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When James Martin, during trial, started displaying photos of the site where his client was injured in a fall, the scene looked strangely familiar to one juror. “This woman became visibly uncomfortable,” Martin says. Somerset County Judge Helen Hoens thought the juror, Tong-ya Anderson, was getting sick and offered her a glass of water and some tissue. But what Anderson really wanted was to tell the judge that the photos had jogged her mind and that she had fallen in a pothole nearby last summer, slightly injuring her wrist. She was excused from the jury on Jan. 10 and the trial resumed, but the episode gave Martin an idea: How about calling Anderson as his witness? The defense attorney, David Kaplan of Monroe, N.J., opposed the idea, arguing that the remaining jurors would give undue weight to her testimony and claiming undue surprise, since Anderson was not on the witness list and the defense didn’t know what she would say. Kaplan, retained by Utica Insurance Co., declined comment. Martin offered to allow the defense to depose Anderson, so there would be no surprise. He adds that there was no case law on point to guide the court in such an unusual circumstance. The plaintiff, Sherry Jeffries, was suing the Franklin Township Board of Education for a broken left elbow she suffered catching her foot in a half-inch-deep pothole on Oct. 7, 1997, while she was visiting Sampson G. Smith Middle School to attend an adult education class. Jeffries contended the pavement was poorly maintained and there was no exterior lighting to illuminate the path. Because the school repaired the hole the next day, she had no pictures showing the prior condition. Martin says he hoped Anderson’s testimony would bolster the argument that the walkway was continuously in poor condition. Ultimately, Martin decided not to call Anderson as a witness because her testimony was not as strong as it could have been. “She did indeed fall, not in that same hole, but in that same location in another hole,” Martin says. In addition, Anderson’s accident occurred last year, three years after Jeffries’. “It was only going to create an appealable issue,” he says. Even without Anderson’s testimony, the jury awarded Jeffries $200,000 on Jan. 11.

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