This is an update of an article we first wrote back in 2000 attempting to describe Generation X in more balanced terms that reflected the actual research  literature rather than solely individual opinions and the largely opinion-based popular media. It’s fascinating to return to your past writing and update it for current sensibilities while still retaining the integrity of the original work. Not an easy task.

Nor has it been easy for Generation X. A smaller generation sandwiched between two  large (and often over-shadowing) generations (the Boomers and the Millennials/Gen Y)–Generation X morphed and matured while we weren’t looking.

We focus, in this new article, on updating the variables we identified as important for jury selection, voir dire and the hearing of your case back in 2000. And, naturally, we added in a few new ones as well since things change over the course of a decade.

Gen Xers are now 30-45 years old and have mortgages, families and careers. And guess what they’ve done?! They are the most educated generation ever. They are employed at a higher proportion than any other generation. They are married with children and are credited with reducing the divorce rate to the lowest we’ve seen in decades. They have retained and concretely defined their youthful values of family, work/life balance and acting locally not globally so that their lives actually reflect their values. And they are happy.

Who would have thought it? Take a look at our article on Generation X to see the summary of the research and to identify strategies for jury selection and voir dire. If we’re lucky, it will also update your thinking on these formerly inscrutable members of the venire.

Keene, DL Handrich, RR. Generation X: Active, balanced and happy. Seriously? The Jury Expert, November, 2011.

We made the ABA Blawg 100 list for the second year! Please take a minute to vote for us HERE under the Trial Practice category.

Image

Related posts:

1. Generation Y (aka the Millennials): Just the facts
2. The Millennials (aka ‘Gen Y’): On tattoos, TMI, tolerance and technology
3. Who knew we’d be such grumpy (but NOT old!) men and women?

The authors argue that since we are trying to find out how people make decisions within the confines of the courtroom, with elements of law, burdens of proof and standards of evidence—we need to use real adult jury eligible volunteers. We are not that interested in how college students in Psychology 101 courses think about fact patterns and determine responsibility. And that is the mainstay of the psycho-legal literature on jury decision-making.

The authors refer to Bornstein’s (1999) conclusion that there are simply not enough comparisons between samples of convenience (i.e., college students) and actual community populations of jurors to test the generalizability of college student ‘jurors’. The entire issue contains multiple examinations of mock jury research—done with both college students and community members. Ultimately, they recommend beginning research with convenience samples and then doing comparisons with actual jurors. If you are interested in mock jury research, the entire issue is an interesting read.

It’s an interesting issue for us. If you are a regular reader of this blog then you know we make hypotheses based on social sciences research. And it’s interesting when we try those ideas out in our mock trial research. Sometimes they work out and sometimes they don’t. And when they do work out, we think of them as a sort of secret weapon.

There is though, a difference between our college student mock jurors and our employed jurors. Here’s some of what we’ve seen:

Cases that require life experiences to assess damages can leave college-student mock jurors pretty silent. They don’t ‘get’ the rationale for damages and depending on personality style—will either follow older jurors or stubbornly insist on low or no damages.

High-tech cases with high-tech college-student jurors often result in young jurors speaking up actively and being listened to and questioned for additional information by less technologically proficient jurors.

Wrongful death cases (or other cases where a damages component is ‘mental anguish’) typically result in lower awards from these younger jurors who do not yet have the life experience to empathize with the pain of the loss of a partner or child.

Patent cases or intellectual property cases are often less concerning to our younger college-student jurors. They often do not see intellectual property theft as “that big a deal” and often have a higher standard of proof for awarding damages.

There are other ways we see younger, college-student mock jurors as different than our older mock jurors. But much of it comes down to individual differences between those college-students. If they are technologically proficient, they are often useful in those cases. If they are verbally persuasive, they can be seen as a valuable group members. We don’t know the magic answers to make academic mock jury research more useful and generalizable—but we like the idea of running basic research that compares convenient college samples with actual jurors.

The issue of how much faith you can place in the outcome of mock jury research is extremely important and complex. We have discussed it before in various ways, and we will revisit in again in the future.  But for now, let’s be realistic.  Even college students know that they are different than their parents.  And their parents know how much they’ve changed since their 20’s.

Image 

Wiener RL, Krauss DA, & Lieberman JD (2011). Mock Jury Research: Where Do We Go from Here? Behavioral sciences & the law PMID: 21706517

Related posts:

1. Should you try online jury research?
2. Why do the African American mock jurors all sit together?
3. Life lessons from mock jurors: Look before you sit & always read the fine print

Researchers looked at whether simple restoration of justice (“an eye for an eye”) is enough for us or if we also want the offender to understand just what they did wrong.  Or, as anyone who has house-trained a dog can attest, there is part of you that wants the dog not merely to stop peeing in the house—you want him to feel badly about having done it.  Researchers concluded that simple equalization of suffering is not enough—we also want the offender to know just why they were punished (for their bad or mean-spirited behavior).   Bad dog.

My kids understand this without research scientists’ assistance. When they seek revenge, they want equalization of justice and suffering but they also want their sibling to know what they did wrong and to be punished and they want that sibling to know just who is responsible for their suffering.

Mock jurors are a bit different. They almost always want restoration of justice. They want to right wrongs. They want the offender (whether that is an individual or a corporation) to know they did wrong. However, financially punishing the offender is another matter entirely. Our mock jurors often hedge on the issue of punitive damages.

“I doubt he did it on purpose.”

“That word ‘malicious’ is pretty strong. I don’t think it was malicious so it doesn’t really rise to ‘gross negligence’.”

“I think being found negligent is punishment enough. This will make them think twice before doing it again.”

To award punitive damages, jurors have to be convinced of negligence but they also have to be very angry about the negligent behavior. They need to see a pattern of almost insolent disregard on the part of the offender.  And for some, they need to see evidence of actual intent to for harm to result, not merely a knowledge of the risks and proceeding with conscious indifference to the potential for harm.  It helps if the offender was callous about the pain and suffering of the plaintiff.

The common denominator to jurors awarding punitive damages seems to be that they need to see wanton disregard for the integrity of a contract, or the knowing abuse of shareholder rights, or the violation of social values for the sake of making undeserved profits.  Or they might conclude that the story is on of disregard for the individual safety of the apartment complex dweller, the hotel guest, the conference attendee, the consumer/end user, or the innocent bystander.  They see an offensive violation of ethical or moral standards that motivated the transgression.  Punitive damages are a high hurdle, and a lot of anger is required to clear it.

Jurors are simply not like my kids who would award punitive damages against their siblings at the drop of a hat in the heat of the moment. Jurors need more. They are loathe to pass judgment on intentions without hard data on which to base their conclusions.

Gollwitzer, M., Meder, M., & Schmitt, M. (2010). What gives victims satisfaction when they seek revenge? European Journal of Social Psychology

Related posts:

1. You’re not too old for a story (but you might be too young!)