Episode #14 – Jurors in the age of coronavirus

This Litigation Psychology Podcast video episode features Dr. Bill Kanasky and Dr. George Speckart discussing the potentially far-reaching impacts of the COVID-19 pandemic on jurors and jury panels. Dr. Kanasky and Dr. Speckart compare this pandemic to other ‘black swan’ events from the past, talk about juror attitudes and potential changes in the COVID-19 era and the future for nuclear verdicts.

Full Episode Transcript

Bill (0:04)
welcome to the litigation psychology podcast video version again we have Dr. George Speclart with us George I’ve been getting worn out with emails and phone calls well actually I’ve been getting worn out in two ways number one I’m getting emails from every company under the sun telling me how my safety and my health is their top priority have you ever been getting any of these

George (0:31)
no they don’t care if I die

Bill (0:38)
that’s a whole other podcast but the secondary group of calls and emails I’m getting is from attorneys saying how is covid 19 the coronavirus going to impact jury decision-making going forward how’s it going to impact the court system let’s talk a little bit about that cuz I know that you have some theories how do you think I mean based on your 30-plus years of experience of studying jury decision-making how do you and you’ve got your 911 you got your 2008 economic you’ve got some other things to compare to how you think covid 19 impacts jury decision making if at all

George (1:23)
well first of all I think covid 19 is worse than any of the other Black Swan events that you mentioned because it’s something that dredges on day after day and bringing with it a personal terror that either I’m gonna get it or my kids or my my mother or whatever and it’s you know you’re constantly wondering if I touch this so I need to wash my hands and I can’t touch my face now and I can’t let anyone you know just going to market and getting food could be deadly you all everybody knows the issues here so I don’t need to spend time on that but the real issue for me is what will this do to juror behavior

in order to answer that of course we’d like to answer it scientifically but in order to answer it scientifically one would have to take a match set of circumstances for one case and an identical case before-and-after covid 19 and compare the results and of course you can’t do that couldn’t design research to actually give you an unequivocal answer for something it’s gonna have to be observation and anecdotal work and analytical theorizing

so here’s what we have on our end prior long prior to all this we had published a paper called identifying the plaintiff juror it was for the defense in 1999 and in it through decades of psychological measurement and similar types of analyses of juror profiling we came to the conclusion that there is in fact what we call a universal plaintiff juror in other words a set of temperament characteristics or traits that are our personality constructs our personality dimensions that identify a person who is receptive to the notion of a complaint so these are the people that resonate with the idea of being a plaintiff

George (3:33)
and they have these following characteristics as far as personality traits or stable temperament characteristics in other words this is how they are all the time vulnerability cynicism instability arouseability and depression now by the way cynicism is not the same as skepticism. skepticism means I’m not gonna believe it until you show me that’s a defense juror

Bill (4:01)
Skepticism is actually a positive thing for a defendant, right?

George (4:05)
yeah, skepticism is good if you’re a defense cynicism is a stable generalized tendency to see the world as inherently sinister prevalent or predatory sinister predatory or malevolent I should have said okay so those are traits now in psychology we have a distinction between what we call trait and state emotional conditions trait is how you are all the time that’s your personality state is temporary as a result of external stressors or vectors that come from the environment events cause state conditions so what we’re talking about here is that the covid 19 phenomenon is a unique and potent stressor that creates state conditions that are very much along the lines of these identifiers of the universal plaintiff juror

George (5:09)
they create feelings of vulnerability feelings of cynicism instability arouseability depression all of these things that identify the universal plaintiff juror from a trait perspective are being created in a state event in other words emotional state as a result of these stressors created by covid 19 what that all means is that plaintiff jurors bad jurors are gonna become worse and medium jurors are gonna become bad as a result of these stressors

Bill (5:48)
well I’m sure that’s the message everybody wanted to hear on this podcast

George (5:52)
well what has gotten better you know I mean yeah I guess we have more time for reading and meditating and listening to music but you know the silver linings but if you look around just in the news just about everything’s falling apart right now and you know why should things with jurors get any better right

Bill (6:13)
yeah I mean it’s this is an issue that’s not gonna go away anytime soon and how do you see because I mean I talked to an attorney yesterday in California and he’s like if you file a lawsuit you’re not gonna have a trial in the next three to five years I mean and maybe that’s gonna be different from region do you see maybe a difference in regions cuz I mean you know if you have a trial in Lincoln Nebraska that’s a little different than having a trial in Manhattan or Los Angeles do you see maybe things opening up very differently across geography

George (6:58)
I don’t see the regional differences that we’re all familiar with in the litigation arena I don’t see those types of distinctions having any kind of qualitative changes as a result of covid 19 the same differences in Lincoln Nebraska versus Manhattan are going to be there except that everybody as a general rule we’ll just we’ll just overall get worse

George (7:23)
now there’s more to it than this because one of the things that is pointed to quite frequently in the context of the nuclear verdict is jurors being just kind of fed up and that’s what’s giving rise to these huge you know hundred million dollar verdicts is that jurors are just reading things in the newspaper and not the newspaper of course but more media online that sort of thing and just getting fed up with the news and what people are doing

and now we’re adding to all this large corporations and millionaires or even billionaires kind of muscling in on this relief money and taking it away from the small businesses that really need it and those kinds of stories just adding more fuel to the fire of this whole syndrome of being fed up with how things are being run and of course our country perhaps not doing as well as others like Germany and Australia in terms of managing this crisis could be creating more anger there too

George (8:29)
you know which I just heard on the news today of course you cannot go and get tested if you want to but you know Trump and his people get tested every other day so you know there’s like you know some people the important people get to get to have testing but we don’t you know just a myriad of things that people could latch onto to fuel their resentments it’s just another reason for why things might be getting worse

Bill (8:56)
now we’ve talked previously about the whole concept of the juror that’s punitive in nature that wants to punish versus the concept of wealth redistribution can you maybe talk a little bit about the differences there between jurors that authentically want to punish a company versus maybe the ones that just say hey this company’s got plenty of money let’s spread the wealth

George (9:32)
I think those are highly correlated constructs that you probably couldn’t differentiate them if you wanted to try to separate them in other words in psychological measurement we have a term called divergent validity in other words do two constructs identify different things enough so that they would qualify as being separate distinct ideas and I’m not sure those would I don’t think they would I think those are two sides of the same coin

Bill (10:06)
yeah do you think going forward here because I’ve talked to many a defense counsel and tried to answer their questions the best I can but going forward particularly in the area of voir dire in jury selection I don’t think what defense counsel’s maybe been doing for the last ten years is gonna work anymore what are some of the maybe new questions they’re gonna have to ask related to covid 19 to tap in the some of these experiences and emotions that they never had to ask before but they better start asking these questions

George (10:45)
yeah well you know one of the things you always want to do is ask about any what sociologists call life events and in the literature life events refer to things like medical problems financial problems legal problems all those kinds of things that happen to people you know losing your home losing a loved one losing a job these are these are what sociologists call life events

George (11:22)
so what will have to happen going forward in voir dire is that attorneys will have to probe to find out what kinds of life events have arisen recently as a result of covid 19 and what’s important here is what’s always been important which is how did they cope with it not just how did it happen but how are they coping with it because plaintiff jurors tend to kind of nurse their wounds and wallow in the depression whereas defense jurors tend to get up quickly dust themselves off and move on so you want to know how are they psychologically coping with it what have they done and how is it going now in terms of their coping mechanism or coping strategies

Bill (12:11)
very important stuff last point George when we start talking about nuclear verdicts a couple months ago you know we authored that which i think is just a fantastic paper for DRI that just got published in April for the defense we talk a lot about the lack of I guess sensitivity regarding finances and money and economics particularly with today’s jury pool you know Dak Prescott in Dallas in your neighborhood you know he wants 40 million dollars a year to throw a football and to take the Cowboys to an 8 and 8 season people see money yeah what a deal I wish I could do that and then you know somebody on the Weather Channel is getting  2 million dollars a year to be correct half of the time I think people see money very differently and now you have the federal government you know throwing out you know these loans to businesses and where do you kind of see how jurors perceive money and do you see damages becoming even more I mean we talk about the nuclear verdict maybe there’s something above the nuclear verdict that’s gonna come next because of all this

George (13:41)

that’s like going from the a-bomb to the h-bomb right

Bill (13:46)
yeah I mean can the nuclear verdict this is the crazy question I’m gonna throw it out and this is totally unfair to you and we haven’t prepared for this can there be something beyond the nuclear verdict because of covid 19 I don’t know

George (13:59)
No but there can be more nuclear verdicts because nuclear verdict says it stands now is not something you see every day I mean they pop up every now and then you know but you know it could very well be that they will become more prevalent and not only that but the punitive jurors could become more a higher proportion of jurors right now punitive jurors are not you know even 50% they range from maybe 10 to 40 percent of a venue depending on how bad it is but you know you could very well see those proportions start to go up so you could start to see more nuclear verdicts and more jurors who have punitive dispositions and/or dispositions of just hey we need to redistribute wealth you know we need to start taking money away from the rich people and giving it to the people that need it ya know

Bill (14:51)
that’s a very good point final I keep saying final point but things keep popping in my head how would you characterize the importance of this covid 19 event the importance of a mock jury and focus research going forward because I think this is such a huge event that if defendants particularly because I know the plaintiff attorneys are gonna keep doing this stuff and they do many more mock trials and injury research than the defense bar describe maybe the importance of doing such research going forward to tap into jury attitudes and belief systems that arguably have been severely shaken from covid

George (15:47)
the importance has always been there you know we call people who don’t do research flying blind into trial and that’s you know exactly what it is just if you want to subject yourself the things that go bump in the night nasty surprises have at it but we prefer to know what’s coming

the question of how are we going to work around covid 19 to construct and carry out and implement valid scientifically valid research is a question that still under construction in other words we are still at the drawing board on that one we are there’s the issue of online mock trials but we have serious reservations about those

George (16:30)
you know I just talked to a client the other day who said I don’t want to do the online mock trial I don’t want you know to have a juror that’s playing with their dog you know while I’m presenting and I said my god absolutely you know and I mean the whole purpose of having scientific validity in your research is to simulate actual trial conditions that’s how you get scientific validity and of course online mock trials are about as far away from that as you yes

George (17:02)
so the question becomes do you want no research or do you want bad research and what we’re trying to do is create a third option here that’s where we are now at the drawing board we think we’ll have something soon as far as a social distancing real mock-trial

Bill (17:32)
yeah we are definitely at the drawing board but Courtroom Sciences you and I and our staff are working very hard to determine what’s going to be the right pathway here to get some both valid and reliable results going forward Dr. George Speckart thank you so much for being on the show and we will have you back again soon because these problems are going to keep resurfacing and I know that our clients and our colleagues are going to want more information so thank you very much

George (17:47)
very good thank you