1

Understanding Millennials Means Understanding Ourselves

Canary in a Coal Mine – Something or someone with certain sensitivities to his, her or its surroundings that acts as an indicator or early warning of possible adverse conditions or danger.    

                                                                                                                                                     – idioms.thefreedictionary.com

                                                                       

By Slater Elza

A simple Google search for “millennial jurors” will produce hundreds of thousands of hits.  The search will send you to any number of sites that will either sooth your frazzled pre-trial nerves or confirm your lost trial to come.  The results are contradictory and based on agendas and imperfect analysis. From those articles, we learn (1) that plaintiff’s counsel will strike all millennials while also understanding that they will drive up the damages award and are vital members of the jury, (2) civil defense lawyers avoid them at all costs while being the only ones smart enough to manipulate them for the good of their client and (3) both prosecutors and criminal defense lawyers will be saved by the young jurors who see things through a single prism of contradictions.  Most articles, blogs, and papers try to illustrate how different millennials are from their predecessors.  But what if they are not so different from other potential age groups and jurors? What if they are instead the “canary” that warns us that all jurors, and therefore juries, have changed over time?  What if these young jurors are the focus group that helps understand new juries and how to modify our stale and outdated approach to trial?

What is a Millennial?

There are some small differences in how scholars define this group, but they are generally:

  • 23-39 years old in 2020,
  • Almost 80 million in number,
  • More racially diverse than prior generations,
  • Less well off financially,
  • More politically liberal,
  • Shaped by technology,
  • Best educated generation, and
  • Less tied to specific religious institutions, political parties, and marriage.

Based on these researched and published factors, trial lawyers often feel forced to tailor their litigation approach to deal with a generation that is “different” from its predecessors while also trying to bifurcate their presentation to also relate to more “traditional” jurors.  This attempt to be all things to what we presume are varying groups leads to a disjointed presentation that offends, not accommodates, the target audience(s).

Millennials as Jurors

Going through the internet and papers discussing millennials as jurors, you can compile a list of contradictions a mile long.  But you can also begin to see some patterns. Millennials can be:

  • Tough on personal injury plaintiffs,
  • Tough on corporations,
  • Less likely to blindly follow experts,
  • More likely to do independent research on the internet, and
  • More likely to trust themselves to find the proper answer.

All of this is good information, but does it really make these young jurors some type of aberration that is distinct from other groups?

The basic driving factor of these traits is the advancement of technology. In the last few decades, technology has provided access to unlimited information. A Google search can provide anyone with (someone’s version of) an answer.  Someone seeking a solid reliable answer can swipe through a handful of websites and develop a basic understanding of a new topic.  Unlike in the past, they do not have to exclusively rely on the teacher or their boss to provide knowledge.  Gone are the Saturday afternoon trips to the library to work on a research paper.  A few clicks and a good printer puts the information in your hands.  Importantly, technology provides immediate access to multiple viewpoints that allows the seeker to quickly formulate her own conclusion.  Learning is no longer restricted to one source of information.

Google and widespread access to the internet exploded at or near the year 2000. The iPhone hit our briefcases (or pockets) around 2007.  So millennials (now aged 23-39) have spent either their entire life or the majority of their post-high school life with easy access to information and answers. This access was not available to the rest of us until later in life, but it is almost certain that most all 40-70 year olds have learned to take advantage of these developments.

Another factor is the availability of “legal information” through crime dramas such as CSI and Law and Order that rose to prominence beginning around 2000.  Add in the reality-based crime shows like Dateline, the First 48, and Forensic Investigators and you have twenty-four-hour access to some version of our legal system.  While these genres focus on criminal trials, they affect how jurors of all ages see their role in a real trial.  These shows, whether reality-based or scripted, start with a base incident, proceed through an investigation with numerous twists and turns, and resolve with a cop, a lawyer, or a jury assessing the information and resolving the issue.  This reinforces the idea of jurors (of any age) being able to look up competing viewpoints and come to their own conclusions.

Millennials as Jurors

I am confident that millennial jurors trust themselves to find the answer to most any issue.  Verdicts are no different.  A young juror raised on access to competing data with the freedom to reach their own conclusions will likely not respond well to an expert and later an attorney telling them there is only one answer and they must concede this point and do as told.  Instead, they crave the presentation of information with a path towards the “correct answer.” 

This approach can and will work across multiple generations.  Older jurors (40-70) have now spent a significant portion of their lives with access to the very information and entertainment that has shaped millennials.  They also have access to conflicting information on daily topics that they often reconcile with their own research.  A well thought out, respectful presentation can and will be successful across generations. I offer that the potential success of this approach is not limited to millennials.  Setting forth a well-organized case that leads to one answer requires significant planning and organization.  The order of your witnesses is important, but how they provide their information is vital.  They must be organized, genuine in their knowledge, and human in their delivery.  While millennials (and other jurors) may distrust organizations and experts, they will respect and acknowledge the humanization of each.

Putting This Information to Work

People regularly complain about the short attention span of millennials.  And they are correct.  But everyone’s attention span is shorter today.  We live in a soundbite world where people of all ages make up their minds quickly and often decisively.  Nobody likes to have their time wasted with seemingly unnecessary presentations of volumes of (boring) evidence.  The internet tells us that millennials respond best to engaging short narratives.  Who doesn’t?  The internet and our experience also tells us to guide millennials in understanding the information and evaluating the information so they can draw their own conclusions.  It is hard to see how this approach would offend anybody of any age.  We are a nation of diverse aged multitaskers thinking of a hundred different things.  Regardless of our age, we now want to receive, process, decide, and move on.

Our resources tell us that younger jurors like and expect technology.  They are correct.  They have grown up with technology in their hands and respond to it.  But so do jurors of all ages.  They are used to seeing graphics on television and the internet.  People of all generations react differently to different presentations.  A presentation that involves visuals in addition to auditory components will cover all bases.  Also, it does not require bells and whistles and lasers to impress and keep a jury’s attention.  Timelines, maps of relationships (of evidence and/or people), statistics and charts can all work to capture and keep attention.  Regardless, the overwhelming percentage of jurors of any age will appreciate and benefit from an organized, well thought out presentation with technology incorporated.

Developing Themes

The development of themes will obviously depend greatly on your particular facts.  But there are millennial characteristics that will benefit any jury room, regardless of how others present might think.  Millennials have a strong connection to basic senses of justice and fairness.  They seem to have a real sense of ensuring everyone gets a fair trial.  The humanizing of your client, regardless of whether you represent the plaintiff, defendant, or prosecution will be appreciated. 

Experience tells us that personal/corporate responsibility is an important theme for millennials, and both sides of a lawsuit should appreciate and respect that.  There certainly seems to be emerging trends/data to support the idea that a party not behaving responsibly or honorably will be punished.  While that may be particularly scary for defendants, it also applies to plaintiffs in many types of cases.  These themes may have been tailored to millennials, but they will not offend others.  Lawyers must work hard to develop this respect, but such approach should and will apply to all generations.  All people, not just young ones, find it easier to identify and support someone they identify with.  Avoiding juror anger and frustration with your client is a universal winning strategy.

Conclusion

There are lots of ideas circulating about this topic.  None are perfect. There are certainly ideas that contradict this article and provide valuable information.  Every person is unique and you can never account for all differences, You can, however, educate yourself on universal approaches that work on the greatest level.  I am convinced that millennials are not that different from others.  They are different than we were when we were 25, but changes in technology and entertainment have affected us all.  I suspect we are more alike than different, and that the lessons attributed to millennials apply to all generations and give us the opportunity to modify our approach to trials in a very real and positive way.




The Binding Power of a Testifying Corporate Representative

By Slater Elza

In a lawsuit, the governing rules of procedure allow your opponent to essentially take your company’s deposition.  Opposing counsel is permitted to give your company a list of topics and require the company to designate one or more persons who will provide sworn testimony on each of those topics. This representative represents the corporation, and the corporation is bound by such testimony.

A company will have difficulty avoiding the sworn testimony of its designated corporate representative. When a corporation produces an employee, it represents that the employee has the authority to speak on behalf of the corporation with respect to the areas within the notice of deposition. The corporate representative testifies as a representative of the entity, his answers bind the entity, and he is responsible for providing all the relevant information known or reasonably available to the entity. This type of deposition is not used to discover the witness’s personal knowledge. Instead, the representative presents the entity’s “positions” in the lawsuit.

Such witness can testify as to the entity’s legal and factual positions. Likewise, it is appropriate for the corporate representative to be asked about the company’s contentions and subjective beliefs and opinions related to the lawsuit. In fact, the representative may be asked to clarify the basis for or scope of the company’s legal claims. To hold otherwise would lead to a result where entities could avoid ever being asked about their positions and contentions in a lawsuit.

A corporate representative’s testimony also constitutes binding judicial admissions on behalf of the company. Admissions during these depositions which are deliberate, clear, and unequivocal constitute binding judicial admissions. Once such testimony is given, the company cannot later contradict such testimony. Because of the binding power of a corporate representative, it is imperative that companies choose the best person to testify and spend the time and resources necessary to prepare them for the deposition.  The stakes are far too high to risk sabotaging your lawsuit by choosing the wrong representative or not properly preparing them.

 




Concerns When Representing a Governmental Entity

By Slater Elza

An attorney representing governmental entities has an ethical obligation to know and understand who it is they represent.  Companies and governmental entities are buildings and office furniture and inventory.  They cannot communicate except through their governing boards, management and employees.  So we have to figure out who we represent and make sure the client and its interests always come first.

Who Is My Client?

The first sentence of Rule 1.12 of the Texas Disciplinary Rules of Professional Conduct clearly states that when you represent an organization, the attorney’s client is the entity itself.  This concept applies equally to governmental entities and private corporations.  Because the attorney represents the entity, the Rule also makes it clear that the attorney does not represent the individual members, officers, or employees of the entity.  This seemingly straight forward concept is sometimes difficult for board members, employees, or other client representatives to understand.  Accordingly, it should be made clear to the city council (or school board) and the city (school) staff at the beginning of representation (and as the representation continues) that the attorney only represents the entity.  This will help avoid problems and confusion in the representation.

This concept is markedly more difficult to successfully navigate than when representing private companies,  When representing private companies, legal counsel often deals with (or has regular access to) the decision maker(s) who can provide real-time answers and direction.  With a governmental entity, the actual decision makers (who may or may not be the problem) are a city council or school district that meets infrequently.  This can magnify ethical issues that might be less difficult with private companies. 

Who Do I Take Direction From and Report To?

Disciplinary Rule 1.12 recognizes that when representing an entity, the entity can only communicate with the attorney through its agents.  Of course, a governmental entity may not only have a governing board and city manager or superintendent but a number of other individuals who may or may not be responsible for communicating with the attorney on behalf of the entity.  So, the Rule limits who the attorney reports to and takes direction from to those who are “duly authorized” by the entity.  This usually means the duly elected board and city manager or superintendent.  But at times it may also encompass other positions such as the chief of police, business office manager, fire chief, department heads, principals or anyone who is authorized to act on behalf of the entity.  It is not uncommon for a board member to reach out to the attorney.  It is advisable that any governmental entity develop a protocol on exactly who can contact the attorney to avoid confusion (and problems) in the future.

Logically, this qualification requires the attorney to answer additional questions in making sure they are representing the entity, and not the personal interests of some official or employee.  Has this person been duly authorized to communicate with the attorney on behalf of the entity?  If so, how were they authorized?  Was it by action of the board through an adopted policy, a resolution or ordinance?  Was it by authority granted to them by state statute or other law?   For example, the city manager of a home-rule municipality who contacts the attorney about a $5,000.00 contract could well be a “duly authorized” representative of the city.  However, working with a employee on a matter that has not been authorized can create significant potential problems.

As a practical matter, this can also be addressed in the engagement letter between outside legal counsel and the entity.  The engagement letter should make it clear who is authorized to communicate with the attorney on a routine basis on behalf of the entity.  Additionally, when I am contacted by someone other than my regular contact, I make clear that I will likely inform the governing board about the substance of any conversation.  This insures there are no mistaken understandings about who I represent (and who I do not represent).