Can Jury Smartphone Alerts Push the Buttons of the Court of Appeal? – The Hollywood Reporter

The New York Times Winning a smear battle with former Alaska Governor Sarah Palin is not exactly a surprise. However, when you throw in a federal judge indicating that he will dismiss the case while the jury is still deliberating, modern technology makes some jurors aware of the decision before they Given the recent rulings and criticisms of the actual standard of malice, it’s also not exactly business as usual.

Summary of nearly 5 years of litigation: 2017 Palin . litigation NYT for defamation about a gun violence editorial linking one of Palin’s political action committee ads to the 2011 mass shooting in Tucson that left then-U.S. congresswoman Gabby Giffords seriously injured. The newspaper quickly issued a correction explaining that no connection had been established between the PAC ad and the shooting. She said its response to the public backlash was “unfortunately insufficient”, and argued the newspaper knew there was no connection, noting many other things. Times works published at the same time disproved the idea.

U.S. District Judge Jed Rakoff in August 2017 dismissed the complaint – finding that Palin, a public figure, did not meet the standard for expression of true malice – but in August 2019 , the fight was revived by a federal appeals court. Rakoff denied a subsequent request for summary judgment on the grounds involved. After the trial was delayed due to Palin contracting COVID-19, it began in earnest on February 3, and the debates ended on Friday.

Rakoff on Monday said he would dismiss the matter regardless of the jury’s outcome, finding Palin did not exhibit the necessary malice at trial. It is not uncommon for defendants to ask the court to rule instead of waiting for a jury verdict because they feel that the plaintiff is failing to bring their case, but the timing and circumstances here are changing. concern the legal community.

Charles Harder, famous lawyer won $140 million jury verdict Gawker on behalf of Hulk Hogan in 2016, attended the trial to observe and talk about the judge’s overall handling. “He seemed to handle the selection of the judges quickly and fairly; he seems to handle matters of evidence fairly; He treated all the attorneys and the jury very well,” Harder said. “He seemed smart and commanded the case. He also had a sense of humour and made the trial less boring by making things clear.”

But the lawyer questioned Rakoff’s “unusual” decision to publicly state that he would dismiss the case while the jury still considered it. “Judges can easily be influenced by what judges say and do,” says Harder. “I think the judge’s thinking is that, if the jury finds Palin in favor, the Court of Appeals will have a choice: either uphold his removal on the grounds of Rule 50, or confirm the jury’s verdict. But I think the jury’s verdict went awry when he publicly announced that he was going to fire. “

While she’s also surprised at the timing of Rakoff’s decision, Haynes Boone’s head of media law team Laura Prather sees the logic behind it. “While Judge Rakoff’s decision while the jury is still deliberating may seem odd, it is consistent with the aggressive records management he demonstrated throughout this litigation. ,” she said. “By allowing the jury to continue deliberating, the Second Round will benefit both the Court and jury decisions on appeal.”

Ashley Yeargan, a partner at Russ August & Kabat who often represents senior plaintiffs in defamation cases, also argued that Rakoff’s decision to allow the jury to reach its own conclusions at least one Part is motivated by the possibility of appeal. She said: “He was assessed by the Second Circuit once on this matter, which inadvertently said it was up to the jury whether the editor’s conduct was consistent with ‘true malice. economic or not”. “That was probably a factor that made the jury deliberation work.”

The jury on Tuesday returned a one-page verdict form showing NYT not responsible.

Media lawyer Daniel Novack says Rakoff’s decision is the right call, but he remains in doubt about the timing. “I understand the urge not to keep [former editor James] Bennet and Times in suspense, or to give Palin an emotional roller coaster of seeing the jury find her favor just to win, but every day the jury doesn’t return a verdict, the more plenty of opportunities for them to see the headlines and wonder what the judge knows that they don’t. “

That is exactly what happened. Over the weekend, jurors were reminded by email not to read or see any coverage of the case in the press or speak to anyone other than their jurors about the matter. — but according to Wednesday’s order, Rakoff said a court clerk received it. information from multiple jurors during post-sentence follow-up that they receive news notifications of the decision on their smartphones. They insisted it did not affect their verdict.

Here’s how Rakoff describes it: “It is the uniform practice of the Court after a judgment has been rendered in a jury trial that the clerk of law of the Court ask the jury if there is a problem in understanding the Court’s law instructions or not, so that improvements can be made in future cases Late yesterday, during such an investigation in this case – in which the jury confirmed that they fully understood the instructions and made no suggestions for jury guidance on future cases – some jurors volunteered to ask the law clerk that, prior to sentencing of the jury’s decision in this case, they learned of the fact of this Court’s Rule 50 decision on Monday to dismiss the case on legal grounds. Although they tried to follow the Court’s instructions to avoid media coverage of the trial, they inadvertently received ‘push notifications’ on their smartphones. h contains the key text of the award. The jurors repeatedly assured the Court’s law clerk that these notices did not affect them in any way or play any role in their deliberations. “

Rakoff also noted that neither side objected to his plan to reach a decision but “allowed the jury to continue deliberating so that the Court of Appeals would benefit both the Court’s legal decision and the jury’s decision.” jury.”

However, he is giving them a chance to resolve any grievances now. “However, out of an abundance of caution, the Court brought the facts set forth above to the attention of the parties,” Rakoff wrote in the Feb. 16 order. “If any party feels there is any way of settlement that they seek based on the foregoing, attorneys should expeditiously initiate a joint telephone conference with the Court to discuss whether any further proceedings are appropriate.”

While some attorneys are consulted by CHEAP predicting Palin will continue to fight, they doubt that she will eventually succeed.

“I imagine that Palin will try to move on to a new trial, arguing that it is impossible to know whether the jury reached its conclusion on its own or was influenced by the judge’s opinion midway through the deliberations, ‘ said Yeargan. “It will be interesting to see if Judge Rakoff interprets such a motion or says a new trial will be contested as he could decide by law that Palin cannot prove her case. there.”

In the event that Palin brings the matter back to Circuit 2, push alerts will likely come into play – although the modern technological turning point doesn’t change the underlying legal issues.

“News that some jurors know that the judge has determined Times are entitled to rule as a matter of law before they give their judgment which can become an issue on appeal. Palin could argue that the judge’s announcement influenced the jury in their deliberations,” said Anne Champion, Gibson Dunn partner whose expertise includes First Amendment issues. most, say.

“She will appeal on the grounds that a Rule 50 dismissal was inappropriate, and that the judge’s public announcement harmed the jury, and therefore their verdict should also be upheld,” Harder said. blank,” Harder said. “If she wins on appeal, her grand prize will be to go back and rehear the case before Judge Rakoff and a new jury. Not the ideal scenario. I wouldn’t be surprised if Palin threw the towel at this point. ”

It also won’t surprise Novack. “It is reassuring to see the jury reach the same conclusion as Judge Rakoff,” he said. “I question conventional wisdom to which Palin would certainly appeal.”

Prather added, “The jury’s verdict demonstrates that both truth and the law go hand in hand in protecting the breathing space needed for media organizations to cover issues that the public has to deal with. care in a way that they will not fear retaliation for making an honest mistake that they will quickly correct . ”

However, how much room there should be for honest mistakes has remained at the heart of recent debate about the de facto standard of malice – which has been in effect since the 1964 US Supreme Court decision in New York Times sues Sullivan. In order for a public figure to succeed in a defamation claim, he or she must prove to the respondent who made the statement in question with “the knowledge that it was false or with a lack of discretion about Is that wrong or not?” In July, U.S. Supreme Court justices Clarence Thomas and Neil Gorsuch wrote separate dissenting opinions on a defamation issue and argued that the actual malice standard should be reconsidered.

“Quite a lot of people have written about how the Supreme Court of the United States might reconsider the actual standard of malice one day,” Harder said, adding that he doesn’t think Palin sues NYT is the right case to use as a vehicle for that. “The Times‘the conduct here seems to have been treated as ‘an honest mistake’ as I think the judge rightly observed, rather than recklessly disregarding the truth by clear and convincing evidence. So a case like this is not the best for a plaintiff to take to the Supreme Court to claim a new standard.”

He also noted that only two judges seemed particularly interested in the subject. “It takes four out of nine judges to issue the certificate, and five out of nine judges for a majority opinion change the standard,” Harder said. “I don’t see either of those as a particularly likely scenario – certainly not based on the facts in the Palin case.”

Champion hopes to see more famous cases like this filed against major media companies and, even if most of them are unsuccessful, they say they can still have an effect. cold. “The alleged defamatory aspects of the article were actually implied, and it was sometimes difficult to see all that was implied in what we wrote and said until the public began to use it, and it takes time for journalists, editors, and news organizations to work through that,” she said. when content is quickly and widely distributed, but can also be edited quickly and widely, because Times did here. ”

As for Palin, it remains to be seen how and how she will continue this fight. Outside court following Rakoff’s decision, the former governor said, “This is a jury trial and we’ve always appreciated the system. So whatever happened in there hijacks the system. However, after the jury’s verdict, she admitted that she was “disappointed” and hoped for an appeal.

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