The prospective jurors who are wading into the jury pool today are not like jurors from the early days of my career as a plaintiff’s attorney. The speed of the cultural changes and shifting attitudes has accelerated precipitously with the advent of technology in general and social media in particular.
For instance, the young people who step into the jury box today are sensitive to identity issues, are less likely to defer to an authority figure, and may have an entirely different relationship to money. Today’s Millennials, Gen Y and Z -ers, are used to accessing massive amounts of information and making a judgment with a click or a swipe—think dating apps like Tinder. Also troubling, their brains are not wired to pay attention for days, maybe even weeks, of trial testimony necessary to adduce the evidence the plaintiff needs to make a case (but that’s fodder for another blog). Their technological environment has created a social psychological unknown: neither a book, nor a cover.
So how does this play out in the courtroom? Anecdotally, there was a recent case involving dental malpractice. These cases traditionally garner a low recovery because the injuries are usually not catastrophic. The plaintiff alleged the dentist’s negligence caused a 25-year-old patient to lose some of her ability to taste. The jury, made up mostly of people under 30 years old, awarded $3 million. By any measure this is a substantial award for dental malpractice. Based on my experience, a 1990 jury would have awarded much less. What the defense attorneys in that case failed to appreciate was that young people, most of whom identify in some way by what they eat, post photos of food on social media, and have lived in a time when chef shows rule reality television and “foodies” are blogging about the latest restaurant hot spot. To them $3 million might not seem like a substantial amount of money for the partial loss of their taste buds.
While the plaintiff was the beneficiary of the defense attorney’s cultural tone deafness, this example raises myriad issues for trial attorneys. In my view it is our professional obligation to educate ourselves to understand and appreciate the views, experiences and attitudes of prospective jurors. Just as the rules of professional responsibility for lawyers added keeping “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology” as an element of maintaining competence, we must keep abreast of cultural and technological shifts that impact a juror’s willingness to award substantial sums to the plaintiff when it is warranted. It’s a modern application of the classic adage: know your audience. After all, the youthful juror could just as easily fail to appreciate fair compensation in another type of case.
Attorney Laird M. Ozmon