By Julie Campanini

Law360 (September 29, 2020, 3:30 PM EDT) --

Julie Campanini

Living in this age of COVID-19 has undoubtedly brought many challenges for everyone: changed work environments, lost child care, online learning, social isolation for many, and deteriorating mental health and increased cynicism. No one knows what the new normal will look like or when we will settle into that but many of us in the litigation consulting field have been keenly interested to know how these shifts in attitudes, outlooks and experiences might affect the jury pool.

As states slowly begin to hold in-person jury trials, have jurors changed? Can we expect to see major shifts in attitudes? Yes and no.

My firm took the pulse of 500 jury-eligible citizens in a stratified random nationwide sample of a geographically diverse group of citizens regarding the COVID-19 pandemic and its effect on their lives and attitudes, including their willingness to serve as jurors. While some data is not surprising and remained consistent with what we saw prepandemic, the self-reported effect on mental health raises some red flags that require increased scrutiny in voir dire.

More than one-third of the respondents reported an increase in an existing mental health disorder, such as depression or anxiety, or a newfound disorder for which they considered seeking treatment, and one-quarter of respondents reported experiencing a "great increase in anxiety, fear or depression."


The anxiety, depression and overall mental health changes are a real concern for defendants. Research has shown us that anxious, depressed and fearful people tend to react quickly and harshly in trial and are often the strongest advocates behind large damage awards. Moreover, these folks often have difficulty paying attention for extended periods of time.

The lack of control that these jurors feel — perceived or real — affects their decision making, which can have disastrous outcome for a defendant. The COVID-19 crisis has impacted people in ways that are legitimately beyond their control and these effects are still emerging. As the COVID-19 situation continues to evolve, people's outlook on life and feelings of hopelessness and anxiety will remain in flux.

With respect to the detailed data on this, the survey found that urban dwellers were more likely to report a newfound mental health condition for which they have considered psychological support. That certainly makes sense given the traditional hot spots for COVID-19 spread.

Urban areas saw early and high number of COVID-19 cases that, in some instances, had a profound effect on city dwellers' daily lives. Those in urban areas also reported a higher propensity to take out their depressed or down feelings on others, such as in a punishment, as did younger and middle-aged people. Older Americans, ages 55-plus, reported no increase in their fear and anxiety related to the COVID-19 outbreak.

Interestingly, and perhaps a bit of a silver lining, those who said they would be less likely to show for jury duty were the ones who reported that their blue feelings would affect how and to whom they meted out a punishment.

What do the new jury panels look like and will we see major shifts in attitudes? It depends. Some trends and significant findings comport with what we have always seen. For e.g., Republicans tend to be more pro-corporate. Meanwhile, older folks tend to be less affected by change; they tend to be mellower and, frankly, retired individuals experienced fewer changes to their daily lives due to the pandemic.

But the data is also mixed and indicates some red flags that warrant a more thorough voir dire to better understand prospective jurors, which are summarized below.

Younger jurors, ages 18 to 34, reported an increased trust in companies, but also reported that they would scrutinize a defendant's response to how it handled the pandemic. This will be company-specific and each person's expectations about what it means to handle the pandemic well could vary widely. Voir dire should explore what this means to each juror so corporate defendants can respond accordingly.

Younger jurors, ages 18 to 34, were more likely to report negative changes in their mental health status. This age group tends to have younger children, which puts another layer of stress on them. Noting their home situation with respect to online learning, child care, financial impacts related to the pandemic and employment demands will be important pieces of this age group's puzzle.

Frazzled or angry and anxious jurors can lack attention span and the cognitive wherewithal required to wade through the evidence, and more than a quarter of the respondents reported that they have noticed that they have less ability to pay attention for extended periods of time.

Indeed, in a recent California virtual jury trial, lawyers noted that jurors were working and engaging in other activities during the trial. Demands on people who work, have children at home or are struggling financially are extreme and jurors often do not have the bandwidth to manage everything all at once. When faced with work emails popping up on the screen or a school-age child who needs lunch, a virtual trial may suffer as it is easy to divert attention away from the case.

In an in-person trial, the same attention issues can exist. If jurors are consumed with the stress of managing their everyday lives — concerned with the health of family members, losing an already tenuous job or paying next month's rent — they are less able to focus on what is happening in the courtroom.

Every defendant needs some subset of evidence-driven jurors, and directly inquiring about a juror's state of mind, in addition to their current schedules and demands, is critical to understanding what a particular juror is able and willing to give. Do not shy away from pointed questions related to this. Most jurors want to pay attention and do a good job, but the reality of today's situation makes this difficult, if not impossible, for some people.

In addition, a profile for a punitive juror has emerged, which historically had little to do with overall verdict orientation but rather prospective jurors' desire to punish a defendant for alleged nefarious conduct and malfeasance. As such, these individuals who had a higher propensity for punitive sentiments concerned consultants, and, respectively, were flagged as risky for corporate defendants.

Traditionally, a punitive juror might be someone who is chronically underemployed, recently divorced or laid off, chronically ill, highly empathetic or has feelings of being disenfranchised. Moreover, these individuals often hold advanced degrees in the humanities — who often express a just-world orientation or a high desire to right the wrongs of the world — or are highly artistic.

Notwithstanding these potentially adverse characteristics as they relate to damages, it is often difficult to know which side the juror might align with or go against on liability as jurors can feel as harshly against plaintiffs as they can against defendants.

Respectively, a juror's COVID-19-induced emotional and mental state can motivate them to want to alleviate those anxious and angry feelings by taking them out on others, such as awarding high damages against a defendant in a lawsuit. As such, this may be an additional basis that can be used to strike a potentially dangerous juror.

More importantly, jurors who reported feeling more vulnerable nowadays because of COVID-19, which would make them more anxious or depressed or self-identify as high-risk, indicated they would be more likely to punish a defendant. Moreover, those identified as more vulnerable or those who have been diagnosed with COVID-19 remarked they would be more sympathetic to a plaintiff.

Strategically, it is critical to ferret out these feelings, experiences and attitudes during voir dire as this specific area of questioning makes it easier to identify jurors who are more prone to be punitive against defendants or more sympathetic to plaintiffs, which can be a damaging combination for a corporate defendant.

In summary, as COVID-19 continues to evolve and wreak havoc on the U.S., we can expect to see changing mental health issues. What was initially shock and fear has, in some areas and with some people, turned into a longer-term mental health issue.

Another semester of learning is online for many parents and students, jobs continue to hang in the balance for some or have been eliminated for others, and virus testing remains unavailable and unreliable for a great number of Americans. As time marches on with increased and sustained uncertainty, a thorough voir dire is recommended in addition to an understanding of how these issues may affect your venire.

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Julie Campanini is director and senior litigation consultant at Magna Legal Services LLC.

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.

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