Trial Magazine

This has been hard. I have felt strong emotions during the pandemic—shock at the onset, sadness for the dead and sympathy for their families, and fear for the future. But through it all, AAJ has been with us every step of the way.

Past generations of trial lawyers have also dealt with adversity and times of crisis, and our trial lawyer community has always prevailed by focusing on how to best represent our clients. For me, AAJ lifts us up, makes our jobs easier, and brings hope to us all. I am so grateful for our association.

Practicing law during the pandemic brought many changes and challenges—I would like to share some of my observations from this time. I’ve found that important courtroom safety precautions, such as masks and social distancing, can make it difficult to assess jurors’ demeanor. This can affect our ability to advise clients on the likelihood of success at trial and influence our assessment of whether to settle a case.

I also believe that the jury pool may be desensitized to corporate negligence and its victims by the catastrophic loss of life in the pandemic. Through reading jury questionnaires, listening to local counsel, and talking to jurors, I sense that the heavy death toll has potentially numbed jurors’ empathetic capacities. Conversely, I am seeing increased juror sympathy for “essential workers.” Regardless, we must remind jurors that our clients are real-life human beings and not mere statistics.

Also, some judges are requiring that jurors be vaccinated, which could further impact the makeup of jury pools in our cases. And some of these vaccine requirements may be challenged. Clearly, we are living through a very fluid situation, and my observations are anecdotal. That’s where AAJ’s essential resources come into play—providing us empirical research and practical tools to proceed in any environment.

The Robert L. Habush Endowment is funding COVID-19 jury research led by AAJ members Greg Cusimano and David Wenner to assess the pandemic’s effect on juror beliefs, perceptions, and decision-making and to provide tools for plaintiff attorneys to make wise choices about which jurors will improve the probability of prevailing and helping our injured clients. Their findings are available in a series of AAJ Education webinars, as well as education programs held at state trial lawyer associations nationwide. To learn about changing juror attitudes, new juror categories, and how each group reacts to liability, damages, and expert witness credibility, visit www.justice.org/pandemicproject to access the recordings.

Greg and David also summarized their findings in this month’s Trial (p. 18). Plus, this issue contains articles on connecting with jurors, including conducting virtual focus groups (p. 30) and presenting damages in opening statement (p. 40).

AAJ Past President Tobi Millrood appointed a Presidential Task Force on Civil Jury Trials in the Era of COVID-19. Led by AAJ Past President Ken Suggs, this task force developed education programs and complimentary Litigation Packets (such as A Guide to Jury Trials During the COVID-19 Pandemic). And AAJ State Affairs continues to track court orders related to jury and bench trials. To access these resources, visit www.justice.org/pandemicproject.

I also recommend purchasing AAJ Past President Lisa Blue’s excellent book Thinking Outside the Box Inside the Courtroom: Voir Dire (www.justice.org/voirdirebook). And I encourage you to join the Jury Bias Litigation Group, which provides the latest research on minimizing the effects of jury bias.

With AAJ’s support, I am truly hopeful for the future. Our community remains unbowed and resolute. We may not be there yet, but the end is in sight, and we will prevail in the fight for our clients’ rights and civil justice. Thanks for everything you do for AAJ.

Navan Ward Jr. is a principal at Beasley Allen Crow Methvin Portis & Miles in Atlanta and can be reached at navan.ward@justice.org.