How will COVID-19 influence the way juries perceive medical malpractice defendants? Simply put, it’s complicated.
According to new research about juror beliefs and attitudes related to the pandemic, it’s a mistake to lean too heavily on the “halo effect”—a boost in general goodwill toward medical professionals during COVID-19—as a legal defense strategy.
COVID-related shifts in juror sentiment will be significant and enduring, and may surprise even those well-versed in medical malpractice defense, says Kevin Boully, PhD, a senior litigation consultant with Colorado-based litigation-consulting firm Persuasion Strategies. “COVID-related medical malpractice is going to look different from conventional medical malpractice, because people are reacting differently to COVID, and the way that juror characteristics line up with COVID reactions are different,” he says.
WHO WILL SERVE ON YOUR JURY?
As the public adapts to COVID-19’s impact on their lives, the feelings and beliefs of the people comprising medical malpractice juries are changing. While those changes are still underway, some patterns are emerging, notes Boully.
First, defendants and healthcare organizations should understand that COVID-related changes in juror sentiment will vary widely by location. People’s feelings about, and responses to, the pandemic vary greatly depending on their age, financial security, and political affiliation. “The differences that we are seeing are significant and meaningful,” says Boully. “Expect very different challenges based on your situation. It’s not just regional—it’s city to city and county to county.”
During the pandemic, prospective jurors experiencing financial hardship are less likely to attend jury duty, according to Persuasion Strategies surveys. These jurors are generally more concerned, sad, and anxious about the coronavirus, less trusting of the government, and more likely to have voted for Clinton in 2016.
Those living in metropolitan areas may be less likely to answer a jury summons. “We have seen a pretty strong, linear relationship with population density; people who live in more densely populated areas are much more likely to say they’re not going to go to jury duty,” says Boully.
As a result, medical malpractice juries may be more likely to be Trump voters, more likely to be unaffected by economic downturn, more likely to believe others generally act fairly, and more likely to trust that the government and corporations will respond appropriately to COVID-19.
STRATEGIES TO CONSIDER
Not surprisingly, the pandemic has produced a “halo effect” around healthcare providers that can benefit medical defendants—if they employ the right strategies. “Jurors love doctors right now, so how do we make the most of that?” says Boully.
Several months into the pandemic, jurors’ trust in hospitals and healthcare providers remains high and appears stable. In a July 2020 survey conducted by Persuasion Strategies, jurors reported more trust in healthcare professionals and hospitals than in public-health officials, corporations, and local, state, and federal government. By contrast, trust in government entities has decreased significantly during the pandemic, particularly for the federal government. In April, 49 percent of jurors said they distrusted the federal government to communicate truthfully with the public. By July, that figure had increased to 62 percent.
Along with high trust in hospitals and healthcare providers, research shows a shift toward social responsibility, says Boully. “Increasingly, people place higher importance on social responsibility; we saw an increase of seven to eight percent in the same sample of people since July of last year,” he says. “There’s an opportunity [for defendants] to demonstrate how their conduct is helping a greater number of people.”
As the pandemic wears on, jurors may be less willing to award big verdicts to medical malpractice plaintiffs. “The financial fallout of the pandemic may affect Americans for years, and that will influence the willingness of jurors to award big verdicts,” notes Boully.
A shift in juror attitudes around risk may also present an opportunity for medical malpractice defendants, says Boully. “We have been awakened to the idea that the future is truly uncertain and that we are all at risk if we get this disease,” he says. “There is risk everywhere for all of us right now. Defendants can take advantage of the idea that nothing is guaranteed. That’s a way that defendants can align with how people view life, and that is going to resonate more.”
STRATEGIES TO AVOID
Public perception of the virus itself may present a risk to medical legal defense teams in 2021 and beyond. As the public continues to absorb information about COVID-19 therapies, treatments, and outcomes, jurors may come to see COVID-19 deaths as more preventable than they did in the early months of the pandemic.
Persuasion Strategies’ July 2020 survey data shows a slight decrease in jurors’ willingness to align with the hospital in a scenario involving a COVID-19 death. In April 2020, 54 percent of respondents said they would lean in favor of the hospital in the hypothetical scenario involving a COVID-19 death. By July, that figure dropped to 49 percent, which may reflect jurors’ increasing belief that the virus can be treated successfully.
In general, jurors report less-intense feelings about COVID-19 as the pandemic goes on. According to Persuasion Strategies surveys, fewer jurors reported feeling anxiety and sadness about COVID in July 2020 than in April 2020. But this doesn’t mean that jurors feel more positively about the virus. Notably, in the July survey, fewer jurors reported feeling hopeful about the virus, and more reported feeling angry.
While this simmering anger around COVID does not seem to be tarnishing the halo effect just yet, it’s still important for legal teams to consider. “I think it’s a real risk to overtly overplay the halo effect,” says Boully. “We continue to see that relevance to the specific case is extremely important to jurors. Their internal detectors go off if they think they are being manipulated.”
This means that attempting to capitalize on a COVID-related halo effect when the scenario in question doesn’t involve COVID is a mistake. “If you’re not dealing with an active COVID issue but you’re telling jurors that you are, they’re not going to give you extra points for that,” Boully notes.
PREPARATION IS POWER
As changes in COVID-related juror sentiment continue to emerge, medical defense teams should prepare to engage in a more high-impact jury-selection process. And in that situation, having more information about prospective jurors is always a good thing. “Longer, more specific jury questionnaires are important because of the differences we see emerging,” says Boully. “The more you can know about your potential jurors, the better.”
Dr. Kevin Boully has been active in litigation consulting since 2001. He has a master’s degree in forensic psychology and doctorate in legal communication focus on persuasion, small-group influence, and jury decision-making. He is the coauthor of Patently Persuasive, a book on persuasion in intellectual property litigation published by the American Bar Association’s Section f Intellectual Property. As a current Board Member of the American Society of Trial Consultants and a past associate editor and advisor to the jury-research and courtroom communication publication The Jury Expert, Dr. Boully has published and presented on litigation and legal-persuasion topics across the United States.