Jury trials during a pandemic: what to consider - part 2
Part 2 of 3
In part 1 of this article, we covered two of the four 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 this second part, we discuss the remaining two factors to consider: jurors’ mental health and emotional states and jurors’ susceptibility to Reptile tactics.
3) Jurors’ Mental Health and Emotional States
Most, if not all of us, have experienced stress or anxiety as a result of the COVID-19 crisis at some point; we also understand that the COVID-19 crisis has negatively impacted the mental health and well-being of many jury-eligible adults. Several national surveys have explored this topic. For example, the nationwide CDC Household Pulse survey found that in December of 2020, 37% of respondents reported symptoms of anxiety disorder and 29% reported symptoms of depressive disorder.[i] This is a significant increase from the findings of the January – June 2019 Household Pulse survey, which found that 11% of respondents reported symptoms of anxiety disorder and nearly 7% reported symptoms of depressive disorder. The Kaiser Foundation Tracking Poll revealed that 32% of respondents in the March 2020 survey said that their mental health has been negatively impacted due to worry and stress over the coronavirus; in July 2020, this increased to 52% of respondents.[ii] Approximately 36% of participants in an October 2020 Morning Consult Survey self-reported that their mental health has gotten worse during the pandemic.[iii]
CSI consultants have been aware for many years that jurors experiencing stress, anxiety, depression, or other mental health issues are more inclined to favor plaintiffs than those who are not.[iv] Research on information processing and decision-making explain this relationship.[v] Anxiety and stress sap cognitive resources, and thus increase the likelihood that sufferers will engage in what is known as the heuristic or experiential information processing mode. In this processing mode, individuals rely on heuristic cues or “rules of thumb” for reasoning (e.g., this lawsuit made it all the way to court, so the defendant must have done something wrong; there are many more people at the defense table compared to the plaintiff’s table…it is clear the plaintiff is outnumbered and this is unfair). Heuristic or experiential information processors tend to make decisions quickly and rely on emotions and intuition; they are also particularly influenced by graphic or “gruesome” photograph evidence. People less affected by anxiety or stress, or who are better able to manage these conditions, are more likely to have the cognitive resources needed to engage in central or rational processing. In this processing mode, individuals more carefully and deliberately analyze information and are thus more likely to reach a logical conclusion, which is favorable for most defendants.
Like those experiencing stress or anxiety, individuals with symptoms of depression are more likely than those without symptoms to have difficulty attending to information and thus may make decisions before all the information is presented. Many people with symptoms of depression are cognitively wired to focus on negative, threatening information and cues.[vi] Further, those suffering from depression, on average, are more sympathetic to others who claim to have been harmed and have stronger negative emotional reactions to purported unfairness.[vii]
Concerns about the effects of jurors’ health and emotional states on trial outcomes are indeed valid from the defense perspective. However, a juror experiencing stress or mental health issues is not automatically a plaintiff juror. Such jurors tend to rely on their pre-existing beliefs when evaluating a case; therefore, those with strong pro-defense inclinations prior to COVID will likely still view the case through a pro-defense lens, although they may do so in a less careful or analytical manner. Further, CSI data do not align with many reptile plaintiff attorneys’ predictions that jurors will become much more sympathetic due to living through the pandemic. In the survey of over 1000 mock jurors conducted from January 2018 to January 2020, nearly one-third (33%) strongly agreed that others would describe me as a person who is sensitive to others in need, and an additional 56% agreed with this statement. In the post-COVID CSI survey, 26% strongly agreed and 60% agreed with this statement. It should be noted that most jurors will describe themselves as sympathetic when asked and that defense counsel should be vigilant for those who strongly agree with sympathy-related inquiries.
defense counsel and clients should be aware of how emotional distress affects
juror decision-making within the context of the pandemic, but the fact that many
jurors may be experiencing stress and mental health issues does not necessarily
mean that trial should be postponed. Careful, sensitive supplemental juror questionnaire and voir dire inquiries can identify prospective jurors whose
decision-making will likely be impacted by COVID-related stress or other
4) Jurors’ Susceptibility to Reptile Tactics
The reptile theory has been a serious concern among civil defense teams for the past decade. However, there is a renewed enthusiasm for advancing and perfecting reptile tactics among the plaintiff’s bar, with many attorneys claiming that jurors will be even more susceptible to reptile approaches as result of living through the COVID-19 crisis. Currently, there is little empirical data to definitively support or refute this prediction. Although some circumstances of the COVID-19 crisis may prove more favorable to plaintiff reptile attorneys, defense attorneys can also use jurors’ COVID-related experiences to their advantage.
There is no doubt that corporate communications with consumers and the general public have vastly increased as result of the pandemic. Many of these communications unintentionally raise legal standards; for example, stating that employee and consumer safety is the top priority or that the defendant is doing everything possible to ensure the health, safety, and well-being of consumers and the community. Such language plays straight into the plaintiff reptile attorney’s hand and will be valuable ammunition at both deposition and trial. In addition, repeated exposure to such language can increase the likelihood that jurors will apply these unattainable rules and standards to evaluate corporate defendants. Small business owners are also susceptible to reptile attacks, especially if they have publicly over-promised to customers or employees during the COVID-19 crisis.
We have attended presentations during which some consultants and attorneys have cited strong juror agreement with reptile-type statements and rules in recent questionnaires as evidence for increased susceptibility to reptile tactics. In our own recent survey, 95% of participants agreed that “Nothing should be more important to a corporation than the health and safety of employees and the community.” However, a vast majority of mock jurors (90% or greater) participating in CSI mock voir dire or focus group projects endorsed reptile-type statements pre-COVID. It is natural for jurors to automatically agree with statements such as “Companies must always put safety first,” “A company must never do anything that needlessly endangers an employee,” and “Companies should do everything they can to ensure the safety of its customers and the community.” Therefore, jurors’ current agreement with reptile statements and principles is not necessarily indicative of a substantial change.
have argued that experiencing the COVID-19 crisis can make jurors less
susceptible to reptile tactics. Attorneys J. Chandler Bailey, Rachel Lary, and
Logan Matthews proposed that jurors may now be more likely to consider the
complexities of decision-making rather than viewing health and safety as “black
and white.”[viii] All of us have made many decisions based on a risk/benefit analysis due to the coronavirus; for example, whether to send our children to school or daycare; whether to keep jobs that require social interaction, and whether to seek routine preventative health care. Many jurors now understand that health and safety are important goals but cannot be guaranteed and that individuals have responsibilities in promoting their own health and safety during the pandemic. In the midst and wake of COVID-19, defense counsel can advance several analogies to dismantle plaintiff efforts to establish health and safety as all or nothing concepts. CSI researchers are currently collecting data to further explore how the COVID-19 crisis may affect jurors’ reactions to both reptile and anti-reptile approaches.
[i] National Center for Health Statistics (2020). Anxiety and depression: Household pulse survey. Available at https://www.cdc.gov/nchs/covid19/pulse/mental-health.htm
[ii] Panchal, N., Kamal, R., Orgera, K., Cox, C., Garfield, R., Hamel, L.,…Chidambaram, P. (2020). The implications of COVID-19 for mental health and substance use. Kaiser Family Foundation. Available at https://www.kff.org/coronavirus-covid-19/issue-brief/the-implications-of-covid-19-for-mental-health-and-substance-use/
[iii] Galvin, G. (2020). Daily life has gotten worse for nearly 2 in 5 adults during pandemic, survey shows. Morning Consult. Available at https://morningconsult.com/2020/12/08/pandemic-daily-life-polling/
[iv] Speckart, G. (2000). Identifying the plaintiff juror. For the Defense, 42 (9).
[v] See Evans, J.S.B.T. (2008). Dual processing accounts of reasoning, judgment, and social cognition. Annual Review of Psychology, 59, 255-278; and Kowalksi-Trakofler, K. M., Vaught, C., & Scharf, T. (2003). Judgment and decision-making under stress: A review for emergency managers. International review of emergency management, 1, 278-289.
[vi] Mathews, A., Ridgeway, V., & Williamson, D.A. (1996). Evidence for attention to threatening stimuli in depression. Behavior Research and Therapy, 34, 695-705.
[vii] Tanaka, T., Yamamoto, T., & Haruno, M. (2017). Brain response patterns to economic inequality predict present and future depression indices. Nature Human Behaviour, 1, 748-756.
[viii] Bailey, J. C., Lary, R. M., & Matthews, L. T. (2020). Current crisis may render plaintiff ‘reptile’ tactics ineffective. Available at https://www.law360.com/articles/1271720/current-crisis-may-render-plaintiff-reptile-tactics-ineffective
The Role of Cognitive Fatigue on Witness Performance