The Post-Pandemic American Jury Pool

There has been a noticeable shift in the public’s opinion of the United States’ judicial system over the last several decades. At the turn of the century, the tort reform political movement was thriving, and anti-litigation mentality strongly resonated with everyday Americans.[1] The main concerns for our judicial system centered around a perceived unhealthy trend of frivolous lawsuits and exaggerated damages.[2] The majority of citizens were of the opinion that the extensive influx of litigation in the court systems was damaging to the American economy and the root cause of increasing insurance premiums across the country.[3] However, corporate condemnation had been slowly building since the early 2000s after a series of white-collar corruption scandals and corporate executive arrests.[4] By decade’s end, the impact of corporate catastrophes like the Enron collapse transformed the prospective juror mentality from plaintiff skepticism to the anti-corporate attitude of present day.[5]

A. Historical Overview of Social Inflation and Nuclear Verdicts.

Long before the COVID-19 shutdown, the United States endured the largest economic disaster since the Great Depression during the 2008 financial crisis.[6] By 2009, the flood of stories about billion dollar corporate bailouts stood in stark contrast to the apparent lack of safety nets being provided to working class America.[7] For many Americans, the story of the 2008 financial catastrophe was simple: Wall Street had been bailed out and Main Street had been abandoned.

In the years that followed, the market bounced back and progressed through its longest expansion in history.[8] Meanwhile, employment rates and hourly wages remained stagnant.[9] As the middle class shrank, the American jury pool began to shape a “two Americas: one for the elite and one for the rest of us” mentality.[10] Jurors have steadily shifted their concern away from the harm of frivolous lawsuits and toward the threat of corrupt executives and unbridled corporate influence and power.[11] The culture eventually shifted so strongly that large corporations were being demonized as a group and believed to be guilty unless proven innocent.[12] Consequently, jury verdicts exploded because anti-corporate beliefs had become the norm, and the pervasive loss of trust was being reflected in the deliberation room.[13]

Prior to the coronavirus pandemic, a major topic at litigation and risk management conferences was the concept of social inflation—a sociological term used to describe a multifaceted trend toward the deterioration of tort reform, increased litigation, more plaintiff-favorable judicial rulings, generous verdicts, and the onset of the once unthinkable phenomenon of litigation financing.[14] Historically speaking, social inflation and the resulting tide of outsized verdicts have been the result of a decade of pervasive anti-corporate attitudes, general pessimism and tribal politics activated and accelerated by the 2008 financial collapse.[15] Looking forward, it is imperative for defendants to understand the post-pandemic American jury pool mentality and if the social inflation trend survived the outbreak.

B. The Post-Pandemic Factfinder.

The factual basis of a claim is at the heart of every jury decision. The “story” told during litigation is essential to how jurors will receive, store, recall and process the evidence. As a result, whichever party can tell the story better will have a major impact on how jurors will evaluate the choices and conduct of the parties involved in the litigation. Post-pandemic factfinders will analyze the claims by evaluating the intentions of the parties. Was this person driven by selfishness or sacrifice? Are their plans clever or crooked? Were their behaviors understandable or careless? Jurors will not always understand all the technical facts, demonstratives and expert testimony so they will construct the answers to these questions in the context of a narrative.

Jurors’ preconceived notions of a plaintiff’s or defendant’s moral character will ultimately determine who must carry the burden of proof at trial. The COVID?19 pandemic will once again show that new crises can alter old assumptions. During the last century, we have seen juror perceptions sway from giving defendant insurers and corporations the benefit of the doubt to forcing them to prove  they are “one of the good ones.”[16] The impact of the COVID-19 pandemic on any particular area of litigation will depend on which groups emerge from the crisis as heroes and which emerge as villains.

The first responders, medical professionals and essential workers are the heroes of a post-pandemic America. Parties to a lawsuit who are essential workers will have a stronger advantage in litigation than they did before the COVID-19 crisis. Stories of essential workers unable to quarantine are often juxtaposed with stories of the elite who experience the pandemic as a momentary inconvenience.[17]

Despite the demands of first responders, the American workforce has experienced unprecedented rates of unemployment from the COVID-19 economic shutdown.[18] Verdicts in employment litigation hinge on whether jurors can best see themselves in the shoes of the employee or the employer. The impact of having thirty-six (36) million citizens live through the stress, trauma and aftermath of unemployment during the government-ordered shutdowns must not be underestimated.[19] The gratitude of the nation is so strong that doctors and nurses in medical malpractice suits are more likely to be viewed favorably even in non-COVID-19-related cases. Meanwhile, stories of incompetence, corruption and fraud underlying the lack of medical supplies and infectious disease readiness could result in the broad demonizing of health care administrators.

Historically, in nursing home litigation, it has been common for jurors to express a belief that the wage-and-hour staff were likely undertrained, unskilled and perhaps even morally suspect. COVID-19 stories of the sacrifice and heroism of aging-services staff and medical professionals have changed these assumptions radically and thus changed the risk profile for aging services claims even if no COVID-19 relevant facts or claims are present. Consequently, any nursing home or long term care facility that is accused of being unprepared for even a normal flu season may become a flashpoint for juror outrage.

As the country shifts from quarantine to a post-pandemic America, attention will increasingly be turned toward finding someone to blame. The stories of corruption, fraud, incompetence and collusion during America’s worst economic crises are surfacing, and litigation involving claims reminiscent of these stories are a target for juror anger and frustration.

Footnotes:

[1] Stephen Daniels, Joanne Martin, Where Have All the Cases Gone? The Strange Success of Tort Reform Revisited Emory (2016) https://law.emory.edu/elj/content/volume-65/issue-6/articles-essays/where-cases-gone-success-tort-reform-revisited.html

[2] Id.

[3] Id.

[4]Id.

[5] Id.

[6] Kimberly Amadeo, 2008 Financial Crisis Causes, Costs, and Whether It Could Happen Again, The Balance (May 7, 2020), https://www.thebalance.com/2008-financial-crisis-3305679

[7] Tam Harbert, Here’s how much the 2008 bailouts really cost, MIT (Feb. 21, 2019), https://mitsloan.mit.edu/ideas-made-to-matter/heres-how-much-2008-bailouts-really-cost

[8] Carmen Reinicke, The US economic expansion is now the longest in history, Business Insider, (Jul. 2 2020), https://markets.businessinsider.com/news/stocks/us-economy-expansion-is-now-the-longest-in-history-2019-7-1028325678

[9] Id.

[10] See Mark Hendrickson, Progressive Economics: The Rise Of Bureaucracy In America, Forbes, (Oct. 27, 2015), https://www.forbes.com/sites/markhendrickson/2015/10/27/progressive-economics-two-americas-bureaucratic-arrogation-and-santa-claus-socialism/#3f85cd26654c

[11] Ken Broda-Bahm, Corporate Corruption: Expect Sensitized Jurors, Persuasive Litigator, (Feb. 14, 2018) https://www.persuasivelitigator.com/2018/02/corporate-corruption-expect-sensitized-jurors.html

[12] Id.

[13] Id.

[14] Bethan Moorcraft, What is social inflation, and why is it hurting insurance? Insurance Business, (Jan. 03, 2020) https://www.insurancebusinessmag.com/us/news/breaking-news/what-is-social-inflation-and-why-is-it-hurting-insurance-195626.aspx

[15] Id.

[16] Id.

[17] Rohit Thawani, Celebrities, Coronavirus Has Exposed How Irrelevant You Have Become, The Guardian, (Apr. 7, 2020) https://www.theguardian.com/commentisfree/2020/apr/07/coronavirus-celebrity-influence-criticism

[18] Nicola Slawson, 36 million Americans unemployed – as it happened, The Guardian, (Last Updated May. 14, 2020), https://www.theguardian.com/world/live/2020/may/14/coronavirus-live-news-trump-surprised-by-faucis-reopening-warnings-as-who-says-covid-19-may-never-go

[19] Id.

Alisa Baird, Litigating an Invisible Enemy: Will the United States Insurance Industry Survive the Covid-19 Pandemic?, 56 Tulsa L. Rev. 169 (2021).

Available at: https://digitalcommons.law.utulsa.edu/tlr/vol56/iss2/4