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Cross-section: Pandemic-era challenges spur civil litigators to shift approach to representative juries

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In November, New York federal judge Valerie E. Caproni considered whether to allow an unvaccinated juror inside her courtroom in an employment retaliation case. Over the objections of the pro se lawyer-plaintiff, she said no.

“Jury service is a civic duty and, while it can be inconvenient, it need not increase the risk of being exposed to a deadly disease,” Caproni wrote in her December 2021 opinion. She noted that other federal judges in New York, California and Oregon had excluded unvaccinated jurors. “There is nothing to suggest that the viewpoints held by the unvaccinated will not be adequately represented by the vaccinated.”

The coronavirus pandemic’s strain on the jury system is clear to civil trial lawyers. Some are even tailoring their trial strategies to account for how the threat of disease could be changing jurors’ attitudes toward serving and cutting into the pool of available jurors in ways that could sway their cases.

Mike Brown, a products liability defense lawyer with Nelson Mullins Riley & Scarborough in Baltimore, says there isn’t “a lawyer on the planet” who doesn’t want a jury full of people on his or her side. But at the very least, Brown wants an open-minded and representative jury so he can put on his case. “People who aren’t from the exact same background can convince people who might be sitting there to look at things differently. And the more diverse the jury, I think the better the opportunity for us to get a defense verdict,” he says.

Julie O. Herrera, an employment discrimination and civil rights plaintiffs attorney in Chicago, says although she may be representing a Black client in an employment discrimination case or a woman in a sexual harassment case, race and gender are not always at the front of her mind. She is more attuned to jurors’ backgrounds and life experiences.

“I’m looking for someone who I think is going to sympathize with my clients and give them money,” Herrera says.

Jury experts have long scrutinized a system in which juries aren’t sufficiently representative. The focus of some reforms has been on low juror pay and the inability of low-income people to serve. The trend toward smaller jury sizes is another concern.

In 1973, the U.S. Supreme Court allowed six-person rather than 12-person juries in civil cases. In addition, nonunanimous civil verdicts, which are allowed in one-third of states, “undermine the robustness of deliberations” and quiet dissenting voices, according to Paula Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts.

But the ever-evolving nature of the pandemic adds another layer of complexity.

Since some courts returned to in-person hearings, jury experts say judges are more likely to excuse people worried about health hazards or experiencing hardship. Shari Seidman Diamond, a professor at Northwestern University Pritzker School of Law, says this has the potential to distort the pool of available jurors. Vaccination rates also differ depending on political affiliation, with Democrats getting dosed at higher rates than Republicans.

Some experts think pandemic-era juries may be more likely to convict defendants. This theory stems from the belief that the jury pool could be distorted as judges excuse more people who are nervous about serving during a pandemic.

On the civil side, jury consultants say the makeup of panels could be leading to more defense verdicts and hung juries. Jury consultant Daniel Wolfe says until fall 2021, the makeup of panels appeared to be leading to more defense verdicts because jurors who were hesitant about serving or more “risk averse” were less likely to show up for duty, and judges were more likely to excuse them. He says those who fit this profile are people under 35, people with low household incomes and Democrats who may be more likely to side with plaintiffs. Conversely, older and Republican jurors may have been more likely to side with the defense. This may have skewed the pool in a way that was unfavorable to plantiffs, he adds.

However, Wolfe suggests this effect is short-term, and the trend seems to be reversing as more people get vaccinated.

Changing strategies

Kaspar J. Stoffelmayr is a trial lawyer with the firm Bartlit Beck in Chicago. In June, he filed a motion unsuccessfully challenging Ohio U.S. District Judge Dan Aaron Polster’s decision to exclude unvaccinated jurors from a major opioid trial against pharmaceutical companies, including Walgreens, CVS and Rite Aid. “In a case where you think it will be challenging to pick a jury in the first place, if you exclude 40% of the population, you’re making it that much harder to find six to 12 jurors,” Stoffelmayr says of the pandemic-era challenges he’s faced.

In December, the pharmacy defendants filed a motion for a new trial, citing in part the court’s decision to not allow unvaccinated jurors. In March, Polster denied the motion, saying he had the authority under the Jury Selection and Service Act to excuse jurors “likely to disrupt the proceedings.”

Allison M. Brown, a trial lawyer with Skadden Arps Slate Meagher & Flom in New York City, won three defense verdicts with Mike Brown (no relation) in 2021 for Johnson & Johnson over tens of thousands of claims that its talc-based baby powder causes cancer. The biggest change she has observed is jurors’ lack of patience when they have to wear masks and are spread around the courtroom so they have less contact with each other. “If you can make your point in one document as opposed to 10, jurors are going to expect that because they are giving you even more of their time and effort in this environment,” says Allison Brown, adding that there’s no one-size-fits-all approach to getting representative juries.

Her Skadden colleague Eben P. Colby, who wrote an October 2021 article for Bloomberg Law titled “Vaccination Status Impacts Jury Pools, Case Strategy,” says trial attorneys thinking about an objection will have to “go about building the empirical case to make the argument that that’s going to skew the pool in a way that’s unacceptable.”

Stoffelmayr adds that lawyers thinking of filing a motion should focus on how they want the court to pick a fair jury. “Judges aren’t going to be sympathetic to a motion that seems entirely strategic and about excluding or bringing in people that one side or the other feels will be helpful to them,” he says.

Beasley Allen lawyer Ted Meadows represented the plaintiffs in the Johnson & Johnson cases. He thinks the concerns are overblown and believes some defense lawyers are making challenges for a potential appeal.

“If I felt like there was a lack of representative jurors, certainly I’d speak up. I’ve done this three times, and I’ve not seen that. I’ve talked to other plaintiff lawyers around the country who have not seen that,” Meadows says.

Robert N. Scola Jr., a federal judge in Florida, seemed to echo this sentiment in a Jan. 18 order delaying a February trial after defense lawyers objected to his decision to exclude unvaccinated jurors. He noted that while the court did not believe the move was “legally impermissible, it nonetheless does not want to create an appellate issue.”

Others have taken the opposite approach. In January, federal judge Joshua D. Wolson said excluding those who are unvaccinated or not boosted from the jury pool—which in this case was almost two-thirds of Delawareans 18 or older—could interfere with the defendants’ right to an impartial jury in an upcoming criminal trial and the public’s right to serve.

Moving forward

Discussion on reforms to juror diversity and representation often center on race. A study published in the Journal of Personality and Social Psychology in 2006 suggests racial diversity on juries leads to more robust deliberations.

Peremptory challenges allow lawyers to dismiss potential jurors without saying why. Research shows prosecutors disproportionately strike Black jurors in criminal cases. A study from the judicial branch of Maricopa County in Arizona published last year suggests plaintiffs attorneys in civil cases are more likely to use peremptory challenges to exclude white people than defense attorneys, who were more likely than their counterparts to dismiss Hispanic and Black people.

In 2020, California passed legislation limiting peremptory challenges, and a bill targeting these challenges was introduced in Massachusetts last year. In 2021, the Arizona Supreme Court did away with the challenges in both civil and criminal cases.

Since the pandemic began, Mike Brown, who is Black, has seen a marked lack of racial diversity on jury panels. Studies have shown COVID-19 overwhelmingly impacts communities of color, whose members are more likely to get sick or die from the disease. Initially, Black Americans were getting vaccinated at a lower rate than whites, but this gap has narrowed over time.

Brown now tailors his arguments to appeal to people on the panel who may not share his background or experiences. He believes there’s not much courts can do about the diversity issue until people feel more comfortable about returning to the courtroom.

“It requires people to come into a big room full of people and be secure they’re not going to get sick,” Brown says.


In print and initial web versions of “Cross-section,” April-May, Shari Seidman Diamond and Paula Hannaford-Agor did not tell the ABA Journal that racially diverse juries are more likely to award higher damages to plaintiffs in civil cases.

The Journal regrets the error.
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