What a potential juror thinks is, of course, critical to the decision to keep or to strike. But that notion of “what she thinks” means, not just her opinions, but also the broader attitudes and dispositions that lie beneath the surface. That’s why the gold standard in voir dire is to get beyond the opinions that vary from one topic to the next, and to understand the deeper orientations that determine what those attitudes and opinions will be. One such orientation is called “belief in a favorable future,” or to co-opt a popular acronym, “BFF.” It is the tendency to think things will get better, and specifically that if people disagree with you now, at some point they’ll come around to thinking as you do.
The belief in a favorable future is all around us. At the women’s marches over the past year, it has been a common sight to see older women with signs reading, “I can’t believe I still have to protest this s***!” Or, perhaps on a higher rhetorical plane, there is the familiar quotation, “The arc of a moral universe is long, but it bends toward justice” from Martin Luther King. Both embrace the notion that society’s views are moving in a favorable direction. And as uplifting as it might be, there is a downside to that style of thinking. Right now, for example, liberals all around the country believe that Donald Trump is a temporary setback, and that sooner or later, the public opinion will turn, and the moral universe will right itself. And those who rely on that belief are complacent, and thus, they’re probably not the ones on the front lines of protest.
That is what the research indicates: Belief in a favorable future means complacency. Recently, a team of academics from Harvard and University of California, Berkeley (Rogers, Moore & Norton, 2017), conducted a number of studies showing that belief in a favorable future is a common attribute, and that the construct is robust, cross-cultural and distinct from related ideas. Rather than believing that good things are going to happen generally (optimism) or believing that everyone agrees with you (false consensus), the belief is that history is on your side, and, over time, your views will prevail.
After measuring this bias in several contexts (politics, entertainment, products, and science), they conducted a final study showing that a high belief in a favorable future on a particular cause predicts a reduced likelihood of donating money to that cause. In other words, because the future will bend in our favor, we are less motivated to try and shape it that way. This might also be seen as a contributor to polarization: We are less likely to want to convince others, because we believe that they’ll eventually see reason and come around. The study demonstrated a reduced likelihood of action as well. As the lead author, Harvard’s Todd Rogers, shared in ScienceDaily, “Ironically, our findings indicate that this belief in a favorable future may diminish the likelihood that people will take action to ensure that the favorable future becomes reality.”
It is that complacency-inducing feature that makes the belief in a favorable future particularly relevant in jury selection. When it comes to the broad social attitudes that bear on a case, we are used to seeing supporters as good and opponents as bad, but there is an important motivational component present as well, with a couple of implications for jury selection.
That Complacent Supporter Isn’t as Useful as You Think
Consider a situation where you are bringing a claim for sexual harassment on the job. Naturally, you want to know who your supporters are: those who believe strongly in a safe and equal work environment. And you find many who think so. But some of them also believe that we are there or nearly there. They think there’s been dramatic progress, even in just the last couple of years, on workplace equality. Society, in their perception, is already moving decisively in the right direction. So when confronted by the experiences of your client, these jurors see her as an anomaly. Even if the claims are true, and even if she ultimately deserves some compensation, she just represents one of the last examples of a problem that society is already well on the way to righting. That leads to a lot less anger, and anger is what drives the big number on damages. So, in jury selection, in addition to asking about support for a harassment-free workplace, ask about the status and the future of the problem: Is it fixing itself, or is it as bad as ever, or even worsening? If it is fixing itself, there’s much less of a need to send a message.
And That Committed Adversary Is Even More Dangerous Than You Think
Now consider a situation where you are defending a claim brought against a large corporation. Of course, you are concerned with those harboring anti-corporate attitudes who believe that a large company is faceless, immoral, prone to lie and cover up, and unlikely to contribute to the common good. The good news is that you can identify those people. The bad news, however, is that, based on our research, they’re around 80 percent of your pool. But, swinging back to the good news, they’re not all equally bad. You have to factor in the motivation. Some might believe the tide is turning against corporations, and thinks that they are increasingly being called out for the harms they promote, and increasingly pushed toward social responsibility. Those people will be less of a risk. In effect, that person doesn’t have to be as much of an angry advocate because society is already moving toward that perceptively favorable future. But on the flip side, the person who believes that there is insufficient awareness of corporate misdeeds, who believes that society is blind to the problem and unlikely to come to its senses anytime soon is more dangerous. That person is a fighter, and would have the motivation to sound the alarm, loud and clear, against your client.
Ultimately, in these examples, and many others, it is not just the attitude that matters, it is the motivation that is attached to that attitude. Whether your juror thinks things are looking up or trending downward matters to that motivation. So it is a good idea to ask about their belief in a favorable future in order to check on their complacency or lack thereof:
- To what extent do you believe X is a problem?
- To what extent, if any, do you expect that problem to change in the near future?