Trial News

AAJ Past President Lisa Blue spoke with trial consultant Robert Hirschhorn about his thoughts on how the coronavirus pandemic might affect jury selection and juror perceptions.

LB: Robert, you’ve been selecting civil juries in state and federal courts as a jury and trial consultant for the last 30 years. What do you think will be the immediate effect of this pandemic?

RH: Despite all the challenges right now, there are also positives that people are being reminded of. People are reexamining their priorities, reconnecting with the people they care about, and truly appreciating the sanctity of life. When things get back to normal—and they will get back to normal—I believe that plaintiffs will truly be seen as victims.

I think there will also be an immediate effect on jury panel attendance. I believe that once the pandemic is brought under control and jury trials resume, the “show” rate for the jury pool will be substantially lower until normalcy resumes and people feel comfortable going to church, concerts, sporting events, or any other large gathering of people.

I recommend that lawyers suggest to the trial judge that a one-question “hardship questionnaire” should accompany the summons sent to the jury pool. The hardship questionnaire can either be completed and returned to the court via a postage-paid envelope or filled out online if your venue has that capability. Until we can gauge the level of fear and uncertainty that is gripping our jury pools, we need to recognize and accommodate that fear. The hardship questionnaire is a sensitive and efficient way to accomplish that objective. Here is a sample hardship questionnaire.

HARDSHIP QUESTIONNAIRE

Juror #: ________________________________________________

Full Name: ______________________________________________

You have been selected to serve as a potential juror in a civil case. This trial is expected to last between _______ and ________ days. The Court realizes that this is a very trying time in our nation’s history and that many jurors have had their lives disrupted as a result of the COVID-19 pandemic. One of the core foundations of our freedom and democracy is trial by jury. Can you make the necessary sacrifice to assist the Court and serve as a potential juror?

❒ YES   ❒ NO, and the reason is because:
 

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LB: What do you recommend plaintiff lawyers do when selecting a jury once the system normalizes again to take into account possible effects from the pandemic?

RH: The coronavirus has completely dominated our local and national news for months. Some jurors will believe that the media did a great job keeping all of us informed, while others will criticize the media for blowing this situation out of proportion. Your job in jury selection is to find out which category each juror falls into. There are a couple of ways you can ask this question. For example, you can ask if each juror believes that the media coverage on coronavirus was “Too Much, About Right, or Not Enough.” Or you could ask a scaled question, such as:

On a scale of 0 – 10, how much precaution did you take during the coronavirus pandemic?

0

1

2

3

4

5

6

7

8

9

10

None	A Great Deal

If you have a strong liability case, I don’t think the COVID-19 pandemic will change a juror’s view on liability. It might affect damages awards because over 36 million people are out of work today, so jurors might award less damages because so many people have been hurt financially. If you have a weak liability case and strong damages, you really need to focus on all the jurors who are going to be more skeptical of your liability arguments. I think people who are skeptical of the extent of the pandemic—the people who were skeptical of what experts said—are going to be skeptical of a liability case that’s marginal.

And there are two final issues you may need to ask panel members about for at least a year after courts reopen: whether they have fears or concerns about being in a large group setting, and whether they would feel so uncomfortable being in close quarters with a group of people that they do not know if it would affect their ability to serve as a fair and impartial juror. Especially when courts first reopen, the priority needs to be making sure jurors are comfortable coming to court and being around people. I recently talked to a federal judge who sent a letter to jurors about their safety and comfort. Jurors need to know that courts are making sure they feel safe and are not exposing them to any risk.

You should also add to the end of your juror questionnaire: Is there anything else that has occurred during the coronavirus outbreak that would impact your ability to serve as a juror? If jurors don’t feel safe, they will resent your client for forcing them to be in the courtroom.

LB: What recommendations do you have for changing the physical space and process in a courtroom to make jurors feel comfortable?

RH: Jury boxes and deliberation rooms are really small. One option is for states that use a 12-person jury—for the time being—to have juries of six. Empanel a six-person jury with two alternates, and then spread them out on the jury box. Put 16 chairs in the jury box: four in the front row, four in back row, with a chair in between each.

Or put four chairs in front of the box and put two jurors there, and then three in each row of the jury box itself. It’s not a forever solution. There’s going to be a transition time, and people are still panicking. Once we get the courts opened back up, there will be maybe three or four months when we have to do this physical distancing. This is going to go on for a few months, just to get people comfortable being back in the courtroom.

In the jury room, depending on the site, if the room is large, put extra chairs around the outside of the room, so jurors can sit at the table or along the walls. Another option is to have the judge check for an open courtroom where the jurors could deliberate, then use the well to spread them out. We need to come up with creative options that don’t cost extra money to implement. Making jurors comfortable and safe must be the number one priority until we all feel some semblance of normalcy.

Also think about shorter trials, even in big cases, because it’s going to be really hard to get jurors to commit to multi-week trials between the pandemic, being out of work, and having kids home from school. This is not permanent. Just for the time being, limit the trial to 15 hours per side and try to get the whole trial done in a week. This also has the advantage of teaching lawyers to zoom in on what’s important and cut out the fluff.

LB: Generally, Democrats and Republicans have responded to the pandemic differently. Do you think those differences may affect how jurors determine liability or damages?

RH: It was not surprising that when President Trump initially downplayed the importance of the coronavirus, a substantial number of Republicans felt the media had ulterior motives for its nonstop reporting. At the same time, most Democrats believed very early on that the coronavirus was a substantial health risk that we needed to contain. Once President Trump publicly recognized that the coronavirus posed a serious health risk, especially to the vulnerable members of our communities, there was a dramatic shift in the number of Republicans who accepted the seriousness of this situation.

If you find the jurors’ political affiliation through online research, then the question you want to ask is very simple: Do you believe that the dangers associated with COVID-19 were overblown? Any Republican who says no, you want to keep. Any Democrat who says yes, you want to remove from the jury. Because if they think it was overblown, they’re likely to think you’re blowing your case out of proportion too.

Applying this to the courtroom, I believe that jurors who initially appreciated this health risk have been and will continue to be good liability jurors. Jurors who were initially skeptical but came around will also be good liability jurors if you have a good liability case. The final group of jurors would be those who were and continued to be nonbelievers regarding the seriousness of the risk posed by the coronavirus—they will be very difficult to convince to find for the plaintiff when liability is hotly disputed.

Regarding damages, one point I want to make is that just because a juror is a good liability juror does not mean that this person will likewise be a good damages juror. For example, teachers tend to be great liability jurors, but they also tend to keep damages awards down.

It’s very difficult to make broad and sweeping statements about favorable and unfavorable damages jurors. A juror’s value system is typically the single biggest factor in determining how they would decide damages issues. So, I think the coronavirus will play a minor role in how some jurors view damages claims. The jurors who remained skeptical and believed that the risks and the coverage were overblown will similarly be skeptical of noneconomic damages.

LB: How do you think a juror’s personal experience with the consequences of the coronavirus (such as losing a loved one, a job, or savings) might affect how they view plaintiffs and defendants (such as large corporations)?

RH: The reality is that the majority of jurors have lost money, their jobs, or both. If the jurors are still angry about that impact, they may be inclined to take it out on someone. How that will impact your trial all depends on the case. If you have a strong liability case, jurors will be inclined to make the guilty party pay. If you have a hotly contested liability case or a slim liability case, your client could be facing an uphill battle.

The bottom line is that you need to make empathy an important part of your story. Learn how jurors were directly impacted by the coronavirus and whether they have moved on or are still carrying the burden and anger associated with it. Think about what that juror must have been thinking or feeling about their situation and see how much of that experience was like what your client went through.

If a juror works for a large corporation that helped during the pandemic, that person is probably not going to be a good juror if the defendant has evidence that it also helped out—you’ll want to move in limine to prevent that from coming in, but you still need be careful of jurors who work for companies that did that.

This is also true in medical negligence cases. Ask this catchall question: Doctors and nurses have really been heroes throughout this pandemic. Are there any members of the jury panel who feel so strongly in supporting those brave doctors and nurses that it will affect their ability to view this evidence, this case, and this doctor totally objectively, or would you be affected by the bravery of the doctors and nurses who were out there on the frontlines?

LB: What advice would you offer to trial lawyers concerned about how the pandemic may impact their juries when courts reopen?

RH: I want to make a point here: Please do not dwell on coronavirus questions. Ask one question on the case-specific questionnaire and one or two questions during voir dire. How people are reacting to the coronavirus pandemic is reminiscent of the September 11th attacks on our nation. People were stunned, fearful, and uncertain. Our eyes shot to the sky anytime we heard or saw an airplane, businesses shut down, and panic caused people to go into survival mode. When the fog finally lifted and America regained its footing, people did not like to extensively talk about or relive that fearful time. I think the same is true with our current circumstance. Voir dire is not the time to engage in a political or medical discussion. Rather, identify any jurors who were so impacted by those events that they just can’t or don’t want to serve on a jury.

This is a historic and tragic time. Most Americans are responsible, resourceful, and resilient—and we will get through this. The pain, loss, and sacrifice that many of us have experienced will make us better people in the long run. As I have been telling lawyers for years, if you want to truly be a great lawyer, then be a great parent, a great friend, a great boss, a great person. Jurors will see you for the person you are, and your clients will benefit.

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