[This originally appeared in The Trial Lawyer Magazine, Winter 2002.]

By Walter “Skip” Walker

March, 2000, life was good. Life was “phat,” as the kids were saying. It was certainly good for everyone in the San Mateo County courtroom. Except, of course, the plaintiff. She, after all, had lost her 14-year-old son in a drowning accident. She had sent him off on a camping trip at a lakeside resort with her brother and her brother’s family. The boy had been playing at the water’s edge, had stepped in the wrong place, gone under the murky water and never come up. The boy had not been able to swim and neither had anyone in her brother’s family. They had come here from another country. They spoke with accents.

The jurors, it was clear, were busy people with important things to do. They said as much in voir dire and demonstrated it with crossed arms and hard eyes. They were not like this plaintiff or her son. They had taught their children to swim; and if they had not, they certainly would never have allowed their sons or daughters to go camping at a lake, for heaven’s sake.

The evidence went in, the arguments were made, and the case was over. Chop-chop. No negligence on the part of the resort for maintaining a commercial swimming area with a sharp dropoff, no warning, and no lifeguards.

Cut now to the autumn of 2001. A plaintiff’s lawyer, a man who has made his mark in the South Bay over the past 25 years, finds himself a defendant in a minor auto accident case filed in Santa Clara County. The man suing him is in his mid-70’s and has a grand total of $1200 in special damages for the broken rib he suffered when the lawyer backed into him while he was perambulating through a parking lot. The lawyer knows how much such a case is worth and fully supports his carrier’s decision to defend the claim at trial rather than give in to the unreasonable demand of the victim’s attorney. The jury returns with a verdict of $70,000. Why? Well, explain the jurors when interviewed, the man says his rib hurts him at night and we figured he’s going to suffer this pain every night for the rest of his life, so we determined what one night’s pain is worth and then used his life expectancy to calculate the number of nights he is going to experience this and that is where the $70,000 comes from.

Anecdotes? Sure. But we have been listening to experts tell us that a new day has dawned in personal injury litigation after the unprecedented emotional impact of the events of September 11, and maybe, just maybe, that new day is not quite what the experts have been predicting. Rather than dismiss the pain of the elderly man in the auto accident case, rather than sneer at it because it does not compare with what was perpetrated on tens of thousands of men and women on 9-11, the jurors seemed to want to do what they could to help. It was as though they, like all those who have given blood and sent money and said prayers, simply wanted to alleviate some of the suffering going on around them.

When we watched live television coverage of men, women and children just like us die helplessly for doing no more than we do every day of our lives—go to work, go to breakfast, go sightseeing, get on an airplane or an elevator– something happened to each and every one of us. It made no difference if the people coming off the top of the World Trade Center buildings were black or white or Asian or Hispanic–they were us. As Bruce Broillet, President of Consumer Attorneys of California, said in addressing the annual convention in San Francisco in November, “We are more equal now than ever in our history.” Who is the “we”? Americans. All of us who are hated just because of whom we are. All of us who could have died for no more reason than we were in a certain place when deluded people unleashed their incomprehensible fury. All of us who suddenly realized that we, too, could be victims of a totally unexpected, cataclysmic act.

Add to this the fact that the economy was already in tatters when the terrorists struck. In March of 2000, when the San Mateo County jurors returned a quick defense verdict in the case of the drowned youth and hurried back to their busy lives without so much as a word of regret for the devastated mother, the market had begun to show signs of slippage. But it had been skyrocketing for so Long that nobody was alarmed; indeed, many welcomed a little downturn to provide buying opportunities for JDS Uniphase, EMC, Cisco and other companies that had gone well beyond any possibly justifiable price. But the slippage became a slide and then an all out free fall. IPOs stopped being issued, workers–good workers, high paid workers–were laid off, companies ceased their expansions or closed altogether. Then attendant businesses began to cut back, including, even, law firms. By September 11, 2001, we were no longer so important as we had been in March, 2000. We were, instead, vulnerable.

Vulnerability, like common experience, can bring empathy and maybe a little bit of compassion. October saw consumer spending hit a 14-year low. It also saw Gil Purcell of Brayton, Purcell in Novato bring in a $16,465,000 verdict in Utah, including, reportedly, the largest pain and suffering award in the State’s history.

Let us, therefore, not forget who jurors really are. No case anywhere involving any issue will compare with what they and we know took place in New York and Washington and in a field in Pennsylvania. But in these days when people are canceling trips in order to stay with their families, when eating comfort foods at home seems preferable to fine dining in restaurants, it just may be that our cases, each and every one of them, have at least as much value as they ever did.

Let us not let insurance company representatives tell us any different.