New Trial Ordered Where Juror Objected To Defendant Not Putting Hand On Bible When Being Sworn In

Trial lawyers warn young lawyers to be careful because jurors are always watching. You never know when what you do or say will be seen by a juror and color his or her impressions of you. This can sometimes make you paranoid. I had a Starbucks coffee with me on the first day of a jury trial but, after noticing several jurors with Dunkin Donuts coffee drinks, I switched to Dunkin. I doubt this was crucial to the jury’s deliberations, but sometimes the results are far more significant. Such was the case in Davis v. Husain, where a juror’s observation that defendant did not place his hand on the Bible when being sworn in led to the jury’s verdict being reversed and defendant being granted a new trial.

In Davis, plaintiff sued defendant under New Jersey’s Law Against Discrimination. The jury ruled in plaintiff’s favor, and awarded her damages. After the trial, the judge met ex parte with the jury. During that meeting, “a female juror mentioned that [plaintiff] had not placed his hand on the Bible when taking the oath.” The judge told counsel about this revelation, but refused to make any further inquiries of the jurors or grant a new trial.

Defendant appealed the jury’s verdict, and the case eventually made its way to the New Jersey Supreme Court, which “flatly prohibit[ed] ex parte post-verdict communications between trial judge and jurors,” like the ones that had occurred in Davis. (That decision can be found here.) The Supreme Court remanded the matter to a different trial judge to determine whether the juror’s “actions or comments affected others on the panel,” and whether “a good case showing [could be] made that the jury’s decision was tainted by misconduct.”

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Judges Voting From Beyond The Grave?

“May a federal court count the vote of a judge who dies before the decision is issued?” The cynical New Jersey resident in me thinks the answer to this question is simple – people vote all the time in New Jersey after they die. But this was not what the Supreme Court was after in Yovino v. Rizo.

Yovino was before an en banc panel of 11 judges at the U.S. Court of Appeals for the Ninth Circuit. One judge participated in oral argument, voted, and wrote a decision on the case, but died before the decision was released. The Ninth Circuit nonetheless counted his vote, which was significant, because it was the deciding vote. By counting his vote, the judge’s decision became the majority opinion and thus binding precedent in the Ninth Circuit. If his vote had not been counted, then the case would have ended in a 5-5 tie with no majority opinion, and thus no binding precedent.

The Ninth Circuit claimed that it was justified in counting the judge’s vote because “the majority opinion and all concurrences were final, and voting was completed by the en banc panel prior to his death.” The Supreme Court disagreed. It held that, by statute, only active or senior-status judges can participate on en banc panels. It further held that judges’ votes and opinions do not become “immutable at some point in time prior to their public release,” but instead, “a judge may change his or her position up to the very moment when a decision is released.” Thus, a decision is not final until the date of its release. And if a judge dies or retires before that date, then he or she is no longer an active judge or a senior judge when the decision is made, therefore his or her vote does not count.

Applying this standard to Yovino, the Supreme Court held:

Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.

(Although the lede is sufficiently buried at this point, that last sentence is the main reason why I wrote this post.)

Lawyer Loses Challenge To Rule Limiting The Amount Of Time He Could Speak At City Council Meeting

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

SpeakingThere is a lawyer joke in here somewhere about lawyers suing to get more time to speak or how someone should sue to force lawyers to talk less. Potential jokes aside, the issue in Feld v. City of Orange was an interesting one. In Feld, plaintiff challenged a municipal ordinance that reduced, from ten minutes to five minutes, the time members of the public could speak on certain matters at city council hearings. Plaintiff claimed that this ordinance violated his First Amendment right to free speech. Spoiler Alert: He lost. But the issue and the decision are nonetheless interesting. 

Feld was the latest chapter in litigation that has been raging between plaintiff, a lawyer, acting on behalf of himself and his parents' business, and the City of Orange for years. (In a prior decision, the Appellate Division noted that plaintiff considered himself a "zealous gadfly" and a "radical barrister.") At some point during this long-running battle, the city adopted an ordinance "that reduced the time from ten minutes to five that individual members of the public could speak at City Council meetings on general  issues, agenda items or second readings of ordinances before adoption." The city council claimed the change was necessary because "council meetings can extend late into the evening or early into the next day" and this "discourages, if not precludes[,] a fair opportunity to be heard by other members of the public." The city council further claimed that, "without appropriate and rational limitations, the rights of all public speakers [would be] curtailed and undermined." The city council also noted that other municipalities limited the time for speaking during public meetings to five minutes.

The underlying issue in Feld involved plaintiff's objection to the city council's adoption of a resolution that allowed the mayor to sign a lease and option to buy a building owned by the YWCA of Orange, which was in bankruptcy. He challenged the resolution when it was before the city council, and, after it passed, filed a 257 paragraph complaint in lieu of prerogative writs seeking to have it invalidated. As part of this complaint, he also challenged the rule reducing the amount of time members of the public could speak at city council hearings. After filing his complaint, plaintiff filed an order to show seeking, among other things, to restrain the city from enforcing the five-minute rule while the lawsuit was pending. The trial court heard oral argument on the order to show cause, and took testimony from a witness on behalf of the city, who testified that the rule was necessary to "administer the Council meetings more efficiently," and that it was an attempt to "make sure that all of the comments are heard and that everyone gets a chance to talk."

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You Can’t Be Compelled To Arbitrate In A Nonexistent Forum

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Arbitration (pd)This one may seem obvious, but, in MacDonald v. Cashcall, Inc., the U.S. Court of Appeals for the Third Circuit held that a contractual arbitration provision that calls for arbitration in an "illusory forum" is not enforceable. So, if you were thinking about trying to compel arbitration in Wakanda or before the Jedi Council, better think twice.

In MacDonald, plaintiff entered into a loan agreement with a entity known as Western Sky in connection with a $5,000 loan. The loan agreement stated that it was "subject solely to the jurisdiction of the Cheyenne River Sioux Tribe," and "governed by the . . . laws of the Cheyenne River Sioux Tribe." It also contained an arbitration provision requiring that any disputes arising out of the agreement be "conducted by the Cheyenne River Sioux Tribal Nation by an authorized representative in accordance with its consumer dispute rules and the terms of [the agreement]." But the agreement also provided that either party, after demanding arbitration, could select an arbitrator from the American Arbitration Association ("AAA") or Judicial Arbitration and Mediation Services ("JAMS") to administer the arbitration, and, if it did, "the arbitration [would] be governed by the chosen arbitration organization's rules and procedures" to the extent that they did not contradict the "law of the Cheyenne River Sioux Tribe." The agreement also contained a severability clause, providing that, if any provision of the agreement was deemed invalid, the remaining provisions would remain in effect.

Although plaintiff originally borrowed $5,000, "[h]e was charged a $75 origination fee and a 116.73% annual interest rate over the seven-year term of the loan, resulting in a $35,994.28 finance charge." After paying approximately $15,493 on the loan, which included $38.50 in principal, $15,256.65 in interest, and $197.85 in fees, plaintiff filed a putative class action lawsuit against defendants, asserting federal RICO claims and state law claims for usury and consumer fraud. Defendants moved to compel arbitration. The district court denied the motion, holding that the loan agreement's "express disavowal of federal and state law rendered the arbitration agreement invalid as an unenforceable prospective waiver of statutory rights." Defendants appealed. 

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I Thought That Juror Looked Familiar!

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Jury (pd)What happens if you are a party in a lawsuit and you recognize one of the jurors as someone who not only knows you, but probably does not like you and may be looking for revenge? According to the Appellate Division in Rumbas v. Sony Electronics, Inc., at the very least, you bring it up before the jury returns its verdict.

In Rumbas, plaintiff claimed that a television defendant manufactured was defective and caused a fire that damaged plaintiff’s condominium unit and three other units. At the start of jury selection, the judge explained the nature of the case to the potential jurors. He then sat the first eight jurors in the jury box and explained the jury selection process. Specifically, he explained that he would be asking a series of 28 questions, each of which was “designed to elicit a negative response.” As jurors in the box were excused, they would be replaced by jurors from the panel, but the judge would not repeat the 28 questions. Instead, he would simply ask the replacement juror if his or her answer to any of them would be anything other than “no.”  Therefore, the judge stressed that it was important for all jurors, not just those in the jury box at the time, to pay attention to the questions.

Early on in the selection process, while the original eight jurors were seated in the jury box, the judge asked the attorneys to introduce their clients. Plaintiff was not in the courtroom at the time. Apparently, he had to go to the pharmacy, but his attorney indicated that he would be returning soon. The judge then read a list of potential witnesses and asked if any of the jurors knew any of them. None did. During this questioning, plaintiff returned to court, at which time he was introduced to the jurors. The judge asked if any of them knew plaintiff, but none did.

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