Jury Duty, Trials

Alexandra Marchuk v. Faruqi & Faruqi: A Juror Speaks

A juror in this high-profile, high-stakes case explains what went on inside the jury room.

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Last Thursday, trial concluded in Marchuk v. Faruqi & Faruqi, the headline-making sexual harassment case brought by a young lawyer, Alexandra Marchuk, against her former firm and one of its top partners, Juan Monteverde. The jury rejected Marchuk’s claims under federal and New York State law. The jury did find liability under New York City’s human rights law and awarded Marchuk a total of $140,000: $90,000 in compensatory damages and $50,000 in punitive damages ($45,000 from Monteverde and $5,000 from Faruqi & Faruqi as a firm).

Both sides claimed victory. Defense lawyer Scott Bursor called the jury verdict and award, a fraction of what Marchuk sought, a “fantastic outcome,” and defendant Lubna Faruqi described herself as “elated and humbled.” Harry Lipman, lawyer to plaintiff Alexandra Marchuk, said that his client “bravely pursued claims of a highly personal nature against people who she correctly predicted would defend the case viciously — and she won.”

Those assessments, however, can be dismissed as spin from interested parties. How did the jury, the five men and three women who decided this case, feel about their decision? Who did they view as the winner? Which side did they believe? How did they rate the judge and the lawyers? What did they think of the experience of serving on this jury?

Normally these are questions that go unanswered. But last Friday, thanks to the kind intervention of an Above the Law reader who put me in touch with a family member who served on the Marchuk jury, I got to interview one of the jurors over the phone. This juror agreed to speak freely about the case as long as I did not identify the juror in any way in my story. Here is a (condensed and edited) write-up of our conversation.

ATL: How would you describe the trial overall?

It was actually rather difficult. For starters, we thought it was going to be a two-week trial, and it ended up being four weeks. It took longer than the judge expected for the testimony, and then we had snowstorms.

ATL: And how would you describe the deliberations? How difficult or contentious were they?

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I had anticipated that when we finally got in there, it would be the men versus the women. That’s actually not what happened; it was very mixed. Some men and some women didn’t buy [plaintiff Alexandra Marchuk’s] story. Others didn’t believe 100 percent of what she said but clearly saw her as a victim of something.

We had very intense arguments. There were some people who wanted to vote for no liability across the board, a verdict all for the defense. At one point it seemed like there could be a verdict for no liability across the board, not even under the city law. But at least one juror wasn’t convinced of no liability for any of the claims.

So that’s when we started digging into the details, asking for exhibits and transcripts, and getting further instructions from the judge. I expected two to three hours of deliberation; in total it was about nine hours. There was screaming and passion and talk of a hung jury. We had people arguing strongly for both sides.

But at no point was a majority leaning towards yes across the board. She was definitely not getting a $20 million check.

ATL: Walk me through how you resolved the different claims — federal law, New York State law, and New York City law.

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The judge gave us very specific instructions about exactly what we needed to do, which we did our best to follow. My summary here may not be exact — I’m not a lawyer, and I don’t recall everything perfectly.

Based on our understanding, one issue under both federal and state law was whether Juan Monteverde was a “supervisor.” We agreed that he was a “supervisor” — he was more or less the boss, he could have someone fired if he wanted to — so this was a no-brainer.

Going on to the other issues, we considered whether there was there an unwelcome sexual advance or activity. The judge instructed us that jokes alone are not enough, generally speaking, although in this case we clearly had more to weigh than just a couple of jokes (which we think were probably said). Then if there were some sexual advances or comments, did they create such a “severely” hostile work environment that a reasonable person in her shoes would be forced to quit? And if these things were true, did she receive the treatment because she was a woman?

In the end, it basically came down to this: was the sexual activity unwelcome, and if so, was it so severe that she was forced to leave her job? We all agreed that Juan was not the most noble person. He was a womanzier, a guy who told inappropriate jokes, a jerk. But that’s not what we were there to decide. We had to decide: did he make unwelcome sexual advances, and, if so, did they create a severely hostile workplace that forced her leave?

Right off the bat, the majority of us pretty much said no — that the advances were not unwelcome, or if they were, they were not that severe or pervasive.

ATL: But her allegations seem to describe severe conduct, don’t they?

She failed to prove her case. Unfortunately for her, she contradicted herself — not just on the stand, but through the Gchats and emails that she sent. She said at times that she wanted to continue working with him, that she liked being at the firm — things were not so severe that she felt compelled to leave.

ATL: You say that the majority of you, from the start of deliberations, didn’t feel Marchuk proved her case. What about the other jurors?

A few of the jurors got hung up on other things. One was the incident on the night of the holiday party — was she perhaps too drunk to consent? As the defense put it, Lexie was basically accusing Juan of rape.

ATL: So whom do you believe regarding what happened after the holiday party?

At the end of the day, we didn’t buy her story — but we didn’t buy his story as to that night either. Our unanimous opinion was that she was not credible as to the events of that night, but neither was he.

They both admitted they were drunk. She willingly went with him up to his office, and something happened up there — probably some combination of both of their stories. But at the end of the day, our decision was not controlled by what he said or she said happened at the office that night. Neither was that credible.

We don’t believe she was raped. She willingly went up there. She said that once she went into his office, he decided to push her or throw her to the ground — but that didn’t make sense to us, because she went up to the office willingly. She got caught up in inconsistencies, and her story was not believable.

UPDATE (2/10/2015, 1:00 p.m.): A clarification (based on some reader responses to this story): the jury did not reason that because she went up there willingly, anything was fair game. Rather, the fact that she went up there willingly and “not for a work purpose,” as she admitted on the stand, made the jurors question her testimony that as soon as they got up to the office, he started to have sex with her forcibly. At the very least, the jurors couldn’t credit her testimony any more than his testimony that they started to engage in foreplay once they got up there but did not have succeed in having penetrative sex. (For more on this, see my long and detailed posting in the comments.)

ATL: What about the blood on the carpet? Could that suggest something forcible happened?

We didn’t care much about the blood on the carpet. The defense didn’t deny it; they accepted that there were stains. And we noted the fact that she sent an email to him the next morning asking him to call her, and when he called she told him to hide the stains. That confirmed our view that two people had too much to drink and something happened that they both regretted and wanted to hide.

There were stains, but that didn’t necessarily mean she was attacked. The gynecologist testified that she didn’t claim she was raped or attacked — she told the doctor it was consensual. There are other reasons there could have been a stain. My personal opinion is that it could have been consensual but maybe he was too big, or maybe he wasn’t fully erect and was trying to force it.

We had some disagreement over whether at some point she performed oral [sex], but then we said, wait a second — this is kind of irrelevant. We are still standing by the fact that she went up to the office with him at 3 a.m. and admitted on the stand that she knew she wasn’t going there for work.

ATL: What’s an example of her testimony that you didn’t buy?

One red flag for me was when she testified about why she went with Juan from the Ginger Man to Lex Bar [on the night of the party]. Her rationale was that she wanted to talk about her bonus. That hurt her in a few ways. First, is she lying — you’re at a Christmas party, you’re drinking and festive, and you want to talk at 1 a.m. about your bonus? Second, if that was true, it made us think that money might be a big motivator for her.

ATL: So did you hold against Marchuk the evidence about her expressing a hope of getting paid to go away? Or moving to Hawaii after getting a settlement?

Not exactly — we didn’t think she filed this lawsuit just to get a big payout. We didn’t put much stock in the Hawaii thing or [evidence that she was running Google searches about vacation destinations]. That alone was not a big deal. The Gchats saying hopefully they’ll pay me to go away weren’t a big deal either. We didn’t think she intentionally filed a baseless case just to get money.

It was more like: she was drunk, the sex happened, she revealed it to her friends, her friends convinced her that it was wrong, and then they convinced her it was an opportunity to sue the firm. Remember the email where she said her “good friend… wouldn’t let” her keep working with Juan? That was Tori Leventhal. Marchuk got some bad advice, maybe from her friends the Leventhals [Tori and David, a former Faruqi lawyer]…. I don’t know if “brainwashed” is the right word, but she got bad advice suggesting she had a good case, that she could sue and easily get paid.

There was never an email or a Gchat where she said, work is so miserable, I can’t stand working at the firm, I need to find another option. There was nothing clear there. Every time there was a piece of evidence that might have been the smoking gun, there was another piece of evidence that would contradict it.

ATL: This talk about conflicting evidence reminds me of when Marchuk cried after learning that Monteverde was married. Marchuk went to dinner with a partner, Emily Komlossy, and told Komlossy about how Juan kissed her and grabbed her breast. Komlossy told Marchuk that Monteverde was married and expecting a child, and then Marchuk broke down crying. What did you make of that?

This varied from juror to juror. Some of us took it this way: he told her that he was in a “green card” marriage, she believed him and was a willing participant, and once she found out he was a family man with a kid on the way, she felt betrayed and her conscience got to her. That was what a lot of us thought.

But there were alternatives. For us, that was one of the hardest things to interpret. There were so many conflicting pieces of evidence regarding her crying in response to learning he had a baby on the way.

ATL: In the end, despite your skepticism about some parts of her case, you did award Marchuk $140,000 under New York City’s human rights law, including $50,000 in punitive damages — $45,000 from Monteverde and $5,000 from the Faruqi firm. How did you come to that conclusion?

While we were deliberating, we asked for a couple of clarifications and to review some of the exhibits. It appeared to us that the city law was a lot more lenient — my understanding was that it didn’t have to be a hostile work environment, she just had to show she was treated less well because she was a woman.

We did have a debate about “less well.” In terms of workplace stuff, you could argue she was treated more well — she was in the M&A group, a top group at the firm, and she was getting to go to Delaware for court hearings. Her bonus was the same as all of her peers. But she was subject to inappropriate sexual conduct. The kiss. The jokes.

The Faruqis found about it, and they did do something, but not enough, in our opinion. We truly believe that both of the Faruqis were good people. Nadeem didn’t hide the fact that this happened — he even asked [former partner] Emily Komlossy, who first learned about the kiss, to send him an email so he would have a record of the complaint. He wasn’t trying to shove it under the rug. He knew Juan was inappropriate and made inappropriate comments. He was just in a difficult situation and made a bad decision.

So we acknowledged that the Faruqis did something wrong, which is why we imposed some punitive damages on them — punitives are supposed to be a deterrent, the judge told us. We did wrestle with the fact that Marchuk never filed an official complaint, but the Faruqis knew because Komlossy told Nadeem who told Lubna. And so the Faruqis could have done more. They could have called Marchuk into one of their offices and investigated more.

We were very impressed by the Faruqis on the stand. Both have very strong presence. Our conclusion about them was: you’re not bad people, but by virtue of your roles and responsibilities at the firm, you should have done more after you heard about the kiss. So that’s why we imposed punitive damages on them.

ATL: And you awarded $90,000 in compensatory damages. How did you come to that?

That was just math, front pay and back pay. We rounded some figures and gave her the benefit of the doubt on some things.

We were unanimous on emotional damages of zero. No one bought her attorney trying to sell PTSD [post-traumatic stress disorder]. No one truly believed there was evidence to suggest that she was suffering emotionally or that she was raped besides her testimony on the stand.

ATL: What about the psychological experts?

She had her psychologist come in, but he was no more credible than the defense’s psychiatrist, who has actually dealt with PTSD victims. It was an unusual situation because she saw both her psychologist and their psychiatrist because of the court case. There wasn’t any objective doctor. Because of that, we couldn’t believe one over the other.

ATL: How did your views on the case change over time?

None of us knew about the case before the trial. When the judge described it to us, and then when she got up there at first to testify and claimed that she was attacked by her boss, we assumed it would be a terrible story and that she’d have a great case. But in the end her story had too many holes.

We weren’t sure if Juan Monteverde would take the stand. I thought his demeanor in court at the start of the case was terrible. He looked bored out of his mind, he was not paying attention, he was slouched over. I thought, based on what I’m hearing and based on looking at him, that I’m going to hate this guy.

Then he got on the stand, and — well, while he wasn’t quite likable, he was not the terrible person I thought he’d be. I didn’t believe all his testimony, but he was not the jerk I expected him to be.

ATL: What did you think of the lawyers in the case?

I thought the defense lawyer was more effective than her lawyer. We all agreed about that. We thought [defense lawyer Scott] Bursor was an incredible attorney. We joked that if we have a legal issue tomorrow, is it okay to ask for his business card?

[Plaintiff’s lawyer Harry] Lipman was okay. We thought some of his witnesses, including Lexie, were over-rehearsed. During cross-examination, they would try to minimize how much they had spoken with him or prepared for the case. I don’t think any jurors would have cared if they had come clean and said yes, the plaintiff’s lawyer prepared me for the questions you might ask, and we talked about it. But it was so clearly rehearsed that it took away a lot of the credibility — especially her testimony about the night of the Christmas party. She had the same line to try and explain why she went up to the office with Juan — that “to walk away would be to quit,” or something like that. That’s what she told her attorney, and then on cross she used the exact same words. Those are not normal words to use, and she said them verbatim — twice.

ATL: What did you think of Judge Hellerstein?

We loved the judge. He was hard on the lawyers, but fair. On Bursor’s first cross-examination, we saw the judge attack, but then he did the same thing to Lipman. He was consistent — maybe harsher toward Lipman overall, but the jurors unanimously thought that Bursor was the more polished attorney, so maybe that explains it.

ATL: Have you ever served on a jury before?

I’ve been called but never selected until now.

ATL: And how would you describe the experience?

I have two complaints. First, the judge said the trial would run two weeks, or three at the most, and we ended up going for four. Some of that was because of court being closed due to snow. But it was frustrating — this is my second complaint — because there were a lot of sidebars and objections, and we had to sit there while they got worked out. They should have been addressed before we were even there. We’d be ready at 10:15 and maybe we wouldn’t get called into court until 11. We’d have seven-hour days, like 10 to 5, but maybe we’d only be hearing stuff for three of those seven hours. The lack of utilization was frustrating. My bosses at work were not happy that we ran over.

Overall, though, we were glad to get this case because it was interesting. Before I was having nightmares about getting some insider-trading case and having to hear about SEC violations. At least this was tangible stuff that we could all relate to.

Earlier: Alexandra Marchuk v. Faruqi & Faruqi: A Post-Trial Interview With Plaintiff’s Counsel
Alexandra Marchuk v. Faruqi & Faruqi: A Post-Trial Interview With The Defense
Breaking: Verdict In Alexandra Marchuk v. Faruqi & Faruqi
Alexandra Marchuk v. Faruqi & Faruqi: 5 Observations From Inside The Courtroom

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