Written by Jessica Relyea, Esq.
Edited by Brian A. Cafritz, Esq.
If you are from the millennial generation, the chances are you have been derided by a family member or neighbor as being “entitled.” If you are from an older generation, you may have even used that phrase to describe a younger employee at your office. Older generations being annoyed or skeptical of younger generations is nothing new. X-ers should recall being called “slackers” and Baby Boomers were defined as “hippies.” The challenge for lawyers, adjusters and risk managers is that millennials are now the most populous generation in the United States. Press Release, U.S. Census Bureau, and Millennials Outnumber Baby Boomers and are Far More Diverse, Census Bureau Reports (June 25, 2015). This means that millennials make up a larger percentage of your customers, employees, and yes, even jury pools, than any other generation. Knowing that, it is important to see millennials beyond the stereotypes and determine how they are going to affect the outcome of your case.
There is a certain amount of disagreement in defining the generation, but a 2019 Pew Research Center report defines millennials as those born between 1981 and 1996. Domock, Michael, Defining generations: Where Millennials end and Generation Z begins, Pew Research Center, https://pewrsr.ch/2szqtJz, (January 17, 2019). This means that in 2019, millennials will turn between the ages of 23 to 38. The Pew Research Center decided on these parameters in part because the generation has to be old enough to comprehend the 9/11 terrorist attacks, which is the most significant historical event that defines them, and because they entered the workforce at the height of the economic recession, which shapes their life choices and future earnings. Id.
Millennials are more ethnically and racially diverse and more educated than older generations, but generally, they are less religious and less likely to have served in the military. Pew Research Center, Millennials: A Portrait of Generation Next. Confident. Connected. Open to Change, (February 2010). Millennials self-identify as more liberal than members of older generations, which is reflected in their voting pattern, as well as their views in the role of government (government should do more to solve problems), and their social values (they stand for acceptance of homosexuality, interracial dating, and expanded roles for women and immigrants). Id. at 63-64. Perhaps the most well known characteristic that defines millennials is their use of digital technology and social media.
Knowing these factors, it should influence how defendants design, plan and execute their defense strategies. For example, trial attorneys should speak in “sound bites” and utilize technology. Browning, John G. & Humphrey, Wendy A., The Millennial Juror, 75 Tex. B.J. 275 (2012). Millennials “process information visually and rapidly,” and the likelihood is that elaborate explanations and protracted arguments will bore them. Id. Furthermore, millennials are used to instantly being able to check facts on their smartphones and then learn more about them, without even blinking. As a result it is important to educate the millennials again and again during the course of the trial to the rule or issue that is central to your case. Keene, Douglas L. and Handrich, Rita R., Tattoos, Tolerance, Technology, and TMI: Welcome to the Land of the Millennials, American Society of Trial Consultants (July 2010).
Less well known, but perhaps even more vital to restaurant and retail establishments, is that millennials value safety more than any other generation. Specifically, millennials are more likely to cite personal safety as a cause of stress over any other generation. American Psychological Associates, Stress in America: Our Health at Risk, (January 11, 2012). During a 2016 presentation to the American Bar Association, Marygrace Schaeffer from DecisionQuest, a trial consultant firm, revealed that millennials do not believe government safety standards are the appropriate metric against which safety should be measured, with 88% agreeing that “companies should be held to a higher safety standard than what government regulations require.” Furthermore, 84% of millennials felt that “big business needed to take every safety precaution no matter how impractical or costly.” While any specific studies cited by Ms. Schaeffer were not publically available, the talk was reported by Legal Reader, Bloomberg Law and Law 360. Whether the statistics are exact or not, we know that millennials grew up during the 9/11 terrorist attacks previously mentioned, but also the Oklahoma City bombing, the Columbine High School massacre and all the school shootings that followed. It logically follows that these events have affected millennials, causing them to be more aware of and concerned by safety issues than prior generations.
If you are a retail or restaurant establishment, it is important that you organize your trial defense strategy not only on what was legally required, but also what your jurors are going to think was morally or ethically required. For example, while you may be able to argue that you were not on notice of a spill prior to a customer slip-and-fall incident, a millennial juror will likely want to hear about what inspection and training procedures you had to identify that spill or hazardous condition before it led to an accident. Similarly, while it may be legally enough to state that your restaurant or retail establishment met with an applicable government code, a millennial juror will want to hear why that code sets the safety standard and whether there was anything else you could have done to help prevent the accident, even if not required. Even more topical, plaintiff’s counsel who use the Reptile Theory to play on the safety fears are likely to strike a chord with millennial jurors. Accordingly, it is critical that defense counsel be prepared to handle this line of argument.
The research on millennials is limited, but what we do know gives us great insight to how to tailor the trial strategy to that youngest generation of jurors. The attorneys at KPM LAW are happy to discuss how your matter can be further impacted by the changing mindsets of millennial jurors when it comes to technology and safety.