On April 3, 2018, I was called to jury service as a trial juror in Supreme Court, New York County. And, for a lawyer, being on the other side of the courtroom rail is a thought provoking experience. My chances of being chosen to sit on a civil tort suit, of course, were slim–former prosecutor, insurance defense and coverage attorney and an acquaintance with many of the plaintiff and defense practitioners in New York County.

Step one in the jury selection process is Voir Dire, an Anglo-French term which literally means: To see, to speak. But I prefer the Latin derivation of the phrase: Verum dicere, meaning “To say what is true.”  What the law wants is “fair and impartial” jurors who will decide the case on the facts disclosed at trial.

What advocates want is something else–jurors “open” to their view of the matter on trial. Jury selection has become a science, a practice featured on Bull, a popular TV drama featuring Michael Weatherly playing Dr. Jason Bull, a character modeled after Phil McGraw who began one of the most successful trial consulting firms in the country. Like all jury consultants, Bull purports to use everything from social media to neurolinguistics to discern what really makes a juror tick, and thus either a good or bad choice for counsel.

As I sat through my first voir dire in a medical malpractice action, I re-discovered, in a visceral way, what I always knew, the challenge for the lawyers is to judge whether the prospective juror is really saying what is true (verum dicere). Potential jurors who don’t want to serve, to be sure, know what answers to give. And all good advocates recognize these for what they are–polite fibs to avoid the trial time commitment. So, the real challenge begins when the fibbers fall away and the potential panel consists of those citizens prepared to give of their time to decide the contest.

I have used jury consultants and their insights are often valuable. The usefulness of their contribution depends in large measure on how well counsel has developed its trial themes and the overall narrative of the story counsel plans to tell at trial. But the reality is jury consultants are pricey and the cost often outweighs the potential benefit in the garden variety controversy.

So, how do you tell whether the juror is telling the truth about potential bias, about attitudes, about whatever issue matters to your trial themes. There are no magic answers. Go with your gut. And if you want a rationale for this tried and true advice, I urge you to read Blink by Malcolm Gladwell who had a simple but profound insight: We get into trouble when we try to talk ourselves out of a gut feeling. According to Gladwell, our brains are fabulous microprocessors that process information on many, many levels–levels well beyond our conscious awareness.

Say, for example, your gut tells you something is “off” about an engineer in the panel of prospective jurors; yet, your mind tells you a person trained to solve problems and think logically is ideal. What to do? Gladwell would urge you to follow your instinct and use a peremptory challenge to strike the engineer.

By now, after this musing, you’re wondering what became of my jury service. I was bounced from a panel in a medical malpractice “pre-qualification” panel because WCM had cases with defense counsel’s firm. And, at 4pm, the jury clerk dismissed everyone because so few cases were trial ready because of Spring Break Week.

But back to Gladwell, and another word of caution. A nurse excused from the same med-mal panel and I started chatting as we headed for the exit upon being excused from our term of service. But she, unlike me, sat through several hours of questioning. Bold, and thinking of Gladwell, I asked my new friend: “Based on what you saw during voir dire–and if you needed a lawyer–who would you hire?” “Easy call,” she said, “Plaintiff’s Attorney.”  Puzzled, I asked why, because, to my eye, defendant’s counsel seemed, well, more authentic and in command.

The answer? “Defendant’s counsel slouched and was sloppy in appearance. “

The moral of this tale is this: Stand straight and wear clothes that fit. To give my elevator friend due credit, defendant’s lawyer did look like he was wearing his older brother’s suit. And it was green, a poor color choice for an advocate unless, of course, you are Reaganesque.

And that’s it for this This and That.

Each Spring, the New York State Bar Association hosts a Continuing Legal Education Program dedicated to coverage issues. This year, Dennis, a sports maven (and a weekend warrior), will discuss how the judiciary addresses or balances the risks inherent in sport and recreational activity.  His written submission, with co-author Nicholas Schaefer, is entitled: Liability for Sporting and Recreational Activities.

If you care to attend live, here is a link to the program www.nysba.org/PremisesLiability.

In a matter a first impression certain to benefit art insurers everywhere, New York’s Appellate Division, First Department unanimously agreed with WCM’s argument that a fine arts dealer all-risk policy insuring against loss or damage to works of art does not provide coverage for defective title.  In DAE Associates, LLC v. AXA Art Ins. Corp. et al., the plaintiff, an innocent art gallerist, fell victim to a scheme perpetrated by an infamous thief, now convicted felon, James Meyer.

For 26 years, Meyer was the trusted studio assistant of iconic American artist, Jasper Johns.  Between 2006 and 2012, Meyer stole a number of artworks from Johns and then sold them to unsuspecting gallerists and collectors on condition the buyers could not sell or display the works for seven years, or sooner if Johns died.  To make the curious caveat plausible, Meyer explained this proviso, telling the buyers the art was gifted from Johns and he would be embarrassed if Johns discovered the sale.

In 2010, the plaintiff, Danese, was approached by an intermediary claiming to have Untitled, 2002-2005, Acrylic on paper, 37 ¼ x 30 inches, by Jasper Johns, for sale.  As with other victims of Meyer’s scam, he was told the work was available on the condition the eventual buyer keep the work private and not sell or loan the work for seven years or until Johns died.

After finding a couple willing to buy the work, Danese bought the work and then sold it to the couple for $898,218.75.  In the contract of sale, Danese warranted he had marketable title to the work and agreed to rescind the purchase price in the event title proved defective.  Three years after the sale, the FBI visited the couple to report the Johns hanging in their home was stolen.  After returning the work to Johns, the couple sued Danese under the contract for a refund of the purchase price.

Faced with a lawsuit for a refund of the sale price, Danese sued AXA for coverage under his Fine Arts Dealers All-Risk policy.  That policy afforded coverage for “all loss or damage to insured property.”  Danese argued coverage existed because he suffered a loss; the policy did not use the word “physical” to modify the words “loss or damage;” and, the policy did not contain an exclusion for defective title.  AXA disagreed, arguing no coverage existed because there was no loss to the artwork itself; the plaintiff’s loss was purely financial, flowing from a simple breach of contract; and, to find coverage would effectively transform the all-risk policy into a title insurance policy, which Danese knew was a separate and more expensive product.

After Judge Oing, then a Justice of the New York Supreme Court, granted AXA’s motion to dismiss, Danese appealed to the First Department.  In opposition, WCM presented the issue before the court as follows:

Renato Danese, with a number or other intermediaries, brokered the sale of a stolen work of art, Untitled, 2002-2005, by Jasper Johns to Perry and Donna Golkin for $898,218.75.  Those sale proceeds were divided among the intermediaries, with $175,000.00 going to Danese.  In his written contract with the Golkins, Danese agreed to refund the full $898,218.75 sale price if title proved defective. After the FBI seized the stolen work, Renato Danese turned to AXA, requesting indemnity for the full $898,218.75 sale price of the stolen work.  Danese did so even with an admitted awareness that he did not have title insurance for such reimbursement.  Judge Oing properly found that there was no fortuitous loss of the work itself, but ruled the loss arose from a purely financial transaction:  Danese’s breach of the Golkin sales contract.  Under these circumstances, should Judge Oing’s decision be disturbed?

Earlier this week, the First Department unanimously answered that question with a resounding “No,” and ruled that “[t]he all-risk policy at issue, which covered insured property for ‘all loss or damage to insured property,’ did not apply to plaintiff art gallery’s contractual liability to purchasers of stolen artwork that was returned to its rightful owner.”  In doing so, the court accepted WCM’s argument that “[d]efective title is clearly not a physical loss or damage….from any external cause” and that “[d]espite the fact that the phrase ‘loss or damage’ in the policy was not qualified by terms such as ‘direct’ or ‘physical,’ [w]e may not, under the guise of strict construction, rewrite a policy to bind the insurer to a risk that it did not contemplate and for which it has not been paid.”

Today’s decision is a significant victory for art and title insurers everywhere.  By recognizing “[i]t is not reasonable to interpret a policy so broadly that it becomes another type of policy altogether,” the First Department provided assurance to art insurers that they will not be forced to pay title claims they never agreed to insure.  And title insurers may now take comfort in a ruling that refuses to undermine their market by transforming occurrence-based policies into something they are not.

AXA was represented by Dennis M. Wade and Michael A. Gauvin of Wade Clark Mulcahy, with Dennis arguing the matter before the First Department.  If you have any questions, please call or email Dennis at .