Judge Warns Social Justice Issues Will Impact Jury Selections

By Hannah Albarazi
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Law360 (April 21, 2021, 10:45 PM EDT) -- Delivering the keynote in a class action law forum Wednesday, U.S. District Judge Anthony Battaglia cautioned attorneys that the public is "mad as hell" and "very skeptical" about government, authority figures and big corporations — something litigants should consider when selecting jurors and deciding on experts to call before them.

Judge Battaglia warned that as the risk of COVID-19 begins to wane and courts start to hear jury trials once again, attorneys must stayed tuned in to the widespread public skepticism of authority figures and powerful corporations during the jury selection process, saying the pandemic and the Black Lives Matter movement has shifted the public consciousness toward greater awareness of systemic racial, gender and economic disparities and its causes.

"Right now, in the media, in the public, when we hear social justice we tend to think about reform of police departments and Black Lives Matter, because those are very pressing issues in the public consciousness right now. I mean the Chauvin verdict was yesterday," Judge Battaglia said, speaking at the  third annual Western Alliance Bank Class Action Law Forum from the University of San Diego School of Law.

But the judge said the public's desire for equal rights and equitable opportunities for all is more far-reaching.

"We're talking about huge social concepts that find their way into even the class action arena," said Judge Battaglia, who has served as a San Diego federal judge since 2011.

"They're frustrated. They're mad as hell," Judge Battaglia continued.

The public has expressed its discontentment with, and its desire to reform police departments, large companies, the pharmaceutical industry, gas and electric companies and much more, Judge Battaglia said, noting that the discontentment appears to extend into far-reaching issues including unemployment, healthcare and housing.

These issues, the judge said, "just like politics, the election, and all of the stuff you've been living with, it is affecting your jurors and the mindset they bring."

He said that the nation's appetite for social justice is high and that potential jurors may not necessarily be able to check their biases at the door.

"Be sensitive to this because your case could depend on it," the judge said.

Judge Battaglia said attorneys should also be aware that the public's attitude, generally, is "very skeptical now" and "very suspicious."

He told attorneys that potential jurors may not be inclined to trust trial experts. He said the public has increasingly seen the credibility of scientists, law enforcement officials and other authority figures challenged.

He said any litigators who use experts, scientists or other authority figures as experts ought to pay attention to this trend, and encouraged attorneys to be on the lookout for potential jurors with biases that could hurt their case.

Judge Battaglia said other social justice issues that are likely to impact jurors include health insurance, a women's right to choose, the gender pay gap, voting rights, housing rights, gun rights, immigration and asylum.

The judge said that while attorneys "may have a case that looks, for lack of a better term, pretty damn boring, when it comes to social justice issues" a jury could stereotype their client, team member, witness or expert, which could have a significant impact on the case.

"There may be a bias running for or against that you would want to explore," the judge said.

In a separate panel at the forum on Wednesday, Chief Judges from California's Northern, Eastern, Southern and Central Districts discussed their plans to return to in-person trials in the coming months. The Chief Judges from the four California districts said that while criminal trials are taking precedence over civil trials, they expect there to be opportunities for civil trials to move forward, as well.

Chief District Judge Richard Seeborg, who has served as a San Francisco federal judge since 2010, said the jury office there is taxed. He said that due to COVID-19, they have had to send out an average of 1,000 jury summonses just to get one jury.

Chief District Judge Dana Sabraw, who has served as a San Diego federal judge since 2003, said his district has had better luck drawing jurors. He said because the trials are being staggered to maintain social distancing, he's double- and triple-setting trial dates to maintain efficiency.

Judge Sabraw said the hope is that if one case settles, or needs to be bumped, he'll have another case prepped and ready to go to trial.

--Editing by Regan Estes.

For a reprint of this article, please contact reprints@law360.com.

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