These are stressful times, and there are many reasons to expect that your jury pool in the near future is going to be a little stressed out. In the article, “The Pandemic Juror,” (Wilson 2020) a University of Tennessee law professor noted what many of us have observed:
Jurors who are compelled to serve may show up angry, scared, distracted, or all three. It is doubtful that these jurors will be able to focus on the evidence if they are worrying about contracting the virus from the juror sitting closest or the lawyer who keeps moving too near the jury box during argument.
At this point, it is not just the coronavirus pandemic, but also a host of related and unrelated social disruptions and uncertainties that has many of us feeling a little off. Professor Wilson notes that the medical literature also reflects increased stress, anxiety, depression, panic, hopelessness, and desperation in the current moment. While jurors take an oath to judge a case on the facts alone, they cannot simply leave their own psychology at the courtroom door. When selecting and persuading those who show up, litigators need to account for the fact that, for many reasons, the jury is laboring under historically unprecedented stress. For this post, let’s look at the causes and consequences of that anxiety.
In planning your next trial, jury selection, or jury research project, it helps to pause for a moment to consider all of the reasons that your jury pool might currently be anxious or distracted. Today’s perfect storm of stressors could include the following:
- A pandemic that is surging rather than declining
- Continuing or increasing restrictions on work and movement
- Expectations about a resumption of normalcy that continually need to be reset
- Disrupted education for many children, and a consequent need to stay home for many parents
- Historic job losses and financial uncertainty
- The political uncertainty of impending election: The fear that your less-favored side will lose, as well as the fear of a prolonged or embattled transfer of power
- Continuing racial tension and protests against police use of force in major cities
The Courtroom Consequences of Anxiety
The uniqueness of our current moment suggests that litigators and other persuaders are well advised to think about what the consequences are likely to be and to adapt if possible.
Will They Show Up?
Our own polling has been mixed on whether potential jurors who receive a summons will skip out on jury duty due to concern over the virus itself, or due to other factors. But one thing is clear: A smaller proportion will show up. Our survey research this past summer shows that more than half of the population (55 percent) report that they have been affected in a negative way by the economic downturn, and more than a quarter (28 percent) say that they “probably” or “definitely” would not show for jury duty if summoned. For your own case, you will want a venue-specific and mode-specific (Zoom or in-person) analysis of likely show rate, as well as a rough demographic picture of who is most and least likely to appear.
Will They Tell the Truth?
We know that you need to think about juror candor, even in normal times. In oral voir dire, particularly when being questioned by someone seen as an “authority figure,” potential jurors are likely to give the expected answer, rather than the fully honest answer. If the person is stressed, then the impulse to “play it safe” could be even stronger. Right now, there are more reasons than ever to press for a mutually-agreeable juror questionnaire, not only so you can ask about their current hardships, but also so jury candidates can provide answers in a setting that we know leads to greater honesty.
Will They Focus?
We know that under general conditions of stress, and specifically in the context of the pandemic’s now long-term disruption, people have a harder time focusing and staying sharp. The notion of “Covid-Brain” is real. And we also know that courtroom trials require a great deal of focus and a level of comprehension that litigators, steeped in their cases, might take for granted. Even the simplest criminal and personal injury cases contain confusing legal instructions and arcane and unfamiliar procedures. The typical high-value civil cases require sophisticated understanding of complex characters, motivations, and timelines. At all times, but particularly when your audience is distracted or stressed, the imperative is to communicate well and to simplify.
Will They Prioritize ‘Other People’s Problems?’
A trial is somewhat extraordinary in asking ordinary citizens to attend to and care about disputes involving people they do not know. That is by design, of course, but it is also asking a lot of potential jurors. In the current situation, where individuals will often have more than enough of their own problems to worry about, will they be willing and able to devote as much concern to the injuries experienced by, or accusations directed at, another person? To be clear, in our own trials and mock trials so far, we have seen jurors setting aside their own issues in order to focus on the case. They will say in interviews and on surveys that the current situation has not influenced their views on the case. That said, I think it is worth thinking about why the case, and why your preferred result, should matter to jurors. In other words, you need to let them know the importance and the personal relevance of the principle that you are fighting to defend.
To the extent that the process continues, it is a testament to the jurors themselves. But realize that they’re likely doing it reluctantly and under stress. It takes effort. Good litigators should match that effort to make sure that you are presenting a case that is as simple, as compelling, and as meaningful as it can be.
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