# Tavoulareas v. Piro > Court of Appeals for the D.C. Circuit · March 13, 1987 · 817 F.2d 762 URL: https://www.frixlaw.com/law-library/cases/7853125 ## Case - **Full name:** William P. TAVOULAREAS, Peter Tavoulareas v. Philip PIRO William P. TAVOULAREAS, Peter Tavoulareas v. The WASHINGTON POST COMPANY, d/b/a The Washington Post, a Delaware Corporation - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** March 13, 1987 - **Citations:** 817 F.2d 762; 260 U.S. App. D.C. 39 - **Precedential status:** Published - **Opinion:** Concurrence by Ginsburg - **Judges:** Edwards, Ginsberg, Ginsburg, MacKinnon, Mikva, Robinson, Scalia, Starr, Wald, Wright - **Cited by:** 167 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7853125 ## How later opinions describe it (automated extraction) - holding that statement that “& father set up his son in business” accuses father of nepotism and is defamatory because it, “might ‘tend[ ] to injure [him] in his trade, profession or community standing, or lower him in the estimation . of the community1 ” (quoting Afro-Am. Pub… - holding that statement that “a father set up his son in business” accuses father of nepotism and is defamatory because it, “might ‘tend[] to injure [him] in his trade, profession or community standing, or lower him in the estimation of the community’” (quoting Afro-Am. Publ’g … - finding the plaintiff to be “a highly prominent individual, especially in business circles, but his celebrity in society at large does not approach that of a well-known athlete or entertainer—apparently the archetypes of the general-purpose public figure” - finding no actual malice and agreeing with the district court’s assertion that “much of [the unreliable source’s] information was independently verified by other sources whose credibility even the plaintiff does not now challenge” - holding that a defamation plaintiff was a public figure in part because he and his company "played substantial roles in spearheading a public counterattack on the movement for reform of [their] industry” ## Opinion text RUTH BADER GINSBURG, Circuit Judge, concurring: I concur in the court’s opinion holding that the evidence in this case was insufficient to warrant submission to a jury’s judgment. That decision, however, is more securely made at a distance from the trial itself. Immediately at the close of a hard-fought trial, the presiding judge, who must rule at once upon a motion for a directed verdict, is in a less advantageous position. He or she may prefer to abide the jury’s report and, if necessary, thereafter consider, with some space for reflection, whether to grant a requested judgment n.o.v. Despite our decision today, therefore, hotly contested cases of this genre are likely to reach juries again. With that prospect in view, I write separately to suggest what a trial judge might do to enhance the jurors’ capacity to comprehend and impartially apply the governing law. 1 Keeping the jury on track poses a formidable challenge for the judge in a libel case governed by the “actual malice” standard of New York Times v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964). As Justices Black and Goldberg anticipated, the risk is considerable that jurors will not comprehend the difference between reckless disregard and mere neglect or carelessness, or will confuse or blend the separate issues of falsity and actual malice. See id. at 293 , 84 S.Ct. at *84 733 (Black, J., concurring) (malice “is an elusive, abstract concept, hard to prove and hard to disprove”); id. at 298 n. 2, 84 S.Ct. at 736 n. 2 (Goldberg, J., concurring) (“The requirement of proving actual malice or reckless disregard may, in the mind of the jury, add little to the requirement of proving falsity, a requirement which the court recognizes not to be an adequate safeguard.”). The challenge for the trial judge demands attention throughout the proceedings. It is not met by allowing the jurors to listen, without education, as the evidence unfolds and then submitting the case for their general verdict after “dous[ing] [them] with a kettleful of law during the charge that would make a third-year law-student blanch.” See Skidmore v. Baltimore & O.R.R., 167 F.2d 54, 64 (2d Cir.) (Frank, J.) (quoting Bok, I, Too, Nicodemus (1946)), cert. denied, 335 U.S. 816 , 69 S.Ct. 34 , 93 L.Ed. 371 (1948). See generally Schwarzer, Communicating with Juries: Problems and Remedies, 69 Calif.L.Rev. 731 (1981). Instead, the judge should act to reduce the risk that “the protective benefits of the Sullivan rule [will become] mythical.” Lewis, New York Times v. Sullivan Reconsidered: Time to Return to “The Central Meaning of the First Amendment,” 83 Colum.L.Rev. 603, 617 (1983). The trial judge can explain, instruct, or clarify continuously, from the commencement of the trial through to the jury’s deliberations. The means at hand include: instructing the jury, in plain English, at the opening of the case and at appropriate times during trial, 2 as well as at the close of the case; allowing the jury to retain during deliberations a copy of the charge or key portions of it; and requesting the jury to return a special verdict or a general verdict accompanied by answers to interrogatories. See Fed.R. Civ.P. 49. I. Experience supports the intuition that jurors have considerable trouble “distinguishing actual malice from mere negligence.” Note, Punitive Damages and Libel Law, 85 Harv.L.Rev. 847, 860 (1985); see Lewis, supra, at 613-14. As Judge Bork has observed, “[t]he evidence is mounting that juries do not give adequate attention to limits imposed by the first amendment and are much more likely than judges to find for the plaintiff in a defamation case.” Ollman v. Evans, 750 F.2d 970, 1006 (D.C.Cir.1984) (concurring opinion); see Kaufman, Libel 1980-85: Promises and Realities, 90 Dickinson L.Rev. 542, 552 (1986) (citing studies by Libel Defense Resource Center documenting jury verdicts against media defendants at rates of between 60 and 90 percent); Franklin, Suing Media for Libel: A Litigation Study, 1981 Am.B.Found.Res.J. 797, 804, Table 7, nn. 19, 20 (contrasting decisions for libel plaintiffs in only two of five cases tried without a jury, *85 with jury verdicts for plaintiffs in 20 of 24 cases). In the libel area particularly, it is not a large exaggeration to suggest that jurors “can easily misunderstand more law in a minute than the judge can explain in an hour.” Sunderland, Verdicts, General and Special, 29 Yale L.J. 253 , 259 (1920); see Charrow & Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 Colum.L.Rev. 1306, 1316 (1979) (jurors were able to paraphrase correctly only 54% of their instructions); see also Severance & Loftus, Improving the Ability of Jurors to Comprehend and Apply Criminal Jury Instructions, 17 L. & Soc.Rev. 153, 179-80, Table 2 (1982) (overall rate of incorrect responses for jurors with standard instructions was 29.6%); Note, Jury Instructions v. Jury Charges, 82 W.Va.L.Rev. 555, 558 (1980) (citing O’Mara & von Eckartsberg, Proposed Standard Jury Instructions— Evaluation of Usage and Understanding, 48 Pa.B.A.Q. 542, 550 (1977)) (in 1976 Pennsylvania study, only 68% of jurors could demonstrate actual comprehension of some standard instructions). II. To arm the jury with the information needed for the intelligent performance of its task, the judge might first endeavor to speak the language of the jurors, and avoid the jargon of the legal profession. Terms familiar to a lay audience, and shorter, less complex, more active sentences, increase the chance that the jurors will understand and recall the judge’s instructions. In addition, in lieu of a laundry list of law without discernible structure, a logically-ordered set of directions for consideration and decision of the separate issues should aid the jury to start out and remain on track. See Charrow & Charrow, supra, at 1326-27, 1338-39; Note, Jury Instructions, supra, at 558-59 & n. 17. Second, instructions should not be reserved exclusively for the trial’s finale. Enlightenment from the judge at the outset fosters “intentional” learning; by informing the jurors initially of the inquiries they are ultimately to undertake, early instructions may stimulate or facilitate the mental process involved in connecting up issues and key items of evidence. See Note, Jury Instructions, supra, at 562 & n. 37. Mid-stream instructions may be useful as well. They can serve as definers of difficult-to-grasp law at the moment that law bears on evidence produced. See id. at 565-67. The very repetition of instructions on elusive concepts should lessen the jury’s sense of insecurity or discomfort in dealing with those concepts. In addition, “[tjhere is a clear suggestion in the available research that access to written instructions in the jury room improves the quality of deliberations. This may be due in part to the optimal effects of presenting material in both visual and auditory modes.” Severance & Loftus, supra, at 155 n. 4 (citing Forston, Sense and NonSense: Jury Trial Communication, 1975 B.Y.U.L. Rev. 601 (1975)); see Cunningham, Should Instructions Go Into the Jury Room?, 33 Calif.St.B.J. 278 (1958); Katz, Reinstructing the Jury by Tape Recording, 41 J.Am.Jud.Soc’y 148 (1958). Detailed instructions delivered from the bench on the actual malice issue, for example, might accompany the jurors in written form as they proceed to deliberations. Finally, the special verdict or its cousin, the general verdict accompanied by answers to interrogatories, see Fed.R.Civ.P. 49, may be a particularly useful check against jury misconstruction or misapplication of a standard as uncommon as actual malice. 3 No recent invention, the special *86 verdict originated in early days when jurors were subject to severe punishment if a court determined that they had returned an “unjust verdict.” By electing to deliver a special verdict, thereby limiting their function to fact finding, jurors obtained a measure of protection against such an indictment. See generally Morgan, A Brief History of Special Verdicts and Special Interrogatories, 32 YaleL.J. 575 (1923). The modern rule places the form of verdict in the hands of the judge and permits broad discretion in designing special verdicts, or general verdicts with interrogatories. In a case governed by the Sullivan standard, separate questions on the issues of defamatory meaning, falsity, and actual malice would impel the jurors to advert to the framework within which the judge has instructed them to consider the case and could assist them to hold the distinct legal questions in clear and separate view. 4 The inquiries thus may promote both comprehension and actual application of the governing first amendment law. 5 New York Times v. Sullivan presents a standard that may slip from the grasp of lay triers unfamiliar with legal concepts and perhaps unsympathetic to publishers who print statements shown to be false. Careful efforts by judges to make the legal rules genuinely accessible to jurors may reduce some of the turbulence in this unsettling area of the law. . I rely throughout on a concise paper prepared for the Federal Judicial Center describing why and how separate, seriatim verdicts were obtained from the jury in Sharon v. Time, Inc., No. 83-4660 (S.D.N.Y.) (Jan. 16, 1985: defamatory nature of publication), (Jan. 18, 1985: falsity), (Jan. 24, 1985: actual malice). See Sofaer, Jury Management in Sharon v. Time, Inc. (Sept. 15, 1985). . Some "instruction” might come from counsel rather than from the judge. In Westmoreland v. CBS, No. 82-7913 (S.D.N.Y., settled and dismissed Feb. 18, 1985), Judge Pierre N. Leval allowed counsel an opportunity to address the jury from time to time during the 62-day course of the trial. These "int-sums” were limited to a total of 120 minutes for each side. The lawyers had each used about 100 minutes in int-sums, averaging about two and a half minutes each, by the time the case was settled. Counsel used the int-sums to "explain the significance, strength, or weakness of proof; to point out confirmation or contradiction of other evidence; to introduce new themes; to respond to opposing arguments; and to challenge the adversary’s ability to prove his contentions." Le-val, From the Bench: Westmoreland v. CBS, 12 Litigation 7, 66 (1985). Although Judge Leval acknowledged that both the integrity of counsel and the vigilant control of the judge were necessary to prevent abuse of this system, see id. at 66, he found it a very useful way to keep the jury on track during the course of the long and complex Westmoreland trial. See id. An additional technique adopted by Judge Le-val in that case may also be useful in reducing jury confusion. The judge put a limit on the total number of hours each side could use to present its case, including both direct examination or introduction of evidence and cross-examination. This approach left the lawyers with complete control over how the time was allocated. See id. at 7-8. The lawyers in the Westmoreland case believed that they had "tried their case better as a result of the time limit, and that [trial time] was shorter by a half than it would have been.” Id. at 8. And the jury was spared the burden of attending to and remembering an even greater quantity of evidence put in over a longer period of time. . See Parker, Free Expression and the Function of the Jury, 65 B.U.L. Rev. 483, 550-56 (1985) (maintaining that "[clases involving free expression are precisely the type of cases that demand the use of general verdicts with interrogatories of rule 49(b)”). Objections to special jury findings center on their use in run-of-the-mine cases in which strict application of the rules of law is widely viewed as inconsonant with popular conceptions of "substantial justice." See, e.g., 9 Wright * Miller, Federal Practice and Procedure § 2503 (1971); James, Sufficiency of the Evidence and Jury-Control Devices Available Before Verdict, 47 Va.L.Rev. 218, 246-48 (1961); cf. 374 U.S. 865 , 867-68 (1963) (Justices Black and Douglas op *86 pose Rule 49 because it allows judges "to weaken the constitutional power of juries"). Compare Morris v. Pennsylvania R.R., 187 F.2d 837, 840-41 (2d Cir.1951) (declaring that courts should use special verdicts only with "discrimination and foresight”) with id. at 843 (Frank, J., concurring) (advocating frequent use of special verdicts contrary to the wishes of "those who appear to esteem the [jury] system, just because it gives rein to the passional element of our nature”) (quoting Skidmore v. Baltimore & O.R.R., 167 F.2d 54 (2d Cir.1948) (Hand, J., concurring)). . The trial judge in Sharon v. Time, Inc., Abraham D. Sofaer, reported the cooperation of counsel in allowing the jury to have with them during their deliberations detailed instructions on the actual malice issue as well as a jury verdict form which “took the jury step by step through each of the theories on which plaintiff relied." Sofaer, supra note 1, at 2-3. In addition, the parties prepared a chart, at the judge's request, “list[ing] every exhibit in evidence, describing] the exhibit in sufficient detail to enable the jur[ors] to identify the items they wished to see, and indicating] the issue or issues on which each exhibit was admissible.” Id. at 1-2. . Judge Sofaer observed that the use of separate, seriatim verdicts in the Sharon case made it possible to avoid definitive rulings on unsettled questions of law, e.g., whether “public figure plaintiffs were required to prove falsity by clear and convincing evidence.” Sofaer, supra note 1, at 3. He also noted his decision to bifurcate the trial so that evidence on reputation and damages would not influence the decision on liability. See id. at 4. While the structure he employed worked effectively in Sharon, Judge Sofaer suggested that other cases might call for a different ordering, for example, “the judge could have the juty pass on actual malice first, when that issue appears potentially dispositive and susceptible of decision without confusion.” Id. at 5. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7853125. Public record. Not legal advice.