That Fateful Day

Craig Smith / October 22, 2001

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The Terrorist Attacks Affected Potential Jurors’ Perceptions Profoundly

We will never see the New York skyline in the same way since the Sept. 11 terrorist attacks. Not only is the familiar profile of the city changed forever, but also our perceptions of a city that stood with welcoming arms to people from every corner of the world for over 200 years.

On that morning of Sept. 11, my colleague Steve Paterson, chief operating officer of Vinson & Dimitrius, a Los Angeles-based trial- and jury-consulting firm, was shaken from his preparation for a meeting scheduled for later that day. He heard the sound of a thunderous explosion, followed by the shrill blast of the hotel fire alarm filling every corner of the World Trade Center Marriott Hotel where he was staying.

Within minutes, carrying only his wallet and cell phone, he was on the street in the midst of what was unfolding as the most disastrous terror attack ever on American soil. Three days later, cell-phone battery dead and without extra clothes, his computer and other personal effects left behind in his hasty escape from the insanity of that Tuesday morning, he arrived in St. Louis, in a U-Haul truck – the only transportation he could muster out of New York. Arriving back in Los Angeles, he quietly acknowledged that he, and the world, would never be the same.

In Steve’s profession, working with trial lawyers in an attempt to understand how jurors think and behave, the landscape of litigation has changed. Recognizing and defining those changes, he said, will demand some serious reflection and well-considered adjustments by trial practitioners.

Jury behavior is influenced as much by perceptions and impressions of the evidence as the existence of the evidence. Impressions and perceptions are tempered or twisted by our experiences and our awareness of the world around us and what and who inhabits the world.

As the dust settles in New York, a new set of questions must be raised about how the events of Sept. 11 will alter jurors’ perceptions and impressions in the courtrooms about many things. How will insurance companies respond? How will jurors react to whatever that response may be? How will the tightening of security, from the national level down to the day-to-day details of our personal lives affect civil rights, privacy, and employment litigation? What about the economy – how deep will the impact be? And what changes will emerge in business litigation?

These and many other questions are far-reaching and complex, but attorneys who stand before juries in courtrooms post-Sept. 11 will have to consider carefully how the jurors belief systems, expectations, and definitions of reality were shaken to the very core.

“It won’t change things much,” you may think. The judge will still sit and the attorneys will arrive. The “show will go on,” right down to closing arguments. But don’t be surprised when the jury comes back with surprising questions, answers, and verdicts. The landscapes of our lives are changing, and the courtroom’s rarified world is not immune to the fallout from Sept. 11 terrorist attacks in both New York and Washington.

According to Steve Paterson, research associates and trial consultants at Vinson & Dimitrius are looking carefully at the above questions and many more. What effect will the reality that our world is not quite what we thought it was have on trust levels, perceptions of ethnic differences, expectations of fairness, and confidence in authority?

While jurors outside New York and Washington may have been far removed from ground-zero on Sept. 11, it is certain that every juror across the country will bring a little extra baggage into the process. And it is important that trial attorneys attempt to understand if and how these new thoughts and feelings will manifest in citizens called to jury duty. Ignoring such changes may have serious negative implications for lawyers who don’t understand the importance of “increments of advantage” in trial.

Another colleague, Jo Ellan Dimitrius, a nationally recognized jury consultant, evaluated the situation succinctly. “We have been involuntarily pushed into a new reality that will certainly have an impact on jurors’ perceptions of litigation. … Perhaps the plaintiffs’ bar will be the most negatively impacted as jurors may evaluate a plaintiff’s case in terms of comparisons to the events of Sept. 11, 2001. Obviously, only time will tell,” she said.

The importance of meeting juror needs – comfort, clarity, continuity, credibility, conclusiveness, and conviction – has never been greater. The work of trial lawyers, in the wake of a societal shake up, must move to a new level of insight and understanding of jury behavior and to new levels of communicating more effectively the essential information jurors need in order to render verdicts that will reinforce and advance the judicial system rather than let it slip into a state swayed by emotion, prejudice, and misunderstanding. In the 1969 case United States v. Spock, the court held that, “the jury, as the conscience of the community, must be permitted to look at more than logic.” That guideline, taken to its own logical conclusion demands that the questions raised by the events of Sept. 11, be addressed and that trial lawyers consider carefully the effect that a changing world has on the perceptions and behavior of individuals called to be triers of fact.

As for Steve, his case in New York is on temporary hold. He has an even greater appreciation for the really important things in life – his wife, his children, and his commitment to assisting trial lawyers to make the best legal system in the world even better. He hopes the landscape will only be brighter and stronger in the future.

Craig Smith is the senior trial consultant at Prolumina Trial Technologies, in Seattle. He is a frequent CLE presenter, author of numerous articles on courtroom communication and trial strategies, and is the author of “Championship Law—Seven Keys to Winning Performance in the Courtroom.”