Trial Magazine

In 2020, as part of a project funded by the AAJ Robert L. Habush Endowment, we began researching how the COVID-19 pandemic has impacted juror attitudes and behavior. The investigation summarized in this article included seven surveys, 14 focus groups, and two email surveys of trial lawyers from early 2020 to the fall of 2021.

The focus groups provided an in-depth exploration of jurors’ minds and issues amid COVID-19, and the surveys corroborated and clarified the focus group data and permitted finer “thin-slicing”¹ of juror attitudes to assist with jury selection. Thin-slicing refers to making judgments from small chunks of data or brief exposure to a person.² The research uncovered pandemic-driven attitudes and permitted thin-slicing of conservative jurors into distinct, precise categories, rather than painting all of them with broad brushstrokes. And the research further exposed juror attitudes that enabled sorting of potential jurors into groups and framing arguments around their values.

The research is ongoing, but early data provides tools for making wise choices about jurors and indicates how current political divisions and views about the pandemic affect how different jurors may approach a case. Further, the data has shown that some cases may transform the traditionally unacceptable jurors into pro-plaintiff jurors because of attitudes they hold toward certain defendants.

3 Distinct Ideological Groups

It became apparent early in the investigation that the public perceived the pandemic through partisan lenses. The pandemic began three years into the Trump presidency, during which there was a constant drumbeat of rhetoric that divided Americans. Moreover, how the public perceived the pandemic determined their emotional and behavioral responses. It also determined how people perceived pandemic risks. In turn, that risk assessment guided the use of masks, the willingness to be vaccinated, and the perception of the government’s management of the pandemic.

The research identified three discrete ideological groups in the jury pool. Republicans fell into two groups: “Tribal Trump jurors” and “Moderate Trump jurors.” It was readily apparent that the two groups had different values, attitudes, and expressions of partisanship, and the data from the research enabled the sorting of potential jurors into separate categories. Tribals and Moderates viewed the evidence through different lenses. For instance, Tribals expressed more anti-corporate views than Moderates, who tended to look favorably on corporations. The Tribal jurors never find fault with Trump and are fiery supporters.

The Moderate jurors, in contrast, support Trump but with reservations. The Moderates behave like traditional fiscal and social conservatives. However, there is overlap in the two groups. Every American is tribal, but for categorization purposes, the Tribals best exemplify their tribe compared to the other groups—they were more committed to their in-group.

Tribals and Moderates behave differently on juries. In particular cases, there may be advantages to having Tribal jurors and striking Moderates. Also, understanding the difference between the two groups can help plaintiff attorneys frame persuasive arguments and choose and prepare experts.

The third group is the Progressive jurors, who are mostly Democrats and, on balance, more pro-plaintiff than the other two categories of jurors. These jurors think and behave differently from the other groups and are anti-Trump. They are more risk averse during the pandemic; more likely to be vaccinated; and more accepting of science, experts, and government regulation for public safety. As a rule of thumb, this group is, typically, the best for plaintiffs.

The research found that Republican jurors were more likely to agree that plaintiffs file too many lawsuits and that many lawsuits are frivolous. Moreover, both Republican juror groups require a higher level of certainty before returning a verdict in favor of a plaintiff, thus requiring a higher burden of proof.

Moderates are fiscally conservative, anti-lawsuit, and concerned about limiting damages awards. In contrast, Tribal jurors are more punitive and anti-corporate than Moderates. Tribals are more worried about the loss of their liberty than anti-lawsuit sentiment. They do not trust institutions, science, experts, elites, and government regulations that they perceive impact their freedom. Tribals also want Christianity to play a more significant role in guiding America by a margin of two to one over Moderates.

Tribals are more likely to believe that corporations lie. Also, they are not as financially secure as Moderates. Tribals are also quick to evaluate the politics of others as well as their credibility and think they are good at doing so.

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It is helpful to understand that while one may disagree with jurors’ worldviews, their beliefs are a matter of survival for them.

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The Pandemic’s Effect on Juror Attitudes

One notable finding of the focus group research is that jurors often do not agree on basic facts. There was little agreement on the risks of COVID-19; the efficacy of masks, testing, and vaccines; and, most notably, who should oversee the pandemic.

One may dismiss the deep divisions that exist in America as relevant only in the political domain, but the research has shown that the tribal divisions impact how jurors think about science, experts, elites, institutions, government, society, and other matters important to tort cases. Moreover, such divisions influence the emotional response jurors experience when evaluating such subjects. For instance, a defendant’s conduct may arouse feelings of anger in jurors from one group and not others. Conversely, jurors from a different group may feel frustration, not anger, while examining the same evidence. Every trial lawyer knows that anger is a more powerful motivation than frustration when judging liability and damages.

During the pandemic, lockdowns, business and school closings, and mask and vaccine mandates struck at the heart of some people’s notions of personal freedom and liberty. Tribal jurors blamed politicians, government officials, and elites for attempting to limit their rights as Americans and thus construed these limits as a loss of freedom.

The eminent psychologist Leon Festinger was famous for his theory of “cognitive dissonance,” which explains a person’s distress when confronted with contradictory thoughts or beliefs.³ To reduce cognitive dissonance, people must explain or justify their belief or behavior to themselves. Each justification of a belief strengthens it and makes it more resistant to change. Moreover, each reason increases the commitment. If the view is a shared tribal view, it is even more resistant to change because giving up or modifying the belief would threaten tribal membership and increase dissonance.

Tribal jurors in focus groups went to great lengths to justify their beliefs about Trump and COVID-19. It became clear that no matter how far-fetched the belief, the Tribals were immune to facts, reasoning, and analysis. Instead, they relied on endless rationalization to justify their beliefs. The need to belong to and hold consonant beliefs with their tribe was so strong that opposing views seemed to present an existential threat. It quickly became evident that it was impossible to change minds with facts and reasoning, and any attempt to moderate attitudes was fiercely resisted. Everyone thinks they see the world as it is, that they are reasonable, and if others don’t agree it is because they lack information or are biased.⁴

Tribal jurors will be sitting on juries in most jurisdictions. In many venues they will be the majority. Viewing such jurors negatively is counterproductive because people leak their feelings through nonverbal and para-linguistic cues.⁵ It is helpful to understand that while one may disagree with jurors’ worldviews, their beliefs are a matter of survival for them. They have come to such beliefs through considerable time and effort to understand their world. Moreover, these jurors can be pro-plaintiff in cases that conform to their beliefs and are consistent with their tribal goals—such as trials that include corporate or government defendants.

Rather than vilifying Tribal or Moderate jurors, a better practice is using and accepting the jurors’ attitudes.⁶ This technique was a foundation of the “bottom-up approach” of the Jury Bias Model™: It encouraged lawyers to accept the jurors’ attitudes and use them in telling the trial story. That can impact how a jury sees plaintiff lawyers.

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The original jury biases of personal responsibility, suspicion, and victimization have evolved and expanded. Now the biases include the anti-system bias, the personal freedom bias, and the mistrust bias.

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Evolution in Juror Attitudes

When we first studied juror bias in the 1990s, research revealed cultural norms that drove juror bias across the political spectrum.⁷ The 1990s exposed a newly developed anti-plaintiff bias, a suspicion of plaintiffs, and feelings that jurors felt victimized because of significant damages awards. The pandemic has supercharged juror attitudes and changed them in some ways.

In the 1990s, jury bias research showed that personal responsibility was the dominant norm jurors used to evaluate the plaintiff’s conduct. Often, it was the primary focus of discussion in judging the merits of liability. Jurors used it, albeit unconsciously, as an anti-plaintiff bias. If plaintiffs could not establish that they were personally responsible people and accepted the responsibility for keeping themselves safe, it often became an indelible stain that they could not overcome.

The personal responsibility bias is a narrower lens in evaluating plaintiffs today. It is still the primary bias that Moderates use to evaluate plaintiffs. Tribals have more pressing concerns and are less focused on personal responsibility. The harshness that Republican jurors once used against plaintiffs is now a lens that Tribals may use to judge the defendant’s financial responsibility for harm.

The suspicion bias also was mainly directed at the plaintiff. In the past, jurors were suspicious of plaintiffs and often attributed negative motives to why plaintiffs were suing and how they were injured. Past jury bias research demonstrated that jurors believed plaintiffs exaggerated their injuries, and this was influenced by messaging they received from tort “reformers.” Many jurors repeated such mantras in focus groups, jury selection, and post-trial interviews despite having no basis for or understanding of why they embraced the exaggeration schema. Today, the research shows that some prototype anti-plaintiff jurors focus their suspicion and mistrust on governments and elites.

Past jury bias research also showed that many jurors felt victimized by large verdicts in the form of higher costs for products, services, and insurance. The typical anti-plaintiff jurors feel victimized, but the Tribal jurors also direct their victimhood against the out-group,⁸ governments, and elites.

The original jury biases of personal responsibility, suspicion, and victimization have evolved and expanded. Now the biases include the anti-system bias, the personal freedom bias, and the mistrust bias.

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For Tribal jurors, practical experience is the key to trustworthiness and is more important than academic credentials.

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Exploring New Biases

The anti-system bias. Tribal jurors express an anti-system bias. It manifests in feelings of wanting to tear down American institutions.⁹ These jurors said that the system is no longer working for them and only serves the needs of opposing partisans, minorities, immigrants, and marginalized groups. Such feelings may cause jurors to hold anti-corporate, anti-institution, and anti-government biases. For example, in a medical negligence case, the Tribal jurors were more likely to believe a spoliation claim and that the hospital was lying about the missing evidence. Tribal jurors tend to be cynical and open to accepting that people lie to support their position.

Tribal jurors will more easily understand how such defendants could mistreat the average American unless, of course, such average American happens to be a minority, immigrant, or member of a marginalized group.

Psychologists have theorized that the mental burden of the pandemic has increased the anti-system bias.¹⁰ It was clear from the focus groups that the pandemic increased anti-government attitudes among Tribal jurors. Mask and vaccine mandates and lockdowns all drove the anti-government sentiment. These attitudes also made salient the need for personal freedom and liberty.

The personal freedom bias. People had two choices in response to COVID-19 safety measures. One option was to frame the measures as necessary to protect Americans, the other was as a threat to freedom. Most Progressive jurors believed the government’s job is to assess the risk and protect the public. Focus group participants who expressed such views were typically Democrats.

Progressives were customarily pro-plaintiff and rationalized the government’s response to COVID-19 as positive and necessary to protect the public. They justified regulations as necessary costs to save American lives and thought these measures were mild restrictions of freedom akin to wearing seat belts. Progressives were more likely to accept that COVID-19 risks were real and justified government efforts.

Tribal jurors believed Americans, not the government, should have the right to determine how much risk they accept. Survey data showed that one-third of respondents reported a surprising belief that the government should prioritize protecting freedoms over keeping people safe. It was common in focus groups to hear Tribal jurors say that mask mandates offend personal freedom. Others emphasized that what they love about America is the freedom we have as citizens and because of that freedom, the government cannot force people to wear masks. When the government mandated masks, business shutdowns, and lockdowns, Tribal jurors already were primed to feel these measures posed an existential threat to freedom, liberty, and their perceived way of life.

The Tribals felt restrictions were a threat to one’s freedom. When these jurors felt the government was usurping their liberty, they undoubtedly experienced psychological reactance, which is the emotion one feels when encountering a threat to one’s freedom.¹¹ Tribals rationalized that the government and other institutions exaggerated COVID-19 risks and deaths. In a recent focus group, a Tribal juror expressed resentment that a court could force mask-wearing and claimed that it would interfere with the ability to listen to the evidence.

Psychologists Daniel Kahneman and Amos Tversky demonstrated that people are loss averse.¹² In other words, people work harder to avoid losses than to obtain gains. Moreover, once a person owns something, losing it can feel like a significant loss.¹³ A consequence of the endowment effect¹⁴ and loss aversion is that people demand more for an item they own than they are willing to pay for the same object.

Most Americans cherish freedom. It seems COVID-19 restrictions have made freedom more salient for Tribal jurors than for others. For Tribals, freedom is central to their tribal memberships.¹⁵ Losing their freedom goes to the heart of their identity. As Kahneman and Tversky suggest in prospect theory, people are risk-seeking to avoid losses and willing to choose risky behaviors to prevent a loss. Combining the principles of loss aversion and confirmation bias suggests that Tribal jurors will seek and believe information proving that pandemic freedom restricting measures are scientifically unproven.

Framing jury arguments underscoring the importance of freedom should be persuasive to Tribals. For instance, in a products liability or medical negligence action, the freedom to choose the amount of risk a plaintiff accepts is often at issue. Thus, incorporating the idea that a person should have the right to select the level of risk in life confirms what these jurors already believe. It is always easier to persuade jurors of something they already believe than trying to convince them of something new.¹⁶ If a product manufacturer or physician fails to provide sufficient information to evaluate risk, can it be framed as a loss of freedom? If the concept of freedom or liberty is central in some jurors’ lives, can damages be framed as a loss of freedom? The research suggests these frames can be convincing.

The framing that resonates with Tribal jurors includes the following:

• Christian values
• individual freedom over government protection
• punishing opposing partisans
• the system is rigged to benefit certain groups
• the wisdom of the common person and common sense over elite-driven information.

The surveys reinforced that being free to choose was so critical that two in three respondents felt it was more important for doctors to inform patients about the treatment option than to provide the best treatment. People want sufficient information to make decisions about their health, the risk they encounter, and what is best for them.

The mistrust bias. Tribal jurors were more likely than Moderates to mistrust science, scientists, experts, elites, and the media. The mistrust bias is a refinement and update of the suspicion bias of the Jury Bias Model™. An examination of the mistrust bias provides valuable advice about choosing experts and framing testimony.

Social psychology has proven that people seek and favor science that confirms what they wish to believe.¹⁷ They will likely conclude that scientific studies that support their views are more credible and methodologically sound than studies reaching opposite conclusions. And people have greater certainty about their beliefs even after being exposed to scientific evidence on both sides of a position. Thus, jurors will become more convinced in a trial because they will accept the science that confirms their beliefs and discount conflicting evidence as less trustworthy.

During the pandemic, scientific experts appeared daily on news shows to help the public understand what was happening. As COVID-19 became political, some news outlets chose scientists who furthered their politics. The science that conflicted with one’s belief was often labeled as “fake news.” A Pew Research Center survey of over 10,000 Americans in April/May 2020 showed that trust in medical scientists has increased during the pandemic only among Democrats.¹⁸ That same survey showed that Democrats have a great deal of confidence in scientists over Republicans by a margin of two to one.

Previous research conducted by one of this article’s authors over a 20-year period initially showed that up to 34% of the respondents believed that paid experts are not as honest as other witnesses. That percentage declined over the years to 23% pre-pandemic. Since the pandemic, that trend has reversed and started increasing. Conservative jurors have long been suspicious of experts, but COVID-19 has brought a sea-change in how these jurors evaluate experts today.

Tribal jurors see themselves as objective when deciding which experts to trust. They also claim to rely only on facts and not bias in choosing the expert to trust. The big point is that many Republican jurors do not often agree with others about the facts. These jurors suffer from the objectivity illusion.¹⁹ Tribal jurors believe they are objective when evaluating experts and are unaware that they are biased in selecting the facts to construct the trial story.

So are there differences in the way Tribal, Moderate, and Progressive jurors evaluate experts? Yes, as the chart above from the research demonstrates. Tribal and Moderate jurors do not value the expert’s resume as much as Progressive jurors do. Progressives value academic credentials and perhaps are impressed that an expert teaches at an elite institution. Thus, choosing an expert with stellar academic credentials is desirable if trying to persuade Progressives. In contrast, if a jury has predominantly Tribal and Moderate jurors, exemplary academic credentials will fall on deaf ears. 

For Tribal jurors, practical experience is the key to trustworthiness and is more important than academic credentials. So, in choosing an expert in a jurisdiction with predominately conservative jurors, practical experience is far more decisive than elite academic credentials. In a medical negligence case, inquire about how much hands-on experience the expert has on the matter at issue. For instance, if the plaintiff has alleged that an error occurred in performing a surgery, Tribals will find the physician who has done many of these surgeries more credible than the academic physician from an elite medical school who primarily spends time researching and teaching.

Interestingly, Moderates value hands-on experience more than Tribal jurors do. Tribals find persuasive experts who testify consistent with what these jurors believe is common sense. Thus, it may be helpful for the experts to frame things as “common sense.” Using the bottom-up approach, discover how jurors define common sense in a case through jury research such as concept focus groups and surveys.

The research on this topic is ongoing, and a dynamic, changing environment exists today. As our understanding develops, learning and working with new ideas and concepts through research provides the vision, motivation, and resolution needed to serve clients and the public better.

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David A. Wenner is a partner at Snyder & Wenner in Phoenix and can be reached at david@jurybias.com. Gregory S. Cusimano is a partner at Cusimano, Roberts, Mills & Knowlton in Gadsden, Ala., and can be reached at greg@alalawyers.net. This article is a summary of research funded by the AAJ Robert L. Habush Endowment. The authors are the research co-chairs. The Endowment is a 501(c)(3) nonprofit D.C. corporation that supports judicial and academic education programs, innovative scholarship and research, and public education to enhance understanding and dialogue on civil justice and the right to trial by jury. Copyright © 2022 American Association for Justice^® and the AAJ Robert L. Habush Endowment. All rights reserved. Any use of the material, either in whole or in part, requires permission in writing from AAJ and the authors. To request permission, email trial@justice.org.

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Notes

1. Nalini Ambady & Robert Rosenthal, Thin Slices of Expressive Behavior as Predictors of Interpersonal Consequences: A Meta-Analysis, 111 Psychol. Bulletin 256274 (1992).
2. For more on thin-slicing, see Participant’s Handbook, The Art and Science of Love, The Gottman Institute (2004); Malcolm Gladwell, Blink: The Power of Thinking Without Thinking (Back Bay Books 2007).
3. See Leon Festinger, A Theory of Cognitive Dissonance (1957).
4. See Lee Ross, From the Fundamental Attribution Error to the Truly Fundamental Attribution Error and Beyond. My Research Journey, 13 Perspective on Psychol. Sci., 750–69 (Sept. 2018) (detailed discussion on the “objectivity illusion” and why people believe their perception of the world is accurate). Lee Ross & Andrew Ward, Psychological Barriers to Dispute Resolution, 27 Advances in Experimental Soc. Psychol., 255–304 (1995).
5. Paul Ekman & Wallace V. Friesen, Nonverbal Leakage and Clues to Deception, 32 Psychiatry J. for the Study of Interpersonal Processes, 88–106 (1969), https://www.paulekman.com/wp-content/uploads/2013/07/Nonverbal-Leakage-And-Clues-To-Deception.pdf.
6. See David A. Wenner & Gregory S. Cusimano, Combatting Juror Bias, Trial, June 2000, at 30; Advanced Techniques of Hypnosis and Therapy: Selected Papers of Milton H. Erickson, M.D. (Jay Haley ed., 1967).
7. See Wenner & Cusimano, supra note 6.
8. The out-group to such jurors includes minorities, marginalized groups, and anyone they perceive as members of opposing tribes.
9. See Andrey Simonov et al., The Persuasive Effect of Fox News, Non-Compliance With Social Distancing During the COVID-19 Pandemic, Becker Friedman Inst. for Econ., Univ. of Chicago (July 2020), https://bfi.uchicago.edu/wp-content/uploads/BFI_WP_202067.pdf; Wen Chen et al., Neural Bots Probe Political Bias on Social Media, Nature Communications (Sept. 2021); Chris Bail, Breaking the Social Media Prism: How to Make Our Platforms Less Polarizing (2021).
10. See Henrikas Bartusevicius et al., The Psychological Burden of the COVID-19 Pandemic Is Associated With Anti-Systemic Attitudes and Political Violence, 32 Psychol. Sci., 1391–1403 (June 2021).
11. Jack W. Brehm, A Theory of Psychological Reactance (1966).
12. See Daniel Kahneman & Amos Tversky, Prospect Theory: An Analysis of Decision under Risk, 47 Econometrica, 263–91 (1979).
13. Daniel Kahneman, Jack L. Knetsch, & Richard H. Thaler, Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 The J. of Econ. Perspectives, 193–206 (1991).
14. The endowment effect refers to an emotional bias generally causing individuals to irrationally value an owned right or object higher than its true value.
15. See Lilliana Mason, Uncivil Agreement: How Politics Became Our Identity (2018).
16. See Charles G. Lord, Lee Ross, & Mark Lepper, Biased Assimilation and Attitude Polarization: The Effects of Prior Theories on Subsequently Considered Evidence, 37 J. of Personality and Soc. Psychol., 2098–2109 (1979).
17. Id. See also Anthony Bastardi, Eric Luis Uhlmann, & Lee Ross, Wishful Thinking: Belief, Desire, and the Motivated Evaluation of Scientific Evidence, 22 Psychol. Sci., 731–32 (2011).
18. Cory Funk, Brian Kennedy, & Courtney Johnson, Trust in Medical Scientists Has Grown in U.S., but Mainly Among Democrats, Pew Research Ctr., May 21, 2020, https://tinyurl.com/yc77y8n2.
19. See Thomas Gilovich & Lee Ross, The Wisest One in the Room: How You Can Benefit From Social Psychology’s Most Powerful Insights ch. 1 (2015).