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Relying on tired stereotypes when exercising peremptory challenges is always a mistake, and the younger generations of jurors entering the venire are poised to make avoiding this pitfall even more challenging. Quite simply, the under-40 jurors in the venire may not comport with senior trial lawyers’ conventional views of youth. “Generation X” (born 1965-1981) and the “net generation” (born 1982-1997) were raised in very different times than the baby boomers (born 1946-1964) and “traditionalists” (born 1901-1945) who make up most of the senior partner/lead trial lawyer ranks. Understanding the context in which a person came of age can significantly improve a trial lawyer’s ability to assess a juror, specifically in voir dire and jury selection. By adding generational insight to the trial tool arsenal, trial lawyers can shatter stereotypes that often result in costly mistakes when exercising peremptory challenges or making motions to dismiss for cause. As Gen X and the net gen age and move into leadership roles in the work force and communities, these two distinct but similar groups are poised to have an increasing impact on American culture and the American courtroom. The oldest among Gen X are approaching 40, preparing to take over leadership positions from retiring baby boomers. Currently, there are 44 million Gen Xers in the work force. Even more importantly, the oldest net gens (8 to 22-year-olds) are graduating from college and entering the work force. At roughly 80 million strong nationwide, the net gen rivals the infamous boomers in number. Within the next five years, approximately 50 million net gens will be eligible for jury duty. Both groups stand to make a significant impact on the jury trial process. Each attorney approaches jury selection a bit differently, but in general, all lawyers rely on their experiences in the courtroom and in life to make determinations about whether a particular juror will be a good juror for their case or not. Focus group and mock trial data can help determine what juror characteristics may be detrimental to a particular case, but not every case can justify the costs of pretrial research. Very often, litigators enter the voir dire and selection process armed only with a skeletal idea of who might be dangerous, cursory themes that they hope will resonate with the jury and a career full of experiences. The more mature tend to look skeptically at younger people. This has been happening since the beginning of time, and in no place is this more evident than the courtroom. But the youth of today are contradicting conventional wisdom. Ignoring the trends present in today’s youth culture is a sure way to make costly mistakes at strike time. Here are four common stereotypes to avoid: Stereotype No. 1: The Gen Xer is a “slacker.” When the Generation X term was first coined by Douglas Coupland in his 1989 novel of the same name, the oldest in this generation were about 25 years old. In the years before that time, the space shuttle Challenger exploded, the Iran-Contra scandals had taken place, the Soviet Union dissolved and federal deficits were at an all-time high. Parents worried that their children would not surpass them economically for the first time in American history. At that time, Gen X did seem to be a generation adrift. They didn’t have the social causes of the boomers before them, or the life-altering experiences of world wars or nationwide depression as did the earliest generations of the last century. Gen X went to college in record numbers, but they didn’t exactly take the workplace by storm. Who could blame them? They grew up in the economic downturn of the 1970s. SELF-RELIANCE, PRAGMATISM But time always seems to affect how generations are viewed. While Gen X might have gotten a slow start, in terms of ingenuity this generation holds its own with every one before them. Many of the minds responsible for the dot-com phenomenon were Gen Xers. Because they were raised in uncertain times, as a group they seem to feel their fate lies in their own hands. The majority of Gen Xers believe it is more likely they will see a UFO than a Social Security check with their name on it. And they are saving money at a rate that far exceeds what the boomers were saving at the same age. Skeptical was a word used often to describe Gen X in the early ’90s. As they have aged and started families, personal responsibility, pragmatism and practical, rather than idealistic, solutions to problems seem most important to Gen Xers. This is also a generation that does its homework. As Robert Wendover, director of the Center for Generation Studies in Aurora, Colo., stated, “Xers walk into stores armed with information, and they are much more confrontational than Boomers. They take a salesperson by surprise; they one-up them [because they have done their research online]. They grew up at a time when if you didn’t ask, you didn’t get.” [Valerie Seckler, "Firms Ignore Stretched, Skeptical Xers," Women's Wear Daily, Jan. 22, 2003, at 2.] These characteristics and others seem to point in the direction of a tough road for many plaintiffs at the jury level when it comes to Gen X jurors. Claims perceived to be “frivolous” or whining in nature are likely to be swiftly rebuffed by Gen X jurors. On the other hand, if a defendant company is perceived as failing to take responsibility for obvious wrongdoing, look for Gen X jurors to be quick to find against any entity unwilling to step up and take responsibility where necessary. With Gen X at the helm in the deliberation room, responsibility will continue to be an important theme for both sides in almost any dispute. Stereotype No. 2: Gen Xers are morally bankrupt. In the early ’90s, when this generation was first named, it seemed they were destined to become the most cynical, unengaged, uninteresting generation in American history. It can easily be argued that this generation got a slow start: slow to move out of their parents’ homes, slow to find a calling in life. It seems, however, that one of the places they are trying to make a mark is in the reinstitution of the family. Gen X, now roughly 25 to 40-year-olds, are marrying and having children; while Generation X got a slow start and married later in life, they are posting a lower divorce rate. Other pro-family trends are present as well. Large numbers of women are staying home to raise their children. According to census data, the number of mothers in the workplace fell for the first time in 25 years from 59 percent in 1998 to 55 percent in 2000. Gen X dads are taking their role in the family more seriously as well. Many men are choosing a more moderate career path to spend more time with their families. In fact, there has been a 54 percent increase in stay-at-home dads since 1986. Statistics show that Gen X has become more traditional, even conservative in their viewpoints than once thought possible for such a generation of supposed contrarians. According to Richard Thau, a Gen X expert and founder of Third Millennium, a Gen X advocacy group, “The most conservative people in the U.S. are married Gen Xers with children.” [See Seckler, supra.] According to 2002 marketing research data, approximately 70 percent of Gen Xers believe they will do a better job of raising their children than the generation before them, 91 percent describe themselves as a head of household and 48 percent own their residences. Id. It is important to consider these statistics when making determinations about this demographic group in jury selection. These shifts toward conservatism in younger jurors may not comport with stereotypes and may impact the way a mid-30s juror looks at a death penalty or products liability case. Stereotype No. 3: The young always rebel. Most people associate youth with rebellion. After all, the boomers redefined the term in the late-1950s and 1960s. In a 1974 Gallup poll, 40 percent of boomers said they would be better off without their parents. Things have changed significantly. According to Gallup, more than 90 percent of teens today report being very close to their parents. [See Pete Markiewicz, Who's Filling Gen-Y's Shoes?, May 5, 2003.] According to Neil Howe, an expert in generational research, the net gen “came along at a time when we started re-valuing kids.” “The Echo Boomers,” 60 Minutes, CBS News, Oct. 3, 2004. The early 1980s were focused on fertility instead of contraception: the age of the “baby on board” signs. This generation has been coddled and protected since birth. Most have always been strapped into a car seat and ridden bikes with helmets. When they went to school, they were protected by metal detectors and Amber alerts. The net gen has also experienced an extremely structured childhood. After finishing “Mommy and Me” and “Gymboree,” children went on to exclusive preschools and arranged “play dates.” Soccer practice, music lessons and other structured and scheduled time slots filled the week. Most experts agree that emphasis on structure, protection and coddling leads to conformists, and the available data support this assertion. Teens seem to be conforming to traditional values, rules and standards. What has changed is what conformity looks like, and this change can throw off even the savviest litigator. It is not surprising to find honor students with green hair and college virgins with four tattoos. Again, relying on stereotypes about what green hair and tattoos signify can get the trial lawyer into trouble when it comes to the under-40 group in the venire. Appearances can be deceiving. Lawyers should take the time to ask some probing questions and, when appropriate, have a well- designed questionnaire to elicit responses from the hard-to-read youngsters. Stereotype No. 4: MTV rules. Turn on the television in today’s culture, and it is difficult not to conclude that traditional values are nonexistent among today’s youth. MTV and other teen-oriented programs are filled with overtly sexual content, and sensationalistic talk show topics often revolve around the perceived promiscuity of teens. Statistics tell a much different story. Typical indicators of teen dysfunction are all trending downward. Violent crime committed by 12 to 17-year-olds is down 50 percent from its apex in 1992, according to the U.S. Bureau of Statistics. [See Markiewicz, supra.] Smoking, drinking and drug use among eighth, 10th and 12th graders fell in 2002 for the first time. Teenage pregnancy rates, abortion rates and sexual activity have declined, and self-reported virginity rates are up. THE ROLE OF RELIGION Even more interesting is the net gen’s conservative slant and return to religion. In a 2002 nationwide survey sponsored by the Pew Charitable Trusts and carried out by Berkeley’s Survey Research Center, 69 percent of young people aged 15 to 26 supported prayer in public schools compared with only 59 percent of older adults. Participation in church groups among teens rose from 17 percent to 28 percent between 1995 and 2001. A group of college graduates in 2001 was recently polled on these issues in a Northwestern Mutual Life Insurance-sponsored survey; 89 percent believe in God and 70 percent attend regular services. [See David Demko, Millennium Manifests Gen-Xer Moral Majority, Age Venture (www.demko.com).] How these young people will trend on employment cases involving sexual harassment, criminal cases involving rape or a case involving religious content is yet to be determined. What is certain is that their thinking will be unlike that of any young people in recent memory. Many of the trends and themes that shape the way the net gen problem-solves disputes are still unknown. Tendencies of Generation X are a bit more identifiable. Generational insight may be only one way in which to view the jury selection process, but it is a tool worth adding to the trial arsenal. Tara Trask is president and founder of SLI Consulting, a full-service trial consulting practice in San Francisco. She has been involved in more than 100 jury trials, including assisting Oprah Winfrey in Texas Beef Group v. Winfrey. She can be reached at [email protected].

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