By Thomas M. O’Toole, Ph.D.
Yesterday, Seattle Public Schools announced that remote learning will continue indefinitely, meaning public school kids are not going back to school in the fall. A city-wide collective groan followed the announcement. While parents recognize the importance of protecting the health and safety of our community, they also recognize that it is incredibly difficult to have the kids at home every day while they are trying to work from home or manage other aspects of their lives.
This is just one of the many tough realities that your jury pool is facing during the pandemic. Many have lost their jobs or face job uncertainty. Even those who seem secure in their jobs for now may fear the unknown future. The financial impact on jurors creates a tremendous amount of stress. Some have lost loved ones while others fear that they might be the next diagnosis. Additionally, your jurors have been in some variation of isolation for months. The emotional impact of not being able to be around those we care about is difficult to quantify.
Beyond the pandemic, the daily news paints the picture of a nation in crisis on issues of race and politics. With the presidential election this fall, both sides of the political spectrum are working hard to excite their base.
All of this means that your jury pool will be more emotionally volatile than ever before, which will require adjustments to your case theory, your presentation, and your courtroom strategy in general. There may be a temptation to downplay or dismiss the emotional volatility of the jury pool or its importance. After all, we live in a culture that has historically drawn a difference between logic and emotion, with the latter considered an inferior and flawed state of the brain. However, research has shown that this is a flawed distinction. For example, famed-neuroscientist Antonio Damasio studied the brains of people with injuries that left them with no capacity for emotions. He found that the absence of emotions left these patients totally unable to make even the smallest decisions, such as whether to use a red pen or blue pen. His conclusion, along with many other researchers, is that emotions are essential to decision-making. Other research shows the effects are more nuanced depending on the emotion. There is a wealth of research out there on this topic and our colleague Scott Herndon wrote an outstanding blog on this topic recently.
Effective strategy development for post-COVID jury pools begins with recognizing the heightened emotional state of your jurors, which may change the way they look at the issues in your case. This means it is probably time to revisit your case theory, trial themes, and presentation strategy for your upcoming trials.