“EVERY PICTURE TELLS A STORY DON’T IT”
”Maybe best known as a song title, the saying “every picture tells a story” is used when what has happened in a situation is perceived to be clear because of the way that someone or something looks as captured by a photograph. However, what every experienced trial attorney knows is that a single image may be used to create more than one narrative or storyline and that there are other factors that determine why individual jurors may interpret the image differently – what story THEY think it tells. Consequently, why being a Millennial may be a significant factor is of great interest to litigants and their counsel who have a story to tell.
The Story Model in Jury Decision Making
In his book “Jury Decision Making: The State of the Science,” Dennis Devine describes the “Story Model” as “the leading model in the juror decision-making literature.” The Story model “presumes that jurors make sense of evidence at trial by imposing a chronological narrative organization on it.” Two initial assumptions of the model are that jurors are “active information processors” and that “jurors rely heavily on their existing knowledge and beliefs in creating their stories, using them to fill in gaps in the evidence, resolve contradictions, and determine plausibility.” In doing so they will activate cognitive scripts and stereotypes they possess due to their diverse life experiences to help complete the story. According to Devine, the Story Model requires jurors to do three things:
- process the evidence and construct one or more alternative stories,
- learn the verdict categories and legal requirements of each decision alternative, and
- reach a decision by matching the preferred story with the most appropriate verdict category.
There is an additional very important assumption – jurors will use information from two sources in constructing their stories:
- case-specific information presented at trial and
- existing knowledge and beliefs.
Since trials usually involve competing/conflicting story lines, the question is whether jurors will adopt one side’s story over the other or create one of their own. The Story model contemplates these competing stories and identifies three criteria – coverage, coherence and uniqueness – for evaluating and choosing among the alternatives. Devine explains these criteria as follows:
Coverage is the extent to which a story can account for the various pieces of evidence presented at trial. It can be thought of in quantitative terms as the proportion of relevant facts that can be explained. A story that could explain nineteen out of twenty case “facts” would exhibit high coverage; a story that could only account for two of the twenty facts would display a low coverage. Coherence refers to a story’s logical resilience and is presumably a joint function of three elements: consistency, completeness, and plausibility. Consistency corresponds to freedom from internal contradiction; plausibility concerns the extent to which a story is in accord with a juror’s understanding of the way the world works; and completeness refers to whether a story has all its parts and leaves no gaps in the causal chain. In a nutshell, coverage and coherence boil down to whether a story accounts for the “facts” and makes sense, and they are used to evaluate stories in isolation. In contrast, uniqueness, is a function of the number of stories that satisfy some minimal threshold of coverage and coherence; it determines the confidence a juror has in any given story. To the extent that multiple acceptable stories exist, a juror’s confidence in any one story will be lower. Uniqueness is greatest when only one story provides good coverage and coherence.
Since each juror’s “existing knowledge and beliefs” are used to “fill in gaps in the evidence, resolve contradictions, and determine plausibility,” it is important we understand as much as possible about their existing knowledge and beliefs so that we can tailor presentations of evidence that makes our arguments – our story – the most plausible to them.
What Do We Really Know About Millennial Jurors?
There is an old expression that “A good lawyer knows the law; a great one knows the judge.” Unfortunately, if your case is going to be decided by a jury, your specific audience of “judges” may not be known to you until the day you start your trial. You may not even have a venire list or see the faces of potential jurors more than an hour or two before you are required to begin the jury de-selection process i.e. striking the potential jurors you believe are the least desirable. Consequently, getting to “know the judges” requires dedicated time and effort to understand the tendencies of who will most likely report for jury duty long before you enter the courtroom. Perhaps, that is why the jury consulting industry is a billion dollar business. However, most trials do not include jury consultants in the budget and you were hired for your own expertise and resourcefulness. Unfortunately, many lawyers have very poor metacognition (ability to evaluate and measure our own skills) and suffer from what has been called an “illusion of explanatory depth” i.e., the gap between what they know and what they think they know. So, what do you really know?
The first thing we know about Millennial jurors is that there a lot of them and there are going to be more of them percentage-wise for years to come. According to the National Center for State Courts, approximately 15 percent of the adult American population is summonsed to jury service each year in state and federal courts with an estimated 8 to 10 million citizens reporting for jury service. Census data shows that Millennials (Currently age 26-40) are the second-largest generation in the U.S. electorate after Baby Boomers. GenZs are close behind. If you are a Baby Boomer or older GenX, you probably know Millennials as your children, your children’s friends and classmates and more recently as your employees, associates or maybe even as a new partner in your law firm or member of your legal department. That said, do you understand what may make them a good or bad juror for your case? Do you understand the most effective way to present evidence so that they view your story favorably? Do you know the most effective way to examine a Millennial witness in front of a jury composed of a lot of other Millennials? There is a wealth of information available to study from which you may glean answers. At the risk of stereotyping, some of that is summarized in this paper. However, do not overlook a great resource most of you have – the ability to walk down the hall to consult and collaborate with the Millennials you thought were sharp enough to hire. Millennials should be part of your trial team from the outset. After all, they already walk, talk and act like a Millennial and will likely recognize nuances in behavior and speech of witnesses and potential jurors you may not and will otherwise make important observations that may make a difference.
What Surveys Say About Millennials
Millennials may be one of the most studied age groups ever. Deloitte has been publishing an annual Millennial Survey for 10 years and added GenZ’s to the 2021 survey.  Similarly, Pew Research Center has been studying the Millennial generation for more than a decade. Gallup has also contributed multiple frequently cited surveys. With all of this attention a reasonable question is “Are millennials really that different?” According to Gallup, “Yes – profoundly so.” But, how so?
Because Millennials are a notably large and diverse group, it would be a mistake to homogenize them. However, in the course of its research, Gallup has found that four themes collectively describe millennials: unattached, connected, unconstrained and idealistic.
Some of the reasons for use of these descriptive themes are that Millennials are waiting longer to get married, more likely to change jobs and are less likely than others to identify with particular religious affiliations or traditional political parties. Although they are less attached to organized religion, they generally identify more with spirituality. Millennials believe in human rights more than religion. In connecting with spirituality, they believe in the concept that all human beings are equal. They feel a deep sense of connection in helping each other regardless of gender, race, religion, or political affiliation.
Technology, particularly as a communication tool, is an intimate part of everyday life for Millennials. The technology they have grown up with at their fingertips provides them instant and constant access (connections) to their friends, entertainment and news. It has helped them gain a more global perspective and has impacted how they interact, shop and work. It is second nature for a Millennial to leverage the use of technology and large data sets to inform a majority of decisions. Often they then share their decisions on social networks and report their experiences online.
In contrast to previous generations, Millennials commonly approach change from inside existing institutions. They are more accepting of and value diversity and are pushing for change. This is important to lawyers and clients alike because their values and ideals may make them more inclined to “send a message” for companies to change their policies. Millennials are likely the jurors who would reject the argument “well, this is how everyone else does it” when used establish a standard of care. Instead, to institute industry wide changes that fit within their sense of values and beliefs, Millennials are more willing to “buck the trend”. Millennials want their leaders to be ethical. They are generally optimistic and look for work that fuels their sense of purpose and makes them feel important.
The Deloitte survey summarized some of the characteristics of Millennials and GenZs as follows:
Millennials and Gen Zs, on the whole, seem more persistent, more vocal, and more apt than others to question and even upset the status quo. These generations believe in the power of individuals to create change. Even though they want institutions to do more and aren’t hesitant to call for government intervention to fix what they can’t, they embrace personal responsibility. It’s evident in their approach to everything from the pandemic to social justice—an approach that has real ramifications for employers, retailers, and every other organization and institution.
Millennials are better educated than prior generations. Overall, they are more diverse than the generations that preceded them, with 44.2 percent being part of a minority race or ethnic group (that is, a group other than non-Hispanic, single-race white). They were old enough to experience and comprehend 9/11 and the aftermath. Since the internet debuted in 1991 and Smartphones came into existence in 1992, Millennials grew up in the information age. As a result, the way these individuals process, evaluate and retain information differs markedly from that of their elders. The reason this is relevant is because as part of the Story Model theory described above, jurors will use their personal experiences and background to “fill in the gaps” or to determine which narrative is more compelling. Given the inherent diversity in race, education, and socioeconomic consistent with Millennials, it is important to be able to understand their experiences to develop your story.
An Indeed article identified the following as 10 “Characteristics of the millennial generation:”
- Values meaningful motivation
- Challenges the hierarchy status-quo
- Places importance on relationships with superiors
- Intuitive knowledge of technology
- Open and adaptive to change
- Places importance on tasks rather than time
- Passion for learning
- Openly receptive to feedback and recognition
- Free-thinking and creative
- Values social interactions in the workplace
Millennials have suffered more than Boomers and GenZs from an economic standpoint due the recession, accumulation of educational debt and now a pandemic. In March 2021 CNBC/Harris surveyed “middle-aged” millennials aged 33 to 40. The results showed that 59% of those surveyed own their own home, while 28% rent and 12% live with family members. More than half (56%) said they bought their home more than five years ago. Credit card debt and job instability were among the top reasons respondents said they don’t own a home, with 50% of respondents saying it is because they did not have enough in savings, 31% saying housing is too expensive where they live and 29% saying they do not know where they want to live long term yet. This raises the concern that economic hardship has created a somewhat hostile attitude toward corporations and businesses which may fuel the Millennials’ willingness to award larger jury verdicts. Millennials are a huge consumer market. A 2020 consumer survey revealed among other things that:
- 73% of millennials are Amazon Prime members.
- 53% of millennials will pay 10% or more for socially responsible brands.
- 47% are more likely to purchase digitally native brands that begin in-store.
- 74% of millennials own either a Yeti, HydroFlask, or Contigo reusable water bottle.
- 47% of millennials buy second hand items for sustainability and affordability reasons.
- 63% of millennials who buy online prefer to make returns in-store, and then 76% of those who return stay and shop after making an in-store return.
- Nike is the favorite brand in multiple categories including activewear, outdoor apparel, outdoor footwear, fashion footwear and climbing, followed by Under Armour, The North Face, Adidas, Timberland, Vans, and Black Diamond.
Millennials and Social Media
According to a 2021 Pew Research Center Fact Sheet, 84 percent of US adults aged from 18 to 29 are active social media users. This number falls slightly to 81 percent for the 30- to 49-year-old age group and further to 73 percent for those aged from 50 to 64. US adults who are 65 years old and above use social media the least. Facebook is the most used digital platform used by Millennials. Instagram is in second place with 59% of Millennials actively using Instagram. YouTube statistics reveal that the platform reaches more viewers between the ages of 18 and 34 years old than any and all of the TV networks. According to Google, 44% of millennials check YouTube daily. Twitter is in the 4th position with 38% of millennials. In 5th place is Snapchat, a photo and video sharing app. As of the third quarter of 2021, Snapchat had 306 million daily active users worldwide. 65% of US internet users aged 15 to 29 use Snapchat. Millennials have been reported to spend about 3.8 hours each day on social media compared to 4.5 hours for GenZ. A major jury consulting firm has reported the Millennial daily social media usage as closer to 6 hours per day.
A study by GWI  revealed that the responding Millennials said the main reasons they use social media are to stay up-to-date with news and current events (36%) and/or to find funny and entertaining content (36%). Others mainly use social media to fill up their spare time (34%) or to stay in touch with what their friends are doing (32%).
Implications of the Survey Results in the Context of Jury Trials
Some questions about the under-40 potential jurors that naturally follow are:
- How the existing knowledge and beliefs of Millennials may be used to “fill in gaps in the evidence, resolve contradictions, and determine plausibility” in accordance with the Story Model and
- How to account for it when making decisions about case evaluations, trial strategy and jury selection?
Obviously, you cannot answer these questions – particularly the second – in isolation. Millennials may now be your largest block of jurors, but there will likely still be a large number of Boomers and GenXers in the pool and the ultimate goal is for them to agree on a story favorable to your side of the case. What, if any, obstacles may the generational differences present? Maybe not as much as you may think, but at least one author has concluded that the generational gap between Baby Boomers and Millennials is one of the biggest reasons for intergenerational disconnect. Based on her analysis, much of the generational conflict is rooted in their differing communication methods and styles. Baby Boomers were born in a time where they had to wait for things. The Millennial generation has always lived at a time where things are available instantaneously. According to her research and that of others, Baby Boomers prefer to communicate face to face, over email, and via telephone. Millennials also prefer face to face communication over any other method, but it is not used most often because of time and planning restraints. As a consequence, Millennials do so much more over social media networking sites and text messaging through their smartphones. They also like to communicate over text or internet because it allows them to have more control over their interactions than if the interaction was over the phone or face-to-face Baby Boomers reportedly rarely resort to using instant messaging for their interpersonal communication needs.
Research has revealed that Millennials like to communicate over text or internet because it allows them to have more control over their interactions than if the interaction was over the phone or face-to-face. Millennials feel that Baby Boomers over-explain and overuse face-to-face meetings, which they believe can take vital time from other parts of their day. Baby Boomers on the other hand, believe Millennials over use email and texting when it would be more effective to communicate over the phone or meet in person. Overall, all generations believe in the importance and benefits of face-to-face communication, but they have trouble in finding balance between the two.
What Jury Consultants Say About Millennials as Jurors
There has been a significant amount of study devoted to trying to identify characteristics of Millennials as jurors. Using data obtained from a large proprietary database that includes mock jurors from civil mock trial research projects collected in various cities nationwide from January 2013 to October 2017, researchers at the University of Nebraska-Lincoln collaborated with Trial Partners, Inc. and presented the following findings under the title “The Damage Report: Assessing Millennials’ Views of Businesses” at the American Society of Trial Consultants 37th Annual Conference in 2018. Here are their reported findings and recommendations:
- Millennials view large businesses as more likely to lie to win a lawsuit compared to Gen X and Baby Boomers. Those representing a corporate defendant should spend more time at trial establishing the trustworthiness of their client and its representatives to combat this potential bias. Further research is needed to determine if this is a successful strategy.
- Millennials are also more likely to endorse the belief that businesses should have to prove that they did nothing wrong if sued. To address this, those representing corporate defendants should reiterate that the Plaintiff holds the burden of proof and the existence of a lawsuit is not prima facie evidence of wrongdoing.
- Millennials view a role of juries as sending a message to businesses to improve their behavior. Those representing the Plaintiff against a corporate defendant may benefit from using this as a case theme to appeal to Millennial jurors. Those representing a corporate defendant should identify and combat this bias in voir dire (e.g., by establishing a basis for a cause challenge), during trial (e.g., educating jurors about their role and expectations), and prior to deliberations (e.g., reigning in Millennials’ pro-punitive attitudes).
- Despite this view, Millennials did not view large lawsuit awards as the best way to compel businesses to do the right thing to a greater extent than older jurors. Millennials may favor other forms of encouraging businesses to do the right thing (e.g., government regulations, a ‘carrot’ instead of a ‘stick’ approach). Further investigation is needed to help explain these seemingly contradictory viewpoints.
- Contrary to stereotypes (e.g., Millennials value equality and fairness), Millennials and Gen X were more likely to endorse the view that legality equates to fairness in business. Millennials, who grew up in a world with more strict rules (e.g., more rigid airport security post-9/11), may view legal rules and regulations as a proxy for fairness. Further examination is necessary to parse and understand the factors that drive this seemingly tolerant view of corporate behavior.
Representatives of DecisionQuest addressed perceptions of Millennials in a webinar entitled “Myths and Misconceptions Regarding Millennials.” The following are some of the points DecisionQuest made:
- Millennials are “definitely not” slackers. More of them (59%) say competition is “what gets them up in the morning” than do Baby Boomers (50%). 58% say they compare their performance with their peers, compared to 48% for other generations. 37% of Millennials say they don’t trust their peers’ input at work, compared to an average of 26% for other generations.
- In making verdict decisions, many Millennial jurors consider Safety one of the most important factors. A reported 81% “strongly agree” that a manufacturer has a duty to make its products 100% safe for all consumers.
- 46% “strongly agree” and 42% “somewhat agree” that “when it comes to safety, companies should be held to a higher standard than what government regulations require.
- Only 21% “strongly agree” but 50% “somewhat agree” that “most big companies put profits ahead of concern for people’s safety.
- 0% “strongly agree” and only 13% “somewhat agree” in lawsuits involving fatal accidents or serious injury that “a corporate defendant should pay money to a deceased or injured plaintiff if there is even the slightest chance they had something to do with the accident, because they can afford to pay.”
- Millennial jurors have high expectations for the use of technology to communicate and to aid decision making.
- Millennials expect more caring, fairness and empathy – and the hard data
- Millennials say they want transparency/integrity/honesty/green/caring/fairness/empathy and don’t want to work for mean people.
- The following most strongly drive Millennial’s damage award opinions: anger/desire to punish; concern for safety; limited ability to determine value; anti-lawsuit opinions; perceived knowledge and power of parties
- Reasons why Millennials punish:
- Failure to admit errors (responsibility)
- Failure to express sympathy and concern for the plaintiff (remorse)
- Counsel or witnesses are insensitive or rude at trial (belittle or offend)
- Counsel or witness violate local values/mores (integrity)
- Failure to address pre-existing negative beliefs, attitudes, and opinions (transparency)
- Emphasis on a legalistic defense (value)
- Defendant appears to have much more knowledge and control than the Plaintiff (fairness)
- Defendant appears uninformed about industry or government standards. (ignorance)
- Compliance with standards as a reason for not doing more. (caring)
Millennial Learning Styles
Understanding differences in learning style of the jurors is important to tailoring your presentation to the jury. As recently observed by one jury consultant, at least one researcher has concluded that Millennials have shorter attention spans and need to experience change in the visual and auditory components of a presentation to maintain interest. Thus, attorneys need to incorporate variety in their trial presentations and make them more abbreviated and to the point. Millennials value a piece of information for its relevance, both to their lives and values and the key issues in the case. Providing the rationale behind your client’s policies and practices increases the likelihood a Millennial juror will respond positively. Consequently, making the logical structure of the case theory clear to millennial jurors deserves focus. A Trial is not consistent with this world Millennial jurors are used to because they cannot instantaneously verify what is being said on the internet. They may not get the clarity on an issue that they need fast enough. Consequently, it may take more effort to walk jurors through precisely what the issues are. However, it is important not to come across as condescending in doing so. Millennials want to relate to, understand, and like the person who is teaching them. Thus, trial counsel need to critically evaluate their “courtroom personality.” Practice your presentations to reduce the chances non-verbal communication may annoy or frustrate the jury.
Test Your Knowledge
Based on what you believe to be the characteristics of Millennial jurors which of the following statements do you believe are generally true or false:
- Younger jurors are no more or less pro-plaintiff or pro-defense leaning than older generations.
- Age is not a big factor in verdict decisions.
- Younger jurors are much more cynical than older jurors.
- Younger jurors are more likely to agree that it’s “common, not unusual, for companies to put profits before be honest and fair.”
- Jurors age 50 and above likely agree that it’s common not usual for companies to put profits before being honest and fair.
- The majority of younger jurors agree that “it’s normal and just business, not wrong or unethical, for companies to cover up wrongdoing or bad information that would hurt the company if the public found out about it.”
- The majority of older jurors agree that “it’s normal and just business, not wrong or unethical, for companies to cover up wrongdoing or bad information that would hurt the company if the public found out about it.”
- Younger jurors are slower than older jurors to believe that wrongdoing happens.
- Younger jurors are slower to accept wrongdoing as an inevitable reality without being shocked or upset by it.
- Younger jurors are much more likely to agree that it’s common” for drivers to drive distracted.
- Younger jurors are four times more likely than older jurors to find distracted driving “unforgivable” than older jurors.
- Younger jurors are much less likely to believe that “the minimum government safety standards are safe enough.”
- Younger jurors are more likely to agree that “punitive damages are helpful in forcing companies to make safer decisions.”
- Younger jurors are more likely than older jurors to agree that “any customer who uses a product without reading the instructions first is being foolish or being irresponsible.”
- Younger jurors are more likely than older jurors to “always follow a contract I sign, even if it turned out to be unfair or a bad deal.”
- Younger jurors are more trusting and much harder to convince that a defendant did something wrong but much more shocked and agree when they were convinced.
- Older jurors are easier to convince than younger jurors that a plaintiff or defendant did something selfish or foolish, but are less shocked, upset and willing to punish.
- Younger jurors tend to be more jaded on business and corporate responsibility issues.
- Younger jurors’ political leanings don’t tell you much about their attitude about non-politicized issues like safety or at-will employment.
- An older juror is more likely than a younger juror to agree that “losing a job is not that big a deal, someone who is willing to work hard can easily find another job.”
- The majority of younger jurors agree that “companies are legally allowed to fire at-will employees at any time for any reason.”
- The majority of older jurors agree that “companies are legally allowed to fire at-will employees at any time for any reason.”
- Younger jurors are much more pro-plaintiff and motivated when a culturally or pollical progressive issue like raise is injected into a case.
- Younger jurors are not as quick as older jurors to justify cold hearted business decisions.
- The majority of younger jurors agree that “it’s just normal business, not wrong, for companies to try to pressure employees recovering on medical leave to come back to work sooner.”
- A juror in their 30’s is more likely than a juror in their 70’s to expect employers to document an employee’s performance, struggles, write-ups and warnings.
- To a 30 year old, an accusation without a text message or email documenting it probably didn’t happen.
 Devine, D. J. (2012). Jury decision making: The state of the science. New York University Press. (p. 29, 185)
 Id. p. 26
 Id. p. 27
 Id. p.187
 Id. p. 27
 Id. pp. 27-28
 Rozenblit, L. and Keil, F. Cogn Sci. 2002 September 1; 26(5): 521–562; https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3062901/pdf/nihms268518.pdf
 Pew Research Center decided in 2018 to use 1981- 1996 as the birth year range for Millennials. https://www.pewresearch.org/fact-tank/2019/01/17/where-millennials-end-and-generation-z-begins/
 Dimock, M., Defining Generations: Where Millennials End and Generation Z Begins, PEW RSCH.CTR. (Jan. 17, 2019), https://www.pewresearch.org/fact tank/2019/01/17/where millennials-end-and-generation-z-begins/ ; https://www.pewresearch.org/social-trends/2019/01/17/generation-z-looks-a-lot-like-millennials-on-key-social-and-political-issues/
 How Millennials Want to Work and Live” Gallup (2016) https://www.gallup.com/workplace/236477/millennials-work-life.aspx ; Things Gen Z and Millennials Expect From Their Workplace, https://www.gallup.com/workplace/336275/things-gen-millennials-expect-workplace.aspx
 Id. How Millennials Want to Work and Live (p. 2)
 Collins, Sean, Why the Covid-19 economy is particularly devastating to millennials, in 14 charts (May 5, 2020); https://www.vox.com/2020/5/5/21222759/covid-19-recession-millennials-coronavirus-economic-impact-charts
 Downs, Hannah (2019) “Bridging the Gap: How the Generations Communicate,” Concordia Journal of Communication Research: Vol. 6 , Article 6
 O’Toole, T. M., Persuading a New Generation of Millennial Jurors (June 19, 2021) https://advancedrep.com/persuading-a-new-generation-of-millennial-jurors/