Don’t Let Your Case Strategy Languish Amidst a Changing Jury Pool


Back in May, the New York Times published an outstanding piece about the “blah” feeling that many are experiencing as we transition from the pandemic and lockdowns back into whatever is “normal” moving forward. As the author wrote, “Languishing is a sense of stagnation and emptiness. It feels as if you’re muddling through your days, looking at your life through a foggy windshield. And it might be the dominant emotion of 2021.”

Recently, I’ve spoken to many attorneys who have experienced this feeling of languishing in their cases. Some have commented that they are working hard but feel like they are missing the creative spark that they love experiencing when they work on their case strategy. Some of it is attributable to the fact that so many trials are getting bumped to later dates as courts across the country begin to work through the criminal backlog that built up during the pandemic. It is difficult to get excited about your case if there is no trial date on the horizon.

Fortunately, this downtime provides a critical opportunity not just to revisit your case, but to take a close look at how your case fits into the worldviews of the post-pandemic jury. With the lockdowns over and mask mandates going away, there is a lot of talk about returning to “normal,” but there is a lot of research that indicates that we will not be going back to normal any time soon, if ever. Your jury pool has changed, and you don’t want to get caught trying to win over a post-pandemic jury with pre-pandemic assumptions about your jurors. Let’s take a look at just three of the significant changes you should expect.

1. Emotional volatility is high. Your jurors have been through a lot. 2020 gave us not only a health crisis that no one had seen in their lifetime, but it also gave us an incredibly divisive presidential election, heightened racial tensions, and many other emotional triggers. Some studies show that loneliness and depression is at an all-time high, and other research indicates a spike in divorces and break-ups. The impacts of all of this are real and they are significant. The emotional volatility of your jury pool will change the way jurors perceive, react to, and talk about the case in deliberations. Emotional triggers will emerge in unexpected areas of your case and those can shift the entire course of deliberations.

2. The way we communicate has changed. 2020 profoundly changed the way we communicate with and relate to people. Forced isolation meant that much of our communication took place over new or different mediums than we are used to. Videoconferencing became the norm not just for business meetings, but also for how we kept in touch with the family and friends we could not see because of health risks. Our dependence on social media skyrocketed so much so that some researchers describe it as an epidemic of compulsive social media use. These changes have significant impacts. Social media alone changes the way we relate to others, adding more aggressiveness and less inhibition to the typical interaction. Many of us became keyboard warriors so much so that 2020 saw a surge in the number of family relationships and friendships that ended due to disagreements and hurt feelings over social media posts. Some writers have argued that this might explain the recent trend of bad behavior on airlines, at sporting events, and restaurants as we try to transition back to pre-pandemic times. Regardless, these new communication mediums have changed expectations, behaviors, and perceptions of communications in important ways that need to be addressed in your trial strategy.

3. Deep polarization is the new norm. Political polarization has been going in the wrong direction in the United States for some time, but the pandemic and its overlap with the presidential election seemed to hit fast-forward on it. We became so divided as a nation that we could not agree on simple health measures to protect our communities. This led to almost daily viral videos of random people having meltdowns in public places over simple requests to wear masks. Perhaps this happened less frequently than we were led to believe, but those impressions are more impactful than the truth. This politicization of seemingly non-political issues was the real game-changer, and it is something we are seeing more and more of in our mock trials and focus groups where seemingly benign issues in the case are triggering political beliefs and ideals.

These are just a few of the important ways your jury pool is changing. While you might be frustrated that your trial has been bumped well down the road as courts deal with the criminal backlog, you might also look at it as an incredibly lucky opportunity to reposition your case to succeed in a post-pandemic deliberation room. Even simple strategy development sessions can re-spark that creative drive that most litigators love about their work by giving them a new and interesting look at what they need to do to succeed in this new post-pandemic era.

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