juror attitudinal trends during covid
TRANSCRIPT
In our surveys of the same jury-eligible individuals before and throughout the COVID pandemic, Persuasion Strategies has uncovered some good news for litigators navigating uncharted waters: Americans’ opinions have been largely consistent over the past 18 months.1
For example, potential jurors have not shifted in their beliefs about the ideal magnitude of jury awards despite increasing economic challenges for individuals and some industries. There has been little change in perceptions of corporate honesty or the merits of lawsuits. At the same time, there are a few notable exceptions of which litigators should be aware.
JUROR ATTITUDINAL TRENDS DURING COVIDRESEARCH + INSIGHTS
SOCIAL RESPONSIBILITY IS INCREASINGWe asked potential jurors what they believe is true about America today – whether people need to take more responsibility for their own well-being, or whether society needs to do more to protect people. The proportion of people who believe there should be more societal-level responsibility has grown from 50% in July 2019 to 60% in December 2020.2 We have frequently found in our mock trial research that this opinion is linked to pro-plaintiff verdicts.
Nevertheless, appeals to social good are not the exclusive domain of plaintiffs who can benefit from encouraging jurors to curb anti-social behavior. Many defendants can also successfully appeal to jurors who prioritize communitarianism by demonstrating how their stances reflect these values. Recent research has shown that parties accused of intellectual property infringement can garner support by arguing that an overly broad view of what information is protectable stifles innovation and creativity. Similarly, a healthcare provider might contextualize a guideline linked to a bad outcome in one case by discussing how it is designed to prevent harm in the great majority of cases.
SUPPORT FOR FORCE MAJEURE DEFENSES IS DECLININGPotential jurors have grown less forgiving of corporate defendants who claim they could not fulfill a contractual obligation due to a force majeure event – COVID-related or otherwise. In April, 64% of survey respondents said they would side with a defendant affected by COVID. In December, that number fell to 49%. Individuals who read a description of a force majeure claim resulting from a natural disaster also demonstrated less support for the defendant in December (40%) than April (53%).
This could be an effect of hindsight bias. As conditions in the United States stabilize, jurors who rely on hindsight will be more likely to expect companies to have adapted immediately to the pandemic (and sympathy for parties handling unexpected circumstances in general may wane as individuals adjust to the changes in their own lives.)
We recommend defendants in cases likely to evoke hindsight bias confront the issue aggressively by not only warning against it, but by teaching jurors how to recognize hindsight bias and empowering them to call it out if it arises during deliberations.
ATTITUDES ABOUT COVID ARE EVOLVINGOver the past nine months, we have seen more anger related to the pandemic and increasingly negative opinions of the response to COVID (58% of the individuals we surveyed said they had a positive view of the steps that have been taken to address in the epidemic in the United States in April compared to 30% in July and 32% in December.)
One attitude that has remained consistent is the low-level of confidence Americans have in large corporations - at each of the three stages of our survey, 61% of respondents said that they distrust corporations to respond appropriately to the pandemic.
1 In April 2020, we administered an online survey to a mix of respondents to a national survey we conducted in July 2019 and new participants. We surveyed these same individuals in July and December of 2020. Over time data comparisons contain only the respondents who completed each phase of the study shown. Those who did not complete the relevant phases of the study are excluded so that any differences reflect changes in the opinions of the same individuals rather than changes in the survey sample.
2 This belief is linked to partisanship and our overall sample leaned Democrat. When weighting responses to match presidential election results, the proportion of “social responsibility” responses decreases but the trend of increasing social responsibility holds true.
POLITICAL INFLUENCE FLUCTUATESTrump voters have been more willing to attend jury duty throughout the pandemic, but the partisan gap was at its highest this summer when concern about COVID declined and individuals made fewer behavioral changes to adapt to it. If this pattern repeats itself as conditions in the United States improve, we may enter another period where the partisan gap is exacerbated before stabilizing.
THE SOCIOECONOMIC DIVIDE IS WORSENINGIn April, individuals with a household income of under $25,000 a year were more likely to say they would show for jury duty (63%) than those who make over $75,000 annually (53%.) By December, the opposite was true. Under half of low-income individuals (44%) would show compared to two in three high-income individuals (68%). We will continue to track this, and when in-person jury trials resume across the country how jurors’ financial hardship claims impact representation will be worth noting.
BOTH URBAN AND RURAL VENUES ARE CHANGING In April and July, the willingness of residents of rural areas and small towns to attend jury duty was 13 to 17 points higher than that of urban-dwellers. As of December, there is virtually no difference.
IN CONCLUSIONWhile our national survey research supports these general findings, we have seen some variations when conducting venue- and case-specific research. Since October, we’ve gathered data from nearly 200 jurors who participated in online mock trials involving personal injury claims. On the whole, jurors who are highly concerned about COVID found defendants less credible than those who are not (in alignment with our national research). However, some of the individual cases within that aggregate did not provoke this divide.
Customized online mock trial research, carefully conducted in-person research, and surveys are effective means for revealing how residents of your trial venue react to your upcoming case.
Jurors who buck the majority are more likely to fall in a set of “COVID optimists,” one of three types of jurors we’ve identified by their place in a constellation of attitudes related to the pandemic. Optimists are more likely to trust the federal government and corporations, are less concerned about COVID, and are hopeful that things will work out for the best. The “concerned” group is less trusting, angrier, and more anxious. Finally, the “disengaged” group is marked by low trust but is less emotionally invested in current events.
The existence of these distinct attitudinal clusters carries implications for jury selection, as the group most concerned about COVID is also the most pro-plaintiff and the most likely to say a two-week trial would pose a financial hardship for them.
EXPECT SHIFTS IN JURY COMPOSITIONIn addition to increased hardship claims, litigators can also expect to see fluctuations in who is willing to show for jury duty during the pandemic. Roughly six-in-ten survey respondents say they would “definitely” or “probably” appear for jury duty if summoned, three-in-ten would not, and one-in-ten are completely unsure of whether they would respond. These basic proportions changed only negligibly throughout 2020 but the characteristics of these groups is evolving. While barriers to representativeness are as old as juries themselves, we’ve found that during the pandemic:
OUR CONSULTANTS
KEVIN R. BOULLY, PH.D.SENIOR LITIGATION CONSULTANT 303.295.8476 | [email protected] Dr. Kevin Boully has been active in litigation consulting for 19 years. His doctoral education in legal communication focuses on persuasion, small group influence, and jury decision making. Dr. Boully has led jury research and provided strategic advice to litigation counsel on a full range of cases. Dr. Boully is a current Board Member for the American Society of Trial Consultants and a past Associate Editor and advisor to the jury research and courtroom communication publication, The Jury Expert. Dr. Boully is an avid writer and published author including a book
entitled Patently Persuasive for the American Bar Association Section of Intellectual Property. Outside of work, Kevin likes to fly-fish, climb mountains, spend time with his family and watch the dogs hog the furniture.
KEN BRODA-BAHM, PH.D.SENIOR LITIGATION CONSULTANT 303.295.8294 | [email protected] Dr. Ken Broda-Bahm has provided research and strategic advice on several hundred cases across the country for the past 23 years, applying a doctorate in communication emphasizing the areas of legal persuasion and rhetoric. As a tenured Associate Professor of Communication Studies, Dr. Broda-Bahm has taught courses including legal communication, argumentation, persuasion, and research methods. He has trained and consulted in 19 countries around the world and is a past President of the American Society of Trial Consultants. Ken is a lover of new ideas, exotic places, innovative gadgets, and good arguments. He is married to the other Dr. Broda-Bahm (wife, Chris), and is the proud dad of his figure-skating and guitar-playing daughter Sadie.
SHELLEY C. SPIECKER, PH.D.SENIOR LITIGATION CONSULTANT 303.295.8164 | [email protected] Dr. Shelley Spiecker has been advising attorneys on case strategy, courtroom persuasion and jury selection for over 27 years. With a doctorate in legal communication, Dr. Spiecker routinely advises attorneys on case and trial presentation strategies. She is nationally recognized for her work helping to prepare witnesses for deposition and trial. She has extensive experience in the design and analysis of mock jury trial and focus group research as well as mock bench trials and mock arbitrations. Her studies of the tactical use of innuendo in the courtroom, and her analyses of effective opening statements and closing arguments have been recognized as valuable contributions to the trial consulting field. She also enjoys running, hiking, skiing, and spending time with her two teenagers.
KATERINA OBERDIECK | AUTHORQUANTITATIVE RESEARCHER 303.295.8209 | [email protected] Katerina Oberdieck plays an active role in designing and conducting mock trials, focus groups, surveys, and social media research. She holds a master’s degree in psychology complemented by further graduate-level training in statistics and research design. Katerina’s analytic work at Persuasion Strategies includes identifying attitudinal clusters that affect jurors’ case decisions, assessing the probability of various case outcomes, and developing analytic software. She is a published author on topics including jury decision-making, legal analytics, and trends in litigation.
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