2021 Voir Dire: Covid-19
My blog from December 29, 2020 (sorry for the reminder I know we are trying to forget 2020) laid out reasons for getting jurors to talk about Covid-19 at the start of voir dire. My line of thinking was that everyone in the jury pool will have something to say about Covid-19, which opens up a constructive pathway for establishing rapport with jurors during the crucial early stages of trial. I also pointed out that besides loosening up the panel, a lot more can be gleaned by getting potential jurors to talk about their experiences with and attitudes of living through 2020 (sorry again).
When asking the panel about their experiences since the pandemic struck, there will be some initial unburdening of the challenges and struggles jurors endured during the Covid-19 time period. What they reveal will vary widely, but by and large this discussion will evoke some disconsolate anecdotes. As jurors unload personal information about themselves and become comfortable talking about Covid-19, you will learn how their fundamental Covid-19 experiences will shape the way they interpret and assimilate evidence in your case. A voir dire roadmap generating answers to the following questions will help you discern how a juror will conceive of your fact pattern.
How do you think the government handled the pandemic? How about the state versus the federal government?
What is your view on how the media reported on the pandemic? Did they over-estimate the risks? Did they minimize the risks? Did you like how the numbers were broken down in terms of deaths per capita and explanations of the positivity rate?
Has your impression of health care workers changed in any way? How about of hospitals? Doctors? Drug companies? Pharmacies?
Talk to me about the economic impact of shutdowns and regulations promulgated in your city or town or county?
How drastically did your life change?
Who here rarely left the house? Does anyone think social distancing wasn’t necessary? Who or what do you think was responsible for getting the pandemic under control? Do you think masks helped control the pandemic?[Getting jurors to talk about vaccinations is another avenue that will reveal key information about what makes a particular juror tick.]
As you can imagine, answers to these questions will give you a sense of whether a juror tends to be risk-averse. Responses will also clue you in on whether a juror will be strong on personal responsibility, veer toward authoritarian thinking (or shun it), prioritize facts and data versus more intuitive-based “gut” reactions, and embrace an internal or external locus of control. To elucidate, typically, those with an internal locus of control (i.e., success/good outcomes are made possible through efforts, ability, hard work, etc.) are good defense jurors while those with an external locus of control (i.e., luck or fate play key factors in determining life outcomes) are more plaintiff-oriented.
Whether your case is personal injury, medical malpractice, product liability, or even an employment dispute, you will want to hear prospective jurors talking about how often they wore masks, abided by social distancing directives and trusted scientists for guidance on the pandemic. Personality traits will also show through during a thorough discussion of Covid-19. Does a juror appear to be dogmatic, contrarian, a cynic, a rule follower, a rule breaker, or someone who believes in a just world? While your first jury trial in 2021 might have nothing to do with the pandemic per se it will be important to introduce the topic during voir dire, and listen to what panelists have to say since they will in essence be providing you with a glimpse of how they will argue for or against your client during deliberations.