During this two year period while lawyers haven’t been to court, a different type of pandemic has been occurring. It’s a labeling pandemic where new stereotypes pack a powerful punch. When those stereotypes are applied to another person, they’re supposed to tell you all you need to know.
Let’s take the phrase “anti-vaxxer.” If someone is not vaccinated against Covid, they may also be presumed to be:
- A Republican who supports Trump.
- Against “science.”
- Uncaring about the community.
- Perhaps even racist and uncaring about people of color who suffered a higher percentage of harm from Covid.
In my work, I get to question a lot of ordinary people. In doing so, I’ve learned more about people who are against the Covid vaccine than how they are portrayed in the news. For example, there are people who don’t want to get a vaccine but not because they are against “science.” Some are super-healthy people who don’t drink, smoke, ingest caffeine, or eat inorganic food. Some distrust pharmaceutical companies and see them as corrupt. Some have done research and concluded that the personal risk of getting vaccinated was too high for them due to their own pre-existing conditions. Others lost confidence in the vaccine because they witnessed someone close to them suffer an adverse event from the vaccine.
Beware of Extending Stereotypes
It’s the same thing with someone’s position about wearing a mask. Regardless of whether or not the CDC recommends it, the perception has become that mask-wearers are Democrats and face-bearers are Trump-Republicans.
This political label then goes one step further. Civil defense lawyers think Republicans make better jurors because they are less sympathetic while plaintiff’s lawyers think the opposite: That Democrats, or more liberal jurors, are more empathetic and that this will lead to a higher verdict.
In jury selections, I’ve seen lawyers trying to short-hand their analyses in this manner for 20 plus years. It never works because the stereotypes are inaccurate labels, rarely connected to how jurors decide cases. I’m anticipating that Covid, Black Lives Matter, and #MeToo will provide new stereotypes for lawyers, and new opportunities to make critical errors during jury selection. Stereotypes are a tempting shortcut. The hope is that they simplify things: If you can conclude that X also means Y and Z, you can deselect your jury without too much head-scratching. But this approach leaves you in the dark about who jurors really are and how they may relate to the unique facts of your case. This false sense of assurance can and will often cause you to misread jurors, thereby wasting peremptory challenges and missing opportunities to challenge problematic jurors for cause.
Approaches for Jury Selection
In my last newsletter, I cautioned lawyers from hitting the Big Movements of our time head-on. The danger is that jurors feel as if they must pass a litmus test in order to sit on a jury. The other problem is that jurors’ opinions are always nuanced and derive in large part from their personal experiences. Their opinions about the big social movements lack these nuances. However, as time progresses, I have seen that these movements are changing people’s experiences, and therefore, in certain cases, it does make sense to broach the topic and “head-on” is a good way, so long as you make it clear that you welcome the juror’s honest opinion no matter what it is.
Let’s talk about the Me Too movement: In what way do you think this movement has been a good thing for women?
- In what ways, if any, do you think it has been bad for women?
- How about men? Do you think men are now treated less fairly or unfairly?
- Do you have any criticisms of the movement? Perhaps some unintended consequences or a scenario where an accusation was unfairly made?
Black Lives Matter:
In the workplace: Let’s talk about the Black Lives Matter movement: In what ways do you think this movement has been a good thing for the workplace?
- In what ways do you think this movement has had a negative impact in the workplace?
Have you observed racial tensions in the workplace as a consequence of this movement?
- What have you observed?
- Has it had an ultimately positive or negative impact in your workplace?
In a case involving law enforcement where an African American litigant is on one side of the V and law enforcement is on the other: In what ways do you think Black Lives Matter has been a good thing for the community?
In what ways do you think this movement has had a negative impact on the community?
How about law enforcement: what positive changes, if any, have you observed within law enforcement?
What negative changes, if any, have occurred?
In a case where a litigant or witness uses phrases like “white privilege” and “microaggressions:”
My recent advice to a plaintiff’s employment lawyer was to avoid the labels.
For example, when a witness uses the word “micro-aggression” to describe how he or she is being treated, it doesn’t tell you anything. Worse is that the term minimizes its own importance by calling itself “tiny.” The problem is compounded by the presumption of “aggression.” Jurors want to be the ones to decide if conduct is offensive, or something so minor that it should be brushed off. A witness’s testimony is all the more powerful when she describes the conduct – what was actually said and done – and lets the jury come up with the appropriate conclusion.
Labels Diminish Your Chances of Winning
Beware of using labels when you communicate with jurors, as they are nothing more than stereotypes. While one person embraces the concept of “white privilege,” another person can be offended by it. One person’s Diversity Mandate is a cause for celebration. Another person experienced the same thing and felt he lost his job because of it. As a trial lawyer, it’s not your job to get jurors to side with or take issue with labels. It’s your job to present the facts so jurors can freely conclude that your side is the right side. The good news is that every winning case always has one thing in common: The facts unify a diverse group of people, no matter who they are or what they believe.