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When Can Jurors Consider Evidence of Intoxication, Impairment and Mental Health Conditions?

OriginallypostedonJune27,2022onTexasLawyerMagazine.WrittenbyAttorneyQuentin Brogdon.

“The bar in a tort case for admission of evidence that a party was intoxicated or impaired, or a party suffered from a mental health condition is lower than many would imagine. If evidence raises a question about why a party acted as they did in connection with the occurrence and the probative value of the evidence substantially outweighs any danger of unfair prejudice, the evidence probably is admissible at trial.”

Evidence that a party was intoxicated or impaired, or a party suffered from a mental health condition is not, in and of itself evidence that the party was negligent in causing an accident. Instead, there must be some further evidence that the party’s intoxication, impairment or condition raises a question about why the party acted as they did in connection with the occurrence. And the probative value of the evidence must substantially outweigh any danger of unfair prejudice created by admission of the evidence.

In PPC TRANSPORTATION V. METCALF in 2008, the Tyler Court of Appeals held that the trial court should have admitted evidence that the plaintiff had been drinking alcohol before an automobile crash. The Tyler court reasoned that the evidence “was relevant in conjunction with evidence concerning his failure to steer his vehicle away from (the defendant’s) trailer, a matter concerning his vigilance, judgment, and reactions as a driver.”

In TICKNOR V. DOOLAN , an unpublished 2006 case, Houston’s 14th District Court of Appeals determined that a trial court improperly excluded evidence of a bicyclist’s consumption of alcohol when there was evidence that the bicyclist suddenly veered in front of a car, putting the bicyclist’s “vigilance, judgment or reactions” at issue.

In NICHOLS V. HOWARD TRUCKING COMPANY in 1992, the Beaumont Court of Appeals found that the trial court did not err in admitting evidence of a plaintiff’s marijuana use when it was offered as a possible explanation for why the plaintiff’s auto crossed the center line of the roadway just before the crash.

A similar analysis applies to the admissibility of evidence of mental health issues. Evidence of a party’s mental health condition is not admissible unless it provides insight into relevant issues in the case. For example, in GARZA V. GARZA in 2006, the San Antonio Court of Appeals found that evidence of a

mother’s personality and bipolar disorders was relevant to the issue of whether appointing the mother as the sole managing conservator of her children was in the best interests of the children.

But some courts of appeals have upheld exclusion of evidence of intoxication or impairment when there is no evidence connecting the presence of alcohol or drugs to a party’s impairment at the time of the occurrence. For example, in BEDFORD V. MOORE in 2005, the Fort Worth Court of Appeals held that evidence of a party’s use of methamphetamines should have been excluded because there was no evidence tying the presence of amphetamines to the party’s impairment at the time of the accident.

In JBS CARRIERS V. WASHINGTON in 2018, the Texas Supreme Court undertook a comprehensive analysis of the admissibility of evidence of a party’s intoxication, impairment and mental health conditions. In JBS , a JBS truck ran over the plaintiff, a pedestrian who was crossing the street as the truck made its turn. The trial court denied JBS’ attempt to introduce evidence that the plaintiff’s autopsy showed she had alcohol, cocaine and oxycodone in her body, and the plaintiff’s medical records showed a history of crack cocaine abuse, anxiety, paranoid schizophrenia and bipolar disorder. In an offer of proof, JBS’ medical expert opined that in the time period leading up to the crash, the plaintiff “walked in a steady pace without breaking stride, without speeding up or slowing down, walked right into the side of a tractor-trailer,” and the accident sequence “fits the scenario of a person who is not only impacted by medication but more likely is having an exacerbation of a severe mental condition particularly of the nature of schizophrenia paranoid type and bipolar disorder.”

The JBS court noted that courts of appeals have allowed evidence of a party’s use of impairing substances “if the evidence raises a question about why the party acted as he or she did in connection with the occurrence.”

The court noted that JBS’ medical expert testified in JBS’ offer of proof that the cocaine in plaintiff’s system “can sure impair you … to a reasonable degree of medical certainty … those things can contribute to mental impairment.” The court rejected the plaintiff’s argument that a showing of actual intoxication or impairment is a necessary prerequisite to the admissibility of evidence of drugs or alcohol in a party’s body, noting that at least one case had allowed the jury to consider evidence of liquor on a party’s breath without any showing of intoxication.

The plaintiff’s family argued that the evidence should have been excluded as prejudicial under rule 403 of the Texas Rules of Evidence, but the JBS court pointedly noted that the analysis should hinge upon whether the evidence was UNFAIRLY prejudicial. The court quoted from its holding in DIAMOND OFFSHORE SERVICES V. WILLIAMS earlier in 2018 that evidence is UNFAIRLY prejudicial only if it has an “undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.”

The JBS court disagreed with the plaintiff’s family’s argument that, because jurors viewed video evidence of the occurrence, evidence of drug use, alcohol use, and mental impairment had low probative value. The court reasoned that the video provided only a “one-sided view of the possible reasons for [the plaintiff’s] actions,” and the jury should have been allowed to hear the medical expert’s testimony because it contradicted the plaintiff’s family’s theory that the plaintiff walked into the street in response to hand motions that JBS’s driver directed toward the driver of a car blocking his turn just before he made the turn. The court determined that allowing JBS to introduce evidence of an alternative explanation for the plaintiff’s actions — her mental condition and drugs and alcohol in her body — would not have been UNFAIRLY prejudicial to the plaintiff.

The JBS court concluded that exclusion of the evidence was not harmless for two reasons. First, the court noted that the evidence

“directly related to [the plaintiff’s] state of mind and mental condition that resulted in her decision to walk into the street where and under the circumstances she did.” The only evidence that the jury heard as to those matters was opinion testimony from the family’s expert. According to the court, that testimony implied the plaintiff was not impaired and she saw defendant’s driver’s hand signal and “interpreted it as an ordinary person would have — as a direction for her to continue across the street.” Second, the evidence related to the plaintiff’s “state of mind and mental decision-making processes,” two things that “were crucial to the key issue of whether her decision to walk into the street met the standard of reasonable care.”

Three years after JBS , the Beaumont Court of Appeals decided CRAVENS V. ALISAM ENTERPRISES, LLC . In CRAVENS , the plaintiff died when his vehicle crashed into the side of a tractor-trailer turning in front of the plaintiff. A toxicologist testified that the plaintiff ingested marijuana three to four hours before the crash and the amount of marijuana caused the plaintiff to experience euphoria, possible hallucinations, decreased reaction time, cognitive dysfunction, and decreased ability to perceive the environment. The toxicologist also testified the plaintiff ingested methamphetamines less than nine hours before the crash, the level was “far beyond the therapeutic level,” and the effects included agitation, hallucinations, paranoia,

Q uentin B rogdon

slowed visual and auditory processing, and a decreased ability to perceive one’s environment. According to the toxicologist, the effects of the marijuana and the methamphetamines were additive and it was unsafe for the plaintiff to drive with the drugs in his system.

The plaintiff’s family in CRAVENS argued that the trial court should not have admitted the toxicologist’s testimony because the toxicologist could not tie the presence of the drugs to impairment at the time of the accident or to the cause of the accident. The Beaumont Court of Appeals disagreed, citing the JBS court’s holding that evidence of impairment can be relevant in conjunction with other evidence in helping a jury consider a party’s “vigilance, judgment, and reactions as a driver.” The Beaumont court also reasoned that, “expert testimony is not required to show a driver’s use of drugs or alcohol caused a collision because causation may be proved by circumstantial evidence.”

The bar in a tort case for admission of evidence that a party was intoxicated or impaired, or a party suffered from a mental health condition is lower than many would imagine. If evidence raises a question about why a party acted as they did in connection with the occurrence and the probative value of the evidence substantially outweighs any danger of unfair prejudice, the evidence probably is admissible at trial.

Quentin Brogdon is a partner in Crain Brogdon, LLP. He is a member of the national executive committee of the American board of trial advocates (Abota), and he is a former president of the Dallas chapter of Abota. He is a fellow of the international academy of trial lawyers, a fellow of the American college of trial lawyers, and a fellow of the international society of barristers. He can be reached at Qbrogdon@crainbrogdon.com.

The Empathy Deficit in Pajama-Clad Online Jurors

OriginallypostedonJune27,2022onTexasLawyerMagazine.WrittenbyAttorneyQuentin Brogdon.

Online jurors, some presumably wearing pajama bottoms not visible on-screen, have begun dispensing justice in the wake of COVID-19 and the near shutdown of traditional jury trials. The weight of commentary about online trials appears to favor online jurors. Proponents argue that the unprecedented nature of the pandemic and the resulting clogged trial dockets require bold new steps to get cases tried. Proponents of online trials also argue that online jury trials have some benefits over traditional jury trials and that opponents of online trials reflexively oppose them because of a fear of the unfamiliar and the non-traditional.

Critics of online trials take issue with the idea that the goal of unclogging trial dockets necessarily trumps the imperative to ensure that disputes are resolved fairly and justly. Critics also bemoan the loss of a diverse jury of the litigants’ peers in online trials, the loss of the ability to ensure that the court and the litigants keep online jurors’ undivided attention, and the loss of the solemnity of traditional jury trials in online trials. Some critics also worry about the potential loss of juror empathy in online trials. The loss of juror empathy is no small, peripheral issue. Juror empathy is at the heart of the magic of the traditional jury trial, and juror empathy affects defendants every bit as much as it affects plaintiffs.

What is empathy, and why would the potential loss of juror empathy in a jury trial be a cause for concern? Merriam-Webster’s Dictionary

defines empathy as “the action (or capacity) of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another … without having the feelings, thoughts, and experience fully communicated in an objective manner.” Empathy often is confused with sympathy, but they are distinct concepts. Sympathy is when someone shares the feelings of another, but empathy is when someone understands the feelings of another but does not necessarily share those feelings.

Videoconferencing platforms on the internet have existed only for about 25 years. Over thousands of years before the appearance of these platforms, our brains evolved to process in-person communications within shared three-dimensional environments, instead of within closed-off, two-dimensional videoconferencing environments that hamper perception and processing of non-verbal clues. Research consistently confirms that interacting through computers decreases the ability to form accurate assessments of people and decreases the ability to form meaningful bonds. Anything that interferes with the ability to assess and bond with others has the potential to negatively affect the ability of online jurors to empathize with witnesses and parties.

Pre-Covid studies of the effects of remote proceedings on the empathy of decisionmakers reveal a disturbing trend: decisionmakers demonstrate less empathy for those appearing remotely than for those appearing

in-person. For example, a study of Cook County, Illinois judges found that judges set higher bails for defendants appearing in court via video than defendants appearing in person. The Cook County study suggested that one possible explanation for the difference in bail amounts was the “dehumanization” of defendants appearing remotely. Studies also show that petitioners in immigration removal proceedings are more likely to be deported after video hearings than after in-person hearings. Other studies demonstrate that witnesses who appear by video are viewed as less likeable than witnesses who appear inperson. Although likeability is not the same as empathy, likeability certainly may affect the ability to empathize.

Two commentators who highlight the potential loss of empathy in online jury trials are law school professors Susan Bandes and Neal Feigenson. In “Empathy and Remote Legal Proceedings,” a draft law review article made available online in July 2021, Bandes and Feigenson conclude that “there is thus far no firm evidence that the remote nature of legal proceedings, in itself, reduces empathy for litigants, witnesses, or other participants in legal proceedings.” They nevertheless caution that “there are ample grounds for concern that remote proceedings may further disadvantage litigants who are already burdened by empathy deficits based on race, social class, gender, ethnicity, or other factors that may differentiate them from decision makers.”

Bandes and Feigenson hypothesize that empathy may be lost in online trials for eight key reasons. First, reducing the appearance of a party or witness into a small, headandshoulders video image renders the appearance less salient, and “the less vivid the stimulus, the less intense the response, empathic or otherwise.” Second, the compression and distortion of online views of participants “limit the opportunities for unconscious mimicry of others’ facial expressions of emotion, a recognized implicit path for empathy.” Third, studies show that the inability of videotaped participants, such as online trial participants, to make mutual

eye contact renders them less likeable and less intelligent in the view of observers, which may, in turn, affect jurors’ abilities to empathize with witnesses and parties appearing online. Fourth, the array of video frames on Zoom or similar platforms diminishes the participants in a sense by reducing them to mere squares in a larger grid, without any larger context. This interferes with jurors’ abilities to interact and adapt to subtle changes in the participants’ body language and facial expressions. Fifth, the inevitable lags and glitches in internet connectivity occurring in an online trial decrease empathy because of a recognized tendency in decision-makers to misattribute the negative qualities of video technology to the person they are observing. Sixth, so-called “Zoom fatigue,” the physical and mental exhaustion created by participating in online video interfaces, may also impede and distort empathy in online trials. Seventh, the absence of proceedings occurring in a physical courtroom may reduce empathy because “the arrangement of the physical courtroom frames and heightens participants’ performances of emotion.” Finally, the absence of “an offstage” – an area for the litigants’ family and friends – may also affect juror empathy. In a traditional jury trial, the plaintiffs’ family members or the nuns who are a part of the religious medical institution being sued, for example, may be in the courtroom. How will their absence from the online courtroom affect juror empathy? Negatively, no doubt.

In early 2021, Dallas County District Judge Dale Tillery tried an online jury trial and followed the trial with interviews of the online jurors. The answers given by Judge Tillery’s jurors support the idea that there may indeed be an empathy deficit in pajama-clad online jurors. Although the interviewed jurors were quite comfortable appearing as online jurors in a case in which they were serving as jurors, they preferred an in-person jury in a hypothetical case in which they were a party For example, one juror stated that the online trial “was easier for the juror,” but “if it was me on trial, I wouldn’t want it.” Even jurors who appeared to have no reservations about online trials sometimes qualified their

endorsements of such trials by making observations such as a statement that an online trial might not be appropriate for longer trials because “your mind might wander.”

Judge Tillery’s jurors who had served on previous in-person juries also noted important differences between the online trial and a traditional jury trial. The differences noted by the jurors certainly have the potential to negatively impact the ability of jurors to empathize with witnesses and parties. Judge Tillery’s jurors stated there were “more deliberations” in their in-person juries, and the online experience was “less formal” and “more casual.” Jurors noted the online experience had more distractions than an inperson trial, and a real trial “causes you to pay closer attention to what people are saying.” Deliberations changed as well. One juror

observed that online deliberations were different than in-person deliberations because online, “you waited to see if anybody else wasn’t going to jump in and say something,” and the online jurors waited to “make sure nobody was over-speaking one another.”

The jury is still out on online jury trials, but we now know enough to pause before rushing headlong toward an unqualified embrace of online trials. The probable empathy deficit in pajama-clad online jurors, standing alone, should be enough to cause us to hold back. Online hearings and trials admittedly have earned a new place at the table in our system of dispute resolution, but we should not force online trials on parties in criminal cases or large-stakes civil cases when the parties do not agree to their use.

A Closer Look at Limitations in Wrongful Death Cases

OriginallypostedonTexasLawyer,October2022.WrittenbyAttorneyQuentinBrogdon.

“Statutes of limitation in wrongful death cases can be confusing and seemingly contradictory. Limitations do not begin to run until the date of death in some cases, but limitations begin to run even before death in other cases.”

In RUSSELL V. INGERSOLL - RAND , the Texas Supreme Court summarized the limitations rule in wrongful death cases as follows: “If a wrongful death action exists, it accrues, not when the decedent was injured, but at his death, and the limitations period on that action begins to run at death. But if a wrongful death action does not exist because the decedent could not maintain an action in his own right immediately prior to his death, for whatever reason, then no wrongful death action ever accrues.”

Statutes of limitation in wrongful death cases can be confusing and seemingly contradictory. Limitations do not begin to run until the date of death in some cases, but limitations begin to run even before death in other cases.

In England, the Fatal Accidents Act of 1846, otherwise known as Lord Campbell’s Act, abrogated the harsh common-law rule that a person’s right to bring a tort cause of action died with the person. Most American states, including Texas, later passed their own wrongful death statutes modelled after Lord Campbell’s Act.

Texas’ Wrongful Death Law

Two potential causes of action now arise out of the wrongful death of a person in Texas: a survival cause of action and a wrongful death cause of action. Section 71.021 of the Civil Practice and Remedies Code allows the heirs, legal representatives and estate of a decedent to bring a survival cause of action “for personal injury to the health, reputation or person of an injured person” following the person’s death, and the section provides that the cause of action “does not abate because of the death of the injured person.”

Essentially, this is the cause of action that the decedent would have been able to bring if he had survived. Section 71.004 allows the spouse, children and parents of the decedent to bring a wrongful death cause of action for their separate pecuniary losses, mental anguish, loss of companionship and society, loss of inheritance and exemplary damages.

In wrongful death cases, there are two statutes of limitations that may come into play. There is one for the decedent’s underlying claim and one for the claims of the wrongful death beneficiaries. Confusion in determining whether limitation has run at the time of someone’s death arises because

“accrual” of the wrongful death cause of action does not necessarily begin on the date of the person’s death, and the running of limitations on the decedent’s underlying claims may bar the beneficiaries’ claims.

The date of accrual is simply the date when the plaintiff is first allowed to file suit and limitations first begins to run.

Section 16.003(b) of the Civil Practice and Remedies Code provides that a wrongful death cause of action “accrues on the death of the injured person,” but the interpreting case law may dictate an accrual date earlier than the date of death. In RUSSELL in 1992, the Texas Supreme Court confronted the issue of whether the decedent’s statutory beneficiaries are barred from filing wrongful death claims if the decedent’s underlying claims were barred by limitations when the decedent died.

Texas Court Disagrees with RUSSELL

In RUSSELL , the decedent’s widow and children sued seven defendants five weeks after the decedent’s death, but after the running of the statute of limitations for the decedent’s underlying claims. The widow and children argued that limitations for their wrongful death claims had not yet run because of Section 16.003(b)’s provision that wrongful death causes of action accrue on the date of death.

The Texas Supreme Court disagreed, noting that a wrongful death cause of action is “wholly derivative of the decedent’s rights,” and courts had previously prohibited wrongful death causes of action when the decedent would have been prohibited from filing suit because of governmental immunity, interspousal immunity, a spouse’s contributory negligence, contributory negligence, absence of a cause of action for prenatal injury, the Texas Guest Statute, contractual limitation of liability, a release and a fellow servant’s negligence.

The court noted that although some of those defenses were no longer viable defenses, the general rule that a wrongful death cause of action is viable “only if the decedent could have maintained suit for his injuries immediately prior to his death” remained “unassailed.” The court also noted that Section 71.003(a) of the Civil Practice and Remedies Code allows a wrongful death claim “only if the individual injured would have been entitled to bring an action for the injury if he had lived.”

The Texas Supreme Court summarized its holding in Russell as follows: “If a wrongful death action exists, it accrues, not when the decedent was injured, but at his death, and the limitations period on that action begins to run at death. But if a wrongful death action does not exist because the decedent could not maintain an action in his own right immediately prior to his death, for whatever reason, then no wrongful death action ever accrues.”

The RUSSELL court rejected the argument that its holding penalized the families of those who die lingering deaths. The court reasoned that “a person whose injuries result in death is entitled, while he is alive, to sue and recover damages from those liable for his injuries.”

The court cautioned that adopting the plaintiffs’ position would “greatly relax the statute of limitations for death cases,” because it would allow suits to be filed within two years of death “even if the action which allegedly caused the death occurred five, ten, twenty or more years earlier.”

Post-RUSSE LL Interpretations

Post-RUSSELL , a wrongful death cause of action exists when the decedent dies only if the decedent would have been entitled to bring a cause of action when he died. For example, if the decedent’s death arose from a car crash that occurred more than two years before his death and the decedent had not filed suit at the time of his death, limitations have run as to the underlying claim and the

wrongful death beneficiaries are barred from filing suit.

But if the car crash occurred less than two years before the date of death or the decedent had filed suit within two years of the crash, the wrongful death cause of action accrues on the date of death, and the decedent’s beneficiaries have two full years from the date of death to file suit.

For most personal injury cases, the date of accrual begins on the date of death provided the tort that caused the death was not more than two years earlier and the decedent had not already filed suit. There are exceptions, however.

For healthcare liability claims, limitations are governed by the medical malpractice statute and wrongful claims may accrue on the date the negligence occurred, the date treatment was completed or the date hospitalization was completed. Asbestos- and silica-related claims also are governed by special accrual dates mandated by statute.

Another issue that can create confusion in determining limitations for wrongful death claims is tolling. Tolling provisions ensure that a disabled party is not prevented from filing

suit by the running of limitations while the party is disabled.

Section 16.001 of the Civil Practice and Remedies Code tolls the running of limitations for plaintiffs under certain disabilities, but Texas courts consistently hold that the tolling provision of Section 16.001 tolls only the claims of wrongful death beneficiaries under a disability, and not the claims of decedents under a disability.

Courts have not been responsive to plaintiffs’ arguments that barring survival and wrongful death claims by the application of statutes of limitations violates the open-courts provision of the Texas Constitution. Courts consistently have held that the open-courts provision does not protect claims that plaintiffs had no right to assert under common law, such as survival and wrongful death claims.

Before the Texas Supreme Court’s decision in RUSSELL in 1992, there was some ambiguity about limitations in wrongful death cases. But it is now firmly established that a wrongful death cause of action exists when the decedent dies only if the decedent would have been entitled to bring a cause of action when he died.

Why Do Jurors Blame the Victim?

Originallypostedon TrialMagazine,2003.WrittenbyAttorneyQuentinBrogdon.

“Just like anyone else, jurors use coping mechanisms when they hear about an injustice; the difference is that when they do so, it can affect the outcome of your case.”

In his book The Right Stuff, Tom Wolfe describes the seemingly callous attitude of military pilots toward fellow pilots killed during test flights in the lain 1950s:

[H]e crashed and was burned beyond recognition...

[The other pilots] shook their heads and said it was a damned shame, but he should have known better than to wait so long before lowering the flaps.... [A]nother good friend of theirs went up in an F-4.... He reached 20,000 feet and then nosed aver and dove straight into Chesapeake Bay.... [The other pilots] were incredulous. How could anybody fail to check his hose connections? And how could anybody be in such pool condition as to pass out that quickly from hypoxia? ... There are no accidents and no fatal flaws in the machines: there are only pilots with the wrong stuff (I.e., blind fate can't kill me.) When Bud Jennings crashed and burned ... [a]ll agreed that [he] was a good guy and a good pilot, but his epitaph... was: How could he have been so stupid? (1)

Why would Wolfe's test pilots react so unsympathetically? One explanation is that they were using the coping mechanism that psychologists label defensive attribution: blaming the victim in order to distance themselves psychologically from the victim and the chances of a similar fate. (2) The mechanism is not limited to Wolfe's test pilots. Many of us use defensive attribution when we read about the victim of a crime and ask ourselves, "What was that guy doing out in

that part of town so late at night?" Jurors certainly can use defensive attribution, too, and because it can skew the jury's already less than completely objective deliberation, (3) trial attorneys must fully understand this phenomenon.

Theory and Findings

We generally have a need to believe in a just, stable, and predictable world. When an innocent victim suffers, it challenges and threatens this belief. A cognitive dissonance can be created in which two psychologically inconsistent beliefs are held simultaneously. Because the dissonance is unpleasant, we are strongly motivated to reduce it. Defensive attribution is one way to do it. We may reduce the dissonance between the belief in a just world and the suffering of an innocent victim by derogating the victim, reinterpreting the injury as victim-caused, or minimizing the extent of the injury. This reduces our fear that we could suffer a similar fate. (4)

A growing body of research confirms that jurors who are similar to, or who identify with, the plaintiff paradoxically tend to place more blame on him or her than do jurors who are not similar. This is called the identification effect. (5) It flies in the face of the conventional wisdom that jurors who are similar to the plaintiff are often less likely to

blame the plaintiff and more likely to find in his or her favor.

For example, in one hypothetical case study involving a five-year-old child who was injured in a paint store, the mock jurors who were most critical of the boy's mother for failing to watch her son were women, particularly those with children. In another hypothetical case involving a workplace construction accident, the mock juror who was most critical of the plaintiff for failing to use all available safety equipment was a man who had done construction work in the past and frankly admitted that he had periodically failed to use safety equipment. (6)

Likewise, in sexual harassment cases, potential jurors who have suffered that kind of treatment are less inclined to find for the plaintiff and more inclined to read complexity into the case by speculating about the backgrounds, behavior, and motives of both parties. (7)

Research has shown that jurors who sustained injuries similar to the plaintiff's but did not file suit are more likely to blame the plaintiff than other jurors are. A 1991 RAND Corp. study found that 87 out of every 100 people who we're accidentally injured did not try to obtain compensation, and other studies have made similar findings. This pattern also applies to medical malpractice cases: Several studies have found that many patients injured because of medical negligence do not seek compensation. (8)

All these studies confirm that, in any given case, many potential jurors may blame the plaintiff because the jurors had also been injured but did not file suit.

Research has also detected a severity effect: The more severe the accident and/ or the harm, the greater the jurors' need to blame the victim in order to preserve the belief that they can avoid a similar fate. (9) In one interesting set of experiments, mock jurors were given summaries of four accident cases

in which key sentences were varied to manipulate facts concerning outcome severity and victim blameworthiness.

For example, outcome severity was manipulated in one case by changing "Mr. R. dies a week later from the explosion," to "Mr. R. is bruised in the explosion," and victim blameworthiness was manipulated by changing "Mr. P. is attempting to cross the street, although the traffic light is red for pedestrians," to "Mr. P. is standing at the corner waiting for the light to change." The mock jurors considered the plaintiff more at fault given both a highly blameworthy victim and a severe outcome. They were more likely to feel sympathy for the victim when the damage was severe and the victim was not to blame, sadness when the damage was severe and the victim bore relatively little blame, and anger at and disgust with the plaintiff when he or she was more blameworthy. (10)

The researchers concluded that mock jurors made decisions about fault and damages by considering outcome severity and blameworthiness when they were not legally relevant, or sometimes by ignoring those factors when they were legally relevant, and that their judgments on fault and damages showed "a fairly consistent antiplaintiff effect." (11)

More specifically, they noted that mock jurors did not focus exclusively on the victim's blameworthiness in attributing fault to him or her. Instead, they apportioned significantly greater fault to the victim, all else being equal, when the injuries were severe. Contrary to the law, the mock jurors hardly discounted damages for the plaintiff's blameworthiness when the consequences were minor, but they discounted the damages disproportionately when the injuries were severe. They double discounted damages by improperly considering both the victim's blameworthiness and the severity of the outcome. One possible explanation is that the mock jurors used hindsight bias knowing, based on hindsight,

that the plaintiff might die, the jurors attributed this knowledge to the plaintiff and were compelled to assign greater blame. (12)

Implications for Trial Strategy

These findings imply that during voir dire plaintiff counsel must determine which potential jurors fear experiencing (or have experienced) an accident similar to the victim's. In a case involving an allegedly defective road design, for example, attorneys on both sides would want to find jurors who might fear facing a similar situation; travel on the same road as the plaintiff and at the same time of night; have driving habits similar to the plaintiff's; or drive at the same speed, in the same manner, or in similar vehicles. (13)

In light of defensive attribution, what motivates jurors to find for the plaintiff? It turns out that anger at the defendant is a much more powerful motivator than sympathy for the plaintiff: Focus group researchers have discovered a consistent pattern: When jurors start by focusing on the plaintiff, they blame the plaintiff for the accident. But if they start by focusing on what the defendant did wrong, they place much less blame on the plaintiff. This may be explained by the availability bias: As people struggle to understand something new, they focus on the first information they are given to understand what occurred and why, then fill in the blanks using information they receive later. (14)

A trial presentation technique called sequencing begins with the defendant's conduct. It puts the jurors' focus on the defendant's blameworthiness, because they start examining the plaintiff's behavior only after they have already blamed the defendant. Casting the defendant as the villain early on makes jurors angry at the defendant and makes them want to take action. The plaintiff's appeal to sympathy, on the other hand, is often futile because it may trigger defensive attribution: Sympathy makes people feel both powerless and vulnerable. Because

it makes them feel vulnerable, they want to find a reason why what happened to the plaintiff would never happen to them often by finding something the plaintiff did wrong. (15)

In one actual case that was tried twice, the plaintiff lawyer appealed to sympathy in the first trial and to anger in the second. In the first trial, the lawyer began by showing the jury a day-in-the-life film of his client, a boy who had lost most of his mental and physical faculties. The film showed him drooling and having his skull drained with a needle. The jurors responded with complete indifference. After a mistrial, the lawyer began with the defendant doctor, followed by the plaintiff expert, the boy's parents, a friend of the boy's, and then the boy himself in his wheelchair but only briefly. This time, the jury awarded substantial damages. (16)

The facts of a particular case may also determine how readily the jurors attribute blame to the plaintiff. Generally, jurors tend to find victims at least partially responsible for their injuries when they retained a substantial amount of control over what happened. When plaintiffs retained little control, jurors are more reluctant to blame the. (17) Some researchers have found the least antiplaintiff bias in products liability and medical malpractice cases. That may be because jurors tend to hold responsible the party they can most easily imagine acting differently. In products and medical malpractice cases, it is often easier than in other types of cases to portray plaintiffs as not in control and not possessing superior knowledge, and defendants as in control and possessing superior knowledge. (18)

The theory of defensive attribution, standing alone, cannot explain all instances of jurors' antiplaintiff bias. Research has found deepseated bias based on juror perceptions that most plaintiffs do not have legitimate grievances; "the pivotal American ethic of individualism" and individual responsibility; and juror perceptions, fed by media reports

and sometimes inaccurate anecdotal evidence, of a "litigation explosion." (19) Further, antiplaintiff sentiment is just one of the biases that come into play in the deliberation room. There are anti-corporate defendant biases and some pro-plaintiff biases at work as well. (20)

Noted jury researcher Neal Feigenson maintains that, more often than not, jurors strive for total justice. He says they do so in five related senses: 

They strive to reach a result that squares or balances the account between the litigants and leaves no loose ends. 

They use all information, even inadmissible evidence, that they deem relevant to their decision. 

They make holistic, intuitive decisions, rather than separating out discrete steps or elements such as fault and causation, as required by law. 

They gravitate toward decisions that make them feel good, and they seek to attain the emotional completeness that follows a well-resolved story. 

They want to appear reasonable and open to persuasion because they need to feel that they were fair and followed procedural justice during their deliberations. (21)

Defensive attribution, then, is just one piece in the complex puzzle of the jury deliberation process. It cannot by itself explain all instances of antiplaintiff bias, and it is just one of several conflicting and dynamic forces at work in the deliberation room. It has the potential, however, to skew jurors' reactions to suffering and misfortune, just as it skewed the reactions of Wolfe's test pilots. Defensive attribution is therefore a potentially decisive force that trial attorneys ignore at their peril.

Notes

(1.) TOM WOLFE, THE RIGHT STUFF 12-14; 3435 (1979).

(2.) Ronald Beeton, The Limits of Sympathy: Denial, Attribution, and Blame Among Jurors, ASSOC. BUS. LAW. REP., July 2001, at 3-4.

(3.) See, e.g., NEAL FEIGENSON, LEGAL BLAME: HOW JURORS THINK AND TALK ABOUT ACCIDENTS 46, 51, 57, 62 (2000) [hereinafter LEGAL BLAME]; DONALD VINSON, JURY PERSUASION: PSYCHOLOGICAL STRATEGIES AND TRIAL TECHNIQUES 90-96 (1993); RICHARD WAITES, COURTROOM PSYCHOLOGY AND TRIAL ADVOCACY [subsection] 3.02, 4.06 (2003).

(4.) FEIGENSON, LEGAL BLAME, supra note 3, at 85, 107; VALERIE HANS, BUSINESS ON TRIAL: THE CIVIL JURY AND CORPORATE RESPONSIBILITY 40 (2000); VINSON, supra note 3, at 97-98.

(5.) See, e.g., FEIGENSON, LEGAL BLAME, supra note 3, at 85; HANS, supra note 4, at 40; VINSON, supra note 3, at 97-98.

(6.) HANS, supra note 4, at 25-26, 31.

(7.) Beeton, supra note 2, at 5.

(8.) HANS, supra note 4, at 31.

(9.) Also referred to as an "intensity factor." See, e.g., VINSON, supra note 3, at 98; see also FEIGENSON, LEGAL BLAME supra note 3, at 85; Phillip G. Peters Jr., Hindsight Bias and Tort Liability: Avoiding Premature Conclusions, 31 ARIZ. ST. L.J. 1277, 1295 (1999).

(10.) Neal Feigenson et al., Effect of Blameworthiness and Outcome Severity on Attributions of Responsibility and Damage Awards in Comparative Negligence Cases, 21 LAW & HUM. BEHAV. 597, 599 (1997).

(11.) Id. at 608.

(12.) Id. at 601; see also DAVID BALL, DAVID BALL ON DAMAGES 15 (2001).

(13.) VINSON, supra note 3, 101.

(14.) Elaine McArdle, Plaintiffs Should Always Start by Attacking the Defendant, 99 L.W.U.S.A. 960 (1999).

(15.) Id.

(16.) Id.

(17.) HANS, supra note 4, at 46.

(18.) FEIGENSON, LEGAL BLAME, supra note 3, at 103. But see RICHARD WAITES, COURTROOM PSYCHOLOGY AND TRIAL ADVOCACY 121 (2003) ("[I]t is more common in medical malpractice cases than in other types of personal injury cases for a jury to find

that the plaintiff was contributorily negligent. Jurors often believe that a medical malpractice plaintiff assumed the risk by consenting to elective surgery or contributed to the problem in some other way.")

(19.) See, e.g., HANS, supra note 4, at 35.

(20.) FEIGENSON, LEGAL BLAME, supra note 3, at 98-100.

(21.) Id.

Mandatory Online Jury Trials: An Idea Whose Time Has Not Come

OriginallypostedonAugust30,2020onVoireDireMagazine.WrittenbyAttorneyQuentinBrogdon.

COVID-19 poses an unprecedented challenge to our system of law. We will be defined in the years to come by how we meet the challenge. The answer to the challenge is not to implement mandatory online jury trials.

COVID-19 killed in-person depositions, inperson hearings, and in-person mediations, but we cannot allow COVID-19 to kill in-person jury trials.

Mandatory online jury trials is an idea whose time has no/ come because it could be the fina1 nail in the coffin of in-person jury trials.

The founders of our country created a sacrosanct Bill of Rights in the first 10 amendments of our Constitution. Three of those 10 amendments explicitly mention and protect jury trials. The Fifth Amendment provides for grand juries in criminal cases, the Sixth Amendment provides for jury trials in criminal cases, and the Seventh Amendment provides for jury trials in civil cases. Intact, the right to trial by jury is fundamental to all other rights in our Constitution. Thomas Jefferson recognized this when he wrote that the jury “is the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.” The Texas Constitution likewise recognizes and protects the right to trial by jury providing that the “right of trial by jury shall remain inviolate.”

“How to get out of jury duty” will yield more than 10 million hits on Google. How could we

ever allow something as fundamental and as important as the right to trial by jury to end up on life support, even before COVID- 19’v appearance? It did not happen overnight, and it did not happen entirely by accident. Let us first recognize that the conclusion that the jury trial faces potential imminent extinction is inescapable. Today, federal judges try less than one-third the number of civil jury trials that their counterparts tried in the early 1960s, and Texas state court judges try less than half the number of jury trials that their counterparts tried just 20 short years ago.

Some of the factors driving the jury trial to extinction arise out of purposeful, agendadriven actions by corporate interests. These include:

1) successive waves of “tort- reform” legislative and anti-jury public-relations efforts beginning in the 1980s, 2) a widespread push for binding arbitration, 3) an everincreasing elevation of the importance of pretrial motions, such as motions for summary judgment, motions to dismiss, and Daubert motions, and 4) pleading requirements that put form over substance. It is an ironic testament to the enduring power of the magic of the idea of the jury trial that the same corporations that hunted it almost to extinction do not want it to die off completely. These corporations treat the jury trial like a nuclear weapon that they want to have at their unique disposal to use when they

sue another corporation for millions or even billions of dollars, but they do not want the average citizen to have that same weapon available to hold a corporation accountable for wrongdoings.

Other factors driving the jury trial to extinction are not necessarily the result of any purposeful actions. These include: 1) the proliferation of pretrial discovery, 2) the increasing expense of jury trials, 3) the increasing use of pretrial mediations, 4) the apathy of the public about the right to trial by jury and the public’s ignorance about the potential extinction of the right, 5) the advent of an inexperienced, younger generation of trial lawyer s and judges who are uncomfortable trying messy, unpredictable jury trials, and 6) the rise of jury consultants who claim to be able to use scientific methods to predict the outcomes of jury trials without the unpredictability of an actual jury trial.

Now that COVID- 19 is here, the proponents of online jury trials focus on what we stand to gain from online trials. They argue that we gain the ability to keep the wheels of justice turning. Admittedly, that is an important consideration, but what price shout d we be willing to pay to keep those wheels turning? Some proponents even seem to argue that online trials are superior to in-person trials because online trials are more “efficient” and the use of close-up camera shots of the witnesses actually increases the jurors’ engagement and ability to discriminate between truth-telling and non-truth-telling witnesses. What is too often lost in the discussion is what we stand to lose with online trials.

What do we stand to lose with online jury trials? It begins with the ability to ensure that the court and the litigants keep the online jurors’ undivided attention. In our connected world, that is increasingly difficult, even in inperson jury trials. It is next to impossible when an online juror is sitting on a couch in their

living room with both low-tech and high-tech distractions in the vicinity.

The second crucial thing that we lose in an online jury trial is a magical set of in-person connections and chemistries. These include connections and chemistries between 1) the judge and the jurors, 2) the lawyers and the jurors, 3) the clients and the jurors, 4) the witnesses and the jurors, and 5) the jurors themselves when they deliberate. A growing body of research confirms that many things happen when we interact face- to-face that do not happen when we interact through computer- mediated communications, even when those communications are video communications. Jury trials require lawyers to pick jurors and jurors to assess the credibility of witnesses by using very subtle verbal and nonverbal clues. Online jury trials greatly impede the ability of lawyers and jurors to achieve these fundamental tasks. Online jury trials also impede and distort jury deliberations. Jury deliberations in a traditional jury trial occur only as part of a magical in-person alchemy between jurors assembled together in close proximity, in one room, to arrive at one verdict. Any doubt about that can be dispelled by watching focus group jurors deliberate or by watching the Henry Fonda movie “Twelve Angry Men.”

The third crucial thing that we lose in an online jury trial is a diverse jury of the 1itig‹ints’ peers. Even at this late date in the internet revolution startling disparities continue to exist in the availability of the necessary computers and broadband internet access to facilitate a juror’s participation in an online jury trial. Online jury pools necessarily will be skewed toward higher socioeconomic groups than their in-person counterparts.

The fourth crucial thing that we lose in an online jury trial could be called “the solemnity of the occasion factor.” For jurors in an inperson jury trial, there is something solemn and awe- inspiring about being in a courthouse in very close proximity to the judge in a black robe, the lawyers, the parties, the witnesses, the trial exhibits, the bailiff, and the court reporter.

The death of the in-person jury trial at the hands of the online jury trial will ham not just litigants and our democracy, but it will also harm lawyers who try jury trials. Even before COVID- l9’s appearance, much was written about the decline in trial advocacy skills and the decline in civility between lawyers. The advent of the online jury trial will only accelerate both of these worrisome trends.

There is no doubt that the decline in trial advocacy skills in recent years is directly related to the fact that fewer and fewer lawyers and judges are trying fewer and fewer jury trials. Just as the “solemnity of the occasion” factor is lost for online jurors, so too will it be lost for a future generation of online trial lawyers. There can be no doubt that this will accelerate the ongoing loss of trial skills in the trial bar.

Online jury trials will accelerate a second worrisome trend: decreasing civility between lawyers. The decrease in civility within the bar has been driven in part by the transition of the practice of law torn being a profession into being a business. The growth in the size of the bar and the decrease in face- to-face interactions among lawyers also ha› e been large factors in the decrease in civility, however. It is much more difficult to be uncivil with a lawyer with whom you will have to stand in the same courtroom than it is to be uncivil with a lawyer with whom you will only ever

have interactions through an online Zoom platform. COVID-19 poses an unprecedented challenge to our system of law. We will be defined in the years to come by how we meet the challenge. The answer to the challenge is not to implement mandatory online jury trials. Admittedly, there is a place for voluntary online jury trials as we feel our way through the darkness of COVID-19, but litigants should not be reguire6/ to submit to online jury trials. Too much is at stake, including the ongoing viability of the jury trial as a bedrock of our democracy and our system of justice. Mandatory online jury trials is an idea whose time has not come.

Reprinted with permission from the August 30, 2020, edition of Texas Lawyer. Oc 2020 ALM Media Properties, LLC. A|I rights reserved. Further duplication is prohibited.