Jury trials during a pandemic: what to consider - part 1
Part 1 of 3
Despite the ongoing pandemic, civil jury trials have resumed in many venues throughout the United States. There is little doubt that the frequency of civil jury trials will increase with more widespread distribution of vaccines and the implementation of new social distancing courtroom protocols. Consequently, counsel and claims professionals should be evaluating the risks that changes in social conditions, juror beliefs, and juror behaviors may pose financially and to the defense overall in light of the pandemic’s effects.
The plaintiff’s bar has seized opportunities for collective learning and strategizing during this time. Several top plaintiff trial attorneys and experts featured in recent well-attended CLE-type trainings have predicted that plaintiffs will have a strong advantage in jury trials conducted in the midst or wake of COVID. Some claim that the experience of living through the COVID-19 crisis will result in more sympathetic jurors who are motivated to help plaintiffs and their families, and to punish defendants. Additionally, the ongoing pandemic may shape the venire. For example, in some venues, jurors age 65 and above can be automatically excused from jury service even if they have no pre-existing health conditions or are not concerned about contracting COVID-19.
article presents key factors that trial attorneys, in-house counsel, and claims
professionals should consider in evaluating the advantages and disadvantages of
a civil jury trial in the midst and wake of the coronavirus pandemic. In doing
so, we incorporate data collected by Courtroom Sciences, Inc. (CSI), other
current and prior published research results, and social psychological theory. We
then provide recommendations for counsel and claims professionals to consider
in achieving favorable trial outcomes in the COVID era.
1) Jurors’ Perceptions of Corporations and Industries
Jurors’ perceptions of corporations and of specific groups of defendants is always an important consideration for counsel and claims professionals. In the COVID-era, the two primary questions of interest are 1) To what extent has the coronavirus affected jurors’ perceptions of my client?; and 2) To what extent will these perceptions affect trial outcomes?
We cannot definitively answer these questions without individually analyzing and conducting pre-trial research involving specific cases, but we can provide research results regarding juror perceptions of corporations in general as well as specific industries in light of the coronavirus. Between July and November of 2020, CSI obtained responses from 833 jury-eligible adults who were asked to indicate how their feelings towards a variety of industries and entities have changed as a result of the coronavirus, if at all.
shown in Figure 1, most respondents (64%) reported that their perceptions of
small businesses had become more positive as a result of the coronavirus,
whereas only 8% of respondents reported more favorable perceptions of large
corporations. Almost one-quarter (25%) of respondents reported more negative
perceptions of large corporations, and the remaining 68% said that their
perceptions had not changed. In fact, a majority of jurors said that their
perceptions of the various entities had not changed as a result of the
coronavirus, with the exception of small businesses and hospitals. Yet, the
finding that 24% of jurors reported more negative perceptions of large
corporations may be concerning for many defense teams, especially given the
typical juror has not formed solid attitudes about particular companies;
rather, their broader beliefs about corporations in general tend to shape their
perceptions of individual corporate defendants.
However, it is unlikely that the coronavirus has led to a shift in public perceptions of corporations that would seriously disadvantage most corporate defendants. The current results likely reflect polarization.[i] Those who previously held neutral or positive attitudes towards large corporations have not “changed sides,” but individuals who previously had negative perceptions about large corporations may have become more extreme. Those who said that their feelings about corporations have become much less favorable were significantly more likely than their counterparts to identify as liberal, agree that they have become stronger in their political attitudes and beliefs as a result of the coronavirus, and to be very or extremely concerned about getting sick.
Further, although some respondents may believe that their feelings about large corporations have become more negative, comparisons of survey data obtained before and after the COVID-19 crisis do not reveal a significant increase in anti-corporate attitudes. We compared a CSI survey of over 1000 mock jurors conducted between January 2018 and January 2020 to the current sample and found no differences in responses to all seven items measuring attitudes and beliefs about corporations. For example, pre-COVID, 67% of respondents agreed that taxes for large corporations should be increased compared to 63% of post-COVID respondents. Pre-COVID, 64% of respondents agreed that lawsuits are important to keep corporations honest; post-COVID, 66% agreed. Approximately 57% of both pre- and post-COVID respondents agreed that corporations take advantage of individuals. Gallup poll results also fail to demonstrate significant changes in American’s attitudes towards large corporations between 2019 and 2020.[ii]
jurors’ general perceptions of various types of defendants often do not predict
verdicts. In cases with strong evidence in support of one side or the other, jurors’
general perceptions of large corporations or perceptions of specific defendants
will make little difference in their verdicts. However, in cases with more
ambiguous evidence, jurors will be more inclined to rely on their pre-existing perceptions
and attitudes, as well as on the conduct and character of the parties. This is
why counsel and claims professionals must consider prospective jurors’
attitudes towards a specific defendant in combination with case strength and
jurors’ likely perceptions of key witnesses when facing a jury trial.
2) Willingness to Serve during the Pandemic
In the same Courtroom Sciences survey described earlier, which was administered during the late summer and fall of 2020, respondents were asked, If you received a summons
to appear at the courthouse for jury service within the next 30 days, would you
appear? Over half (56%) said that they would if they felt that social
distancing and other safety precautions were in place (see Figure 2). An
additional 22% would report for jury service with no concerns about social
distancing or safety precautions. Approximately 11% would not appear due to
COVID-19, and 10% were not sure whether they would appear or not.
In contrast, a survey conducted by Courtroom Sciences in May of 2020, closer to the start of the pandemic, revealed that 28% of respondents would not appear for jury service within the next 30 days due to concerns about the coronavirus. These earlier findings are consistent with findings from a National Center of State Courts survey conducted in the spring of 2020.[i] Thus, our most current results suggest that prospective jurors are becoming more open to the idea of serving on a jury in the midst or wake of the pandemic.
There is evidence that individuals who would opt out of jury service for reasons related to COVID-19 tend to be more plaintiff-leaning in their attitudes. Compared to those who would be willing to serve (either with social distancing protocols in place or with no COVID-concerns), those who said that they would not report for jury service due to COVID-19 concerns were more likely to strongly agree with the following statements:
· When something bad happens, someone needs to be held responsible.
· Corporations should be held to a higher standard than individuals.
· The government needs to increase regulations that apply to large corporations.
· An important function of juries is to send messages to companies to improve their behavior.
· The company is more responsible than employees for making sure that employees stay healthy in the workplace.
Even more importantly, these plaintiff-oriented attitudes are indicative of juror behavior. Not only is there evidence that jury duty “no shows” due to COVID-19 hold more plaintiff-oriented attitudes, there is also evidence that these “no shows” would vote more favorably toward the plaintiff in actual jury trials. A subsample of 374 CSI survey respondents also served as mock jurors in the late summer and fall of 2020 and provided pre-deliberation votes for plaintiff(s) or defendant(s). Those who would report for jury service within the next 30 days with no concern were significantly more likely to vote for the defense (61%) compared to the plaintiff (39%). In cases involving apportionment of fault, those who would not report for jury service due to COVID-related concerns attributed, on average, 54% of the fault to defendant(s), whereas those who would report with no concerns on average assigned 35% of the fault to defendant(s).
CSI research reveals that overall, jury-eligible adults are willing to report for jury service during the pandemic, though most say that they will only do so if proper safety and social distancing protocols were followed. The small proportion of those who would not report due to COVID-19 concerns do tend to “lean plaintiff” and endorse more traditional pro-plaintiff beliefs compared to their counterparts. For those concerned about losing older jurors, it should be noted that analysis of the more current CSI data as well as of archival data did not reveal any significant differences in the verdict preferences of senior jurors compared to other generations. Although juror attitudes and external factors differ across venues, current research results do not indicate that venires during and immediately post-COVID will be unfavorable for defendants.
[i] GBAO Strategies (2020). Jury trials in a (post) pandemic world – National Survey Analysis. National Center for State Courts. Available at https://www.ncsc.org/__data/assets/pdf_file/0006/41001/NCSC-Juries-Post-Pandemic-World-Survey-Analysis.pdf
[i] Sicafuse, L. (2020). Impacts of the COVID-19 crisis on jurors’ attitudes and decisions. Irving, TX: Courtroom Sciences, Inc. Available at https://www.courtroomsciences.com/slides/slide/impacts-of-the-covid-19-crisis-on-jurors-attitudes-and-decisions-1003
[ii] Gallup (2021). Big business. Available at https://news.gallup.com/poll/5248/big-business.aspx
The Role of Cognitive Fatigue on Witness Performance