Like many aspects of litigation at the moment, jury trials remain on hold for an indefinite period of time as we continue to navigate through the uncertainties of the COVID-19 pandemic. Both civil and criminal jury trials are suspended in Pennsylvania and New Jersey. When it comes time for jury trials to resume in the region, trial lawyers will need to prepare for new attitudes and biases that jurors may develop due to this pandemic. Understanding these new attitudes and biases and the impact they will have on your case is essential, not only when picking a jury once the hold is lifted, but also as a consideration when litigating your cases today.

New Problem, Same Analysis

Prospective jurors, like all of us, have been impacted by COVID-19 and this impact is likely to affect their thinking and decision making when evaluating cases. New biases and attitudes will shape verdicts and deliver outcomes in cases that may be different than what we would have expected before the pandemic.

Susan G. Fillichio, senior vice president at DecisionQuest, a trial and jury consulting firm, has unique insights into the minds of jurors. Over the course of her career, Fillichio has assisted in hundreds of high profile jury trials, having conducted national surveys on the subject of jury decision making, and relying heavily on the data to identify trends in juror thinking. "We like to rely on the data we have because we have decades' worth of it," Fillichio said.

"The pandemic is a new societal stressor but the analysis of what this pandemic has done to juror thinking will be very consistent methodologically with everything we have analyzed before. Some of the questions about how this pandemic has affected and impacted people, their personal safety, their jobs, their economic status, their faith in the government, their desire to punish institutions, those are the primary tenets of understanding how a societal event might shape those attitudes. This event is new but the methodology is highly consistent."

Fillichio added that there will be "new attitudes emerging from this completely unprecedented event but they will be analyzed within the same framework under which any societal disruption would be analyzed."

Shift in Juror Attitudes and Biases

After living through COVID-19, Fillichio anticipates that jurors' biases will "undoubtedly" be impacted.   Predicting exactly what those new biases and attitudes will be, and how they influence liability and damages determinations in different types of litigation, requires careful analysis.

According to trial lawyer Michael Banks of Morgan Lewis & Bockius, the most important part of the analysis is examining the personal experiences of the jurors during the pandemic. "What we learn in jury selection is that one of the biggest factors on juror attitudes is their personal life experiences. Their personal life experiences shape their biases and predilections, their willingness to keep an open mind, their willingness to extrapolate from their own experiences and superimpose them on either the case or the parties," Banks said. "This is one of the most dramatic life experiences that any of us have ever had. We're reading about tens of thousands of Americans dying, millions of Americans being sickened, unprecedented job losses, economic calamity and an atmosphere of abject terror where people are afraid to go out, to go back to work, wondering about their economic viability."

Fillichio agrees, noting that "the human being is subject to biases. Jurors, judges, arbitrators, are all subject to biases. Those biases are formed by life experience and they are impacted by a lifetime of experiences."

For example, Banks posits that jurors may be more likely to be resentful of being summoned to leave their house to sit in close proximity with other jurors. This could ultimately affect their biases against litigants and their willingness to listen to and fairly evaluate the evidence presented at trial.

Depending on the type of case, attorneys would be wise to ask questions during the jury selection process about the personal experiences of jurors during the course of this pandemic, as those experiences will have helped to shape new attitudes and biases.

Types of Cases Impacted

Identifying shifts in juror attitudes and biases after COVID-19 will be paramount in successfully choosing a jury once trials resume. This will be especially true in certain types of cases where jurors have had the biggest shifts in attitudes towards the types of litigants or claims.

Medical malpractice claims are the most obvious example of cases that could be impacted by changes in jurors' attitudes as a result of COVID-19. Banks agrees, explaining that healthcare professionals "will be viewed as heroic coming out of this and I think negligence claims against those individuals will be harder to establish and jurors will be less likely to award sizable damages if they perceive the healthcare professionals to be responsible."

Fillichio cautions that "it's hard to understand at this juncture whether the traditional medical malpractice case will be impacted or not." "We have yet to really understand how that overall trend may impact front-line responders such as doctors, nurses, and hospitals. It is conceivable that we see some reluctance of jurors to punish front-line responders."

While Banks does not foresee a substantial impact to most commercial litigation or intellectual property matters, he does anticipate that shifts in juror attitudes as a result of the pandemic will affect employment litigation, including discrimination and whistleblower claims. "One would think that jurors who work for companies that work hard to protect their people, minimize furloughs, minimize reductions in force, try not to cut compensation, and work with people to recognize safety and familial needs would be reasonably good for the defense. Conversely, jurors who suffer job losses, or who feel that their employers are putting them in dangerous situations, are likely to be more resentful of employers and to want to blame employers generally."

Additionally, claims that might have been viewed as legitimate before this pandemic could be viewed differently now. In the short term, Fillichio queries whether or not jurors will have in mind different considerations of what constitutes a frivolous lawsuit.

 Effect on Verdicts

As jurors develop new attitudes and biases in response to COVID-19, their assessment of both liability and damages may be impacted. Although it would be logical to think that jurors may be more reluctant to hand out substantial damages awards in a time of fiscal unrest, Fillichio believes that the data actually suggests the opposite.

"Damages trends generally are going to be important for lawyers to understand, because the comfort level and security of jurors in times of societal disruption will impact juror decision making at all levels," Fillichio said. Damages trends have been studied since the Great Depression. "Some people might think that in times of economic instability, that damages awards may recede, but that has actually not been the case over the last couple of decades. The peer reviewed literature and our own DecisionQuest data shows that even after the recession in 2008, damage awards did not recede." While it may seem counterintuitive, Fillichio observed that in times of economic instability, damage awards tended to stay the same or trend up; just before this crisis, some damages awards rose to record highs.

While we have not grappled with a pandemic like COVID-19 since the last influenza pandemic of 1918, this country has gone through times of crisis and those past experiences can provide a certain level of understanding into what we are dealing with today.

"What I can predict with a certain degree of certainty," said Fillichio, "is that jurors will ask questions about large companies or medium size businesses and their ability to satisfy a judgment."

Jurors will also look "to evaluate the character of claimant and defendant, such as the honesty of the parties, the importance of the lawsuit, the justice sought by each side." The way jurors perceive these factors and the weight they give them may be different after COVID-19.

"There is no doubt that this pandemic will affect, for the short term, how jurors are assessing both liability and damages toward every litigant," Fillichio added, although she expects that the pandemic will have a greater impact on damage awards than liability determinations.

Importance of Jury Selection After COVID-19

We may not know when we will be getting back into the courtroom, but we do know that once we are back, things will not be the same. "People have had an unprecedented life experience" due to the pandemic "and we don't quite know how it will affect their viewpoints," Banks said. Banks believes that that the pandemic "will make juror research that much more important and the opportunity for more individualized voir dire with jurors more critical."

"In times of societal change, the questions that jurors ask will be impacted by this pandemic," Fillichio said. "Jurors are going to want to know the economic health of all parties in the litigation, the ability to satisfy a judgment, the reliance of one side or the other on governmental findings, which of course is impacted by a potential change in a juror's trust in government."  Overall, Fillichio believes "that jury selection will become even more important in the life of a case." "We know that you have a very difficult time succeeding in your case if the table is not set with a group of jurors that can listen. Identifying those jurors who do in fact have attitudes that could be related to bias is going to be even more important once we get back into the courtrooms."

Eventually, newly developed juror biases and attitudes towards certain types of claims and litigants may fade into the background as we distance ourselves from the pandemic, but how long that will take is unclear. For now, attorneys must work to understand what these new attitudes and biases are and should use this information to help shape their thinking as they prepare for the jury selection process. This will will be one of the many challenges attorneys face moving forward in a world after COVID-19.

Joshua Cohan is an associate at Anapol Weiss and is a member of the firm's mass tort and environmental and toxic tort team. Cohan handles a variety of pharmaceutical, products liability and environmental exposure cases. His practice also involves other catastrophic injury matters. He can be reached via email at [email protected].