Trial Magazine

Eighty-two million people born between 1982 and 2002—the millennial generation—are now 15 to 35.¹ In the next few decades, their influence on our civil justice system will grow exponentially. And as millennials have reached maturity, they have become the subject of in-depth scrutiny: Sociologists and marketing professionals seek to understand the motivations and core values of this increasingly important demographic. So, too, should trial lawyers.  

Why? Professor Norman Ryder, who pioneered the study of generational cohorts, theorized that people born over a contiguous time period are influenced by the common events that they experience during their critical formative years, which play an important role in defining the generation’s core values.² Most psychologists agree that these values—­attitudes toward permissiveness, tolerance, and gender roles—are ­carried through life largely unchanged. For example, when people reach “economic adulthood,” they have created lifelong attitudes toward jobs, money, and savings. These core values are highly influential in people’s decision-making, including when they serve as judges and jurors.³

Who Are Millennials? 

A predicate for understanding the role of millennials in the civil justice system is to examine how they differ from their predecessors.⁴ Dubbed “Generation X,” the 75 million Americans born between 1961 and 1981 experienced high divorce rates, high crime rates, dwindling education, cuts in social programs under the Reagan administration, and declining wages.⁵

As a result, Gen Xers lost trust in the government and the courts, becoming more conservative than their baby boomer parents and particularly skeptical of the previous generation’s anti-corporate rhetoric.⁶ Self-reliance became this generation’s hallmark, and personal responsibility became the most important theme at the courthouse—meaning they quickly fell in line with tort reform rhetoric. 

Millennials self-identify very differently. They have a confident, positive attitude; are generally better educated; and are well-versed in technology. Regarded as heavily sheltered due to sweeping youth safety movements during their childhoods, millennials have been raised with intense pressure to study hard, avoid personal risks, and excel. They accept the idea that social rules are important, making them ­cooperative team players, and they respect the authority of those making and imposing rules.⁷ Politically, millennials self-identify as more progressive than both baby boomers and Gen Xers about moral, societal, and family values, and they are more accepting of ethnic, religious, and sexual diversity.⁸

Negative events that millennials­ experienced in their formative years—corporate corruption, the dot-com bust, high levels of unemployment, and heavy college debt—have all led to shrinking salaries and shrinking opportunities for millennials entering the workforce, making them the first generation in American history who will not achieve a better standard of living than their parents. 

In fact, many millennials struggle with achieving financial independence, residing longer with their parents and returning home after college. One result of this is continuing close relationships with their parents: Most millennials list their parents as the people they most admire, an important factor in cases involving damage to family relationships. Another result is the adverse attitudes that millennials have toward businesses and Wall Street.

Persuasion Techniques

How do you persuade millennials at trial? By paying attention to their core values and communication styles, trial attorneys can focus on creating and delivering a compelling trial story.

Hone in on the broken rule. More than any other generation, millennials are rule followers. When the defendant has broken a rule and proximately caused the plaintiff’s injuries, present the rule in detail—whether it’s a traffic law, safety standard, societal norm, or company policy. Show the rule in a demonstrative blowup, explain its purpose, and point out the various bad choices that the defendant made in violating the rule. In your closing argument, emphasize that the injury never would have occurred if the defendant had chosen to follow the rule.

Don’t bury the lead. Millennials enjoy stories but want the most important information quickly. Prime your message by using the “who, what, when, where, and why” of newspaper journalism. Forensic psychologists have found that each juror forms his or her own trial story during the primacy portion of the trial—voir dire, opening statement, and the first witness. All evidence that follows is filtered through the prism of that trial story. So sequence your presentations to tell your trial story successfully during primacy, with the goal of having each juror adopt your trial story as his or her own before the first witness leaves the stand. To achieve this with millennial jurors, you should show and tell your trial story clearly—and simultaneously support your allegations with physical, tangible evidence. 

Show and tell. Words are not enough. Millennials text friends who are sitting at the same table, so you cannot expect to grab their attention by simply talking at them. Support your liability allegations with “hard evidence”: documents or photographs that jurors can examine and review early in the trial. After initially grabbing their attention, it is productive to begin a time line that will evolve with the case, providing jurors with a constant context for the developing trial story as well as an easy source of review. Time lines are excellent tools for not only showing and telling your story but also for involving jurors—like hard evidence, jurors can see and interpret time lines with their own eyes. 

Take responsibility. Personal responsibility is the universal theme in civil cases, so invite jurors to ­carefully examine the plaintiff’s conduct. For example, perhaps the plaintiff had one glass of white wine at lunch, seven hours before her car was rear-ended by the defendant. Obviously, the wine did not play a role in her being struck while stopped at a red light—but it is important to tell the jurors that the plaintiff fully accepts personal responsibility for her conduct before the collision, and to invite their close examination of her actions.

However, remind them to also ­carefully examine the conduct of the defendant, who refuses to accept responsibility or acknowledge wrongdoing­, and tell them that it is their job to impose such personal responsibility for the ­collision. Personal responsibility is a core value of both Gen X and millennials, so make it one of your central themes. If you fail to, the defense will quickly embrace it as its theme.

Seek empathy, not sympathy. Many millennials face financial problems, unemployment, a lack of health insurance, and overwhelming debt. A play for jurors’ sympathy is never a good idea, but it will assuredly fail with millennial jurors. Don’t characterize the plaintiff as a victim, and seek empathy rather than sympathy. 

Show millennial jurors that the plaintiff is doing the best that he or she can, despite the injuries caused by the defendant’s conduct. Be prepared to answer two questions: First, what good purpose will a damages award serve? Second, what is the plaintiff doing to rehabilitate? Millennials can readily identify with a plaintiff experiencing difficulty because of others’ conduct, despite efforts to make a full recovery. This is particularly true if the wrongdoer who caused the plaintiff’s problems violated a rule or standard. 

A Cross-Generational Story 

Although millennials are serving on juries in increasing numbers, we cannot solely direct our efforts to that generation. To be successful at trial, you must create a story that has cross-generational impact. 

The best way to do this is through focus groups. Conduct millennial-only focus groups first. Listen to the language that they use to describe and define your trial story; identify the metaphors, analogies, and rhetorical devices that resonate with them; and pay particular attention to how they receive and process the demonstrative evidence, time lines, and hot documents. Remember that words alone will not carry the trial story for them. 

Conduct separate focus groups with Gen Xers and baby boomers to find what resonates with them. After combining the best evidence for each group into your trial story, conduct another focus group with 18 members, consisting of six from each demographic. Present your case, and then divide the focus group members into separate groups by demographic for questions, discussion, and deliberations. Videotape each group’s deliberation to find out whether your trial story is resonating with them. If not, adjust accordingly. When you feel that you have devised a trial story that resonates with all three groups, present it to them jointly. Let them deliberate together and see how they interact as a combined jury made up of members from all three generations.

Generational cohorts provide an interesting guideline for developing and testing your trial story. Although each generation’s common experiences may lead to the development of identical core values, that does not mean they will think or decide alike. Their shared experience may influence their 
decision-making as a group, but their individual life experiences differ and ­preclude complete homogeneity. Trial attorneys who understand what ­motivates all three generations have a valuable communication tool.

Howard L. Nations is the founder of The Nations Law Firm in Houston. He can be reached at nations@howardnations.com.

Notes

1. Neil Howe & William Strauss, Millennials Rising: The Next Great Generation at 414 (Vintage 2000).
2. Norman B. Ryder, The Cohort Approach: Essays in the Measurement of Temporal Variations in Demographic Behavior (1980).
3. Id. 
4. Much of the information in this article comes from dozens of focus groups I have conducted over the past 20 years with millennials, baby boomers, and Gen Xers, as well as my experience preparing cases for trial.
5. Howe & Strauss, supra note 1 at 414; Elizabeth Foley, The Changing Face of Juries: Understanding Generation X, www.howardnations.com/juries_understanding-gen-x/. This definitive guideline on Gen X for trial lawyers was written by Elizabeth Foley of Zagnoli McEvoy Foley Ltd., in May 1999 and presented at AAJ’s 2000 Winter Convention.
6. Foley, supra note 5. 
7. Howe & Strauss, supra note 1 at 9–12.
8. Id. at 44–45.