Punitive Damages Cap In Alex Jones Case Is The Ultimate Jury Nullification

Episode Notes

Transcript

[Music]

 

Joe Patrice: Hey, welcome to another edition of Thinking Like A lawyer.  I’m Joe Patrice from Above the Law.  With me is Chris Williams, also of Above the Law.  We’re here to talk about things happening around the legal world over the last week, big stories and all.  We are not joined by Kathryn Rubino who is on vacation but we’re here and we’re still okay, right?

 

Chris Williams: In spirit.

 

Joe Patrice: Yeah, we’re good enough, I think.

 

Chris Williams: Well, I’m feeling good.  I feel like this is a small talk section.

 

Joe Patrice: Oh, there we go.

 

Chris Williams: There it is.  Now, there’s the weight off my shoulder.  I just started Sandman yesterday.

 

Joe Patrice: Oh, yeah, I haven’t yet.

 

Chris Williams: Yeah.  I’ve been hearing about Sandman for years and I saw the first episode.  It’s pretty damn good.

 

Joe Patrice: Nice, nice, nice.  I went to see the Mets game yesterday.  I haven’t been to that park since they – I haven’t been to the Mets since they were in Shea.  So, it’s been a really long time but yeah, so it’s all that.

 

Chris Williams: How’d it go?

 

Joe Patrice: It was interesting.  The Mets won.

 

Chris Williams: That’s good.

 

Joe Patrice: It was actually interesting.  I’m not much of a baseball fan as evidenced by.  I haven’t been to a game in over a decade or so.  But yeah, it was a perfect game through five and two thirds, I think.  So, kind of impressive.  It had reached that point where you start thinking am I actually going to see a whole perfect game and then immediately, he gave up a two-run homer.  But until then, it had been perfect, so it was interesting.  So, I did that.  That’s about all I’ve been up to.

 

Chris Williams: Oh, I was also a plus one for this wedding this weekend.

 

Joe Patrice: Oh.  Okay.

 

Chris Williams: And that was cool.

 

Joe Patrice: Nice.

 

Chris Williams: Me and my partner may have done a (00:01:59) out dressing the folks of honor.  But you know, it happens, and it was very colorful.

 

Joe Patrice: That is hard to do at a wedding.

 

Chris Williams: Listen, you think this silk your tones were just a white button down t-shirt, come one now.

 

Joe Patrice: No, I get that.  Usually at a wedding, the folks of honor are there in their own league where they’re wearing stuff that’s way out of what most people keep in their closets on a day-to-day basis.

 

Chris Williams: I’m just kidding.  The bride and groom were phenomenal.  I’ll say this one because it’s true and two, at some point –

 

Joe Patrice: I just realized they may hear this.

 

Chris Williams: Because I don’t want to burn bridges.

 

Joe Patrice: Fair enough.  Well, cool.  I think that’ll handle it for our little small talk period and we can move on to discussing the big stories of the week.  Let’s begin with a story that neither of us have actually been covering but that is nonetheless, the biggest story of the week, our colleague, Liz Dye has been covering it.  Alex Jones has gotten the first of what probably are many jury awards that are going to be slapped on him over the next several months. But —

 

Chris Williams: Look at God.

 

Joe Patrice: Jones has been around for a while pumping conspiracy theories.  One of which he pumped was that the Sandy Hook shooting was faked.  This resulted in a lot of damage as his followers decided to harass the parents of victims for a long time and those folks have sued him and in multiple courts in the Texas case.  He was already — because of a bunch of other mistakes that they’ve made not complying with discovery orders, et cetera, they had already kind of conceded their causality.  And so, it was just a jury discussion about what the damages were.  Those clocked in at 4.1 million and then there was a punitive award in the 40-some odd 45, 46, whatever, it doesn’t really matter because — and this is where the conversation really comes in what a lot of people don’t get because they think he’s going to be spending all this money.  Unfortunately, that’s not how Texas operates because Texas has a series of anti-trial lawyer laws that are designed to prevent juries from actually giving the awards that they deem appropriate.

 

So, the whole system is taken out of the hands of the jury and while they’ve awarded 40 some odd million, it’s capped at — well, and that’s the other thing.  The law is a little unclear at what it’s capped at.  It’s theoretically capped at two times the compensatory damages.  However, there is some argument.  Some folks think that means they’ll be 8.2 or so of punitive damages, other folks read the law a little bit differently.

 

(00:05:02)

 

And say, that since it’s actually two times plus 175,000, Jones’ lawyer thinks — well, there was zero damages that are really compensatory because it was mostly about emotional harm.  So, therefore, it’s only going to be 175,000 in punitive.  No matter 46 million down to 175, is what they’re arguing.  Other experts have said that the numbers a little bit different that some of the 4.1 was concrete damages.  And so, for that it’s going to be that plus 175 and therefore, come out to around 300,000.  It’s really unclear, but the topic of conversation that I think is most interesting is that we have a situation where juries who we rely upon to make these sorts of decisions are not being trusted, which I think is a crisis for the legal system.

 

I mean, on the one hand, you don’t want juries going around causing willy-nilly all these damages, right?  But you can have a cap that is adjustable to what’s going on not like this sort of situation where you tell a jury to come up with a decision and then you just ignore it.  This sort of tort reform, which a lot of people have been kind of hoodwinked into supporting based on a kind of cynical ad campaign on the benefit on behalf of large corporate interests who say, “oh, well we need to have something to prevent somebody from making a bunch of money when they get third degree burns from McDonald’s coffee.”  That sort of –

 

Chris Williams: Those burns are horrible by the way.

 

Joe Patrice: They are and that’s the thing that people don’t get.  Like people make jokes about that at the time because, oh, well, it’s supposed to be hot and it was third degree — they were horrifying those burns.  And the reason we have punitive damages is to prevent people from continuing to do bad things, because as anybody who’s seen fight club knows, you can do the math and realize that occasionally paying out a wrongful death award is sometimes cheaper than a recall and punitive exist to prevent that from happening and what is —

 

Chris Williams: Of course, everyone has to rule before the first rule of fight club.

 

Joe Patrice: Yeah.  It’s when they’re in the plane when he’s still explaining his job.  But, yeah.  So, when you have a system where the jury gets ignored like that, you have a system in which we go back to kind of the rule of, if it’s cheaper to do the harm and write a check, then to not do the harm in the first place, we just left the harm happen.  And if that’s the kind of society you want to live in, then you live in a society where wealthy people are allowed to do a bunch of damage.

 

Anyway, so that’s what’s going on there.  Obviously, there’s a more cases, there’s overlapping issues of him claiming that his company is in bankruptcy, but the creditors who are first in line are himself, so they can’t pay these damages, but he can get all the money.  It’s a very — this is a real issue spotter to come.  Some law schools putting together a joint bankruptcy tort case that’s going to be really — exam question.  That’s going to be really fun.

 

Chris Williams: You know, it’s really easy to talk about how reality puts the onion out of business, but I think the real victims here in addition to the parents of the Sandy Hook massacre —

 

(Voice Overlaps)

 

Joe Patrice: All right.  Well, this is looking down.  I see that we have a bunch of messages but

 

Kathryn Rubino: Oh no, I’m busy right now because I’m recording a podcast.  If only —

 

Joe Patrice: Yes, if only when you were doing your legal work, you had someone else handling and in-taking those calls.

 

Kathryn Rubino: Right, so you can focus on the task that you are trying to accomplish and not get distracted by telephone calls when you can have a virtual receptionist take care of that mundane work.

 

Joe Patrice: So, let’s hear from Posh about exactly that.

 

[Music]

 

Advertiser:  As a lawyer, ever wish you could be in two places at once?  You could take a call when you’re in court, capture a lead during a meeting.  That’s where Posh comes in.  We are live virtual receptionists who answer and transfer your calls so you never miss an opportunity.  And the Posh app lets you control when your receptionist steps in. So, if you can’t answer, Posh can.  And if you’ve got it, Posh is just a tap away.  With Posh, you can save as much as 40% off your current service provider’s rate.  Start your free trial today at posh.com.

 

[Music]

 

Advertiser:  Today’s legal news is rarely as straightforward as the headlines that a company know.  On Lawyer to Lawyer, we provide the legal perspective you need to better understand the current events that shape our society.  Join me, Craig Williams, in a wide variety of industry experts as we break down the top stories.  Follow Lawyer to Lawyer on The Legal Talk Network or wherever you subscribe to podcasts.

 

[Music]

 

(00:10:09)

 

Joe Patrice: All right.  Well, we’re back and let’s talk a little bit about a story — another story that neither of us wrote, but it got a lot of play this week.  In social media — a thing propped up in social media.  Ivana Trump, the first of Donald Trump’s many wives passed away and picture came out that they buried her on his golf course in a plane grave that just has a tiny little gray slate marker that says her name basically.

 

Chris Williams: You know what happened, right?

 

Joe Patrice: To describe it as a pauper’s grave, whatever.  Yeah, what?

 

Chris Williams: So, this is totally made up by the way so we don’t get sued but what I like to think my head canon is he was playing golf with a buddy and then an assistant asked him what we should do with your dead wife’s body.  His friend yelled out hole-in-one and Trump was like, okay, whatever.

 

Joe Patrice: Oh, wow.  Yes.  So, an issue came up in social media where a tax researcher said that she done some digging and she had come to the conclusion that it seems as though maybe what Trump’s trying to do with this decision was put himself in a position to claim a bunch of tax benefits for the golf course because New Jersey has certain rules that say that if you’re a cemetery, you get a bunch of tax breaks.  Our resident tax columnist, Steven Chung, wrote an article saying that that’s not what’s going on.  His analysis is that New Jersey actually has as one would hope they did a lot more regulations for something to actually be a cemetery that can claim these sorts of benefits that you can’t just be a one-off burial place to claim these benefits, et cetera.  Which I think is probably true.

 

The problem though is I just feel like this article which was a lot of folks out there were reading this article did very well because I think a lot of people were interested in getting a tax lawyer’s analysis about this.  The more I think about it, I agree with the analysis.  I just don’t understand what the logic was otherwise.  I agree that he’s probably not going get these tax benefits, but it’s hard for me to think that he wasn’t trying to.  Kind of a you miss 100% of the shots you don’t take sort of logic.

 

Chris Williams: This isn’t even the most absurd thing that Trump has done.  So, it’s to be like, oh my God, I can’t believe this because I can.  It’s like evil mad lives.  Like fascist dictator buries wife body in golf Course.  It’s so about, didn’t make sense.

 

Joe Patrice: Well, what’s gets me about it is that the more you think about it, this is a person who is a public persona.  This is a person who cares a lot about appearing, keeping up appearances.  I mean, they slap marble and gold on everything that comes close to them.  And all I could this is — 

 

Chris Williams: Was he though?  I do not believe a person that ordered a steak well done with ketchup cares all about public —

 

Joe Patrice: All about opinions.  Yeah.  Well, I don’t know as though he expected that to come out.  But the point is, as somebody who does all that, when you then bury somebody in your golf course with a grave with no real markers or ostentatious.  Is somebody at some point had to think, if she isn’t being interned in like the fanciest mausoleum ever, it was going to look like something suspicious was happening, whether it is or isn’t that’s what somebody in the public has to think about.  And given that, what really was they’re thinking here.

 

And so, that’s why I agree with Chung’s analysis and I think folks should check it out but yeah, it’s just hard for me to think that even if he’s right, that wasn’t part of the plan, I don’t know.

 

Chris Williams: Also, how many marriages ago was she?  He probably did it like a fuck you.

 

Joe Patrice: Two, right?  Two, ago.

 

Chris Williams: That’s kind of like I won move.  Just drive passed her.

 

Joe Patrice: Real problematic, but, anyway, it is an interesting question and obviously, we don’t have any idea why they did it but these laws seem loose enough that it makes you wonder if somebody should have sat down and said if you do this, you’re going to get a lot of people speculating but this is why and then I guess they just didn’t care.

 

(00:15:06)

 

All right.  Now, Chris, you had a story, we finally get to a story that one of us actually wrote.  You had a story about a — it was a podcast, right?  The Harvard Professor on a podcast

 

Chris Williams: Yeah, Harvard professor, it was an interview at the very least.  Dude was like, yeah, at some point the supreme court stop caring about what other people thought about it and like that’s a major problem.  That’s the concise description of it and he’s not wrong.  And the move that the professor suggest is for a more democratic means of enforcing, I guess, norms through legal means and like we should invest more authority in congress or some other legislative body besides six Christians and Black robes and three other people.  But then it’s like, I don’t really think Nancy Pelosi is going to do much.

 

Joe Patrice: Well, this is the old what used to be called the CLS argument.  The critical legal studies argument that you actually need to — it’s actually good if we walk away from the idea of the Court as the gatekeeper to protect rights because it is a fundamentally regressive institution.  And you know, has all these problems because of its structure.  If in no small part, it has led to people caring less about the democratic process because they shrug and say, oh, we don’t need to care about these issues.  Those are settled by courts.  That was always the arguments problem with it — the criticism of it has always been you can’t have constant legislation about a lot of these issues.

 

A lot of these disputes need to be handled through a opinion that then has broader repercussions.  You can’t necessarily go around and strike down every single law or deal with every single exception.  You can, however, have a court order that then other courts can view as precedent that can cause change, unless the legislative branch is given that sort of authority and power, it’s unreasonable to assume that the court could go around and micromanage every single issue that comes up.  That’s the problem with it.

 

I agree with the sentiment this guy has that it would be nice if people cared more about legislators and it would be nice if the supreme court, because of all its institutional problems being kind of a life tenured aristocracy didn’t have supreme power over everything and that it was somewhat responsive to popular will.  But all of those arguments always, like you said, I have a hard time seeing the legislative branch as having the wherewithal to actually govern that way.

 

Chris Williams: Are you saying you doubt the prowess of Mitch McConnell?

 

Joe Patrice: I’m in no way doubt the prowess of Mitch McConnell.  I think he’s very prow.  But, yeah, no, I just think that — well, it’s also what I — this is a thing that for longtime listeners of the show know that when Ellie Mystal was the co-host here.  He and I would talk about a lot which is one of the problems is that the two parties have different victory conditions to use, kind of board game analogy.

 

Mitch McConnell is able to do a lot more because his victory condition is nothing changing and he can break the system even because his victory condition is also government doesn’t work.  So, if he makes government not work that in yours to his benefit whereas fundamentally the Democrats argument is government is a useful institution.  So, they can’t really blow it up to get what they want because they fundamentally then get hand over the argument that, hey government isn’t real, it doesn’t really work, whatever, and that complicates what they do, which is why McConnell, while a master of the parliamentary procedure games, he’s been playing for years.  He’s kind of being judged on a lower degree of difficulty, I think.  He has an easier job than other people do.

 

Yeah, I know, it is interesting.  And your point though about legitimacy it really is interesting given that John Roberts took the chief job, a very much with an eye towards I care about the legacy of this court.  I care about it seeming like it’s trusted and building its institutional legitimacy.

 

There are arguments that the way he made decisions especially on like the Obamacare stuff, he did phrase that opinion in a way that I ultimately gutted commerce clause cases down the road.

 

(00:20:08)

 

But by siding with upholding Obamacare, he was setting it up so that — he was making a decision against his own interest because he didn’t want the court to look illegitimate but he’s just been outnumbered it seems.

 

Well, let’s finish up here by having a quick conversation about another story, one that I wrote.  Brittney Griner has been detained in Russia and she has been sentenced to nine years.  She’s being sentenced to that for having .02 announces of cannabis in a vape pen.  This frankly seems like it’s more residue at that point than any actual drug smuggling but nonetheless, Russia is sentencing her to nine years.

 

Now, this is probably largely just a setup the prisoner exchange that we know the State Department is working on, trying to make it as Draconian sentence on their end so that they can demand that something bigger from us.  If they just had her in for a year, we could say, oh we’ll give you some low-level person.  I think they want to have a longer sentence to increase their leverage to ask for some like high-end arms dealer or something like that.

 

But the interesting thing about this discourse and what I was writing about in this story is that there’s a lot of moral high horse icing about the — nine years sentence is so ridiculous for just possessing weed, and that’s where I agree and I also think people need to look a little bit in the mirror and I remind you that a couple months ago Mississippi affirmed a life sentence for somebody who had one and a half ounces of weed.  Life sentence without possibility of parole, that’s happening in 2022 in the United States.

 

Chris Williams: It’s hard to even break that down.  Like it’s so facially like damn near Disney villain.  There are TV shows about soccer moms like making money from selling like larger amounts of weed, right?  Snoop Dogg’s old career besides rapping.  Like beating the king is about how much he smokes.  Him and Seth Rogan.  America is the height of like love the culture hate the people, I don’t get it.

 

Joe Patrice: So, on the one level when you’re talking about a country with a broken rule of law and very much backwards, don’t worry Mississippi is telling Russia to hold their beer.  And secondly though, the one thing that I thought was interesting about this case is the people and the judges in the majority of this opinion took the stance it’s wrong to say that we’re doing this just for him possessing weed, we’re doing this because he has prior violent convictions.  One, I don’t understand why that would have anything to do with this.  The point that you put them away for life without possibility of parole off of an arrest for possession it is about that.  It isn’t about the previous stuff.

 

But also, this is very law school exam.  Again, another law school exam moment, the more I dug into this case, the quote-unquote violent convictions were for burglary which you might remember is the non-violent form of stealing and the reason why he’s got this violence conviction is Mississippi decided to pass a law declaring even though burglary is non-violent, it counts as a violent conviction for the purposes of this sentencing magnifier.  But it gets worse because they didn’t pass that law until he’d already been released from his original burglary conviction.  So, it’s an ex-post facto magnifier on his later conviction.  Yeah, it’s a mess procedure.

 

Chris Williams: Land of the free people, land of the free.

 

Joe Patrice: Yeah.  The point though is when we criticize how broken the Russian courts are here and absolutely, we should because it seems horrific.  Remember, it’s happening close to home too and that was the real takeaway I had from the story.

 

Chris Williams: And before we get the email, yes, we realize Joe said, Mississippi said to Russia hold my beer instead of hold my vodka.  You’re so clever.  Please don’t send that email in.

 

Joe Patrice: Well, no, no.  I mean Mississippi would have the beer.  If it were the other way around, Russia would be like hold my vodka, I think, is the argument, right?

 

(00:25:03)

 

Chris Williams: Well, would Mississippi also say hold my moonshine?

 

Joe Patrice: Maybe, I guess they could have also done –

 

Chris Williams: I mean, they wouldn’t say hold the blunt.

 

Joe Patrice: No, clearly not.  Unless they want somebody who has a prior burglary conviction to be holding it.  But, yeah, I think this is a very bad beer kind of situation when we’re talking about Mississippi.

 

Chris Williams: Not a Schlafly.  One good thing that come out of St. Louis, Schlafly Beer, I support that.

 

Joe Patrice: Oh, interesting.

 

Chris Williams: The trolley, horrible.  Money sink millions of dollars.  Just get a bus with wheel that looks like Trolly.  Schlafly Beer, I approve of it.

 

Joe Patrice: Fair enough.  Yeah, I think that’s pretty much everything we have.  So, everybody, subscribe to the show so you get new episodes when they come out.  You should be giving reviews, stars, write something.  It helps everybody find the show.  You should be following us on social media.  I’m at Joseph Patrice, he’s at Rights For Rent.  You should be listening to the other shows on the Legal Talk network.  I’m also a panelist on the Legal Tech Week Journalists Roundtable for anybody interested in Legal Tech.

 

Chris Williams: You got it?  You get it every day — Katheryn isn’t here.

 

Joe Patrice: I mean, I know how it — yeah.  It’s journalist happy hour.  Anyway, we also have — you should also read Above The Law.  I think I said the other shows on the Legal Talk Network, but if didn’t and I will also say that.  And with all of that I think we’re good to go.

 

Chris Williams: See you next week.

 

[Music]

 

Advertiser: Thanks to our sponsor, Posh.

 

(00:26:51)

Continue Reading