By Dr. Ken Broda Bahm:
What is the greatest problem facing Americans? Is it climate change? Class division? Race relations? The sluggish economic recovery? The growing threat of terrorism? The risk of another Middle Eastern war? No, it’s none of those. According to a current Gallup poll tracing the last four months, the biggest challenge to Americans is their government. In response to the question, “What do you think is the most important problem facing the country today?” fully 18 percent mention dissatisfaction with government. Views of government continue to get worse. Huffington Post’s “Huffpollster” also reports confidence in all three branches of government as being near an all-time low, when compared to the previous four decades. The judiciary fares the best, yet still less than a quarter of the population — 23 percent — express a great deal of confidence in the Supreme Court. For the executive branch, it’s just 11 percent. And for Congress, it’s a measly five percent.
It is safe to say that there’s always been a strong strain of American skepticism toward government; a desire to keep authority at arm’s length and to consider government as “them” and not “us.” But a number of factors are widening that gulf. That level of distrust holds the potential to influence not only those cases where the government is a party, but also the larger number of legal controversies where the government is a highly relevant outsider. When regulators approve or disapprove of a product, grant or withhold a patent, or allow or restrict energy development, for instance, the credibility of the government can factor heavily into a jury’s view of the case. In this post, I will consider some sources and implications of the rising tide of antigovernment attitudes, and share some ideas for incorporating pro- or antigovernment themes into your trial message.
United in Distrust, Divided By Their Reasons:
It is important to remember at the outset that all antigovernment attitudes are not created equal. Instead, there are some distinct political identities fostering some very different kinds of distrust. Here are a few:
Tea Party Conservatives: The government overtaxes, and generally wastes the money it is given. A weaker central government with fewer powers is a good thing, although the government should continue to enforce what we see as basic moral values.
Libertarians: That government is best which governs least. In addition to staying out of the market and the economy, the government should also stay out of people’s private lives and stop trying to enforce either morality or ‘progress.’
‘Occupy’ Liberals. The government has been taken hostage by corporate interests and is now almost wholly corrupt and self-interested. The solution is greater transparency, better regulations, and less money in politics.
In addition to these, of course, there is an entire spectrum of opinion on the government. While all of these perspectives share an antipathy to government, their reactions in any given case are likely to vary. Take the example of a products liability case where we might see different forms of antigovernment bias. The tea party conservative would decry the waste and red tape placed on product manufacturers, while the libertarian would emphasize the market’s ability to deal with bad products on its own. In contrast, the ‘occupy’ liberal would distrust the collusion between the regulators and the regulated industries.
Common Themes
Without a single spectrum of government attitudes, pro- to anti, litigators should be on the lookout for a variety of different themes. Just to prime the pump a bit, here are a few different messages that might emerge during voir dire, and could serve as an important background for a trial message.
Antigovernment Themes
Incompetence
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- You can’t trust the regulation if you don’t trust the regulator.
- Bureaucrats don’t have the knowledge, skill, or practical experience to be effective in this area.
Excessive Control
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- The government is getting involved in too many aspects of our lives.
- The more power the government has, the less freedom we enjoy.
Corruption
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- You have to ask yourself whose interests this agency is serving.
- Do they regulate the industry, or work for the industry?
Pro-Government Themes
Collectivity
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- The way we take collective action is through an accountable government.
- In a democracy, the state is “us,” not “them.”
Protection
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- The government’s role is to prevent unnecessary risks.
- Without meaningful regulations, we would all be at the mercy of unchecked corporations.
Necessity
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- If the government didn’t set the standard, who would?
- Regulations are the worst option…except for all the other options.
Of course, there are a variety of other ways an individual juror might trust or distrust the state and the regulations that find their way into court. And as we move toward another electoral season, these views are likely to become even more pronounced and polarized.
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Other Posts on Attitudes:
- Bad Company: Investigate the Sources of Anti-Corporate Attitudes
- Don’t Count on Gender Differences When it Comes to Compassion
- Don’t Prehabilitate
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Image credit: Gadsden Flag, Wikipedia