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Authored By: John Tully
Articles Editor, American Journal of Trial Advocacy
In January 2020, our world as we knew it changed forever as the inconceivable happened: a global pandemic emerged. As we have all seen, Covid-19 has changed a number of ways in which the world works: the capability to effectively work from home, mask and vaccine requirements, and even the way that people will view the world going forward.[i] However, Covid-19 has also drastically changed the legal landscape. With the amount of litigation currently and soon to be underway as courtrooms open back up, this article will endeavor to identify how Covid-19 has affected juror’s values as they relate to various potential parties in civil litigation, such as small businesses, large corporations, and the medical community. It will also discuss ways that these moral shifts might affect both plaintiff and defense attorneys and potential strategies that could be employed to combat those affects.
Recognizing that there are strong ideological differences amongst different jury pools and the difficulty of accurately depicting the overall moral values of these groups, this article will analyze a number of surveys that consider a variety of potential jurors’ views.[ii]
General Overview of Covid-19 Impact
Before looking into how jurors’ values and perceptions have changed regarding certain parties in litigation, it is important to first look at how peoples’ perceptions have changed generally. Covid-19 caused mass panic, economic downturn, and huge financial losses globally, leading to, among other things, “acute panic, anxiety, obsessive behaviors, hoarding, paranoia, depression, and post-traumatic stress disorder.”[iii] A recent survey of American adults found that “(1) 74% of Americans say that the Covid-19 pandemic has led to more personal stress and anxiety; (2) 51% of responders felt sadder during the pandemic; and (3) by more than two-to-one, respondents stated their emotional health and wellbeing had gotten worse rather than better.”[iv] The primary attributor to Americans’ increased anxiety and unhappiness is concern over financial wellbeing following the pandemic.[v] This financial stress could impact a juror’s impatience during trial and even alter a jury’s opinion about damage amounts.[vi] For instance, a jury may feel less sympathetic toward a plaintiff asking for an award if the jurors themselves have been dealing with financial issues.[vii]
Jurors’ Perception of Small Businesses
In terms of financial downturn resulting from Covid-19, arguably the hardest hit business group was small businesses.[viii] In a survey performed by the PNAS of more than 5,300 small businesses in April 2020, just a few weeks into the pandemic, found that the majority of small businesses with more than $10,000 in monthly expenses had less than two weeks of cash on hand at the time of the survey.[ix] Further, across the full survey, 43% of the small businesses had temporarily closed, and, of those that remained open, employment was down by 39% since January 2020.[x]
Historically, small businesses have been viewed favorably, if not pitifully, playing the role of David taking on the goliaths of large corporations—a view which gained steam throughout the pandemic.[xi] In a November 2020 survey performed by CSI, 64% of respondents’ perceptions of small business had become more positive during the pandemic, with 33% remaining unchanged in their opinion, leaving only 3% with a less positive view of small businesses.[xii] These findings are corroborated by numerous surveys of potential jurors, with the overall shift in attitude being in further support of small businesses.[xiii]
Attorneys defending small businesses can play off this support by potential jurors as a means to garner sympathy for the defendant, which is often difficult to do for a business of any size. However, there are two sides to every coin, and plaintiff attorneys are not left without methods of combating the sympathy felt for small businesses—specifically, plaintiff attorneys can employ reptile theory.[xiv] Put generally, an attorney employing reptile theory emphasizes safety and security issues to subtly encourage the jury to imagine themselves in the same position as the plaintiff without explicitly asking the jury to put themselves in the shoes of the plaintiff.[xv] The principle idea of the theory is to “engag[e] the most primal part of a juror’s mind to provoke the feeling that if a defendant’s actions are allowed to continue, the the community and even the jury itself may be in danger.”[xvi] Looking at reptile theory within the context of small businesses, attorneys may be able to prey on public “over-promises” made by small businesses—for instance, a public statement proclaiming that ‘the health, safety, and well-being of our employees and customers is our number one priority’—by repeatedly exposing the jury to these statements, increasing the “likelihood that jurors will apply these unattainable rules and standards to evaluate the small business.[xvii]
While small businesses have certainly faced the full force of Covid-19, they can at least take some solace in the fact that they will likely be viewed in a more favorable light by juries moving forward. As for corporate defendants, that is another story entirely.
Jurors’ Perception of Corporate Defendants
Corporate defendants may have a more difficult time garnering sympathy from juries following the pandemic. In analyzing this, two important questions arise for an attorney: “1) To what extent has the coronavirus affected jurors’ perceptions of my client?; and 2) To what extent will these perceptions affect trial outcomes?”[xviii] In a survey done by CSI, 42% of respondents indicated that their view of large corporations was more negative, with 14% saying that they viewed large corporations much less favorably.[xix] However, CSI is quick to note that these results “likely reflect polarization.”[xx] In other words, those individuals who previously may have had negative views about large corporations become more inflamed as a result of the pandemic, but their underlying views have not necessarily changed.[xxi] This hypothesis is all but confirmed when comparing CSI studies from pre- and post-Covid-19, which shows “no differences in responses to all seven items measuring attitudes and beliefs about corporations.”[xxii]
While the initial statistic showing a decreased view of larger corporations may be worrying for a defense attorney, the comparison to the earlier CSI study should provide a glimmer of hope. CSI notes that “[i]n 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.”[xxiii] If the comparison between the pre- and post-Covid surveys reveal that there truly is not much of a change in viewpoint for jurors, then post-Covid litigation may be less daunting for corporate defense attorneys than originally thought.
Jurors’ Perception of Healthcare Providers
While many of us transitioned to working from the comfort of our homes, arguably no work sector collectively had as stressful of pandemic as healthcare providers. One, albeit insufficient, silver lining that healthcare providers can take away is a more favorable perception from potential jurors.[xxiv] In a recent survey, more than 90% of respondents had at least a somewhat more favorable view of doctors and nurses.[xxv] The survey also showed that “43% supported limited lawsuits against healthcare professionals,” with those “43% of jurors who supported limiting lawsuits against healthcare professionals, [reducing] the average plaintiff’s win rate by 11%.”[xxvi] These are obviously hugely helpful statistics for defense attorneys when preparing for healthcare litigation. As stated above, when the evidence clearly points to one side being at fault, jurors generally do not take into account their individual attitudes toward each party; however, when the evidence is more ambiguous, jurors’ vastly more positive views of healthcare providers following the pandemic will likely weigh in the defense’s favor.[xxvii]
In light of the findings and discussion above, it is important for litigators on both sides of the “v” to adapt their trial strategies to the changing times. Predicting how a jury will think is difficult enough in normal times, much less following a global pandemic that has affected all of us in different ways. Taking into account how a potential juror’s perceptions may have changed as a result of Covid-19 will change not only the preparation for and questions asked during voir dire, but could change the entire manner in which a plaintiff or defense attorney presents her entire case. The pandemic brought about seemingly endless uncertainty for how litigation would look following the shutdown, but as we begin to get a glimpse of how legal proceedings will be done and how jurors will view various parties, we can p
[i] See Sicafuse, L. (2020), Survey: Juror Attitudes & Decisions in the Wake of COVID-19, Irving, TX: Courtroom Sciences, Inc., https://www.courtroomsciences.com/blog/litigation-consulting-1/survey-juror-attitudes-decisions-in-the-wake-of-covid-19-140 (last accessed October 20, 2021).
[iii] Melanie D. Wilson. The Pandemic Juror, 77 Wash. & Lee L. Rev. Online 65, 66 (2020); Ma, supra note 2, at *1.
[iv] Ma, supra note 2, at *1; see also Douglas Schoen, et al., Addressing the “New Normal” for Jurors and Jury Pools, at *1, https://www.bloomberglaw.com/document/X1IJEMJG000000?jcsearch=glm45eejffj#jcite (last accessed October 20, 2021).
[v] See Ma, supra note 2, at *1-*2.
[vi] See id. at *2
[vii] See id.
[viii] See Alexander W. Bartik, et. al, The Impact of Covid-19 on Small Businesses Outcomes and Expectations, Proceedings of the Nat’l Academy of Sciences of the United States of America, at *1, https://www.pnas.org /content/117/30/17656 (last accessed October 21, 2021(.
[ix] See id.
[x] See id. at *2.
[xi] See Melissa Loberg & Lorie Sicafuse, Jury Trials During a Pandemic: What to Consider: Part I, Courtroom Sciences Inc., at *1, https://www.courtroomsciences.com/blog/litigation-consulting-1/jury-trials-during-a-pandemic-what-to-consider-part-1-256 (last accessed October 21, 2021).
[xii] See id.
[xiii] See Ma, supra note 2, at *4.
[xiv] See Melissa Loberg & Lorie Sicafuse, Jury Trials During a Pandemic: What to Consider: Part II, Courtroom Sciences Inc, at *2, https://www.courtroomsciences.com/blog/litigation-consulting-1/jury-trials-during-a-pandemic-what-to-consider-part-2-257 (last accessed October 21, 2021).
[xv] See The Reptile Theory: A Game-Changing Strategy in Personal Injury Lawsuits, LEXIS, at *2, https://www.lexisnexis.com/community/insights/legal/b/thought-leadership/posts/the-reptile-theory-a-game-changing-strategy-in-personal-injury-lawsuits (last accessed October 21, 2021).
[xvii] Loberg, supra note 14, at *4.
[xviii] Loberg, supra note 12, at *3.
[xix] See Sicafuse, supra note 1, at *3.
[xx] Loberg, supra note 12, at *3.
[xxi] See id.
[xxii] Id. (For instance, “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 respondents agreed that corporations take advantage of individuals.”)
[xxiv] See Ma, supra note 2, at *4.
[xxv] See id.
[xxvii] See Loberg, supra note 23, at *3.