As trial consultants we try to stay current by reading lots of newspapers, journals, and magazines. Recently, I’ve noticed people writing about the composition of juries post COVID-19 (not that COVID-19 is over, “post” in this context merely indicates a world where COVID-19 came into being). Because of the politicization of COVID-19, vaccines, masks, etc., and because of the CDC guidelines, courthouse closures, the world of jury trials has been shaken. The practice of law has changed in many ways, some permanently. The willingness of ordinary citizens who are called for jury duty has been impacted as well. People who are extremely fearful of being in public due to concerns about COVID-19 are not showing up when they are summoned for jury duty. The next level of people may be less fearful and are showing up along with those who are on a continuum ranging from that point on the scare to the “right” all the way to COVID-19 deniers who are happy to show up. This is where the conjecture begins. One article I read recently was about how the more extreme “right wing” jurors who are willing to show up for trials are bad for criminal defendants. The writer stated that the jurors willing to go to a courthouse are more conservative and are prosecution prone. In the civil context, where we do most of our work, plaintiffs’ lawyers are concerned about this phenomenon as well, that is, that conservative individuals are more likely to be jurors than more liberal ones, and that the jury verdicts will be more defense prone. But, here’s another twist, since the resumption of jury trials, there have been many record plaintiffs’ verdicts. Verdicts that surpass prior records and lawyer expectations are making the news weekly. Clients have relayed these concerns and some insurance adjusters are “quaking in their boots” about the potential of huge verdicts. So, how does one reconcile these seemingly opposing perspectives? My take on it is that this merely points out the need to be prepared for any significant case, especially as to trial strategies. Perhaps the thing that COVID-19 laid bare was the realization that the world is changing, or has changed, over many years, and it is catching up with lawyers and insurance carriers or other clients. To me, this reinforces the need to conduct mock trials or similar research to get a pulse on what is going on in a community with a certain fact pattern and specific clients. Trying cases based on a pulse rate from years past is not enough. Guessing about the impact of COVID-19 and all of the related hardships and changes it brought to us all is not a smart way to prepare a case. More than ever, it is critical to successfully resolving a case, to get to know what decision makers in a community are thinking in relation to one’s case, civil or criminal. Conjecture is not enough.
I guess speculating about the composition of juries gives people something to discuss. And, at least it’s better, in my opinion, than listening to people drone on about their experiences as jurors. (The latter discussions, when I am unwittingly involved, remind me of “One time, in band camp…” and are just as uninteresting!) I don’t know if juries have changed due to COVID-19. I have only been involved in 2 jury selections since the courthouses have re-opened. One case resulted in a plaintiff’s verdict and the other, a defense verdict. The case that resulted in a plaintiff’s verdict was a serious injury case, however, after the jury apportioned considerable fault to the plaintiff, the damages they awarded were negligible. The other case was, in my view, rather speculative, such that the jury’s decision to return a defense verdict seemed reasonable. The only thing I noticed, in both cases, was that the prospective jurors were less whiny about their experiences as jurors, with some of them seeming happy to be in the courthouse, as opposed to being stuck inside their home. I am well aware of the news coverage of the “runaway verdicts” that have occurred since the pandemic. However, due to the fact that it is impossible to have a control group with which to compare what juries would have done absent the pandemic, there is no scientific way to know exactly what forces are causing this effect. In addition, I am aware of the fact that, absent high profile cases, trials that result in a defense verdict are not as newsworthy as those in which multi millions of dollars were awarded. Just as a there is no magic bullet that predicts the type of person who is likely to be plaintiff oriented or the type of person who is likely to be defense oriented across every type of civil lawsuit, there is no “post COVID-19 juror” who can be guaranteed to decide a case in a particular way. The only way to know the likely outcome of one’s case is, you guessed it, conducting case specific, scientific research on the case prior to arbitration, mediation, or trial.