PREDICTING THE FUTURE
One of the most important roles of a lawyer is to anticipate what a jury will do with a particular set of facts. Although the vast majority of cases settle, counsel's assessment of how a jury will treat the evidence is a critical tool in deciding which cases should settle, and how much they should settle for. Whether counsel just took the deposition of a critical witness or obtained new information relevant to the case, a lawyer is constantly called upon to evaluate and ultimately predict what the jury will do with this information.
Civil jury trials that had been scheduled for April and early to middle May have been postponed, but the time will come when juries are once again convened and judges will say "counsel, you may call your first witness." When that time comes, it will be critical to consider what effect the COVID-pandemic may have on a jury's consideration of a case.
LIABILITY AND DAMAGES
In a personal injury or property damage claim, the two primary issues that a jury will be deciding are liability (is the defendant legally liable?) and damages (what damages flowed from any such liability?). Evaluating liability evidence is a relatively clinical process. As a result, there is no reason to believe that a jury's assessment of liability will be impacted by the pandemic.
A jury's treatment of damages, on the other hand, will potentially be influenced by the pandemic. Jurors are encouraged to draw upon their life experience when they consider evidence. The COVID-19 pandemic has been the dominant “life experience” of all future jurors, and it is impossible to imagine anyone who has not either been directly affected by the virus or seen stories of people who have suffered. Jurors who consider the damages being alleged by a plaintiff may do so with a vivid memory of these tragic stories, and this will potentially cause jurors to adopt a more conservative approach to damages than might have otherwise been the case.
IMPACT OF COVID-19 ON DAMAGES AWARDS
Imagine a personal injury case in which the plaintiff suffered a torn ligament in her knee, or perhaps a traumatic brain injury. Jurors who have been inundated with stories of people afflicted with the virus may have a hard embracing a plaintiff's claim of substantial "suffering" from an orthopedic or a neurological injury, even one that is serious.
This is not to suggest that jurors will award nominal damages simply because a plaintiff's damages may pale in comparison to some of the stories that they have encountered. However, the symptoms and alleged damages of plaintiffs with moderate and even severe injuries will likely be perceived as relatively insignificant when compared to the extreme suffering of so many others. Jurors may adopt a mindset that the damages of the plaintiff before them are not, relatively speaking, a "big deal", and this could very well lead to more conservative verdicts when jury trials finally do return.
POSITION OF STRENGTH
The financial uncertainty facing all of us will likely cause plaintiffs to be more motivated than ever to settle cases, and that should cause defense counsel to anticipate the effect that the current environment will have on the settlement value of these cases. If jurors adopt a more conservative approach towards damages because they perceive cases as less compelling in comparison to what so many other people are experiencing, the value of these cases will go down. This potential for more conservative verdicts could put insurers in a position of strength when trying to negotiate settlements of cases that have trials on the horizon.