Anybody Want To Strike?

So, it’s the Bronx.  And in the courtrooms of the Bronx, unlike almost everywhere else in New York State including Manhattan, regular people – not just celebrities – are acquitted of crimes and awarded substantial damages in personal injury actions with some regularity.  Seems to be something about the jury pool.

But there’s no jury at the Appellate Division, First Department, to which the losing party can appeal.

So this jury in the Bronx awards some guy over $2 million on an excessive force claim because the police tased him when he was having a seizure, and it’s pretty lucky under those circumstances the guy wasn’t killed.  And on the appeal the Appellate Division reverses, throws out the entire jury award and directs that the case be dismissed. (h/t Scott Greenfield)

Their rationale for doing this was, basically, they took exception to the jury’s reasoning.

Now as I have noted many times in earnest (most recently here and here) – and as one of my colleagues has better illustrated through his/her customary satire – when it comes to jury verdicts there appears to be a rather pronounced double standard in the intermediate appellate courts:

In Part I, I trace the origin and history of courts’ purported deference to jury credibility determinations. I say “purported” because, when it comes to important matters like money settlements, courts have no hesitation about setting aside jury verdicts. See Behemoth Leviathan RR Co. vs. The Widow Jukes (1920). It’s only in criminal matters that the jury’s sense impressions become sacrosanct.

To call it a “double standard” is, of course, putting it mildly.  It’s as if when a jury finds a criminal defendant guilty we wax poetic about the sanctity of the jury; but when a jury awards “too much” to some regular schmuck we’re practically delighted to second guess them.

Consider just this one aspect of such a ruling:  even if it is the Bronx, getting a jury exercised enough to award $2 million or more for a regular person takes a lot of doing by the attorney.  A lot.  No one who hasn’t done it could possibly understand what’s involved in any tangible way, and “no one” assuredly includes every member of the Appellate Division’s panel.

So one effect of the ruling is to generate discouragement and even despair among the Plaintiff’s bar.

And here’s another thing.  Just because a jury awarded $2 million doesn’t mean the Plaintiff can collect it, even if the appellate court doesn’t fuck with the verdict.  There might not be insurance available to cover it, for example.  Although in this case there probably was coverage, which is why the AD took such an interest and reversed, whereas in almost every other case where the favored litigant wins and the disfavored litigant loses the AD just mindlessly affirms.

That, too, lends itself to satire.

How does this go on in the appellate courts?  A very big part of the answer to that question is that the power differential between favored litigants (government, bank, insurance company) and disfavored litigant (non-famous, non-wealthy regular individual) is huge and there’s no way to bridge it.  No conventional way, that is.

Anonymous satire is all well and good, and we need to keep our sense of humor, but ultimately this is a classically corrupt court decision – and make no mistake that gross favoritism to the powerful is corruption, whether it’s conscious or not – that calls for a lawyers’ strike by the members of the disfavored litigants’ bar; that is, the criminal defense guys and the PI Plaintiff guys.

Unless and until the judges on the Appellate Divisions and elsewhere pay some price for their outrageous partisanship and toadying for the more powerful against the weaker there is no reason for it to stop.  Surely that decision deserves at least a one-day work stoppage and protest in the First Department.

You – we – have to make them pay.  We have a simple, easily accomplished, traditional and non-violent way to do that.  If we refuse to even try then the “system’s” continuing dysfunction is not just the Appellate Division’s fault.

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Filed under financial crisis, Judicial lying/cheating, Striking lawyers

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