Source of article Litigation Strategies.
In a prior blog (Are National Events Affecting Jurors?) we surveyed the impact of pervasive National and Regional events have upon the psyche and sentiment of jurors. The crucible of significant societal and cultural events can and does create a sea change in experiences and attitudes in the day to day lives of our jurors. We have experienced The Enron Effect, The 9/11 Effect, and The Recession Effect within the last 10 years. These ubiquitous national experiences touched the lives and opinions of many millions of potential jurors. Perhaps more than anything else in recent history, the one-two punch of the threat of terrorism within our borders and the devastation of job losses, tight credit, “upside down” mortgages and defaults has created an environment deeply colored with uncertainty and daily concern.
“What is known is this: There is a predominant direct and personal experience of financial hardship and economic uncertainty extending to all socio-economic levels. The working poor, working class and lower to middle class are hit hard and likely most dispirited. The upper middle have seen their investments and pensions evaporate before their eyes, creating distrust and anger. Even Donald Trump has been forced to file for Chapter 11 bankruptcy in his Vegas gambling hotels. GM and Chrysler are on the chopping block and nobody, not even the Japanese are making any money selling cars.
Expression of angst, anxiety, uncertainty and anger are replete in national polls, op/ed pages, and talk around the water cooler. Anxiety and depression levels are rising and are associated with the financial stresses currently increasing. Daily national media reports ra-ta-tat like hail on a tin roof and are inescapable. The political rancor and debate seems effete and ineffective as our political leaders and political parties fail to lead or have any vision. Huge “bailout” numbers are bandied about making the reference points of Bob and Mary Sixpack’s pay check seem like nickles and dimes. People feel small, ineffective, overwhelmed, helpless and stuck. Uncertainty pervades and the opportunities for the individual to effect any change or improvements, even in their own lot, seemingly pales to the immensity of the economic situation.”
Voir dire is the time to invite your venire panelists to talk to you about how these compelling life events are affecting them. Attorney, Jury Consultant and blogger Anne Reed solidly addressed the basics of voir dire questions in her article “Back To Basics: Nine Things To Look For In Voir Dire”. Reed’s blog highlights issues surrounding “Sense of Control” and “Identification with the status quo”. Expanding within her categories below, there are some useful and focused questions that can reveal the jurors’ experiences and attitudes regarding the financial meltdown and recession. The more uncertain and aware jurors are about a threat, the more frightened they will be. Being helpless and out of control of a threat makes it even worse. Jurors experiencing negative moods and stress tend to be quick to judgment. Jurors who are intolerant of uncertainty can become anxious, inflexible, dogmatic and judgmental. They can become black and white in the way they address conflicts.
Uncertainty tolerant jurors can live with gray areas and tend to be less rattled, more able to comfortable with ambiguity and able to weigh and measures facts and features of a story before coming to a judgment. They have the emotional reserves to take the time to do the work of consideration and evaluation of the facts and narrative content.
As anxiety and uncertainty drive attitudinal and behavioral changes in the lives of jurors, we want to explore just who is most uncertain and how they have changed their behaviors as a way of evaluating their temperament and likelihood of imposing the results of their uncertainty on the parties to the litigation:
“6. Sense of control. Does this juror tend to believe that others and external forces control life events, or that people control their own destiny?”
The questions below are presented in questionnaire form. To use these in voir dire you should convert them to a relaxed conversational quality that invites discussion. There is no need to use all of these questions during voir dire, but selecting the form and content of the question to address either the case theory or fact pattern is always a good idea. Some of these questions would be best addressed to younger venirepersons who are just getting their financial lives started, others for retirees and folks in the later stages of their careers. These are ice breakers, not end points. Follow ups are necessary in each case.
How would you rate economic conditions in this country today?
Would you say that you are financially better off now than you were a year ago, or are you financially worse off now?
Did you worry about money yesterday?
Did you worry yesterday that you or somebody close to you might lose your/their job?
How worried are you about not having enough money for retirement?
How worried are you about not being able to maintain the standard of living you enjoy?
How worried are you about not having enough to pay your normal monthly bills?
How worried are you about not being able to make the minimum payments on your credit cards?
How worried are you about not being able to get a loan for a mortgage, car, business or tuition?
Looking ahead, do you expect that at this time next year you will be financially better off than now, or worse off than now?
“8. Identification with status quo. Does this juror feel she is a part of the “system,” or estranged from the “system”?”
A fundamental difference between jurors with Democratic party or Republican party affiliation is the notion of the proper role of the government. An over simplified but useful way to look at this political philosophy differences is that jurors who see the role of the government is to provide opportunity and a level playing field may be more likely to see their role as a juror in that light. A juror who is strongly attached to the notions of the primacy of the individual and “personal responsibility” tends to evaluate others’ choices in terms of moral or personal failure and a deservingness for the outcome wrought by that failure.
Do you think the Country is going in the right direction to solve the employment and financial situation we are in?
Voir dire is your opportunity to identify the angry, disenfranchised, financially anxious and uncertain juror who is prone to quick judgments, blaming, reliance upon experts, conformity to a “position”, emotional rather than rational processing, and values laden decisions.
The trial advocate should consistently weigh the prevailing biases wrought by the times and temperments. There are some times that you can make these biases work for you rather than against you. The juror most affected by the recession financially or occupationally is much more likely to be angry and looking for someone to blame. It’s up to you to decide if that presentiment helps or hurts your case.