COVID Impacts Linger in Courtrooms, Often a Disadvantage for Defendants

GARDEN GROVE, California — Courts have reopened and trials have resumed, but the impacts of COVID-19 continue to linger in the judicial system, a panel of claims litigation experts said during the Combined Claims Conference on Thursday.

For one thing, jurors are far more sympathetic to plaintiffs if there is any indication that safety rules have been ignored, said Thomas P. Gmelich, a partner with the Bradley Gmelich + Wellerstein law firm in Glendale, California.

“I think COVID and the organization of the plaintiff’s bar has caused jurors to be desensitized to high verdicts and the value of money,” he said during a presentation on litigation trends as society emerges from the pandemic. “The numbers are crazy.”

Gmelich said the plaintiff’s bar has honed the skill of inciting jurors’ survival instincts, often called the “reptile brain,” to generate anger toward defendants and inflate verdicts. He said the COVID-19 pandemic has made jurors more mindful of public safety and more concerned about their own health, economic security and employment prospects.

At the same time, corporations have created an impossibly high bar for themselves by constantly communicating their dedication to protect public safety, he said. If a plaintiff’s attorney presents evidence that any safety rule has been violated — even a rule that is not relevant to the case — jurors may react with exaggerated outrage.

Safety measures imposed in court rooms to protect potential jurors from infection have also tilted jury pools toward people who believe in following rules, a personality trait that generally disfavors the defense, Gmelich said. People who dislike masking and strict social distancing rules tend to evade jury duty, leaving only the more fastidious citizens left to serve.

Defense attorneys have another common bias to overcome. “Jurors distrust corporations,” said panelist Anne Marie Stoerck, a claim consultant for CNA Insurance.

Stoerck said her job duties include sitting through trials and writing daily reports. She said her observations have made her a proponent of using mock juries to test out various arguments before a case goes to trial. They can be expensive, but are often worth the investment, she said.

Stoerck said courtroom COVID rules can also make it more difficult for defense attorneys to present their case. She saidin one recent trail, she noticed that the plaintiff’s attorneys wore mics so they could be heard through their face masks that are still required in Los Angeles County.

Face masks also make it harder for defense attorneys to “read” the jurors reaction to testimony, said Kathryn “Kamil” Canale, who is also a partner with the Bradley law firm.

She said COVID precautions have also forced the defense to use virtual witnesses who testify via videotape. Canale said video testimony doesn’t resonate with jurors. The defense attorney cannot intervene if a witness is droning on or wandering off subject.

Video depositions present their own problems. Often the defense attorney has to work against poor lighting or awkward angles. Gmelich said in one case, he received a deposition where the witness’ chin was prominently displayed, but obscured the rest of her face.

Gmelich said plaintiff’s attorneys follow a predictable script: They try to get a defense witness to agree with a good safety rule. Then they try to get the witness to admit a rule wasn’t followed.

Gmelich said defense attorneys need to carefully prepare for testimony before trial. Often the extra expense of a jury consultant is a good investment, he said.

Gmelich said in cases where there is clearly some liability, defense attorneys should offer the jury a potential amount of damages early in the trial to serve as an “anchor” that can counter the plaintiff’s overzealous demands.

“If no anchor is given, the jury is left with just a crazy number and zero,” he said.