In November, New York federal judge Valerie E. Caproni considered whether to allow an unvaccinated juror inside her courtroom in an employment retaliation case. Over the objections of the pro se lawyer-plaintiff, she said no.

“Jury service is a civic duty and, while it can be inconvenient, it need not increase the risk of being exposed to a deadly disease,” Caproni wrote in her December 2021 opinion. She noted that other federal judges in New York, California and Oregon had excluded unvaccinated jurors. “There is nothing to suggest that the viewpoints held by the unvaccinated will not be adequately represented by the vaccinated.”

The coronavirus pandemic’s strain on the jury system is clear to civil trial lawyers. Some are even tailoring their trial strategies to account for how the threat of disease could be changing jurors’ attitudes toward serving and cutting into the pool of available jurors in ways that could sway their cases.

Mike Brown, a products liability defense lawyer with Nelson Mullins Riley & Scarborough in Baltimore, says there isn’t “a lawyer on the planet” who doesn’t want a jury full of people on his or her side. But at the very least, Brown wants an open-minded and representative jury so he can put on his case. “People who aren’t from the exact same background can convince people who might be sitting there to look at things differently. And the more diverse the jury, I think the better the opportunity for us to get a defense verdict,” he says.

Julie O. Herrera, an employment discrimination and civil rights plaintiffs attorney in Chicago, says although she may be representing a Black client in an employment discrimination case or a woman in a sexual harassment case, race and gender are not always at the front of her mind. She is more attuned to jurors’ backgrounds and life experiences.

“I’m looking for someone who I think is going to sympathize with my clients and give them money,” Herrera says.

Jury experts have long scrutinized a system in which juries aren’t sufficiently representative. The focus of some reforms has been on low juror pay and the inability of low-income people to serve. The trend toward smaller jury sizes is another concern.

In 1973, the U.S. Supreme Court allowed six-person rather than 12-person juries in civil cases. In addition, nonunanimous civil verdicts, which are allowed in one-third of states, “undermine the robustness of deliberations” and quiet dissenting voices, according to Paula Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts.

But the ever-evolving nature of the pandemic adds another layer of complexity.