Our judicial system requires juries to review only evidence produced at trial. That is the system we have had since before 1776. A juror who brings in a medical dictionary to better understand medical testimony would violate the oath they take as jurors. The theory is that a jury should review only the evidence that has passed judicial scrutiny. We have an adversarial system that relies on two different parties battling it out in court. If a juror does her own research, that turns everything upside down.

So, what happens when a juror looks something up on the internet? Everyone, well, almost everyone carries a little computer with him –  a cell phone. It has become second nature to some folks to pull out the phone and look something up. But, that is all wrong for the jury. A jury cannot review or consider something that was not introduced as evidence during the trial. Courts have been wrestling with this phenomenon. In U.S. v. Zimny, 846 F.3d 458 (1st Cir. 2017), a juror did violate her oath as a juror.

Mark Zimny operated a business known as Ivy Admit. The business helped Chinese and South Korean students get into prestigious American boarding schools in return for the parents making surreptitious donations to the school. The donations would be processed through Ivy Admit. But, Mr. Zimny kept much of the donations. So, he was charged and his trial attracted the attention of a blog post. Several hundred comments were made to the blog. People were very upset with Mr. Zimney. The comments were very angry and contained threats against the defendant. One of the comments was apparently made by a juror. Juror No.  8 said when she left the jury, half of the jury supported conviction, while half favored acquittal. Juror No. 8 had left the jury before trial ended for medical reasons. The judge called her back and asked her about the comments. She assured the judge she had visited the blog only after she was removed from the jury. A few days later, another purported juror made a comment on the blog. That comment referred to Juror No. 8.

The judge did not ask the other jurors if they had been affected or even if they were aware of Juror No. 8’s visits to the blog during the trial. Defendant Zimney appealed the court’s failure to interview other members of the jury. The appellate court found that Zimney did not suggest questions to the court to ask Juror No. 8 about whether she was affected by the comments on the blog. Not having asked to pose such questions, the defendant cannot appeal the court’s failure to ask such questions.

But, regarding the other juror, the court found some concern. The second juror who commented on the blog post remarked that Juror No. 8 was “spouting about” some things she had seen on the blog, at the trial. That comment indicated that Juror No. 8 had indeed discussed with jurors what she had seen on the blog. The court of appeals felt this would “inflame” the passions of the jury. The First Circuit panel concluded that the Defendant’s concern was legitimate. There was a colorable claim that Juror No. 8 saw things on the blog post and shared them with other members of the jury.

The court recognized the possibility that in the future, some defendant could prolong a trial by making inflammatory comments online. That is, a friend of an accused could help him avoid trial by making inflammatory comments online in the hopes of contaminating the jury. But, in the circumstances of this case, the district court should have investigated the actions of Juror No. 8 and of the second juror more closely. Zimney, at p. 468.

Mr. Zimney urged the appellate court to overturn his conviction and order a new trial. But, the higher court would not go there. Instead, the panel ordered the district court to investigate the actions of the jurors and determine if those actions were prejudicial to the jury. See decision here. The court of appeals retained jurisdiction over the remaining points of appeal.

No one wants to overturn a jury verdict. But, what do you do if the jury was contaminated by outside influence? Way back when, in 1807, Aaron Burr was tried for treason. In the early days of the Republic, that was the OJ Simpson case of the era. The Burr prosecution received overwhelming media attention. The justices had to work mightily to find jurors not contaminated by media accounts. Justice Marshall presided over the trial. He wrote in the opinion that an impartial jury must be seated. But, what does that mean? It means a jury that not only states it will abide by the evidence, but one that truly means it. Justice Marshall said a man (they were all men at the time) must come to jury duty “with a perfect freedom from previous impressions.” U.S. v. Burr, 25 F.Cas. 49, 50 (No. 14,692g) (CC Va. 1807). That is high burden, but one that is required by our system of justice.


Most lawyers avoid discovery sanctions like the plague. Yet, some parties accept the risk. One recent sanctions award amounted to $2.7 million. In a lawsuit entitled Goodyear Tire & Rubber Co. v. Haeger, the U.S. Supreme Court heard an appeal regarding that very lag sanction award. Justice Elena Kagan ruled in a unanimous opinion that the amount was too large. It exceeds the fees incurred by the wronged party due to Goodyear’s discovery abuse.

The parties had reached an agreement to settle the lawsuit when the plaintiffs learned that Goodyear had failed to produce the results of a tire test. The Arizona judge awarded sanctions based on the legal fees incurred since the date when the defendant failed to produce the requested information. The Supreme Court court, however, said that was error. The amount of the fees should be based on fees incurred due to the discovery abuse. The higher court required a “But for” standard that looks at the expenses incurred due to the discovery abuse. The court asks what would have been incurred but for the discovery abuse.

The plaintiffs responded that $2 million in attorney fees were incurred after the abuse was discovered. The parties would have settled otherwise, they argued. But, the Supreme Court noted the district court awarded $2 million in fees if the $2.7 million was overturned, indicating the district court did not believe the $2.7 million was directly due to the discovery abuse. The federal district court would have to reconsider its $2 million contingent award in night of the Supreme Court ruling. See ABA Bar Journal report.

The President has done it, again. He has said things that were later used against him in court. He issued an Executive Order a few weeks ago threatening to cut off funding to cities and communities that supposedly provide “sanctuary” to unlawful immigrants. The city of San Fransisco and other communities filed suit to stop that obstacle to funding. A federal district judge in San Fransisco found against the administration. The DOJ lawyers argued the cut to finding would only impact a small portion of funding. But, Pres. Trump’s comments indicated differently. The cut to funding, said the President, was a “weapon” against communities that disagreed with his policy. And, in February, Pres. Trump said he would cut off funding to the entire state of California, because it was “out of control.”

These statements, said the judge, indicated the administration intended a very broad cut to funding. Only Congress could tie funding (or no funding) to broad actions by state and local governments. Too, added the judge, the administration cannot tie a lack of funding to a program not related to the order. If the administration wants to control housing, for example it could only limit funding for housing. It could not enact broad limitations. See CBS News report.

Pres. Trump, as I have said before, is the worst client. He cannot avoid saying things that undercut his case. Even worse, he then attacks the judiciary for doing its job. He criticized the Ninth Circuit for this ruling, even though Judge Orrick does not sit on the Ninth Court of Appeals. He is a district judge, not an appellate judge. Reince Priebus, the President’s chief of staff, said Judge Orrick’s decision was the Ninth Circuit going “bananas.” These comments are irresponsible. We all need to respect the decision of the courts, If you cannot beat your adversary in court, do not cry about it later. Especially now when the the best evidence against Trump’s actions is Trump himself.

In a recent decision, the Fifth Circuit reversed the award of attorney fees to a prevailing plaintiff. In Cervantes v. Cotter, the lower court severely reduced the plaintiff’s fee request by some 75% because the plaintiff’s success was, in the view of the trial court, small. The plaintiffs, noted the trial court, were only warded $409 in lost overtime payments. The district court rejected the plaintiffs’ claim for liquidated damages and their claim for retaliation. So, their recovery was just the $409. Yet, the plaintiffs’ attorneys sought $14,000 in attorney fees. The trial court considered that to be an “extraordinary” amount in light of the relief obtained.

But, the purpose of the attorney fee provision in the Fair Labor Standard Act is to to encourage attorneys to accept these small cases. No attorney would accept a case in which the hard, economic damages was a mere $409. And, as the Fifth Circuit noted on appeal, there are twelve factors in assessing attorney’s fees, not just the one factor involving success at trial. See the Fifth Circuit decision here.

The lower court’s decision is not well thought out. The Magistrate discussed the settlement offers and lack of counter-offers by the parties. The Magistrate then concluded that the plaintiff lawyers were “greedy” and the defense attorney was “penny-pinching.” It is an extraordinary decision. The district court ignored eleven of the twelve factors in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). Johnson requires lower courts to look at twelve factors, including the success of the plaintiff, when it assesses a request for attorney’s fees.

The lower court in Cervantes looked just at one factor, the success of the plaintiffs. Then, it went beyond that and looked at the relative settlement success of the two parties. It mentioned one offer of $17,000 in attorney fees and a second offer of $22,000 in attorney fees. It noted the response by the employer of $210 in overtime pay and $1,000 in attorney fees. It almost seemed like the judge was annoyed at having to hear a small case when the parties could have easily settled the matter. I find that unfortunate. These “small” cases are quite large to those involved. The Fair Labor Standards Act is a federal law. If federal courts will not enforce federal laws, who will? In truth, these apparently small cases are not small, at all. These relatively small cases reflect a wider problem with many employers underpaying their employees and generally getting away with it. The Department of Labor can enforce the FLSA, but it rarely does. It is left to these “small” lawsuits to stand up for the little guy whose pay is being stolen by employers. If there is one plaintiff filing a case for a lost overtime of $210, then there are ten others who also suffered similar losses, but chose not to file suit. There was a time when I was working my way through college and law school. In those days, $210 was a very large amount to me indeed.

In effect, the trial court imposed some new requirement that appears to involve second-guessing settlement strategy. I think it was this that caught the eye of the Fifth Circuit. It vacated the trial court’s ruling in a per curiam, unpublished decision. “Per curiam” decisions are those which the court views as simple, routine, not needing extensive explanation. The higher court is saying this should be a simple issue. Courts cannot truly second-guess settlement strategy. There are just too many unknowns.

Sexual harassment was so common at Fox News that it often went unreported. See Alisyn Camerota’s account. She worked for Fox News for years and now works for CNN. So, she has a platform to speak freely. When she was still new at Fox News, Roger Ailes offered to help her move up in the ranks. But, she would first have to work very closely with him, away from the office, at a hotel. She understood his meaning very well. She describes him today as at times, charming and charismatic. He could also be a bully. She declined his offer. At the time, a single woman, she feared this was the end of her career.

In ten years, she rose as far as being the weekend anchor for Fox News. She left Fox in 2014 for CNN. She told no one about the Fox News CEO’s “offer.” She was embarrassed by the incident. Most women do not report these incidents. Toward the end of her time at Fox, she refused to go into Roger Ailes’ office.

Look at the column by Elaine Ayala in the San Antonio Express News. See that column here. Ms. Ayala recounts the stories of six different women in the San Antonio area, all of whom experienced blatant sexual harassment. Like Ms. Camerota, most chose not to report the incidents. One woman, working at gym, reported harassment by a patron and was told by her male manager to smile more.

in a survey by Cosmopolitan magazine, they found 75% of 2000 working women had been harassed due to their gender. In another study by the University of Colorado, researchers found that women were too afraid to complain. See CBS News report. Yes, sexual harassment is too common.

The Fifth Circuit reversed summary judgment in another case recently. In Caldwell v. KHOU-TV Company, Inc., No. 16-20408 (5th Cir. 3/6/2017), the court addressed ADA and FMLA issues. Gerald Caldwell worked at KHOU TV as a video editor. Due to a childhood disease, he needed the aid of crutches for walking. Mr. Caldwell notified his supervisor he would need time off for upcoming surgeries.

About that time the parent company, Gannett Company notified KHOU that the station needed to reduce their work force. One worker was chosen for lay-off based on documented poor work performance. That editor was given prior warning about his performance. Mr. Caldwell received no such warning. Mr. Caldwell was also chosen. The supervisors initially said he was chosen because he had expressed an unwillingness to work in EDR. Later, in its motion for summary judgment, the employer argued that Mr. Caldwell had not taken the initiative to spend as much time in EDR as the other editors.

Mr. Caldwell filed suit based on the ADA and the FMLA. The employer moved for summary judgment, which was granted. On appeal, the Fifth Circuit reversed the summary judgment. The court found there was substantial evidence of pretext. The employer provided different reasons for selecting Mr. Caldwell for the RIF. The employer first claimed Mr. Caldwell shirked his responsibilities by refusing to do the EDR work he had been assigned. The employer provided this expansion in answer to interrogatories and in a letter to Plaintiff’s attorney. But, in a letter to the EEOC, the employer said he was terminated not because he avoided work, but because of his inability and unwillingness to adjust to new technologies. And, before the district court, KHOU argued that Caldwell did not take the initiative to spend as much time in EDR as other editors. And, contrary to all this evidence, the direct supervisor, Philip Bruce, said “absolutely” there were no job performance issues with Mr. Caldwell. These statements, said the higher court, indicated inconsistent explanations, so as to show genuine issue of material fact.

The lower court had looked at the same evidence and discounted it. The district judge found that many of these statements were not made by Mr. Bruce, the direct supervisor. But, the court of appeals noted that no precedent required that all explanations emanate from the direct supervisor. On the contrary, many cases cite articulated reasons from the employer as a whole. The court cited Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408 412-13 and n. 11 (5th Cir. 2007) for the proposition that simply stated, an employer’s inconsistent explanations for its employment decisions at different times are probative of whether those statements are pretextual and that cases do consider statements by the employer’s representatives before the EEOC, before the district court and the Fifth Circuit. And, that makes sense. The employer sues the “employer,” after all, not individual supervisors.

The higher court noted that the employer’s explanation had evolved from insubordination to a lack of initiative. Mr. Caldwell himself denied ever expressing a preference for or against EDR. The plaintiff’s supervisors also confirmed they did not recall the plaintiff ever expressing a preference against working in EDR. The employee also testified, and the supervisors confirmed, that it was ultimately the employer’s decision to limit his time in EDR, suggesting the employer was not truthful.

[Note: It is always unwise to try to mislead the court. Judges remember that. It will affect the rest of their decisions. That the supervisors apparently disagreed with the company’s  representative seriously undermines any case.]

The higher court also discussed the lack of opportunities for the disabled worker. The court compared not affording employment opportunities to black workers to not providing opportunities to Mr. Caldwell. The plaintiff had argued that the employer chose not to schedule him time in EDR. The lower court had found that he was not scheduled more time in EDR due to his disability. The Fifth Circuit found that lack of opportunity comparable to a case, Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990), in which an African-American woman was not given the chance to improve her work performance, because the employer did not counsel her about performance problems. In Caldwell, the court said this situation was similar because KHOU did not give Mr. Caldwell time to work in EDR and improve his technical abilities. This lack of time also indicated that the employer did not counsel Mr. Caldwell and warn him that he should spend more time in EDR.

The higher court also reversed summary judgment regarding Plaintiff’s FMLA claim. See the decision here.

This is the last in a series of cases dating back some three years in which the Fifth Circuit has reversed summary judgment. The most common problem in that line of cases is the failure of the district court to construe facts in favor of the plaintiff. We hope district judges will make more of an effort to construe facts in favor of the non-movant, as they should.

Well, Bill O’Reilly is out at Fox News. His show was cancelled after the settlements surfaced. I wrote about those settlements here. The news report refers to the settlements as allegations. But, when someone pays $13 million for five different accusations, it is more than mere allegations. See CNN news report. Persons do not pay that sort of money unless there is proof to back up such claims.

Of course, this only happened because the five different settlements were exposed. I assume his show would still be on the air if the New York Times had not exposed Mr. O’Reilly’s history of sexual harassment. And, what can we say when the President of the United States has expressed support for two sexual predators, Bill O’Reilly and Roger Ailes?

This lawsuit against Pres. Trump for inciting violence against protesters continues to turn strange. A man known for espousing white supremacy has counter-sued the three protesters and has accused then candidate Trump of directing him and other supporters to remove the protesters. See Politico report. Matthew Heimbach states in his legal pleading that he acted pursuant to the directives and requests of Donald Trump and of the Donald Trump campaign.

Mr. Heimbach is a leader in the white supremacy group, Traditionalist Youth Network. He is acting as his own lawyer in the lawsuit. He asks that any liability for the physical assaults be assigned to the Trump campaign or to Mr. Trump himself. While blaming Mr. Trump, he also states he acted in self-defense or in defense of others. He claims the protesters should not have attempted to disrupt a free assembly and impinge on the rights of others. He claims he relied on the expertise of Donald Trump, a “world famous businessman,” in responding to the protests.

Mr. Heimbach’s pleading is likely his answer to the lawsuit. It sounds like he did indeed rely on Mr. Trump’s guidance. That will not bode well for Pres. Trump’s defense. There are reasons why persons in position of authority in public places are careful about what they say. .

In yet another lawsuit against Pres. Trump, three plaintiffs allege they were physically assaulted at a Louisville, Kentucky rally in 2016 when then Candidate Trump encouraged violence against the three. The three persons attended the rally to protest Mr. Trump. One of the persons who struck the protesters was Alvin Bamberger, a member of the Korean War Veterans Assoc. Mr. Bamberger was also sued. He says he did not strike anyone, but may have touched someone. He says he was inspired to take his actions by Mr. Trump.See Politico news report. That Mr. Bamberger essentially supports the plaintiffs will undermine Mr. Trump’s case.

The candidate was shouting “get ’em out of here” from the podium. The Trump attorneys deny the statement was directed toward the crowd. Sure, it wasn’t, [wink, wink].

The President is claiming immunity from suit. That surely will not work. Pres. Clinton also tried to claim presidential immunity when he was sued for events occurring before he became President and that claim was rejected. No, disingenuous statements in defending a lawsuit, when the events are so well known is not a sound tactic. I do not think this claim of immunity will fly very far. This claim reminds me of the Jon Lovitz character from SNL in the 1980’s. Tommy Flanagan, the pathological liar, would lie even when it was patently obvious he was lying. “Yea, that’s the ticket…”

Not unlike former Pres. Bill Clinton, Pres. Trump has a reputation that will attract lawsuits. One such lawsuit filed by Summer Zervos, accuses the Celebrity Apprentice star of groping her when she was a contestant on his show. She accuses him of groping her and kissing her. She filed suit three days before Pres. Trump’s inauguration. She says he defamed her by denying her accusations. The President has claimed immunity. As some may recall, Pres. Clinton also tried to claim presidential immunity for a sexual harassment lawsuit, but he lost that claim. Ms. Zervos’ lawsuit, however is in state court. This time, the President is claiming immunity in state court, not in federal court. See Politico news report. We will see if that makes a difference.

I previously wrote about Ms. Zervos’ lawsuit here. Earlier, she offered to drop her lawsuit if the President would acknowledge the truth of her claims. Apparently, he decided not to take her up on her offer.