Prepare for the COVID Reptile

by Dr. Ken Broda-Bahm

Might a fear-based strategy have greater purchase in the present pandemic climate? People are certainly feeling scared and vulnerable these days. Even as states begin to relax the coronavirus stay-at-home restrictions, the death toll continues to climb, and a solid majority of the American public is not at all eager to get back out there. According to current Pew Research polling, nearly seven in ten Americans say their greater concern is with governments lifting restrictions too quickly, rather than not quickly enough. I expect that even after experts begin saying it is relatively safe to reengage, there will still be a lot of residual fear and some habits that might’ve changed for good. I have been chronicling many of the expected attitude changes in the wake of this crisis, and an additional perspective to consider is one that trades on fear and vulnerability: the plaintiff’s “Reptile” approach of trying cases by focusing on a personally relevant danger posed by the defendant.

In the context of the worldwide virus lockdown, there is a good chance that jurors might be primed for the kinds of fear appeals that the Reptile depends on. While jury trials don’t seem to be getting underway in the immediate future, once they do, we might expect the Reptile’s chances of success to be influenced by a persisting state of public fear. With a jury preconditioned to look for threats, the strategy might have special resonance in this context. In this post, I will take a look at some recent research and commentary that could point in that direction.

The Reptile in a COVID context might involve the plaintiff’s attorney drawing a literal or a figurative connection with the current situation, such that a stand against the defendant becomes a symbolic way of gaining more control or safety. It might include express or implied messages like this:

• We face too many risks (to our lives, health, and autonomy)

• The defendant is contributing to that risk at the worst possible time

• Taking a stand against the defendant’s actions protects society by setting a limit to what we will tolerate

There are a few attitudinal changes that bear on that message.

Less of a Pullback from Sympathy?

I have long noticed that there are many jurors who really don’t want to be influenced by the pathos of the case. If there is a particularly tragic loss or injury at the center of the case, then that fact will make that juror less likely to support that case. In what I call the “sympathy rebound,” the sad facts serve as a cue to this juror that the case is based on emotion and not

on evidence or logic. In some ways, the Reptile perspective is tailor-made to address that, because it reframes the case away from that individual tragedy and toward a common threat posed to all of us.

Based on a recent survey, however, we believe that there is some evidence that this sympathy rebound might be lessening in the current context. In other words, the pandemic’s role in putting many of us in a situation of potential threat and loss, has potentially created a little more empathy and a realization that tragic losses may indeed be real.

Last month, April of 2020, we returned to a group of 200 juror-eligible individuals that we had surveyed last Summer (July of 2019). We wanted to see if their views had changed in the midst of the pandemic. In several ways, we found they had, and in the direction of greater compassion. For example, they were more likely to say that we should be doing more to ensure well-being.

Society need to do more to ensure people’s well-being:

2019

2020

49%

56%

0% 20% 40% 60%

Source: Persuasion Strategies, BigJury 2019-2020, N = 205

80%

More specifically, respondents are also less likely to consider legal claims of damage to be exaggerated.

“Disagree” that most claims of disability, pain, and suffering are exaggerated.

2019

2020

56%

0% 20% 40% 60%

Source: Persuasion Strategies, BigJury 2019-2020, N = 205

68%

80%

Greater Sensitization?

Of course, that shift of opinion within our longitudinal respondent pool does not definitively prove that people changed because of the virus response, but it is a reasonable inference. In a recent Law360 article, “6 Lessons on Jury Advocacy in the Wake of a Crisis,” Frances Morrison and John Tanski of the firm Axinn Veltrop and Harkrider note that, “A good trial lawyer should not underestimate the mental, physical and financial suffering that COVID-19 has caused or the scars that it will likely leave on us.” Specifically, they describe a phenomenon that has also been studied under the heading, “terror management.” When reminded of our own mortality, we are likely to be open to some of those same themes from others:

“The thought of death alone in an intensive care unit—with loved ones unable to be present and caregivers separated by layers of personal protective equipment—is as disquieting as it is real. Themes of alienation, exclusion and abandonment will pick at a raw wound with many jurors. Deployed appropriately, these ideas can resonate for either a plaintiff or a defendant.”

The Flip Side: Greater ‘Normalization’ of Loss

On the flip side, it is also possible that the pandemic has provided some perspective that could normalize the idea that “everybody has experienced some loss,” or even make some claims seem trivial.

“The perspective that comes with the COVID-19 pandemic is likely to temper a jury’s impulse to assign blame for a tragic outcome, even in a sympathetic personal injury case. Jurors who have seen real suffering around them—and perhaps experienced it themselves through illness, the loss of a job, or the loss of a loved one—are more likely to be receptive to common personal injury defense themes like bad things happen to good people and there can be injury without fault.“

However it shakes out, and it is likely to be different in every case, legal strategies that try to personalize the case for a jury face an altered setting as a result of the coronavirus. Prepared attorneys on both sides of that strategy will have a particularly great need to know their audience, think broadly about what motivates them in understanding the case, and adapt. n

Dr. Ken Broda-Bahm has provided research and strategic advice on several hundred cases across the country for the past 21 years, applying a doctorate in communication emphasizing the areas of legal persuasion and rhetoric. As a tenured Associate Professor of Communication Studies, Dr. Broda-Bahm has taught courses including legal communication, argumentation, persuasion, and research methods. He has trained and consulted in 19 countries around the world and is Past President of the American Society of Trial Consultants.