Civil justice. Cross-section
| Author | Matt Reynolds. |
| Pages | 19-20 |
National Pulse edited by
BLAIR CHAVIS
blair.chavis@americanbar.org
CIVIL JUSTICE
Cross-section
Pandemic-era challenges spur civil litigators to shift approach
to representative juries
BY MATT REYNOLDS
I
n November, New York federal
judge Valerie E. Caproni consid-
ered whether to allow an unvacci-
nated juror inside her courtroom
in an employment retaliation case.
Over the objections of the pro se law-
yer-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 represen-
tative 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,” Her-
rera says.
Jury experts have long scrutinized a
system in which juries aren’t sufcient-
ly 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-per-
son juries in civil cases. In addition,
nonunanimous civil verdicts, which are
allowed in one-third of states, “under-
mine the robustness of deliberations”
and quiet dissenting voices, according
to Paula Hannaford-Agor, director of
the Center for Jury Studies at the Na-
tional Center for State Courts.
But the ever-evolving nature of
the pandemic adds another layer of
complexity.
Since some courts returned to in-per-
son 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 afliation, 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 lead-
ing to more defense verdicts and hung
Illustration by Sara Wadford/Shutterstock
ABA JOURNAL | APRIL–MAY 2022
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