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When facing a panel of prospective jurors for voir dire and jury selection it is important that you update your perceptions of who these people are in 2017. It is hard to keep up with change and to replace our outdated ideas of “how North America is” but here is some data to help you do just that. These facts are wonderful perspective changers and we hope some of them will surprise you (since that will help you remember and update your perceptions of those potential jurors).

“Normal America is not a small town of white people”

The people over at Nate Silver’s fivethirtyeight.com site did us an incredible service with this article first published in spring 2016. So—before you go look, when you think of “normal America”, what picture comes to mind? For those of you who think of a scene more consistent with 1950s America, this is a must-read. Things, times, our citizens and what is now “normative” has changed a lot since the 1950s. Here’s a look at the communities most like 1950s America and the communities most like the America of the present. The two sets of communities are incredibly different. It is a nod to why it is so very important to know the demographics of your venire but also an imperative to update that mental picture you have of “normal America”. We are so not in Kansas anymore, Toto.

Digital news and followup by race of online news consumer

So…when you think of who reads news online and who follows up on that news—would you think those who follow-up more likely to be Black or White? You don’t have to answer out loud,—just think to yourself and read on. Pew Research just published an article based on questioning more than 2000 online news consumers twice a day for a week.

As part of that questioning, Pew asked the news consumers if they took any of six pre-identified follow-up actions: speaking with someone either in person or over the phone; searching for additional information; posting, sharing or commenting on a social networking site; sending an article to someone by email or text message; bookmarking or saving the news for later; and commenting on a news organization’s webpage.

As a reminder, you are predicting whether Black or White online news consumers are more likely to do any of these six follow-up actions. Got your prediction? Here’s what Pew found:

Black online news consumers preformed at least on of these actions 66% of the time on average. For Whites it was 49%.

There are other fascinating differences by race in this recent report from Pew. You can read the entire (brief and succinct) summary here.

Who counts as Black anymore?

This is an opinion piece that mentions the Dark Girls and Light Girls documentaries and the difficulties both groups (Blacks with dark skins and Blacks with light skins) face in being Black in the current day. The author encourages us to stretch (and update) our perceptions of what constitutes race and Blackness. A worthwhile read from the website The Conversation.

How many US homes have televisions? 

Here’s another shifting reality. In the not too recent past, most US homes had televisions and often multiple televisions. That is changing. Again, from the Business Insider: the number of homes that do not include a TV set has “at least doubled since 2009”. While the percentages are still low (2.6% of American homes now do not include a TV) they are growing quickly and are a reflection of people turning to computers and mobile devices to access media. Percentages of homes without televisions is expected to continue to increase as young people grow older and continue to use alternate screens for viewing programming.

Who reads newspapers anymore? Older or younger Americans?

Young Americans have been less likely to read newspapers than older Americans for some time. But, recently, Pew Research looked closely at newspapers with a more national focus (e.g., The New York Times, the Washington Post, Wall Street Journal, and USA Today). While readership of election news was roughly equal for USA Today, the other three (NYT, WaPo, WSJ) attracted more readers under 50 than over 50 when it came to election news coverage. This is different from the patterns for local newspaper which are read more by older readers. Pew concludes that digital outreach efforts are working for these national papers in attracting younger readership.

Just how common is crime by immigrants? (Not at all common.)

Despite ongoing political rhetoric about victims of crimes by immigrants, it is simply not a significant problem. The Business Insider summarizes the statistics this way:

According to a September 2016 study by Alex Nowrasteh at the Cato Institute, a libertarian think tank, some 3,024 Americans died from 1975 through 2015 due to foreign-born terrorism. That number includes the 9/11 terrorist attacks (2,983 people) and averages nearly 74 Americans per year.

Since 9/11, however, foreign-born terrorists have killed roughly one American per year. Just six Americans have died per year at the hands, guns, and bombs of Islamic terrorists (foreign and domestic).

According to Nowrasteh’s analysis, over the past 41 years (January 1975–December 2015), and including the 9/11 attacks:

The chance an American would be killed by a foreign-born refugee terrorist is 1 in 3.64 billion per year, based on the last 41 years of data.

The chance of an American being murdered by an undocumented immigrant terrorist is 1 in 10.9 billion per year.

The chance an American could be killed by a terrorist on a typical tourist visa was 1 in 3.9 million.

This article contains tables of numbers that are easy to read and point out the reality behind the rhetoric. The political rhetoric is about fear and not about reality. Read beyond the rhetoric to get to the facts.

How America changed during Barack Obama’s Presidency 

If you have looked at any of these changes with some level of surprise, it would also prove useful to look at another Pew Research report examining changes in America during the eight years of the Obama presidency. This report covers attitudes important in voir dire and jury selection as they reflect values and beliefs relevant to case decision-making. So many changes have taken place in the past eight years that it is staggering to see them all summarized in this report. There are sure to be some changes (and corresponding shifts in attitude) that will be related to your own upcoming cases.

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We love Pew Research and their work on cataloguing how society here in the United States changes slowly or quickly (as the case may be) over time. A review of their hard work gives you a sense of what changes are underway in our now constantly changing “new normal”. They have published a lot in 2016 to help us understand how our potential jurors are changing. Take a look at just a few of the sixteen stories they deem “striking” from 2016. We’re telling the Pew story with their own pictures. Go to the site itself to read the details. [The spacing on this post is beyond us so please scroll…thanks!]

Significant demographic changes in America have reshaped our major political parties—our political parties look very different now than they did during the George W. Bush presidency.   

 

And voters are divided on where the country is headed as well as whether that direction is better or worse. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Millennials are now the largest generation of living Americans (bigger than Boomers)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

And more of the Millennials live with their parents than ever seen with young people before (although it should be noted that this trend has been growing for years now and it is not a Millennial “thing”).  

 

 

 

 

 

 

 

Along with generational shifts, we are also seeing increased racial tensions with about four-in-ten blacks (43%) being skeptical that America will ever make the changes needed for blacks to achieve equal rights with whites

 

 

 

 

 

 

 

 

 

 

 

 

And we are wary of what new technologies will mean for our lives.  

 

 

 

 

 

 

 

 

 

 

 

 

The Pew summary of the 16 most striking findings in their surveys published in 2016 is fascinating reading if you want to know (as most of us do) how the country is changing and what that may mean for our potential jurors. There is more division and demographic change than we’ve seen in some time and it will most likely play a significant role in how your case is heard by jurors.

Take a look at Pew’s end of year summary and update yourself on how things stand now on a wide variety of subjects that may be part of your own up coming case narratives.

Images taken from Pew site

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beyond distrustWe’ve been tracking trust in government for about 15 years. While that isn’t as long as Pew Research has been doing it, we’ve been struck by the chronically low scores we see when our mock jurors respond to a question about trust in government. As the graphic illustrating this posts demonstrates—our mock jurors seem to reflect changing views of the federal government across the country.

This recent Pew report (based on more than 6,000 interviews conducted between 8/27/2015 and 10/4/2015) is well worth your time to read—you likely will be surprised at how deep the distrust goes. As in the graphic to the left, when 55% of Americans surveyed think “ordinary Americans would do better job solving problems” than our elected officials will—there is clearly a problem.

However, as Pew points out, there is not a blanket sense of dissatisfaction and distrust evident—there are instead areas where the American people are satisfied and are trusting the federal government. Americans tend to divide along political lines when it comes to how large a role government should play in our lives. But there is bipartisan support that government should play a major role in “terrorism, natural disasters, food and medicine safety, and roads and infrastructure”. Most of the areas where we see partisan differences about the role of the government come when we examine the “social safety net” (e.g., helping people get out of poverty, ensuring access to health care, ensuring basic income for those 65 and older, protecting the environment, and ensuring access to high quality education).

We always appreciate Pew’s work on social issues and their ability to sample large random groups of American citizens. We see their work as being on a macro scale and ours as on a micro scale. They look at attitudes across the country and we look at attitudes in specific venires with small quasi-randomly selected groups of mock jurors. Many times, the mock jurors we see do not reflect the macro views of the country as reflected in Pew’s surveys. Distrust in the federal government though is pervasive among our mock jurors.

We follow Pew Research fairly closely to keep an eye on how attitudes, values and beliefs are changing across the country and to see if that mirrors our own (smaller scale) observations. We don’t simply measure and observe like Pew does though. We measure but we also have been watching how our pretrial mock jurors respond for long enough that we know which responses we find most interesting (and sometimes most dangerous) for our case. We use that information to help with voir dire and jury selection when applicable and to help structure a case story that plugs the narrative holes a juror could leap through with both feet.

We read and rely on Pew and other, competing organizations for current information on how things are changing across the country. We would encourage you to start watching them more closely as well.

Pew Research Center, November 23, 2015. Beyond Distrust: How Americans View Their Government.

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We are now in ABA’s Blawg 100 Hall of Fame!

Monday, November 30, 2015
posted by Douglas Keene

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We’ve recently been informed that The Jury Room has been inducted into the ABA Journal Blawg 100 Hall of Fame! Okay, it’s not a Pulitzer, but we are wildly happy about it. To our way of thinking, it is the greatest honor The Jury Room could be given. We appreciate the recognition. Closer to truth, we are shocked. Every December from 2010-2014 we have been delighted to be included in the Blawg 100, but this was not even on our radar screen. Here’s a link to the 2015 ABA Blawg Hall of Fame and a link to the 2015 Blawg 100 honorees.

Here’s how the ABA describes the Blawg 100 Hall of Fame:

In 2012, we established the Blawg 100 Hall of Fame for those blogs which had consistently been outstanding throughout multiple Blawg 100 lists. The inaugural list contained 10 inductees; this year, we added 10 more, bringing the total to 40.

And here is how they described this blog on their roster:

Trial consultants Douglas Keene and Rita Handrich find the research to alternately back up what you think you already know about human psychology (Is rudeness contagious? Yes.) and alert you to the unexpected (Are “beer goggles” real? No.) Posts are both fascinating reads and lessons on how not to base your cases on stereotypical assumptions.

We were inspired to begin blogging by Anne Reed (formerly of Deliberations blog and now leading the charge at the Wisconsin Humane Society). Once we got started blogging, we realized it was a wonderful way to keep up with the changing literature and to share what we were learning along the way. Looking back over the 900+ posts, we still find it interesting to blog as well as a great impetus for our own continuing education. Thank you, ABA Journal, for your recognition of our work over the last 6-1/2 years.

Doug and Rita

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The American Bar Association is seeking nominations until August 8, 2014 to help it decide on the Top 100 law blogs (“Blawgs”). We have been in the ABA Top 100 for the past 4 years and would like to make it 5! If you like this blog, please nominate us (it’s fast and free) here. THANKS! Doug and Rita

Gallup on lost confidenceLost-confidenceGallup

For several years now, we have watched our mock jurors express increasing disgust at government, large corporations, and politicians. We have written before about their unwillingness to identify with a national political party and the 2014 Gallup Poll showing the same pattern we have been seeing on a national basis.

In a recent pretrial focus group involving an auto accident resulting in death, jurors began spontaneously talking about General Motors and their ignition problems and the choice to keep it a secret (even though GM was not involved in the fact pattern and was not raised in the presentations). They expressed high levels of disgust with GM and then acknowledged that disgust colored their perceptions of the auto manufacturer involved in the current dispute. Then a juror mentioned Wall Street and the mortgage collapse and another mentioned political logjams in Congress and they had to be refocused on the case at hand.

As they deliberated, the themes of disgust and distrust returned repeatedly with jurors who were all-too-willing to assume the worst of the Defendants. From the jurors’ perspectives, the auto maker’s advertising/marketing plan was a lie, the consumer trusted the safety testing as reported, purchased the vehicle, and now they were dead. It could have been any one of them (and when one of them commented on this reality, most of them shook their heads in continued disgust). The damage award was large. The punitive award was larger. And it all seemed affected– or at least consistent with– feelings of disgust and distrust in our institutions.

So when Gallup came out with their recent poll on how Americans are losing confidence in all branches of government, we thought of our mock jurors.

Gallup

In the past 25 years, confidence in our government has eroded pretty consistently with all three branches (the US Supreme Court, Congress, and the Presidency) taking hits as Americans express lower and lower levels of confidence. Currently, fewer than 1 in 10 Americans have confidence in Congress. Does that surprise us? Not really. We’ve been tracking the loss of confidence in public institutions in pretrial research projects over the last 10 years.

From a litigation advocacy perspective, the important thing for defendants is to craft an identity for your client that sets your client corporation apart from the rest. Frame your particular client as different from, or changed from what they once were, and allow jurors to line up in support of corporate change. But you better have credible evidence to show them you really are different because at this point, the public assumes the worst unless you show them something better.

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