Few individuals would argue that COVID-19’s aftermath has left potential jurors in a heightened state of emotion. Our own research at Courtroom Sciences, Inc. has confirmed these assumptions as well.  This becomes problematic when considering that jurors in a heightened state of emotion have less cognitive resources available to devote to systematically analyzing case evidence. In these situations, jurors are often left to make “gut decisions” that ignore case evidence, leading to decisions being made with their hearts and not their heads. 

This overreliance on emotion has led to speculation that post-COVID damage awards may increase because jurors are going to feel more empathy and sympathy for individuals who have been wronged (see Olsan, 2020). However, there are others who believe that post-COVID damage awards may decrease because jurors may view the suffering of the plaintiff as relatively insignificant compared to the suffering others have experienced during the pandemic (Knight, 2020). Despite these conflicting views, one thing that is clear is that neither of these beliefs are firmly grounded in empirical evidence. Much of the discussion surrounding post-COVID damage awards has been speculative. To help remedy this shortcoming, I examined mock juror data we have collected across a wide variety of civil litigation cases pre- and post-COVID. 

Since all cases differ with regard to who the plaintiff is, who the defendant is, the type of injury, etc., I compared pre- and post-COVID damage awards by case type. For ease of analysis, I combined all cases that involved “physical injury” (e.g., product liability, Federal Employer Liability Act, and premises liability). I then compared these cases against ones involving “non-physical injury” (e.g., IP and breach of contract). This approach allows for an assessment of cases where jurors’ heightened emotions will likely lead to more susceptibility to Reptile theory’s tenets of “safety” and “protection” (i.e., physical injury) versus those cases that are less susceptible (i.e., non-physical injury). This is not to say that non-physical injury cases are not susceptible to Reptile theory tactics, though. This approach is just not currently as prominent in these cases.

As indicated in the table below, the results from the analyses showed that damage awards in personal injury cases significantly differed from pre- to post-COVID. While the post-COVID ($24,227,929) mean damage award was higher than the pre-COVID ($16,082,648) mean damage award, the median damage award was lower for the post-COVID group ($4,500,000) than the pre-COVID group ($8,000,000). 

The damage awards for non-physical injury cases also significantly differed from pre- to post-COVID. Prior to COVID-19, the mean non-physical injury damage award was $25,395,367, with a median of $10,000,000. After COVID-19, the mean non-physical damage award was reduced to $20,963,156, with a median of $2,000,000.

Pre- and Post-COVID Median Damage Awards by Injury Type

These findings suggest that, on average, there is a potential for larger damage awards in the post-COVID era. However, on the whole, the “typical” post-COVID damage award is lower than the “typical” pre-COVID damage award. This holds true across cases that involve physical injury and those that do not. 

It is not clear why these differences in damage awards exist; however, the findings do support the notion that jurors may be more apt to provide lower monetary awards in the post-COVID era because the plaintiff’s alleged injuries do not seem to be a “big deal” in light of  current events. Plaintiffs who have been injured during work accidents may not receive the same sympathy or empathy from jurors as they once would have because many jurors have experienced traumatic events during COVID-19 (e.g., deaths of loved ones, job terminations, and home foreclosures) and many of them did not receive compensation. Therefore, these individuals’ perceptions of an appropriate damage award have been altered. Such a mentality has been evident on several occasions during our mock trials. For example, we commonly hear jurors state, “I had something similar happen to me and I did not receive a large sum of money. Why should this plaintiff get a large pay day?” It appears that this mentality may become more prevalent in the coming months. 

Although I found these results to be surprising, they do not appear to be isolated to COVID-19. Recently, Swaner, Noffsinger, and Ezell (2020) examined trial verdicts from 1998 to 2019. Across this period, there were two significant events in American history – 9/11 in 2001 and the Great Recession in 2008. The findings from their study were similar to the ones I found related to COVID-19. Immediately following 9/11 and the beginning of the Great Recession, respectively, the median damage awards decreased from their pre-event levels. The results from this study further support the notion that after jurors have experienced a significant event in their lives, a plaintiff’s injuries may not appear to be as significant as they once might have been. However, the authors also found that the median damage awards returned to their pre-event levels after approximately a year. 

So, what do these results tell us for the future of litigation? First and foremost, they imply that these lower post-COVID damage awards are not likely to continue well into the future. Instead, these lower amounts are likely a blip on the radar and will return to their pre-COVID levels soon. However, we will continue to monitor future damage award data to confirm these assertions. As we gain additional data and insights, we will publish future publications.

Second, these results should not lead defense counsel to become complacent in trying cases under the assumption that the likelihood of nuclear verdicts has diminished. Moreover, there should not be an assumption that plaintiff counsel is aware of this data and will be more willing to settle cases. To the contrary, I have heard from several plaintiff attorneys that believe the plaintiff’s bar should come out of the COVID pandemic “swinging” and refusing to settle cases. It is clear that the plaintiff’s bar has spent COVID honing their arguments, sharing information, gathering pre-trial research data, and attempting to find new ways to increase damage award amounts for their clients. The defense bar may find that their time is best spent engaging in similar behaviors on behalf of their clients. Because, as the saying goes, “You don’t know what you don’t know.” Until clients know what jurors are thinking of their case prior to trial, they cannot make fully informed strategy decisions. 

 ------------------------

References

Knight, J. P (2020, April 9). COVID-19: Are more conservative verdicts a possible consequence of the coronavirus pandemic? Retrieved from: https://www.morrisonmahoney.com/blog/505-covid-19-are-more-conservative-verdicts-a-possible-consequence-of-the-coronavirus-pandemic

Olsan, M. (2020, July 23). Social inflation and the potential impact of COVID-19. Retrieved from: https://www.jdsupra.com/legalnews/social-inflation-and-the-potential-38098/

Swaner, S., Noffsinger, M., & Ezell, S. (2020, May 28). Juries & COVID-19: Learning from the past for trials in the future. Presentation at Bowman and Brooke LLP.