The Extra Issues Change … Anticipate Many Similarities and Some Variations in a Put up-Pandemic Litigation World Holland & Hart – Persuasion Methods

We have now had some time to look at the coronavirus and its social limitations. In fact, if you’re like me, you may have developed a twitch every time you hear the phrase “New Normal”. We know we live in odd times, and it is normal to expect some of this weirdness to make its way into the post-pandemic times once the restrictions are over. But it can also be that a surprising amount has not changed.

At Persuasion Strategies, we conducted a longitudinal study of attitudes of the American public that began before the pandemic (July 2019) and has continued to the present day. Our white paper “Juror Attitude Trends During COVID” is available and was written by our quantitative researcher Katerina Oberdieck. By returning to the same legal population during this time of change, we wanted to get a clear view of how the pandemic and associated social disruption has affected the types of attitudes that matter to litigation. The result is that the settings are generally “normal” rather than “new”. Beliefs about the size of the compensation payments (whether they are too high, too low, or just right) have remained consistent, as have attitudes towards companies, lawsuits, and the role of ethics against the law. There are three notable differences, however. In this post, I’ll briefly discuss these trends, which are covered in more detail in the White Paper.

A little more emphasis on social responsibility

In the context of the pandemic, people have become much more likely to value the role of society in ensuring people’s wellbeing versus the role of individuals in ensuring their own wellbeing. The percentage that replies that there should be more responsibility at the societal level has risen from 50 percent at the beginning of our study in July 2019 to 60 percent since the last measurement in December 2020.

The tendency to emphasize collective or individual responsibility naturally affects the type of relief typically sought through civil litigation. Our own practical experience has shown that an attitude which emphasizes the responsibility of society in many cases predicts an inclination of the plaintiffs. In contrast, ownership is often used as a lever for defensive jurors to emphasize that someone should be better protected. In practice, however, this will depend on the case, as there are certainly scenarios in which a defendant could also position himself as the holder of a social responsibility.

A little less sympathy for the impact COVID has on businesses

The pandemic has turned some of the best plans upside down for many of us. For companies, one outcome was an increased likelihood of a force majeure event based on the allegation that the company was unable to meet a contractual obligation due to the pandemic and the disruptions associated with it. This is one of the types of cases where we’ve been tracking judges’ attitudes. What we found was that as the pandemic progressed, the public showed increasingly less sympathy. While a clear majority would have favored a generic Force Majeure accused in April, that number had shrunk to less than half by the end of the year.

One possibility is hindsight does matter, and people who were shocked by the disruptions in the spring are now saying companies should know better or plan ahead. Another possibility is that anger over the pandemic is mounting, a trend we have also seen, with individuals blaming organizations for inadequate preparation and a worse position of the US compared to other countries.

A slightly different jury pool

The coronavirus situation is still in flux, of course, and while the vaccine is being rolled out (and the virus variants are being rolled out) it is still an open question whether most in society still feel safer. Interestingly, around 60 percent of our sample indicated that they would definitely or likely serve as jurors for a face-to-face hearing. However, this willingness is not evenly distributed among the population.

As can be seen from this graph, the likelihood of saying that you would be on a personal jury varies based on political orientation, socio-economic status, and rural or urban residence.

The political dynamic makes sense and has expanded during the pandemic: Trump voters tended to downplay the virus, especially in the summer, so it is not surprising that they are more likely to appear on the jury. Conservative voters are also more likely to be stronger defense jurors in many contexts.

The role of income is interesting as the relationship between spring and summer is flipped. In April, those with lower incomes were slightly more likely than juries to attend, while they were less likely in July and December. It is possible that what this actually measures is hardship, and as the pandemic continued, those on lower incomes were simply more likely to be hit by economic decline and therefore less likely to want to be on a jury.

Eventually, the role of rural and urban residences has also diminished, which makes sense given that big cities like New York were hit hard at the start of the pandemic, but the virus spread to more rural areas in the summer and fall.

It is difficult to say what lasting impact the pandemic will have at this point. However, judging by this research, there are some important differences. When jurors find their way back into courtrooms, or perhaps zoom rooms for online trials, they bring with them many of the same attitudes they always had, but also changed expectations of the role of society, the needs of the virus, and their own Duty to serve as jurors.