New Juror Dynamics Call for Fresh Approach to Expert Evidence

The Bottom Line

• Changing juror dynamics gained momentum during the Covid-19 pandemic and have persisted despite its end.
• Millennial and Gen Z jurors generally expect more efficient and technologically advanced presentations during trials, but attorneys should be cautious of over-generalizing differences among juror age groups.
• Growing distrust of governmental institutions and science means litigators will need to choose experts and present evidence differently.

Changes in jury dynamics that were first observed during the Covid-19 pandemic persist today. Litigators can present evidence to civil juries and judges more effectively by weighing how these dynamics are at play in their trials.

While jurisdiction-specific and case-specific factors may predominate in how to pick a jury and present evidence in a civil case, three main drivers affect a wide range of cases: more millennials and Gen Z jurors in the pool, distrust of mainstream science, and distrust of governmental institutions.

Filling The Pool

Each generation seems to label members of later generations as too “soft,” too “inattentive,” lacking in common sense, etc. In response, younger generations may mock older generations as “clueless,” technologically inept, and prone to mythologizing the past.

Civil litigators who try to pick favorable juries and present their client’s case in a way that will resonate with the seated jury should be aware of their own assumptions about different age groups—just as they should be about their assumptions about occupations, race, gender, religion, and political affiliation.

Assumptions, of course, aren’t always correct. For example, jurors who work in health care or care-giving jobs can’t always award higher damages in personal injury cases. Our view, informed by a range of litigation experience, is that it’s dangerous to rely too much on any categorization of a juror by generation or some other demographic.

We recall a large product liability litigation case where extensive jury research suggested the biggest indicator for a “plaintiff juror” was opposition to the use of animals in developing prescription drugs, a point of view that cuts across generations and other demographics. Similarly, we recall another case involving allegations of accounting fraud, where juror views of the propriety of the accounting entries typically had little to do with age, but more to do with the jurors’ appetite for risk-tolerance.

Yet, starting about 20 years ago, research in connection with litigation, advertising, and politics latched onto the idea that millennials were fundamentally different than prior generations. As Gen Z has aged into jury pools, they also have been cast as different than older potential jurors.

For one, millennial jurors are known to be inclined to high civil damages awards. They also are less likely to fit easily into the other demographic buckets that lawyers and jury selection professionals tend to use.

The professions and political affiliations of younger jurors are less instructive as to their leanings than might be suspected based on the traditional view of jury selection. And the trend toward shorter attention spans shows no sign of reversing among all age groups.

Although millennial and Gen Z jurors of course have individual differences, they generally expect evidence to be presented more efficiently and through the competent use of technology. Within the flow of a trial, strategy may dictate going low-tech or “old school” with a particular witness, exhibit, or argument. However, the underuse or ineffective use of technology at trial risks losing credibility with many millennial and Gen Z jurors, whereas some older jurors may view the overuse of technology as trying to cover up weaknesses in the party’s case.

Experience suggests that millennial and Gen Z jurors will value more diversity of perspective in witnesses and at counsel table. For example, when choosing who will be the voice of a business at trial, consider that younger jurors may favor perspectives from corporate witnesses who exhibit a “startup” mentality, or use technology to advance their companies.

Similar considerations apply to bench trials—as millennials begin to take the bench, arguments linking past practices to best practices are unlikely to carry as much weight as they once did. Both millennial jurors and judges expect modern advocates and witnesses to use all available sources of information to explain themselves.

Yet, we haven’t seen any research or experience to support that the bedrocks of good trial presentation—accuracy, clarity, brevity, likeability, credibility, common sense—matter less to younger jurors.

Mainstream Science Distrust

In the not-so-distant past, parties expected that a potential juror’s education and profession would indicate if they would be more likely to accept “good” or “mainstream” science.

During the pandemic, predicting jurors’ views about scientific issues became harder as they became more strongly intertwined with political and personal identities. Americans old enough to serve on juries had widely different and often impenetrable views on Covid-19 and vaccine safety.

For cases unrelated to Covid-19, strong views on these subjects were known to color juror attitudes about seemingly unrelated scientific (and other triable) issues. Trust in science and scientists decreased dramatically during the pandemic.

However, discussion of increasing skepticism regarding mainstream science and scientific convention (such as statistical significance and the scientific method), began before 2020. Social media and the internet have played major roles in these changes.

First, scientific studies are now more available for everyday people to read themselves, right from the original source, supporting the notion that anyone can understand them. Lacking strong grounding in key scientific research concepts or reading only some of the study, people may not realize they’ve misunderstood the study results.

Without fully understanding the importance of differences between types of studies and study data, readers may afford similar weight to, for instance, a randomized clinical trial published in the New England Journal of Medicine and a case report published in a pay-to-publish, open-source journal.

Second, sensationalized news articles, lawyer advertisements that masquerade as news articles, and advertisements for unregulated products and services can appear to present actual scientific results. Social media platforms have perpetuated this trend.

Social networks such as Facebook, X, and YouTube are a primary news source for more than half the US, according to a Reuters Institute study. For many people, stories, videos, and other content involving scientific issues can be particularly convincing depending on who forwarded the content, regardless of their merits. This may cause readers and viewers to accept unverified conclusions.

More than one-fifth of the population gets its news from influencers on social media, with higher percentages in younger, minority, and lower-income individuals. As a result, many potential jurors feel equipped to do their own research and may not as readily accept established view on scientific issues.

Instead, they are more likely to question mainstream science. Among potential jurors, wait-and-see attitudes are being replaced by predetermined (or quickly determined) views on contested scientific and expert issues.

As one author observed in the criminal law context more than a decade ago, “A potential juror, biased as a result of online ‘evidence’ that hasn’t been scrutinized by both sides or influenced by the status updates of friends on Facebook, undermines the protections offered the defendant by the Sixth Amendment.” Experience since then hasn’t suggested this dynamic has abated or that it’s limited to criminal juries.

This has a few implications for trial presentation to these jurors. In the “reptile theory” of litigation, lawyers seeking high damages for a “little guy” against a “big guy” focus their trial presentation on language and imagery that will trigger jurors’ fight or flight response. Jurors who question mainstream science appear receptive to reptilian cases. The reptile approach doesn’t argue the merits of competing scientific evidence, but that there has been a conspiracy against the plaintiff’s position by shadowy or financially motivated interests.

Similarly, the approach entails arguing that, for instance, the defendants’ dozen studies contrary to the plaintiff’s scientific position should be rejected based on their funding or because one of the defense experts has served as reviewer for journals that published some of those studies. In a case where the plaintiff pushes similar lines of attack, the defense can’t simply focus on credentials to establish that plaintiff’s position is unsupported.

While there isn’t a single best way to fight jurors’ potential views of mainstream science, we have a few suggestions on trial presentation, particularly regarding the direct and cross-examination of expert witnesses:

• First, embrace that jurors want to come to their own conclusions about the science of a case. Let the jurors connect the dots rather than be forced to accept conclusions.
• Second, frame a mainstream or established view in terms of the actions of people independent of the defendants (or their industry). “Surgeons keep using X implant made of Y material because it has the longest track record and they want the best results in their own patients” is probably better than using market share to indicate superiority.
• Third, an expert with an endowed professorship and weighty resume isn’t inherently stronger than an expert with a small practice and no publications. Credible witnesses who connect with the jury, often by being good teachers and using accessible language, have an advantage.
• Fourth, even if your jurors don’t do their own research during trial, you should know what artificial intelligence chatbots will say about the scientific issues in your case and be prepared to address commonly held beliefs, for better or worse. Experienced advocates will run their experts’ credentials and opinions and the opposing experts’ credentials and opinions not just through Google but through readily available AI sources to understand, refine, and better frame the presentation. If you notice that the AI tools are providing misleading results, consider proactively addressing misbeliefs and bad information through your presentation without inadvertently giving them undue weight.

Governmental Institutional Distrust

According to the Pew Research Center, trust that the federal government will usually do the right thing dropped from 54% in 2001 to 17% in 2025—a staggering change across a number of demographic groups partially perpetuated by the pandemic.

Litigation often involves one side playing up the importance of regulatory actions or requirements, while the other side minimizes them. Covid-19-related issues that informed strong views about science appear to have affected views about Food and Drug Administration, Centers for Disease Control and Prevention, and other public health agencies at the federal and state level.

We have heard potential jurors in device cases in the last few years declare in voir dire that, “if the FDA approved it, then I would be less likely to think it was safe.” Research indicates that the distrust of government isn’t limited to federal public health agencies. It also isn’t limited to one part of the political spectrum or demographic group.

Conventional jury-selection wisdom used to be that negative attitudes about the federal government and the role of corporate influence in its decisions were more prevalent among liberal Democrats. This isn’t the case now. It mirrors the increase in bias against corporations, which also has shifted in terms of what party affiliations predict.

In other words, bias against corporations doesn’t follow party-lines, and predicting such bias based on how a potential juror is registered to vote is a futile task.

Reptile theory also fits in with skeptical attitudes toward the government and corporations. Recognizing the propensity of jurors to be influenced by conspiracy theories and doubtful of governmental institutions, such as public health agencies, is a first step in shaping a trial presentation that includes evidence related to governmental compliance or governmental actions.

To counter suspicions that governmental entities are corrupt or incompetent, evidence that a party’s conduct complied with governmental standards should be framed in terms of the reasonableness of the party’s efforts to comply with those standards and the intent to do the right thing along the way.

These goals are consistent with the larger aim of presenting a corporate party by focusing on the individuals within it and the reasons for their actions. Even if jurors believe government approval of an application has limited value, they can still be convinced that the defendant was entirely reasonable (and acted consistent with the standard of care in its industry) to “follow the rules” and seek the government approval. Certainly, being seen as skirting the rules will hurt a party even if the opposing party contests the merit of those rules.

Key Takeaways

The qualities that make for good trial presentation, and for good trial lawyers, haven’t changed much compared to 10 or 20 years ago. However, some of the same considerations that inform picking a jury in the 2020s should affect trial presentation. Civil trial lawyers should question old assumptions about how best to present their client’s case at trial.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Eric L. Alexander is a partner in Holland & Knight’s Washington, DC, office, where he practices litigation and dispute resolution.

Anne Redcross Beehler is a partner in Holland & Knight’s Newport Beach and Los Angeles offices, where she is a litigator and trial attorney.

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