OLD CASE. NEW JURY. HOW TRAGIC EVENTS AFFECT JUROR DECISION-MAKING

?I am a lawyer turned social science researcher and trial consultant. One of my primary interests is studying how world events influence the attitudes and decision-making process of jurors, and why they do. This allows me to understand civil jury verdict trends. I will not offer a recitation of the events of October 7, 2023.

Instead I submit to you, it marks a turning point in our collective thinking, and a shift in our cultural zeitgeist.

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As 2023 nears close, we have been living with the COVID-19 pandemic for over three years, though have been able to dispense with daily masking, testing, and distancing. The United States continues to move through a divisive time, politically. In civil litigation the defense bar has been grappling with our own set of issues involving the phenomenon of rising jury verdicts.

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I am often asked about rising jury verdicts, why it is happening, and whether is there an end in sight. I have discussed topics which include intentional plaintiff strategies such as the reptile theory, anchoring, and litigation funding to organic factors influenced by the spirit of our times. Organic factors include our evolving jury pool, the erosion of corporate trust, and the rise of populism.? Post-October 7, 2023, this conversation cannot continue without factoring the in the significance of its tragic events and aftermath.

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I wrote a similar article, March 17, 2020, predicting the COVID-19 pandemic would cause civil jury verdicts to rise when courts opened.? This proved to be correct. With respect to the events of October 7, my prediction is civil jury verdicts will continue to rise for most personal injury cases. I will give you the “why” as well as some things you need to keep in mind as you bring your pre-October 7 cases to post-October 7 juries. Do I have all the answers? No way. I don’t pretend to. We are not even two weeks post-October 7, and it is impossible to tell what is ahead and for how long. One thing is certain, the more we understand the questions raised, the more knowledge we have approaching trial.

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The Why: The Terror Management Theory and Juror Worldviews

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The Terror Management Theory posits, mass tragedies remind humans of the inherent unpredictability of life. Based on the work of existential psychologists, death transcendence is a fundamental component of the human experience as is panic, anxiety, and fear during a mass crisis or tragedy.

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This theory provides insight into how jurors manage existential anxiety caused by the uniquely human knowledge of our own vulnerability and mortality. Based on this theory, individuals can achieve protection from death-related concerns by finding meaning within their cultural worldviews. When death concerns are made salient, people are motivated to punish those who violate their worldviews.

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“These tragedies kindle our inner fears and sense of vulnerability and reinforce the fact that much of life still remains beyond our control. When this occurs, the brain’s innate fear center, goes on high alert and can incite a reaction that’s exaggerated, far greater than what is justified and needed. The result is that our fear takes hold of us, and relegating many of our other drives—pleasure, love, joy, faith, and connection—to the backseat. [i]

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On large scales, societies build symbols: Laws, religious meanings, cultures, and belief systems to explain the significance of life, define what makes certain characteristics, skills, and talents extraordinary, reward others whom they find exemplify certain attributes, and punish or kill others who do not adhere to their cultural worldview.? Adherence to these created "symbols” aid in relieving?stresses associated with the reality of mortality. [ii]

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When Terror Management takes hold, as it does during and after a catastrophic, collective experience (war, pandemic, terrorist attack, hurricane) it will affect how humans process information, and make decisions. The same humans who are witnessing and watching various catastrophic events and their aftermath unfold for hours on their newsfeeds, may be sitting in a jury box deciding your trucking/medical malpractice/sexual abuse/construction accident case. As per the Terror Management Theory, jurors will be in an aroused emotional state and punitive mindset.

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Which Cases Will Be Affected

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My prediction is most personal injury cases will be affected, as fear and anxiety are activated by the “hot head” amygdala portion of the brain, where the “reasonable logic” of the cerebral cortex takes a backseat. Does this “brain game” sound familiar? Of course it does! This process brought on by tragic events, are the same states of emotion which plaintiff’s attorneys attempt to arouse when they by making reptilian appeals regarding safety, and community protection.

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So which cases will see verdicts rise? My prediction is personal injury cases in general will see at least a slight increase, and other cases which follow certain paradigms will as well.? The key to verdict inflation in personal injury cases, will be cases with low or no contributory or comparative negligence, where jurors can place themselves or someone in their community member in the shoes of the plaintiff. This simplified analysis only differs from reptilian theory in that it is organic rather than synthetically produced in a litigation, like the reptile.

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Personal injury cases where there is a violent third-party act on a premises (a shooting at a hotel, a rape at an apartment complex) are likely to see the sharpest rise. Following October 7, a juror’s “terror management” will be more likely to be activated in a case involving violence. Look a little closer. . .see how I used a hotel or an apartment complex instead of a bar or a parking lot? There is a reason. Cases with a “my home is my castle,” safe haven theme, which mirrors the events of October 7 will be more likely to activate terror management as there is a greater expectation of safety in one’s home (or de facto home in the case of a hotel).

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Now you have my prediction and the reasoning, let’s discuss a few other areas where you will need to pay attention, raise questions, and engage in critical thought.

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Selection Bias

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Selection Bias is a systematic error where the sample size is not indicative of the overall population. For example, a pandemic 2020 in-person jury was likely not a true sample of the overall juror eligible population. There would likely be fewer elderly people on that jury, as COVID-19 was most dangerous to that cohort. Following October 7, in certain parts of the country, there is likely to be a selection bias depending on certain circumstances. For example, “a day of terror” was threatened a week after the attacks. Accordingly, in large cities which have been or will likely be a target for such an attack, there will be certain demographics of people who defer jury duty. For example, a densely populated city which has been the site of a terror attack, and has a large Jewish population there is likely to be a selection bias, as to who shows up for jury duty. Areas of the country where there have been mass shootings, there is likely to be a selection bias as well, should a “day of terror” be threatened. If you are trying a case a week where there are heightened alerts, be aware that you may not only not get a representative jury, but may get a fearful jury as well.

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Juror Group Dynamics: Leaders and Followers

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Another important consideration for post-October 7 jury trials is the group dynamic of the jurors. Trial consultants and lawyers learn to identify leaders and followers at jury selection, but this takes on more significance in a post-October 7 world. The days following October 7, we have seen the divisiveness in the country and in the world. Tensions and emotions around the world and in the United States are extraordinarily high. Life carries over into our deliberation rooms, and there may be serious clashes if leader jurors perceive other leader jurors to not share the same worldview. There may even be clashes based on religious or ethnic stereotypes of jurors. Followers may side with leaders holding similar worldviews. In a case where there is a violent component, there is a chance of the actual events of October 7 being discussed. It will be even more important following these events to pay attention to the selection/deselection of prospective jurors with leadership qualities.

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Bias and Stereotypes: Your Client and Witnesses

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Another consideration in post-October 7 cases are how your client and star witnesses are perceived. Jewish or Muslim clients or witnesses are likely to be subject to some unconscious biases on the part of jurors, depending on the facts of the case. Without enough case information, it is not certain how, but it a factor that should be considered.

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Juror Questionnaires

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In the days following October 7, we have seen unrest and protest on college campuses as well as students, and professionals losing employment offers, jobs, and funding for taking certain positions related to the unfolding events. Juror questionnaires should include a section of groups/clubs to which jurors belong, as this may give insight into how they perceive (or stereotype) parties or witnesses in a case.

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There are many more issues to unpack, and events are unfolding, and may continue for years. It is important to keep in mind, that major catastrophic world events can change the attitudes and worldviews of people in their everyday life which includes their every two/four/six-year trip to jury duty. We don’t know the answers right now, but we do know to raise the questions. Stick with me as I continue to raise the questions, which will get us closer to the answers.

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[i] https://www.psychologytoday.com/us/blog/5-cents-the-doctor-is-in/201304/the-fear-epidemic

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[ii] Arrowood, Robert B.; Pope, J. Brian (2014).?"Terror management theory: A theoretical perspective on origination, maintenance, and research".

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