
Cottrell-Solensky, PA
POST-COVID JURY PERCEPTIONS OF ESSENTIAL RETAILERS
By: Floyd G. Cottrell, Cottrell Solensky, P.A.
The public health emergency created by COVID-19 has brought the concept of an
“essential worker” to national attention. The traditional “essential workers” are in the
medical field; those doctors, nurses, hospital staff and paramedics who directly
administer to the infected at great personal risk who richly deserve our recognition and
gratitude. But the larger category of “essential workers” includes those who provide the
food, housing and shelter society needs. “Essential retail” consists of the supermarkets,
grocers, specialty food outlets, and produce markets needed to keep us fed. The
workers are the cashiers, stock clerks, and managers at traditional brick-and-mortar
locations, as well as the growing group of delivery drivers for online purchases for home
delivery. According to the Food Industry Association (www.fmi.org), supermarkets alone
employ 4.8 million people.
In keeping people fed, there are unavoidable interactions with the public at relatively
close distances such as at check-out and in rendering customer assistance. Mitigation
measures have been added since the onset of the shut-downs, including universal facemasking,
occupancy limits, one-way aisles to reduce customer “friction,” hand-sanitizer
stations, floor decals to promote distancing, and wipe-down of “touch surfaces” such as
shopping carts, conveyor belts and debit/credit card touchscreens. Nevertheless,
working from home was never an option and risk reduction does not equal risk
elimination.
COVID has given us new tools to assess a prospective juror’s risk tolerance by learning
their behaviors during the crisis: were masks worn, where (and where not), was
unavoidable shopping done in person or online, etc. More specific to essential retail, are
there opportunities to burnish the image of the defendant-retailer if the jury can be
reminded of the essential role of the defendant store, the risks encountered in furnishing
essential services, and the challenges created in promoting safety for both employees
and public? In other words, will there be a “halo effect” and a higher level of goodwill
that could counter-balance the pandemic-related anxieties and stresses that probably
benefit the plaintiffs? More ambitiously, will retailers (as well as restaurants) have some
sympathy from jurors due to the existential threats created by the public health
emergency closures? We asked jury consultants Bill Kanasky, Jr. of Courtroom
Sciences for his thoughts.
Dr. Kanasky does not believe we should not automatically assume a halo effect or
sympathy response will ever occur. In fact, he cautions against making any pandemicrelated
assumptions. The financial and emotional impacts of the Covid-19 pandemic on
juror mindset and decision-making is largely unknown, therefore increasing the
importance of jury research studies, like mock trials and focus groups. In fact, one
could argue that the impact of Covid-19, combined with the highest levels of social
unrest, racial tension, and political animosity in decades, may permanently alter jury
decision-making patterns going forward.
As Dr. Kanasky explains, to prevent future nuclear verdicts and settlements in the
eventual post-Covid-19 era, retail industry defendants will have to invest into jury
research and consultation to accurately assess new trends in jury decision-making in
the trial venue. In the 1960’s, the United States and Soviet Union relentlessly battled in
the famous “race to the moon,” with the United States winning that race in 1969. For
the remainder of 2020 and into next year, the plaintiff and defense bars will have a race
as well; a race to develop new and accurate models of jury decision-making. The party
who wins this race will have an enormous advantage as trials resume in the post-Covid-
19 era.
Dr. Kanasky says it is generally known that prior to the Covid-19 pandemic, plaintiff
attorneys were more likely than defense attorneys to bend the rules to capture the
hearts and minds of the jury. There seems to be a greater conservatism among defense
attorneys, with comparatively less emphasis on winning the approval of the jury at any
cost. This trend of increasing boldness on the part of plaintiff attorneys (particularly
Reptile-trained) is one of several factors that have led to the staggering increase in
damage awards in the last two decades (Kanasky, W. F., Speckart, George The
Nuclear Verdict: Old Wine, New Bottles. (2020, April). For the Defense, 14-21.).
With much of nation’s civil courts having had “hit the pause button,” defense attorneys in
retail and other industries would be wise to use this critical down-time to reassess both
their discovery and trial tactics. Otherwise, the frequency of nuclear verdicts and
settlements may multiply in the post-Covid-19 era.