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Post-Pandemic Jury AnalysisTIDA Newsletter - Spring 2020

Post-Pandemic Jury Analysis

TIDA Newsletter - Spring 2020

By: Floyd Cottrell, Cottrell Solensky P.A. and Dr. Bill Kanasky, Courtroom Sciences, Inc.

In the 1939 film The Wizard of Oz, Dorothy famously states, "Toto, I've a feeling we're not in Kansas anymore." In 2020, Americas coast to coast have experienced unparalleled disruptions to their lives that will have significant financial, social, and emotional consequences. The key question is: how will these consequences impact their decision making in the deliberation room going forward.

On April 7, 2020 during his daily pandemic briefing New York Governor Andrew Cuomo made the following comment in reference to the availability of hospital beds in New York City:

“And then, we have the overload relief, which is the Javits Center, 2,500 beds and the U.S. Navy ship Comfort. The U.S. Navy ship Comfort had 1,000 bed capacity, it was originally for non COVID patients. What wound up happening was, we don’t really have non COVID patients. Closed down society, there’s fewer traffic accidents, crime is down, so the original plan, which was the Comfort would take non COVID cases from the hospitals, didn’t really work because the hospitals didn’t have non COVID cases”. The coronavirus has brought us into a Ball-and-Keenan utopia of maximum safety where there are no truck accidents because there are few other vehicles with which to collide. There are fewer slip/trip and fall accidents because of capacity restrictions at local businesses. How will jurors – at that far-distant time when jury assemble rooms are deemed safe – react to this unwanted sociological experiment with absolute safety? Will their assessment of risk change? Will the argument that the safest truck sits parked gain new strength? These important questions remain unanswered.

The trucking industry most likely earned significant well-deserved good-will from a public appreciative of the dedication displayed in bringing vital goods to shelves despite the risks to the health of the drivers and their families. It remains to be seen whether that good-will endure after normalcy returns and memories fade. Similarly, it remains to be seen whether the experience of nationwide lock-downs changes calculations of risks and benefits. At this moment, it is impossible to predict what long-term effects – if any - the pandemic experience will have on juries. Courtroom Sciences, Inc. is conducting a multi-city survey to determine how the pandemic has affected jury attitudes. It is possible that themes currently resonating can be resurrected by our witnesses in a counter-narrative to the Reptile, perhaps by a reminder that during quarantine, service to the community was held a higher value than personal safety. However, the benefits of the positive public feelings towards the trucking industry may be short-lived, or even non-existent in traditional “judicial hell-holes,” as so many jurors have very short memories and a “what have you done for me lately” attitude towards corporate America.

Meanwhile, we are all participating in an ongoing debate in the public forum on how much risk we as individuals are willing to tolerate. We see even with our own law firms, companies, friends, families and neighbors different views on acceptable risk. There are some early-adopters of masks and gloves, who literally have not ventured outside since lock-down orders went into effect, order their food for at-home delivery, and launder their clothes after any exposure to outside air. Toward the other end of the spectrum are those who believe the lock-downs an over-reaction, eschew masks and gloves and advocate forcefully for relaxation of restrictions. Is inquiry on these attitudes appropriate voir dire? Would it be informative of the prospective juror’s tolerance of risk in general and predictive of outcomes in deliberations? Framed another way, would a juror skeptical or unsympathetic to the pleas of public health officials that personal shelter-in-place is needed for the protection of society also be resistant to Reptile arguments that the jury must consider larger issues than the facts of the case before it and act to protect the community?

The good news, is that in publications on debunking and defeating Reptile methodology (W.F. Kanasky, Debunking and Redefining the Plaintiff Reptile Theory, For The Defense, Apr. 2014; Early Anti-Reptile Tactics May Save Millions of Dollars, Trucking Industry Defense Association (TIDA) Spring 2019 Newsletter; W.F. Kanasky and G. Speckart, The Nuclear Verdict: Old Wine, New Bottles, For the Defense, April 2020), Kanasky and others have shown that Reptile tactics work not because of mysterious juror mind-control power, but rather a lack of preparation and aggressive counter-attack measures by the defense in discovery and trial that result in nuclear verdicts and settlements. Reptile is, and should remain, beatable if defense legal teams implement early anti-Reptile tactics to derail plaintiff’s Reptile efforts (W.F. Kanasky, Derailing the Reptile Safety Rule Attack (2016), Ironically, the current “pause” in litigation has allowed the trucking/transportation industries two huge opportunities:

1. the ability to redefine their identity to the public eye and

2. the time to re-evaluate how they approach litigation in an effort to decrease the occurrence of devastating nuclear verdicts.

This is the perfect time for the industry to unite on these two fronts, but that will require extraordinary levels of communication and thought-sharing that the defense bar has notoriously struggled with for decades.

Clearly these are issues to be examined and considered. We look to our jury consultants for guidance and expect many of these questions to be answered as their research progresses.

About the Authors:

Floyd G.Cottrell

Floyd G. Cottrell was born in the Bronx, New York and is graduate of Fordham College (B.A. 1980) and Fordham University School of Law (J.D., 1983). He is admitted to practice in the States of New York and New Jersey; the United States District Court for the Southern and Eastern Districts of New York and the District of New Jersey; The United States Court of Appeals for the Second and Third Circuits; and the United States Supreme Court. Mr. Cottrell has over 70 verdicts to his credit. He is certified by the New Jersey Supreme Court as a Civil Trial Attorney. He is certified as a Civil Trial Attorney and Civil Litigation Specialist by the National Board of Trial Advocacy. He is a Fellow in the Litigation Counsel of America. He is a Master, past Program Chair (2003-2004), and Past President (2007-2008) of the Brennan-Vanderbilt Inn of Court, Essex County, New Jersey. Since 2016 he has been on faculty of the Claims & Litigation Management Alliance Claims College – School of Transportation.

Dr.Bill Kanasky

Dr. Bill Kanasky is Senior Vice President of Litigation Psychology for Courtroom Sciences, Inc. and a nationally recognized expert, author and speaker in the areas of advanced witness training and jury psychology in civil litigation. He consults on more than 200 cases annually in the areas of defendant witness training, jury decision-making research, and jury selection strategy. His empirically based consulting methods are specially designed to defeat plaintiff “Reptile” strategies, which have resulted in billions of dollars of damage awards across the nation. He earned his B.A. in Psychology from the University of North Carolina at Chapel Hill, and his Ph.D. in Clinical and Health Psychology from the University of Florida.

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