Are “Millennial Jurors” to Be Feared or Celebrated

Posted on Jun 20, 2012

A great post on Associate’s Mind, entitled “Millennial Jurors: Entertain Us,” discusses the challenges facing trial lawyers trying to communicate with Gen-Y jurors.  In addition to prognostications about how these young adults can’t sit still and pay attention for the hours needed to take in information during a jury trial (how will they check their smartphones?!?), the post (which itself references an article in the Texas Bar Journal) notes how information needs to be presented to Millennial jurors in shorter visual “bites,” as opposed to purely verbal, format.  Better make sure it’s not boring, either.

Undoubtedly a cottage industry will sprout from within the ranks of  jury consultants and trial support firms of “Millennial specialists” who claim to know the secret to engaging Gen-Y jurors.  But I don’t think the shorter attention span, and increased need for engaging visual, as well as verbal, content is really that new or a bad thing at all.  I’ve written elsewhere how trials are too long and taxing on jurors’ minds and attention spans.  Anyone trying cases in the past 25 or 30 years knows that a purely verbal presentation–without visual aids (even rudimentary visual aids) is risky, even if the subject matter is pretty sexy.

I think that, while the (alleged) changes in attention span, and increased appetite for visual stipulation seen in Gen-Y (and presumably later) generations might be lamented by parents, educators, psychologists, novelists (and other print media writers) and others, it should not necessarily be lamented by those in the business of trying cases.  Rather, like any development, it should be prepared for and embraced.  It is true that evidence will need to be presented differently if it’s going to get through to Millennial jurors, and this will require some reflection and research.  (Perhaps more in-depth research than was undertaken in developing the Texas Bar Journal article, which was simply a survey of law school students.)  And, probably, some trial and error.

Turning the coin over, though, there will surely be evidence that only the younger generations will “get,” at least at first.  For example, while it’s commonplace now for defense lawyers to scour the internet for impeachment evidence, there are older jurors who don’t surf the internet and don’t understand “The Facebook,” Twitter or LinkedIn.  Cases involving new media, reality television and certain progressive technologies might be completely foreign to more senior jurors but completely familiar to members of Gen-Y.  (OK, I’m a little biased because I practice in Los Angeles, where every case will someday be “pre-tried” on TMZ).  In short, there should be a place at the table for every kind of juror.  The challenge to the trial lawyer is to engage, as best as possible, with jurors of every generation, not just the over-30 demographic.

We’ve got to raise our game, or get out of the way.

Levity in the Courtroom? Yes! Provided . . .

Posted on Jun 14, 2012

An article in the Wall Street Journal Tuesday discussing the Rajat Gupta insider trading trial in NYC pointed out that the judge and the accused’s defense attorney, who are apparently longtime friends, have been cracking jokes throughout trial in and outside the presence of the jury.  The article posed the question, but did not weigh in, on whether humor in the courtroom is a good idea?  Well, when it’s the judge making the wisecracks there’s not a lot counsel can do, so why not laugh along.  But when, if ever, is it appropriate for counsel to inject levity into the courtroom?

I think some humor can serve two useful purposes.  First: it breaks the tension that naturally develops in a courtroom, where freedom, money, reputation or all three are at stake.  Second, depending on timing, humor can break the monotony and actually “wake up” the proceedings a bit.  The problem is, the parties, their lawyers, the judge, the clerk, bailiff, court reporter, observers and, most importantly, the jury, may find different things funny (or not so funny).  An intentional joke can fall flat or, worse, offend.  That said, here are my thoughts on the uses of humor in the courtroom:

1.  It’s not appropriate when it’s not appropriate.  This presumes we all possess at least some judgment and, let’s face it, some of us don’t. So, by way of illustration, when the subject matter of the trial is catastrophic injury (burn victims, etc.) or heinous crimes (rape, murder, etc.), there’s a 99.9% or better likelihood that any joke is going to offend someone.  So steer clear. Don’t even try it.   There’s probably nothing funny to Rajat Gupta about going to jail and facing jail time, yet it’s his own lawyer making the jokes, so presumably it’s ok.  (“What, I’m paying you $1,000 an hour and you’re making jokes?”)

2.  Take your cue from the judge.  The judge always sets the tone of the courtroom.  If the judge makes a funny, then humor may be acceptable in his or her courtroom.  Pay attention to whether the judge allows humor when jurors are present.  Even if laughter is permitted outside the presence of the jurors, a joke could be sanctionable conduct if made when there are jurors present, particularly if your opponent or his/her client is the butt of the joke.

3.  Know when to stop.  Here, again, we need to exercise our judgment and some of us don’t have any.  So, to be safe, stop while you’re ahead.  If something you said elicits a chuckle, leave it there.  Because I’ve never been great at timing or telling jokes, I would never intentionally try to be funny in the courtroom.  The stakes are too high and I don’t want to risk it.  When I have been funny, however, it has always been accidental and usually something self-depreciating I’ve said or done.  People seem to appreciate humility.

So . . . in my view, using humor in the courtroom is a mixed bag.  I almost always appreciate it when the judge says something to break the tension, but I’m loath to try it myself.   What do you think?