In part 1 of this topic, we discussed the concept of polarization and mortality salience, in part 2 we examined ingroup favoritism and outgroup bias, and in part 3, we focused how crisis situations create an increased reliance on intuition, emotion, and heuristics in attitudes and decision-making. In the final part of this series about the impacts of the COVID-19 crisis on jurors’ attitudes and decision-making, we explore the increased focus on rules and rule-breaking.  

Increased Focus on Rules and Rule-Breaking

Evidence indicates that rules and conventions become more important among individuals who fear contagion.[1] This likely occurs for two main reasons. First, strict adherence to rules and tradition help individuals to feel more in control during an unpredictable and chaotic time. Second, following rules and conforming to social norms may be an inherent reaction intended to safeguard individuals and their families against disease. People are less likely to become ill if they adhere to high standards of cleanliness and follow other protocol designed to prevent infection. From an evolutionary perspective, people also may be motivated to punish those who engage in immoral acts and otherwise distance themselves from what they perceive as “impure” or “unclean.”[2] As previously mentioned, those who fear contagion place an increased importance on ingroup loyalty. They also tend to show a greater deference to authority figures and a decreased tolerance for those who defy authority.

The implications of this likely effect of the COVID-19 pandemic for civil juror decision-making are varied and highly complex. This is partly because jurors will have different moral frameworks and different ideas about what constitutes a legitimate authority figure. For instance, some do not view President Trump as a legitimate authority figure; others do not view the CDC or other government agencies as legitimate authority figures. Some jurors will view corporate CEOs as legitimate authority figures; others will not. Some jurors may perceive a company’s decision to remain open during the COVID-19 crisis as highly immoral given that doing so increases both employees’ and consumers’ risk for becoming ill, whereas others may view the same decision as moral as the company can keep workers employed and provide the public with needed goods and services. 

Despite these complexities, counsel should anticipate some basic overall changes in jurors’ perceptions and decision-making resulting from increased adherence to rules and minimized tolerance for rule-breaking. The most obvious change is an increased susceptibility to plaintiff reptile tactics. Most corporations had publicly advertised unattainable rules for safety and conduct prior to the COVID-19 crisis. In reacting to the crisis, many have repeatedly reinforced their public commitment to these unattainable rules. Even worse, many corporate communications to the public (in the form of emails, other advertisements, etc.) not only establish their commitment to maintaining impossible safety standards and preventing all negative outcomes, but then follow this commitment with a sales pitch. In the midst and aftermath of the COVID-19 crisis, jurors should be even more inclined to punish a corporate defendant for breaking their own, stated, and highly publicized rules. The punishments will be more severe if plaintiffs show that public pledges to ensure employee and consumer safety are followed by sales pitches; clearly this company values profits over safety.

The defense must be aware of such susceptibilities and prepare to defeat plaintiff reptile strategies, and to give reptile plaintiff attorneys a “taste of their own medicine.” In order to defeat a well-executed plaintiff reptile approach, the defense must swiftly and assertively advance a counter-narrative identifying the responsible party or parties; again, traditional systematic refutation of plaintiff allegations (even if very logical and scientific) will not be effective. The defense also must establish its own rules and ask prospective jurors to publicly endorse these rules during voir dire (e.g., an employee must always follow their employer’s safety guidelines and rules; a parent must always ensure that their children are properly supervised; a patient is responsible for following the physician’s instructions to minimize surgical complications). Reverse reptile approaches may be warranted in many cases; however, we recommend consultation with CSI Litigation Consultants to determine the most appropriate tactics for your particular matter in the context of the COVID-19 crisis.   

Future Directions

We are living in an unprecedented time full of uncertainty. It is unclear when civil jury trials will resume in different venues across the U.S., and what these trials will look like. Will social distancing protocol apply? Will jurors be afraid to report? Will jury selection processes continue as usual, or will each juror be questioned individually? How will social distancing protocols such as directives to wear masks affect witness performance, and jurors’ perceptions of witness demeanor and character? These questions remain unanswered currently, but CSI will provide timely updates on procedures, protocol, and psychological implications for jurors as courts begin the reopening process throughout the next few months.

The anticipated effects of the COVID-19 pandemic on civil jurors’ attitudes and decision-making as discussed in this article are largely based on prior research results, though current data were incorporated as available. CSI Litigation Consultants are actively collecting data from nationally representative samples to further inform our practice during this time and our recommendations for clients and counsel. Specifically, our PhD-level consultants specifically trained in survey and research methodology are collecting and analyzing data to better understand jurors’ perceptions of a variety of corporate entities during this time; attitude and belief changes resulting from the COVID-19 crisis; and behavioral changes resulting from the COVID-19 pandemic. We are conducting further analyses to assess geographic and venue-related differences in jurors’ post-COVID-19 attitudes and decision making processes, with a focus on comparisons between rural and urban venues and between notable “Judicial Hellholes” such as Cook County, Los Angeles, Philadelphia, New York, and various Georgia and Texas counties. We will continue to share our findings with counsel, clients, and insurance claims professionals to help achieve positive case outcomes during this unprecedented time.