April 20, 2021 Articles

Advice for Trial Lawyers about Jury Trials in the Age of COVID-19

How can we become more effective by adapting to what we know about human behavior?

By Laurie Kuslansky, PhD, and Jeffrey Gross

Now that the nation’s courts have resumed holding, or at least scheduling, jury trials, there is an opportunity for trial lawyers to reflect on whether and how COVID-19 will change jury trials both for jurors and lawyers. This can be a confusing and difficult exercise for trial lawyers because it is hard to differentiate between signal and noise about how the pandemic will affect trials. There are numerous surveys on people’s attitudes about the pandemic, but survey-based data are inherently suspect. As should be clear from the use and analysis of political polls over recent election cycles, surveys reflect a snapshot of current (hypothetical) responses to questions, which do not necessarily predict anyone’s future views or actual conduct. And there is not yet enough empirical evidence from recent jury trials to ascertain the pandemic’s effects on them.

Thus, the most useful way to analyze juror attitudes in light of the unfamiliar and disorienting events of the past year is to go back to what psychologists—and trial lawyers who are attuned to thinking about human behavior—have known about how people respond to loss of control, crises, and trauma. That people feel threatened or traumatized, whether by a pandemic or otherwise, is not a new phenomenon. Nearly everyone has experienced these things to different degrees in their lives. But we now live in a world in which an overwhelming number of people have recently experienced trauma or a sense of loss and where many people have something or someone to grieve from the pandemic. Thus, to understand jurors’ states of mind now, we should examine common drivers of human behavior and decision making when faced with such challenges. And we should reflect further on how trial lawyers can become more effective by adapting to what we know about human behavior.

The Fight or Flight Instinct

Emotions are the basis of decisions for some, and they play a part in decision- making for many, although people often justify decisions by rationalization afterwards. Thus, it is important to understand our emotions and how they drive actions and decisions. When someone perceives a threat, a cascade of changes occurs in the body that affects decision-making. These changes enable the person to weigh the risks and benefits of being aggressive or retreating. This is often called the fight-or-flight instinct. But people respond to fear differently, and the same person may respond differently in different situations. As just one example, right now, many jurors are likely to feel varying degrees of fear taking public transportation to get to the courtroom, waiting on security lines to check in, and walking into somewhat crowded courtrooms where they must spend days on end. Unfamiliarity with the legal system, or past negative legal experiences for the juror or family members can be still other sources of fear and concern.

Lawyers and judges should use voir dire to assess jurors’ comfort or discomfort with participating in the proceedings. It serves neither side’s interest to have jurors sitting whose ability to pay attention and deliberate faithfully may be compromised. And lawyers should acknowledge jurors’ likely discomfort and try to put themselves in the jurors’ shoes.

The “Locus of Control”: Perceived Control over One’s Life

A key determinant for decision making is the extent of one’s perceived control over the circumstances and social environment, and in turn, one’s ability to cope and adapt to crises. Psychologists call this concept the “locus of control.” Crucially, it is not a measure of objective reality—locus of control does not assess if someone is in actual control of their fate and lot in life. Rather, the concept is about the subject’s perception of control and to what they attribute success or failure. Psychologists assess someone’s locus of control on a continuum, not categorically. People run the gamut from utter abdication of control to those who assume that they have complete control.

Most people fall into one of two groups. The first group has external locus of control. They believe they are powerless and have no control over what happens in their lives, good or bad. They blame failure on the difficulty of tasks or unfairness and credit luck for their successes. They typically consider themselves to be at the mercy of external factors outside their control. Generally, these people tend to identify with plaintiffs (victims) more closely than with defendants.

In contrast, those who have internal locus of control are more likely to believe they are the masters of their own fate and can control their own destiny. These people attribute success or failure to their effort and choices and accept praise or blame for themselves. They rely most heavily on themselves and their smarts or hard work to find solutions. This type of person is usually more defense oriented. For example, they are people who value personal responsibility and due diligence. In commercial cases, they tend not to identify with victims. Instead, they seek out reasons to distinguish themselves from plaintiffs. They may even blame the victim for failing to take the control that such jurors perceive as the right way to prevent, delay, or mitigate the plaintiff’s negative outcome.

These different types of people can react differently to the same events, such as a pandemic, or to the same set of facts presented at trial. Nevertheless, recent or ongoing hardship or trauma can change or soften the reaction of some people with internal locus of control. They may become more empathic to others’ pain because they have suffered recent and tangible discomfort (and experienced an actual loss of control). People with internal locus of control may temporarily feel more vulnerable and, at that time, relate differently to others. But that reaction is far from universal: for many of those with internal locus of control, COVID-19 has amplified their prior disposition. They may feel that they made lemonade out of lemons and refused to yield to the pressures that threatened their way of life and sense of security. They may minimize the pandemic’s disruption and feel strongly attached to coping strategies that they used and deflect fear by blaming others who they perceive as over-reacting to the pandemic.

Are Jurors Able and Willing to Serve in the Wake of the Pandemic?

Whether before or since the onset of the pandemic, empaneling a jury requires weeding out those who cannot serve as a first step before the parties can strike jurors for cause or through peremptory challenges. Information gathered near the onset of the pandemic, including studies for clients that Dr. Kuslansky conducted, and research by others, shows that only about a quarter to a half of those surveyed claimed to be willing to serve as jurors since the onset of COVID-19. Those “willing” to serve under the present circumstances are very likely to have experienced life differently during the pandemic.

People who are now willing to serve on a jury likely can afford to serve, both financially and personally. They also exhibit less concern about getting sick. Generalizing, those who agree to serve are more likely to be young than old, Caucasian rather than BIPOC, Republican versus Democrat, conservative rather than progressive, and financially stable rather than poor. The inverse is also true. Further complicating the disparities among social groups, those who lack access to health care, are more at risk of poor outcomes, and who have less access to technology may also have more fear of getting sick and object to serving. Moreover, while it post-dates the available surveys, vaccination status and view of vaccines also likely affect inclination towards jury service.

Traditional voir dire questions about hardships faced by potential jurors are no longer adequate. Many jurors are less likely to have predictable childcare or school schedules for their children. They are more likely to have extended family at home who need care. They may be unable or unwilling to use public transportation, and they may have transportation challenges that make it difficult or impossible to attend in person. All these considerations, among others, may well increase the percentage of people who claim that jury service would be an undue burden.

But even those who purport to be willing to serve may or may not be truly “able” to devote their time and attention to jury service while the pandemic is ongoing. Based on, and exacerbated by, people’s experiences during the pandemic, many would-be jurors have experienced or are experiencing mental, emotional, and cognitive overload. Relatedly, some people are suffering various degrees of stress exhaustion, which is one effect of the constant difficulty people experienced: The pandemic forced them to make and reevaluate many new and hard decisions. Choices abounded about whether daily experiences were safe or unsafe, such as whether to send children to in-person school, eat inside a restaurant, gather (masked or unmasked, outside or inside) with family members, and so on. For many, one effect from the experience of living through the pandemic is decision paralysis.

Each new decision feels harder when people feel overwhelmed. Yet, through jury service, jurors are being asked to make important decisions with far-reaching consequences about the liberty or livelihood of others. Lawyers should anticipate and gear their presentations to be mindful of the normal instinct for jurors to rush through the decision, given their level of anxiety. Jurors may face the same risk that psychologists have studied in pilots who suffer from “get home-itis,” a term used to describe a desire to reach a destination at all costs—especially when jurors may believe that their decision will not affect them personally. At times, the desire to be reaching the destination: completing one’s service as a juror, can override logic, processing of facts and law, and sound decision-making. Moreover, jurors who are likely experiencing higher levels of anxiety will have shorter attention spans and tolerance for complex information or delays. These issues may subconsciously affect even those jurors who are willing to serve as jurors now.

How Can Lawyers Maximize Their Effectiveness as Advocates and React to Jurors’ Perceptions?  

Many pre-pandemic rules or best practices for trial lawyers still apply and deserve heeding with an even greater emphasis since the pandemic. For example, less is almost always more. Jurors (and judges and court personnel) are tired and distracted; do not waste their time. Lawyers should present what they must, not everything they want. Trials demand more editing than embellishing. Tell jurors the time, not how to build a watch.

Many of the traditional wisdom and good habits about trial practice remain sound advice. For example:

  • Use more graphics and visual aids. Every spoonful of sugar helps.
  • Keep video clips shorter than you think they should be. Do not overdo it.
  • See and hear things through jurors’ eyes and ears.
  • Avoid lingo or unfamiliar acronyms and legalese.
  • Use objections sparingly and strategically.
  • Streamline when possible. For example, group exhibits unless it is necessary to admit each part individually.
  • Provide hooks or themes that simplify understanding and recall.

Similarly, lawyers should respect jurors by avoiding being cute, such as by asking trivial-sounding questions during voir dire, such as “Do you have a bumper sticker?” And lawyers should avoid long, written juror questionnaires. Instead, minimize jurors’ in-court time or on-duty time by sending brief questionnaires in advance if the court permits, only focused on what matters. These propositions and similar age-old advice bear repeating with additional emphases now. Adjust your voir dire and presentation by considering the discussions above about the fight-or-flight instinct and locus of control. During voir dire, try to understand how prospective jurors have dealt with COVID-19, how it has affected them and their lives, and whether they managed to retain any sense of control. At trial, the form and substance of your presentation should reflect that you care about jurors’ time and attention, as well as their other needs. Help jurors understand why their service and verdict will make a meaningful difference and why it should matter to them. Enable jurors to feel like part of a solution, not part of a problem. Set a good example, such as by following the court’s rules and by acting as a reliable authority figure who does not patronize.

Lawyers’ presentation of evidence should account for the relatively higher levels of jurors’ anxiety. For example, try to reduce anxiety by avoiding counterintuitive information and by simplifying complexity. With the court’s permission, be open to taking more frequent breaks. Preview what you are doing so jurors know what to expect. Be mindful that jurors’ attention spans may be shorter than you anticipate. It is better to feed jurors information in smaller portions. In other words, serve more meals, not fewer and heftier ones. Make your story easier to digest, such as by using signposts and timelines to help jurors understand the parts of the overall story. And when you say, “Finally…,” don’t keep going.

In sum, being an effective trial lawyer requires understanding and building on jurors’ motivations or agendas, not just yours or your client’s. Finally, effective trial lawyers will give serious thought to how the pandemic has shaped jurors’ expectations, needs, and decision-making processes.

Laurie Kuslansky, PhD, is an expert jury consultant in New York City, New York. Jeffrey E. Gross is a partner with Reid Collins Tsai in New York City, New York.

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