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An Erosion of the Right to a Jury Trial: Lesende v. Borrero v. City of Newark

New Jersey Employment and Civil Rights Trial Attorney Discusses Recent Civil Rights Case 

First of all, I'm putting out there, as per usual, that I'm a plaintiff's employment and civil rights trial lawyer. When I approach fact patterns, I think about them from the victim's perspective first, although I certainly, for tactical and other reasons, also try to imagine how the defendant might respond and what their positions might be. My sympathies and empathies, however, borne of professional training and of personal rearing before that, are with victims of civil rights and employment wrongs.

So it's with that lens that I recently read about two remittiturs - where a judge decides to lower a verdict rendered by a jury - by a federal civil judge in the same civil rights case. Each of these events, in my view, improperly usurped the role of a trial jury and the reason we have juries.

Plaintiff Lesende sued the City of Newark because she was ruthlessly and savagely beaten by a police officer who decided that he was annoyed with her because she was driving too slowly for his taste. Obviously, he was disciplined and terminated; this conversation isn't about whether or not what he did was wrong or right. The City didn't defend on that ground. Plaintiff went to trial and a jury of her - and the cop's - peers, properly instructed on the law, awarded $2.7 million in damages.

The judge, however, decided that the jury was "wrong" because the judge felt that the jury verdict was "too high." Why did he feel this way? Because he did "research" on what other "comparable" verdicts involved.

It's not right, and not just, to replace one judge's view of how a case should be resolved for that of the jury's, "research" or not. The current traditions in our law, both state and federal, do allow for judges to exercise their discretion, when there is a clear miscarriage of justice, or when a verdict shocks the conscience, to lower the verdict. The fact that judges almost never use the same discretion to increase verdicts that are also unfairly low is beside the point.

There's an alarming trend both in the state and federal judiciaries in this country - the result of a continued erosion of respect for the justice system fostered by an ignorant culture and abusive politicians - of replacing the jury's function with the individual and very personal, and therefore potentially biased, views of one judge.

The reason we have juries is because this country was founded on the principle that only through a trial by jury can someone obtain a measure of justice. There is a reason that over a hundred countries around the planet have copied our style. The fact that we inherited this tradition partially from England doesn't alter the fact that the American trial by jury system perfected the idea.

I trust juries, even when I lose. Even if I think the jury was wrong, I don't go to a court and ask the judge to replace his judgment with that of the jury, or my judgment with that of jury, because I respect the fact that a jury is allowed to be wrong, even if it's at the expense of my case. I feel this way because, viewed on the broad panorama of all jury trials, the jury system must be respected and the jury must be allowed to be wrong. This introduces an element of unpredictability which is good for all of us. Only with this element of unpredictability can parties properly decide when they wish to risk or not risk a jury trial, or risk or not risk the fact that they want to test their claims or defenses before a jury of their peers.

Drawing people unconnected to the case from the community, giving them days or in some cases weeks of evidence, documents and testimony, and then giving them a solid instruction on the law, sets them up to do the right thing, even if a party or a judge disagrees.

It's time to stop this erosion of the jury's function. People only respect the jury system when they need it and they'll only miss it when it's not there anymore. It's time to pass legislation at the state and congressional level to severely restrict the right of a judge to supplant his or her own judgment for that of the jury. This will affect, of course, all parties equally, unless, of course, there's a conspiracy to disadvantage plaintiffs by lowering verdicts far more often than verdicts are increased. Of course, I contend that that's exactly what's going on; right wing corporate, insurance and moneyed interests, through "middle of the road" (really right wing) legislators and governors, pressure, intimidate and threaten judges with non-reappointment unless they conform the anti-plaintiff, anti-rights agenda.

The plaintiff in Lesende won a $2.7 million verdict which the judge reduced to $750,000.00. Instead of taking that reduced figure, which she had every right not to do, she insisted on a new trial and this time, the second jury, unconnected with and having no knowledge of the first, gave her a verdict of $4 million. What does this mean? It means that two different juries felt the same way about the case and felt that justice required a substantial award. What did the judge do? He reduced the second verdict to the amount of the first.

That's pretty clear evidence the first reduction was wrong. It's time to reign back the power of judges to reduce verdicts. I don't contend that the judge had any particular agenda here because I'm sure that the judge was following the law as he understood it, but the law has to change. It's time to pull that discretion away from the judges and restore the sanctity and respect that the jury system deserves.

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