The Net generation 'Digital natives' change the dynamic of how trial lawyers try cases and juries decide them

By Sylvia Hsieh

The Daily Record Newswire

The generation of jurors known as the "net generation" or "digital natives" -- those who were born in the digital age and know nothing of life before the Internet -- are changing the way trial lawyers try cases and the way juries decide them.

Some trial lawyers with old-school sensibilities are coming to terms with the fact that jurors of this generation are using mobile devices during trial and won't think twice about banging out a tweet about the trial or whipping out an iPhone to research an issue that comes up during a case, even when told not to by the trial judge.

"From a trial lawyer's standpoint, you have to assume jurors will be using the Internet to research your case, your law firm and your client," said Jill Huntley Taylor, a trial consultant at Dispute Dynamics Inc. in Philadelphia who spoke on the subject at the American Bar Association's annual conference in San Francisco.

In both real and mock trials, Jason Bloom, a trial consultant in Dallas, has encountered jurors who have done web searches to resolve a trial issue during deliberations.

"Jurors will get stuck on a question and someone will pull out an iPhone and Google it, and then use the information to sway other jurors," he said.

The presence of these younger jurors accustomed to having information at their fingertips is also shaping the way trial lawyers communicate with them.

Lawyers are relying more heavily on creating a visual image of their case and using digital tools to break the case down into simplified, bite-size portions they can spoon-feed to the jury.

More mobile

For people in the digital generation who routinely disseminate the most mundane information via cyberspace, why wouldn't they take to Twitter or Facebook to share their experience on jury duty?

Complaints about jurors over-sharing on social media are filling the inboxes of trial consultants, said Andrew Sheldon, a lawyer and psychotherapist who founded Sheldon Sinrich, a jury consulting firm in Atlanta.

In an example of the growing problem of jurors using mobile phones to opine on their jury experiences, Dawn Giebler Millner, a shareholder at Greenberg Traurig in Orlando, Fla., had a juror removed for tweeting during voir dire earlier this year.

Millner was defending an employer against a sexual molestation claim brought by a developmentally disabled women in a trial expected to last three to four weeks -- the kind of case in which a defense lawyer would not want jurors with an agenda.

Even though the judge had specifically admonished the jury panel, one juror tweeted from her mobile phone about how she really wanted to be on the jury.

Thanks to the 20-something woman Millner hired to research potential jurors during voir dire, the juror was removed for her tweets.

"I had a person in the courtroom who was very hooked into Twitter, Facebook and the other social networking sites. She's a young girl in her mid-20s. She's good with computers, but no more savvy than pretty much any 25-year-old," said Millner, who herself does not have a Facebook page and "has never twittered in my life."

Ironically, it was the first time she had hired a social media vetter for voir dire.

But it won't be the last time.

"It's something I am going to do whenever I have a lengthy voir dire, especially in cases that are high profile or may have social implications," Millner said.

Lawyers should also keep track of information about their case on the web that curious jurors are likely to search out.

"Know what's out there about your case and your client before, during and after trial," Taylor said.

Although courts usually issue only a general warning to jurors about not discussing a case, Sheldon suggests seeking a stronger warning, such as a checklist of websites each juror signs at the end of every day vowing not to use those sites to communicate about the case.

"This is considered pretty radical and extreme, but it would seem to take care of the issue," Sheldon said.

He added that when judges realize that a mistrial may be at stake, they are sometimes amenable to stronger warnings.

More visual

The digital generation has also changed the way lawyers communicate with jurors, who increasingly expect trial evidence to consist of easily digestible, visually pleasing sound bites à la CNN.

Lawyers like Joseph Ahmad, a plaintiffs' employment attorney in Houston, say that the net generation of jurors wants to see slick graphics that mimic the local news, with bold headlines and charts that quickly make a point.

"Younger jurors are not going to listen to you that long before they want to look at something. Assume they are not listening to you for more than a few seconds, because they are not," said Ahmad.

It used to be that a lawyer could hold a jury's attention for about 20 minutes before their interest faded, Sheldon said.

That window is down to about five minutes these days, he said.

In representing a plaintiff in a race discrimination case, Ahmad got right to the point in opening statements by playing a video of a manager referring to African-Americans as "coloreds" and describing how it made things easier when people stuck to their own kind.

"I viewed myself as having less than a minute-and-a-half to grab jurors. Otherwise I may lose them for the entire trial," Ahmad said.

The more visually attuned generation of jurors also requires that lawyers stop telling and start showing.

For example, in another employment case in which his client was accused of trade secret infringement, rather than describing how his client's invention differed from his former employer's product, Ahmad showed a graphic of the cross-section of both devices to give the jury a side-by-side comparison.

Ahmad even puts routine deposition testimony on a big screen that highlights key words and phrases, scrolling down as the witness speaks.

Millner, the employment defense attorney, said she used to worry about appearing too slick, especially in contrast to a less-resourced plaintiff's attorney.

"I used to be very nervous about looking too glitzy. That doesn't bother me anymore. This generation is used to and expects glitzy," she said.

Ahmad too used to worry that his use of high-tech tools would appear too slick and turn off older jurors, but not anymore.

"Whereas the older generation does not rely on technology as much, they at least appreciate it when they see it. And younger jurors expect it," he said.

Published: Tue, Nov 23, 2010

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