Terrorism May Shift Jurors’ Attitudes

Social scientists who study juries and help lawyers select them say the best jurors are calm and dispassionate, capable of logically sifting through evidence and evaluating it evenhandedly. Prospective jurors who appear prone to anxiety are wild cards who should be removed.

“We would never take an angry mob off the street for a jury,” said Arthur H. Patterson of DecisionQuest, a national trial consulting firm. “But at the moment, America’s jury pool is not calm or dispassionate.

“At this time, most jurors are angry and fearful and very sensitized to terrorism, injury and death,” the senior vice president of the Torrance-based company added.

With that in mind, lawyers and jury consultants have been reevaluating trial strategies since the Sept. 11 terrorist attacks and ensuing mailings of anthrax. Attorneys are seeking delays in cases that have Muslim litigants and those that involve terrorism or civil disobedience.

Moreover, once-promising civil rights lawsuits over racial profiling no longer look so promising. Government witnesses, including police officers, may have more credibility than they did before the terror attacks, jury consultants say. Many of these consultants also expect juries to be stingier with damage awards in personal injury cases that do not involve catastrophic debilitation or loss of life.

Few jury experts expect the events of the past month to affect trials over contract disputes or patents or even to influence most criminal and civil cases that have strong evidence favoring one side. The charged emotions of many Americans, including jurors, are more likely to play a role in cases that are less clear-cut, consultants said.

“Nobody is seeing verdicts that are way out there,” said Ronald F. Beaton, a jury consultant in San Francisco. “But we expect a subtle swing toward more conservative verdicts.”

Beaton believes that lawyers will have more difficulty winning substantial punitive damages for corporate misbehavior, at least in the near term.

“Punitive damages are intended to punish malicious behavior,” said Beaton, who recently joined DecisionQuest. Recent events have “raised the bar on what is malicious. It will have to be a lot more egregious now than it was before Sept. 11, without a doubt.”

Jo-Ellan Dimitrius, a trial consultant who advised O.J. Simpson’s lawyers, said she expects jurors to be less sympathetic in evaluating personal injury cases, such as employment disputes, because such plaintiffs’ suffering will pale compared with that of those who lost their lives or family members in the terrorist attacks.

To help overcome this skepticism, she said, she would advise plaintiff lawyers to tell their clients’ stories with terminology borrowed from the terrorist attacks, deploying words like “crisis,” “terror” and “catastrophe” that could win sympathy for the litigants.

“They need to tie into words that we are now hearing the mass media use in describing the events of the 11th--emotion-packed, powerful words they hear when they are listening to their radios,” said Dimitrius, chief executive of Vinson & Dimitrius in Los Angeles.

A weakened economy also may diminish jury awards, said Marshall L. Hennington, president of Hennington and Associates, a Beverly Hills trial consulting firm.

“Jurors are finding it hard to award money to individuals when they themselves may not feel secure about their financial futures,” he said.

Certain kinds of cases may be particularly vulnerable to jury bias, consultants and lawyers said. One lawyer has a client accused of defrauding a charity that helped collect money for firefighters. That is not the kind of case he wants before a jury now, he said.

Juries also may be more punitive toward businesses that allow security lapses, said Joyce E. Tsongas, founder and chief executive of Tsongas Litigation Consultation, based in Portland, Ore.

“I am involved in litigation about a breach of security that caused personal injury to a plaintiff in a hotel. Someone got in and killed somebody,” Tsongas said. “That is on point.”

Some consultants are surprised that the bombing conspiracy case of accused Symbionese Liberation Army member Sara Jane Olson is about to go to trial at a Los Angeles judge’s order.

“There is no way she is going to get a fair trial now,” Hennington said flatly.

Not surprisingly, consultants are advising lawyers to postpone trials with litigants who are Muslim or appear Middle Eastern or with businesses that have Arabic names. Many consultants and some attorneys believe that juries will also be more likely to give the prosecution, rather than the defendant, the benefit of the doubt in criminal trials. Police witnesses may be more persuasive than in the past.

“The people who are protecting [these jurors] are the people who are testifying for the prosecution,” said Donald M. Re, a Los Angeles criminal defense lawyer.

Civil rights lawsuits that allege racial profiling by police or businesses--on the rise before the attacks--may be another casualty of terrorism, consultants say. Although such cases can still be won, it will be more difficult.

“When you get on a plane now,” Beaton said, “everybody is doing racial profiling.”

Jury consultants often conduct polling for clients seeking to have a trial moved to another community. These polls show intense emotion and bias about the client when the incident--a death or an accident--has inspired wide and emotional publicity, consultants say. But with an entire nation reeling from the terrorist attacks, a change of venue would make no difference in some cases.

Prospective jurors may not admit or even understand how terrorism has affected their perceptions, consultants said.

“The mechanisms that attorneys and the courts have to screen out bias [voir dire and written questionnaires] have been severely impacted by the terrorist attacks, in that people do not know how they have been affected by this,” said David B. Graeven, president of San Francisco-based Trial Behavior Consulting. “The whole system is designed to get at what people know about themselves.”

Some jury researchers say the patriotism sweeping the country will probably produce more people willing to serve on juries, an expectation that one Orange County judge said has already been borne out.

“Since Sept. 11, there are far fewer people wanting to bail on jury service because of alleged hardships,” said Orange County Superior Court Judge Stuart T. Waldrip.

Waldrip addressed jury pools in Orange County the week after the attacks and found “people who had tears in their eyes and a sense of responsibility to stand up and be an American.” He said judges have long tried to appeal to prospective jurors’ sense of duty to entice them to serve.

“It was harder to do before Sept. 11,” the judge said.