Know your jury.
In social science research, there’s something called the ecological fallacy—using data gathered at one level to infer attitudes or behavior at another level. Like using information about an aggregate of people to predict what one person will do. We often see this mistake made in discussions of jury selection and case presentation, usually involving assumptions about demographic categories (“Low-income people think this way”), or age cohorts (“Millennials are entitled”), and political parties (“Republicans lean defense, Democrats lean plaintiff”). But much the same way that you don’t fit all the norms and stereotypes for groups you belong to, neither do jurors.
This doesn’t mean that all information about groups as a whole is useless. But it does mean that in a trial preparation/jury selection context, it usefulness is very limited. For example, as Millennials are becoming a larger percentage of jurors, we are often asked how they should be approached. Our advice is to be mindful of their life experiences—don’t use pop culture references that are too dated for them to understand, consider their preference for shorter, pithier presentations, and don’t make self-deprecatory remarks about how hard technology is to master. Having said that, many Boomers and Gen-X’ers have mastered new technology (computers, iPhones, social media, Hulu, etc.) and what juror wouldn’t prefer a more succinct presentation?
When we become aware of how group characteristics are used in other arenas – advertising, political consulting—it can be quite tempting to try to apply those findings to your trial practice. And as we mentioned above, there are some limited ways where that information can be useful. However, what you have available that those mediums don’t is the unique ability to know exactly who you are presenting to. Rather than selling something to the masses or trying to persuade a huge crowd, you are presenting a clear, comprehensible, and persuasive case about a complex event to a small group of people. And you are afforded the opportunity to know important information about each member of that group.
So if you’re going to rely on an advertising adage, please choose this one: Know your audience. Advertisers and political consultants use group characteristics when they craft appeals for selling something—the Millennials feel the Bern, Subaru owners Feel the Love—because they have to. If, instead of trying to reach millions of people at once, they were tasked with selling to 12 known individuals, they would shift strategies dramatically. Instead of relying on assumptions about a group, they would gather information about each individual and craft their presentations accordingly. And that is exactly what we would recommend to you. Don’t make assumptions about individual jurors based on group membership. Ask them about the case. And then listen to what they say.
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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.