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Archive for the ‘Generation or Age of Juror’ Category

RIP Demographics? Well, probably not…

Friday, August 22, 2014
posted by Douglas Keene

RIP demographicsWe’ve just published a new article in The Jury Expert that “should” signal the death of the simplistic use of demographics in voir dire and jury selection. Will it? Not likely. Partly this is the fault of courts that are becoming increasingly restrictive of time and the scope of questions posed to jurors. If litigants cannot ask substantive questions, they are left to rely on the broad impressions, which are often wrong and are generally based on stereotypes rather than knowledge of individual biases.

Be that as it may, we still think it’s important for all of us to know how changes in society as a whole will make a difference in how we need to think about voir dire. There are changes that have shifted the landscape of our communities and venires, and even our basic assumptions about there being a continuum from liberal to conservative with a moderate center. Some of these big changes have now been documented. You know that moderate center? Well, to the extent it is still there, it is vastly more complex, and defies labeling. You know how Democrats are more liberal and Republicans are more conservative? We can no longer make those blanket assumptions.

Americans are now more focused on specific issues. You will find, for example, a Democrat who leans left on many issues but is more conservative on issues involving faith and family. You will find, as another example, Republicans who lean right on many issues but support other issues that “Republicans just don’t support”. And in the center, you will find many people (indeed, the majority) who are not consistently liberal and not consistently conservative. On the other hand, they are also not consistently moderate. We’ve been watching this shift for almost a decade now with political affiliation simply no longer being an effective way of understanding individual mock jurors.

It really is about the issues. It’s something we have said for years– it isn’t demographics, it is the person and what matters in their life experience. Demographics (even tidy, long-standing descriptors like political affiliation and whether one is liberal or conservative) do not tell the story nearly as well as the individual’s values, attitudes, beliefs and experiences. But, don’t just take our word for it. How about considering the results of a 2014 survey of more than 10,000 Americans (randomly selected and nationally representative)? The results represent an eye-opener that allows us to compare American opinions and how they have shifted and turned upside down in the two decades since Newt Gingrich’s Republican Revolution of 1994.

Please visit our new articleDemographic Roulette: What Was Once a Bad Idea Has Gotten Worseover at The Jury Expert. We are pleased and flattered that Paul Begala (Democratic strategist, author and CNN Contributor) reviewed the issues and our article, and offered his take on the study.

Tell us what you think. We think it should be a game-changer.

Douglas L. Keene, & Rita R. Handrich (2014). Demographic Roulette: What Was Once a Bad Idea Has Gotten Worse. The Jury Expert, 26 (3.)



older adults and fraudOf course you did. But you may want to take a look at this study because, maybe, it isn’t true after all. It certainly is a well-known myth if it is not true. This appears to be one of those situations where we add up what we know and then come up with a conclusion that just doesn’t appear to be true. Here’s what we know: research on cognitive age-related changes and emotional age-related changes tells us there are indeed shifts that can increase the vulnerability of the older adult to consumer fraud. We conclude, thus, they are defrauded more often.

This research, which is actually simply a review of the actual data on consumer fraud, says the older adult may be more at risk but there is no data-based evidence to say they actually are defrauded at a higher rate than younger adults. In fact, the older adult may be more savvy than we assume–these researchers say perhaps it is the protective factor of “increased experience and changes in goals, lifestyle, income, as well as purchasing and risk behaviors”. Or, in less geeky language–with age comes both wisdom and caution, as well as awareness of the old saying, “if it sounds too good to be true, it probably is…”.

So why is it so commonly believed that senior citizens are taken in by con artists and scammers? The writers of the current article identify 5 reasons we may hypothesize older adults are more often victims of consumer fraud (and these are drawn from research):

Older adults have less accurate episodic memory and are at increased vulnerability to misinformation.

Older adults have slower cognitive processing and therefore take longer to review and process information than younger adults.

Abstract reasoning and novel problem-solving ability peak about age 30 and then decline across the remainder of the lifespan. (This is such a bummer, but we can slow the decline by continuing to challenge ourselves through learning new things, playing music, learning languages, and stimulating a brain that functions better under the stress of new thinking).

Mild cognitive impairment is associated with a reduction in math and financial skills such as managing a checkbook and understanding bills. (This could result in increased vulnerability to fraud.)

After experiencing a financial loss, consumers can be uncertain whether their particular loss comes from a legitimate business arrangement or from deceitful practices. None of us like to be deceived and there is conjecture that older adults may not want to believe they have been tricked and therefore do not file reports as victims of fraud.

Those 5 findings are backed up by research. Older adults could be more at risk simply by virtue of aging and some of the issues we will all face at one time or another. But being at risk does not mean you will necessarily fall prey to consumer fraud. Yet the belief that older adults are victimized by consumer fraud at a high rate relative to other age groups is part of our social fabric. We all “know” this is true. Except it does not appear to be true.

Part of the issue is that researcher interpretations about what their findings might mean have been misinterpreted by the media as fact rather than mere conjecture or hypotheses for future work. Then the ‘facts’ are picked up by other media outlets and blogs and we hear things like “fraud prevalence has reached epidemic levels in older adults” or “older adults are disproportionately vulnerable to frauds”. Hypotheses, conjectures or questions become perceived as fact and become part of our popular “wisdom” about older adults. The following graph is taken from the article cited at the end of today’s post. The graph presents the fraud reported during 2010, 2011 and 2012. Contrary to our expectations, those who are actively defrauded are more likely very young or in the middle of their lives.

You may opine that the elderly are just too embarrassed to report their being defrauded, but there is no data to support it. In fact, the authors say at this point we can neither say older adults are subject to more or less fraud. There is simply no evidence to support the idea that older adults are disproportionately the victims of consumer fraud.

From a litigation advocacy perspective, this is one more reason to never assume that a given belief is true. Widely held stereotypes are often untrue. This apparently is but one of those widely held (but not supported by data) beliefs.

Ross, M, Grossman, I, & Schryer, E (2014). Contrary to psychological and popular opinion, there is no compelling evidence that older adults are disproportionately victimized by consumer fraud. Perspectives on Psychological Science.



The Silent Generation: Who are they now?

Friday, August 1, 2014
posted by Rita Handrich

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


The US Department of the Census just released a report on what it is like to be 65+ in the United States and we are sharing some of the highlights with you. We recently wrote about our youngest jurors (the Millennials) and this report highlights our oldest jurors–those 65 years of age and beyond (the Silent Generation makes up the bulk of this group). The very thorough report is 192 pages long but here are a few tidbits about our oldest jurors.

The percentage of the population aged 65 and over among the total population increased from 4.1% in 1900 to 12% in 2010 and is projected to reach 20.9% by 2050. Of course, average life expectancy in 1900 was only until ages in the 40’s.

In 2010, Alzheimer’s was the fifth leading cause of death among those aged 65 and older. (While other causes of death were largely in decline, death from Alzheimer’s rose more than 50% between 1999 and 2007.

Almost 40% of those 65 and above had one or more disabilities in 2010. The most common issues were walking, climbing stairs and doing errands alone.

The older White living-alone population was less likely to live in poverty than the older Black living-alone, older Hispanic living-alone and older Asian living-alone populations.

States with the highest proportions of age 65+ residents were Florida, West Virginia, Maine, and Pennsylvania. Each of these states had above 15% residents aged 65+.

In 2010, internet usage among the 65+ population was up 31% points from a decade earlier.

This group was the only age group to have higher voter participation in the 2012 presidential election than in the 2008 presidential election.

Obesity is not just a problem of the young. Between 2003 and 2006, 28.7% of older men and 30.6% of older women were obese (BMI greater than or equal to 30).

In other words, they are a lot like every other mock juror in the room.

About the same time the Census Department issued their report on being 65+ in America, Gallup released a new report on confidence in physical appearance. And here’s something to help those of us on this side of 65 smile with anticipation as we age. We’re going to get better looking each day.

“Though many may pine for the physical appearance they had in their younger years, America’s seniors are the most confident in their looks. Two-thirds (66%) of Americans aged 65 and older “agreed” or “strongly agreed” that they always feel good about their physical appearance, compared with 61% of 18- to 34-year-olds. Middle-aged Americans (54%) are the least likely to report feeling good about their appearance.”

US Department of the Census. 2014 65+ in the US.



age_biasWe’ve written about the older juror before and the benefits of having them on your jury (sometimes). When it comes to actual trial practice, Prosecutors are more likely to use their peremptories to strike the younger potential juror while Defense attorneys are more likely to use theirs to strike the older potential juror. So, is it true that the older juror is more conviction-prone? Sadly, it would seem so

Researchers examined data from more than 700 felony trials in Florida’s Sarasota and Lake Counties from 2000-2010. They were able to collect data not only on seated jurors but also to gather the same data on the entire pool for comparison. The researchers found the voir dire pattern noted above (with Prosecutors striking the younger juror and Defense attorneys striking the older juror) but note that the protected categories of race and gender were not disproportionately struck. That is, prosecutors and defense attorneys were about equally likely to strike black versus white and female versus male potential jurors.

The researchers look at how the age composition of the jury pool (randomly selected to appear that particular day) is related to conviction rate. They found that the average age of the venire drawn for a case is highly correlated to the age of the seated jury. That is, when potential jurors are called for jury selection, if the average age is above 50 (which happens in about half the trials in these counties), the seated jury will also be older. If the average age of the jury pool is below 50, the seated jury will also be younger. Makes sense.

When the average age of the jury pool is greater than 50 years, there is a 79% conviction rate.

When the average age of the jury pool is less than 50 years, there is a conviction rate of only 68% (and yes, those differences are statistically significant).

 In other words, the older juror is more likely to convict. Conviction rates, say the authors, rise 1% with each year of increase in the average age of a jury. Specifically, “if a male defendant, completely by chance faces a jury pool that has an average age above 50, he is [snip] more likely to be convicted than if he faces a jury pool with an average age less than 50”.

Obviously, the age of the jury has nothing at all to do with the evidence you present, the quality of your presentation, or the merits of the prosecution. It is a randomly occurring event which, in turn, can mean that an acquittal or conviction can also be a random event. The authors question if this represents a “fundamental lack of equity with respect to the quality of true nature of the evidence in a case”. They believe this random conviction increase provides an argument for increasing the number of jurors in Florida from the current 6 required (except for death penalty cases) to a higher number in order to reduce the random variations in outcome that are independent of the evidence admitted and presented.

And until that happens (or if it happens), it probably makes sense to keep using peremptories to attempt to either increase or decrease the age of your jury.

Anwar, S., Bayer, P., & Hjalmarsson, R. (2012). The role of age in jury selection and trial outcomes. National Bureau of Economic Research Working Paper. DOI: 10.2139/ssrn.2014963


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meaningfullifeWe believe the negative press on the Millennials (our 20-somethings and early 30-somethings) is simply what happens to all of our young people as they are judged (and found wanting) by older generations. And mostly we eventually grow up, mature, and become something different than we started out as–at least when viewed through the eyes of our elders.

We’ve written a lot about generations, both on our blog in brief posts, and in longer, complete articles over at The Jury Expert. We were glad to see an article over at the New York Times this week on the new sense of the Millennial’s as in search of meaning. The authors say the old descriptors of Millennials as “narcissistic and flaky and selfish” in both their professional and personal lives is giving way to a very different picture as the generation matures. Well! Imagine that. They are changing as they mature. Go figure. We are especially glad to see that Jean Twenge, historically a research purveyor of negative stereotypes of the Millennials is also changing her writing as these young people mature and new and different realities encroach on their lives.  We found fault in her earlier conclusions, and are happy to see that the gap in our perspectives is narrowing. 

At the risk of beating a dead horse, we would comment that external societal factors shape us all and we become more aware of those factors as we enter our young adulthoods. In a recent mock trial related to subprime mortgage failures, there were several younger 20-somethings who listened intently to (what for them was barely recalled) information, and then all said variations on “I was very young so I am sure this hit my parents hard, but I didn’t really understand the implications”. As adults, looking back on these events without emotional memories, these young people were just as appalled as those who had lived through the beginnings of the economic recession as adults with mortgages that were under-water.

Coming back to the point, the NYT article focuses on the impact of the Great Recession on the attitudes of the younger Millennials who came of age during that time (after 2008). While young people have always shown more concern for others during times of economic hardship, this “new normal” is virtually all that younger Millennials have known in their fledgling adult lives. Thus, say these writers, they are more focused on making a positive difference in the lives of others than they are on making lots of money and being financially successful. This focus, say the authors, will lead them to a more meaningful life. (One of the authors of this NYT article has written on the differences between a happy life (more internally driven–”takers”) and a meaningful life (more externally driven–”givers”) that you can find here.) Of course, the drive to find meaning is a primary life-stage objective for someone in their late teens and twenties, so it shouldn’t come as a surprise. Yet it is bound to strike some critical elders as indulgent and self-centered, and some prickly Millennials as offensively obvious.

It’s a nice article and one filled with positivity and hope. The comments section is quite different. There are comments by Millennials asking for understanding as they age up and addressing economic realities–like this one from Kalidan.

Kalidan: So the article says Millennials are searching for meaning. Sure. This is about as meaningful a finding as one that would say the homeless are in the search for wide open spaces and freedom, and therefore different and unique in their outlook. Millennials’ outlook is not one of choice; it is default. If they cannot have, even after college graduation, financial security – of course they choose the next best thing.

There are many more negative comments from older commenters than there are positive ones. It’s a sad and cynical and (as Maureen says in her comment below) bitter picture.

Ross: Millennials and their loved ones are trying hard not to notice the giant “L” tattooed on their foreheads. The poor unfortunates are the most oversold generation in history. First they were oversold on their own special talents and uniqueness in grade school with the relentless campaign of self-esteem building. Then they were oversold as achievers by a middle school system dependent on standardized test scores for funding. They were taught to how to take the test and little else. Then they were sold on a six-figure college education as the necessary gateway to their rightful and fore-ordained place in society. Graduation is cold shower time. The shock is seeing themselves for what they are: economically superfluous generation of men and women with a future of little but endless college-loan payments.

Victor: Nah, you got it right the first time. They are the most self-absorbed, narcissistic generation ever produced and stand as an omen to the end of an age.

Maureen: We all love our children, we all do our best. So many righteous opinions. The bitterness is breathtaking.

Our belief is that as the Millennials age up, they will begin to write about themselves, their experiences, their economic realities, and they will eventually drown out the naysayers and show us who they become. Like Gen X. We all know how they turned out 

For the fourth year in a row we have been honored with recognition from the ABA via inclusion in their 2013 list of the Top 100 legal blogs in the country. We work hard to blog consistently even when inundated with work and would appreciate your vote for us at the Blawg 100 site under the LITIGATION category. You will have to register your email just so you can’t vote 47 times. There are many worthwhile law blogs on this list so take some time to peruse. Thanks! Doug and Rita

Roy F. Baumeister, Kathleen D. Voh, Jennifer L. Aaker, & Emily N. Garbinsky (2013). Some key differences between a happy life and a meaningful life. The Journal of Positive Psychology, 8 (6), 505-516 DOI: 10.2139/ssrn.2168436


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