By Dr. Ken Broda Bahm:
Litigation has one thing in common with real estate: location matters. There will be reliable differences when trying a case in one venue versus another. And some of the most reliable differences come down to the sometimes vast distance between a city jury and a country jury. The distinctions are often measured in politics, but the attitudes can extend far beyond that. Still, politics is a pretty good place to start. For example, try comparing a red/blue map at county level (like the one here), with a nighttime satellite image of America from space. You’ll see a striking similarity: Where you see the city lights, that is also where you’ll see counties that voted Democrat. This connection of rural with conservatism, and urban with liberalism is backed up by a new chart shared by Pew Research. Looking at all U.S. cities over a quarter million in population, nearly all of them are above the national mean on the conservatism scale. So is there something about urban living that makes people broad-minded and tolerant, and something about rural or suburban living that brings people closer to traditional values? Or does the causation run the other way as the ‘Blues’ head for the cities while the ‘Reds’ stay in the country?
For litigators, the reasons aren’t that important, but the result can be critical. We typically encourage attorneys not to rely too much on demographics. But in this case, the demographics of urban or rural living carry with them some reliable attitudinal differences. Trial lawyers always need to play the ball where it lies, and that means taking particular care to account for the uniqueness of the venue. The data remind us not only that rural and urban areas are different, but also that not all urban areas are created equal. This post takes a quick look at where our largest cities fall on the liberal-conservative spectrum, and also provides a few reminders on taking the temperature of your own trial venue.
Pew’s Chart of the Week: Cities are Generally Liberal, but Not Equally So
(Click to see full-sized image)
Quick, find your city! Depending on your own politics, you might react with pride, shame, or ambivalence about where you fall. There are some interesting differences. Speaking as a Coloradan, for example, we know that Denver is a long way away from Colorado Springs — not physically, but ideologically. What is more surprising is how different Denver is from its very close neighbor, Aurora. Also interesting is the fact that, while a handful of cities are more conservative than the U.S. mean (those at the top and to the right of the red line), the great majority are more liberal and are also farther from the national mean.
Now, after you’ve taken that in and noted how well both the top and the bottom of the list tend to confirm our expectations, check the location of your next trial. If it is to the left of the red line, then it is more liberal than the U.S. as a whole. And that — often, but not always — means an advantage for the civil plaintiff or the criminal defendant. But cases will always be more complicated than that, and a full assessment of venue shouldn’t stop with politics.
Assess Your Venue
For litigators who have tried every case at the same county courthouse, these reminders aren’t necessary. But today, national litigators are going where the case takes them, and that often means “all over.”
Research Your Venue
When you have a choice of venue, you have a high stakes decision. Often, however, that decision is made well before the trial team is thinking of mock trials and focus groups. That can be a mistake. We have at times found that a head-to-head comparison that tests the same case in two different cities, can lead to a venue choice that runs counter to our expected preference.
Once the venue is set, it should go without saying that any focus groups or mock trials you conduct should be conducted in that venue. The only exceptions we will ever make are for towns so small (say, under 10,000) that it is difficult to run the project without having your cover blown. The reason that you ought to be in the venue should be clear: You may be able to perfectly match the demographics somewhere else, but you’ll miss the local mix of knowledge and attitudes.
Consider a CAS
Before mock trial and focus group research, consider running a community attitude survey. That approach (described here) involves a telephone or online poll which is substantially less expensive than in-person research. In addition to being able to assess the case-relevant attitudes within your venue, you are also able to get reactions to various scenarios that can be described in a paragraph or so and read to respondents. Based on their answers, you can correlate the results with various other questions on attitudes, experiences, or demographics in order to chart those likely to be most skeptical of your case from the get-go. In addition to telling you about your venue, the survey will also provide information on the voir dire issues which are most important and the questions that are most likely to identify higher-risk panelists.
Check Your Federal Jury Pool
In theory, a U.S. District Court will draw broadly from the surrounding counties. But in practice, we’ve found that some judges or their jury clerks, will functionally restrict the sample by getting most or all of their sample from the closer-in locales. Its understandable that they could be tired of dealing with potential jurors who don’t want to drive more than an hour to get to trial, and can’t or don’t want to be put up in a hotel. At some point, attorneys need to be reasonable. But it is important to note that in most federal venues, drawing disproportionally from those closer-in to the city has the effect of liberalizing your panel, and in many cases that means making your panel more plaintiff-friendly. It helps to ask about the practice of your particular USDC.
Where your jurors live and the attitudes they bring in the door is a starting point. Juries are still open to persuasion and emphatically want to believe that, at the end of the trial, they’ve based their decision on evidence and not on predisposition. At the same point, it’s important to know where you start and to adapt to that knowledge.
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Other Posts on Liberalism and Conservatism:
- Know the Limits of Political Empathy
- Think Beyond Just Red and Blue in Politics
- Speak to the Brain’s Politics
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Image Credit: 123rf.com, Used under license. Copyright: rhgdesign / 123RF Stock Photo