Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

Nearly 40 years ago, in 1979, during the country’s energy crisis, President Jimmy Carter gave what is now called the “Malaise Speech.” Without using that word, he spoke of “a crisis of confidence” that “strikes at the very heart and soul and spirit of our national will.” Over time, he was criticized for sharing a sentiment that was seen as too pessimistic, and even “un-American.” Today, of course, it seems quaint to think that a comment like that could be seen as a serious blow to a president’s credibility. But the root of what he spoke about — a focus on the nation’s growing doubts and loss of unity in purpose — seems like it can apply just as well to today. Those wanting to understand the changing state of public attitudes, including the changing state of the American jury, should also give some thought to the roots and consequences of this modern malaise.  

According to research coming out last week from the Pew Research Center, what unites the left and the right in this country is not a common purpose, but a shared sense that things aren’t going well. The report, “Looking to the Future, Public Sees an America in Decline on Many Fronts,” is worth a read. It shows that Americans are worried over the long-term state of education, the environment, the economy, and the polarization of the country based on wealth and politics. Beyond that, however, it also shows a loss of faith in our ability to solve these problems, as well as a shared sense that our political machinery is broken. Seven in ten are dissatisfied with the way things are going, and eight in ten have little confidence in the government. White and college-educated respondents were generally the most pessimistic about America’s future. That sense of pessimism is likely to come into the courtroom when citizens show up for jury duty. This post considers a few implications of that. 

Insecure Jurors May Create Vulnerability for Some Parties

Jurors are asked to judge a case on its own merits, setting aside any prior attitudes or outlooks they might have. However, that is a legal instruction that is in many ways at war with human nature. A juror who is pessimistic about the future or skeptical of the institutions of power cannot simply set that aside when viewing the case, particularly when that case touches on those institutions of power. For example, I have written in the past about the ways that jurors’ economic insecurity can influence their view of the case. Other forms of insecurity, such as those documented in the Pew report, might also influence jurors’ attitudes in trial, for example in normalizing the ideas of loss or disadvantage, or in making jurors less likely to focus on or care about “other people’s problems.” 

The Theme of the ‘Game Being Rigged’ Will Resonate in Some Cases

I have previously written about the tendency of Americans to believe that the system is rigged, and to hold to that belief even if they are doing well economically, and to hold it even in economically good times. In addition, Americans are also increasingly sensitized to corporate corruption. So if a case involves official corruption or corporate malfeasance, it is easy to see how increasingly jaded jurors might be primed to see that story as one that’s likely true. But there are other ways a view of a broken system can creep into case stories. Pessimism about the parties can resonate with pessimism about the world in general. For example, if a financial or products defendant wants to rely on regulatory approval as a defense, it is likely that a fair portion of the jury believes that this approval was simply bought and paid for. 

Juries Might Be the Cure

If civil pessimism is the problem, then meaningful civic participation might be the cure. And one would be hard-pressed to come up with a form of participation that is more active than jury duty. There’s evidence to show it works. For example, the Jury and Democracy Project shares research indicating that the experience of jury duty makes people more likely to hold positive civic attitudes, and even more likely to vote. 

Of course, given the relative infrequency of cases going all the way to trial, it is possible that the courts are also a target for cynicism. Jur-E Bullitin quotes Center for Jury Studies director Paula Hannaford-Agor talking about this current malaise, “Given current concerns about social inequality, lack of social mobility, and political corruption, however, one wonders whether such a blithe attitude about continued public confidence in the courts is wholly warranted.” Greater exposure to the courts could help, or not. She continues, “It does not necessarily follow that a resurgence of jury trials would adequately immunize the courts against further public malaise, but at the current time, nothing has presented itself as a reasonable replacement for the role that the jury has traditionally played in the American justice system.” 

Ultimately, in the short span of a trial, you are unlikely to cure jurors’ loss of faith in our times and our system. But you can remind them of the remarkable situation that they’re presently in: They are participating, they’re the check against abuse, and ultimately, what they say will generally stick. If you opt for that framing, the research has shown that these empowered jurors are likely to possess more moral clarity, favor more absolutist results, and embrace more dramatic or less popular solutions. So if that helps you in the context of a specific case, then that might at least be a temporary cure for malaise. 

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