August 9, 2022

Volume XII, Number 221

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August 09, 2022

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August 08, 2022

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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.

© Copyright 2002-2022 IMS Consulting & Expert Services, All Rights Reserved.National Law Review, Volume X, Number 243
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About this Author

IMS Consulting & Expert Services delivers award-winning consulting to support the most influential law firms through every stage of litigation, arbitration, and mediation. Combining the perspectives and proprietary methods developed over 30 years and more than 2,000 trials, IMS provides attorneys with the essential services they need to win: integrated strategy, expert witness placement, jury consulting, visual communication, and courtroom presentations. With strategic locations in major US and UK markets, the IMS team is primed to support in-person and remote...

877-838-8464
Clint Townson Litigation Consultant IMS Consulting & Expert Services
Associate Jury Consultant

The nation’s leading litigators rely on Clint Townson, Strategy Consultant, to meticulously design and execute mock trials, focus groups, and community attitude surveys that yield reliable data to guide the development of their high-stakes cases. His background in communication informs theoretically grounded strategic recommendations that have helped attorneys in Am Law 200 firms achieve winning case outcomes. Clint’s graduate education and experience utilizing a variety of the world’s most advanced research methods and statistical analysis techniques have equipped him to develop...

877-838-8464
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