By Thomas M. O’Toole, Ph.D.
It is the question on every litigator’s mind: What impact, if any, will the pandemic have on jury decision-making once trials resume? Will there be more goodwill towards businesses because of the economic toll the pandemic has taken? Will perceptions of a widening rich/poor gap perpetuate social inflation and nuclear verdicts? The questions go on and on and it is important to have answers to them. I expect that many organizations will purport to have those answers, but those answers might be misleading or flat-out wrong for one very important reason.
While everyone wants to understand how the pandemic will impact jury decision-making, the first and most important question is who will show up in the first place? It does no good to have research findings based on a small sample size of a couple hundred when you have no idea how the jury pool might change because of the pandemic. Last week, we completed one of the largest national surveys we have ever undertaken. We surveyed 1,000 jury-eligible citizens across the country, collecting over 80 data points from each respondent in the process. As we are working through the data, one statistic stands out like a sore thumb. Specifically, 45% of all respondents said they would not show up for jury duty in the weeks or months after the stay-at-home orders were lifted in their city or state due to concern for their health. Let that sink in for a moment. Nearly half of the jurors called for jury duty are so concerned about their health that they would simply not show up. The comfort zones for how soon these individuals might be ready to show up for jury duty varies a bit. For example, one respondent noted, “I’m not showing up for jury duty until there’s a vaccine.”
We have been speaking with some of our local judges as they scramble to figure out how they might be able to resume trials and some of the suggestions that have been floated reinforce this idea that our jury pool will probably look different for quite a few months when trials resume. For example, some courthouses have discussed automatically excusing jurors over a certain age or those who have conditions that make them more vulnerable. It is also clear that there will be a great degree of leniency for those concerned about their health. This means that the jury pool itself will look different than before since it is not only based on who shows up, but also on who will be let go with a simple “I’m worried about my health” excuse.
This has critical implications that cannot be addressed in research studies that fail to specifically examine the willingness to show up for jury duty in relationship to various views on liability and damages. For example, in our survey, we were interested in how the pandemic impacts views of employment cases, given the skyrocketing unemployment rates and stories of unsafe conditions in the workplace (i.e. inadequate PPE, etc.). We asked respondents who they would favor in a case between an employee and an employer. Among those who said they would NOT show up for jury duty out of concern for their health, 76% of them would favor the employee over the employer. However, if we look at those actually willing to show up, the number drops to 58%. That is quite a difference that we would never have discovered had we not examined the issue of willingness to show up for jury duty in the first place.
Our research has uncovered many critical distinctions between those willing to show up for jury duty and those who are simply too concerned about their health to show up. This is why it is so important to read studies and articles in the coming months about the pandemic’s impact on jury decision-making with a grain of salt. Did these researchers take the time to differentiate the data points between those who will actually show up versus those who will disregard their summons out of concern for their health? If not, the research might be interesting, but it is largely useless in terms of informing trial strategy. We are living in a different world these days. There is no doubt about that, but researchers are going to have to dig a lot deeper to provide attorneys the answers they really need to these important questions.