In part 1 of this topic, we discussed how counsel and claims professionals must consider juror perceptions and the mental state of jurors in their litigation strategy for civil jury trials. In this second part, we discuss the relevance and impact of Reptile Theory, the mental state of witnesses, and the importance of predictive jury selection in civil jury trials. 

Role of Reptile Theory

The Reptile Theory has been a serious concern among civil defense teams for over a decade. However, there is a renewed enthusiasm for advancing and perfecting reptile tactics among the plaintiff’s bar, with many attorneys claiming that jurors will be even more susceptible to reptile approaches as result of living through the COVID-19 crisis. Currently, there is little empirical data to definitively support or refute this prediction. Although some circumstances of the COVID-19 crisis may prove more favorable to plaintiff reptile attorneys, defense attorneys can also use jurors’ COVID-related experiences to their advantage.

There is no doubt that corporate communications with consumers and the general public have vastly increased as result of the pandemic. Many of these communications unintentionally raise legal standards; for example, stating that employee and consumer safety is the top priority or that the defendant is doing everything possible to ensure the health, safety, and well-being of consumers and the community. Such language plays straight into the plaintiff reptile attorney’s hand and will be valuable ammunition at both deposition and trial. In addition, repeated exposure to such language can increase the likelihood that jurors will apply these unattainable rules and standards to evaluate corporate defendants. Small business owners are also susceptible to reptile attacks, especially if they publicly over-promised to customers or employees during the COVID-19 crisis. 

We have attended presentations during which some consultants and attorneys have cited strong juror agreement with reptile-type statements and rules in recent questionnaires as evidence for increased susceptibility to reptile tactics. In our own survey, 95% of participants agreed that “Nothing should be more important to a corporation than the health and safety of employees and the community.” However, a vast majority of mock jurors (90% or greater) participating in Courtroom Sciences mock voir dire or focus group projects also endorsed reptile-type statements pre-COVID. It is natural for jurors to automatically agree with statements such as “Companies must always put safety first,” “A company must never do anything that needlessly endangers an employee,” and “Companies should do everything they can to ensure the safety of its customers and the community.” Therefore, jurors’ current agreement with reptile statements and principles is not necessarily indicative of a substantial change.

The mental state of witnesses

Witnesses are just as susceptible to negative mental health issues as anyone else, and likely even more so due to stress and anxiety regarding their upcoming testimony. Given the emergence of even more aggressive plaintiff tactics, proper and thorough witness training is now even more critical in promoting favorable negotiations and trial outcomes. Time must be made for personal, informal introductory meetings and conversations to assess witnesses’ vulnerabilities and psychological barriers to withstanding opposing counsel’s attacks and effectively communicating with the jury. Corporate representatives and those in mid to upper management positions in particular often strive to present themselves as positively as possible when interacting with attorneys. This “brave face” approach could be highly detrimental to your case if it is not identified and addressed early, particularly prior to deposition.

The consequences of failing to properly assess a witness early on can be disastrous as emotional, behavioral, and psychological issues can take time to address. Thus, it is advantageous to include a qualified Litigation Consultant as a member of the team in witness preparation efforts. Courtroom Sciences offers witness assessment and preparation services that can be conducted either in-person or virtually. 

Research-supported jury selection

Research has shown that many jurors are uncomfortable sharing their true perspectives during voir dire with other jurors present and are more forthcoming when provided with the psychological cover of a questionnaire.[v] Supplemental Juror Questionnaires (SJQs) may be especially valuable in revealing negative attitudes, beliefs, and experiences with health care professionals and entities among jurors who fear being perceived as insensitive or politically incorrect in publicly challenging the industry. Carefully and sensitively crafted SJQ items can also provide insights into jurors’ emotional stability, cognitive ability, and propensity for gut-level, rapid processing versus analytical processing.

Analysis of prospective jurors’ social media activity and online presence is critical in jury selection decisions and is typically more rewarding for defendants compared to plaintiffs. This is because jurors who generally profile as more “pro-plaintiff” are more likely than their counterparts to post frequently on social media platforms and to allow public access to these posts. In addition, studies show that most Americans report more frequent social media use since the pandemic, with about half of those surveyed reporting that they post more frequently than before the COVID-19 crisis.[vi] It is ideal to have a list of prospective jurors ahead of time but not necessary; Courtroom Sciences Litigation Consultants regularly partner with our licensed background investigative team to provide juror data, insights, and selection recommendations in “real time” the morning or afternoon of jury selection.

Conclusion

In addition to the factors noted in this article, there are many other factors for the defense to consider when facing a civil jury trial in the COVID era. These include (but are not limited to) case strength, case complexity, recent public health developments, publicity surrounding specific industries and companies, the assigned judge, and deliberation dynamics in an era of increasing polarization. Including a qualified Litigation Consultant as a part of the team can greatly reduce the burden on trial attorneys by allowing them to focus on the legal aspects of the case while the Litigation Consultant focuses on the psychological aspects. Such partnerships can vastly increase the likelihood of positive trial outcomes and overall reduced litigation costs, especially given that plaintiff attorneys are increasingly conducting pre-trial research and retaining their own consultants. 

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[v] Seltzer, R., Venuti, M. A., & Lopes, G. M. (1991). Juror honesty during the voir dire. Journal of Criminal Justice, 19, 451-462.

[vi] Wold, S. (2020). Covid-19 is changing, how, why, and how much we’re using social media. Digital Commerce 360. Available at https://www.digitalcommerce360.com/2020/09/16/covid-19-is-changing-how-why-and-how-much-were-using-social-media/