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Stanley D. Curbo Senior Litigation Consultant

Boomers, X’ers, and Y’ers In The Jury Box: Persuasive Communication Across Four Levels of Juror Decision-Making

• Facts/Concepts/Science/Story

• Attorney/Witness Exchange

• Conduct & Character

• Life Experiences/Attitudes/Beliefs WHICH WELLS GET THE MOST BUCKET TIME?

• Life Experiences/Attitudes/Beliefs

• Conduct & Character

• Attorney/Witness Exchange

• Facts/Concepts/Science/Story Communication and Persuasion Communication:

the giving (and exchanging) of information; telling the story; the delivery of information/ideas.

Persuasion:

influencing to believe; winning over. Communicating to Persuade:

telling the story in a way that wins over the mind of the receiver/juror. Persuasive Communication

Generation Individual Factors Cognition Cognition Emotions Emotions Beliefs Beliefs

Attitudes Attitudes

Experiences Experiences

Expectations Channel of Expectations Communication SENDER ENCODE MESSAGE DECODE RECEIVER

Change in attitude, belief, FEEDBACK behavior Branding, Slogans, Tag Lines Generation “Me” The Next Generation is…

a group of “adultescents”

a bunch of Twitter-addicted slugs with obese egos and no work ethic

entitled but incompetent individuals What About Personal Responsibility?

You should: Bail me out Pay my mortgage Pay me for my clunker Pay my health care Tax someone else An Angry Society

The Tea Party

Ivory Tower Elites The Hollywood Crowd A Negative Corporate Perception A Stacked Deck?

Jurors identify with the plaintiff

People naturally feel sympathy and want to help

People want to find a cause for a tragedy Boomers, X’ers, and Y’ers In The Jury Box: Persuasive Communication Across Generations Jury Pool - 1995

Seniors Baby Boomers Generations X & Y 1927-1945 1946 -1964 1965 -1995

1920 1930 1940 1950 1960 1970 1980 1990 2000 United States Jury Pool - 2012 Generations X & Y 1965-1995

Baby Boomers 1946-1964 Seniors 1927-1945

1920 1930 1940 1950 1960 1970 1980 1990 2000 Generations in the United States

Baby Boomers Generation Y Born 1946-1964 Born 1982-1995 80 million 76 million Born 1965-1981 47 million

1965 1966 1981 1982 1996 1940 1950 1960 1970 1980 1990 2000

= approaching 60% of the population Gen. X & Y Jurors in the Eastern District

Beaumont Division Gen. X & Y Jurors in the Eastern District

Lufkin Division Gen. X & Y Jurors in the Eastern District

Marshall Division Gen. X & Y Jurors in the Eastern District

Sherman Division

Gen. X & Y Jurors in the Eastern District

Texarkana Division

Gen. X & Y Jurors in the Eastern District

Tyler Division

Gen. X & Y Jurors in the Eastern District

Beaumont Division Lufkin Division

Marshall Division

Sherman Division

Texarkana Division Tyler Division To what generation do you belong? Blockbuster Movies by Generation

Generation Y

Baby Boomers

Generation X Childhood Toys by Generation

Baby Boomers

Generation X

Generation Y Star Athletes by Generation

Generation Y

Generation X

Baby Boomers

Each generation goes further than the generation preceding it because it stands on the shoulders of that generation. ~ The Impact of Generation

Generational Profile Boomers, X’ers, and Y’ers In The Jury Box: Persuasive Communication Across Generations Generation X’s Early Experiences

Vietnam HIV/AIDS Rise of the War Ends Internet

Cold War Personal Y2K Ends Computer

Economic Desert Crises Storm

1970s 1980s 1990s 2000s Generation X (Ages 31-47) Alienated/Loners Independent Resilient

Overeducated Entrepreneurial

Underachieving Work/Home balance

Apathetic Ambivalent

Cynical Realistic/skeptical Boomers, X’ers, and Y’ers In The Jury Box: Persuasive Communication Across Generations

Generation Y’s Early Experiences

Y2K Rise of the 9/11 Internet

School Middle Violence East Wars Corporate Scandals Generation Y (Ages 18-30) Naïve Optimistic

Hyper-educated Fast multi-taskers Resourceful

Whiny Peter Pans Nurtured Un(der)employed

Demanding Self-confident

Poor communicators Socially connected Distractible

Generational Profiles Baby Boomers Generation X Generation Y (ages 47-65) (ages 30-46) (ages 18-29) Cleaver family Have “helicopter” “Latchkey” kids ideal parents Educated Highly educated Hyper educated

Company loyalty Team loyalty Network loyalty Political Political activism Political liberalism skepticism Respect authority Prove authority I am authority Departed from Pragmatic about Passionate but religion religion unaffiliated Tech-challenged Tech savvy Digital natives Boomers, X’ers, and Y’ers In The Jury Box: Persuasive Communication Across Generations When You Communicate Generation Generation Cognition Cognition Emotions Emotions Beliefs Beliefs Attitudes Attitudes Experiences Experiences Expectations Expectations

Channel of Clients Communication Colleagues YOU MESSAGE Counsel Experts Vendors Office Staff Judge/Jury WITNESSES When Your Witness Communicates Generation Generation Cognition Cognition Emotions Emotions Beliefs Beliefs Attitudes Attitudes Experiences Experiences Expectations Expectations

Channel of YOU Communicatio WITNESS MESSAGEn Counsel Judge Jury A Generational Blender

Communication Breakdown

Channel of Communication

SENDER MESSAGE RECEIVER

Confusion Ignorance Apathy Defensiveness Fear Arrogance Anger Communication Challenges

Timing

Technology

Geography

Lack of trust

Perceived risk

Power struggles

Conflicting goals

Generational Differences

“A Failure To Communicate” The Costs of Miscommunication Bad depositions

Failed mediation

Unfavorable rulings

Strained relationships

Increased settlement demand

The Costs of Miscommunication

Higher litigation management costs

Reduced jury-level “burden of proof”

Unfavorable verdicts

Higher damages

Beyond Demographics

Anti-Corporate Making money is more important to most corporations than safety.

Pro-Litigation Lawsuits are necessary to keep corporations honest and ethical.

Pro-Damages Money damages awarded in lawsuits are often too low.

Boomers, X’ers, and Y’ers In The Jury Box: Persuasive Communication Across Generations Closing the Generational Gap

Effective depositions

Enhanced client communications Persuasive mediations

Connecting with the jury

Valuable witness preparation

Conventional Wisdom Baby Boomers Leaders Respect witnesses

Generation X Disengaged Suspicious of witnesses

Generation Y Entitled Big money damages

Boomers, X’ers, and Y’ers In The Jury Box: Persuasive Communication Across Generations The “True Value” of a Witness

Character

Conduct

Communication Empirical Evidence Insurance Bad Faith Case Project 1 Project 2 Opening Statements Opening Statements

LIVE Witnesses Witness Testimony Read Aloud

Closing Arguments Closing Arguments

Average Jury Award: Average Jury $190 Million Award: $2 Million We Aren’t What We Say

Paralinguistics

Visual Message

Verbal Content

In other words…Is the witness a “good communicator?” “Good” Witnesses… Listen

Remember

Keep their cool

Seem trustworthy

Appear confident

Respond concisely

Are understandable

Contradict plaintiff’s characterization

ANSWER ON TARGET Jurors Say Witnesses Are…

Sly Shifty Whiny Vague Arrogant Immature Hired gun Self-serving “Hiding something” Having an “axe to grind” Boomers, X’ers, and Y’ers In The Jury Box: Persuasive Communication Across Generations Generation X’ers on Witnesses Earn respect

Need bottom line

Expect eye contact

Assume subjectivity

Mistrust credentials

Like succinct responses

Prefer informal language

Trust inductive reasoning

Generation Y’ers on Witnesses Dismiss credentials

Expect technology

Need to be taught

Search for relevance

Enjoy demonstrations

Look for entertainment

Like succinct responses

Sensitive to condescension Case Example: Corporate Executive

Counsel said: “He’s a nice and professional guy who has testified previously as a company rep… so, he’ll be fine.”

Mock jurors said: “Greedy” “Uncaring” “Rude” “Devious”

Case Example: Corporate Representative

Counsel said: “She will make a better corporate rep than Ken. She is very articulate and will stand her ground.”

Mock jurors said: “Combative” “Played lawyer” “Never looked at us” “Full of herself”

Boomers, X’ers, and Y’ers In The Jury Box: Persuasive Communication Across Generations Communicating with Generation X

Email

Focus on solutions

Use humor carefully

Demonstrate respect

Adopt informal communication style

Prepare for skepticism

Don’t overwhelm with information

Emphasize “what’s in it” for them Communicating with Generation Y

Play into idealism

Don’t condescend

Use frequent humor

Appeal to entitlement

Incorporate technology

IM/text/social networks

Provide hands-on learning

Talk about the “big picture”

Focus on fairness/teamwork

Communicating With Generations X and Y Listen

Be entertaining

Solicit feedback

Get to the point

Use short, “sound bites”

Utilize photos and videos

Incorporate visually rich messaging

Boomers, X’ers, and Y’ers In The Jury Box: Persuasive Communication Across Generations Compelling Visual Messages

Appeal to the senses Illuminate substantive evidence Fight boredom Reinforce themes Make it simple Give your audience something to remember Generations on Visual Messages

Baby Boomers Bottom-up approach Trusting

Generation X Top-down approach Skeptical

Generation Y Simple; interactive Bored

Boomers, X’ers, and Y’ers In The Jury Box: Persuasive Communication Across Generations Baby Boomers Generation X Generation Y

Personal Hard work Entitlement responsibility Prestige Resourcefulness Challenge authority Distrust of authority No authority Corporate Corporate loyalty Corporate scandal transparency Waning confidence Suspicions of High expectations of in government government government Self-made Self-sufficiency Self-confidence Teamwork Independence Teamwork Perseverance Accountability Fairness Boomers, X’ers, and Y’ers In The Jury Box: Persuasive Communication Across Generations WISH HIGHEST LOWEST

$12,000,000 $14,000,000 $7,000,000

$16,000,000 $30,000,000 $11,000,000

$14,000,000 $17,000,000 $7,000,000 Boomers, X’ers, and Y’ers In The Jury Box: Persuasive Communication Across Generations Diverse Group of Decision Makers Follow-Up: Corporate Executive Jury Research Greedy, Uncaring, Rude, Devious

Witness Effectiveness Training

Trial Testimony

Post-Trial Juror Interviews Truthful, Professional, Convincing Follow-Up: Corporate Rep Candidate Jury Research Combative, Played Lawyer, No Eye Contact, Full of Herself

Witness Effectiveness Training

Trial Testimony

Post-Trial Juror Interviews Believable, Sincere, Understandable Take Aways To overcome communication challenges in today’s litigation environment: We must enhance our understanding of each generation’s unique communication style; and Ensure that our most influential communicators (witnesses) are equipped to convey memorable and powerful messages. QUESTIONS?

THANK YOU!