None really. I just wasn't expecting to hear it the first week of the trial from highly respected Judge Wake who, BTW, is supposed to be impartial. I'm no lawyer, been on jury duty a few times. Never heard a judge discussing remedies and damages before the verdict was even read. I'm not saying he is not a good judge or anything disparaging about the man...just odd to me, that's all.
In my opinion/experience it was an odd proceeding in that it was a hybrid DFR action that also included a bench trial on injunctive issues at the same time that the fact trial (jury trial) was ongoing. DFR's making it to the trial stage are flat-out rare. Bifurcated trials are uncommon to rare. Trials where both the jury and the judge are considering evidence (as opposed to the judge simply dealing with judicial evidenciary rulings and not being directly involved in actively considering factual issues) are uncommon to rare. All-in-all this was a very rare proceeding before a trial court.
As for the impartiality of the judge, can anyone here really say that that on September 4, 2008 (the day the Complaint was filed in federal court in Phoenix) that Judge Wake was partial to one party or another? If either party had thought so they should have filed a motion seeking recusal and/or re-assignment of the case to another judge. Absent that having happened I can't find any validity for the issue of impartiality.
Once contested matters were heard and considered by the Court from there the Court can rightfully build up a view of the evidence in the case and the parties. As more evidence comes before the court, in the form of motions containing some degree of evidence, affidavits, deposition transcripts and other things that constitute evidence, the court adds to its knowledge base of the case and its assessment of the case and the parties. So, just because a judge rules against a given party, perhaps repeatedly, doesn't mean the judge or the jury was biased or otherwise not impartial. Remember all the different law firms that were interviewed or consulted, both by the East MEC and Mr. Bradford, before they seemingly found an opinion that they found they liked for their fact pattern? It can probably be inferred that there were a lot of opinions of their legal position contrary to what they wanted to hear. Should it come as a surprise that neither the judge or jury didn't agree with the extreme position that East sought advance?
Finally, the issue of the jury trial and bench trial occurring together. The Court was concerned that it had a duty to rule one way or the other on Plaintiffs request for injunctive relief. Cases seeking injunctive relief are entitled to a priority status being heard, especially when the plaintiff is claiming that if an injunction were to not issue in a timely event that more harm would accrue because of any delay in granting the injunction. In this case the Court did not issue a preliminary injunction. (It ruled for the defense at that point.) The Court however did say that the Plaintiffs were entitled to a full hearing on their request for a permanent injunction in a timely manner and originally sought to have the trial in, as I recall, February 2009 on limited issues. However, as more issues arose, the case was delayed, class status was granted, it was made into a hybrid DFR case and also bifurcated to the jury on liability only. In the meantime, as a housekeeping matter, the Court clearly and often discussed that the Court had very limited time to deal with this case because of the practicality of judicial calendars.
So, the judge used his time to run both a jury trial and a bench trial at the same time. He said many, many times that if a defense verdict were to brought in by the jury that it would be all over, including the bench trial. But, absent a defense verdict, it was prudent and wise to use the Court's time and the attorneys time since everyone was in Phoenix anyway, to hear and consider all the other issues than open before the Court. Remember that as a practical matter that USAPA's counsel were from New York and Pennsylvania and that their physical presence in Phoenix was also uncommon, plus they would be here through the time that the jury was considering the case.
Anyway, while I assume that you do not like the result at all, I thought that I would address the issues raised in your post.
