Where Do We go From Here?

During these unprecedented times, we at Zehner Trial Consulting, like most people, are wondering what the world will look like after restrictions are eased and what will be the “new normal”. More specifically to us, how recent events will shape jury research in the near future, and will any of the changes implemented permanently change how we conduct business.

First and foremost, we know the pandemic has changed the way courts are currently conducting business to comply with social distancing policies. Court systems have resorted to conducting business using teleconferencing services whenever possible. This has included arraignments, status hearings, pre-trial conferences, and similar. Recently, a state court in Texas held a one-day bench trial via Zoom which was live-streamed to the court’s website.

It seems logical, then, to consider whether some states may start to conduct jury selection via teleconference. In this way, jurors could be interviewed and questioned, possibly eliminating anyone who may have a conflict, hardship, or be eliminated for cause before ever having to step foot in a courtroom. It would also have an impact on the juror pool given that it would require a juror to have access to a device that could utilize a teleconferencing service and have some basic knowledge of how to utilize the teleconferencing software. This may mean older jurors and jurors of modest means would be less likely to be part of the jury pool. However, older jurors may also be resistant to serving on any jury, even if social distancing measures can be implemented, given their risk factors associated with COVID-19. Along the same lines, jurors with pre-existing conditions, especially those associated with higher morbidity when exposed to COVID-19, may also resist jury duty. Furthermore, as COVID-19 seems to be affecting minority communities more heavily, it is possible individuals from these communities may also be resistant to serving on a jury in the near future. Therefore, the most likely juror type for any case in the short term could very well be a non-minority millennial juror. (Read 21st Century Jury: Getting to Know the Millennial Juror for more information on the millennial juror).

In addition to potentially changing the jury’s composition, jurors' views may also be influenced by recent events. In the not so distant past, a doctor’s advice was rarely questioned and patients held doctors and other healthcare workers in high regard. However, over the last 20 years, this image of doctors having all the answers has eroded and people have looked at doctors with a more jaundiced eye, often viewing them as overworked, unable to spend time listening to patients, and failing to communicate with other healthcare workers. Now, however, with healthcare workers being on the frontlines fighting this pandemic, jurors' views will likely be much more favorable towards doctors, nurses, and other healthcare workers. As a result, they may be more resistant to finding a doctor, nurse, or other healthcare worker negligent. Whether this resistance will extend to hospitals is unclear.

Jurors may also be resistant to finding small businesses negligent due to their sympathy towards them. The effect on larger companies is less clear and may need to be considered on a case by case basis. For example, some may view Amazon as a life saver during the pandemic while others may blame them for not protecting their workers. Similarly, some jurors may believe large chain restaurants took money from businesses that really needed it through the CARES Act while others may see them as sympathetic victims of the business closures. When awarding damages, jurors may use personal experiences with COVID-19 as the schema through which they determine the value of claims. Therefore, depending upon the claims, it may be important to question jurors’ experiences during the pandemic.

How these changes will affect juror decision making now and in the future is something Zehner Trial Consulting is currently evaluating. The focus of our research exercises going forward will be to see what has changed and what has stayed the same in our “new normal” as businesses and the courts begin to open. We will update in future newsletters any information we learn regarding how jurors' views are changed due to the recent events.

We hope everyone stays safe and healthy during these challenging times.