Fear and Loathing in a Post-Pandemic Jury

Pandemic's Effect on Jurors' Attitudes & Beliefs

With respect to jurors' overall attitudes, our experience with recent juror research exercises and our analysis of national survey data leads us to believe that the pandemic has greatly accelerated pre-pandemic trends of increasing feelings of anxiety, alienation and polarization. Fear and anger have become dominant emotions for many individuals, and are likely to play a large factor in jury verdicts when the court system slowly opens up as the pandemic recedes. As those familiar with the “reptile theory” are well aware, fear and anger can “crowd out” more logical decision making, and lead to large verdicts in civil cases. In addition to fear and anger becoming dominant emotions, the pandemic has also exacerbated the polarization of society, making collaborative decision-making in juries even more difficult. Juries will struggle to reach a consensus, and this conflict during jury deliberations combined with feelings of anxiety, fear and resentment are likely to cause an increase in the size of verdicts in civil cases.

Not surprisingly, the feelings of l isolation created by social distancing measures used to combat the coronavirus pandemic has led to a dramatic increase in stress and anxiety. This is confirmed by our research, which found that 92% of the surrogate jurors in our exercises felt that their life had been very or somewhat disrupted by COVID-19, and 36% said they or a significant other had lost a job because of COVID-19. The upheaval in their personal and professional life combined with their fear for their personal health, as evidenced by the fact that 63% of the surrogate jurors in our surveys reported being very concerned that they or a loved one would contract COVID-19. Another study found that one-third of Americans know someone who has died of COVID. All these stressors have led to issues with mental health. In 2019, surveys showed that 11% of Americans reported symptoms of anxiety disorder or depressive disorder. By January, 2021, that number had increased to 41%. The pandemic caused every decision about behavior to be a source of stress as individuals felt they were always choosing from options that had no “right” answer. The stress of having to weigh potential risks to health every time a person left the house strongly impacted mental health, with 53% of adults saying worry or stress had a negative impact on their mental health as of December 2020. Individuals felt that they had lost control of their lives, which has led to feelings of anger and fear. A Pew Survey in November 2020 showed that 65% of Americans reported being fearful about the state of the United States, and 73% said they felt angry about the state of the United States. The American Psychological Association Stress in America survey in January 2021 found that 39% of Americans had experienced severe anger in the past two weeks, and 67% of Americans felt overwhelmed by the number of issues they were facing.

These feelings of stress, fear and anger caused increases in the polarization that was already a major issue in the United States. The protests and violence in reaction to the George Floyd death showed the increasing racial polarization felt by many, especially minorities, in the United States. The lead-up and aftermath of the 2020 election and events on January 6th further highlighted how polarized Americans have become. These issues that existed pre-pandemic were already increasing in severity, but the isolation and resulting mental health impact of the pandemic greatly accelerated these trends and will express themselves in juries as the court system starts to open up later this year. Jurors will still be feeling fear, anger and stress, and they will be less willing to compromise with their fellow jurors. All these emotions will cause them to be receptive to arguments to “punish” defendants who they believe have acted wrongly.

We have already begun seeing this in our online exercises during the pandemic last year. We had anticipated that there would be a “halo” effect for health care providers as a result of the understanding of the hardships faced by health care professionals in combatting COVID-19. However, not only did we not see a “halo” effect, we instead saw that jurors were expressing anger against health care institutions. Their feelings of powerlessness against COVID translated into anger against mistakes they believed were made by health care professionals. Even the strong defense-leaning jurors were willing to “give in” and accept large awards against health care providers. These feelings of fear and anger have also impacted awards against large corporations. Surrogate jurors feel that large corporations have benefitted financially during the pandemic, and their anger has led to a willingness to award significant compensatory damages. The fear, anger and helplessness of jurors has been exacerbated by the pandemic, and this is likely to lead to a significant rise in verdicts. As the “reptile theory” predicts, angry and fearful jurors will want to try and exert control by imposing large verdicts. How long this wave of anger and fear lasts will be something we will be paying close attention to in our juror research exercises going forward.
Pandemic's Effect on Jury Composition

The second issue to consider when determining the effect the pandemic has had on the jury system is to examine the likely composition of a jury pool as courts begin to open up. In our exercises, we have been tracking how comfortable our surrogate jurors were with serving on an actual jury. Almost 80% of our surrogate jurors said they would be willing to serve, but the 20% who were unwilling to serve because of fears of coronavirus were disproportionally minorities and younger jurors. At first, it is likely only those who do not feel threatened by the pandemic will show for jury duty. This would include those who are fully vaccinated as well as people that equate the coronavirus to getting the flu. As a result, it is likely the jury pool would have a more than average amount of older, more conservative type jurors. The pace at which the vaccinations continue and the speed with which the courts open could mean the likelihood of having a disproportionately older, more conservative jury pool could be a very short time-frame, possibly only 3-6 months or even less.

Another consideration when trying to determine the future composition of jury pools is the issue of hardships. Since February 2021, bookings for hotels have tripled while flight booking volume has had a similar trajectory. Family vacation travel is leading this trend, followed by non-family leisure travel. Flights for business travel is trending upwards, but at a much slower pace. As more children get vaccinated, the trend towards family vacations is likely to increase. As most jurisdictions allow a one-time deferment for jury service and many judges allow hardships for those with travel plans, especially those with flights already booked, it is likely there will be less family-oriented people in the jury pool, especially over the summer and during breaks in classes. This again could lead contribute to disproportionally older, more conservative jury pools in the short term.

In addition to vacation and travel plans, hardships are likely to be requested for those whose jobs have impacted by the pandemic. As noted above, 36% of surrogate jurors during our exercises throughout the pandemic have reported they or a significant other had lost a job due to COVID. A Pew Research Study in September 2020 found that one in four adults had trouble paying their bills during the pandemic. Economic hardships during the pandemic have disproportionately affected people with lower incomes, those without a college degree and minorities. Judges are likely to be sympathetic to those whose jobs were affected by the pandemic and may excuse potential jurors who claim job related hardships. This is a further factor that will lead to a short-term effect of venires that skew older as retirees and older jurors who are more established in their jobs will be more willing to serve.

Putting It All Together

Polarization of society, both in its beliefs and in the economic disparities, existed before the pandemic. However, the pandemic has heightened these disparities, making it more likely, at least initially, that jury pools will be less diverse and consist of older, more conservative jurors. Travel hardships may mean less family-oriented people will be seen in the jury pool as well. Overall, at least initially, due to these concerns, jury pools are likely to be more favorable to the defense. However, as more people are vaccinated and as economic hardships ease, jury pools will likely trend towards more traditional levels of diversity, but polarization will likely still exist. Jury dynamics will be affected by these factors, creating a situation where compromise and consensus will be difficult. However, when a verdict is reached, fear and anger may drive the verdict, causing higher than average jury awards and a situation more favorable to a plaintiff.