July 6, 2021
As the judicial system begins to emerge from the pandemic, one of the most pressing issues for the court system will be the ability to empanel juries. Some recent figures suggest that a mere fraction of those called for jury duty will actually appear. In July 2020, a study found that 46% of jurors said they would actively attempt to avoid jury duty all together.
Confronting COVID-19 Jury Biases in Medical Negligence Cases
There is also an added challenge for attorneys in medical negligence cases who need to determine if jurors have significant biases due to their experiences during the COVID-19 global pandemic.
Given the extensive media coverage and the current acrimonious political environment, potential jurors may believe that all health care providers could be viewed as “superheroes in the fight against COVID-19”, while others jurors may believe that health care providers cannot be trusted. As a result of personal pandemic experiences, other studies show attorneys are likely to face other jury biases relating to mental health, economic burdens, distrust in scientific data, perceptions of morality and questions of authority.
What Can be Done to Address These Jury Biases?
One way the courts can confront these issues in medical negligence cases is to allow detailed questioning revolving around a potential juror’s attitudes, preconceived notions and prejudices about the health care environment in light of the recent pandemic.
The challenge for the attorneys, of course, is to question the jury to find express, and often implicit, bias, without impacting the entire jury panel.
One analogous line of questioning that has been permitted by courts across the country involves tort reform and related media coverage on excessive verdict and challenges in recruiting qualified health care providers because of increasing insurance coverage. The courts have consistently held that allowing attorneys some leeway in voir dire can help avoid the biases that can taint a verdict and result in a re-trial.
In representing plaintiffs and their families, we recognize that the jury selection process is critical to a fair trial because it is important for the jurors to be open to the testimony of our witnesses and willing to believe in each client’s right to recover for the injuries that have occurred or the damage that has been done. While our focus in voir dire is different depending on the unique facts of each case, there are some standard questions that need to be asked and, in light of COVID-19, this new line of inquiry should be front and center.
Work with your appellate lawyer to make sure that you are prepared with clear and concise questions revolving around (1) jurors’ concerns about being in a live courtroom setting; (2) jurors or family members COVID-19 health history (diagnoses, vaccinations, long-term health issues); (3) jurors or family members in the health care profession; (4) loss of income or other financial impacts due to the COVID-19 pandemic; and (5) any mental health or moral concerns arising out of or increasing as a result of the pandemic.
If you are about to take part in a jury selection process for an upcoming medical negligence case and would like to discuss your options, please contact Debra P. Klauber (954.523.9922) or any member of our Haliczer Pettis & Schwamm legal team: