This article appeared in Above The Law on March 25, 2016. You can view the original article here.
Yesterday, the jury returned a 9-3 verdict in favor of the defense in the Alaburda v. Thomas Jefferson School of Law case. I had the opportunity to speak to one of the nine jurors who voted in favor of the defense.
A Brief Overview of Verdict Forms
A verdict form outlines all of the elements of a cause of action. Because you need to meet all elements of a cause of action, a verdict form reads like a choose-your-own-adventure book. If you answer “yes” on question 1, go to question 2, if not, sign the verdict form and you’re done. If you answer “yes” on question 2, go to 3, et cetera. You have to answer “yes” to each element or the cause of action fails. You can’t mostly commit fraud. Either you did all of the things that constitute fraud, or it’s not fraud.
In California, the verdict forms are modeled after the California Civil Jury Instructions. Intentional Misrepresentation is Instruction 1900 and has the following elements:
- Defendant misrepresented an important fact.
- The representation was false.
- Defendant knew it was false.
- Defendant intended Plaintiff to rely on that representation.
- Plaintiff did in fact rely on that representation.
- Plaintiff was harmed.
- The harm was caused by the false representation.
So, in Anna Alaburda’s case, she had to prove each of the following:
- TJSL lied about its employment stats.
- The stats were falsified.
- TJSL knew they falsified the stats.
- TJSL falsified the stats in order to entice people to join their school.
- Anna Alaburda read those false stats and relied on their truthfulness in making her choice to go to TJSL.
- Her choice to go to TJSL caused her harm.
- The harm was caused by the false employment stats.
- Nine of the twelve jurors need to agree on each question. If any nine jurors did not find that the evidence supported any of those seven elements, Anna Alaburda did not meet her burden of proof.
The jury voted 9-3 in the favor of the defense on the very first question.
Here is the exact jury special verdict form in this case with the phrasing of the questions they needed to answer:
How the Alaburda Jury Reached Its Verdict
After the verdict was read, the defense gave a small press conference in the hallway. One juror stuck around in the lobby to discuss his opinion of the case. He spoke with me, the defense team, and two other people from the media. Here’s what he said.
He said that the general consensus among all of the jurors was that Lisa Kellogg, the Director of Alumni Relations at Thomas Jefferson who compiled the employment statistics for the years that Anna Alaburda would have reviewed before enrolling, was very honest and credible. He said he felt that she put forth a good faith effort in her duties of gathering and compiling that data.
By way of background, at some point, Kellogg left that position and another person was in charge of compiling that data. To prove misrepresentation, Alaburda had to prove that the employment data that she looked at before she enrolled at the law school was false. Obviously, data that was gathered after she joined the class at the law school and after she passed the bar did not influence her decision to enroll at TJSL. That data was allowed into evidence, however, as evidence of Thomas Jefferson’s intent to defraud. One of the defenses was that if any mistakes were made, they were honest mistakes. In fact, TJSL attorneys admitted that there were some mistakes made in the process. It’s another thing to say that honest mistakes were made in 2004, and in 2005, and in 2006, and in 2007, and in 2008, and in 2009, and in 2010, and in 2011. So the information on the subsequent years was admitted for the limited purpose of showing intent.
The juror said that he found the errors in the employment-stats reporting for the years following to be “appalling.” He said that if the jury was not restricted to the time frame before Alaburda’s decision to enroll, the verdict would have been different. He said that the plaintiff’s attorney did an excellent job of presenting that evidence. The thing that he found appalling was that Thomas Jefferson had no internal process for how to conduct the gathering of employment data. There were guidelines from NALP (National Association of Law Placement) on how to gather and record the data. There were also long email chains between Thomas Jefferson and NALP requesting clarification on certain policies for employment-stat reporting. But the juror found it appalling that Thomas Jefferson did not have a handbook on how to conduct the employment surveys and how to report the data.
I asked him if he felt that the lack of an internal process was intentional or just a negligent thing that they let slip through the cracks, and he responded that he did not feel it was intentional, just incredible that the school knows that so many people rely on these numbers, that the process of collecting them is very complex, and that the school does not have any official policies on how to do such an important task.
Another bit of background: Being “employed” is not black and white. It’s a spectrum of gray. So, if someone has an unpaid internship, are they employed? What about someone who is doing part-time contract work on an as-needed basis? What about someone who is self-employed, but has no clients? One of the claims in the trial was that the process of gathering data was complicated — e.g., dealing with how to report a median when only a small portion of the class responded; what to do when you know someone has a job, but they don’t return the survey; how to classify certain people if there’s only a category of employed or not employed; how do you adjust for perceived inaccuracies in self-reporting?
I asked the juror if he got the impression that the process was difficult. He said that he did not think it was complicated.
The juror said that one of the most difficult things they struggled with was how Anna Alaburda was harmed. He said that she paid for a law degree. The defense did an excellent job of showing that a degree from Thomas Jefferson has value by bringing in successful alumni (if they wanted, they could have gone upstairs to the DA’s office and had our DA testify, or U.S. Congressman Duncan Hunter, or a number of other notable alums). He said that the fact that she received an education that taught her how to pass the bar, and that she did pass the bar on her first try, were factors in determining that she did receive value in her legal education. The fact that she was offered a $60,000 a year job was a significant factor. “It’s hard to argue you were harmed if you got an offer.”
When asked how he felt about the verdict, he made it clear that he felt bad for the plaintiff. He said the problem was that the way the verdict form was written and the way the jury instructions were presented to them: “In the context of those questions, we had to come to that verdict. If the focus was different, it would have been a different result.” So, overall, he felt that the school had some responsibility for misrepresenting employment stats to the public, but the Alaburda case was about the Alaburda case, and not about the years subsequent, so they had to vote the way they did because the evidence simply did not support a verdict in her favor for the years that were the focus of Anna Alaburda’s complaint.