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A published article by a New Jersey senator and lawyer recounting his experience serving on a civil jury has caused an appeals court to revisit the $876,000 verdict his panel handed up. The defendant in the case, Barber v. Shop-Rite of Englewood, is seeking a new trial on the ground that Robert Martin, R-Morris, who also teaches at Seton Hall University School of Law, might have influenced the deliberations by sharing his legal expertise with fellow jurors. On Dec. 13, defense attorney John Gold filed a motion for relief based on Martin’s article, “Observations on a Jersey Jury,”in the Dec. 4 issue of the Law Journal[186 N.J.L.J. 888]. And on Jan. 11, Appellate Division Judges Dorothea Wefing and Carmen Messano responded by sending the matter back to Morris County Superior Court Judge W. Hunt Dumont for further proceedings. The panel asked for more information and specifically that the record be supplemented with the article. Martin described in his article how other jurors relied on him “for assistance, especially in dealing with abstract legal concepts and procedural issues.” For instance, he was asked to explain “what the judge meant by ‘proximate cause’ and its significance in proving a negligence claim.” Martin wrote that he thought his familiarity with the law was helpful to other jurors. He expressed uncertainty, however, over the wisdom of having lawyers as jurors, especially in the role of foreman, stating he was convinced that “my opinions swayed other jurors and were extremely influential in the final outcome.” He also described the jury’s difficulty in deciding damages, given the lack of specific guidelines on how to calculate them and the fact that the plaintiff had a pre-existing injury. Jurors at first suggested widely varying figures that differed by as much as $1 million or more and they worried about being perceived as a “run-away jury” if they awarded a seven-figure verdict, Martin noted in the article. He also said the jurors conscientiously tried “to do what was right and what was fair.” But Gold’s brief criticized Martin and the rest of the jurors for violating their oaths, terming Martin’s actions “outrageous” for usurping the authority of the court, according to the Jan. 14 issue of the Daily Recordof Parsippany. “What he should have done was direct the other jurors to ask Judge Dumont regarding the law and to request that the jury be recharged,” the newspaper quoted from Gold’s brief. Gold also alleged bias against Shop-Rite based on Martin’s reference to the inconvenience caused by an extension to accommodate a defense witness. And he argued that the worry over being seen as a runaway jury improperly affected the size of the verdict. Timothy Brunnock, the lawyer for plaintiff Joyce Reynolds, says “I’m not sure what the Appellate Division wants us or Judge Dumont to do.” In a Jan. 12 conference call with Dumont, it was agreed that Gold would ask the panel to clarify whether it wants a hearing and if so, whether just Martin or the entire jury should be called to testify, says Brunnock, of Morristown’s Brunnock & Fleming. Brunnock has no second thoughts about not using one of his peremptory challenges to keep Martin off the jury. “I never thought Martin would be a problem, and I still don’t think he was a problem,” says Brunnock. “When all of this shakes out, they will find Senator Martin did exactly what he was supposed to do as a juror and they are going to uphold this verdict.” Martin says he did not try to influence or persuade his fellow jurors, adding that he spoke last during deliberations “to allow them to voice their opinions without hearing what I had to say.” But, “as anyone with a grain of sense would appreciate, the other jurors gave a lot of weight to what I had to say because of my experience and familiarity with the law.” Both lawyers were fully aware of who he was but neither struck him from the panel, says Martin, noting he approached the bench at the start to ask whether it was appropriate for him to serve. The defense attorney, disappointed with the verdict, “is looking for any kind of straw he can find,” adds Martin, who teaches property, legislation, constitutional law and other subjects at Seton Hall. He also serves as director of the school’s Center of State and Local Government Law and is a Republican state senator representing Morris County. Martin says that although the jury was unanimous on Shop-Rite’s liability, his was the sole vote to apportion fault based on the plaintiff’s contributory negligence. It is ironic that Martin, with his misgivings about lawyers on juries, is to a large extent responsible for putting them there. He was the co-sponsor, along with Assemblywoman Loretta Weinberg, D-Bergen, now a state senator, of a 1995 bill that expanded eligibility for jury service and made it harder to get out of jury duty. “I am proud of that law,” Martin proclaims. “It used to be that influential people didn’t even have to go down to the courthouse.” Gold, of Morristown’s Gold Albanese Barletti & Velazquez, could not be reached for comment. The unanimous $876,000 verdict for pain and suffering came last June 16 in a slip-and-fall case. Reynolds, a Wharton resident, sued over neck injuries suffered when she slipped in a pool of liquid in the Wharton Shop Rite in September 2002. She claimed the fall aggravated a pre-existing herniation, resulting in permanent disability. Injections and decompression surgery allegedly failed to eliminate her pain and she was bedridden for so long that she lost her job as the manager of a dental office. The store contended she was wearing stiletto heels and fell in water that dripped from her umbrella.

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