In his charge to 11 jurors on April 19, U.S. District Court Judge Michael Mukasey instructed jurors that their job is to decide whether the Willis Group's “Wilprop” form was the governing form for each insurer's coverage agreement when the terrorist attack on WTC took place on Sept. 11, 2001. (One juror was dismissed earlier this month because of a business obligation that prevented him from serving through the end of the trial.)

The judge also instructed jurors that it was the 13 insurers in this case who had the burden of proof to demonstrate that a majority of the evidence pointed toward insurers agreeing to the Willis form. If the evidence is equal on both sides, the judge told jurors that they must vote against the insurers. The jury's verdict must be unanimous in this case, he also said. His charge lasted a little more than 40 minutes.

As the six-men, five-women jury began its deliberations, it sent out several notes to Judge Mukasey during the course of last week:

In one note, the jury asked the judge about an e-mail sent from Willis, Mr. Silverstein's broker for the WTC insurance placement, to an underwriter at Swiss Reinsurance, the carrier with the largest insured interest in dispute.

The e-mail in question, sent in July 2001, had an attachment containing a form from Travelers Property Casualty a form which would help Mr. Silverstein's claim that the WTC attack constitutes two reimbursable events, as opposed to the Willis' “Wilprop” form, which defines the attack as a single event.

The jurors heard testimony that a Swiss Re underwriter had received this e-mail (which also had other attachments), but that the underwriter had not responded to it.

In the note, the jury asked, “Does just getting the form and remaining silent constitute an agreement to the form?” The jury explained in its note that it couldn't reach consensus on whether the Swiss Re underwriter, by not responding to the e-mail, could have agreed to a switch from Wilprop to the Travelers form. And the jury requested that Judge Mukasey clarify his instruction on legal requirements for finding an agreement to change forms.

In response, the judge explained to jurors that silence doesn't constitute a new agreement and that the earlier agreement continues to govern. But he also said there could be exceptional circumstances, such as when silence could mislead the party that asked to switch forms by making that party believe that there had been a new agreement.

Judge Mukasey said it's up to the jurors to decide whether there were such exceptions in this case. He added that jurors should examine the history of dealings between Willis and Swiss Re, as well as any other circumstances that they find relevant “to determine whether there has been agreement to any change in form, or whether a party has received fair notice of a proposed change in form under circumstances in which its silence could mislead another party.”

The jury also sent a note asking to see summations from both sides in their entirety, but the judge denied the request, explaining it would be difficult for jurors to review the entire summations, which are hundreds of pages long.

“Summations took two days. It is inconceivable that the jury could review those summations in their entirety in the jury room,” Judge Mukasey said. He said there is no readily available way for jurors to find the parts that they may want, and “that leaves to chance what they might find and what they might not find.”

In another set of notes, the jury asked for clarifications on facts concerning Lloyd's of London underwriters. In these notes, the jurors asked if either Munich Re or Swiss Re International constitutes part of Lloyd's syndicates. The jury also requested a second look at testimony concerning several Lloyd's syndicates.

Reproduced from National Underwriter Edition, April 23, 2004. Copyright 2004 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.