Jury Selection Post COVID - what you need to know

Have you wondered lately what ever happened to the good ol' "reliable" jury profiles that used to be "predictive" of plaintiff/defense propensities? One word: COVID-19.

There's been a lot of talk about the rise in nuclear verdicts post COVID - and for good reason. They are on the rise. For context, when it comes to jury verdicts, $10 million or more is considered nuclear by definition. However, the legal community colloquially refers to verdicts that seem astronomical in light of the facts as "nuclear." And when the jury verdicts get into the hundreds of millions, or even billions in damages, the term is "thermonuclear." The recent $2.1 billion verdict against Bayer in the Roundup weed killer litigation is the most recent poster child for such verdicts. Most of the analysis attempting to explain the rise in nuclear verdicts focuses on factors related to social inflation, e.g., "lead generating," "litigation funding," litigation tactics such "the reptile" and "class action suits." For in-depth reading on nuclear verdict trends and potential causes, see the following links here, here, here and here).

I have a hypothesis that expands on the social inflation explanation for the rise in nuclear verdicts. My premise is that the defense has lost a large demographic chunk of what would traditionally be considered "defense oriented" jurors. But it's worse than that. This group isn't just lost to the defense; this is a group of people who might feel like they've been betrayed, and thus probably harbor feelings of resentment. And what characterizes a person with resentment: anger and a desire for revenge or retribution - two characteristics you'd never want on your jury if they're directed at you.

Why would I say such a thing? And who am I talking about?

Let's talk politics, age, and education. When it came to jury selection pre-COVID, conventional wisdom suggested that all things being equal, a corporate defendant wouldn't strike a Republican, or Conservative, who was a little bit older, and was also educated. Whether such judgements pre-COVID were right isn't really the point of this post. The point is that using the same conventional wisdom post-COVID is absolutely wrong.

General Attitudinal Trends

Before we get to pre/post attitudinal changes in prospective jurors, it's important to first note that there's been a general long term decline in the public's feelings toward big business, AKA, large corporations. The two graphs below illustrate the point. The first chart shows a 20 year decrease in the public's confidence in "big business." The second chart shows that from 2010 to 2022, negative feelings toward "big business" have increased and positive feelings toward big business has decreased.

GALLUP   June 27, 2022

GALLUP   June 27, 2022

Specific Attitudinal Trends and Changes

Now for the more alarming pre/post COVID attitudinal changes in the demographic groups I mentioned earlier: Democrats and Liberals, Republicans and Conservative,* age, and education.

Starting with politics. Pew Research looked at pre/post-COVID attitudes toward banks and other financial institutions, large corporations, and technology companies among Republicans and Democrats. Here's what they found:

Pre-COVID, 63% of Republicans believed banks and other financial institutions had a positive effect on the way things are going in the country these days. Post-COVID, that number dropped to 38%. Pre-COVID, 54% of Republicans believed large corporations had a positive effect on the way things are going in the country these days. Post-COVID, that number dropped to 26%. In other words, half of the Republicans who used to have a positive view of large corporations have abandoned that view. Pre-COVID, 58% of Republicans believed technology companies had a positive effect on the way things are going in the country these days. Post-COVID, that number dropped to 40%. Interestingly, the percentage of Republicans' post-COVID who have favorable opinions of banks, financial institutions, and large corporations is now the same as it is for Democrats.

These data are illustrated graphically below:

Gallup conducted a similar survey and got similar results.

Pre-COVID, 78% of Republicans had positive views toward "Big Business." Post-COVID, that number dropped to 61%. Similarly, Pre-COVID, 71% of Conservatives had positive views of "Big Business." Post-COVID, that number dropped to 58%. There was very little change in the views of Democrats and Liberals toward "Big Business." They were low both pre and post-COVID (hovering around the 30% range).

Now let's look at age and education: The pollsters at Gallup found downward trends in both of these categories, but not in the way that one might have expected. In the age categories they considered "older" (age 50 and above), there was roughly a 10% post-COVID drop in the percentage of people who had positive views toward "Big Business." In education, it was the college graduates whose views toward "Big Business" dropped post-COVID, and pretty significantly. E.g., pre-COVID 50% of college graduates had positive views of "Big Business, whereas post-COVID that number dropped to 36%.

These data are illustrated graphically below.

(Continued)

GALLUP   June 27, 2022

Back to my hypothesis: The drastic change in attitudes toward institutions such as banks, big business, and large corporations is not just a numeric shift. It's my speculation that the group of people that abandoned their support for the entities discussed in this post, "learned" something about them during the COVID years that left them feeling betrayed. I use the term "betrayed" intentionally. It's my guess that this cohort of people once trusted institutions such as big banks, big business, and large corporations (at least in general). And for whatever reason, they observed and interpreted something about the behavior of those institutions during COVID that destroyed that trust. The danger is that people who've been betrayed, or feel like they have been, often experience anger, resentment and a desire to seek retribution. Translation: anger, resentment, and retribution = punishment = high damages in the jury box.

Whether or not I'm right about the causes of the downward trends in attitudes observed by Pew and Gallup doesn't matter as much as the fact that these trends exist. For corporations and those that defend them in litigation, now more than ever it's important to learn how each case will resonate (or not) in each venue, and to which "types" of people will your case resonate (or not), and why. Additionally, it means that traditional defense themes might not land in the way they used to, as many peoples' attitudes, feelings, and beliefs about large corporations have changed in a substantial way.

Admittedly this post verges on sounding like doom and gloom, but there's another way to look at it. The information contained in this post highlights trends that litigators can now factor into their jury selection strategy. For example, broaden the strike profile for jury selection to include people who, in recent years, have changed their attitudes about large corporations, big business, large banks, etc. This will require developing new and creative voir dire areas of inquiry to identify new and risky attitudes that might not have been present pre COVID. Further, it's a reminder that one or two variables don't provide enough information about a person to make assumptions, e.g., "he's an older conservative" so he should be fine. You need to delve deeper to find out what attitudes, beliefs, and feelings any particular juror might have that could make a seemingly "safe juror" actually dangerous.

Footnotes:

*It's important to note that a Democrats and Liberals aren't necessarily the same thing. The same holds true for Republicans and Conservatives. However, there are more similarities between Republicans and Conservatives than there are between Democrats and Liberals. For example: 50% of Democrats consider themselves Liberal, 37% consider themselves Moderate and 12% consider themselves Conservative. On the other hand only 4% of Republicans consider themselves Liberal, 22% consider themselves Moderate and 74% consider themselves Conservative.

Jeff Dougherty, M.S.

President - Litigation IQ

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For more insights from Litigation IQ, check out the following posts:

• What are your witness' facial expressions telling the jury?

• How can witnesses turn the tables on opposing counsel?

• Why does the jury think your witness is lying?

• Witness preparation mistakes (Part One)

• Witness preparation mistakes (Part Two)