by Archer Norris PLC

The verdict is in.  AEG Live is not liable in the Michael Jackson wrongful death suit.  An appeal is a foregone conclusion.  But will an appeal be a "Thriller?" 

The standards of review tend to reduce the possibility of drama, and also deflate the charged emotions attendant during trial.  For example, the pivotal factual dispute--was AEG Live negligent in its retention or supervision of Dr. Murray--will be subject to the substantial evidence standard of review.  Despite its name, the substantial evidence standard is not about quantity.  Rather, the substantial evidence standard asks if there is any credible evidence sufficient to support the verdict.  If there is, the jury’s resolution of the factual issue stands. 

So when it comes to the jury's finding that AEG Live was not negligent, this means that AEG Live will have a monumental advantage on appeal.  In the 21-plus week trial, there was evidence pointing both ways: Jackson’s preexisting relationship with Dr. Murray and secrecy surrounding Murray's actual treatment of Jackson versus alleged red flags about Jackson's physical and mental health and attendant implications about Murray's treatment.  Thus, there appears to be sufficient evidence to support the jury's apparent conclusion that AEG Live had no reason to know about any deficiencies in Dr. Murray's performance, certainly more than enough evidence for AEG Live to prevail on appeal of these factual determinations.

One way to alter what is reviewed under the substantial evidence standard is to appeal the rulings admitting or excluding evidence.  However, any challenges to rulings admitting or excluding evidence also face a difficult standard of review on appeal: abuse of discretion.  Of course, not properly applying the Evidence Code is by definition, abuse of discretion.  So in the appeal, look for challenges to the trial judge’s evidentiary rulings grounded in erroneous application of the law on evidence.  In light of the verdict, such challenges are particularly likely to be raised regarding Dr. Murray's prior practice, prior treatment of Jackson, and other evidence arguably putting AEG Live on notice about Murray.

Given such standards of review, appeal of the negligent hiring/supervision/retention issue is bound to primarily focus on legal as opposed to factual questions.  Unlike disputes of fact, questions of law are reviewed by the appellate court without deference to the trial judge's interpretations.  So unlike application of the substantial evidence and abuse of discretion standards, the odds of obtaining reversal improve significantly when the issue is a question of law.  Examples of issues that could be reviewed as questions of law include contracts, any statutory definitions of employer at play, operation of the common law of negligence--especially duty--to the case, jury instructions, etc.  Error here is more apt to be prejudicial and therefore, more likely to result in reversal.  

The appellate work no doubt began as soon as the verdict came in.  Jackson's lawyers are certain to be interviewing jurors in the hope of revealing misconduct during deliberations, a potential basis to negate the entire trial.  Time will tell as to what issues rise to the surface during the appeal.  However, any appellate court reversal will most likely mean a do-over, not outright victory.  While there is little doubt that the litigants have the incentives, willpower and firepower to go to trial again, it remains to be seen how much interest the public has in a second act.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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