A trial judge once told me, with some frustration, that appellate judges (not on the NJ Supreme Court, I hasten to add) sometimes do not appreciate the practical difficulties with which their rulings present the trial courts that must implement them. That complaint came back to me when I read the recent decision in Cuevas v.Wentworth Group.

The facts are straightforward.  The employment discrimination case was tried to a jury, which awarded the plaintiffs a rather large verdict.  The defendant made a post-trial motion asking the trial court to reduce the size of the verdict – a “remittitur” in legal jargon.  The trial court refused and let the jury’s verdict stand, as did the Appellate Division.  Thus, the defendant appealed to the New Jersey Supreme Court.

The issue presented was what evidence the court could use to decide the remittitur motion.  There was no question about the standard to be applied: “a court should not grant a remittitur except in the unusual case in which a jury’s award is so patently excessive, so pervaded by a sense of wrongness, that it shocks the judicial conscience.”  But how to determine whether a particular verdict was conscience-shocking; that was the question. Under an earlier Supreme Court case, He v. Miller, judges were allowed to rely upon their personal knowledge as lawyers and jurists, and to use “comparable verdicts” from other cases, to determine whether a verdict “shocked the judicial conscience.” 

As the Cuevas court held, there are serious problems with the He approach.  For one thing, there are good reasons not to substitute a judge’s opinion for a jury’s, not the least of which is the constitutional right to trial by jury.  And as the court itself noted, “a true comparative analysis would require a statistically satisfactory cohort of cases and detailed information about each case and each plaintiff.  That information is unlikely to be available and therefore . . . impracticable to implement.”

And so the court concluded that (1) “a trial judge’s reliance on her personal experiences as a practicing attorney or jurist . . . is not a sound or workable approach,” and (2) “the comparison of supposedly similar verdicts to assess whether a particular damages award is excessive is ultimately a futile exercise that should be adbandoned.”

All of which is fine as far as it goes, and makes good sense theoretical sense.  Unfortunately, it circles the inquiry right back to the beginning: on what basis do you decide a remittitur motion?  Here things get murkier.  The answer, according to the Court, is that the jury’s evaluation of the evidence in the case in light of their collective life experience.  Which tells us what the jury should do, but what about a court confronted with a motion claiming that the jury’s decision is conscience-shocking? Look at the evidence, the court seems to suggest.  Compared to what, I ask?  The “amalgam of common judicial experience related to the doing of justice” the Court answers.  But isn’t that basically the same thing as the trial judge’s experience, which we were told earlier cannot be used?  What else can a judge know but what she learns from personal experience and study?  How can she possibly know what the “amalgam of common judicial experience” is?  Where do you go to look that up?  If a judge’s personal experience as lawyer and jurist cannot form the basis, how can resort to some undefinable and unknowable amalgam be sufficient?

So the question becomes how the Court’s decision can actually be applied in the context of trial court decision-making.  At the end of the day the Court seems to appreciate the difficulty of the inquiry but fails to supply a workable alternative.  The answer seems to be that the trial court has to listen to her gut and rule accordingly.  She just can’t say so.