Over the last few days or so, I have seen that lawyers, judges and clients alike are starting to wake up out of their covid-comas and are thinking about getting back to normality – whatever that was – heck, let’s just call it the pre-covid days. More courts are scheduling video or phone conferences; lawyers are emailing following up on discovery issues; and court administrators are looking ahead to they day when the system is once again fully operational.
I was on a video conference yesterday with some Bar Association leaders; court administrators; and a few fellow lawyers talking about the re-opening of the court system. We all agreed that there was a lot we could do virtually and separately, including even conducting depositions, though I said I would prefer not doing it that way, for reasons I need not get into now.
We all quickly cast aside the idea of a virtual jury trial, as just not realistic or practical. Also, as a trial lawyer, sneaking a peek at the jury during a witness’ testimony and catching a roll of the eyes or a knowing look between two jurors is very important. Deliberations would be very difficult to control as well .
But that got me to thinking about the jury pool when we did all get back together. How could we believe that jurors would not have been affected by this pandemic? What will those jurors be like? In criminal cases, will they be harsher to and more likely to convict defendants who committed crimes during the pandemic? Or would they be upset the government was wasting their time and bringing them together if they thought the crime was “trivial?”
I think the pandemic will certainly have an effect on civil trials, I’m just not sure what that effect will be. There has been analysis on how jurors who grew up after 9-11 (generally the Millennials) were affected as jurors. But those articles dealt mostly with how that group took in information. Though an insightful article called How the Changing Mindset by Millennials Affects Your Jury by Jessica Relyea of the Virginia law firm of Kalbaugh, Pfudn & Messersmith, has this interesting paragraph:
[M]illennials value safety more than any other generation. Specifically, millennials are more likely to cite personal safety as a cause of stress over any other generation. American Psychological Associates, Stress in America: Our Health at Risk, (January 11, 2012). During a 2016 presentation to the American Bar Association, Marygrace Schaeffer from DecisionQuest, a trial consultant firm, revealed that millennials do not believe government safety standards are the appropriate metric against which safety should be measured, with 88% agreeing that “companies should be held to a higher safety standard than what government regulations require.” Furthermore, 84% of millennials felt that “big business needed to take every safety precaution no matter how impractical or costly.” While any specific studies cited by Ms. Schaeffer were not publically available, the talk was reported by Legal Reader, Bloomberg Law and Law 360. Whether the statistics are exact or not, we know that millennials grew up during the 9/11 terrorist attacks previously mentioned, but also the Oklahoma City bombing, the Columbine High School massacre and all the school shootings that followed. It logically follows that these events have affected millennials, causing them to be more aware of and concerned by safety issues than prior generations.
So what will the mindset of a post-covid juror be? Certainly they will be concerned for their own personal safety at the courthouse but assuming we can alleviate that concern, what I am talking about is how they will judge a case. What will they consider to be a serious injury? What if the plaintiff is what we have now deemed “an essential worker?” sure, firefighters and nurses were always held in high regard by jurors, and that had to be addressed in jury selection if the party on the other side was either of those professions or something similar, but the same feelings of respect, and a desire to protect and stand by a party who is a food worker; grocery clerk; or delivery person may also come in to play. If a party who is an employer who stood by his workforce and paid them through the pandemic doing what he could to keep his business alive, will a jury award as much damages either for or against that party as they would have before covid-19? Lots of questions, I don’t have a lot of answers yet.
If the party is the government, how that village; town; county; state handled the pandemic may play a large role in jurors approach to the case and general mindset. The country was already politically divided and how folks see the US and Trump Administration response to covid-19 may well impact how those jurors view cases brought either by or against the Federal government.
We can never fully separate jurors from their past experiences and good trial lawyers would not want to do that anyway. Our jobs is often to select jurors whose past experiences, we believe, will make them more receptive, appreciative and accepting of our clients’ positions. Until we actually get into the jury room with them and start probing these issues we really don’t know what a post-covid jury will be like. But certainly for litigants and attorneys alike, that analysis will have to be undertaken as we get closer to the return of an in-person trial.
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