Quick confession: Juries mystify me.

When I was covering jury trials in the Northern District of California, I would have guessed that jurors were going to side with Oracle it in its second copyright showdown with Google, that Monsanto would knock out its first federal Roundup trial during the causation phase, and that the criminal trial against PG&E would end in a hung jury.

Nope. Nope. And definitely nope.

Perhaps this is why I chose to chat with Tara Trask, the president of litigation strategy, jury research and trial consulting firm Trask Consulting, for my first Lit Daily column. Trask cut her jury consulting teeth working alongside Phil "Dr. Phil" McGraw who, prior to whatever it is he does on TV these days, famously helped Oprah beat back a defamation case brought by Texas cattle ranchers. Trask has gone on to work for a healthy portion of the Am Law 100 and the country's top plaintiffs firms.

I was curious about what effects COVID-19 will have on the make-up of jury pools and juror attitudes. Trask had already done her homework on the topic: a survey of 346 individuals in 44 states. Among the statistically significant findings: Men are more likely to report for jury duty in the current climate than women. Republicans are more likely to show than Democrats. And virtually everyone is willing to wear a mask during jury service. Given the choice, 90.5% of respondents said they'd wear a mask during their service and 88.7% said that everyone in the courthouse should wear one. The following transcript of our conversation has been edited for length and clarity.

Lit Daily: So, if you don't mind my asking, what exactly has a jury consultant like yourself been doing since mid-March?

Tara Trask: Um, not much. We went dead, just super dead. Which kind of made sense because all of our immediate trial settings fell away. For us—and I think this is true for most consultants —we start to get super busy on cases maybe three months out from trial. We have some clients who hire us earlier than that, but we don't start doing a ton of work on cases until we're about three months out. So when the summer just started going away and once the judges shut down, it went to pretty much zero for us.

Frankly, it was just Zoom calls with my team and checking in with my people and making sure everybody was happy and healthy and getting through—really trying to be a leader in that way. I remember early on I said to everybody, "OK, we don't know how long this is going to be, but I'm just going to say two months." Because in mid-March that seemed like a long time. And I figured, well OK, we're going to get to the end of the two months and we'll be like "We've figured this out now. We're going to keep going." Or things will be different. I just remember very early on it being very discombobulating because of just the uncertainty of everything. 

We spent some time internally saying, "OK, how are we going to do mocks now? And are we going to do them online?" We started looking at that kind of stuff. But in terms of actual billed, paid work, pretty slow. Pretty slow. 

Is that coming back at all now? 

Yeah, it is actually, and it's interesting. Once the courts started opening and people started getting trial dates—my business is all civil and it's all complex litigation and a huge emphasis on IP—and those are heavy dockets. So I'm left asking "OK, what's [Judge Rodney] Gilstrap of the [Eastern District of Texas] going to do?" Because you know he's thinking "Oh my God." His docket is just crashing on him. That's the same for a bunch of federal judges. You know they're fully aware that they have these cases, then they also have criminal dockets they have to deal with. 

I'm frankly a little surprised to see civil trials starting back as soon as they are because I figured criminal stuff would take such precedent. We're getting back into doing some witness prep. I'm supposed to pick a jury in Judge Gilstrap's courtroom on July 6. 

Is it Texas primarily where it's picking up? What are you seeing out there?

Most of what I have pending right now that was hot for us anyway were in Texas. I don't know if I can compare fairly, that's just where most of my work was set. But, that being said, Texas opened up earlier. 

I don't know that we have anything heating up in California until August. Texas is the only place where we have two or three things that are set. I'm waiting to see if Gilstrap is going to pick a jury. The problem that he has, I think, is that Marshall and all of East Texas has largely been spared from all this, but when he starts flying in lawyers from all over the country and then you've got defendants and plaintiffs from all over the world really who come into East Texas … He's got to be thinking about that. He's a smart guy. So, we'll see.

As best as I can tell—we had two jury selections set before him this summer. One isn't happening. One is. He's summoning more jurors than he normally would, and he's also sending them a letter about safety concerns and saying "Contact the court if you have an COVID-related concerns." He's thinking voir dire is going to take a full day, which is a huge change. Normally you're done by noon in his court. He says that he and/or the clerk may be speaking with each member of the venire individually just to address concerns. But it looks like they're trying to distance—to hold people where there's more space and I know he's only going to have three people only at counsel table. 

Will you be one of those three people?

It's interesting, down there in his court, I used to be able to sit at counsel table. But in the last couple of years he's changed his standing order and only lawyers can sit at counsel table. But it says right here in his trial notes that "Three members of each trial team will be allowed at each counsel table." And it says "Consultants allowed." So that's a little bit of a change from what he's done.

Microphones will be wiped after each use. They're also social distancing jurors by three-and-a-half feet. But from what I understand from pretrial and people who've been to court down there, there's not a lot of people wearing masks. I don't know if that is going to change. I feel like there's sort of a surge of mask wearing across the country. So I think that will change.

Anecdotally, I know a lawyer who was at the courthouse back in May. He said there were 25 people or so at the courthouse and our lawyer was the only one wearing a mask. We'll see what happens, but it will be interesting.

There's been a lot of thought and speculation about jury trials by videoconfernce. Do you think that anybody is going to give it a go? 

I don't see it. It's such a traditional world. I do think there's a million ways that the courts can socially distance, and do more cleaning. I think if you're speaking—if you're a lawyer or a judge —they'll want to see those people's faces. But if you're just a juror or you're a spectator, just wear a mask. I'll be interested to see what happens over time, but I don't know that it's going to get legs. From what I've seen and heard, the idea that we're actually going to adjudicate over Zoom doesn't seem likely to me. 

It seems like the group dynamics are all messed up. When you have people remote, they're not running into each other, they're not holding the door for each other, they're not at the coffee pot in the morning. You don't come together as a group, so when it comes time to make a decision as a group, it would be very easy just to get up and walk away from the computer when you're frustrated with someone's perspective that is not your own.

You raise a really good point. People say to me all the time, "Oh, juries, they're crazy. They do all kinds of wacky things." And I say, "Yeah, not really." We even see in mocks, where a jury will go down some rabbit trail. And the clients are sitting there freaking out, saying "Oh my God, what are they talking about?" And I say, "Just give them a minute." Because it is the collective wisdom of a group of people that's the beauty of the jury system, I think. That's the beauty of any deliberative system. That's why we have nine justices. I think there is something that is missing when the people don't get to meet and deliberate face-to-face.

So jury pools: How different are they going to look right now than normal?

We surveyed people from 44 states, the top five being, California, Texas, Florida, Pennsylvania, and Arizona and North Carolina tied. It kind of went along with what I would have assumed, which is that we will see fewer older people. I think that was sort of a given. But it's interesting, men are statistically significantly more likely to show up than women. This is just they're self-reporting. No difference on race. More affluent white collar and educated people are all more likely to show up. 

I don't know that the actual constellation of how any particular venire is going to look is going to be dramatically different than it was before. I think there's going to be a few more people who are worried about getting COVID or who just don't show. But I don't know that it's going to be as dramatic as I would have thought. 

I'm wondering about once people are in the juror's chair what their attitude is going to be about being there? Is it going to be a diversion from the drudgery and repetitiveness of day-to-day life that some people are feeling? Or are there going to be cases where people resent having been brought there—especially in the cases you handle where it's big companies fighting over piles of money. Are they going to resent being put in those chairs to resolve a money dispute?

I do a lot of plaitniffs' work. I never worry too much that people are going to be upset with the plaintiff. Let's back out of COVID. There's always the concern that "Oh, they're going to be mad at the plaintiff. The plaintiff brought the lawsuit and that's why they're here." My experience is that's a couple gymnastics moves past the point that people problem-solve stuff. 

What happens is, in my experience, people get to jury duty and they're wide-eyed and they're like "Oh my God, how did I get stuck here?" And then if we're lucky we've got a great judge who talks about 1776, 1787, and the Constitution, and the Seventh Amendment and why we have this setup in the first place, which by the way Judge Gilstrap does beautifully.

I tend to track the way jurists describe that because I watch how jurors hear that explanation and they go "Oh! Right! There's a reason I had to take this thing I got in the mail and show up." Once they remember that they kind of settle in and take it seriously and they listen to the facts and the evidence and the arguments. I genuinely think that, at that point, who brought them and who is doing what on either side matters less. 

That goes for COVID, too. They're really going to be focused on their job and are they doing it right. Unless, you put up a really, frivolous plaintiff's case or you put up a crappy, frivolous defense. Now can something like that make them even more mad in our post-COVID world? They'd be mad about that anyway. In the kind of cases I handle, you really don't see a ton of that. By the time you get to a jury trial, at least in my experience, there's probably two sides of the story. We really need regular folks to help us out with what the right path forward is.