PART 6: THE (VERY PRELIMINARY AND UNOFFICIAL) VERDICT ON JURY ATTITUDES
Last week, the SDL wrote about potential changes in jury attitudes in the age of (hopefully) slightly-past-peak COVID-19. Since this will be such a critical topic over the coming months and possibly years, we decided to dive in a little deeper and share a recent survey/study on the topic. Because hey, would you rather pass the time right by watching Tiger King or The Last Dance or by reading more of the SDL’s musings on possible civil jury trends over the next 6-24 months? That’s a rhetorical question, and for the sake of our own pride, we kindly ask that you refrain from answering.
We’ve been pondering a few questions about potential jurors and trial judges lately. Will jurors claim hardship/try to get out of jury duty due to COVID-19-related fears of being confined in an enclosed courtroom/jury room for days? Will judges find hardship and dismiss jurors due to those fears? Will summoned jurors even show up? Our instinct is that the answers are “definitely,” “probably,” and “maybe not.” But how would this affect actual juries’ attitudes towards civil litigants?
Recently, Dispute Dynamics Inc. out of Los Angeles and Philadelphia did a national survey of approximately 300 participants to attempt to evaluate some of these questions and provide more demographic and attitude-based information. They started with a preliminary question (summarized for brevity): “Once the courts are re-opened, and if you are called for jury duty, could you make the necessary sacrifice and serve as a potential juror?” While 48% answered “yes,” 27% responded, “No, [they are] afraid to be in a room with a large group of people. Respondents from minority racial/ethnic groups responded that they were afraid at a significantly higher rate than non-minority respondents (42% or more of each minority group responded that they would not serve due to COVID-related fears versus 28% of non-minority respondents). Employed respondents were significantly more willing than unemployed respondents to serve on juries (68-73% versus 53%), and employed respondents were less afraid of being in a room with a large group of people than unemployed respondents (19-32% versus 47%). There was also a significant (and somewhat disconcerting) correlation between the frequency that participants wore masks outside and their willingness to serve on a jury (those who reported never wearing a mask were most likely to be willing to serve.
Interestingly, this survey/study also found a strong attitudinal trend amongst those still willing to serve on juries. Of those willing to serve, a significant majority reported that they strongly disagreed that an important function of juries was to send messages to corporations to improve their behavior. Similarly, a large majority of willing jurors disagreed that too many corporations have put profits over safety during the coronavirus pandemic. This suggests that willing jurors may be less likely to view corporate defendants in a negative light. This would be bad news to members of the plaintiffs’ bar who use “Reptile” tactics, which attempt to convince jurors to award large verdicts in order to “send a message” to the evil corporate defendant that “bad behavior” will not be tolerated (even if such “bad behavior” is not an issue in the particular case).
Of course, you should view these survey results with caution – this is a small sample size, the specific geographical regions of those who responded is unclear and open-ended questions/responses were not utilized. Nevertheless, this preliminary data is useful and provides some clues as to how potential jurors will view the system as courts resume trials. Since it is unlikely that the courts will follow Derek Zoolander’s advice and expand their physical footprints, the SDL expects that all litigators and risk management professionals will need to follow potential changes in jury attitudes closely for the foreseeable future.
