Trial by COVID

Despite the ongoing pandemic, civil jury trials have resumed in many venues throughout the United States. There is little doubt that the frequency of civil jury trials will increase with more widespread distribution of vaccines and the implementation of new social distancing courtroom protocols. Consequently, 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—in light of the pandemic’s effects.

The plaintiff’s bar has seized opportunities for collective learning and strategizing during this time. Several top plaintiff trial attorneys and experts featured in recent well-attended CLE-type trainings have predicted that plaintiffs will have a strong advantage in jury trials conducted in the midst or wake of COVID-19. 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 shape the venire. For example, in some venues, jurors aged 65 and above can be automatically excused from jury service even if they have no pre-existing health conditions or are not concerned about contracting COVID-19.  

This article presents key factors that trial attorneys, in-house counsel, and claims professionals should consider in evaluating the advantages and disadvantages of a civil jury trial in the midst and wake of the coronavirus pandemic. In doing so, we incorporate data collected by Courtroom Sciences, Inc. (CSI), other current and prior published research results, and social psychological theory.

Jurors’ Perceptions of Corporations and Industries

Jurors’ perceptions of corporations and of specific groups of defendants are always an important consideration for counsel and claims professionals. In the COVID-19 era, the two primary questions of interest are:

•    To what extent has the coronavirus affected jurors’ perceptions of my client?

•    To what extent will these perceptions impact trial outcomes?

We cannot definitively answer these questions without individually analyzing and conducting pretrial research involving specific cases, but we can provide research results regarding juror perceptions of corporations in general, as well as specific industries, in light of the coronavirus.

Between July and November 2020, CSI obtained responses from 833 jury-eligible adults who were asked to indicate how their feelings toward a variety of industries and entities have changed as a result of the coronavirus, if at all.

Most respondents (64%) reported that their perceptions of small businesses had become more positive as a result of the coronavirus, whereas only 8% reported more favorable perceptions of large corporations. Almost one-quarter (24%) of respondents reported more negative perceptions of large corporations, and the remaining 68% said that their perceptions had not changed. In fact, a majority of jurors said their perceptions of the various entities had not changed as a result of the coronavirus, with the exceptions being small businesses and hospitals.

Yet, the finding that 24% of jurors reported more negative perceptions of large corporations may be concerning for many defense teams, especially given that the typical juror has not formed solid attitudes about particular companies. Instead, their broader beliefs about corporations in general tend to shape their perceptions of individual corporate defendants.

However, it is unlikely that the coronavirus has led to a shift in public perceptions of corporations that would seriously disadvantage most corporate defendants. The current results likely reflect polarization, as noted in CSI’s analysis, “Impact of the COVID-19 Crisis on Jurors’ Attitudes & Decisions.” Those who previously held neutral or positive attitudes towards large corporations have not “changed sides,” but individuals who previously had negative perceptions about large corporations may have become more extreme. Those whose feelings about corporations have become much less favorable were significantly more likely than their counterparts to identify as liberal, and they agree that they have become stronger in their political attitudes and beliefs as a result of the coronavirus.

Further, although some respondents may believe that their feelings about large corporations have become more negative, comparisons of survey data obtained before and after the COVID-19 crisis do not reveal a significant increase in anti-corporate attitudes. We compared a CSI survey of over 1000 mock jurors conducted between January 2018 and January 2020 to the current sample and found no differences in responses to all seven items measuring attitudes and beliefs about corporations.

For example, pre-COVID-19, 67% of respondents agreed that “taxes for large corporations should be increased,” compared to 63% of post-COVID-19 respondents. Pre-COVID-19, 64% of respondents agreed that “lawsuits are important to keep corporations honest.” Post-COVID-19, 66% agreed. Approximately 57% of both pre- and post-COVID-19, respondents agreed that “corporations take advantage of individuals.”

Gallup poll results also fail to demonstrate significant changes in Americans’ attitudes towards large corporations between 2019 and 2020.

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 toward a specific defendant in combination with case strength and jurors’ likely perceptions of key witnesses when facing a jury trial.

Willingness to Serve

In the same CSI survey described earlier, which was administered during the late summer and fall of 2020, respondents were asked, “If you received a summons to appear at the courthouse for jury service within the next 30 days, would you appear?” Over half (56%) said they would if they felt that social distancing and other safety precautions were in place. An additional 22% would report for jury service with no concerns about social distancing or safety precautions. Approximately 11% would not appear due to COVID-19, and 10% were not sure whether they would appear or not.

In contrast, a survey conducted by CSI in May 2020, closer to the start of the pandemic, revealed that 28% of respondents would not appear for jury service within the next 30 days due to concerns about the coronavirus. These earlier findings are consistent with findings from a National Center of State Courts survey conducted in the spring of 2020. Thus, our most current results suggest that prospective jurors are becoming more open to the idea of serving on a jury in the midst or wake of the pandemic.

There is evidence that individuals who would opt out of jury service for reasons related to COVID-19 tend to be more plaintiff-leaning in their attitudes. Compared to those who would be willing to serve (either with social distancing protocols in place or with no COVID-19 concerns), those who would not report for jury service due to COVID-19 concerns were more likely to strongly agree with the following statements:

•    When something bad happens, someone needs to be held responsible.

•    Corporations should be held to a higher standard than individuals.

•    The government needs to increase regulations that apply to large corporations.

•    An important function of juries is to send messages to companies to improve their behavior.

•    The company is more responsible than employees for making sure that employees stay healthy in the workplace.

Even more importantly, these plaintiff-oriented attitudes are indicative of juror behavior. Not only is there evidence that jury duty “no shows” due to COVID-19 hold more plaintiff-oriented attitudes, there is also evidence that these “no shows” would vote more favorably toward the plaintiff in actual jury trials. A subsample of 374 CSI survey respondents also served as mock jurors in the late summer and fall of 2020 and provided pre-deliberation votes for plaintiff(s) or defendant(s). Those who would report for jury service within the next 30 days with no concern were significantly more likely to vote for the defense (61%) compared to the plaintiff (39%).

In cases involving apportionment of fault, those who would not report for jury service due to COVID-19-related concerns attributed, on average, 54% of the fault to defendants, whereas those who would report with no concerns on average assigned 35% of the fault to defendants.

Jurors’ State of Mind

Most, if not all, of us have experienced stress or anxiety as a result of the COVID-19 crisis at some point. Likewise, the COVID-19 crisis has negatively impacted the mental health and well-being of many jury-eligible adults. Several national surveys have explored this topic. For example, the nationwide CDC Household Pulse Survey found that, in December of 2020, 37% of respondents reported symptoms of anxiety disorder and 29% reported symptoms of depressive disorder. This is a significant increase from the findings of the January to June 2019 Household Pulse Survey, which found that 11% of respondents reported symptoms of anxiety disorder and nearly 7% reported symptoms of depressive disorder.

CSI 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. Research on information processing and decision-making explains this relationship. 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 so 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. 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. 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.

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 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, CSI data do not align with many reptile plaintiff attorneys’ predictions that jurors will become much more sympathetic due to living through the pandemic. In the 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 that statement. In the post-COVID-19 CSI survey, 26% strongly agreed and 60% agreed with that statement. It should 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 claims representatives should be aware of how emotional distress affects juror decision-making within the context of the pandemic. But the fact that many jurors may be experiencing stress and mental- health issues does not necessarily mean that trial should be postponed. Careful, sensitive supplemental juror questionnaire and voir dire inquiries can identify prospective jurors whose decision-making will likely be impacted by COVID-19-related stress or other issues.

Although each case is different, evidence suggests that the COVID-19 crisis alone will not lead to a substantial increase in plaintiff verdicts or in damages awarded in typical civil cases (i.e., cases not focused on allegations of COVID-19 exposure, illness, etc.). In fact, defendants may have some advantages when trying cases in the midst and wake of COVID-19, especially if there is a willingness to invest in preparation efforts. We recommend holding focus groups and mock trial research, whether in-person or online, so that the defense can scientifically evaluate the impact that COVID-19 will have on their specific jury pool, realistically evaluate the risk of the case, and strategize to increase the likelihood of a successful outcome on each matter.