America's new president-elect may see a courtroom before he moves into the oval office. While the Defense has filed a motion to delay in order to allow time for settlement, the trial in a lawsuit by former Trump University students is currently scheduled to begin in San Diego on November 28th. In a recent article in Reuters, a number of lawyers weigh-in on the expected difficulty in picking a jury if the case doesn't settle. "Parties often hire specialized jury consultants to pick jurors, but New York lawyer Robert Anello said they were not infallible. 'If experienced pollsters can't get it right,' he said, 'how can a jury consultant who is not spending as much time studying the demographics?'" The article goes on to quote Harvard Law professor Alan Dershowitz, "This is a jury consultant's nightmare to pick in a case like this," and "It will be taught in jury consulting school." While the article isn't clear on the reason for it being a nightmare, the reason won't be the demographic point that Anello makes. With a written juror questionnaire being used in the case, the parties won't have to make fancy pollster-driven demographic guesses on who the Trump supporters are: They'll just ask. Even if they cannot request specific voting behavior, they can ask about issues and attitudes that should make it easy enough to determine. The real reason it will be a nightmare is that both sides will face a jury pool dominated by people motivated to use their role as a juror to either attack or defend America's most polarizing leader.
Beyond that case, last Tuesday's election results add information that will be relevant to future jury selections in many cases. While Clinton exits stage left, Trump will be with us for at least four years, and identifying and understanding the Trump supporters in your panel and your jury will help in selecting and persuading your jury. How the attitudes underlying a Trump vote will influence that persuasion, will naturally depend on your case, but there are reasons to believe this electoral victory will embolden and disinhibit this particular group, potentially helping them be more vocal on the jury and more likely to lead. If the greatest unifying factor among Trump voters was a feeling of powerlessness and not being heard, then that is likely to change after the election. How it all plays out will, of course, depend on your case, but it adds a factor to think about. In this post, I will try to set aside the idea of seeing that group as a single undifferentiated mass, and will instead share some thoughts of the several slices of Trump-supportive attitudes that could be relevant depending on the case.
First, Set Aside the Monolith
The way the media talks about an unexpected election result, you would think that a single group rose as one great mass to elect Donald Trump. Reality, as always, is a little more complicated. One cannot assume that all Trump voters, or all white rural males without a college degree, are going to be the same. I have always believed that within any group, you are going to find about as many who conflict with a stereotype as fit that stereotype. So a first step is to try to set aside the belief that you know this group. It is better to ask the questions.
Next, Look for the Most Relevant Attitudes
A second step is to ask yourself, within the different themes and branches of this group of voters, what specific attitudes matter most? A close analysis of your case, or better yet, a mock trial, should help to tell you which baseline attitudes will determine leanings when jurors view your case through that filter. An analysis of the popular factors driving Trump's win will probably continue for months or even years. But here is my own list of a few of the attitudinal slices that could matter most. I have also included a couple of illustrative questions for ferreting out each of the attitudinal types, and for clarity and brevity, I have drafted those questions in a leading fashion, rather than the more open-ended ways you might ask them in voir dire.
Talking about the psychological preference, not necessarily the political system, authoritarianism is the tendency to seek and to favor strong leadership and obedience. It has been measured for more than a generation, and the widely used measurement (the"F-scale") did effectively predict Trump support. It plays out, of course, in criminal cases (with high authoritarians being pro-prosecution) but can also matter in civil cases with high authoritarians being more likely to make absolute black-and-white determinations, and more likely to emphasize adherence to "the rules," whatever that might mean in context.
Based on the way it played out in the campaign, I think authoritarian attitudes are best assessed through attitudes about crime:
Do you believe that crime in the United States is at record levels?
Do you feel that America has been too soft on criminals and needs to get tougher on crime?
Trump just won his first elective office. With many, perhaps most, political establishment figures within both parties being actively hostile to him and his candidacy, he was able to position himself as the ultimate outsider. That, of course, was a big part of his appeal. Those who have become disgusted with the political class and who have embraced anti-government attitudes supported Trump based on his promise to "drain the swamp" in Washington DC. If this attitude sounds like it is at odds with the pro-government authoritarianism, it is, and that serves as a good reminder of why Trump supporters cannot be treated as a monolith. While the outsider theme might most naturally favor plaintiffs, it could also serve to work in favor of anyone who is able to successfully frame themselves as change agents in the context of the case.
Here are some areas of questioning to identify that theme:
Do you consider "politician" to be a negative word?
Do you think the political class has dominated our government for too long?
The central appeal Trump made to the country is probably the argument our economy and jobs are suffering due to bad trade deals overseas and immigrants pouring across our borders. Setting aside the question of whether the facts bear that out, the belief and the underlying attitude turned the vague promise to "Make America Great Again" into an economic message resonating with the "America First" brand of populism that has a long history on both sides of America's political aisle. Joining with Great Britain's "Brexit" vote, Trump's election is part of a global retreat from globalism. These attitudes are likely to taint views on immigrants as well as foreign or multinational corporations.
Identifying the economic nationalist strain of Trump support requires looking at both the immigration and the trade components:
Do you believe international trade agreements have hurt the U.S. economy?
Do you feel uncontrolled immigration is sapping our nation's strength?
All of these attitudes preceded this election, of course, so one way of looking at it is that there's nothing new under the sun. However, the election did provide us an opportunity to see just how common these attitudes are, how strong they can be in overcoming what were some pretty substantial doubts about the candidate, and how empowered those who hold those attitudes might be now that they've succeeded in winning the election.