Susan Fillichio, senior vice president and trial consultant on employment law matters for Los Angeles-based DecisionQuest, gave indications of more favorable trends, suggesting that jury pools, now made up of many unemployed individuals, are carefully scrutinizing allegations of discrimination, harassment and retaliation.

"One question jurors are asking, which two or three years ago they never asked, is 'How is a damage award in this case going to impact the [defendant] company,'" Ms. Fillichio reported, suggesting that jurors are worried that the economic impact of the award could fuel more job cuts. "The fact that even plaintiff-oriented jurors are asking, [and that] they're inspiring debate over this [question], is a positive sign for the defense," she said, quickly noting, however, that this does not mean damage awards have begun to deflate.

Mercedes Colwin, managing partner of Gordon & Rees in New York, who moderated the panel, asked about surveys showing that nearly three-quarters of Americans believe that corporate executives created the economic crisis because of their greed and carelessness.

Ms. Fillichio, whose firm measures trends in the attitudes of surrogate and real jurors nationwide, confirmed that jurors are indeed more open to anti-corporate views presented by plaintiffs than in the past.

In spite of this, another phenomenon–the high rate of unemployment among members of jury panels–may be having a more favorable impact for defendants, she said. Before the downturn started, only five or 10 members of groups of 70 people might have been part of a layoff. "Now I am seeing percentages as high as two-thirds of the venire who themselves have been laid off or had someone close to them laid off."

"On some level, this is normalizing the idea of layoffs," she said. As a result, jurors "are looking with skepticism at claims of retaliation, for example," she said. These jurors understand that layoffs have been necessary across the country, so they are more likely to question whether a layoff was an unavoidable consequence of the recession instead of being spurred by a prior complaint of discrimination.

On the other hand, the jury expert noted that it is now more difficult to distinguish the "dangerous jurors"–those who want to award a lot of money–from the crowd.

Taking a cue from Ms. Colwin, who reported that recent unemployment statistics reveal that white collar jobs have been hit hard by the recession, Ms. Fillichio said lawyers used to believe that "more educated jurors and those in management positions" would be more favorable to the defense. "Now, many of those folks are not employed [and] they are embittered," she said, suggesting that defense counsel needs to engage in "very persistent questioning" in voir dire to understand changed attitudes of these jurors.

Providing an insurer's perspective, Eric Ross, claims manager for Beazley Group in Farmington, Conn., noted that the duration of the downturn is producing latent claims from people whose "personal makeup" would normally deter them from bringing suits. Those who have not been able to find jobs "are basically cornered into filing claims," he said.

"The [insurance] industry is coming off of two years of a spike in frequency of claims," he said. "We still have to get those through the system."

Ms. Goldstein attributed some lags in the system to furlough days for court employees and staffers at administrative agencies.

Furlough days in California courts mean that motions, which used to be handled in 16 days, now take three months. "It's very hard to push cases forward, [and] the longer they hang around, the more expensive they get," Ms. Goldstein said.

After Ms. Colwin played video news clips showing a cross-section of Americans delivering negative views about the potential for economic recovery, Mr. Ross said he sees a similar "theme of hopelessness" working its way through the claims process. "People [employers] are unable to mitigate the damages, or unwilling to," he said. "They just don't have the energy to do it."

Even an economic recovery might spur new claims, warned Ed Moresco, vice president of Allied World Assurance Company in New York. He noted that while employers invested a lot of work into disparate impact studies when they initiated workforce reductions, they may not put as much attention into policies and procedures for rehiring people. "It seems to me that you can have all those same exposures in how you recall people. What shift do you recall first? Does that have a disparate impact on the class?"

"Are you calling back only the younger workers, who made less? Will age claims come out of that," he asked.

During the session, Adeola Adele, product leader EPLI Marsh FINPRO in New York, spoke about the fact that some cash-strapped firms had raised EPL policy retentions to save money on premiums.

"I'm not sure that everyone has done as good a job as possible at underwriting the credit risk of those higher retentions," Beazley's Mr. Ross said. "We've had people offering artwork and office furniture" to fund retentions, he said. There have been a lot of situations that insurers did not anticipate in which insureds have been unable to fund the retentions, he and Mr. Moresco agreed.