Jurors in a Covid-19 World
There is no telling exactly how and in what way COVID-19 is going to spread and wreak havoc on the nation, disrupt routines and challenge our institutions. As each day brings us new information about COVID-19 and how people are reacting to it, litigants are wondering how this recently designated pandemic will affect future jury trials across the country. Currently there are some trials going on but most have been postponed. The NBA season is postponed, the NCAA Tournament scrapped, and now the start to the Major League Baseball season is delayed. We can only surmise what is next on the chopping block. We were told to avoid crowds of 250 people, then 100, now 10.
When trials resume, to what extent does all of this chaos, unfamiliarity and anxiety as a backdrop have on the psyche of your average juror?
No question the particular region of the country and extent of outbreak clusters in the venue will influence the mindset of someone whose new normal is to take safety precautions, keep a distance from people and wash hands as often as possible. Now they are being asked to regularly come down to the courthouse and sit in a crowded room full of strangers for days, weeks, or even months. So, what generalizations can we make?
First off, let’s revisit an often forgotten yet pertinent principle in Social Psychology called Terror Management Theory. Terror Management Theory posits that fear and dread are brought on by reminders about our own inevitable death. Individuals spend a great deal of psychological energy minimizing reminders of their own death. We see this phenomenon when someone says “I do not smoke so this (other) person who smoked and died of lung cancer died because he smoked” upon learning about someone who died of lung cancer. While we try and avoid thinking about our own death, sometimes, for example during terrorist threats, or now during regular reminders of COVID-19, we are forced to do so.
Some jury research has found that those who are reminded of their own mortality tend to give harsher sentences in criminal cases and award greater punitive damages in civil cases compared to those who do not get a reminder about death and its permanence. I believe this phenomenon is case-specific and will be more salient in a medical malpractice case than say a patent, trade secret, or even a product liability dispute. While COVID-19 is in the news 24-7 jurors will be prone to lash out. In personal injury cases I believe jurors will be more likely to punish defendants who they perceive as not taking safety seriously or of flaunting the well-being of the public. In these times, when people are forced to acknowledge their (or a loved ones) inability to live forever, harsher judgment patterns will tend to increase.
A second dynamic to consider is how jurors will judge the alleged wrongdoing of a company in a trial when, the second they go home for the night (if not sequestered) they worry about riding public transportation or think about a friend, family member or co-worker who is or could be sick. In this scenario, I believe a standard is created where the actions of the defendant(s) will typically be seen as comparatively less problematic and unsettling compared to the mortal threat of COVID-19. A juror would be less inclined to feel sorry for someone who claims they have back pain, suffered an adverse employment action, or are due damages for mental pain and suffering when outside the courthouse there are people facing severe life and death consequences. This “there are bigger problems in the world” will help defendant companies stave off reptilian efforts to arrive at a large damage amount.
You might be wondering well which is it, an anxiety-based impulse to stick it to a defendant or a tendency to show leniency. It all depends on the specific facts of the case and the remedy a plaintiff is seeking. As alluded to, in cases involving negligence where the defendant is perceived to have disregarded safety norms and seriously injured a plaintiff, the atmosphere is problematic for corporate defendants. Conversely, if the defendant did its best and comes off as a solid corporate citizen trying to do the right thing being dragged into court by a non-sympathetic plaintiff asking for non-economic damage, jurors will likely determine there are more important things in the world to worry about.