Your Life in Slackoisie Hands

At An Associates Mind, Keith Lee discusses a shift in the expectations of those nice people who get to decide whether a criminal defendants goes home or spends his life in prison. No, it’s not about libertarian tendencies, or love of freedom.  It’s not about the compulsive need for order and submission to the shield. If only it were that easy.

“If a generation is going to arrive in the jury box that is totally unused to sitting and listening but is using technology to gain the information it needs to form a judgment, that changes the whole orality tradition with which we are familiar.”

November 2008, Lord Chief Justice of Great Britain, Sir Igor Judge.

What do Millennial jurors wants? They want you to put on a show! Not just any show, but one that conforms to their attention span, their love of video; their inability to sit and pay attention, their inability to hear testimony and process it sufficiently to either understand its significant or question its gaping holes.  They want to be entertained.

Based on a post at Legal Skills Prof., Keith points out, correctly, that trials are, and always have been, theater. While the meat of the trial is testimony, the garnishes include everything we can muster to enhance the strength of our positions and diminish its weaknesses. He raised the “nerd defense” of putting eyeglasses on street thugs. It runs from dressing the hipster defendants in cardigan sweaters to having an alleged rapist sit next to a woman at counsel table. There is no denying the theatrics.

But then, that’s not the type of show Gen Y wants to see.

Droning on about the facts in front of a jury composed of mostly Millennials isn’t going to cut it. In an ideal world it would. Jurors would still still and be attentive, carefully weighing the arguments and evidence as it is presented. When you find such a place, call and let me know.

In the meantime, Millennials will be sitting in the jury box, twitching, unable to check the smart phones lest the judge catch and reprimand them. They probably resent being there. They’re looking for something to engage them and hold their interest. Something to make them forget where they are and capture their attention.

Despite our best efforts, droning on about the facts in front of the jury is the main event.  And don’t think for a second that we can’t see the jurors shifting about in their seats, desperate to get out of the box.  If someone accidently made the new twit sound in the courtroom, the box would explode and jurors would start having seizures.

The problem isn’t that we don’t know that the Slackoisie are sitting in those uncomfortable chairs. The problem is what to do about it.  And the problem is exacerbated for the criminal defendant, as we don’t control the case in chief, and often have no real idea how the prosecution intends to put its case before the jury until it happens.  Civil lawyers are always astounded by the fact that they get discovery that dwarfs by magnitude what is provided the criminal defense.  We go in, essentially, blind. It’s hard to prepare a video to counter the mystery of the prosecution’s case.

The easy answer is to smack the Millennials around, tell them this isn’t a television show (or is that already an archaic reference?) and the evidence upon which they will have to reach their verdict will be presented primarily by words. They may not like the idea of sitting around, passively listening, for days on end, but that’s the deal.  Suck it up.

But the better solution isn’t to be right, but effective. (h/t Bill Henderson)

The desires of the Slackoisie presents a huge advantage to the prosecution. They choose the case. They present the case in chief, and know how they’ve going to put their evidence in beforehand. They have the wherewithal and opportunity to create a show that appeals to the sensibilities of the Slackoisie, and the favors of the judge to allow them the latitude to do so.  As if they needed another advantage at trial.

The defense rarely has much of a case to present. Witnesses? If only. Experts? On the rare occasion the defendant can afford to retain one, it’s even rarer that the case calls for one.  We are left to poke holes, to point out inconsistencies, to exploit the mistakes when and where we find them. And until the words leave the prosecution witness’ mouth, we usually have no clue when the opportunity will present itself.

Prepare a video? Of what? Without witnesses, the only opportunity to use it is on cross, and no one ever really knows what will come out on cross beforehand. One errant word by a witness, or worse yet, one truthful word, and our whole preplanned attack collapses.  Planning is a wonderful thing, but it’s not as if we have any control over the other side’s witnesses.  If there’s anything that defines the criminal defense lawyer, it’s tolerance for ambiguity and the ability to shift gears on the fly.

The host of reasons why this won’t come easily is long, but none of it changes the desire of the jury to feed it information in the small and interesting bites demanded.  While it’s sad to say that droning on is what we do best, it’s usually all we’ve got.

As posited by Dr. Mary Noffsinger in her Texas Law Journal article, The Millennial Juror,

Verbally presented messages should be accompanied by demonstrative exhibits (e.g., photos, videos, illustrations), which foster improved attention, reduced boredom, enhanced memory, increased credibility, and entertainment value.

Speaking in “sound bites” and utilizing technology is more important than ever with Gen Y jurors, given their tendency to process information visually and rapidly and the likelihood that elaborate explanations and protracted arguments will make them bored and impatient. Adopting an interactive style helps to empower these digital natives as listeners and learners.

If true, and I believe it is, we’ve got a problem. Frankly, it’s unclear whether the nature of a criminal trial offers the defense any solution.

18 thoughts on “Your Life in Slackoisie Hands

  1. Onlooker

    Wow, that’s pathetic and sad, eh?

    And your job will be made all that much harder because all the cases on the TeeVee will have all those bells and whistles produced by the defense, and make real life look that much more boring by comparison. No matter how unrealistic it is.

    A new challenge for the defense lawyers of the world, no doubt.

  2. Onlooker

    Ha! That just might work. It would probably work on me, as I’m a big dog lover. (Even looking at that picture makes me uneasy)

    Better a bad man go free than an innocent dog die. Good slogan.

  3. Keith Lee

    I’m not sure if more/fancier technology is the answer anyway. I think the takeaway was really “entertainment.”

    Wallace said on Twitter yesterday that “Don’t think of it as a closing argument. Think of it as 20 minutes of stand-up, and nail every punchline.”

    Which I thought was a good analogy.

  4. SHG

    I suspect George was making a “funny,” given the absurdity of trying to reinvent the trial to suit Slackoisie sensibilities. The problem of using his joke as an analogy is twofold: First, you don’t get to closing until the 6 weeks of testimony are over. Second, as much as we might want to thrill and amuse the jurors on summation, it’s not always possible, especially if we want to touch on an issue or two in the case.

    Or we could just tap dance and hope that does the trick.

  5. DarkEFang

    As a potential Gen Y juror who would “sit still and be attentive, carefully weighing the arguments and evidence as it is presented,” why is it that nobody seems to want me on a jury? I’ve been called for jury duty three times, and been dismissed three times as soon as the attorneys glance at whatever information is provided on those bio sheets of the jury pool.

    FYI, the only info I recall giving the court is my name, age, address, employer, level of education and length of time at my present address.

  6. SHG

    Could it be your name?  Your Darth Maul tattoo? Your pierced frontal lobe?  How the heck should we know?

  7. DarkEFang

    It’s often been suggested that college graduates are automatically dismissed in most cases.

    I know that among my friends, predominantly 30s-ish college-educated professionals, the consensus is that none of us will ever get chosen for a jury. Some of us might be more enthused about jury duty if we thought we had a chance of actually being seated for a trial. Instead, jury duty is an utter waste of a day while work piles up at the office.

  8. SHG

    It’s all according to where you are. In NYC, for example, it’s possible to get a jury without a majority being college grads and at least a quarter with post-grad degrees. In the Bronx, it’s a bit hard to find a high school grad, no less a college grad.

    I like well-educated jurors, as they are capable of understanding more sophisticated arguments.  So, whoever “suggested” that college grads are automatically dismissed may not necessarily be right.

  9. Andrew

    But, does opposing counsel “like well-educated jurors?” I don’t know the rules on who gets removed from juries. Can opposing counsel have someone removed without cause? Would the prosecution typically prefer less-educated jurors in cases where your client would be better served by highly-educated jurors?

  10. SHG

    You only get a limited number of peremptory (without cause) challenges, so you’re forced to use them sparingly or find out that there’s someone really awful coming down the pike and have no peremptories left.  You can prefer lots of things, but you what you hope to accomplish is to get  jury that’s not awful rather than a jury you like.

  11. Jordan

    I think it’s more symptomatic of a larger problem. “Kids today” aren’t being brought up to engage in our society as citizens working for a greater good. They’re being raised as consumers – you’re on Earth get more Pokemon than the guy next to you.

    They’re taught to go to school in order to get a job to make money. The value of education is that it will get you a good job where you will make lots money, not that you will be able to contribute to society. Education is more a means to an end, rather than a vehicle to critically evaluate and reflect on important issues.

    As such, digesting and reflecting on critical information is a boring chore for young people. It’s as important as taking out the trash or making the bed.

    Part of me can’t blame them. We have moved away from real education and towards standardized testing – you study to learn how to take the test.

    On the other hand, television, video games, and the internet are easy. You don’t have to think. There is no test at the end. You don’t have to digest any critical information either, or reflect on it – everything is handed to you.

    Unless it’s exciting and easy like a TV show, sitting through a jury trial is yet another “chore”. Just like school, they’re forced to be here. TOo bad GenY has been trained that digesting and reflecting on complex information is a “chore.”

    “All this yadda yadda is great and all, but is it going to be on the test? No? Then who cares?”

    Anyway, nice piece. Though I think the older generation is partly to blame for this and how education has been turned more into a chore and a means to an end.

  12. Al

    I can’t relate at all. I was born in 1990, so I think that makes me Gen Y or millennial. (I’ve never quite understood where you draw the line between generations. My dad was born in 46 and my mom in 64, which, I think, makes them from different generations, just not relative to me. But I digress…) It might be because I have intelligent parents and went to private non-religious schools, but I’ve always learned for the sake of learning. I don’t think this is something you can attribute to “kids these days.” That’s just too easy, there have always been thoughtful people and not-so-thoughtful people. I guess you just have to hope you get a couple of thoughtful people on a jury, and that they have the ability and patience to make the not-so-thoughtful people think a little.

    And to DarkEFang: I’m only a high school grad, and I never get picked either. I don’t have tattoos or piercings, or criminal record, or anything you’d think would single me out as a bad juror. It’s rather disheartening being the one person in the room that wants to get on the jury and never getting the chance.

  13. SHG

    It’s a sterotype, which by definition means that it doesn’t apply to all. You, however, are the outlier rather than the norm, which speaks well of you and your parents.

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