Key Considerations for Defense Teams in Civil Jury Trials - Part 1
Part 1 of 2
Defense 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. Ever since the onset of the COVID-19 pandemic, much has changed in litigation and trial management. The plaintiff’s bar has seized opportunities for collective learning and strategizing during this time. Several top plaintiff trial attorneys and experts have predicted that plaintiffs will have a strong advantage in jury trials and 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 have impacts on the composition of the venire.
This two-part blog presents key considerations that trial attorneys, in-house counsel, and claims professionals should deeply ponder in evaluating the advantages and disadvantages of a civil jury trial in today’s world of post-pandemic litigation.
Jurors’ perceptions of corporations and of specific groups of defendants is always an important consideration for counsel and claims professionals. 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. Our research shows that the impact of the pandemic on these perceptions is that 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 because of the coronavirus, and to be very or extremely concerned about getting sick.
Importantly, 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.
The mental state of jurors
Courtroom Sciences’ 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.[i] Research on information processing and decision-making explain this relationship.[ii] 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.[iii] 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.[iv]
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 even prior to COVID-19 will likely still view the case through a pro-defense lens, although they may do so in a less careful or analytical manner.
Further, Courtroom Sciences data do not align with many reptile plaintiff attorneys’ predictions that jurors will become much more sympathetic due to living through the pandemic. In a 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 a post-COVID Courtroom Sciences survey, 26% strongly agreed and 60% agreed with this statement. The differences between pre-COVID and post-COVID results are minor and not statistically significant. It should also 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. Ultimately, defense counsel and clients should be aware of how emotional distress affects juror decision-making and careful, sensitive supplemental juror questionnaire and voir dire inquiries can identify prospective jurors whose decision-making will likely be impacted by stress or other issues.
[i] Speckart, G. (2000). Identifying the plaintiff juror. For the Defense, 42 (9).
[ii] 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.
[iii] Mathews, A., Ridgeway, V., & Williamson, D.A. (1996). Evidence for attention to threatening stimuli in depression. Behavior Research and Therapy, 34, 695-705.
[iv] 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.
Juror Confirmation Bias