The Letter of the Law Amid COVID-19: Has the Pandemic Changed the Way Juries Use Logic and Checklists to Make Decisions?
Social science tells us that individuals reach decisions in distinct ways, often informed by their personality, background, perspective, and core values. One approach to processing information is identified as “Checklisting.” In a jury context, checklisters rigorously scrutinize the evidence and are frequently swayed by arguments that focus on technical and legal specifications rather than emotional factors. Checklisters generally do not waver from the legal elements when faced with plaintiff appeals to sympathy or out of concern for the plaintiffs’ welfare. For this reason, checklisters are often defense-oriented jurors.
COVID-19, however, presents a new theme of litigation in this post-pandemic world. Plaintiffs’ alleged damages have not been caused in ‘standard’ times, and pre-pandemic ‘standard’ law hasn’t addressed the havoc wreaked by the virus. Under these circumstances, will a checklister still resist appeals to sympathy?
As the effects of the COVID-19 pandemic have resounded across communities, businesses, and the courts, IMS has been conducting extensive research to help our clients gain insights and perspectives on the virus’ implications for their cases and trials. Through a series of twelve mock jury focus groups, convened this summer across three major venues, we explored a range of concepts and attitudes across seven litigation types in the context of COVID-19.
In this research, checklisters were present on most of the panels. Their responses to the various case narratives presented to them consistently revealed the tell-tale checklisting approach to processing information. But despite the presence of checklisters across the mock juries, we identified important nuances in their perspectives on these kinds of claims.
For example, checklisters were wholly dismissive of business interruption insurance claims related to COVID-19. They zeroed-in on specific policy language involving “physical damage or loss,” determined that such damage did not exist, and ruled in favor of the defendant insurer.
Conversely, checklisters tended to favor the plaintiff in lawsuits involving highly regulated industries. For example, they viewed nursing homes and employers as liable in the event of COVID-19 infections when the harm was preceded by documented violations of government standards or regulations for cleanliness or hygiene.
Do you want checklisters on your jury? Based on the above and research specific to your case, you may.
It is vital, then, to identify checklisters in your venire and determine the best approach to appeal to them. These jurors are frequently formidable and persuasive in deliberations. Even one checklister on your side can have huge implications for your chance at victory. The process of identifying them is best accomplished through a combination of a jury questionnaire, live voir dire questions, and background research.