Litigation trends in 2021 - part 1
If 2020 taught us anything, it is that making predictions about the future is foolhardy. Though the unexpected is likely to be woven into every aspect of our lives and businesses, there often are trends and developments that are worth being aware of and prepared for. Considering that approach, these are some challenges and opportunities that litigators should ponder and prepare for in 2021.
Increases in settlements
With courts shut down or operating at reduced capacity across the country, the backlog of civil litigation only continues to increase, while plaintiff attorneys continue to file suits at a breakneck pace. The conflating of these two circumstances creates both the necessity and opportunity for more settlements and mediations. Clients will look to their counsel to help them navigate their cases and make informed decisions about how to manage each one.
One way in which litigators can help their clients is by ensuring that any witnesses are psychologically trained prior to mediation or settlement discussions. A poor performance at deposition will significantly hinder your client’s options when engaging in mediation or settlement negotiations. Your witnesses need to be trained to combat plaintiff reptile attacks, to manage their emotions, and be taught not to use their “workplace brain” but instead develop a “litigation brain” before their deposition. The concept of the “litigation brain”, taught by a trained litigation psychologist, gives your witnesses the tools to handle the tricks, traps, and combative approach taken by opposing counsel.
Another way that litigators can benefit their clients prior to settlement negotiations is by investing in early jury research via a virtual focus group to gather data on what a mock jury believes the case is worth. Opposing counsel is likely doing research on the case too, so you do not want to give them the upper hand. Early jury research helps you understand the ‘blind spots’ in your litigation and arms you with research data – both quantitative and qualitative - that you and your client can use to make strategic decisions about how to manage the case and feel confident that you aren’t overpaying during settlement.
The researchers at Courtroom Sciences, Inc. have surveyed mock jurors since the beginning of the Coronavirus pandemic. These survey results indicate changes in juror sensitivities, perspectives, and their decision-making approach. Juror perceptions are changing, and this will require a more thoughtful and scientific approach to voir dire. The “standard” questions that litigators have grown accustomed to asking potential jurors for the past several years will not be enough in the age of Covid-19. A more thorough and precise questioning strategy (and questionnaire) is imperative to ensure that the psychological changes experienced by potential jurors due to the pandemic and the impacts it has had on their lives, health, income, and loved ones is taken into account. If voir dire is not approached in a more deliberate manner, and a deeper level of analysis of the results is not conducted, there is a risk that you may select a jury that surprises you, in a very negative way.
It would not be overstating things to say that more people are on edge now than they were before the onset of the Coronavirus. The strain on everyone’s mental health has increased significantly since early 2020 and though there are reasons to be optimistic about the future, pressures remain. Our research reveals that people are more anxious since the start of the pandemic and are more concerned about the plight of others. These increases in anxiousness and empathy can play into how witnesses (and jurors) respond during the litigation process. Witness performance at deposition is critical to case outcomes and witnesses may require more work with a psychology professional to be fully prepared for the stress and challenge of testifying. Opposing counsel can, and will, take advantage of the anxiety, fear, and worry that your witnesses are experiencing if they are not properly trained by someone who understands how to manage the mental health of a witness.
Learn more about witness effectiveness training.
It’s safe to say that our perception of front-line workers has changed since the start of the pandemic. Collectively we have begun to recognize and appreciate the role that these essential workers have played in our daily lives. Nurses, doctors, other healthcare professionals, grocery store workers, truck and delivery drivers, and more have been critical in allowing all of us to manage our health and have access to necessary supplies while doing our best to stay safe.
There are two important considerations when thinking about front-line workers. The first is the perspective that the average juror may now have for people in these positions and how that perspective may have changed from before the pandemic. Assumptions that were made about how jurors perceive truck drivers, for example, will be tested when jurors are reminded how truck drivers risked their personal health to deliver the food, toilet paper, and other crucial household supplies that we took for granted in the past. And the impact that healthcare professionals have had on our lives, and the risks they assumed to help the most sick and vulnerable during the pandemic, is obvious. Juror perception of these front-line workers must be taken into consideration when selecting a jury panel.
The second consideration is thinking of the psychological state of these front-line workers when they are called to testify. Unlike many others, “essential” personnel were not given a choice about whether they would do their jobs or not during the pandemic and did not have the option to convert their role to a virtual one. Their physical presence was required, and they had scant time to consider the dangers and implications of being deemed “essential”. They simply had to do their job. The mental strain associated with both the job itself, combined with the pressure of not knowing whether they or their loved ones were going to be safe, is something that must be addressed prior to sitting for testimony. A trained professional should be leveraged to conduct a full psychological evaluation of a front-line worker witness to ensure that they are capable and prepared for the adversarial experience of testifying.
The Role of Cognitive Fatigue on Witness Performance