COVID’s Impact On Civil Jury Attitudes And Procedures
By Eli B. Vine and Kathleen M. Klein
As the COVID-19 pandemic began, the majority of courthouses across the country had to significantly alter their operations. Many courts initially limited their proceedings to only the most essential and time sensitive matters, and closed whole divisions temporarily. Some, if not most, suspended speedy trial rules and paused all civil jury trials. As time has gone on, jurisdictions have slowly resumed some of their normal court operations, including in person jury trials. Now that courthouses have begun to hold jury trials again, the next big question is what impact COVID will have on juries and their verdicts.
Jurors, like everyone else, are not immune from the deep impact of COVID. There are common themes in post-COVID jurors that could cause them to be more likely to find for the plaintiff, award higher damages, or generally support and accept pro-plaintiff attitudes. The main characteristics of such jurors include those who have: 1) experienced more overall impact and/or disruption to their lives, including personal, professional, and/or financial; 2) personally contracted significantly symptomatic COVID, or have a family member, friend or close co-worker who has experienced the same; 3) expressed greater concern that they or someone they care about will contract the virus; 4) expressed concern about their immediate financial stability as a result of the COVID pandemic; and 5) greater fears about their health applicable to the experience of sitting for jury duty.
Many, if not all, of these themes are concerns we have all shared during the course of the pandemic. However, each person’s experience with COVID is unique. These concerns are a moving target, as is the pandemic, with its new variants, ever-changing protocols, and shifting public opinion; thus, these concerns and opinions must be discussed anew with each potential juror during voir dire, and the nature and delivery of effective voir dire questions on these topics must change with the times.
Another big question is how these COVID concerns play out in different types of cases. Different impact can be expected across personal injury, medical malpractice, product liability, or toxic torts, respectively. Medical malpractice lawsuits will likely see the biggest change. Rehabilitated public perception of our Healthcare Heroes cuts against some jurors’ preexisting suspicion of healthcare delivery systems and personnel. Personal contacts with healthcare professionals, as well as media coverage over the past two years, may in some cases humanize the defendant physician and illustrate the massive weight on his or her shoulders. We expect more prospective jurors will have a more positive baseline opinion of physicians, healthcare providers and/or facilities because of their efforts on the frontlines to battle COVID. The signs posted at hospitals, nursing homes and medical centers stating “heroes work here” offer support to medical providers and their staff in a difficult pandemic environment, but also generally have affected the public’s perception for the better.
Unfortunately, but predictably, it is not all positive. The pandemic seems to have brought about changes in public opinion that will likely be relevant to personal injury actions. Statistics have shown that a substantial percentage of individuals have a more negative opinion of large corporations and corporate executives since the start of the pandemic. This is likely due to many factors, ranging from the financial recession to perceptions that corporations abused governmental relief like PPP loans, to the disproportionate job losses sustained amongst low paid employees. Further, when looking at changes in public perception as to corporations, one must look at the size of the corporation. Certainly, jurors will likely have more negative bias toward larger corporations versus small family run operations, as has long been true.
Bias against pharmaceutical companies will likely also be particularly heightened. Media coverage of price-gouging pharmaceutical executives and pharma “scam artists,” coupled with political complaints and campaign promises about pricing, drove anti-pharma sentiment pre-COVID. Recent media projects like “Dopesick,” a drama centered on the opioid crisis, continue along these themes. Now coupled with inequalities in COVID vaccine distribution, testing kit failures, testing shortages, and other logistical challenges during the pandemic—and contrasted against massive private sector profit over COVID tests and drugs— will likely further diminish pharmaceutical companies’ reputations in the courts. Certainly, in Blue state jurisdictions, inequality in test and treatment distribution and pricing may have increased juror hostility, while in Red states, increased anti-vax sentiment may prove equally challenging to these corporate defendants.
Plaintiffs may themselves be viewed in a more sympathetic light. Most jurors understand the negative impact the pandemic has had on employment, financial stability, and the job market over the past two years. This may factor into their perception of a particular Plaintiff’s character, and assumptions about their financial security, which are excluded from discussion at trial but certainly cannot be excluded from jurors’ minds. Many jurors may understand that a Plaintiff in a particular action is out of work and looking for money and may in fact be more sympathetic to this than ever before.
Further, the aftermath of COVID has left potential jurors in a heightened emotional state. This becomes problematic when considering that jurors in a heightened state of emotion have less analytical and cognitive resources available to devote to analyzing case evidence and applying it to the jury instructions given by the Judge. In these situations, jurors will often be left to make “gut decisions” that ignore both case evidence and application of the law as provided in the instructions, leading to decisions made with their hearts and not their heads. In fact, this is precisely the trend in tactics in recent years. This overreliance on emotion risks increased pandemic-era verdicts, because jurors may feel more empathy and sympathy for Plaintiffs who have been injured. The flip side is that in some cases, COVID verdicts may decrease because jurors may view the suffering of the Plaintiff as relatively insignificant compared to the suffering others have experienced during the pandemic. Given these conflicting views, one will likely have to tread lightly, and conduct analysis as always on a case-by-case basis. Voir dire of jurors to illuminate these attitudes will be more important than ever.
Factors that can drive up COVID verdicts on corporate defendants and that will likely be substantially impacted by the COVID pandemic include: Juror vulnerability, fear, volatility, and polarization; rising costs and uncertainty of the future; more millennials on juries; bad testimony or misidentification of corporate representatives; and anti-corporate bias that values “profits over safety.” The importance of a likeable and relatable corporate representative is even more important, and the time they must take away from their professional duties to sit at counsel table from jury selection to verdict is even longer.
Finally, the jury pool composition may be impacted. High risk groups, such as the elderly, may be more likely to be dismissed due to health concerns. Therefore, one may presume most juries at least while the pandemic continues will likely have a lower average mean age. Anecdotal evidence indicates some trouble securing and paneling jurors. Voir dire is taking longer due to jurors’ distaste for sitting in a courtroom for weeks with others they don’t know.
The logistical issues caused or exacerbated by the pandemic also provide both challenges and opportunities. In high volume jurisdictions like Cook County, cases can be expected to last longer until the backlog has cleared. For example, from the first quarter of 2018 to the first quarter of 2020, Law Division pending caseloads rose approximately 11%. However, less resolved cases and relatively consistent numbers of filings in COVID times resulted in a 21% increase in pending cases from the second quarter of 2020 to the third quarter of 2021 (the most recent data reported).1
These delays in the scheduling of civil jury trials around the country are a double-edged sword. They have given attorneys and claim examiners time to re-examine the thoughts and feelings of the public and/or their potential jury pools. They have been used as a bargaining chip in efforts to settle matters given the delays Plaintiffs faced in getting their day in court. However, we have seen the effects in Cook County in increased wait times for available trial judge assignments, posing scheduling issues for all parties, attorneys, and experts trying to plan for trial. The jury selection process itself is taking longer, when courts and counsel must navigate not only jurors’ attitudes and objections toward the case facts, but their fears and reservations toward their very physical presence in a public courtroom. The rise of remote proceedings—even, in some cases, remote jury selection—has created efficiency, but arguably decreased effectiveness of questioning and juror engagement. Remote proceedings have also made the development of across-the-aisle camaraderie with opposing or co-party counsel that much more difficult, and risk entrenchment of a more adversarial style of litigation.
Learning Point: The case management process has changed, likely permanently, to include remote proceedings. This can provide cost or time savings to counsel and clients, but removes opportunities to build civility and positive working relationships that help smooth the litigation process and foster resolutions. In Cook County, the procedural changes have meant the death of in-person case management altogether, for better or for worse. Counsel must find alternative ways to develop productive relationships with judges and lawyers alike.
Additionally, given these significant changes in both public perception and opinion, the pre-pandemic case analysis, strategy, and risk assessment must be adjusted. As always, the importance of voir dire cannot be overstated. Counsel must ask questions that will uncover the above attitudes and biases, and determine how those will affect not only their perception of the facts of the case, but their participation in jury service as a whole.