PREPARING FOR TRIAL AFTER COVID-19

As most of the country quarantines to assist with the fight against Covid-19, or Coronavirus, it is realistic to expect some change in people’s attitudes and outlook on life once they are freed from staying at home. Research suggests, “The psychological impact of quarantine is wide-ranging, substantial, and can be long-lasting.” Some of these changes could influence attitudes when people once again begin serving as jurors, since the research shows the impacts can last up to three years. Here are a few thoughts on some possible changes one might expect to see in jurors after being quarantined:

Impatience for what they view as wasted time.

Many jurors will have just lost out on weeks, if not months, of time at work. Adding insult to injury, they are now being asked to give up even more time to serve on a jury. Any time spent by attorneys (or the court) during trial that is perceived as unnecessary will likely anger jurors even more than usual. Attorneys should be especially conscious to make it clear why every witness matters and why every question is necessary to prove their case. Anything perceived as wasted time will be held against you and lead to an unfavorable opinion of you and your client.

Sympathy for economic loss.

George Hoffman, in his blog “The Psychological Impacts of Quarantine,” identifies financial stress as a key effect of a quarantine. This financial stress will increase the impatience I cited in my first point, and it might also cause alterations to opinions about legal claims asking for a damage award. Jurors could have much less sympathy for someone asking for an award if they have suffered recent financial hardship. They could see the economic damage being claimed as trivial and unworthy of compensation.

Views of medical damages.

Jurors could use the number of deaths and the overall suffering of Coronavirus patients as a measuring stick to evaluate the damages claimed by the plaintiff. This would especially apply in drug or medical device cases, where jurors might see the damage allegedly caused by the defendant as “small potatoes” compared to the harm caused by the virus. On an individual level, jurors could feel Coronavirus patients (including themselves or loved ones) were not compensated for their injuries, so why should the plaintiff receive a large award?

Opinions about medical experts.

This issue could cut either way, depending on the juror’s perception of the predictions made by medical experts. A juror could feel that medical experts exaggerated the risk of the virus, causing a decrease overall in medical expert credibility. This would be more pronounced if the trial expert is in the area of infectious disease. But if a juror feels that medical experts were the driving force behind protecting the country, doctors and other health professionals could see an increase in credibility.

Effects of PTSD.

A recent study in The Lancet identifies Post-Traumatic Stress Disorder as more prevalent in quarantined individuals than those who were not confined. A Canadian study also identified an increased prevalence of depression. The stress and anxiety that results from PTSD and depression could have a significant effect on the attitudes of a juror. Again, people would likely become frustrated and impatient much more easily. It could also make a juror more sympathetic with a plaintiff who claims to have suffered PTSD or other emotional trauma, since they might find these injuries more legitimate if they have similar symptoms. There is also a risk, however, that a juror would have less sympathy if they see the alleged cause of someone’s emotional injury claim as minor or trivial.

More talkative jurors.

Jurors who have been quarantined for several weeks might be much more willing to talk (and talk and talk) than they would in a normal situation. The lack of social interaction could spur jurors to examine and discuss evidence more in depth than they might normally, decreasing the chance of “gut feeling” verdicts.

Because of these potential risks, attorneys will need to be diligent in voir dire making sure they identify jurors who might be high risk because of the effect of the quarantine. The way in which someone’s psychological state might affect their verdict will be unpredictable in some cases, so someone could be good or bad for your side. The unpredictability makes creates a risk that might not be worth taking.

Some jurors will be reluctant to discuss their feelings and the long-term effects of social isolation. It might be useful to ask for a question about the quarantine be included on a written questionnaire. Those indicating they are feeling a lasting effect could then be questioned in private to help ensure frank responses.

One additional consideration for attorneys will be how much, if at all, to discuss the efforts of their clients in response to the Coronavirus outbreak, potentially to build credibility with jurors. This is a much bigger question that I will address in the next installment of this blog.