Friday, December 17, 2021

Stormy Daniels – the Importance of Four Days

It has been a while since Stephanie Clifford, aka Stormy Daniels, has been in the news. You will recall that she was paid $130,000 to keep quiet about her dalliance with Donald Trump. After this liaison became known, two lawsuits were filed. 

In the first, Daniels claimed that the non-disclosure agreement she signed was fatally defective and that she was entitled to tell her story. She won this case.

In the second suit, Daniels filed a defamation lawsuit against Trump for his disparaging remarks about their presumed relationship. That case was dismissed by the court because the statements made by Trump did not meet the legal standards for defamation. 

In both cases, the winning side was entitled to attorneys’ fees. Daniels was awarded $44,100 in the nondisclosure case. In the defamation case, Trump was awarded $292,062.33. Much of the disparity in attorneys’ fees was due to the relative complexity and time involved in the cases. 

From the outside, one would think that the two cases could be brought together financially, with Daniels paying Trump the difference between $292k that he won and the $44k she did. That apparent solution is not that simple legally. 

On the Trump-winning side, we have the issue of her liquidity. She simply does not have it. The reason is that her former attorney and short-term media darling, Michael Avenatti, absconded with funds belonging to her as the result of a book deal. It has since been revealed that the now disbarred Avenatti made a practice of spending his clients’ money and attempting to extort others. It is also apparent that the defamation case he filed on her behalf was not done for her benefit but to keep him in the public eye. 

Arguably, then, the reason Daniels owes Trump any money at all is because of Avenatti’s avarice. Daniels could, of course, attempt to get that money back from Avenatti, but she is near the back of a long line of creditors. 

The bottom line for attorneys’ fees payment from Daniels is that she is simply “not collectable.” 

The “four days” referenced in the title to this article concerns the $44k owed by Trump to Daniels. Trump’s then attorneys attempted to appeal the attorneys’ fee award. That is where the legal stuff comes in. 

There is a legal adage that lawsuits are nothing more than a series of hurry up and wait. The “hurry up” is caused by specific, strictly enforced timelines that lawyers are required to follow. 

In the present case, Trump’s lawyers had 60 days from the court clerk’s certification of the lower court attorney’s fee order to file their appeal. This time limit is called “jurisdictional,” meaning that if you miss the deadline by even a day, your case is finished. No exceptions. This strict rule probably causes lawyers more panic than anything else. Miscount the days? You lose. 

Trump’s attorneys’ fees appeal missed the deadline by four days. They attempted to argue that the clerk’s certification really had not occurred until days later than appeared on the certification form. This time difference would have given them additional time to file the appeal. The appellate court panel said the evidence simply was not there to prove that. Therefore, since the appeal was not timely made, the case is finished.

It is highly unlikely that money will ever change hands between Trump and Daniels. So financially, there is no winner. The true losers are Trump's former lawyers who will now need to explain to their forgiving and longsuffering boss why they lost. I hope their malpractice insurance premiums are up to date. 


Tuesday, December 14, 2021

When Your January 6th Defense Is Essentially “I Got Nuthin’, Your Honor.”

Some days as a defense lawyer are tougher than others. You try to make the best case possible, but sometimes the facts make your arguments seem a bit tenuous. 

Capitol riot defendant, Nathanial Degrave, wearing protective gear and carrying knives, entered the Capitol and, among other things, shouted at the rioters to “take laptops, paperwork, take everything.” He faces numerous charges, including the felony of “obstructing an official proceeding.” 

From the context of the January 6 events, it is clear that those who planned and stormed the Capitol had one immediate goal—to prevent the certification of the election. One would presume that this certification would occur during an “official proceeding.” 

Not so fast, says the defense. Their argument is that when Congress gathered to certify the election, it was not an official proceeding because it was “purely ministerial and ceremonial.” Therefore, the proceeding did not meet the technical statutory requirements for an official proceeding. 

So which is it? Either certification was a proceeding that could have been thwarted, which at least some of the invaders believed, or it was ceremonial, which would make their entire day’s work useless. 

U.S. District Judge Dabney Friedrich of the District of Columbia is the first judge to rule on this defense theory and she denied the motion to dismiss the charge. She noted that defendants were trying to find ambiguity in the statute where none exists. (Ambiguity is central to defendant’s argument because this gives rise to something called “the rule of lenity”—ambiguities in a statute are to be resolved in favor of the defendant.) 

If you are thinking that the defendant will immediately appeal this decision, delaying the criminal proceedings, they cannot. The denial of a motion to dismiss is not a “final appealable order.” The case will now proceed to trial (or a plea agreement). 

While writing this, I could not help but think of an example where a ceremonial event could be disrupted. “If anyone knows why these two should not be wed, let him speak now or forever hold his peace.” My guess is that if someone shows up at a wedding in riot gear, things will not go well.

Monday, December 13, 2021

The Entrapment by Estoppel Defense – Why Blaming Trump Will Not Work

Defendants in the January 6 storming of the Capitol have relied on a variety of defenses, some serious, others outright silly. A common thread has been the implication that Donald Trump encouraged them to act.

We now have a case where a Trump-specific defense is being offered – entrapment by estoppel.

What is that defense and why are prosecutors are saying it should not be allowed?

First, an analogy: a bank robber claims he should not be found guilty because the Chief of Police told him it was okay. In other words, the prosecutor is precluded (estopped) from charging him because he himself was being victimized (entrapped). In order to win, our pantyhose-masked perpetrator must show five things:

1.    The police chief had the authority to give him that advice.

2.    The police chief was aware of existing law and facts before giving the advice.

3.    The police chief affirmatively told the defendant to go ahead and rob the bank.

4.    The defendant relied on the advice.

5.    It was reasonable to rely on the advice.

Yes, this is a ludicrous case, but it shows how high the standard can be if you expect to win.

The problems for this January 6 defendant are myriad.

First, did Trump have the authority to advise him to create mayhem inside the Capitol, especially considering rules for conduct at that institution? Well, we have already lost here, but we may as well continue.

Second, did Trump affirmatively tell the defendant to commit those acts? There is a fact question here about what Trump really said. However,

Third, defendant claims that he relied on that advice.

So, fourth, was it reasonable to rely on this advice?

Reasonableness is always the key in these cases. Think about when your mother asks: “if everyone else jumped off the bridge, would you too?”

As a defense lawyer, my best witness would be Trump himself. I would have him state under oath that as Commander in Chief, he had the authority to abrogate rules of conduct at the Capitol. Further, that he told people to storm the capital. And finally, that people had every reason to believe him when he said the conduct was permitted.

We all know that this testimony will never happen. The defense cannot win without it. This is why the prosecutor is arguing that the defense argument should not be considered.

Then why is the defense using this argument at all? It is really all they have. If, as so many have claimed, they only acted upon the encouragement from Trump, there was an expectation that he would have their backs. Perhaps that would mean the grant of some sort of amnesty or pardon after the fact. At the very least, it might mean that Trump would cover some of their legal expenses.

Obviously, none of that occurred. As noted above, “reasonableness is always the key in these cases.” These defendants may now be asking themselves whether it was reasonable to believe Trump would have their backs. Then again, maybe not. There’s always the Miracle on 34th Street.


Thursday, December 2, 2021

Trump’s Sanctioned Lawyers Learn the Meaning of “Lodestar”

Among the “vexatious and meritless lawsuits” challenging the results of the 2020 presidential election, one case filed in the State of Michigan was especially noteworthy. Judge Linda Parker found that the plaintiffs’ claims in that case were so excruciatingly bad that they rose to the level of being an abuse of the legal system. So, after dismissing the lawsuit, Judge Parker required ALL of the plaintiffs’ lawyers to appear for a hearing to explain why they should not be sanctioned (punished) for purposely undermining confidence in the election process. 

It was not a close call. In August, Judge Parker sanctioned all the attorneys, requiring them to take remedial ethics education and referring many of them to their respective state bar associations for possible disbarment. These lawyers included Sidney Powell and L. Lin Wood who continue to ask their followers to financially support them. 

Courts realize that “true believers” often do not understand the concept of sanctions. And, whether due to willful ignorance or the inability to make rational decisions, some will continue to believe the long-disproved narrative that the Powells and Woods espouse. 

Therefore, the court’s only other remedy is to hit the lawyers in the pocketbook. That is what Judge Parker did today. She ordered the entire legal team to pay the legal fees incurred by the State of Michigan and City of Detroit in defending the spurious lawsuit. The amount of those fees? $175,250.57. These are owed by the plaintiffs’ lawyers “jointly and severally,” which means that the money will come from whoever has the deepest financial pockets. 

$175,250.57 is an oddly specific number and it offers the opportunity to talk about lodestar. 

You are familiar with many different methods of computing attorneys’ fees. Sometimes, fees are based on a percentage of the amount recovered (such as in traffic accident cases). In other matters, such as probate proceedings, fees are awarded according to a court-approved formula. 

For proceedings such as this, however, those approaches do not work. Therefore, the court requires the lawyers requesting fees to document them using what is known as the “lodestar” approach: the number of hours worked multiplied by a reasonable hourly fee. 

The time sheets that document an attorney’s work are specific both as to the time involved per day (broken down into 6-minute increments) and the specific work performed. So, for example, I could not claim to have worked “all day on this litigation.” Rather, the description would be more like “2.7 hours drafting answer to count one of the complaint.” 

The hourly rate must also be “reasonable.” I may think my time as an expert is worth $900/hour, but if the average hourly rate for similar work in that same geographic region is $325/hour, my fee request must be closer to that lower figure. 

Judge Parker in her order reviewed the time spent and hourly rate in detail. After excluding amounts that she found were not applicable, she arrived at the final dollar amount.

Do not expect that a check to pay those fees will be coming any time soon. The order states specifically, that the payment will be due only after any appeals have been concluded. Will the plaintiffs’ attorneys appeal? Since this group is known to delay and delay and delay, an appeal would not at all be surprising. 

In the meantime, Powell and Wood will continue to shear their sheep financially. And, if you are thinking that Trump might be using some of his multi-million dollar defense fund to pay these costs (which were expended for his benefit), your money might be better spent on a MyPillow.

Wednesday, November 24, 2021

Arbery Convictions: the Felony Murder Rule

Two of the defendants in the Ahmaud Arbery murder case were convicted of felony murder. 

The concept of felony murder has a long and consistent history in this country. It is also one of the first criminal law concepts taught in law school. Simply stated, you do not need to be the person pulling the trigger in order to be convicted of murder. The fact that a felony was committed during the time surrounding the murder is enough for the conviction. 

One of the classic examples of felony murder is the driver of the getaway car during a bank robbery where a person was killed. The rationale for the rule is that all people involved in the planning and execution of a felony are responsible for everything that results from that felony. 

Although the rule has been criticized in the past as being unduly harsh, it ensures that nobody is excused from egregious and horrible conduct. The rule also has the deterrent effect of discouraging others from following along with conduct they should have known was improper.

Saturday, November 20, 2021

More Rittenhouse: Why Prosecutors Brought a Case They Wouldn’t Win

When prosecutors lose a high-profile case such as the murder trial of Kyle Rittenhouse, the blame game kicks into high gear. 

Following Rittenhouse’s acquittal, some are pointing at Judge Schroeder’s sometimes questionable actions during the trial. Other are dissecting what they see as prosecutorial missteps during the trial. There is plenty of fodder for discussion in both instances. 

However, the biggest problem is that prosecutors brought a case that they had little chance of winning and failed to amend the charges before trial when it was clear that there would be problems. 

The context of the Rittenhouse case was emotionally charged. This was the third night of chaotic and violent protests that occurred in the context of the shooting of Jacob Blake. Kyle Rittenhouse, a 17-year-old from Illinois, inexplicably walked into the area with a semiautomatic rifle. During the ensuing hours, Rittenhouse shot three people, killing two. 

There was no middle-of-the-road reaction. These deaths were emblematic of a much deeper societal divide. 

Attorney L. Lin Wood (who is currently facing disbarment proceedings for his abuse of the legal system in the 2020 election contest cases) stepped in for the defense and argued that Rittenhouse should be kept in custody for his own safety rather than being released on bond, due to what he described as the “impending Armageddon” that would follow the 2020 election results. 

On the other side, prosecutors were being bombarded by calls for justice due to the apparently random vigilante actions of Rittenhouse. Justice, in this context, meant to charge Rittenhouse with murder. For prosecutors to do anything other than to file the most severe charges possible would have resulted in an outcry of favoritism towards a white defendant. 

Prosecutors charged Rittenhouse with five felonies that were equivalent to murder charges. They also charged him with a misdemeanor that was later dismissed by agreement of the parties. 

Within the next few months, Rittenhouse fired Wood as his attorney and was released on bond. At the same time, prosecutors began sorting through the volume of evidence. 

In the process of gathering evidence, prosecutors soon realized that this was not an open-and-shut murder case. Rather, it was apparent that defense would be able to argue self-defense to show “reasonable doubt.” We know that from later trial testimony. 

For example, videographer Richie McGinness described Rosenbaum chasing Rittenhouse and lunging for Rittenhouse’s gun. When pressed by the prosecutor about Rosenbaum’s intent, McGinniss quickly answered: “Well, he said ‘F--- you.’ And then he reached for the weapon.” 

The key moment in this case may have actually occurred at the final pre-trial conference. This is a meeting of the judge and attorneys where the guidelines for the trial are all set. 

If the prosecutors were to change what they were charging Rittenhouse, this would be the time. Prosecutors could have elected to reduce the charges against Rittenhouse, substituting charges where self-defense claims would be irrelevant. This was a winnable case. But this would have taken murder off the table, an option that would have caused a tremendous outcry from those who thought that a murder conviction was the only acceptable outcome. 

Prosecutors held firm and rolled the dice. 

The Rittenhouse case is a cautionary tale. We all have our own ideas of what justice looks like. However, what you can prove legally may not match those ideas. The prosecutors in the Rittenhouse case were pushed to prove a certain result, not to produce the best result with the evidence they had.

We know the result.

Friday, November 19, 2021

Rittenhouse Redux: Not Guilty Does Not Mean Innocent

Emotions from the just-released verdict in the Kyle Rittenhouse trial are, of course, running high. A few things should be kept in mind from a legal standpoint. 

Nothing in the verdict says that Rittenhouse was without blame for his conduct. Being found “not guilty” is not the same as a finding of innocence. Rittenhouse was charged with specific violations of Wisconsin state law. What the jury found was that the state did not find him guilty of those SPECIFIC charges beyond a reasonable doubt. Our system of justice says that when 12 people agree, their decision controls. 

Although there has been much focus on the conduct of the judge in this case, my second-guessing would rest with the prosecution. The claim of self defense (in the context of “reasonable doubt”) applied directly to all of the charges brought. That same defense would not apply to some charges that the prosecution did not, but could have, brought. I’m still confused why those lesser charges were not promoted sufficiently. Simply put, the jury was not provided a way to convict without considering the self defense testimony. 

The criminal trial may be over, but do not be surprised if Rittenhouse is not later sued for civil damages. Think back, for example, to the O.J. Simpson case where he was acquitted criminally but held liable for damages civilly. In a civil case, “reasonable doubt” does not apply. “Preponderance of the evidence” is the standard, making it much easier for a plaintiff to prevail. 

Rittenhouse’s sign of relief may therefore be short lived.