ACTIVIST APPELLATE COURTS USE MISAPPLICATION OF “SUFFICIENCY” LAWS TO JUSTIFY UNLAWFUL REVERSAL OF JURY VERDICTS. Any judge could invade the record of any case and find or create “facts” that might support their interpretation of the case. This peril is why the Abuse of Discretion standard was developed, to avoid “arbitrary” and “capricious” decisions based on biases or improper influences. It is also why Res Judicata prevents re-trying cases that have already been heard via a frivolous “appeal” of the identical claims. (if the Trial Court committed a serious legal error, this falls away). Appellate Courts are governed by a very narrow standard called “Abuse of Discretion” which limits their authority to essentially reviewing ONLY the legal standards applied to a case. They are prohibited by law, and long precedent of deference on fact finding to the Trial Courts, If an Appellate judge is going to meddle in Fact Finding, a clear abuse of discretion, they should at least have a mastery of the rules of evidence. For example, if they decide to “re-weight” the evidence that is in the record on appeal (prohibited by myriad decisions of higher courts), they must ensure that the “evidence” is “admissible, relevant, and important”. Further, the panel should know the relevant legal standards and not “guess” or misapply them in reverse. All trial records must be viewed “in the light most favorable to the prevailing party”. So if you are trying to prove that someone is “lying”, because you have an ingoing bias that all women are liars, then you have to get your act together on evidence. If an Employer asks an illegal question, the response by the respective Employee is MOOT. The Jury should be instructed that the Employer’s question is unlawful and in violation of the Failure to Hire protections established by EEO law. The Judge should also STRIKE the response as Moot and instruct the Jury to disregard it. Of course, this is all irrelevant if the evidence is inadmissible in the first place but having foolishly introduced this damning evidence, the Employer now is exposed to NEW causes of action and the Jury should so be directed. But lets look at the conclusion that was arrived at in one landmark case where the Lippman panel decided to “re-weight” the evidentiary record to REVERSE the outcome so that instead of being a win for the Employee, it was a win for the Employer. This is Case Fixing at its best. Now here the Panel selected a set of facts which the Jury had already vetted around the issue of Plaintiff’s response to an illegal question during the hiring process. Specifically, the Employer brazenly asked why the prospective Employee was “using a cane to ambulate”. That query was completely unlawful by itself. Now let’s look at the Plaintiffs answer. She knew she could not disclose her disability status pre-hire because that would have afforded the Employer the knowledge they needed to vet out the Protected Class individual. And she did not want to “lie” either. So she offered a partially truthful answer---that she had used the cane to ambulate for a “skiing injury”. That was NOT a lie nor was there any evidence in the record that would justify a reasonable person to conclude that Plaintiff was “lying”. In fact, she had also needed the cane for that skiing injury. Disabled persons do ski. That’s what the Special Olympics is all about. So for the Lippman panel to have justified its extreme and outrageous allegation, there had to be evidence in the record that Plaintiff had NOT had a skiing injury and had NOT used a cane to ambulate for that injury. No such evidence existed. The panel simply made it up. This was libelous at best and criminal given that the intention was to deprive the Plaintiff of the economic benefits of her Jury verdict. Appellate Courts are very foolish to second guess juries on facts. As long as the Jury rules within the “range of permissible options” and has been correctly directed by the Trial Judge as to the law of the case, there is simply no way to legally reverse a verdict. That being said, when a Judge intentionally leads a jury AWAY from “Make Whole” damages, whether out of fear of reversal on appeal, or some deal with the attorneys, or even both, THAT is grounds for REMANDING the case back to the Trial Court for correction. Trial Judges are prohibited from “leading” juries and advocating for one party over another. There have been myriad legal treatises on whether the reason is one of bias or one of legal error but the mitigation is the same. A new fact finder must hear the case on damages and properly direct the jury according to “Make Whole” law. END DISCRIMINATION NOW
Posted on: Mon, 03 Nov 2014 17:44:05 +0000
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