By Ross Laguzza

Law360 (April 22, 2020, 5:45 PM EDT )

Ross Laguzza

Over the last few weeks, trial lawyers and corporate clients have asked me to estimate the lasting effects of the pandemic on juror perceptions and attitudes. This is a simple question with a complex answer.

While I have been consulting for over 30 years, including significant events such as 9/11 and the economic meltdown, and while I love to get my crystal ball out as much as the next person, neither I nor anyone I know has ever negotiated a pandemic (the last one, as we have been reminded, was in 1918, and though it comes as a shock to my children, I was not around for that one).

The stark reality is that at this point, no one really knows what is going to happen next.

I've asked clients to think about the question of significant effects as a function of time and uncertainty. As depicted in the conceptual chart below, over time, circumstances related to the pandemic become less uncertain. Any attitudes we might measure now and in coming days will be quite unstable. As certainty increases over time, attitudes become more stable. For example, early on, there was a great deal of instability and fear, which seemed to grow every day. Businesses closed, jobs ended, toilet paper disappeared, and many of us were plunged into extended family time. As the pandemic crisis unfolded, every day — and in some cases every hour — it seemed that everything changed. Whatever you thought you knew on Monday was no longer true on Tuesday.

As denial gave way to what seemed like daily revelations about the spread and consequences of the virus, changing risk assessments, and new restrictions, it was impossible for the typical person to feel certain about what was happening and what it meant for them. Unlike other natural disasters, which are visible and finite, like a hurricane or earthquake, the pandemic is invisible and constantly evolving and seemingly getting worse and more unpredictable every day.

Measuring juror attitudes when things are so uncertain is not very useful. It's like asking someone in the middle of a car accident how they feel about the price of gas. What people say when they are most fearful and when circumstances are most unstable is interesting in assessing people's current mental status, but it doesn't tell you much about what their mindset will be later.

A recent survey of 8,000 Americans showed an increase in feelings of "solidarity."[1] Will that "fellow feeling" persist once we are back on the roads fighting traffic? It is reasonable to wonder about the long-term stability of that attitude.

However, as things start to settle down, attitudes become more stable, and the "new normal" begins to take shape, it will be interesting to see if: (1) the average juror and the way they see the world has changed in a fundamental way; and (2) these fundamental changes, if any, influence the way they evaluate litigation, and more pertinently, specific types of cases.

It is possible — and even likely — that jurors will be fundamentally changed, but those changes still don't overtly manifest in litigation or are only relevant in specific types of cases. This is part of the complexity because the equation will be multifactorial and won't reduce to convenient aphorisms. In addition, how long any changes actually last as distinct factors before being absorbed into the matrix of daily life will be an empirical question.

For example, we noticed that following the 2007-08 economic meltdown, people reported having been affected, and most had specific ideas about who was to blame.

It was not uncommon to see that many were not in favor of the bailout.
A good portion of people were outraged by the bailouts and felt vindictive.
What is fascinating about these data is that while jurors held strong attitudes and clearly were still angry about the economic collapse, as the worst days receded, these attitudes and experiences typically did not correlate with verdicts — even in cases directly on point. This suggests that while jurors can be changed by significant events, these changes don't always operate in simple and obvious ways in their verdict decisions.

The most important point is that we can't know which attitudes will matter most until we have stability.

Since we are not there yet (and as of this writing, much of the country is still waiting for an accurate projection of how and when the country will restart), it is hard to make an accurate forecast about any of this, but we do know which variables to evaluate when the trial process restarts in earnest.

1. Feelings of Helplessness, Anger and Loss of Control

Generally, people who feel decreased amounts of control in their life tend to gravitate toward plaintiffs. Not only can they identify with the plaintiff as a victim, they see the jury process as a way to effect some control in the world.

Many people may feel for some time that they have no control over their economic well-being. Many will be under severe economic duress for reasons completely out of their control. Some jurors may have increasing doubts about science and medicine. Others may be close to people who actually experienced the virus firsthand.

Some people who internalize this duress will feel helplessness. As Kübler-Ross[2] posited decades ago, people move through distinct grieving stages, which she identified as denial, bargaining, anger, depression and acceptance.

We would expect people who are stuck at the anger stage to be particularly difficult to evaluate during jury selection, and much would depend on with what, or with whom, they are angry. Are they mad at the government, the health care industry, their employers? Are they out for revenge? Do they want to hurt someone? These jurors aren't automatically good for either side.

2. Heroes and Villains

We don't know yet exactly who the heroes and villains will be in the narrative that most jurors come to accept about this pandemic. Right now, health care professionals seem to be the main heroes, but it is too early to say what effect that will have, if any, on how jurors think about cases involving medical professionals.

If, at some point, a pharmaceutical company develops a miracle vaccine in record time, will that mean that jurors have more positive feelings about big pharma in the context of product liability litigation? Or will they now hold the industry to an even higher standard of conduct? If jurors ultimately conclude that they were let down by the local, state or federal government, it may have significant implications for their general disposition toward "the system" and case-specific calls to "fix" it.

3. Emotional Overload

For some people, in the weeks and months following the "restart" into the "new normal," the thought of doing even limited jury service will seem practically and emotionally unfeasible. I suspect many judges will be sympathetic to people saying that they simply cannot afford to miss any work or any opportunities to pursue work.

Some jurors may actually admit to stress exhaustion that makes them unfit for jury duty, and I wouldn't be surprised if these jurors are excused as well. Then again, depending on the rules for the new normal, jurors may be excused simply for admitting to a fear of being in close proximity to other people. This means that for a while, juries will be far less diverse than they were pre-pandemic.

4. Personal Relevance

In normal times, cases that jurors find personally relevant are processed more deeply. Even cases that are technical and boring are often reframed in a way that makes it more personally interesting for jurors.

However, even in the best of times, jurors will resent lawsuits between big companies over a contract or something that jurors feel could have been settled over a conference table. We expect that for a while, jurors will particularly resent being asked to give their time and attention to a case that seems quite trivial in the context of world upheaval.

Who has the emotional bandwidth to worry about whether this or that company pays or receives millions of dollars when people are jockeying for position at the food bank? This may result in jurors not investing in particular cases and doing whatever they can to "get out of here as fast as possible."

Either party to a lawsuit would be worried about the damage that could be done by jurors who feel this way. On the other hand, cases that are high in personal relevance — for example, a wrongful termination case — may just be too triggering for many.

5. Survival Instinct

There will be those people who, because of positive circumstances, past experience or personality, come through this more robustly than others. They may have been able to play some useful role in helping others during this time, or they may have received help and support when they needed it.

They may have felt a sense of community and participation in efforts to contain the spread of the virus. They may have been isolated from economic consequences. There may be many other reasons why they are generally unscathed, but the important thing is that they have not been damaged and are not under ongoing duress.

It would be wrong to conclude, however, that these people are unchanged. You don't have to be traumatized to experience a change in some aspect of your worldview. Yet, these are the types of people who may seem most like people in the "old normal" and may be least likely to seek or receive relief from jury service.

Implications for Trial

It is important to understand that people will be under continued stress long after we have moved into the new normal part of the continuum. Feelings of resentment and anger may linger for many months, depending on what happens to the job environment. For a variety of reasons, people may find it difficult to sit through any trial for any length of time.

The one thing that is unique about the pandemic is that it has affected just about everyone in some way. As a trial attorney, and more importantly as a human being, you have some insight into what people have had to contend with over these past few weeks and will, in some form or another, contend with for a long time.

In cases where lawyer-directed voir dire is permitted, it will be important to have authentic conversations with prospective jurors in terms of their current status and how it might affect their ability to serve on the jury. If you are open, honest and genuinely interested, people will tell you. The fact that you are interested will also make you seem more trustworthy.

In having this conversation now, or anytime, it is important to avoid trying to convey that "you know just how they feel" or "you went through the same thing" because jurors know that you occupy a different rung on the socioeconomic ladder and that you and they likely do not experience hardship the same way. What is important is that you make them feel safe and valued so they tell you what they are actually feeling.

In cases in which you can't talk directly to the jury, it will be important to persuade the judge to allow a written questionnaire. More judges may be open to this technique under the circumstances. Jurors with remarkable answers could then be interviewed for clarification and additional assessment by the parties.

Two questions I would want to add to any standard battery of questions normally asked of every prospective juror are:

1. Could you tell me how the pandemic has affected you personally?
   
   
2. Would your personal experience during the pandemic make it hard for you to participate as a juror in this case for any reason?

Anyone who has ever suffered through one of my presentations knows that I believe jury selection is just a tiny fragment of the work necessary to capture the hearts and minds of jurors. No matter what the process and how many strikes are afforded, you eventually run out of strikes before you run out of jurors you want to strike.

This ultimately means that you have to build a narrative that will appeal to jurors who may start out opposed to your position, or at least are unenthusiastic about your perspective. Crafting an effective and persuasive narrative that motivates jurors to find for your client is, in normal times, where most of the heavy lifting gets done.

In the new normal, we expect this will be especially true. For example, if you are defending a product liability case to a post-pandemic jury in the new normal, knowing that your jury has lost faith in the system designed to protect them will be quite important for the defense attorney seeking a creative way to connect with jurors. The bar for corporate conduct may be set higher than ever, but knowing this creates an opportunity to reassure jurors that, at least in some places, the safety system is fully operational.

Often we find that until there is adequate anxiety reduction, jurors find it difficult to attend meaningfully to otherwise important facts and arguments. No matter what the case, the challenge will be to find a moral imperative that makes sense to jurors based on their current thoughts and feelings about what is right and wrong with the world.

In a large and complex corporate contract case, jurors may be agitated, and even offended, by what seems like a petty squabble over technicalities. The challenge here will be to convince jurors that getting the outcome right in a case like that actually, in its own way, makes the world just a bit more predictable and a little less chaotic — where agreements matter and people live up to their word.

Finally, it is important to realize that as the pandemic crisis recedes, the actual lasting effect on juror decision-making in specific cases will be difficult to measure. This certainly was the case for 9/11 and the Great Recession in the first decade of this century.

People will be changed by significant events, but soon these changes become part of the new normal, are integrated with all the other variables that determine a person's worldview, and no longer stand out as individually remarkable. You can bet we will be assessing this all along the way.

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Ross P. Laguzza, Ph.D., is a founding partner at R&D Strategic Solutions LLC.

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] What Do You Owe Your Neighbor? The Pandemic Might Change Your Answer. New York Times, April 16, 2020.

[2] Kübler-Ross, On Death and Dying. 1969.

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