Every lawyer I know on Twitter was stupefied at Judge Jed Rakoff’s decision a few days ago to toss Sarah Palin’s defamation suit against the New York Times. Not because courts don’t have the power to do such a thing; they do, under the doctrine of “judgment notwithstanding the verdict.” In a civil case, if the court finds that it’d be unreasonable for the jury to find for the plaintiff based on the available evidence, he can overrule them by tossing out the verdict and ruling for the defense. Rakoff concluded that there was simply no evidence of “actual malice” by the Times to justify a defamation judgment for Palin. There was plenty of sloppiness by the paper in its editorial about her, but sloppiness isn’t enough for a public figure to prevail in a libel suit under American law.

What the Twitter lawyers were shocked by was Rakoff’s timing. If you’re going to issue a judgment notwithstanding the verdict, there … should be a verdict. In this case, there wasn’t. Rakoff handed down his ruling while the jury was still deliberating. The obvious problem in doing that was the risk that jurors would find out how he had ruled and allow his opinion to affect their deliberations. Maybe they’d conclude that if the judge thought there was no way to properly hold the Times liable, they should issue a verdict to the same effect. Or maybe they’d just stop deliberating thoughtfully since it no longer mattered what they decided.

Even weirder, the jury wasn’t sequestered. It would have been risky for Rakoff to issue his ruling even if they had been, since sequestered jurors still have access to televisions and might have stumbled across news of his ruling that way. But he sent them home for the evening, leaving them with nothing more than a stern warning not to seek out any information about the case overnight.

What he forgot was that, in an era of smartphones, we don’t need to seek out the news. The news finds us.

And guess what:

UPDATE: In new filing, U.S. Judge Rakoff says "several" jurors said they had "involuntarily" received smartphone alerts informing them judge had already decided to dismiss case before verdict. They said did not affect outcome. https://t.co/dewCX7UnTa

h/t @KlasfeldReports

— David Folkenflik (@davidfolkenflik) February 16, 2022

Adam Klasfeld of Law & Crime actually predicted what would happen on Monday:

Imagine being a juror and getting a push alert on your phone informing you that the case you have been deliberating has been thrown out because no reasonable jury could have found it meritorious.

—and then heading back to deliberations.

— Adam Klasfeld (@KlasfeldReports) February 14, 2022

“Just a ridiculous own goal by Rakoff,” tweeted law professor Josh Chafetz. “It’s mind-boggling. I never encountered anything like that in 21 years of litigation. I never heard of anything like that in 21 years of litigation,” David French added. All Rakoff had to do was wait until the verdict was in. If the jurors found the Times not liable — which they ultimately did — then he wouldn’t have needed to issue his ruling. If they did find the Times liable, then he could have issued his ruling clearing the paper, secure in the knowledge that his decision didn’t affect their deliberations.

Instead he announced his ruling before the verdict was in, potentially giving Palin cause for appeal. What was he thinking?

If he was intent on ruling before the jury had reached a verdict, he presumably could have interrupted their deliberations and simply declared the case over. But he had a reason not to do that: “Rakoff said that because the decision is likely to be appealed — a path that could upend long-standing legal protections for journalists who write about public figures — he wanted future courts to have both his decision and the jury’s to consider.” In other words, anticipating that the jury might find for Palin and that the matter would soon be before the Second Circuit or even the Supreme Court, Rakoff thought that having their verdict on the record might eliminate the need for a retrial. If SCOTUS agreed with Palin on the law, it could simply reinstate the jury’s “liable” verdict that Rakoff had overruled.

Except there was no liable verdict in the end — possibly because Rakoff, in jumping the gun with his ruling, had tainted the jury’s deliberations. “I would have expected the judge to wait for the jury to return its verdict before ruling on the motion for judgment as a matter of law, because there was no urgency to issuing that ruling,” First Amendment lawyer Mitchell Epner told Law & Crime, speculating that Rakoff may have created an issue for appeal. “Nothing would have changed if he had waited for the verdict to have been announced, or for the jury to say that they couldn’t reach a verdict.”

But there’s a wrinkle. According to the order Rakoff issued today, he warned both parties what he was going to do on Monday — and neither objected:

Typically a party has to object to a ruling at trial in order to preserve it for appeal. What happens now to Palin’s claim that the jury’s deliberations were contaminated when it lands before the Second Circuit?

Exit question: If Rakoff’s ruling granting the Times judgment notwithstanding the verdict is overturned, there has to be a retrial, right? Sure, fine, the jurors claim that Rakoff’s ruling didn’t influence them, but what else are they going to say? “Yes, we were corrupted”? In his bizarre mismanagement of the case aimed at averting any need for a new trial, Rakoff seems to have significantly increased the likelihood of one.