By Francis Morrison and John Tanski

Law360 (May 11, 2020, 5:38 PM EDT) --

Francis Morrison

John Tanski

As our world faces a trial unlike anything most of us have ever experienced, the other kind of trial — in a courtroom with a judge and jury — might be the farthest thing from many minds. Courts across the country have canceled and postponed personal appearances of all kinds. Judges are working from home. Jurors are not being summoned. Common witnesses like police officers, doctors and nurses have many other important things to do.

But jury trials will happen again. And when they do, lawyers will return to the age-old task of trying to select focused and fair juries and then persuade them.

COVID-19 has not affected a lawyer's fundamental tools of persuasion. But the pandemic has been a significant — even life-changing — event for jurors.

How should trial lawyers account for COVID-19 when planning their jury trial strategies? Will the personal and national tragedy of COVID-19 lead to verdicts that are characterized by anger or excess that shocks the conscience? What role will nostalgia for an American way of life without social distancing play in the court and jury room? And will post-pandemic juries be able to adhere to the rule of law irrespective of the devastation COVID-19 has caused?

As trial lawyers, we have been thinking a lot about these questions while sheltering at home. COVID-19 is unprecedented in many ways. But trying cases during and after times of collective stress is not. And our own experience trying challenging cases in difficult times has given us insights that will inform our own post-COVID-19 trial strategy whenever we're able to get back into the courtroom.

Of course, every case is unique. We must be careful not to reflexively assume that past will be prologue when considering the damage that COVID-19 has done to many jurors already, not to mention the likelihood that its effects will linger long after courthouses reopen. But we can still discern common patterns of jury behavior from past cases. 

Indeed, like many trial lawyers, our beliefs about juries have been formed through our collective trial experience, and these beliefs have provided important reference points that have served us well in tackling new cases. In thinking about COVID-19 in particular, five of our prior trials come to mind:

• In December 1980, a wrongful death lawsuit in which a three-year-old was killed in front of his mother, Estate of Scortino v. Christ Episcopal Church, went to trial in Connecticut.[1] In the middle of this trial, musician John Lennon was murdered a short drive away in New York City. The story shocked the country and dominated the news throughout the rest of the case. The jury ultimately returned a verdict for the mother and the estate that was a very small fraction of the claim — notwithstanding factors that have been thought to predict very substantial verdicts for plaintiffs, such as a December trial, very sympathetic parents, and the horror of witnessing the death of one's child.
  
  
• A few years later, in the midst of a trial in fetal injury case Cifaldi v. Gahm, the space shuttle Challenger exploded after liftoff.[2] The parties learned about the tragedy during a recess, and the judge sent the jury home. Trial resumed the next day, and the jury returned a verdict for the defendants — doctor and hospital — later that week, again despite very sympathetic circumstances.
   
  
• When coalition forces began Operation Desert Storm in January 1991, a case involving allegations of fraud and breach of contract involving a so-called "vanishing premium" life insurance policy brought by the estate of a deceased farmer against an insurer went to trial in a rural court. The case was Lipton v. John Hancock Insurance Co.[3] Our troops remained in harm's way when the case went to the jury, and the jury returned a defendant's verdict.
  
  
• A few months after the attacks of 9/11, a seven-figure patent infringement case over brushless fan motors involving an Asian defendant and a U.S. plaintiff went to trial.[4] The verdict in the case, Comair Rotron v. Nidec Corp., was a small fraction of the plaintiff's claim, and the case was resolved during post-trial motions. 
  
  
• And in the fall of 2012, a patent case involving filter material for respirators, TransWeb LLC v. 3M Innovative Properties Co., went to trial in the U.S. District Court for the District of New Jersey.[5] We were supposed to pick our jury on the day Hurricane Sandy hit the Northeast, causing widespread damage. Trial ultimately started three weeks later, and the jury returned a verdict against the patentee the week after Thanksgiving.

There were certainly many differences among these cases — different types of claims, different facts, different jury pools. But there were also common threads — including complex issues, sympathetic facts, severely injured litigants, and large damages claims. And in spite of those challenges, they all ended in verdicts for — or at least substantially for — the original defendants.

We have identified six lessons from these experiences trying cases through times of disaster, tragedy and concern that we think will apply equally to trials held in the immediate aftermath of COVID-19.

First, COVID-19 is likely to be a moderating force in juror deliberations, particularly in purely commercial disputes. Our experience has been that catastrophic events provide a large dose of perspective. A pandemic causing widespread disruption to daily life and generating a sobering death toll around the globe is a stark reminder to jurors that there are more important life issues than money. 

Even large monetary claims in commercial disputes will seem less consequential in the immediate aftermath of COVID-19. Companies pursuing those types of claims might therefore be wise to consider seeking a generous continuance — or to be more flexible at the settlement table.

Second, the perspective that comes with the COVID-19 pandemic is likely to temper a jury's impulse to assign blame for a tragic outcome, even in a sympathetic personal injury case. Jurors who have seen real suffering around them — and perhaps experienced it themselves through illness, the loss of a job, or the loss of a loved one — are more likely to be receptive to common personal injury defense themes like bad things happen to good people and there can be injury without fault.

Third, COVID-19 will aid the credibility and prestige of first responders and medical professionals. As most of us shelter in place, we know that some of our friends and neighbors are putting themselves in harm's way to maintain order and care for the sick and injured. 

Jurors will not forget their sacrifice when listening to their testimony and assessing their credibility. Lawyers calling these witnesses will be smart to find admissible ways to mention their recent work helping address the needs of COVID-19 victims. But counsel should bear in mind that if there are first responders who are members of the jury, the well-deserved admiration they receive from their fellow jurors can turn into misplaced deference during deliberations.

Fourth, the isolation we are all experiencing during COVID-19 reinforces the paramount importance of human contact and intimacy. The "Home Alone" movies conjure up very different thoughts for many Americans today than it did for theatergoers in the 1990s.

The thought of death alone in an intensive care unit — with loved ones unable to be present and caregivers separated by layers of personal protective equipment — is as disquieting as it is real. Themes of alienation, exclusion and abandonment will pick at a raw wound with many jurors. Deployed appropriately, these ideas can resonate for either a plaintiff or a defendant.

Fifth, jurors feeling a heightened sense of community will be particularly unsympathetic to highly selfish and anti-social behavior. Jury service is itself an exercise in putting personal priorities aside to serve the community. The high American compliance with social distancing — even at significant individual cost — shows that Americans do what is best for others when the chips are down.

If a party's behavior can be portrayed as inconsistent with the collective good — like the Mardi Gras revelers who may have spread COVID-19 across the country when they returned home from Bourbon Street — the jury might seize the opportunity to vindicate the community's interests, or at least be less sympathetic to a party's conduct that is inconsistent with societal good. Parties should therefore emphasize the predatory aspects of their opponents' behavior and align their own conduct with communal values.

Sixth, the COVID-19 experience is likely to make jurors even more serious and attentive than usual. From observing jurors during past crises, we expect that many jurors will welcome the opportunity to escape from COVID-19 into the distraction (and, perhaps, exhilaration) of a trial.

For those who have been isolated at home, a trial gives them a new, different and important focus for their energy and attention. It provides an outlet for those who have wanted a way to contribute to their community. And it gives an excuse for social interaction to those who have been lonely.

The challenge for trial lawyers is to harness this attention and enthusiasm by keeping things interesting and moving the case along. Jurors are always quick to lose patience with lawyers who are not being respectful of their time. Their tolerance may be particularly thin after months of sheltering in place. 

In conclusion, it is important to emphasize that even while there are lessons to be drawn about how juries react to tragedy, we must not exaggerate the degree to which their decisions will be affected. Over years of trying cases, we have come to trust juries. That doesn't mean we have always won. But when we have lost, we understand, in retrospect, why. 

In our experience, juries are made up of good people who play a critical role in our justice system and take that responsibility very seriously. Much more often than not, their common sense and pragmatism cut through the complexity of difficult cases — and often feelings of sympathy and empathy — to get to the right answer. This has remained true throughout the nearly 60 combined years we have spent practicing law. And we believe that COVID-19 will not change it.

Certainly, the COVID-19 pandemic could be argued to differ in size and scope from the murder of John Lennon, the Challenger explosion, the beginning of the Gulf War, Hurricane Sandy, and even the 9/11 attacks. A good trial lawyer should not underestimate the mental, physical and financial suffering that COVID-19 has caused or the scars that it will likely leave on us.  

But we should likewise never underestimate the capacity of American jurors to set aside passion, prejudice, distraction and hurt feelings to do the right thing. The Massachusetts jurors who acquitted British soldiers of murder charges stemming from the Boston Massacre in the highly charged anti-British atmosphere of 1770 are perhaps the most famous example — but they are hardly the only one. Jurors are steadfast in their pursuit of getting it right. 

As trial lawyers spend their period of social distancing thinking through their post-pandemic trial strategy — and as clients reconsider their case valuations and settlement positions out of fear of an unfavorable "new normal" ushered in by COVID-19 — everyone should bear in mind that our jury system was designed and built to work in times of crisis. 

Through pandemics, wars and other tragedies of the past, jurors have not abandoned the rule of law or stopped trying to do what is right. We are confident that American juries will not give in to the many difficulties and distractions that the COVID-19 pandemic provides. Your case is still in good hands with a jury.

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Francis Morrison and John Tanski are partners at Axinn Veltrop & Harkrider LLP.

Disclosure: Morrison represented the defendants in the Estate of Scortino v. Christ Episcopal Church, Cifaldi v. Gahm, Lipton v. John Hancock Insurance Co., and Comair Rotron v. Nidec Corp. trials. Morrison and Tanski represented 3M in the TransWeb LLC v. 3M Innovative Properties Co. trial.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Estate of Scortino v. Christ Episcopal Church (Conn. Super. Ct. 1980).

[2] Cifaldi v. Gahm (Conn. Super. Ct. 1986).

[3] Lipton v. John Hancock Ins. Co. (Conn. Super Ct. 1991).

[4] Comair Rotron v. Nidec Corp., No. 2:91-cv-00032-CFD (D. Conn. 2002).

[5] TransWeb LLC v. 3M Innovative Props. Co. , No. 2:10-cv-04413-FSH-PS (D.N.J. 2012).

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