By Thomas M. O’Toole, Ph.D.
As the country starts to re-open and jury trials resume, it is our job to research and understand what impact the pandemic and the stay-at-home orders that lasted over two months in some states will have on how jurors evaluate liability and damages going forward. There are many ways to approach this kind of research. For example, we just completed on of the largest surveys we have ever conducted in order to get specific answers to some of the questions we know attorneys and general counsel will have. We are currently in the process of analyzing all of that data.
It is also important to look back in history to other significant events for points of comparison. Everyone I talk to immediately draws comparisons to the 2008 recession, which makes a lot of sense given the economic parallels. When I have suggested looking at September 11, many brush off the suggestion, arguing that it is simply not comparable. However, delving behind assumptions, it becomes clear that there are some very important connections that are worth examination.
Specifically, the events of September 11 created a state of fear across the country. People were afraid to fly. In fact, the data shows that it took over two years for airlines to reach pre-9/11 numbers. People were also afraid of terrorism, in particular where large groups might gather. People also became more suspicious of those around them, especially those who “looked like” the hijackers they saw in the photos in all of the news stories. The fear was widespread and long-lasting.
The COVID-19 pandemic has also created a state of fear in this country. Daily reports on the growing death tolls, stories about hospitals overflowing with dead bodies (to the extent that many had to bring in refrigerated trucks to house them), stories about the uncontrollable spread of the illness among vulnerable populations at nursing homes, and the fact that the country had to go into “lockdown” mode are just a few factors that fuel this state of fear.
This leads us to the question, what effect does fear have on jury decision-making? Here are five empirical research findings that help answer this question.
1. Fear invokes defense mechanisms. Psychological researcher Arne Ohman wrote in 2010 that fear “can transform into behaviors that may lead…into defense mechanisms that may obscure the recognition of reality.” This could create a disadvantage for plaintiffs. In states of fear, our defense mechanisms often lead us to differentiate ourselves from victims in order to reassure ourselves that we will not suffer the same fate. It allows us to tell ourselves things like, “That would never happen to me because I would not make the same kinds of decisions that the plaintiff made.” The end result is essentially victim-blaming.
2. Fear increases the demand for information. A study conducted by Parker and Isbell in 2010 found that participants placed in a state of fear before making a decision spent significantly more time searching for information to help them make that decision than those who were not placed in a state of fear. This suggests that jurors may need and want more data at trial than in the past. However, the answer is not to overwhelm them with information. Research shows that overwhelmed decision-makers will resort back to shortcuts, which would undercut this finding. Instead, attorneys should explore the use of focus groups and mock trials to better understand the information needs that arise from this state of fear and how to best meet those needs.
3. Fear exaggerates the sense of risk. A 2011 study conducted by Sylvers, et al. concluded that “individuals who are trait fearful—those who tend to have personality characteristics that are dominated by the emotion of fear—will avoid taking risks that are generally perceived by others as relatively benign.” In other words, individuals in a state of fear are likely to have an exaggerated sense of risk. Perhaps this makes the Reptile strategy used by many plaintiffs more effective than it has been in the past since jurors may be more susceptible to fear appeals.
4. Fear drives pessimistic decision-making. A 2001 study conducted by Lerner and Keltner found that “participants who were fearful consistently made judgments and choices that were relatively pessimistic…in contrast to happy or angry participants.” Pessimism can influence jury decision-making in a variety of ways. For example, it could lead jurors to assume the worst of the parties. Perhaps they are more likely to assume the plaintiff only filed the lawsuit to get money he or she does not really deserve. Perhaps they are more likely to assume the corporate defendant routinely puts its own interests before the health and safety of its customers.
5. Fear can turn into anger. September 11 was a great example of this. After this event, America needed an enemy that it could punish, and support for some kind of military action was widespread. In short, Americans were angry. This is perhaps the most dangerous implication for defendants. Research shows that anger causes decision-makers to rely more on stereotypes and be persuaded by weak arguments and peripheral cues, which tend to favor the plaintiff in the typical injury case. Anger is also what drives headline verdicts. Anger motivates jurors to want to send a message to defendants even when they are explicitly instructed not to award damages based on a desire to punish the defendant.