By Dr. Ken Broda-Bahm:
I suspect there has never been any great love affair between attorneys in general and the jury pool. Jurors know that lawyers are there to influence them toward a desired result, and that’s typically met with suspicion. Similarly, corporate defendants also don’t tend to make a jury’s list of favorites. We’ve tracked anti-corporate attitudes for more than a decade at PS, and can confirm that the average juror sees corporations as irresponsible and dishonest. But as expected as those levels of juror suspicion in the courtroom might be, the post-pandemic juries heading back into courtrooms today may be even more jaded than they were before the courts shut down. That is the finding of a recent survey of 1,000 juror-eligible Americans in jurisdictions noted for higher ‘nuclear’ verdicts in recent years. The survey, conducted by Orrick, Herrington & Sutcliffe, found that those who have “a great deal” or “a fair amount” of trust in the justice system moved from two-thirds to less than half. At the same time, the proportion of those with highly negative views of large corporations grew from 27 percent pre-pandemic, to 45 percent post-pandemic.
Declining faith in the wake of the pandemic’s broad social disruption could be a result of general policy impressions (e.g., corporations are too callous or too woke, depending on your political persuasion), or they could be driven by recent decisions (e.g., the authors note that the Supreme Court’s decision in Dobbs overturning the right to abortion may be playing an outsized role in diminishing trust in the justice system). In any case, the presence of jurors who are primed to distrust you as a party or to distrust the system itself may call for some adaptions to how you present yourself and how you argue your case. In this post, I will take a look at this data and a few implications.
A Few Additional Findings
While the law firm’s researchers will continue to analyze and share their data from this survey, there are a few notable findings shared at this stage:
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- A majority believes “current laws are outdated and applying them does not consistently serve justice.”
- 77 percent favor punitive damages to punish corporations.
- 62 percent believe that juries have the “important function” of sending “messages to corporations to improve their behavior.”
- Just 13 percent have a negative view of “lawyers who represent injured people in lawsuits,” while 58 percent shared a positive view.
A Few Implications
It has always been important to know how the individual factors of your case will interact with the unique qualities of your venue. But as suspicion of powerful actors is on the rise and trust in the legal system is on the decline, that need to assess has become all the more important. Here are a few reminders for understanding how an evolving jury pool could impact your case:
Assess Trust in Context
These attitudes are going to vary by venue, and it is important to note that the survey targeted the parts of the country at a perceived higher risk for defendants. But in addition to considering your venue, it is also important to consider the context of your case. How does your narrative depend on law versus fairness? How important is the role of the government as a regulator? To what extent will jurors need to trust the testimony, versus seeing for themselves? Ideally, you want a juror questionnaire that will allow you to ask about the attitudes likely to matter the most in your case.
Know Your Potential Jurors
A comprehensive juror questionnaire is a best-case scenario, but even without that, there are additional ways to know your panel and to know your venue. With a rise in online research techniques, it has become increasingly economical to conduct a community attitude survey of your venue that is tailored to your case issues. In addition, many to most in your panel will have a public social media presence that can be assessed in advance.
Speak to the Suspicious
Ultimately, the number of strikes and challenges you have is finite, and you will likely end up needing to communicate with jurors who still harbor some suspicion toward you, your client, or the legal system as a whole. So ask yourself, what would make someone with those attitudes still believe you’re right? The juror who feels that corporations are greedy can still believe that the profit motive led the company in the right direction. The juror who doesn’t trust lawyers or executives can still believe that they found their own path toward favoring those parties. The juror who sees the system as rigged can still commit to the result that the system reaches in this case.
There’s no question that the last few years of social, medical, and political turmoil have changed the nation. Evolving juror attitudes make it critical for prepared advocates to study the challenges these changes might carry for their cases.
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Other Posts on Juror Bias:
- Don’t Let Anti-Lawyer Assumptions Keep You Out of the Courtroom
- Look Out for the Anti-corporate Right-wing
- Understand Anti-Corporate Bias: The Extent of the Bias and the Effect of Familiarity
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