Photo of Stephen McConnell

For once, our happy birthday wish really has something to do with births, specifically the significance of birth cohorts for litigation strategies and tactics. The actor Paul Rudd is celebrating his birthday today. We like Paul Rudd. We liked him when we first saw him in Clueless. We liked him in all those Judd Apatow and Apatow-esque movies, such as The 40 Year Old Virgin, Knocked Up, Forgetting Sarah Marshall, and I Love You Man. Rudd is likeable even when he is playing a jerk, as in Wet Hot American Summer (both the film and the Netflix series). IMDB lists 100(!) acting credits for Rudd. Rudd usually plays comedy, but we also saw him in a grim Broadway play called “Grace” a couple of years ago. We liked him in that. Pretty much everybody likes Rudd. There’s even a current Bud Light ad campaign where Seth Rogen and Amy Schumer mention how everybody likes Paul Rudd. Rudd seems to have lots of friends in Hollywood. He shows up in projects with the same people again and again, as in the Anchorman films. He has been in five films with Elizabeth Banks, for example. In fact, this ensemble-ness is something we’ve noticed with Generation X entertainers. They seem very collaborative. They show up in each others’ projects, sometimes uncredited, in a free-flowing, generous manner. (Contrast that with the leering booziness of the Rat Pack). Gen X has been defined in various ways, but those definitions seem to cluster around the cohort of people born between 1965 and 1981. Rudd was born in 1969. Ben Stiller was born in 1965. John Cusack was born in 1966. Apatow was born in 1967. Banks was born in 1974. Gen X is a much smaller cohort (approx. 47 million) than the Baby Boomers (80 million) and the Boomers’ children, the Millennials (76 million).

Has there ever been a more maligned generation than X? They were called slackers and whiners. They were deemed the sandwich generation, bitter about the Boomers’ relentless self-centeredness and the Boomers’ seeming determination to keep the seats in corporate America warm for the Millennials. The economy seemed to have no great love for X-ers, and the X-ers returned the favor. These generational generalizations are necessarily wrong almost as often as they are right, but everybody plays this game, so we’ll play along. According to the conventional wisdom, as in a widely read 1990 article in Time Magazine, Gen X-ers are indecisive, have low SAT scores and short-attention spans, and sneer at status. It was also said that a huge chunk of Gen X has been wounded, maybe even scarred, by divorce. Every generation is said to have its big childhood (or ‘emerging adulthood” – a term invented for Gen X) imprint moments. For Boomers, the JFK assassination, Vietnam, and Watergate are the unforgettable events. Gen X’s biggest moment was supposedly sitting in a classroom and watching the Challenger shuttle blow up with a schoolteacher aboard. But the conventional wisdom ( e.g., a 1997 article in Time) has shifted. It’s as if we fogies woke up one day and realized that Gen X cuts a pretty pleasant profile. It’s a stereotype, of course, but Gen X is now viewed as prizing work-life balance, multiculturalism, tolerance, and collaboration. The X-ers still resist snobbery, but express that sentiment by prizing and elevating the quotidian. Is it any accident that Aaron Franklin, the reigning guru of barbecue, is an X-er? Take a stroll through your average downtown, and much of what makes that downtown wonderful is the work of X-ers. Who do you think is responsible for all those microbrews on tap, as opposed to the bad old days where Schlitz was the exotic option?

There is a lot of jury research out there about Generation X. More and more jurors reside in Generation X. More and more judges too, for that matter. Maybe most of you readers are in Generation X, in which case everything in this post will, for you, fall into the category of Things You Already Know or Things You Already Know Are Stupid. Much has been written about how to appeal to Generation X, more by plaintiff lawyers than the defense side. We know of one super-successful plaintiff lawyer who has an engaging schtick about the differences among Greatest Generation, Boomer, X, and Millennial jurors. The communication suggestions break down into form and content. In terms of form, we are told that Generation X likes to see things rather than hear them. Snappy graphics are a must. Reading depositions is death. X jurors will either nod off or punish the offending, boring party. Overblown rhetoric will provoke more skepticism than admiration.

In terms of content, the learning is that Generation X has no love for corporate America, resents when defense lawyers criticize plaintiffs for malingering or failing to mitigate damages, and is very concerned with effects on families. At a minimum, a little knowledge about the cultural experiences of your jurors might shape the allusions a lawyer chooses to employ. In a recent CLE, we mentioned Perry Mason, and were greeted by a sea of blank faces. Next time, we’d better call up a reference to Saul. In the literature we’ve reviewed, there seems to be disagreement regarding Generation X’s stand on personal responsibility. (Again, we know it is a bit silly to suggest unanimity among 47 million people. As common sense and your friendly neighborhood jury consultant will tell you, individual experiences are far more important. But we’re almost done, so show some patience, you impatient, cynical slackers!) Some pundits say that Generation X dwells on feelings of victimization, but others say that this generation of latchkey children ended up learning to shift for themselves.

These broad brushstrokes do not take one very far, or perhaps anywhere. But we read something that brought us up short in an article titled “The Generation X and Y Factors.” It was written by Delany, Governo, and Noffsinger, and appeared in the January 2013 issue of For the Defense. After going over a sociological overview far more comprehensive and refined than anything here, the authors report on the outcome of a product liability mock trial. You should read the article to get the particulars, but the outcome is arresting: The Generation X jurors consistently wanted to award more money than the Boomers or Millennials (called Generation Y in the article) did. The differences, particularly among the jurors who chose the highest numbers within their cohort, were not trivial. As the authors say, “Beware the X if you have a plaintiff’s verdict.” Remember how we said that Generation X seemed quite collaborative? If you are defending a corporation, the prospect of a bunch of collaborating Generation X-ers should give you and the client a severe case of agita.

We’d rather see Paul Rudd on a movie screen than on a jury.