Law360 (June 2, 2020, 5:39 PM EDT) --
Even before the current pandemic, jurors would filter case facts and arguments through their own life experiences. By taking a close look at the life experiences unique to each generation, we can gain valuable insight into how the pandemic could shape juror opinions in very different ways depending on their birth cohort.
Collectively, the U.S. population is still reeling from the speed with which we went from business-as-usual to a quarantine mentality in just weeks. At the start of 2020, concepts such as plagues, border lockdowns and pandemics seemed like a thing of generations long passed.
With only 6.5 million people in the U.S. over the age of 85, few were even born during the Spanish flu pandemic, which was largely over by 1920. That is not to say jurors in the U.S. have not experienced hardship.
Many jurors still have memories from the Great Depression, World War II, the Korean War, the Vietnam War, John F. Kennedy's assassination, the Challenger explosion, 9/11, the Great Recession, natural disasters, and more. Each has shaped the landscape and had a psychological impact on the generations that came of age during these historic events.
This indelible psychological imprint left on the population, known as "collective trauma," can be experienced not only by those in direct witness, but also those who witness events through media and reports. And while the effects of stress and trauma are felt more acutely by those at the center of an event, others can exhibit the same symptoms associated with direct exposure. Understanding the pre-pandemic experiences of each generation will help us predict how they might process the current events.
Let's first consider the traditionalists, otherwise known as the silent generation. Born between 1928 and 1945, this population is over the age of 75 and therefore often exempt from jury service. This generation is stereotypically quite conservative and less comfortable with social change and the increasing social emphasis on diversity and inclusion, perhaps stemming from the fact that 79% of this group identifies as non-Hispanic whites having grown up in a nuclear family unit.
This generation has been comparatively fortunate with life events, they came of age in post-World War II prosperity, but aged out of military service before Vietnam. They have reasonably high confidence in the government and watched their retirement savings grow mainly in the 1980s bull market.
Using this context, several predictions can be made about how traditionalists may make decisions in courtrooms post-pandemic.
In the early days of the pandemic, it was established that elders over 75 would be among the most at risk. The silent generation is not without their fears; they've expressed greater concern on the impact of COVID-19 on their health compared to young generations. Despite this heightened risk and fear, there has been a lack of media coverage on COVID-19 focused on the silent generation, with the majority of reporting focused on their younger counterparts.
Given the lack of media coverage despite their high risk, it would not be surprising for them to feel "left behind" by the world. This often translates into a victim mentality in the courtroom, leaving them more open to plaintiff arguments. Additionally, the lack of diversity within their ranks could lead to an acceptance of suggested racial stereotypes currently in the media, calling COVID-19 a "foreign disease." This would leave the generation already skeptical of foreign companies doing business in the U.S. even more untrusting.
The baby boomer generation has long held the media's attention. Born between 1946 and 1964, baby boomers are one of the most populous generations and make up 36% of registered voters. Naturally, this level of voter registration also translates into a high representation in jury panels. Growing up during the Vietnam War, with 40% of men serving, baby boomers are still coming to grips with the war and the marked frustration with government that followed.
As with traditionalists, boomers are also at higher risk for COVID-19. Social media memes seen on TikTok, Twitter and other platforms have gone so far as to dub COVID-19 a "boomer remover." That being said, COVID-19 for this generation is another one of the many real catastrophes and grave threats they have experienced in their lives.
Despite this, baby boomers have demonstrated they still feel individually empowered to make their own decisions and this pandemic will not change that attitude. In fact, 77% of adults over 65 have reported that they were "unlikely" to catch the virus.
Following the pandemic, baby boomers are not likely to give up their individuality. In fact, their historic frustration with government action could become more acute depending on their experiences during the pandemic and how they feel it was handled.
Parties should take care to learn about these experiences and those opinions, in particular for those cases where a government entity is a party or plays an important role in the litigation. Their self-prescribed invulnerability also confirms the self-assurance of this generation such that they will not be giving up their leadership roles in deliberations any time soon.
Generation X, a name given for the lack of an identifying moment, includes those born between 1965 and 1980 (currently 40-55 years old). A generation that was originally dubbed lazy and inept, this cohort is more educated than its older counterparts and has shown a higher willingness to embrace social issues.
Gen X continues the tradition of being highly critical of the government and has seen many economic strains in their adulthood. During COVID-19, Gen X is likely to remain skeptical of the government response and look to social supports and causes most important to them.
Independent to its core, Gen X recently dubbed itself on social media with the hashtag #latchkeygeneration to express their view that, of all those currently experiencing the pandemic, they are the mostly likely to psychologically handle isolation. Some Gen Xers also argue they are bearing more than most: sandwiched perfectly between aging and at-risk parents and becoming teacher to their children, they are stretched economically, physically and emotionally.
It will be important to learn about Gen X jurors' experiences in the pandemic. Just like baby boomers, Gen X's skepticism of the government could be exacerbated by its handling of COVID-19 such that they could carry significant bias in cases where a government entity is a party or plays an important role in the litigation.
The pressures from parents, children and their own lives could also translate into Gen X looking to be excused from jury duty if they feel they are still pulling their lives back to the delicate balance of "normal" they had up through 2019. Parties might see this, in particular, with economic losses. With retirement only a decade away for some of Gen X and having already seen the strain on their savings from the recession, Gen X could be more skeptical to high-damage awards than their younger counterparts.
Millennials/Generation Y are the largest generation by population. Born between 1981 and 1996, they were five to 20 years old on 9/11 and largely came of age during the Great Recession. In general, they are consistently liberal on social and government issues and even more educated still than Generation X.
Millennials embrace cultural diversity and tend to prefer urban areas. While an urban environment has a higher risk of spreading COVID-19, 67% reported saying they were "unlikely" to catch the virus.
Indicating a possible bifurcation within this group or perhaps a comment on the larger pandemic, almost half of younger millennials reported being "very worried" about the virus as a whole. Not afraid to voice their opinion, some millennials have deemed baby boomers as somewhat complicit in facilitating the spread of pandemics via their support for unfettered capitalism or "deserved comeuppance for damage done to the environment and/or social fabric." They have also reported believing baby boomers have been too cavalier about COVID-19.
The pandemic could provide millennials the push to come into their own in the world and in the jury room. Despite what's been seen in the past where these jurors defer to their parents (baby boomers), a growing frustration could lead them to push back on "boomer" opinions as out of sync with the post-pandemic world.
We could also see higher incidents of psychological strain in younger millennials as they have reported being more depressed than previous generations. This could translate to pleas to be removed from jury service or, for those that remain, to be more receptive to plaintiff claims. Millennials have long demonstrated they are not to be convinced by an expert. Given the infinite number of conflicting scientific, government, and social opinions in the pandemic, this can only become more entrenched as they look to their own formal and informal education and peers to be informed.
While only a small percentage of this generation is over 18 (born between 1997 and 2012), it is worth considering Generation Z, or zoomers, as they are quickly aging into the jury venire. Separated from millennials by the key dividing event of 9/11, this generation closely mirrors their Gen X parents in attitude but with the technology of millennials.
While this group remains somewhat unpredictable, with some still in elementary school, when compared to older generations, zoomers are on track to be more educated, fiscally responsible, cynical and autonomous. This pandemic is likely to have the largest impact on their lives, and while they will put a high importance on government response, they are also more likely to trust their peers and show up on a beach in Florida despite the social distancing precaution.
Without much pre-pandemic juror data, it is truly hard to predict where COVID-19 will leave them. Likely to bear some traits of both Gen X and millennials, it will be instructive to watch as they join in deliberations.
While these predictions merit thought and discussion prior to jury selection, it cannot be overemphasized that the current pandemic is a global event, impacting everyone. And while trial preparation will encourage us to remember that each generation will come to see the pandemic through a different psychological lens, Megan Gerhardt, a professor focusing on generational differences at Miami University reminds us that, on the whole, "the differences between generations and ages start to fall away when we realize everybody is being touched and affected by it."
Johanna Carrane is president and Lynn Fahey and Christina Ouska are senior trial consultants at JuryScope Inc.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 Collective trauma defined: natural or human-caused adversities that impact large segments of the population. Garfin, Dana Rose. How the pain of 9/11 stays with a generation (September 9, 2016), http://theconversation.com/how-the-pain-of-9-11-still-stays-with-a-generation-64725.
 Stieg, Cory. The psychological reasons why Gen X may be taking COVID-19 more seriously than boomers and millennials (March 18, 2020), https://www.cnbc.com/2020/03/18/psychological-reason-why-gen-x-is-taking-covid-19-pandemic-seriously.html.
 Jurors in California, Texas, Washington, and Maryland, just to name a few, allow jurors over the age of 70 to request an exemption from jury duty, https://www.juryduty101.com/.
 Fry, Richard, et al. How millennials today compare with their grandparents 50 years ago, Pew Research Center (March 16, 2018), https://www.pewresearch.org/fact-tank/2018/03/16/how-millennials-compare-with-their-grandparents/.
 Meyer, Emily. COVID-19: Recovery and Resurgence for the Food, Agriculture and Beverage Industry (April 21, 2020), https://fleishmanhillard.com/2020/04/food-agriculture-beverage/covid-19-recovery-and-resurgence-for-the-food-agriculture-and-beverage-industry/.
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