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Volume XI, Number 113

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Foreseeability: What Constitutes Preparedness in the Face of COVID-19?

Whether a plaintiff’s damages were foreseeable is often the key dispute in a lawsuit. The plaintiff argues the defendant should have foreseen and prepared for the harmful event; in response, the defendant insists no reasonable person could have foreseen the need to guard against the event. These two competing arguments will arise again and again in post-COVID-19 litigation.

As the COVID-19 pandemic has unfolded, IMS has been conducting research, including focus groups with mock jurors across three U.S. venues, to help clients gain a clear view of the context surrounding their cases and jurors’ attitudes. In our research, we found that jurors’ responses to this dilemma were nearly evenly split, 51% agreed that the COVID-19 pandemic was an unforeseeable, worldwide tragedy that has caught everyone by surprise — compared to 49% who disagreed with those conclusions.

In our focus groups, a large percentage of the mock jurors used the familiar concept of “preparedness” to evaluate the legal element of foreseeability. Jurors expect people to prepare for occurrences that can reasonably be expected to occur. The question for mock jurors then became whether people could reasonably have expected and prepared for this pandemic. The vast majority of mock jurors in our study believed there is no historical equivalent to the COVID-19 experience.

This lack of precedent led to extensive discussions revolving around four questions:

(1) How does one assess foreseeability and a defendant’s obligation to prepare for an event if members of society have not previously experienced such an event?

(2) Can a person or business be culpable for injuries caused by an unprecedented event?

(3) Is the unprecedented nature of the event irrelevant because certain defendants have an obligation to always be prepared for certain types of events?

(4) Does a larger or more sophisticated party have a greater obligation to prepare for unexpected or unprecedented situations?

The Letter of the Law Amid COVID-19: Has the Pandemic Changed the Way Juries Use Logic and Checklists to Make Decisions?

On COVID Time: Why Timelines Are More Important Than Ever

How Will the Concept of 'Personal Responsibility' Influence the Attitudes of Jurors?

Read more on the study here.

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© Copyright 2002-2021 IMS ExpertServices, All Rights Reserved.National Law Review, Volume X, Number 243
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About this Author

Chris Ritter Senior Trial Advisor IMS Expert Services
Senior Trial Advisor

Chris Ritter is a highly sought advisor for top clients seeking guidance and perspective on case theme development, persuasion graphics development, witness preparation, and focus group and mock trial research. Chris graduated from the University of Chicago Law School and actively tried cases for nearly fifteen years. He served as adjunct professor of law at the University of California, Hastings School of Law for twelve years, teaching courses in trial practice and evidence. Chris has advised clients for more than twenty years on over 500 cases throughout the country, with more than 100...

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Britta Stanton IMS Thought Leader and Trial Strategy Advisor IMS Expert Services
Trial Strategy Advisor

Britta Stanton is an IMS Thought Leader and trusted advisor to the firm’s top clients. An experienced trial lawyer with more than a dozen trial appearances and nearly twenty years of practice in state and federal venues, Britta has also advised clients on hundreds of cases and trials.

She has served as faculty for the National Institute of Trial Advocacy and graduated magna cum laude from Baylor Law School, where she also served on the Baylor Law Review. Her thought leadership contributions help clients explore best practices on topics ranging...

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Associate Jury Consultant

Clint’s background in the fields of communication and trial consulting prepared him well for his position as jury consultant at IMS | The Focal Point. As an expert in the field of communication, he knows how to deliver crisp, effective courtroom messages. His work as a university instructor enabled him to develop an adaptive instructional style, which he now uses when he prepares different types of witnesses for trial. During his training as a trial consultant, Clint became skilled at evaluating mock trial data and identifying the traits that are predictive of verdict outcomes.

...

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