PART 5: AFTER CORONAVIRUS, WHAT WILL BE THE MOOD OF THE JURORS?
In this famous scene from the legendary movie, Goodfellas, mobster Tommy DeVito, is looking at a picture painted by his mother of an older man with two dogs. While at the same time, Tommy and his crew have a person tied up in his truck who will later meet a dismal ending. If you haven’t seen this part, put this movie on your pandemic list.
The SDL has had many recent conversations (from a distance, of course) with other lawyers (on both sides of the “v”) and colleagues in the defense industry concerning how jurors will react after the COVID-19 crisis is over. What the crisis being “over” entails however, is better left to the doctors and researchers. The SDL notes that there is an old saying in the medical profession that you never want to be the first doctor to treat a patient who presents with a new virus because you will misdiagnose it and then you will get it. There definitely is some critical logic here, can we “diagnose” the mindset of jurors who have been in quarantine for months? The SDL’s quick research reveals that the last jury verdict in a civil case may have occurred in the mid-March timeframe (according to law.com). The SDL understands that there have been other limited criminal jury verdicts that have followed.
The SDL’s professional history recalls that after the tragic events of 9/11 and Superstorm Sandy, juries in the New York City/New Jersey area became tougher on plaintiffs in standard case types (except for the notable actions involving first responders and property damage after Sandy). In a way, jurors adopted the approach of “we have been through the worst now,” akin to “whadda ya want” from us?
This swing of the pendulum toward the defense seemed fairly short-lived as the crisis’ waned. Yet, as bad as those events were (and they were horrific), this is a different thing. First, the coronavirus has affected the entire country and changed the way most of us live and work. Second, we have seen unemployment skyrocket to levels unregistered since the Great Depression. Third, there are massive food lines all around us. Fourth, no matter how fast the job market can snap back, parts of the economy, such as the Leisure and Hospitality Industries, will face enormous challenges in the near term. Finally, you do not need to be an expert to know that the pandemic has taken an emotional toll on us.
Most of the lawyers the SDL has distantly surveyed think that juries will be stingier after the crisis. The theory is: Who wants to listen to some plaintiff complain about something like a questionable back injury in the face of real suffering and loss of life? This view seems to make sense and may be more likely, but the flip-side could be very dangerous. What if there is a general rise of sympathy from jurors just because there has been so much misery? Will jurors speculate on whether the plaintiff lost his/her job, needs money to feed the family, or just want to inject cash into the community (i.e. “Coronatile,” and yes, you heard it here first)?
The question is, who wants to be first to find out? The SDL is actively looking for evidence on the mood of jurors going forward. Yes, there will be mock juries which can be valuable in this inquiry. But the crisis isn’t over, and mock juries are focused on a single case. However, maybe mock juries can detect the presence of the “Coronatile Juror?”
We have seen the failure of state’s unemployment systems to handle spiking demand from the growing unemployed and the widely criticized distribution of PPP funds featured every night on our local news. Are these types of headlines fuel for the “Coronatile Juror?” How much bad news and economic suffering will be necessary to create a “Coronatile Juror” (if possible)?
While these may seem like rash questions, if you were on the plaintiff’s side of things, wouldn’t you want to know the answer? Which juror will we get?
As Henry Hill notes in the movie: “[R]ight after I got here, I ordered some spaghetti with marinara sauce and I got egg noodles with ketchup.”
