Melissa and I have attempted do two things consistently with the posts we write. First, we try to be tactful, and not insult anyone. Second, we strive to be timeless, not dating our posts by the topic. This post breaks the 2nd rule, but hopefully, not the first objective. The topic is what some have identified as a change in the global order that began with the campaign and election of our current president, Donald J. Trump. Though U.S. politics have been polarized to some degrees for many election cycles, there is no denying that the current level of polarization is unmatched in modern politics. And, it is more than politics, the “us and them” mindset is obvious in many aspects of life. People identify as red or blue, supporting either team D or team R. Families have been divided, broken. People refuse to be friends with people on the opposite “team” and some badger others with opposing viewpoints. The choice to read and accept news, depending on the source, has diminished. Fake news, or accusations of it, abound. Globally, countries are trying to adjust as if land masses are grinding together before an earthquake. Let’s hope it doesn’t come to that. But, it is in this environment that our clients, trial lawyers, do their work. And, this environment is creating new challenges to consider. I have had 2 clients raise this point with me in the last month. In both of these new cases, the attorney has hired Magnus, in part, because of a concern that the political climate may be an issue for them. They are concerned that their case will be judged differently, more harshly perhaps, by some people on the jury than it would have been prior to the caustic 2016 campaign and in the current political climate. One of these clients represents a plaintiff, the other, a defendant, so this is not concern just limited to just one side or the other. The question is whether politics have changed litigation, perceptions of the parties, and how people, that is, jurors, will relate to one another, the attorneys, the issues, and the parties. The polarization did not occur overnight, but certainly the tenor of things has escalated significantly in the last 2 years. The extreme perspectives of politicians has “trickled down” (more than anything else has). And, the fact that people are polarized is more evident in some venues than in others. Both of the clients who raised this question may be justified in their concerns. And, perhaps some cases may not be as “at risk” by this concern as others. But, when a case has issues that can be presented in ways that have a connection with a political issue, rhetoric, or theory, it is probably true that this issue alone may be reason enough to conduct mock jury research. Some of our clients may want to use the new world order to their advantage; some need to deflect it. But, the reality is that a new challenge has been added to the already challenging world of litigation.
Although many people cannot agree about politics, most people will agree politics have divided us into “us and them” factions more than, perhaps, any time in recent history. All of the people who are “us,” whatever that means on a personal basis, believe all of the people who are “them” are wrong, while all of “us” are, without a doubt, unfailingly right. Of course, when taken to an extremely logical conclusion, this premise is incorrect, in that not everyone who disagrees with us is inherently wrong, or a bad person, or stupid, etc. and not everyone who agrees with us is righteous, good, smart, etc. This being said, there is a new global order, for better or worse, and all of us have to survive within the new constraints the new global order has imposed. In David’s and my world as trial/litigation consultants, we must be informed of current events, particularly, events that are political in nature, because these events have an important influence on the cases for which we are retained. For example, when the “McDonald’s hot coffee” case was top of mind for many prospective jurors, trial attorneys had to assess their opinions about this case during jury selection, even though their trial had nothing to do with coffee or McDonald’s. When we, in Florida, have hurricanes, attorneys have to inquire about prospective jurors’ experiences with insurance companies paying for hurricane repairs in cases that involve insurance companies, but not hurricanes. This is just how it is and we who work in the litigation arena have to accept the reality that jurors’ experiences, political views, personalities, and more, can, and will, impact their decisions in trials. Any attorney who believes jurors can isolate their personal, political, or other opinions to the extent they will not affect the outcome of the case is either delusional or grossly uninformed. And failing to inquire about the prospective jurors’ views of the new world order can be detrimental to one’s case, not to mention one’s client. Regardless on which side of the political, religious, and social continua a person falls, he/she has a right to the opinions he/she holds. And, because decades of social psychological research have demonstrated people rarely change their opinions about things important to them, attorneys are well advised to inquire about these opinions during voir dire.