Alexandra Marchuk v. Faruqi & Faruqi: 5 Observations From Inside The Courtroom
What are the latest developments in this high-profile and salacious case?
On Monday, trial got underway in Marchuk v. Faruqi & Faruqi, the epic sexual harassment lawsuit filed by Alexandra Marchuk against her former firm and one of its most prominent partners, Juan Monteverde.
For those of you who don’t recall, here’s the gist of the case. Lexie Marchuk, who worked at the Faruqi firm for a few months in late 2011 before quitting, alleges that Juan Monteverde repeatedly harassed her when she was a first-year litigation associate, then sexually assaulted her on the night of the firm holiday party. For their part, the Faruqis and Monteverde contend that Marchuk was obsessed with Monteverde, that sexual interactions between the two were all consensual, and that the supposed sexual assault didn’t happen (because Monteverde’s monte was not so verde that night).
Sometimes the pressure of trial causes a case to settle “on the courthouse steps,” as they say — I once made it on to a jury where the parties settled right before we took our jurors’ oath — but that’s not the case here. It’s now Wednesday and the trial is still going strong, set to resume tomorrow morning.
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This afternoon I headed downtown to 500 Pearl Street, to the courtroom of Judge Alvin K. Hellerstein (S.D.N.Y.), to check out the proceedings for myself. I watched Scott Bursor of Bursor & Fisher, lead lawyer for the defendants, cross-examine the plaintiff herself.
(By the way, whatever happened to the Faruqis’ team from Epstein Becker & Green? We’ve heard some interesting rumblings about why EBG is no longer involved in the case; feel free to email us or text us (646-820-8477) if you want to spill.)
Here are 5 brief observations from inside Courtroom 14D:
1. Alexandra Marchuk is a solid witness.
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Being cross-examined, especially about traumatic events, can be difficult; Marchuk weathered it well. She was poised, but not overly polished or rehearsed. She didn’t trot out unrealistic recollections — the underlying events took place more than three years ago — and she had no problem admitting when she didn’t remember something (such as who paid for a cab on the night of the ill-fated holiday party, or whether there was a DJ spinning at one of the bars they visited that night). She occasionally choked up or even cried a little when testifying about difficult subjects, but she didn’t seem to be acting or exaggerating for the jury. It will be interesting to see if the Faruqi witnesses or Monteverde himself come across this well when they testify.
Some readers will find this offensive or politically incorrect, but I should point out — because, to be honest, it might matter given the nature of the case — that Lexie Marchuk was looking attractive. Dressed in a dark blazer, she appeared thinner today than in her photo above (to say nothing of this photo), yet still youthful, and her hair was sleek and glossy. A sexist juror could easily think, “I could imagine her being sexually harassed.”
I will also note, in the interest of fairness, that Juan Monteverde was looking mighty fine. Clad in a conservative suit and sporting a Burberry giant-check scarf, he looked handsome, tan, and leaner and younger than in his photo above. And this might matter at trial as well. A sexist juror could easily think, “Why would such a good-looking guy need to take advantage of a subordinate to get some action?”
2. The Faruqis have some facts to work with too.
The Faruqis have not yet put on their case, but Scott Bursor’s cross-examination of Marchuk hinted at some evidence — or at least allegations, or theories — that the defendants intend to present. For example:
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- Monteverde didn’t use force in taking Marchuk back to the office, site of the alleged assault, and she was seen by a security guard giggling in Monteverde’s company that night.
- Marchuk did not lodge any complaints about Monteverde with law enforcement or even the Faruqis after the evening in question; to the contrary, she thanked the Faruqis the next day for hosting the holiday party.
- Marchuk was encouraged to sue by one Tori Leventhal, whose then-fiancé David Leventhal had been fired by the Faruqis not long before the events in question; the Leventhals manipulated Marchuk into suing in order to get revenge on the Faruqis for David’s firing.
- Marchuk made some perhaps unfortunate comments in emails or Gchats with friends about the case (more on that below).
To some observers of this case, the Faruqis are the “villains,” but seeing the Faruqis in court today reminded me of their humanity (despite, well, the occasional unfortunate outburst).
Nadeem Faruqi, dressed in a dark suit, white shirt, and cornflower blue tie, seemed worn and anxious. Lubna Faruqi — wearing a long gold tunic overlaid with a black mesh top, her hair in a high ponytail — looked regal and stoic. But after the jury left the courtroom, Lubna showed her vulnerability by reaching out to her brother for a surprisingly tender hug. The hug made me think about how stressed they must be, with the firm that they have built together over the years now on the ropes.
3. If you’re ever in the position of having to use a former employer for discrimination or harassment, say as little as possible about the underlying matters (unless talking to your retained counsel or another professional whose communications with you are undoubtedly privileged).
In the wake of the alleged assault, while she was considering whether to quit the Faruqi firm and file a lawsuit, Marchuk engaged in email and Gchat communications with friends and family members about the events in question. Some of these comments are now being used against her. For example:
- She told a friend that she “wanted to keep working” for Juan Monteverde but that she had a “good friend” (Tori Leventhal) who “wouldn’t let that happen.”
- She referred to her case against the Faruqis and Monteverde as her “experiment with the legal system.”
- She expressed to a friend her hope that the Faruqis “will pay me to go away.”
- She talked with a friend about moving to Hawaii if she got a big settlement from this case.
Are there innocent explanations for all of these remarks? Yes, and Marchuk provided them in her testimony — respectively, that she went “numb” and experienced clouded judgment right after the alleged assault; that the “experiment” comment was just acknowledging the reality that lawyers aren’t often in the position of being clients; that she would have preferred a settlement to a trial, for obvious reasons; and that the Hawaii comment was just a joke or a fantasy.
But still, comments like these can be taken out of context and used against a plaintiff. If you’re ever in Marchuk’s shoes, try your best to say as little as possible about the matters at issue (unless communicating in a clearly privileged context). It can difficult to refrain from venting to friends, but resist that urge.
UPDATE (1/16/2015, 3 p.m.): Here’s the flip side of the argument: contemporaneous complaints to your friends or family members about the conduct you were subjected to could help your case. But the complaints should be consistent with each other, and you should always keep in mind how complaints or other comments might be viewed by a jury hearing your case years later.
4. Judge Hellerstein isn’t a potted plant.
During trials, some judges sit back and fall asleep let the lawyers try their cases, while other judges get actively involved in the proceedings. If you ever have a trial before Judge Alvin Hellerstein, take note: he falls into the second camp (at least if this case is representative).
The rumpled and rotund Judge Hellerstein, attentive and engaged throughout the proceedings, didn’t shy away from interjecting questions of his own for Lexie Marchuk, sometimes disrupting the flow of Scott Bursor’s cross-examination. The judge also didn’t shy away from expressing irritation with Bursor at times, especially when he felt Bursor was moving too slowly. I enjoyed this exchange, during a line of questioning that the judge found less than worthwhile:
HELLERSTEIN: Can we move on to something meaningful?
BURSOR: Judge, this is meaningful.
HELLERSTEIN: Well, excuuuuse me!
The jurors and courtroom observers chuckled at Judge Hellerstein’s channeling of Steve Martin. Bursor probably found it less amusing.
Was Judge Hellerstein too interventionist, in a way that could trigger complaints (or even claims on appeal) that he showed partiality in front of the jury or made defense counsel look bad? That I don’t know, since I missed the prior days of trial. I don’t know whether Judge Hellerstein was similarly hard on plaintiff’s counsel, and I don’t know whether the judge’s apparent impatience with Scott Bursor was justified based on Bursor’s prior conduct. I should get a better sense of these matters from future visits.
5. Journalists are citizens too.
To the angry, power-tripping woman in the puffy coat who seemed to be the “jury wrangler”: I’m sorry, but I don’t understand the basis for your arbitrary declaration that reporters — i.e., people with notepads and pens — can’t sit on the left side of the gallery. You know, the side of the gallery where you can actually see the witnesses and the projected documents on WolfVision.
These are public proceedings, taking place in public courtrooms, and journalists are are members of the public. We should be able to sit anywhere that other members of the public can sit. If you want to close off the entire left side of the gallery, close it off to everyone, not just reporters. And in that case, please put a WolfVision monitor on the right side, so we can see the projected exhibits that everyone else sees.
Journalists are the eyes and ears of the citizenry. Federal courts are, at least compared to state courts, already relatively hostile to cameras in the courtroom (with some exceptions, like the Ninth Circuit). Treating journalists like second-class citizens and relegating us to the cheap seats, where we can’t see the witnesses or the evidence, is a further affront to the First Amendment and the democratic values that it embodies.
UPDATE (1/16/2015, 3 p.m.): Yesterday Judge Hellerstein came to the defense of courtroom deputy Brigitte Jones (aka the puffy-coat woman), telling reporters not to sit on the left side of the gallery to try and eavesdrop on the jury. I have a few responses. First, when I was sitting on the left side of the gallery, there was no way I was trying to eavesdrop on the jury because the jury was in the jury box. Second, if you can hear what’s going on inside the jury room from the left side of the gallery, then nobody should be allowed to sit there, whether they are reporters or just members of the public. Third, please tell GSA — the General Services Administration, which handles physical-plant issues for federal courthouses — that they need to address this problem, stat. (While they’re at it, they should also fix the broken clock at the back of the courtroom, which I overheard the court reporter and others complaining about.)
A note to Judge Hellerstein’s law clerk: thank you for trying to move the monitor so that people seated on the right side of the gallery could see the documents that went up on the ELMO. You are classy and considerate.
UPDATE (1/17/2015, 1:30 p.m.): Subsequent coverage of the case is collected here (newest stories at the top).
Earlier: Alexandra Marchuk v. Faruqi & Faruqi: Time To Pick A Jury
