The Repubblica Italiana’s former national air carrier may not get a new trial.

What should happen after an appellate court decides that the trial court erred by putting the case to a jury instead of conducting a non-jury trial?  Do the original trial and verdict count for naught?  Judge Richard Posner of the Seventh Circuit furnished a primer on the questions yesterday.  Olympia Express, Inc. v. Linee Aeree Italiane, S.P.A., Nos. 07-1708 & 07-1821 (7th Cir. Nov. 30, 2007).

The court first concluded that the Foreign Sovereign Immunities Act entitled the losing party, Alitalia Airlines, to avoid trial by jury because the Italian government owned most of it.  The panel thus vacated an $8.5 million judgment in favor of two Alitalia ticket sellers, which had sued the air carrier for breach of contract.  Then arose the question of what to do next. 

His Honor started the court’s answer by defining "nonjury trial":

Does it mean that the trial must be conducted in the absence of a jury or merely that the "verdict" must be rendered by the judge rather than by a jury?  We think it is [the] latter.  In many trials some factual issues are to be resolved by a jury and others by a judge . . . , and in these mixed bench/jury trials all the evidence is introduced in the presence of both triers of fact and the jury resolves the issues triable by the jury and the judge the other issues, except that if there are factual issues common to both the jury- and the judge-tried claims the jury’s verdict binds the judge.

The definition allowed the panel to conclude that the district court needn’t start completely over on remand.  Instead:

Consistent with the practice in mixed trials, on remand the magistrate judge should first decide whether the development of the facts at the first trial was sufficient to enable him to make his own findings of fact and conclusions of law on both liability and damages.  If so, he need not conduct a further evidentiary hering; it would be redundant. . . . But he may instead realize that he’s forgotten some of the evidence (the trial took place more than a year ago), or that since he was not the trier of fact he did not pay as close attention to it as he would have done in a bench trial, or that in a bench trial he would have elicited additional evidence (judges are reluctant to question witnesses in jury trials for fear of confusing jurors about who is the trier of fact, but there is no similar inhibition in a bench trial).

So the magistrate judge may take advantage of the existing record.  He may also more or less start from scratch.  But, regardless, does the original verdict carry any weight?  Nosir, the court said:

On any of these assumptions [the magistrate judge] should conduct a further evidentiary hearing.  Of course if he takes the first course and decides the case without taking additional evidence he must give no weight to the jury’s verdict, for there should not have been such a verdict.

And there you have it.

Barry Barnett

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