Judge Rakoff's Inexplicable Announcement of His Intended JNOV in Palin v. NY Times

by Michael C. Dorf

Yesterday, the jury hearing Palin v. New York Times rejected Sarah Palin's claim that the New York Times defamed her when it falsely stated in a 2017 editorial (that it subsequently corrected) that Palin's promotion of a map showing congressional districts in crosshairs had inspired Jared Loughner to shoot Congresswoman Gabby Giffords. Presumably the verdict was based on the jury's conclusion that the Times did not act with "actual malice" -- the high threshold for liability to a public figure or public official under the First Amendment as construed by NY Times v. Sullivan and subsequent cases. That's that, right?

Hopefully so, but perhaps not, thanks to an unforced error by SDNY Judge Jed Rakoff, who presided over the trial. On Friday of last week, Judge Rakoff sent the jury to deliberate. On Monday, before the jury had concluded its deliberations, Judge Rakoff told the lawyers and parties that he had reached a conclusion: If the jury came back with a verdict for Palin, he would nonetheless enter judgment as a matter of law (JMOL) for the Times, because he had concluded that no reasonable juror could find that Palin had met her burden to show actual malice.

That procedure--in particular the announcement in advance of the plan to override a verdict for Palin--was a foolish gift to Palin's legal team, as I shall explain.

A trial judge can grant a JMOL without sending the case to the jury, either at the conclusion of the plaintiff's case or at the conclusion of the trial. Granting a JMOL after the jury comes back with a contrary verdict is a longstanding procedural device that used to be known as judgment notwithstanding the verdict and abbreviated JNOV (for the Latin term). There is undoubtedly some awkwardness in a judge concluding that no reasonable juror could do what the actual jury just unanimously did because the JNOV logically entails that the jurors were unreasonable. Nonetheless, sometimes jurors don't follow or even understand their instructions, so the JNOV is a legitimate tool.

Despite the awkwardness of the JNOV, it has a key advantage over granting a JMOL without sending the case to the jury at all. If a judge grants a JMOL for the defendant without first sending the case to the jury and the plaintiff wins on appeal, then when the case is remanded to the district court, there will need to be a whole new trial, because in the interim months or even years will have passed and the jury disbanded. By contrast, if the judge waits for the jury to return a verdict, and if that verdict is for the plaintiff, granting a JNOV that is subsequently reversed saves the burden and expense of a new trial. The court simply reinstates the jury's verdict. Moreover, waiting for the jury to come back potentially takes the judge off the hook. If the jury finds for the defendant, the judge doesn't need to grant a JNOV at all, and so there's no chance of reversal on appeal on that ground (although of course there might be other grounds for appeal).

So far so good. Judge Rakoff had good reason to wait to issue a JNOV rather than to grant a JMOL without first sending the case to the jury. He was also fully entitled to think it through and conclude that he would grant the JNOV if the jury came back for Palin. But he had no good reason to announce that he intended to grant a JNOV in the event of a Palin verdict. Although he made that announcement outside the hearing of the jury, and he then reminded the jurors to ignore news coverage of the case, Judge Rakoff took a completely unnecessary risk that one or more jurors would learn of his announced intention before returning a verdict, which in turn creates a potential issue for appeal.

How so? If the jury verdict had come back for Palin, then granting the JNOV would ensure an appeal, and if the appeals court thought that the evidence could support a verdict for Palin, then reversal would ensue. Announcing in advance that he would grant a JNOV if the jury ruled for Palin did not make a reversal on appeal any more likely in this alternative scenario.

However, Judge Rakoff created an appeal issue for the circumstance that actually occurred. Suppose that Palin's lawyers can adduce evidence that despite Judge Rakoff's instructions, one or more jurors either deliberately or accidentally got wind of the fact that he intended to JNOV a verdict for Palin. If I were one of those lawyers I'd argue that my client was prejudiced in two ways.

First, Judge Rakoff might have exerted undue influence. Trial judges are permitted to comment on the evidence to the jury, but in so doing they're supposed to stick to the evidence and particular inferences from it. If a judge actually instructed the jurors that they could not reasonably find for the plaintiff, that could be reversible error. Thus, if the jurors learned that was the judge's view some other way, that could also be reversible error.

Second, there is a risk that if the jurors found out that the judge was going to rule for the Times no matter what they found, they might have given up on deliberating prematurely. Why bother?, they might have thought. This too could be reversible error.

To be sure, Palin's lawyers face two hurdles on appeal. First, they need to come forward with evidence that the jurors actually did learn of Judge Rakoff's intentions and that it affected their deliberations in some way. UPDATE: They did find out, but they said it didn't affect their deliberations! More is likely to come on that point.

Second, even if the jurors did learn of Judge Rakoff's intentions, and even if that knowledge affected their deliberations, reversal would not result unless the appeals court disagrees with the conclusion that Palin failed to meet her burden of production. In other words, if Judge Rakoff was right that no reasonable juror could rule for Palin, then the appeals court will affirm on the ground that it doesn't really matter what the jury did or did not consider, as the case never should have gone to the jury in the first place.

BUT . . . note that that second obstacle only comes into play in the course of the appeals court reviewing the JNOV. Had Judge Rakoff kept quiet about his intention to grant a JNOV for just one more day, he never would have had to reveal it at all and this would not be even a possible basis for appeal.

Was there any upside to Judge Rakoff's Monday announcement? Maybe a tiny unexpected one. There was already a likelihood that Palin would appeal to the Second Circuit in order to press the argument invited by Justices Thomas and Gorsuch to overrule NY Times v. Sullivan. Although the Second Circuit can't do that, if it simply denied her appeal, Palin could then seek certiorari, trying to persuade another three reactionary Justices that the First Amendment--which of course protects the right to spend unlimited funds on electioneering because . . . uhm . . .  Republicans--does not protect journalists from crippling liability for inevitably making mistakes because . . . uhm . . . originalism? The "good news," if there is any here, is that if Palin can somehow win a reversal of the jury's verdict on the ground that Judge Rakoff's announced intent to grant a JNOV tainted the outcome, the case won't be ready for SCOTUS.

But even that silver lining would come with a large cloud: If the Court is determined to, as that great constitutional scholar Donald Trump said, "open up" defamation law, it will find an opportunity in some case or another soon enough.