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.