It has been over 2 years since the first COVID pandemic hit the United States.
We are currently on multiple variants of this virus. For most Americans, COVID
has impacted nearly every aspect of our lives: how we travel, work, shop, and
interact with each other.
In addition, COVID has impacted our supply chains. We are now seeing
inflation that has not been seen in this country in 40 years. This inflation is
having an impact on the retirement plans of many. Most importantly, COVID is
affecting how many people view the world.
For those who are trying cases by juries, this is very important. In the
last 2 years since COVID has hit, I have tried three cases. I had just
completed a trial in Atlanta, Georgia, the week before the COVID lockdown. The
juries and the way the juries see the world before COVID are totally different
from juries who have experienced life during a pandemic.
So, the question is how does the presentation of cases change? How do we try
our cases differently from the way we tried our cases prior to COVID?
Remote Trials
One change during the COVID period has been remote trials. A remote trial is
a trial where the judge, jury, and parties are in different locations and the
presentation is through a platform such as Zoom. As a general rule, most
attorneys have objected to the use of remote trials. Why? There are several
reasons. One is the ability to control the process. The second is the ability
to control what is seen. The third is the ability to read responses. And the
fourth is the ability to connect with jurors.
In one such case in Travis County, Texas, a lawyer was asked to record
problems he saw in connection with a remote trial. The following is what she
said.
The jury panel spanned over multiple screens, so you could not see them
all at the same time. Additionally, the court was apparently unable to
"pin" either the panel or the final jury, so the panel/jury were
never in numerical order, which was a bit insane when there were 60 panel
members, spanning multiple screens. To make it worse, the panel/juror's
boxes would actually move around so that the out-of-order panel was
constantly shuffled during voir dire.1
We were not 4 minutes past the judge telling the jurors not to Google or get
on the internet before a juror popped up to say that she had Googled to see
if the clinic that was a defendant was associated with the clinic she goes
to; she thought it was (it wasn't), and the judge had to admonish
everyone again not to get on the internet, etc. Shortly thereafter, I saw
another panel member doing stuff on his phone and probably a separate
computer, which he did not realize was visible on the Zoom screen. One
panelist (who did not make the jury) was clearly and obviously fast asleep in
her recliner for most of voir dire.
During the actual trial, many jurors were doing other things. One juror was
either ironing or cooking, and the judge had to make a general admonishment to
the jurors. One juror was clearly talking to someone else in the room with him
during some important testimony that the juror probably did not hear. The
observer saw the shadow of another person in the room across the wall behind
another juror one day as well. This meant the juror had other people in the
room and was talking to them. Many of the jurors were not looking directly at
the camera, so he did not know if they had the ability to connect the iPad to
an external monitor or not. But the technology that was employed made it
difficult to tell if they were watching the trial or were watching something
else on the iPads that were furnished. One juror was clearly working, and the
observer saw near her foot the printed pages that actually appeared to be
medical records of a patient.
At one point, an attempt was made to impeach a witness with prior deposition
testimony. An objection was made that the witness was entitled to read the
testimony first, but the court had not adequately set up a separate view box to
allow the witness to read the testimony without it being published to the
entire jury. Also, due to COVID-19 concerns, the clients had to be socially
distanced from their attorneys, meaning they could not effectively communicate
in real time during the trial and provide input into the trial decisions.
During the trial, there was a problem with many jurors falling asleep on
camera. Also, there were problems with the technology. On certain occasions,
the cameras did not have adequate audio feedback and it required the court
reporter to read back the testimony in a very flat tone. Throughout the trial,
the court was required to admonish the attorneys, the parties, and witnesses to
speak louder because the jurors and the court could not hear the testimony that
was being given.
Most attorneys have attempted to avoid these remote jury trials. However,
one positive benefit from the remote jury trial is that where there is a very
sympathetic plaintiff, having the sympathetic plaintiff appear by video as
opposed to in-person can lessen the impact of their testimony.
Reptile Theory
One theory that is very popular today is the Reptile Theory. This strategy
of plaintiffs' attorneys uses fear in dealings with juries, hoping to
elicit an attack response—like a reptile—to punish the defendant. This is a
theory that attempts to tap into certain areas of a person's brain
regarding their health and safety. The focus of the Reptile Theory is that we
have certain rules to protect us and make us safe and that when those rules are
violated, people get hurt or die.
In the past, the use of the Reptile Theory has been quite successful. Prior
to COVID-19, most people conditioned by the necessity of rule-following tended
to support this theory. But the question is, what is the impact of COVID on the
Reptile Theory?
Pro-Reptile Theory
I have been involved in several cases where the Reptile Theory was used. As
in most cases, the battle is generally won or lost in voir dire. With
the right jurors, almost any case can be won. With the wrong jurors, almost any
case can be lost. In most cases, it is the plaintiff who is using the Reptile
Theory and is looking for people on the jury who are rule-followers. It is the
plaintiff who is claiming that there were rules in place, and these rules were
put in place to protect people like the plaintiff. The defendant knew or should
have known about these rules. The defendant failed to follow the rules, and as
a result of the defendant's failure to follow the rules, the plaintiff was
injured.
During COVID, this type of thinking has repeatedly been reinforced by our
government. We have rules to protect us from COVID. These rules include social
distancing, wearing masks, and getting vaccinated. When people follow the
rules, they are safe. When people do not follow the rules, people get sick and
die. These concepts are deeply ingrained in many people today. Most people who
have these views are frankly hard to convince otherwise. And it is easier to
translate these views on COVID to a Reptile Theory. How do we identify these
people? Typically, you will not be allowed to ask potential jurors about their
own health issues. But you are allowed to ask about their views on various
issues. So, the following questions would be appropriate to ask the juror
panel.
- Who agrees with the social distancing mandate?
- Who believes social distancing will help stop the spread of COVID?
- Who agrees with the mask mandates?
- Who believes that mask mandates should be enforced on everyone?
- Who thinks that vaccinations have prevented the spread of COVID?
- Who agrees with employer mandates for vaccinations?
- Who agrees with mandates for vaccinations for healthcare workers?
- Who agrees with mandates for booster shots for employees and healthcare
workers?
- Who believes that mandates should be applied to everyone?
- Who believes that overall public safety and welfare overrules one
person's individual rights?
A jury panel comprised of people who answer "yes" to all these
questions would be very receptive to the Reptile Theory. They clearly believe
in rules, that people are injured when rules are not followed, and that we all
have a responsibility to follow the rules. This responsibility overrides what
individual rights we may have.
For the lawyers seeking to apply the Reptile Theory, these are the jurors
who are desired. The focus will be on the rule makers and how they are
important to society. They will focus on the fact that these rule makers are
needed to protect us from those who refuse to obey the rules.
Anti-Reptile Jurors
In the past, with a criminal case, it has been fairly difficult to obtain
anti-reptile jurors. We live in a society that has many rules and laws. These
rules and laws are designed to protect society and those living in it. It is
difficult to find someone who would say that having rules and laws to protect
society is bad. Even if they believe this, most jurors would not admit to it,
primarily because they do not want to be viewed as an anarchist or someone who
wants to have no rules for society.
But COVID gives lawyers opposing the Reptile Theory, typically defense
lawyers, a huge opening. It is an opening that has never existed before. It is
an opening that is no longer not politically correct. It is an opening
about one-half of those living in the United States subscribe to. In certain
states, like Texas, the percentage is even higher. It is the COVID defense to
the Reptile Theory.
It goes like this: Not all rules are made to protect us. Some rules are made
to make money for certain corporations and politicians. Some rules actually do
not protect us but do us harm. Sometimes the rule makers are only looking after
their own interests and not the interests of those who they are sworn to
protect.
The focus in this defense is on the rule makers—not so much on what the rule
is but why the rule was made. Was it made to benefit the public or the rule
makers?
The voir dire for an anti-reptile prospective juror goes something
like the following.
- Who believes that social distancing has made a significant difference in
the number of COVID cases?
- Who believes that wearing masks has protected the public from the spread
of the disease?
- Who believes that vaccinations have prevented the spread of the
disease?
- Who believes that all employers should require vaccinations for their
employees?
- Who believes that all healthcare workers should be required to be
vaccinated?
- Who believes all employees and healthcare workers should be required to
have boosters?
- Who believes that vaccine mandates should be applied to every
American?
- Who believes that there are tested medications that can alleviate the
symptoms of COVID that are being withheld from the public?
- Who believes that these tested medications are being withheld to further
the interest of people other than the patient?
- Who believes that persons with COVID should have every medication out
there available to them?
- Who believes that the rules keeping medications from those with COVID are
trying to protect those who are sick?
- Are the rules limiting the use of medications to treat symptoms rules to
protect those who are sick or rules to protect those who can afford more
expensive medications?
- Who believes that an individual should be told by the government what
they can do with their bodies?
- Who believes that individual rights should be subject to a decision by a
regulator?
- Who believes that corporations, such as vaccine makers, should be able to
require Americans to buy their products?
- Who believes that, before rules are made to be enforced, there should be
transparency and accountability of the rule makers?
- Who believes that unelected bureaucrats should be able to create rules
that govern how you live your life?
- Who believes that not all rules are adopted to protect us as
citizens?
- Who believes that some rules are adopted not for our safety but to make
money for large corporations?
- Who believes that some rules are adopted not for our safety but to
further some agenda of regulators?
- Before you decide if a rule is designed to protect the safety of
individuals, would you want to know who created the rule and why they created
it?
- Do you agree that someone can follow the rules and still be injured?
- My daughter was fully vaccinated and religiously wore masks, yet still
got COVID. Does that seem logical to other rules as well?
It should be noted that this strategy will probably have more success in
rural areas as opposed to urban areas. The rural areas in Texas, where I live,
were the first to open many of their businesses, they were the first to drop
mandates, and they were the first to start rejecting the vaccines.
These are people who are skeptical of rules and rule makers. People who have
had rules forced on them that they did not want. In this type of voir
dire for the anti-reptile jurors, the focus would be on the rule
makers—who they are and whose interest they serve. There are many people who
believe that the COVID rules were adopted not to help people but instead to
help big pharma and other large corporations. So, is there anyone on the jury
who can say every rule adopted will protect us? Would you agree that while some
rules are designed to protect us, some rules are not? Would you agree that some
rules are not about protecting people but about making large corporations,
certain regulators, and politicians rich?
The current political climate is the best opportunity that has ever existed
to challenge the rules and the rule makers. More people are open-minded than
ever before, are willing to accept that the rules being made are not
necessarily to protect the people, and are open to attack the rules by
attacking the rule makers. This cultural change can be seen in today's
juries.
Composition of Juries
COVID-19 has impacted most cases that are being tried by a jury. There are
certain age groups and ethnicities that are more conscious of COVID and the
need for protection, and these people are failing to appear for jury services.
In some jurisdictions, the jurors who respond to a summons are then asked
whether they have COVID-related concerns about being in a courtroom or a jury
room for an extended period of time. Attorneys in Kentucky, New Jersey, and St.
Louis say that the jurors who express these concerns are being dismissed for
cause; that is, they are dismissed without the prosecution or the defense using
one of their peremptory challenges.
In criminal cases, defense attorneys around the country say they've
noticed a new discrepancy since trials have resumed after being suspended at
the onset of the pandemic. COVID-conscious people are being excluded from
juries, either through self-isolation or dismissals by judges. The concern is
that juries will be primarily made up of people who do not necessarily believe
the government officials (e.g., police and their enforcement of rules).
Therefore, they would be more likely to side with the rule breaker or at least
be more sympathetic to them.
Conclusion
The COVID pandemic has changed the way we live and the way we do many
things. One impact has been on jury trials. The full extent of this change will
not be known for several years to come.