Keep trying the case until you get the verdict you want

The SE Texas Record Jan. 30, 2010, 9:23am

Imagine the pressure 23-year-old Garrett Hartley must have felt when he strolled onto the field to attempt a 40-yard field goal that would send the New Orleans Saints to the Super Bowl for the first time in its 43-year history.

He nailed it good and proper. But what if he had buckled under pressure and kicked wide or short? The Minnesota Vikings might have been the NFC champions, heading to Miami for the big game against the Indianapolis Colts.

Now imagine a disheartened Hartley pleading for a second chance. "I should have made that kick, ref," he would plead. "I know I can make it if you give me another chance. Come on, ref, let me try again."

That would set off hearty guffaws among sports fans, because in football, barring a penalty or unrelated official challenge, there's no do-over.

Our trial court system is meant to operate in a similar manner. The plaintiff presents its case, the defendant responds, and the jury renders a decision. If the decision goes against the plaintiff or defendant, an appeal to a higher court is allowed, but there will be no do-over unless substantial error in the trial is determined.

The justice system also allows the trial judge to throw out a jury verdict if substantial errors of law had occurred during the trial. That type of do-over is a very rare one. Many judges never grant one in a career on the bench.

Generally speaking, do-overs are exceptionally hard to come by except, perhaps, in Judge Donald Floyd's 172nd District Court in Jefferson County. He's granted plaintiffs two do-overs in the last year. Thus far, neither he nor the plaintiffs have cited a compelling reason in law other than dissatisfaction with the jury verdict.

In the past 12 months, the State Supreme Court twice has instructed Floyd to explain in detail why he disregarded a jury verdict and granted a plaintiff a new trial.

Floyd says he granted the most recent do-over "in the interests of justice and fairness." No further delineation followed.

Whose justice? Whose fairness? What interests? What law was transgressed?

Justice and fairness require so very much more than unexplained disappointment in a properly rendered verdict.

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