What’s Going On?

The world turned upside down in 2020: fires, earthquakes, erupting volcanoes, locust swarms, escalating tensions between the United States and Iran, impeachment proceedings, the horrific death of Kobe Bryant and others in a helicopter crash, COVID-19 and the pandemic leading to business shut downs, unemployment and social distancing.  With all the information and misinformation cycling through television, radio, print and the internet, there is ample cause for the American public to embrace feelings of fear and uncertainty.

Jurors and juries reflect a microcosm of our society.  They have wide access to information through the internet.  They have formed their own views and beliefs on what’s going on.  We can safely assume that current social and political events will affect how jurors feel and what they believe.  For example, a cab driver (sans mask) recently told me that COVID-19 was a conspiracy among the richest people in the world to imprison people and crash and burn the world economy.  You have to be prepared to persuade all manner of mindsets – even some that seem extreme.

Like a doctor keeping current on medical trends, I consulted multiple sources to better understand the evolving psyche of the jury.  I reviewed the literature.  I discussed jury experiences with my colleagues and clients, and I compared that with my own experience.  I talked to one of the leading trial consultants in the country.  Dr. Rick Fuentes, who is a founder of R&D Strategic Solutions, shared with me his opinions on current trends and possible hypotheses for post-COVID-19 juries.  I also consulted with Judge Mark Drummond, the judicial director of the Civil Jury Project at New York University School of Law (“the Civil Jury Project”).   The Civil Jury Project is “currently the only academic Center in the country dedicated to studying civil jury trials,” and it is developing protocols for the virtual jury trial. ¹  From these different resources, I’ve collected my impressions below.

The Jury System Is Not Going Away

Despite the raging debate on whether it is broken, the American jury system is not going away.  Trial by jury is a constitutional right and inherent to our democratic process in the United States.  “The Seventh Amendment to the U.S. Constitution and provisions of most state constitutions guarantee the right to trial by jury in civil cases,” said Judge Drummond. ²

In mass tort litigation, plaintiffs’ lawyers continually pound jury buttons with company conduct.  They often shout charges of profits over safety.  They allude to company cover-ups and let the jury fill in the gaps of undefined conspiracy theories from a handful of documents taken out of context.  They vilify the company’s people.  They use so-called “reptile” approaches to trigger fear in the jury’s decision-making process.  Unfortunately, all of these tactics can be effective.  Last year, a Philadelphia jury entered a shocking $8 billion-dollar verdict for a single plaintiff against a drug manufacturer.  A husband and wife in California were awarded a $2 billion-dollar verdict for exposure to a weed killer.  In talc cases, verdicts have swung the extremes of defense verdicts to high exposure plaintiff verdicts.

A society with access to non-stop streaming television programs and movies likes a good drama.  And every drama must have a villain.  Plaintiffs’ lawyers point the finger at big companies.  But the same themes plaintiffs’ lawyers use against companies can apply to the plaintiffs’ bar or their clients.  When a jury believes that plaintiff lawyers have been unfair, the likelihood of a defense verdict increases.  If a jury believes the plaintiff has been deceitful or is milking a claimed injury, then a defense verdict is more likely.  Of course, whether a “bad actor” exists will depend upon the unique facts of the case.

Consultants & Feedback

It is not uncommon for trial lawyers to get feedback from consultants on different ways to prepare and present a case to a jury.  While the use of consultants may have been novel and sometimes “hushed up” in the pioneering years, the secret is out.  The general public knows about trial consultants from mainstream media outlets, such as John Grisham’s book and the movie adaptation of “The Runaway Jury,” or the television series “Bull” where Dr. Jason Bull (a character inspired by Dr. Phil) uses his skills as a psychologist to help lawyers win their cases.

Dr. Fuentes, who holds a Ph.D. in applied psychology, has been a trial consultant since the late 1980s. ⁶  He works with lawyers on pre-trial theme development and testing, trial strategy, mock trials and focus groups, fact and expert witness preparation, and jury selection.  Collectively, Dr. Fuentes and his team have worked on thousands of cases, particularly for company defendants in high-stakes, bet-the-company matters.

But company defendants are not the only ones who use trial consultants.  “The top plaintiff lawyers do multiple jury exercises,” said Dr. Fuentes.  Mark Lanier is one example.  In a pharmaceutical product liability action against a drug manufacturer, Lanier prepared his case with jury consultant Dr. Robert Leone and utilized a 13-member shadow jury during the trial. ⁷ While the real jury may have believed that Lanier’s performance was unscripted, “he meticulously planned the trial’s smallest details.” ⁸

All successful trial lawyers on both sides of the “v” understand that preparation is the sine qua non of successful advocacy.  “It has been the theme of successful trial lawyers from the time of Cicero. Advocacy alone, however brilliant, cannot supply deficiencies in the preparation.” ⁹

Consultants can step up a trial lawyer’s advantage.  But the fee is not insignificant, and not every case calls for the big consulting guns.  One client advised that she found value in mock juries during the early phase of a mass tort litigation.  “I found it useful to hear the conversations of the mock jury during deliberations.  That was eye opening.”  She found less value in testing evolving trial themes with mock juries, adding, “I’ve seen the same themes lead to different results with different juries.”

The client further noted that a jury consultant who is from the same jurisdiction as the venire may have good insights “reading the local psyche.”  But she observed that some trial teams prefer to pick the jury themselves.  “I never force my trial teams to use jury consultants.”

Another client commented, “Good attorneys, in my experience, are natural people readers.  Especially good trial attorneys.  If you know what you are doing, that should be enough to pick a jury.  That being said, the research they can provide is helpful at certain times and in certain jurisdictions.”    

Unreasonable Demands Will Keep Defense Counsel Busy

The Civil Jury Project reports that “it is beyond dispute that the civil jury trial is a vanishing feature of the American legal landscape.  In 2018, for example, 0.5 percent of federal civil cases were tried before juries – down from 5.5 percent in 1962.”  ¹⁰ While there were 10 trials per authorized federal judgeship in 1962, there were only 2 in 2018. ¹¹ The trends are similar in state courts. ¹²

A study by the National Judicial Conference shows that fewer than half a percent of civil filings in most jurisdictions are decided by juries. ¹³ Nonetheless, 71 percent of the judges responding to the study reported that they do not believe that the “civil jury trial system is doomed.” ¹⁴

Dr. Fuentesdoes not believe jury trials will disappear.  Last year, Dr. Fuentes picked 28 juries, averaging around one jury every other week.  This year, he helped select two juries on different coasts in early March, right before the COVID-19 pandemic closed the courts.

“I see more cases going to trial,” said Dr. Fuentes.  “Serial litigation is high dollar and high risk.” Settling these cases before trial is difficult, because “plaintiffs’ demands are extremely high, particularly if the case is being tried in a plaintiff friendly venue…Also, the plaintiffs’ bar is extremely sophisticated.”

Based on my observations and those of my colleagues and clients, attorney advertising and unbalanced media reporting has led to unrealistic expectations of plaintiffs.  A plaintiff sitting back in her living room sees a report flash on the TV and hears, “If you have been injured…This “report” has charts and data.  It mentions the FDA and the possibility of “significant compensation.”  In less than 30 seconds, the typical plaintiff believes this is actual news and that she may be entitled to money.  Some plaintiffs even think that once they sign the plaintiff fact sheet that a check will be forthcoming.

A case cannot settle if a plaintiff has unrealistic settlement objectives and the settlement demand is too high.  Dr. Fuentes has found that in many instances, “the mediation process doesn’t get under way in any earnest fashion because of demands.”  And a jury may be more reasonable than the plaintiff or his or her counsel.

Dr. Fuentes worked with a company client in a gas explosion case involving multiple defendants.  The company offered more than $30 million to settle the case, which plaintiff turned down.  Without admitting liability at the jury trial, the company built a defense around accepting responsibility.  The purpose was to show that this was a good company that wasn’t shirking off responsibility.  The strategy paid off.  The jury returned a verdict of 25 cents to each settlement dollar offered – a win.

Polarization

Dr. Fuentes believes that more of the big dollar cases are making their way to trials than settling because of “the increase in social and political polarization.”  Broadly speaking, Dr. Fuentes said polarization arises when “no one wants to concede positions – concessions look weak.  Instead of gaining credibility, politicians lose credibility with staunch supporters, and they double down.”

American society has become more polarized.   Instead of fair and balanced media, partisan news organizations agitate their viewers (including my 82-year-old mother) with extreme positions.  Instead of facts, hyperbole rules.  Doom and gloom, fear and uncertainty, and sexual misconduct are best sellers.  Instead of inclusivity and diversity, some communities build racial barriers.  The racial divide expands with every mass shooting.  According to Gun Violence Archive, there were more mass shootings in 2019 than days in the year. ¹⁵

Studies show that American communities are increasingly segregating themselves by political party and ideology, even in their residential communities. ¹⁶ “This segregation makes us more likely to demonize each other, as more and more people live alongside people who hold similar political beliefs to them.” ¹⁷

While noting that there are always exceptions, Dr. Fuentes reported that “juries are spending more time deliberating in civil cases and there are more hung juries.”  Similar results are seen with focus groups and mock trials.  An increasing number of “mock juries are unable to obtain a unanimous verdict or the requisite number to have a verdict.”  Dr. Fuentes attributes this phenomenon to more jurors/mock jurors taking obstinate positions, or, “That’s my position and I’m not changing it.”

Compromise may happen if the court gives the jury the Allen charge (also called the “dynamite” or “hammer” charge).  This is an instruction given by the court to encourage a deadlocked jury to continue deliberating until it reaches a verdict.  Whether the jury compromises after an Allen charge depends on the personality of the “obstinate” juror.  For instance, if the “obstinate juror” is basing his or her choice on emotion, then no amount of reason may change that juror’s mind.

Dr. Fuentes has also observed “ad hominem attacks of other jurors” during deliberation exercises.  He said, “The dynamic is that the juror wants to get the verdict right, but they are not getting paid enough to stay extra days with the irrational juror with an agenda.”  This has always happened to some degree, but it is heightened now. He adds, “Jurors are in a sense modeling with our leaders.  Both sides of the political spectrum.”  Dr. Fuentes has found that fewer jurors negotiate and compromise.  For many on the defense side, no verdict (whether a hung jury or not) equals a win.

Fear, Distrust and Conspiracy

Dr. Fuentes’ research has shown a high level of uncertainty and distrust in our political leaders on both sides, in government institutions such as the FDA, and even in academic institutions.  “There is an incredible level of distrust with politicians and institutions that makes it easier for plaintiffs to persuade juries,” said Dr. Fuentes.

Contributing to that fear is the digital revolution.  One psychologist reported that “[w]e are now living in a digital age where whatever happens around the world, very quickly if not instantaneously, becomes amplified…the “way we experience these events is more graphic and intimate…[as if] these things are happening collectively…it seems like it’s here in our living rooms.” ¹⁸

Compounding that effect is that “people believe they can learn by doing their own research,” said Dr. Fuentes.  “The negative of the information revolution is the proliferation of conspiracy theories.”  These theories include beliefs such as 9/11 being staged to start a war in the Middle East.  Also, there is a “decay and crumbling of institutions, like the FDA or EPA.  It used to mean something to have the imprimatur of these institutions,” said Dr. Fuentes.

Further, with the “admissions scandals” (i.e., rich people trying to buy their kids’ way into good schools), there is increasing public distrust of academic institutions.  The high integrity of academia gets chiseled away with each scandal.  As a result, no one “can get the same mileage from an expert who is a professor rather than a consultant,” said Dr. Fuentes.

To determine whether a juror would be receptive to conspiracy theories, Dr. Fuentes has used proxy questions like, “Did China manufacture COVID-19?”  This question can tease out those potential jurors who believe that the virus was intentionally made to make people sick due to economic greed.  This potential juror will come into the jury box believing that the virus is “money driven and fabricated to make people sick.”  If this does not make a defense lawyer cringe, Dr. Fuentes noted that there is a documentary on YouTube called the “Plandemic: Part 1” that seeks to message COVID-19 conspiracy theories.

The emphasis on “fake news” in recent years has led to a surge of strong right-wing conspiracy theorists that need to be distinguished from the typical anti-corporate conspiracy theorists. According to Dr. Fuentes, many of those who believe China manufactured COVID-19 “view it more as an ’us versus them’ controversy rather than viewing it as an example of corporate greed. Identifying conspiracy theorists is not as black-and-white as it was once, and the exploration of attitudes regarding COVID-19 need to include the motivations behind the actions.”

Impact of Fear and Uncertainty in the Jury Box

“Exploiting fear and uncertainty are great motivators for people,” said Dr. Fuentes.  Sophisticated plaintiffs’ lawyers cobble together internal documents to fan the fires of fear and uncertainty.  Dr. Fuentes has culled the focus of plaintiffs’ lawyers in mass tort actions to the following trifecta:

1. Similar incidences (i.e., a red flag of a problem);
2. Bad paper, which are the company documents that say things that may appear offensive, callous or otherwise unfortunate; and
3. Testimony from high-ranking company witnesses, who may come across as crass, uncaring or profit-driven.

“When you add in the judge,” said Dr. Fuentes, “the balance may be swung in plaintiff’s favor.”  For instance, if the judge wants to give an edge to jury selection based on hardships and cause challenges, that can shape the jury.  In contrast, a judge who rules down the middle on hardships and challenges in certain jurisdictions will allow both sides to get a more neutral jury.  Dr. Fuentes had a recent case involving a tragic golf cart accident and a 9-year-old boy.  Plaintiff’s counsel asked for a $1.2 billion verdict.  The jury absolved the company defendant.  Why?  “The court ruled down the middle on hardships and challenges,” said Dr. Fuentes.  As a result, the jury was composed of jurors who were willing to apply the law and put aside their sympathy for the plaintiff.

Getting It Right

It is not all doom and gloom.  Dr. Fuentes observed that juries decades ago would rely on their own conscience rather than the law in tough cases, saying, “Back in the 1990s, one-third said they would rely on the law and two-thirds on their own conscience.”

The good news is that today’s jurors are more likely to rely on the law than their own conscience in a tough case. Dr. Fuentes’ research shows that 75% of jurors want to follow the law in tough cases.  “Jurors today want to get the verdict right and they will apply the law. The reason is the information revolution.  Jurors want to get ‘it’ right based on fact, evidence, law.  I’ve seen this happening in focus groups, mock trials and actual juries,” said Dr. Fuentes.  This is one of the reasons why we have seen radical swings in verdicts from juries involving similar products.

Impact of COVID-19 on Juries:  A Few Hypotheses

No one can predict with any degree of probability how COVID-19 will shape the views of jurors.  It is simply too early in the pandemic.  The first timeline was March to April 2020.  During this period, we saw school closings, cancellation of college sports and public entertainment, a shortage of ventilators, hospital ships being sent to New York City and Los Angeles, and lock down orders.  In May, when this article was written, we see the fringes of a new normal:  People working from home if they can, social distancing and reduced numbers of people in restaurants and stores.  We have no idea about tourism and travel at this point.  The final phase will come when the economy is open.  This will be the new normal.

Who will jurors blame?

Dr. Fuentes hypothesizes a few different scenarios.  One is that jurors may have more distrust of government.  Another is that high demands will seem unreasonable to a juror who has gone through COVID-19 hardships (economic, personal, anxiety).  “This may rub them the wrong way,” said Dr. Fuentes.  “Why am I going to listen to this case for 2 weeks?  Is this case that important?  Don’t waste my time.  You need to settle these cases.” Dr. Fuentes added that “[w]e may see less jurors with social distancing, and the number of people in the courtroom will change.”  So instead of seating 12 jurors, there may be only 8 (including the 2 alternates).  The staff for each side allowed in the courtroom may be reduced.

A part of me would like to believe we have all worked together to find solutions for COVID-19 and that may filter down to jurors.  We have seen acts of kindness and togetherness.  Perhaps we will all be better after the uncertainty and fear has settled down and the new normal has taken over.  If that seems too Pollyannaish, then I’m rooting for jurors who will follow the law in tough cases.

The Future of the Virtual Jury

The COVID-19 pandemic now impacts the way civil cases are prepared.  With quarantine measures in place and uncertainty about the virus, traveling and in-person depositions, mediations and trials are not feasible.  The courts have quickly adapted to the “new normal” and encouraged parties to use technology to meet discovery deadlines.  As a result, there has been a dramatic increase in the use of the virtual depositions and mediations.

But what about virtual jury trials?

The Civil Jury Project, which was founded by Stephen D. Susman, was the first organization to study whether the “new normal” would include the virtual jury trial.  Then, on May 18, 2020, a Texas court held a virtual trial. ¹⁹ It was an experiment.  The jury is still out, so to speak, on this method of advocacy.  Can it be used in complex mass tort cases?  Doubtful.  But there may be a place for it in other contexts. ²⁰

As part of the process to develop protocols for a virtual jury trial, Judge Drummond and his team recently held a mock virtual jury trial.  First, they sent out e-invitations to members of New York University Law School students, including my son, Michael.  They encouraged the students to reach out to friends and family, and Michael forwarded me the invitation.  For those who applied, like I did, there was a jury questionnaire to prepare.  Ninety-two people submitted jury questionnaires under a persona of someone they knew.  Judge Drummond whittled that number to a 12-person jury pool, and then six people were selected on the jury.  (I was thrilled to be one of the six).   The trial was based on a well-tested NITA problem that could be tried in an afternoon.  Judge Brendan J. Sheehan of Cleveland, Ohio, served as the judge.  The lawyers (Eric Rosen and Stephanie Parker) conducted voir dire, selected the jury, gave opening statements, put on witnesses and did closing.   Judge Sheehan gave instructions to the jury before and after closing arguments.  We then went back into the virtual jury box, selected a foreperson and deliberated.   Every piece of evidence was reviewed under the legal standard read to us by the court.  Like all NITA problems, it was meant to be a close call – and it was.  

The lawyering was superb for both parties, but ultimately the case came down to credibility.  We didn’t believe the defendant store clerk over the investigator who testified for plaintiff.  Even in a virtual setting, we saw things about the store clerk that didn’t ring true.  He worked at a very low-end liquor store in a sketchy part of town, but looked like a seasoned politician with his American flag pin.  He seemed at times to robotically respond to questions with a Boy Scout affect.  In contrast, the investigator looked terrible on the video.  Because of a virtual background, his head bobbled on the screen, but his overall demeanor was calm and truthful. 

While there were the expected technological issues, the exercise was successful in identifying the areas where protocols need to be established.  It also proved to me that the virtual jury trial is achievable in certain cases.

I debriefed the following day with Judge Drummond.  “Until there is herd immunity or a vaccine [for COVID-19], we will need virtual jury trials,” said Judge Drummond.  “Cases with lower dollar property damage and minimal personal injury would be possible candidates, but both sides would need to agree to a virtual jury.”  The reason why lawyers may want to proceed this way is that “civil trials will be pushed back while courts are meeting speedy trial deadlines for criminal cases,” said Judge Drummond. “While we haven’t completed our studies, there may be a case for cost savings.”    

Judge Drummond is evaluating how different segments of a civil jury trial may be conducted remotely.   The first section is jury selection.   “This may be a two- pronged approach.   One option is that the jury summons provides a choice: do you want to participate remotely or come down to the courthouse?”   Judge Drummond noted that in some states, like Montana for instance, potential jurors must travel for hours to get to a courtroom.   The concept of fulfilling their civic duty from home may be appealing to that potential juror.

Also, the virtual jury trial can be segmented; it’s not a one size fits all. “There’s a smorgasbord of needs in the court system and there are many ways to segment the virtual jury process,” said Judge Drummond.  For instance, the voir dire could be conducted virtually and then the chosen jurors attend the trial in person. Or the deliberative process could be conducted virtually.   Judge Drummond noted, “…there’s a dynamic in the deliberation room.  The jurors feel pressure to reach a verdict. That dynamic may not be present in a virtual setting, and there may be more hung verdicts because of less pressure,”

Another concern Judge Drummond raised is the “disparity of the devices.”   He observed that there will a difference in determining credibility if a juror is watching the trial on “an
iPhone versus a 16” MacBook Pro.”  Judge Drummond is evaluating a system where jurors are provided the same device to participate in trial.  He also noted that there’s an opportunity for a software company to develop a platform for the virtual jury trial.

In the flip-flopped world of 2020, we are facing a lot of uncertainty on the evolution of the jury psyche, but one thing seems certain: virtual jury trials are in our future, and with a segmentation approach, particularly in the voir dire process, there could be significant savings of time and resources. 

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[1] See About, Civil Project Overview, Civil Jury Project at NYU School of Law, https://civiljuryproject.law.nyu.edu/.  The core inquiry of the Civil Jury Project centers on exploring the causes of the civil jury trial’s near extinction.  “What are the consequences – for the legal system and society more broadly?  And for those who advocate preserving and revitalizing the civil jury trial, what steps might be taken?”  Id.   In exploring these questions, the Civil Jury Project conducts research, has developed a judicial and scholarly network, promotes state and federal judicial workshops, and organizes and develops national programming aimed at improving the jury system.   Id.

[2] Judge Drummond was a trial lawyer for 20 years and then served 20 years on the trial bench in Illinois.   He retired from the bench in August 2019 and started working with the Civil Jury Project in September 2019.   He has a long-standing relationship with the National Institute for Trial Advocacy (NITA) and has trained trial lawyers on the most effective ways to present evidence around the world.   See About, Directors, Civil Jury Project at NYU School of Law, https://civiljuryproject.law.nyu.edu/.

[3] Solomon, Jason, The Political Puzzle of the Civil Jury System, 61 Emory Law J. 1331,1336 (2012).

[4] Id. at 1335-1336.

[5] Id.

[6] Biography of Rick R. Fuentes, Ph.D., https://rd-ss.com/rd_profiles/rick_fuentes.

[7] Berenson, Alex, Vioxx Verdict Raises Profile of Texas Lawyer, The New York Times (Aug. 22, 2005), https://www.nytimes.com/2005/08/22/business/vioxx-verdict-raises-profile-of-texas-lawyer.html

[8] Id.

[9] Busch, Francis, The Art of Jury Persuasion,  1 DePaul Law Rev. 1 (Autumn-Winter 1951).

[10] See About, Civil Project Overview, Civil Jury Project at NYU School of Law, https://civiljuryproject.law.nyu.edu/.

[11] Id.

[12] Id.

[13] Wishful Thinking?  Most Judges Refuse to Believe that Now-Rare Civil Jury Trials Will Disappear Entirely, Judicial Edge, The National Judicial College (August 16, 2018), https://www.judges.org/wishful-thinking-most-judges-refuse-to-believe-that-now-rare-civil-jury-trials-will-disappear-entirely/.

[14] Id.

[15] Silverstein, Jason, There Were More Mass Shootings Than Days in 2019, CBS News,  January 2, 2020, https://www.cbsnews.com/news/mass-shootings-2019-more-than-days-365/.

[16] Jilani Zaid, Smith, Jeremy Adam, What is the True Cost of Polarization in America, Greater Good Magazine, March 4, 2019, https://www.greatergood.berkeley.edu/article/item/what_is_the_true_cost_of_polarization_in_America.

[17] Id.

[18] Leca, Sean, Fear of the New Year:  Many are Afraid that 2020 is Off to a Bad Start, National Post (Feb. 4, 2020).

[19] Morris, Angela, Juror Walks Off To Take Phone Call as Texas Tests First Jury Trial Via Zoom, Texas Lawyer (May 18, 2020), https://www.law.com/texaslawyer/2020/05/18/juror-walks-off-to-take-phone-call-as-texas-tests-first-jury-trial-via-zoom/

[20] Gabriel, Richard, What Online Jury Trials Could Look Like, Newsletter, Civil Jury Project at NYU School of Law, Apr. 1, 2020, https://civiljuryproject.law.nyu.edu/.

Finis