“You reap what you sow.” That’s how one New York juror summed up his feelings about pandemic-era litigation, unable to hide his exhaustion with both sides of an insurance dispute in which both parties seemed to be shirking responsibility for their own behavior. The policyholder argued that the exclusionary language was abstruse; the insurer argued that it was not obligated to ensure the individual’s understanding of her own policy. The juror, meanwhile, was joined in his frustration by several others who were searching for either party to own its share of the blame.
As the global coronavirus pandemic unfolded, we conducted extensive research into how COVID-19 impacted the litigation community, ushered change across practice areas, and shaped the attitudes of jurors. Through a series of twelve in-depth focus groups across three metropolitan venues (Los Angeles, Houston, and New York City) and numerous subsequent mock trials, we have thoroughly explored attitudes and themes relevant to the concept of “personal responsibility” in a litigation context.
Across case types ranging from personal injury to securities fraud, we found that jurors wanted parties to take responsibility for their own actions.
In the past, we have seen jurors’ empathy override their sense that plaintiffs may bear responsibility for their own harm. After experiencing a pandemic, it seems that jurors are placing an increasing burden on both sides to acknowledge their mistakes.
Locus of Control
The underlying psychological mechanism that drives jurors’ allocation of responsibility is called “locus of control.” Based on a theory developed by Dr. Julian Rotter, it proposes that individuals perceive the world around them based upon a continuum of personal control.
That is, people with an internal locus of control believe that they have set their own courses, and they feel a strong sense of personal responsibility for their successes and failures. People with an external locus of control believe that outside forces beyond their personal sphere (such as the government, corporations, and social factors) have a disproportionate effect on their lives.
While this psychological trait frequently predicts juror verdict preferences in mock trial research, COVID-19 appears to have strengthened its application.
In our recent research, mock jurors believed that an extreme, unforeseen circumstance like the pandemic does not reduce or eliminate a party’s personal obligations. A cruise liner, for instance, is not excused for poor hygienic standards even though a virus like COVID-19 had not been encountered in recent times.
For many respondents, periods of heightened stress and confusion make it all the more imperative that parties be willing to assume personal responsibility for the course of events leading to litigation.
In other words, such jurors are applying a heavy-handed internal locus of control.
While COVID-19 has not stripped jurors of their empathy for plaintiffs entirely, jurors are more open to accepting that plaintiffs have brought harm upon themselves. For example, in an age discrimination case, jurors may be more receptive to arguments that an employee was acting improperly or unsatisfactorily in his role leading to termination. They would view such a plaintiff as causing his own harm by not living up to his responsibilities as an employee.
A Two-Way Street
Of course, many jurors are applying the same strict standard of personal responsibility to corporate defendants as well. In the above example of alleged age discrimination, jurors would likely hold the company liable if its defense focused entirely on the plaintiff’s actions rather than steps it took to avoid terminating the employee. In these kinds of cases, jurors’ blame on defendants is often exacerbated by factors like power and/or wealth disparities, the severity of the plaintiff’s harm, and whether a plaintiff’s alleged faults were mere technicalities (e.g., paperwork errors).
As a result, a mea culpa defense—whereby a party acknowledges its own missteps and focuses instead on causation—may be more effective than ever in certain types of cases. Such a strategy can reframe bad facts and bolster a broader theme of personal responsibility.
Consider a product liability case in which the plaintiff pounds the table with internal communications of concern as a “smoking gun” that the defense knew its product was dangerous.
From the plaintiff’s perspective, this can be a powerful prompt for getting jurors to consider personal responsibility as a theme. But an effective counter from the defense may involve owning the author’s words and re-shifting focus to the company’s response—additional testing, product adjustments, follow-up research, etc.
When paired with arguments about plaintiffs’ accountability in causing their own harm, mea culpa strategies can be very persuasive.
Inclinations toward personal responsibility varied widely among the venues in the research, and there are data to suggest the pandemic has strengthened the correlation between locus of control and political ideology. As the idea of “personal choice” has become more interconnected with conservatism, jurors in more conservative venues have proven to be increasingly influenced by personal responsibility arguments. Increased political polarization only intensifies this connection.
In our research, the theme of personal responsibility undergirded jurors’ general sentiments toward COVID-19 and their views on how society should move forward from the pandemic.
Among our Harris County, Texas, respondents, and likely among many citizens throughout the South and rural America, personal responsibility was especially important—people have a right to act individualistically, but they must accept the consequences of their own actions. This response contrasted sharply with most jurors in New York City, where respondents trumpeted the need to make choices that considered the circumstances of others.
Thus, an important part of analyzing a trial venue will be to examine not only political ideology but also vaccination rates and local mandates related to COVID-19. All might offer clues into how jurors would view personal responsibility arguments.
Moreover, as judges have weighed allowing only vaccinated jurors to serve, attorneys should be concerned about whether this results in a jury pool that skews potential jurors’ locus of control.
From a strategy standpoint, plaintiff and defense teams should be prepared to address personal responsibility (both their client’s/agent’s and the other side’s) in myriad case types.
The plaintiff’s team should acknowledge what the plaintiff could control but point out the context in which their client acted and emphasize what the plaintiff could not have reasonably known due to the defendant’s lack of transparency. In this way, counsel can highlight how the harmed party did everything within its power to avoid the harm, but they ultimately could not due to the defendant’s neglected obligations.
For instance, in insurance cases, many of our respondents believed insurance carriers purposely try to obscure policy exclusions, such that, even if a person were to read through the policy, legalese would obfuscate its meaning.
As a result, respondents thought it was unfair that individual policyholders were held accountable for something outside of their awareness; rather, insurers had a duty to explicate the limitations of their policies.
Meanwhile, defense counsel must strike a balance between expressing sympathy for plaintiffs’ struggles and firmly asserting plaintiffs’ responsibility to recognize the risk they agreed to assume, all the while demonstrating how the defendant took steps to reduce the risk of harm.
Many jurors will have experienced strife during COVID-19 and may empathize with a plaintiff, so it is crucial to avoid marginalizing pandemic-related struggles while still holding plaintiffs accountable for their own choices. For the above insurance examples, we identified no danger in the defense exhibiting empathy for the plaintiff. A show of empathy did not diminish the power of the argument that the plaintiff had an obligation to understand her own insurance policy and its limitations. For this approach to be effective, however, the defense must also acknowledge and accept its own areas in need of improvement.
The success of the above tactics heavily relies on rigorous jury selection practices at three key stages:
- First is understanding the venire in terms of political ideology, COVID-19 impact, and local government responses. A nuanced appreciation of the jury pool will aid in planning voir dire and supplemental questionnaire design.
- The second stage is in the courtroom itself; use voir dire to get jurors to discuss how they view personal responsibility and identify those who are least receptive to your themes. Background research into the jurors’ social media frequently reveals where jurors fall along the locus of control continuum.
- Finally, when the jury is seated, tailor your approach to specific jurors’ concepts of personal responsibility.
All in all, the net outcome of the trials and tribulations of the past two years may be that jurors expect litigants to adequately distinguish their own blame from harm truly caused by the other.
The theme of “personal responsibility” resonates because many jurors have been forced to introspect on their own financial and health struggles, and they judge others in this skeptical light. Jurors expect businesses to budget carefully and anticipate downturns; jurors expect individuals to take steps to safeguard their own health and wellness.
Trial attorneys should consider how their evidence and case narrative align within this modern mindset.
This article was originally published in USLAW Magazine Winter 2021/2022.
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