religious or are extremely pious tend to see things differently when on a jury, if they do not get exempted based on their unwillingness to judge others. They tend to put a “moral” overlay on the issues being considered, rather than apply a strictly legal standard. Hence, while the defense may pass the lower, strictly legal standard, but not the moral one, the defense may lose for the “wrong” reason. Consequently, defendants have in the past wisely questioned prospective jurors on this issue. That margin, however, is likely narrowing because of the rise of Millennials, so one should reconsider how morality may now play in litigation. If one wants to see morality used by jurors as a filter in judging actions of the defense, avoid Millennials to be safe.

Many cases involve institutions, whether literally or figuratively, e.g., regulators, industry organizations, marriage, contractual agreements and many others. It has long been the practice in litigation for one party, often the plaintiff, to rely on the obligations and expectations imposed by these institutions, but for Millennials, this appeal may well fall on deaf ears. Consider whether to strike Millennials or shift your strategy away from reliance on the responsibilities and rules imposed by the respective “institution” if your jury is heavily stacked with younger jurors. Certainly, you should shade questions in voir dire, if possible, to learn prospective jurors’ beliefs about rule-following and their regard, or lack thereof, for the relevant institutions in your case, not to mention, the legal instructions.
The good (or bad) news, if you have a Millennial juror?

As long as there are older people on the jury who carry more gravitas, jurors won’t likely listen to younger, less experienced and/or less educated jurors. The sense is, “What do you know?” While Millennials may be harmful to your case by themselves, they are unlikely to be determinative. Remember that a jury is a group that interacts together, so before you waste a precious peremptory strike on a Millennial, consider whether he or she has the means, skill and personality in light of the rest of the jury to carry any real weight.

If not? As the Beatles song goes, Let It Be.

Jury Psychology: Different Generations, Different Perceptions of Time
Posted by Laurie Kuslansky, PhD on Wed, Feb 24, 2016 @ 02:40 PM.
Managing Director, Jury & Trial Consulting
A2L Consulting

When New Became Old

In New York City, when one says a building is “old,” it’s over 50 years old. In Europe, it means the 14th century. In the Middle East, it might mean 5,000 B.C. But if you go into a Verizon or T-Mobile store today with a cell phone of 2014 vintage, expect the half-distracted 20-something tech to answer any question you have with, “Oh, that’s OLD.”

Fade out, fade in – that Millennial is sitting on your jury. Now what?

How does a Gen Y Millennial, born with an iPad in one hand and a pacifier in the other, view time? What are their expectations of “new” and “old”? Millennials (born roughly after 1980) have been described with a forked tongue:

“They are a huge generation of impatient, experiential learners, digital natives, multitaskers, and gamers who love the flat, networked world and expect nomadic connectivity, 24×7.”

“Millennials are, arguably, the most reviled generation in recent history, and armies of consultants are hustling to decipher them. Called the “Trophy Generation,” notorious for receiving prizes simply for showing up, they are thought to be entitled, narcissistic, self-promotional, coddled, opinionated, whiny, and needy, especially at work (when they’re not complaining about unemployment, that is). They seek constant feedback and immediate gratification. They multitask and can’t focus. They’re sensitive to criticism and unable to work alone. They refuse to pay their dues. Don’t even mention their (limited) verbal and writing skills.”

For those over 36 years of age (or as Millennials call it, “old”), if it seems that Millennial are more materialistic, more self-absorbed and more narcissistic than the rest of us, you’re probably right, but their ambition and grand expectations may also lead to groundbreaking progress and change that outshines the past.

Why Care?

By 2020, Millennials will make up half the workforce, according to the largest global generational study ever conducted, so it behooves us all to understand the jury psychology of this up-and-coming generation better as they become jurors (and judges). They will sit alongside jurors and others from the Gen X and Baby Boomer generations and share little in common, while you have to win them all over if they’re on your jury.

Control and Remote Controls

With the ability to surf the internet to comparison shop for just about anything, whether goods, services or a soulmate, Millennials have come to expect a wide array of options and the ability to choose (“sort”) based on factors that personalize the experience to arrive at their favorite and pick the best choice tailored to their search criteria. They believe that being able to literally search the world over, quickly, their way, for the best price, is their birthright. As a result, Millennials expect (demand?) this experience in every service in their lives.

However, the sense of control and timing they are used to enjoying don’t exist in the analog world. For goodness sake, we use whole words, not IM texts — and that takes too long. Speaking of control versus autonomy, Millennials don’t have time for old-school hierarchies of authority that aren’t nimble enough to react and shift quickly to reach efficient solutions.

Want to make a Millennial unhappy? Give them limited choices without options. “One size fits all” fits none of them.

Know how they hate to learn?

By listening to lectures or reading directions. Hmm … sound similar to the way in which most trials are presented?

Instead, Millennials prefer to engage hands-on, interactively or socially, without penalty for learning by trial-and-error. As if that wasn’t enough, they prefer the thrill of gaming to the skill of naming, i.e., action and interaction. They are not readers, but are savvier than most about the quality of graphics and visual images and expect to see them – not just a lot of words that they won’t read anyway.

My Time, My Place

They also prefer the flexibility and convenience of doing things how, where and when they prefer. You go to an office to work? Why?

Remember the Stone Age, when you watched a TV show or missed it? Enter TiVo, DVR and who knows what else – and presto – life “on demand” arrives on TV, a monitor, an iPad, iPad mini, a cell phone, wristwatch or eyeglasses … where Millennials expect it to be.

Are We There Yet?

A hallmark of Millennials is impatience and a need for speed. They are unapologetic for their intolerance for delays. It isn’t their fault. They were raised on instant gratification.

Want to make a Millennial unhappy? Make them wait due to a technical error (say, to focus the Elmo or bring up a video or document on screen), make them wait in line, say there is a delay or waste their time (such as while looking for a document before asking your next cross-examination question).

So What?

More than ever, Millennials expect practical outcomes and for things to work well, consistently and reliably.

Because they can, this generation is quick to reject and switch options if the first one doesn’t do the trick of making their work more efficient, easier or better. This behavior transfers from the screen to the real world. If they’re unhappy, they seek an upgrade. Delay, disappointment and defects are glitches that are intolerable, but thankfully, can be controlled. After all, there must be an app for that, whatever that is.

Want to make a Millennial unhappy? Make them stay in a place with slow, unreliable or no internet.

Is Your Trial Old Style for a New Jury?

How does all this affect your case presentation and how can you guard against it hurting you?
How can you take advantage of it?
Do time and timing play a role in your case? For example, is alleged equipment failure an issue (was there a newer “model” that was not used for some reason?). Was there a communication failure? Did someone rely on snail mail or ”old” technology or software or fail to understand how to use newer, better options?
How quickly are you able to get your point across?
Are you giving them an opportunity to view your evidence with good quality graphics?
Are you presenting information using various media (so they can multitask, like they prefer)?
How succinct and efficient are you?
Are you emphasizing efficiency in the fact pattern to your benefit? Did the opposing party waste time, energy or resources?
Are you using “old” technology in the courtroom (a clunky “old” Elmo that needs to be focused separately for each document) instead of newer, non-linear database software, with sleek equipment and a first-rate presentation expert? Is your associate or paralegal running the technology, but not well?
Don’t Worry, Be Appy

The list goes on, but we’re sorry to tell you that, in addition to managing your client and trial team, knowing and remembering the law, the judge, the venue, the evidence, and the case facts, you also have to keep jury psychology and the Millennial jurors’ mindset and what they need in mind, until there’s an app for that, too.