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Ronald Grayzel’s two decades of courtroom experience did not prepare him fully for his most recent trial. It was nine days after the World Trade Center attack, and he feared that jurors angry with the evildoers of Sept. 11 would disdain the nuanced theory of liability and the damages in the case he was about to present. “I didn’t know if they would be able to focus on it,” says Grayzel, a partner in Edison, N.J.’s Levinson Axelrod. The plaintiff was an assault victim seeking compensation for a lost eye. But the assailants were never caught. The defendant was a store owner whose only fault may have been calling the police too late. Grayzel recalled last week that as he prepared to open his case in Union County Superior Court in New Jersey, he thought, “In the world of post-World Trade Center, the idea of getting eight jurors to hold someone responsible for someone else’s criminal acts is a tough dynamic.” Fears like these are being voiced by plaintiffs’ lawyers across New Jersey these days, especially in northern counties near Manhattan. They wonder whether jurors will find pain, suffering, emotional distress and verbal threshold claims trivial at a time when terrorism victims and their grieving kin know absolute horror. Instead of giving money to plaintiffs, will jurors say, in effect, “get over it”? They might, particularly in cases where there are no serious physical injuries, four jury consultants say. “It’s a real fear,” says Beth Bochnak of National Jury Project/East Trial Consultant of Madison. “Jurors are going to think about plaintiffs, ‘he should be glad he’s alive,’” Bochnak says. But the consultants also suggest this could be a good time to bring cases on behalf of those plaintiffs who suffered palpable physical harm, even if the theories of liability are tenuous. And they say there are strategies plaintiffs’ lawyers and judges can use to keep jurors from letting their emotions about terrorism and mass suffering have negative effects. Grayzel’s trial appears to illustrate the point. The jury awarded his client $106,000 for medical expenses. Then it gave him $1.4 million for pain and suffering. His adversary, Daniel Jahnsen of Shrewsbury’s Bolen Jahnsen Ball & Reardon, says he thinks the twin towers tragedy made the jury sympathetic to the plaintiff. “If I had a client who had minimal injuries or soft tissue, I’d be rightfully scared to death,” Jahnsen says. “In this case, the injuries carried the day.” Barbara Bushell, who as president of Jury Dynamics Inc. in Woodcliff Lake organizes mock juries and helps lawyers select panelists and voir dire approaches, says the attacks will tend to make jurors’ particular leanings more extreme. For example, the prospective jurors whom plaintiffs crave in employment discrimination cases — social workers, elementary school teachers or even angry people who feel they haven’t gotten a fair shake out of life — will be even more pro-plaintiff if they have reacted to the terrorism emotionally. At the same time, jurors with a “blame the victim attitude” will be even more so now, particularly in discrimination cases with an emotional distress component, Bushell says. She says such a juror might say, “My God, 6,000 families have been affected by these deaths and this person is complaining that her boss looked at her the wrong way?” Charles Heller, a jury consultant in New City, N.Y., says, “Everyone in America, including jurors, will have some degree of post-traumatic stress from the events of Sept. 11.” And he says, “When there’s a milder or subtler component to the lawsuit, compared to the Sept. 11 tragedy the impact will be somewhat diminished in the jurors’ hearts and minds.” How can plaintiffs’ lawyers combat such feelings? All the consultants say lawyers should work to get the jurors to divorce their feelings about the attack from the task at hand. This can be tough in New Jersey because judges control the voir dire, says Julie Blackman, a Montclair psychologist who advises lawyers on jury selection. Voir dire is the best time to make jurors confront their prejudices and preoccupations. Even so, she says, lawyers can make clear in their openings that the terrorism in New York was “a one-time thing” and that jurors need to apply the principles of their pre-attack, normal and ordinary lives to the case before them. “All the attorney can do is ask the jurors to do that,” Blackman says. Bochnak says it’s important for lawyers to instill a sense in jurors that they have “permission” to remain emotional about the tragedy but that the message should include a reminder that jurors have a civic duty to give the litigants a fair and impartial hearing. In the case Grayzel and Jahnsen were trying, Vlasic v. Alvarez, Superior Court Judge Lawrence Weiss took it upon himself to do what the consultants would have the lawyers do. First, one juror who said the attacks made her too nervous to sit on the case was excused promptly. Then, Grayzel says, Weiss told the jury that though the proceeding was taking place in the shadow of the disaster and there was no way anyone could forget it, everyone involved had an obligation to focus on the case. “After that, it felt like just doing a case,” Grayzel says. At issue was whether defendant Luis Alvarez, the owner of a liquor store, failed to call police in time to stop an assault by a group of toughs in his store against plaintiff George Vlasic. The plaintiff lost his left eye in the attack, the assailants fled and they were never caught. The defense, which called witnesses whose testimony suggested that Alvarez did everything he could, urged the jury not to blame the owner for the criminal acts of others. “My client was equally sympathetic,” Jahnsen says. But the injuries swayed the jury, he says. Jahnsen says he had a trial with lesser injuries the week of the attack. That trial ended in a no-cause, he says. The lesson for lawyers trying tort cases now is “you will do well in appropriate cases if you can show real wrongdoing and a real injury,” Grayzel concludes. It wasn’t clear last week whether judges throughout New Jersey were giving the kinds of instructions Weiss decided to give. In Bergen County, for example, Presiding Civil Judge Peter Doyne says judges have been instructed to be sympathetic to jurors who don’t want to serve because of the attacks. But there were no directives about whether judges should mention the attacks sua sponte or bar lawyers from mentioning them, Doyne said. He also says the issue didn’t come up at a meeting of presiding civil judges in Trenton last week. “I am aware that plaintiffs’ counsel are concerned that their cases may be less than compelling,” Doyne says. He mentioned verbal threshold cases as one of the types he had in mind. He says the three civil cases tried to a conclusion between Sept. 11 and last Wednesday in Bergen County resulted in no-causes.

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