The odds seem stacked against you: A criminal defense case and a box full of conservative-minded jurors. A corporate liability or medical malpractice case and a box full of liberal-minded jurors. In either case, you anticipate an inhospitable audience with a built-in resistance to you and your client, and a case that bumps up against the assumptions and stereotypes your jurors bring into the jury box.

 

What shouldn’t you do? First and foremost, do not walk yourself into a trial strategy that is guaranteed to produce a loss: a strategy that is motivated by fear, reinforces your defensiveness and the jury’s resistance, and draws you into a doubled-down attempt to bridge the gap between you. A strategy of this kind might tell a satisfying kind of anticipatory moral story—you are right, they are wrong, and you will do what you can—but it blinds you to, and deprives you of, the maneuvering room you have in a situation that seems otherwise hostile to the features of your case. Second, do not ignore politics. It exists in every jury, and it matters for your case, in ways that should be central to your trial strategy. You cannot avoid it.

 

What should you do? Understand the unique opportunity your jury offers. What we know about conservative- and liberal-minded jurors can help you—if you take the time to position the details of your case in the lens through which your jury is inclined view it. Political awareness is a resource that can make you a better, more adept lawyer. It forces you to read the same facts from multiple perspectives. It pushes you to think more creatively about the facts of your case, and to frame the facts in ways that resonate with the values and assumptions people bring into the jury box.

 

In short: Do not fear politics in the jury box. Lean into it, and let it help you build a sharper trial strategy.

 

The Conservative Juror: What Should You Know?

 

We need not detour too far into the political theory weeds to unpack the features of conservatism that matter for your case. Conservatism, as an ideology, prizes a well-functioning social order—a community of like-minded, like-motivated individuals united around a common set of agreed-upon rules and under the direction of a clear authority. The conservative is not hostile to the individual, but understands community, social order, and solidarity as primary values and prerequisites to individual agency. Conservatism also, accordingly, can be suspicious of things that shake, or threaten to shake, the set of long-standing, traditional practices that make possible a society of mutually legible, mutually trusting fellows. An excess of plurality, or an accelerated pace of social change, can be fracturing and destabilizing from a conservative’s perspective.

Imagine, in short—to borrow from NYU moral psychologist Jonathan Haidt—a well-functioning beehive as a window into conservatism.[1] Each bee has a distinct “role to play in fostering [the hive’s] success.” The hive is not, as Haidt notes, a site of “maximum freedom” but, instead, “a world of order and tradition” in which each bee plays its role in the interdependent whole. A conservative society is marked by deference to traditional practice, an emphasis on social order, and a need to educate newcomers into the roles, expectations, and norms that structure the community’s collective life.

 

Politically, these ideological commitments can play out in different ways. Some expressions of conservatism emphasize moral values and seek to leverage key social institutions—family, schools, civic spaces, government—as tools to cultivate shared understanding of, and commitment to, shared values. There is no presumptive distinction, in ideological conservatism, between ‘private’ and ‘public’; private virtue is the foundation of public order, and private action is a presumptive subject for conversation and regulation in public life. Other expressions of conservatism emphasize social solidarity and advocate for systems of social support—across families, schools, civic spaces, and government programs—that understand the fate of the whole as intimately bound up with the fate of the least advantaged among them.

 

The Liberal Juror: What Should You Know?

 

Liberalism, as an ideology, takes the individual as its primary tether. The collective priority, from a liberal perspective, is to maximize the individual’s enjoyment of liberty. Classical forms of liberalism, such as we tend to see among Libertarians and economic conservatives in the Republican party, interpret this commitment to individual liberty in a negative way; freedom, that is, consists in the absence of restraints. From a negative liberty perspective, we maximize individual freedom by minimizing regulations on the individual, minimizing government interference, using law sparingly and only to prevent harm among individuals, resisting laws that police private choices, and maximizing choice in a minimally regulated marketplace.

 

Modern forms of liberalism, such as we tend to see among social progressives in the Democratic party, promote individual liberty, as well, but understand liberty in a positive sense. Government, for the modern liberal, is a partner in individual freedom and serves individual choice by propping up the individual’s enjoyment of the conditions (food, shelter, education, health care, rights) required for effective freedom. In short, for classical liberals, government facilitates individual freedom by staying out of the individual’s way. For modern liberals, government facilitates individual freedom by getting involved and playing an active role in supporting the individual’s enjoyment of the preconditions for choice and agency.

 

Whether in its classical or modern form, though, liberalism starts from a different point of reference: the rights-bearing individual. The liberal also is more inclined, than the conservative, to see plurality, diversity, and change as a natural and desirable feature of a vibrant society. Where conservatives imagine a “beehive” society comprised of high levels of social solidarity, hierarchy, authority, and a well-articulated system of moral values and social norms and practices, liberals imagine a “contractual” society.[2] In a contractual society, individuals are empowered to make their own choices, and community is a byproduct of many separate voluntary and mutually beneficial transactions among individuals. An apparatus of laws and institutions, too, functions as backup, to prevent or remedy the effects of harmful intersections among separate individuals with separately chosen goals and individual paths.

 

Ideology vs. Partisanship: Why is the Difference Important?

 

Note, in the above sections, that we are talking “ideology,” rather than “partisanship”—i.e., conservatism and liberalism, rather than Democrats and Republicans. Why? In the U.S., party affiliation is not always a trustworthy indicator of the motivating ideological assumptions that people bring to decision-making. In American politics, for example, a classical liberal embraces the principles of the Libertarian Party—but, because of the structural barriers third parties face in the U.S., that person probably aligns him/herself, in the voting booth, with the free market platform of the Republican Party. This free market dimension of the Republican Party platform bears little resemblance to, and indeed is in much tension with, the social conservative wing of the GOP’s platform. A modern liberal, in contrast, likely aligns with the Democratic Party and its commitment to a system of government-provided social and economic supports that serve individual liberty. A juror, then, may be an ideological liberal but find herself aligned with the Democratic Party or Republican Party; the common thread is a belief in the primacy of the individual. Similarly, a juror may be an ideological conservative but align with either the Democratic or Republican Party. One juror might support the GOP’s emphasis on family values, traditional social practices, hierarchy, order, the content of school curricula, and the importance of religion in public life. Another juror might find a home in the Democratic Party’s platform on social solidarity, single-payer health care, and a comprehensive welfare state that affirms a community’s commitment to the least fortunate.

 

A focus on ideology also allows you to develop a more actionable trial strategy vis-à-vis jurors who self-define as “independent” or “undecided.” The Pew Research Center finds that, while approximately 38% of U.S. adults self-define as politically independent, most adults—approximately 90% of all American adults, and 80% of those who self-define as independent—”lean” in one ideological direction.[3] Ultimately, then, most of the American public is not “up for grabs” when it comes to politics. A joint poll by the Cook Political Report and Kaiser Family Foundation, for example, finds that only 8%-9% of American adults are genuinely open to persuasion[4]—a percentage echoed by the Pew Center’s research on independents.

 

In other words, your independent jurors may, in self-identifying as independent, be registering their distaste for government and/or the two existing political parties. They are highly unlikely, though, to be independent of an ideological leaning; they really may not want to align with either party, but they do bring a set of ideological values to politics. Given this, most independents are receptive to the same proxy questions, and the same persuasive techniques and strategies (suggested below), as people who explicitly self-identify as liberal or conservative.

 

Do not, then, assume that knowing someone’s party allegiance (Democrat, Republican, Independent) tells you anything at all about how that juror is likely to respond to your case. A focus on ideology, rather than partisanship, nets you a much sharper, and much more accurate, view of the motivating values people bring to the jury box. Knowing that someone is a Republican, for example, does not feed you much actionable information about that person. She could be a free-market Republican but find the social conservative wing’s emphasis on legislating morality, social solidarity, and deference to authority problematic. A self-identifying Democrat, too, could have far more in common with a solidarity-minded social conservative in the Republican party than with an individualist liberal in the Democratic party. This is the actionable information that is relevant to your case: the ideology, not the party.

 

Your Trial Strategy: What to Do When Facing Liberal or Conservative Jurors

 

How do these different ideologies matter in the courtroom? The ideological commitments your jurors bring to a case can be a tremendous invitation and resource to you—if you re-see, re-think, and re-frame the facts of your criminal defense, negligence, or liability case in a way that is sensitive to the audience you are speaking with.

 

Your action steps:

 

1) Pose proxy questions, to jurors, that tap into ideology, rather than partisan identification. The best questions are not obviously political. Instead, they tap into, and elicit expressions of, the foundational values people bring to political decision-making. Some examples: Would you prefer to have kids who are well-behaved and respectful of their elders, or children who are independent and curious?[5] Do you tend to participate in the same hobbies, today, that you did when you were younger? Do you tend to rely upon a bunch of sources of news, or stick with one trusted source?[6] What is your primary source of news? Do you like to try new restaurants, or are you happy to stick with the places you know and enjoy? Which public figures do you most admire, and why do you admire them? Would you describe yourself as a patriotic person?

 

The Pew Research Center’s “American Values Survey,” too, offers a range of compelling “agree or disagree” statements that reveal a respondent’s underlying ideology.[7] For example:  Government should care for people who can’t care for themselves. Labor unions are necessary to protect the interests of workers. We all should be willing to fight for our country, right or wrong. Dangerous books should be removed from public school libraries. I have traditional values about family and marriage. The rich just seem to get richer, while the poor get poorer. As Americans, we can always find a way to solve our problems. Hard work is a pretty good guarantee of success. Many people think they can get ahead without working hard.

 

The answers people yield to these questions are ideologically coded. If you have a criminal defense, liability, or negligence case, in particular, jurors’ responses to these questions will matter—to guide, both, your use of a peremptory challenge and development of an effective trial strategy with an empaneled jury. You just need to be creative about how you elicit the set of ideological values and assumptions people bring to the jury box.

 

2) Consider the political climate—and avoid the labels in your conversation and communication with jurors. The words “liberal” and “conservative” are politically charged terms, and they have taken on new and defining social significance in our divided political climate. Political science research, for example, finds that partisan self-identification is the strongest source of polarization in American politics—beyond, even, race, religion, gender, or ethnicity.[8] The labels “liberal” and “conservative,” moreover, do not just signal the policy priorities that matter to someone. These labels have become social and cultural signifiers that communicate how an individual defines and sorts herself—what she buys, whom she admires, how she raises her children, what television shows she watches, what car she drives, where she shops, where she gets her news, and whether or not, even, she buys single-use disposable plastic or reusable water bottles.[9]

 

“Liberal” and “conservative,” that is, are labels that come packaged with an array of social connotations that people wear—or reject—as markers of their personal identities. The labels are deeply charged. Political scientists Steven Levitsky and Daniel Ziblatt, for example, observe that a person’s allegiance to the Democratic or Republican parties, today, does not just represent belief in “different policy approaches”; instead, the label implies identification with fundamentally different “communities, cultures, and values.”[10] The result? A public that increasingly views the ‘other side’ as dangerous—i.e., not someone with whom I merely disagree on key policy issues, but someone who strikes me as odd, and perhaps even dangerous, in their difference. Public opinion research[11] finds, for example, that 33% of Democrats and 49% of Republicans reported, in 2010, that they would be “somewhat or very unhappy” if their child married someone from the opposite party. This was up from 4% of Democrats and 5% of Republicans in 1960.

 

Ultimately, then, “being a Democrat or a Republican has become not just a partisan affiliation but an identity.”[12] Levitsky and Ziblatt also cite a 2016 Pew Center survey, in which 70% of Democrats and 62% of Republicans “say they live in fear of the other party.” A free-market Republican, then, is unlikely to respond favorably to the idea that she is “liberal” in an ideological sense, even if it is true. Similarly, a self-identifying Democrat who makes solidarity-based arguments for social welfare and single-payer health insurance probably will not respond favorably to the idea that he is “conservative,” in an ideological sense. Putting jurors into a situation where they are pushed to self-identify as Democrat or Republican, or as liberal or conservative, also could introduce an unproductive, even hostile, dynamic within your jury. The labels are deeply charged. Avoid using them. Instead, use the proxy questions to get at the underlying ideological values that motivate each juror.

 

3) Acknowledge and understand your own bias. Your own ideological bias is not something to reveal to the jury, but it is something to take into candid self-account as you frame your case. Your assumptions function as blinders. As a liberal-minded lawyer, you are most interested in minimizing harm to, and maximizing the freedom of, the rights-bearing individual, and your view of things seems obvious and natural to you. Your conservative juror wants, instead, to know that your (individual) cause serves a stabilizing social and collective purpose. As a conservative-minded lawyer, you are most interested preserving the established rules, traditions, and long-standing values that make social order and solidarity possible. Your liberal juror wants, instead, to know that your cause serves, and protects, the individual.

 

4) Speak the language your liberal and conservative jurors want to hear. Do not tell the story you want to tell; lead with the story your jurors need to hear, and feed it in a language that resonates with the ideological frame the jurors bring to the case. Frame the conclusion, remedy, or damage award you seek, for example, as consistent with ordinary understandings about individual responsibility and accountability. This will speak to your conservative jurors. Similarly, any argument that traffics in service to a rule or traditional practice at the expense of fairness to a sympathetic individual will not resonate with a liberal-minded jury. The claim you make (or remedy you seek) could register as unfair, unjust, and heartless. In a personal injury case, for example, acknowledge and express sympathy for an injured party. Do not call them “negligent”; instead, use a softer language that suggests plaintiff “might have done some things differently.” This will resonate with your liberal jurors. Every word you feed to the jury functions (or not) as a breadcrumb that lures a hungry juror to the conclusion you want them to reach.

 

5) Deploy values-talk in a way that is sensitive to the ideological biases of your jury. If you are a liberal-minded lawyer: Your liberal-minded instinct is to view values and morality as private matters, and presumptively not for the government or law to decide. Your conservative juror’s starting point is different: seemingly private choices are a matter of public consumption, at least presumptively so; shared values are the social glue that hold a community together, and law must play an active role in expressing and propping up that normative order. A language of “we” and “right” vs. “wrong” action will resonate with a conservative jury.

 

Similarly, if you are a conservative-minded lawyer: Your conservative-minded instinct is to view talk of social values and morality as necessary to the good functioning of any social order. Your liberal juror’s starting point is different: private choices are presumptively not up for public consumption. From a liberal perspective, government and society may justly regulate an individual’s behaviors only if those behaviors cause harm to others or constrain another’s ability to enjoy the conditions of free choice, autonomy, and self-determination. In this situation, call a suspect action “harmful,” “unfair,” “unjust,” or as constituting a breach of voluntary agreement. Avoid the language of “wrong.” The latter adds a degree of moralizing a liberal jury may not respond favorably to.

 

6) Tell the story from both perspectives. As a liberal, you might be inclined to lead with a story about an individual who was wronged. Tell that story—but also tell your conservative jurors why that individual wrong is socially consequential. As a conservative, you might be inclined to lead with a story that appeals to values like personal responsibility and accountability to society. Tell that story—but also tell your liberal jurors why a generalized commitment to responsibility and accountability is something that serves the particular cause of fairness in your specific case.

 

7) Be audience-centric. Frame the facts of your case, and the conclusions you want your jury to reach, in a language that resonates with your jury. As a liberal-minded lawyer, you may view the claims of your case as an exercise in individual justice and fairness. Make that argument before a conservative-minded jury—and frame your case, too, as a matter of an important rule that must be observed for the good working of society. The inverse is true, as well, for the conservative-minded lawyer: The rule that you understand as critical to the good function of society also is a requirement of individual justice and fairness. Frame it as such before a liberal-minded jury. As Graham, Nosek, and Haidt argue, “liberals endorse the individual-focused moral concerns,” like fairness, while “conservatives endorse the group-focused moral concerns of ingroup loyalty, respect for authorities, and traditions, and physical/spiritual purity.”[13] Make sure your trial strategy communicates messages that your liberal and conservative jurors want to hear.

 

 

Your key strategic take-aways?

 

1) You can connect with any audience—if you invest in understanding that audience.

 

2) You should not begin any case from a starting point that seems familiar and comfortable to you—and stop there. Learn about your jury and frame the details of your case in a way that speaks the ideological language your jury brings to the case.

 

3) Ideology matters, but not in the way you think. Your ideological commitments and their ideological commitments are not a barrier, but an invitation and opportunity, for you, to think more creatively about the facts of your case.

 

As a trial lawyer, you must lean into and work to understand the ideological commitments at work in the courtroom. The ideological leanings you, as the lawyer, bring to a case could function as a blinder, steering you toward a set of working assumptions, case theme, or tagline that speaks more to your needs, rather than to the needs of the jury you actually have. Similarly, liberal and conservative ideas function as underlying preferences that shape your jury’s starting point, especially in criminal defense and personal injury cases. Use voir dire to deploy proxies that reveal the underlying values potential jurors bring into the jury box—and use what you discover to speak a language, and tell the story, your jury needs to hear.

[1] Jonathan Haidt, “Moral Psychology and the Misunderstanding of Religion,” The Edge (09/21/2007). Available at: https://www.edge.org/conversation/moral-psychology-and-the-misunderstanding-of-religion

[2] See Haidt

[3] Pew Research Center, 2019, “Political Independents: Who They Are, What They Think.” Available at: https://www.people-press.org/2019/03/14/political-independents-who-they-are-what-they-think/

[4] Ashley Kirzinger, Audrey Kearney, Mollyann Brodie, 2019, “Data Note: A Look at Swing Voters Leading Up to the 2020 Election.” Available at: https://www.kff.org/other/issue-brief/data-note-swing-voters/

[5] Marc Hetherington and Jonathan Weiler, Prius or Pickup? How the Answers to Four Questions Explain America’s Great Divide (Houghton Mifflin, 2018). Conservatives are more likely, than liberals, to prefer parenting methods that emphasize authority, hierarchy, and order.

[6] Mark Jurkowitz, et al., “U.S. Media Polarization and the 2020 Election: A Nation Divided,” Pew Research Center report, available at: https://www.journalism.org/2020/01/24/u-s-media-polarization-and-the-2020-election-a-nation-divided/. The Pew Center report finds that conservatives tend to express higher levels of distrust in mainstream media sources, and are more likely rely upon Fox News as their primary source of information. Liberal respondents expressed more trust, than distrust, in mainstream media sources and are more likely to rely upon a diverse range of media sources.

[7] The following values-statements are drawn from the Pew Research Center’s American Values Survey, available at: https://www.people-press.org/values-questions/

[8] Sean Westwood, et al, “The Tie That Divides: Cross-National Evidence of the Primacy of Partyism,” European Journal of Political Research, vol. 57, no. 2 (May 2018), 333-354.

[9] Marianne Bertrand and Emir Kamenica, “Coming Apart? Cultural Distances in the United States,” NBER Working Paper No. 24771 (June 2018).

[10] Steven Levitsky and Daniel Ziblatt, How Democracies Die (Broadway Books, 2018), p. 167

[11] Shanto Iyengar, Gaurav Sood, and Yphtach Lelkes, “Affect, Not Ideology: A Social Identity Perspective on Polarization,” Public Opinion Quarterly, vol. 76, no. 3 (2012), 417-418.

[12] Levitsky and Ziblatt, p. 168.

[13] Jesse Graham, Brian Nosek, and Jonathan Haidt, “The Moral Stereotypes of Liberal and Conservatives: Exaggeration of Differences Across the Political Spectrum,” PLoS ONE, vol. 7, no. 12 (2012).