Look Out for the Anti-corporate Right-wing

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Holland & Hart - Persuasion Strategies

Before a recent jury selection, I was digging through a stack of juror questionnaires and social media results when something we’ve been seeing for awhile came into clearer view: The conservatives in the pool were falling into some strikingly different camps. More specifically, some were the traditional pro-law, pro-institution, pro-corporation tight Republican party stalwarts, while others were decidedly anti-establishment, not necessarily pro-law enforcement, and not necessarily even Republican. In other words, some were establishment conservatives tied to the long-term traditions of Ronald Reagan, while others were rhetorical (if not literal) bomb throwers newly bound up in the movement of Donald Trump. The latter group — and in this venue, the much larger group — also signed onto the kinds of decidedly anti-corporate attitudes that had previously been the province of the left.

Of course, political views have never been monolithic. There are distinctions within both sides, and it has always been important to look beyond the label to see the individual. But for a long time, it has been a useful generalization in jury selection: Conservatives were more likely to embrace personal responsibility, trust corporate America and be suspicious of lawsuits and high damages, while liberals were more likely to do the opposite. That meant that, unless or until you had more detail, relying on political identification was a good starting point in selecting juries in civil litigation. Only now, there are strong indications that this generalization is breaking down.

In a recent article in Vox, Zack Beauchamp notes how, particularly following last January 6th, corporations began reacting to the tacit support by some politicians of the insurrection as well as the accompanying passage of state laws that seem designed to hold down the vote in many parts of the country. Major corporations started speaking out, moving some of their activities, and suspending donations to some candidates. In addition, the continuing Covid circumstances, combined with threats to work force participation, led many big companies to support government vaccine requirements, or to impose those requirements on themselves. Add to that the rare occurrence of large social media companies like Twitter and Facebook suspending the accounts of several highly visible right-wing leaders like Donald Trump and Marjorie Taylor Greene, and it is easy to see some fault lines in the typical love affair between corporate America and the right side of America’s political spectrum.

Beauchamp notes, “For all the tension between the Republican Party and big business so far, there has been no break-up — not even close.” But he adds a “Yet,” and notes “the fact that we’re even talking about a conflict between Republicans and corporate America speaks to a fundamental shift in American politics.” The hard-core pro-Trump branch of the right-wing, which these days is only conditionally “Republican,” is less about the ideological traditions and more about the anti-establishment movement. Big business, though that filter, looks less like a trusted ally and more like an elite and out-of-touch enemy. In this post, I’ll consider a couple of implications of this when assessing and selecting juries.

Dig Beyond the Binary

It is not enough to just ask about ideological leaning (liberal or conservative) or voting behavior (Republican or Democrat). Instead, it is essential to rely on survey answers and public social media in order to see what “tribe” the potential juror is affiliating with. Particularly for the pro-Trump crowd, they act as though it’s essential to broadcast these views on public social media, and it is rarely subtle.

The left, of course, is also not monolithic in their attitudes. When someone says they’re “liberal” that could mean neo-liberal (think of both Clintons) or it could mean progressive (think Bernie Sanders). There might, in fact, be a fair amount of common ground between the Trump-right and the Sanders-left when it comes to distrusting big business.

And it is important to remember that it isn’t the politics that matter the most, at least not in the context of your case. What matters are the attitudes that accompany those politics. So if you are defending or targeting a large corporation, you need to ask about these views specifically, because these attitudes are increasingly likely to track differently than the political leanings.

Consider Education 

The Vox article also notes that the conservative split seems to be largely a product of educational polarization, and the distinctions between what had been mainstream white-collar conservatism and the newer blue-collar populism can be explained by looking at the cultural, knowledge and value differences between those who went to college and those who did not. When the far-right conservative base is trending toward white people who went to work after high school, then the degree-filled halls of corporate America can look pretty foreign. Another trend the author notes is that younger workers are entering the workforce in these corporations, and this group — more educated and socially conscious than their forebears — are increasingly expecting the companies they work for to be more socially responsible or to be at least, in their words, “less evil.” That means that a corporation that may have previously supported just about any conservative based on the promise of lower regulations and taxes is now facing pressure to be more selective and more vocal in what they do and don’t support.

So, in addition to assessing political identification, it makes sense to also look carefully at the level and kind of education. It isn’t just a matter of the additional knowledge, but also the fact that education, along with occupation, will tell you something about whether the potential juror has a habit of being inquisitive and analytical, or whether they have a habit of making decisions based on habit and “gut” instinct.

Ultimately, the more you’re able to know about your potential jurors, the better. And these days, it pays to keep in mind that many of the stable identifiers — not just politics, but also region, religion, and socio-economic status — are in flux.


Image credit: 123rf.com, combined by the author 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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