Atlantic City Board of Education attorney Tracy Lynn Riley achieved the equivalent of pulling a “rabbit” out of her hat today on Day 4 of the former Atlantic City Public Schools teacher Phil Eisenstein vs. Atlantic City Board of Education trial.

In a “Conscientious Employee Protection Act” (CEPA) case, the plaintiff is required to demonstrate four different items.

The first being that the plaintiff believes that a law or policy was broken. They must state what law or policy was broken.

This basic predicate could have been established before the trial began, or, during the 2 1/2 hours that Eisenstein was on the witness stand giving testimony, yesterday.

This was not established prior to the trial beginning. And, Eisenstein was not prompted by his attorney John Swift and therefore never established that a law or policy was broken.

To her credit, Riley picked up on this apparent deficiency and moved to have New Jersey Superior Court Judge Danielle Walcoff dismiss the case on summary judgement.

Despite the fact that the jury was seated and hearing the case, Walcoff made the correct decision and ended the trial.

In my opinion, it was not the right outcome, but, it is the correct legal decision based upon the elements of this case.

Just yesterday, there were discussions about potentially settling the matter and today the case is dismissed.

I interviewed Eisenstein a short while after Judge Walcoff’s dismissal of his long sought after day in court.

Eisenstein was obviously quite disappointed. But, he was such a gentleman when reflecting on what had just happened to him.

Eisenstein told me that he is grateful for his current standing in life.

Eisenstein advised that his attorney went straight back to his office to review next steps.

I asked Eisenstein if he would be seeking to present a new case if it’s not dismissed with prejudice? Eisenstein believes that if the jury had gotten to deliberate his case that he would have won on the merits.

In a promising sign for Eisenstein, we have learned that Swift has told Eisenstein that this is not over.

We have placed a telephone call to Swift, but, have not yet been able to reach him.

Today is one of those tough life lessons. You may have the facts on your side, however, a basic error can take you from a potential sure winner … to a disappointing defeat.

NOTE: After speaking to Swift, we will add additional content to this article.

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