Holland & Hart - Persuasion Strategies

We’ve now had quite some time to settle into the coronavirus and its social restrictions. If you are like me, you might have even developed a twitch every time you hear the phrase “New normal.” We know that we are living in odd times, and it is normal to expect that a little bit of that oddness will leak into the post-pandemic times once the restrictions are over. But it may also be the case that a surprising amount will have not changed.

At Persuasion Strategies, we have been conducting a longitudinal study of the attitudes of the American public that started before the pandemic (July of 2019), and continued through to the present. Our White Paper, “Juror Attitudinal Trends During COVID,” is available, written by our Quantitative Researcher, Katerina Oberdieck. By returning to the same juror-eligible population throughout this time of change, we aimed to get a clear view of how the pandemic and its associated social disruptions have influenced the kinds of attitudes that matter in litigation. The result is that, generally speaking, the attitudes have remained more “normal” than “new.” Beliefs about the magnitude of damage awards (whether they are too high, too low, or just right) have remained consistent, as have attitudes toward corporations, lawsuits, and the role of ethics versus the law. There are three notable differences, however. In this post, I will briefly highlight these trends that are covered in greater detail in the White Paper.

A Little More Emphasis on Social Responsibility

In the context of the pandemic, people have become significantly more likely to value society’s role in ensuring people’s well-being over the individual’s role in securing their own well-being. The percentage responding that there should be more societal-level responsibility has grown from 50 percent at the beginning of our study in July 2019, to 60 percent as of the last measurement in December 2020.

The tendency to emphasize collective or individual responsibility, of course, has a bearing on the kinds of relief commonly sought through civil litigation. Our own practical experience has been that an attitude emphasizing society’s responsibility predicts pro-plaintiff leanings in many cases. Individual responsibility, in contrast, is often used as a lever for pro-defense jurors to emphasize that someone should have better protected themselves. In practice, however, it will depend on the case, since there are certainly scenarios where a defendant could position themselves as upholding a social responsibility as well.

A Little Less Sympathy for COVID’s Influence on Corporations 

The pandemic has upended some of the best laid plans for many of us. For corporations, one outcome has been an increased chance of a Force Majeure case based on the claim that the company cannot fulfill a contractual obligation due to the pandemic and its accompanying disruptions. This is one of the types of cases on which we tracked juror attitudes. What we found is that, as the pandemic wore on, the public began to show progressively less sympathy. While a clear majority would have favored a generic Force Majeure defendant in April, that number shrank to less than half by the end of the year.

One possibility is that hindsight is playing a role, and individuals who were shocked by the disruptions in the spring are now saying that companies should have known better or could have planned ahead. Another possibility is that anger over the pandemic is increasing, a trend we have also seen, and individuals are putting the blame on organizations for inadequate preparation and for putting the U.S. in a worse position relative to other countries.

A Little Different Jury Pool 

The coronavirus situation is still in flux, of course, and as the vaccine rolls out (and the virus variants roll in) it is still an open question whether most in society are feeling safer yet. Interestingly, around 60 percent of our sample say they would definitely or probably appear to serve as jurors for an in-person trial. But this willingness is not evenly distributed across the population. 

As this chart indicates, the likelihood of saying that one would serve for an in-person jury varies by political leaning, by socio-economic status, and by rural or urban residence.

The political dynamic makes sense, and has expanded during the pandemic: Trump voters, particularly over the summer, were more likely to downplay the virus, so it is not surprising that they would be more likely to show up for jury duty. Conservative voters are also more likely to be stronger defense jurors in many contexts.

The role of income is interesting, given that the relationship flipped between the spring and the summer. In April, those with lower incomes were a bit more likely to show up for jury duty, while in July and December they were less likely. It is possible that what this is actually measuring is hardship, and as the pandemic wore on, those at lower incomes were simply more likely to be hit hard by the economic decline, and thus less likely to want to serve on a jury.

Finally, the role of rural versus urban residence has also narrowed, which makes sense since large cities like New York were hit very hard early in the pandemic, but the virus spread to more rural areas over the summer and fall.

It is hard to tell what the lasting effects of the pandemic will be at this point. As measured by this research, however, there are a few important areas of difference. When jurors do find their way back into courtrooms, or perhaps into Zoom-rooms for online trials, they will bring many of the same attitudes they’ve always had, but also altered expectations about the role of society, the exigences of the virus, and their own duty to serve as jurors.