Contact with jurors draws warning

Image by Whistling in the Dark via Flickr

Last weekend, I checked the telephone book and found listings for six of the eight jurors who heard my age-discrimination lawsuit in Superior Court and returned a verdict in favor of the defendants, including North Jersey Media Group.


I left messages on answering machines, but reached only one of them. He hung up on me. A second juror's husband said she was upset by my message, and didn't want to talk. A woman who sounded like the mother of a third juror said she didn't know when he would be returning.

I was more interested in their interpretation of the evidence I had presented than in their deliberations.

When I covered state and federal courts in New Jersey as a reporter, I recall contacting jurors after trials or interviewing them on courthouse steps. But now, one of the jurors in my case was "upset" and wrote a letter to the judge. The judge then informed me in a letter faxed and mailed to my home that a court rule barred me -- a party to a lawsuit -- from contacting jurors without his permission. He asked me to come to court.
 
During a break in another jury trial today, Judge Joseph S. Conte ordered me to refrain from any further contact with jurors or face contempt of court charges. I said I was totally unaware of the rule. He said that reporters in New Jersey also are barred from contacting jurors.

NJMG's hired gun ($300 to $400 an hour) -- attorney Samuel J. Samaro, head of the employment practice at Pashman Stein in Hackensack -- also was in court. He continued his complaints about the "Eye on The Record" blog, which he used against me during the trial.

Samaro informed the judge that I had been blogging about the trial, and "blamed" him and the jurors for the unfavorable outcome April 9. He said I continued to use the blog "to punish" people I didn't like.  He also objected to my listing jurors' hometowns and occupations I gleaned in open court.

I replied that I was reporting what happened at a public trial, and didn't blame anyone for what happened. However, I did say in this blog I disagree with rulings that allowed Samaro to present evidence I felt was unduly prejudicial -- as he mounted a slash-and-burn defense that put me -- the pro se plaintiff -- on trial.


Samaro gives the impression he has never read a newspaper, and knows nothing of satire and critical journalism. He seems genuinely offended by my blog, and my criticism of The Record's editors and owners. He also portrays himself as a klutz when it comes to maintaining an automobile, and told me he hates to eat healthy. He certainly looks it.

Were they really a jury of my peers?

Image by Ari Hahn via Flickr

As a reporter for more than 15 years, I covered many criminal and civil trials in state and federal courts, and always regarded the jury system as a hallowed part of our legal system. But as a plaintiff, I became aware of the system's serious shortcomings. Having lost my case at the hands of eight total strangers who may not trust journalists, I now believe I would have done better if I had asked a judge to hear and decide my age-discrimination and retaliation claims.

My trial started on the eve of Passover (March 29), and I unsuccessfully asked Superior Court Judge Joseph S. Conte in Hackensack to postpone jury selection until after the holiday. As a Jew, I wanted a jury that was representational of North Jersey, meaning I wanted one or two Jews on the panel, along with an African-American. One of my jurors may have been Jewish, but a childless black nurse in her 60s who worked at night was excused at the request of North Jersey Media Group.

The judge asked prospective jurors about their backgrounds and their opinions of the jury system, lawsuits and other issues, including whether they read The Record. But one of my big strategic blunders is not proposing questions on their opinions of reporters -- now that I recall how some surveys have rated journalists just above car salesmen. The lawyer who advised me also overlooked this approach.


In fact, in my opening statement, I told the jurors I was proud to call myself a journalist for nearly 40 years, and that I had devoted my life to reporting, writing and editing stories -- not marrying until I was in my late 50s. I told them I was a skilled story teller who would be guiding them on a journey into the newsroom of a big suburban daily paper.

Juror No. 1, the foreman, was a white-haired gentleman from Wyckoff, possibly a tax director. Was that skepticism I saw on his face when I testified or addressed the jury? 

No. 2 was a 48-year-old Franklin Lakes woman who is a pilot for American Airlines and is married to a United pilot. No. 3 was a seventh-grade social studies teacher in her mid-20s from Ramsey who had worked in her father's law office, and who felt there are too many suits.

No 4 was a civil engineer from East Rutherford in his early 30s who always had a laptop out during breaks. No 5 apparently was the oldest member of the panel, from Lyndhurst, who had subscribed to The Record for 45 years, but who also felt there were too many lawsuits. 

No. 6 was from Englewood, a Greek woman, judging from her name, who said she advertises in The Record but doesn't read it. No. 7, who lives in Hillsdale and works at Best Buy, was the third one to say there are too many suits. And No. 8 was an unmarried women from Fort Lee who does yoga every day. Several jurors said their favorite TV program is "24."

One of the prospective jurors was a waiter at a Vietnamese restaurant in Fort Lee that I had written about and patronized, and he volunteered when the judge addressed him that he knew me. "Good luck, Victor," he said on his way out of the courtroom.


In retrospect, I am not sure the jurors understood any of my testimony about reporting and writing stories, fighting for my lead paragraphs or disagreeing with an editor over productivity or whether a story should even be covered. Did they care anything about these inside-journalism issues?

I also don't think they understood how I had to shepherd my food stories through Liz Houlton's error-prone features copy desk, being forceful at times, even if it meant having to revise a page or layout. Did that earn me a reputation of being hard to deal with in the editor-driven newsroom?

The jury heard a good deal about the NJMG employee manual, which encourages a free and open dialogue and urges staffers to suggest ways to improve methods and products. But they also heard Houlton testify emphatically that the newsroom "is not a democracy -- no business is."

There is no question the jurors were attentive. They were allowed to take notes and write out questions, which would be answered, if both sides agreed. Only one of them, Juror No. 5, didn't seem to be paying close attention.

As for their questions, the misspellings and grammatical errors surprised me a little, but it was the questions themselves that indicated some of the jurors may not have grasped or appreciated -- despite many references -- that there is a strong New Jersey law against discrimination in the workplace.

The most troubling question was this one: "Did anyone at the newspaper, at any time, tell you verbally or in writing that you were denied the food editor's position because of your age?"

Taking the witness stand, I answered no, but should have added that no editor in their right mind would have said anything about age, because such a statement provides the employee with the proverbial smoking gun. I had already testified that the reasons given for denying me the food editor's job were put forward many months later -- only after I filed charges with the Equal Employment Opportunity Commission -- and were what the law calls "pretext." Did the jurors even hear me?

Former Food Editor Patricia Mack testified on my behalf and directly contradicted testimony from her former bosses, Houlton and Barbara Jaeger, who claimed Mack told them "several times" that I was difficult to deal with as a freelance writer for her section. Both Jaeger and Houlton used the "several times" estimate, and both could not recall any details or even when Mack allegedly spoke to them about me. (At Jaeger's first deposition, she said she couldn't remember or couldn't recall details 23 times.)

Even though I brought out that Jaeger had been Houlton's boss for many years and they often went to lunch together, the jury believed them and not Mack. I also noted that Mack had no interest in the outcome of the case and had no motive to lie. Jaeger and Houlton, on the other hand, were doing their best to defend the selection of an unqualified candidate half my age and probably testified to keep their jobs, I told the jury.

Mack was not allowed to testify about the "lies" in Jaeger's last performance review of her before she left in 2006, how she refused to sign the review and how she filed a complaint with the Human Resources Department, which did nothing -- all because she could not say for certain whether age was a factor in how Jaeger and Editor Frank Scandale treated her after 20 years as food editor.

She recalled how Scandale treated her dismissively -- as if he was brushing "a bug" off his shirt. But the judge wouldn't allow the jurors to hear any of this.

At the end of testimony, the judge explained to the jurors the "false in one -- false in all" principle. "If you believe a witness deliberately lied to you, on any fact significant to your decision in this case, you have the right to reject all of that witness' testimony. However, in your discretion, you may believe some of the testimony and not believe other parts of the testimony."


In my closing argument, I reminded the jurors: "Everything I did was in keeping with the values of the company. I did everything they said I could do, everything I have always done in the past, and they penalized me [after I filed a lawsuit]."  

I gestured out the big courtroom windows to the gilded statue atop the dome they could see from the jury box (photo above) and noted the figure was holding a flame aloft in a search for the truth. I reminded them I believed I was seeking truth in my many years as journalist, but now it was their job as the judges of the facts to decide what really happened to me in the newsroom. 


But these jurors apparently had made up their minds long before I addressed them. They must have found me to be a nosy, judgmental journalist who didn't have a right to challenge anything an editor or publisher did, even if I believed he or she was breaking the law. It took them only an hour to return their unfavorable verdict last Friday.

Look for more about the trial in future posts.

Putting the plaintiff on trial

Image by vaXzine via Flickr

Attorney Samuel J. Samaro, the hired gun who opposed me at the Superior Court trial of my suit, taught me a thing or two. But nothing he said came in time to help me win my case. "I can't be bought, but I can be rented [for $300 to $400 an hour]," he said during a break on Thursday.


Samaro said that in the 20 or so years he has been practicing employment law, he has represented both sides -- employers and employees. If he believes in a worker's case, he will take it on a contingency basis (no hourly fee). The only way to win, he said, is to portray the employer as "evil." That's what he did to win a $1 million settlement for two professors.


He didn't have to say what he does when he defends an employer -- I watched him doing it to me. Samaro put me on trial and, with a favorable ruling from the judge, he was able to dredge up details of my performance reviews dating to 1985. I put my objections on the record, telling the judge anything beyond 2005 would be unduly prejudicial.

Samaro also won another motion -- to admit excerpts from my "Eye on The Record" blog that referred to all the white male columnists The Record was left with after getting rid of Hispanic, black and female columnists in their 50s. My comment that Mike Kelly and John Cichowski were "over the hill" also was used against me.


There was more. A letter I wrote to the EEOC in 2006 and my answers to questions during the discovery phase of the case also were quoted. As with the blog, these unfortunate comments about Bill Pitcher's weight had nothing to do with age discrimination and retaliation -- the two narrow issues the jury had to decide.

He used more words of mine against me, especially my preference for naturally grown or raised food as opposed to the obsession for desserts often found in the food pages of the newspaper. My e-mails to Publisher Stephen A. Borg, notably one sent April 4, 2008, about mistreatment of older workers, also were read to the jury.


I recall the day I testified and Samaro cross-examined me, using performance reviews written by Kathy Sullivan and Dan Shea, among other editors. On many occasions, I explained to the jury, I was fighting for the integrity of my lead paragraph with rewriters and others, but the jury only saw someone who was difficult to deal with.

I wasn't allowed to tell the jury anything about Sullivan or especially Shea, who was married when he had an affair with a reporter, Stephanie Stokes. When he first took over the Business News department, he told me to call a failing bank but not to say I was a reporter. Later, Shea was put in charge of buying a new typesetting system, and purchased one that made us miss deadline numerous times after he left for New Orleans.


When I moved to the copy desk to get "editing experience" at the age of 44, Shea sent me an Atex message: "Sigh, I can't make old jokes about you anymore."


The judge also granted another Samaro motion, preventing me from discussing what I saw as mistreatment of other older workers in the newsroom, including fellow members of the news copy desk. I doubted the jury understood how the desk had become a scrap heap for older workers and was considered the lowest of the low by assignment and the Franks.


I wanted to call Diane Tinsley, a graphic artist who left The Record, and have her testify about her age- and race-bias complaint to the state Division on Civil Rights in 2008, but was prevented from doing so by the judge, who granted Samaro's objection. 

Defendant Jennifer A. Borg, the chief legal officer of North Jersey Media Group, had been in contact with Tinsley's lawyer, but Borg also knew she had testified at one of her depositions that my bias complaint was the only one filed. Borg was in the courtroom from beginning to end, taking notes and advising Samaro.

In his closing argument, Samaro also tried to portray me as litigious and claimed I used my knowledge of age-discrimination law as a "shield" against discipline -- despite having told the jury in excruciating detail how I was disciplined numerous times, put on probation and cited for insubordination twice (in 1995) when I walked out of meetings to discuss my calling in sick on a Jewish holiday.


Jennifer Borg even testified that my supervisors feared me -- feared that I would name them in a lawsuit.