Defense Strategies in the “New Normal”

In Part I of this series, “Trial by COVID,” which ran in the April 2021 issue of CLM Magazine, we described the effects of COVID-19 on jurors’ perceptions of defendants, the pandemic’s impact on the makeup of the venire, and the influence of increased anxiety and depression on jurors’ deliberation dynamics.

Given the pandemic’s effects on Americans’ mental health and decision-making processes, we now offer several recommendations to defense counsel and claims professionals handling matters during and in the wake of COVID-19. The following recommendations focus on defense preparation prior to trial as it relates to witness training, case evaluation, and theme development. Additionally, recommendations are offered for trial, particularly related to jury selection and voir dire.

Pre-Trial Work

Witnesses are just as susceptible to the negative mental-health impacts of COVID-19 as anyone else, and likely more so due to stress and anxiety regarding their upcoming testimony. Given the emergence of even more aggressive plaintiff tactics, proper and thorough witness training is now even more critical in promoting favorable negotiations and trial outcomes.

Time must be made for personal, informal, introductory meetings and conversations to assess witnesses’ vulnerabilities and psychological barriers to withstanding plaintiff counsel’s attacks and effectively communicating with the jury. Consider performing witness training virtually, since it is easier to meet with witnesses for multiple, short sessions, as opposed to providing one long day of training. Given the stressors of the pandemic, the short sessions are often more productive than a lengthy day in which witnesses become fatigued.

Corporate representatives and those in mid- to upper-management positions in particular often strive to present themselves as positively as possible when interacting with attorneys, which can make them more susceptible to certain attacks (e.g., “As the director of safety, surely you are aware that companies have a duty to ensure the safety of their customers?”). For larger corporations, where more than one person may potentially serve as a corporate representative, it is highly recommended to assess all of the potential candidates.

For example, we often work with several witnesses who could serve as corporate representatives for a specific company, training them on cognitive and emotional aspects of testifying. At the conclusion of the training phase, we evaluate each witness’ performance. The evaluation allows defense counsel to identify the person who is the best fit for the task. Importantly, the individual who is naturally more skilled at testifying may not be the most knowledgeable person in the company. By identifying the person with these skills early on, the defense is ready when a corporate representative’s testimony is needed.

It should also be noted that during recent months, several corporate defendants have been attempting to select their corporate representatives based on the expected optics of the witness’ race or gender. It is helpful to corporations to show that they are diverse and to be sensitive to jurors’ perceptions of the company’s stand on social justice. We continue to see that sensitivity exhibited by companies changing brand names and donating to social justice causes that they feel will enhance the public’s perception of them. During the pandemic, while jurors often feel that they have little control over important aspects of their lives—and that people in power are making the decisions for them—a sense that powerful corporations are attempting to be “good” can be critical to jurors’ views of the company. However, choosing a corporate representative based solely on his or her race or gender could have a negative impact on a case.

For example, we were recently asked to train a witness who was chosen based on his race, but unfortunately he did not have the skills to testify well, despite hours of training. The witness knew that he was not performing well, and he was concerned that he would fail at deposition and lose his job. This illustrates the importance of training more than one witness for a task, then determining who will be capable of testifying most effectively based on how they performed. It helps ensure that a witness who does not have the ability to testify well is not given the responsibility of providing testimony that is binding on the company.

Witness testimony, as well as other case issues, can be scientifically evaluated using focus group or mock-trial research, whether in-person or virtually. While virtual research projects were performed prior to the pandemic, this format has become the “new normal” since March 2020. Not only have counsel and claims professionals opted to conduct online projects due to safety concerns, but also they are increasingly recognizing the benefits of online research.

Online projects eliminate the need for travel and many other expenses, and can be easily tailored to address specific research questions and goals. A virtual format makes it more efficient and cost effective to examine the effects of two different case presentations or approaches on mock jurors’ decisions (e.g., overtly blaming the plaintiff vs. not blaming the plaintiff; proposing an alternative damages model vs. not proposing; and including evidence that may or may not be admissible at trial vs. excluding it). Simple online research projects may solely examine mock jurors’ perceptions of one or more key witnesses with feedback used to improve witness performance.

Additionally, online venue attitude surveys allow researchers to collect data regarding prospective jurors’ perspectives on specific corporations or industries, litigation, willingness to appear for jury service, and many other attitudinal, personality, and demographic variables that can help inform litigation strategy.

Jury Selection and Voir Dire

Attorneys conducting voir dire and jury selection during the COVID-19 crisis face a unique set of challenges. These may include limited time for in-person voir dire; difficulty hearing jurors and reading facial expressions/body language due to masking and social-distancing protocols; and restrictions on the number of members of the legal team or affiliates who can be present. However, current circumstances have also resulted in new opportunities for the defense.

Currently, many judges who were previously hesitant to allow supplemental juror questionnaires (SJQs) seem to be more likely to approve them, as doing so can limit the time needed for in-person voir dire. Research has shown that many jurors are uncomfortable sharing their true perspectives during voir dire with other jurors present and are more forthcoming when provided with the psychological cover of a questionnaire, as illustrated by Seltzer, Venuti, and Lopes’ article “Juror Honesty During Voir Dire,” which appeared in the Journal of Criminal Justice in 1991.

SJQs may be especially valuable in revealing negative attitudes, beliefs, and experiences with health care professionals and entities among jurors who fear being perceived as insensitive or politically incorrect in publicly challenging the industry. Carefully and sensitively crafted SJQs can also provide insights into jurors’ emotional stability, cognitive abilities, and propensity for gut-level, rapid processing versus analytical processing.

Analysis of prospective jurors’ social media activity and online presence is critical in jury selection decisions and is typically more rewarding for defendants compared to plaintiffs. This is because jurors who generally profile as “pro-plaintiff” are more likely than their counterparts to post frequently on social media platforms and to allow public access to these posts. In addition, a 2020 study by Suzin Wold, entitled, “COVID-19 Is Changing How, Why, and How Much We’re Using Social Media,” which appears in Digital Commerce 360, shows that most Americans report more frequent social media use since the pandemic, with about half of 4,500 surveyed reporting that they post more frequently now than before the COVID-19 crisis.

Although we generally recommend that voir dire should be more focused on examination rather than indoctrination, this does provide an opportunity for defense counsel to advance anti-reptile theory themes in the context of COVID-19. Jurors should be encouraged to discuss risk/benefit analyses they have made due to COVID-19 and also to publicly commit to beliefs that dismantle the “all-or-nothing” narrative of safety and danger. Counsel should explore jurors’ “meaning making,” or interpretation and reaction to the COVID-19 crisis in both the SJQ and voir dire. Although counsel should be aware of significant COVID-19-related stressors that jurors have experienced—for instance, impacts on finances, employment, personal relationships, and health and well-being of self and others—it is even more important to understand how jurors have handled these challenges. Do they try to make the best of things, utilize healthy coping mechanisms, and give credit to other people and entities for their support? Or do they present as helpless and eager to blame others without accepting any personal responsibility for improving their situations? We all have been deeply affected by the COVID-19 crisis, but it is the framing of the situation that can often differentiate pro-defense from pro-plaintiff jurors.

As the country begins to reduce restrictions on social gatherings and individuals cope with new changes to their daily activities, it is important for defense counsel and claims professionals to stay abreast of the latest findings regarding jurors’ mental health and decision-making. By staying informed, the defense is better able to make a realistic evaluation of risk in each case and better prepared to effectively strategize for mediation or trial.