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?
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.
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?
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.
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.
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.
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1 The formal examination of potential jurors as to their suitability to serve on a jury.