Monday, August 30, 2021

I’m not a lawyer, but I DID stay at a Holiday Inn Express last night

John Pierce, a high-profile conservative attorney who is representing a number of the January 6 defendants has apparently been hospitalized for a couple of weeks and has not been communicating either with his clients or the court. 

Attempting to step in to temporarily take his place in these cases has been Ryan Marshall, an associate from Pierce’s law firm who is not a licensed attorney. According to the Assistant U.S. Attorney, Marshall has been appearing at court hearings and meetings with the government “for roughly the past week.” 

The U.S. Attorney’s office is requesting that proceedings against these defendants be stalled until they are represented by a licensed lawyer. 

This is not a frivolous matter. Non-lawyer associates are often knowledgeable people, but that is not the point. A defendant deserves the protection that only a licensed lawyer can provide, including, sadly, legal recourse in cases of malpractice. 

It says something about the quality and integrity of the U.S. Attorney’s office that they have been proactive (even though not required to do so) in ensuring that the defendants in the January 6 cases are represented appropriately.



Friday, August 27, 2021

As an attorney, “Ignorance is not bliss—it is sanctionable”

Michigan District Court judge Linda Parker has ruled that the lawyers who filed the election fraud case in Michigan should be sanctioned. Her 110-page ruling is extraordinary in its detail and legal reasoning. 

The net result for Sidney Powell, Lin Wood and the other plaintiffs’ attorneys is that they must pay the other side’s attorneys fees, take continuing legal education classes, and face possible disciplinary actions, including possible disbarment, in their home states.

I can’t do justice to the intricacies of Judge Parker’s analysis in a brief note, but the ruling boils down to this: attorneys are responsible for what they file in court, they are presumed to know both the court rules and the laws that they are challenging and, most importantly, you never lie to the court. 

The Michigan lawsuit, which contained large elements that were cut-and-pasted from other state lawsuits, had dramatic shortcomings. The most notable was the complete failure of plaintiffs’ lawyers to perform even the most basic “due diligence.” In other words, these lawyers made little or no attempt to determine whether the claims could even arguably be supported. Furthermore, even when what they were asking for in the complaint was no longer feasible, they kept the case going. 

The actions of these lawyers were simply unconscionable. It is one thing to be merely incompetent. It is another entirely to purposely use the courts to promote their personal ends. 

The response by some of these sanctioned lawyers and members of the right-wing media has been boring in its predictability. The brilliance of Judge Parker’s ruling is that she anticipated—and answered—the hand-wringing responses that are being spouted. From the opinion: 

“Journalists”—like attorneys, Powell argued—“must be free to rely on sources they deem to be credible, without being second-guessed by irate public figures who believe that the journalists should have been more skeptical.” 

Of course, Powell missed the most essential point. 

Attorneys are not journalists. It therefore comes as no surprise that Plaintiffs’ attorneys fail to cite a single case suggesting that the two professions share comparable duties and responsibilities. 

The Court also addressed the argument that the lawyers have First Amendment (free speech) rights that would be seriously undermined by the issuance of sanctions. 

Plaintiffs’ counsel’s politically motivated accusations, allegations, and gamesmanship may be protected by the First Amendment when posted on Twitter, shared on Telegram, or repeated on television. The nation’s courts, however, are reserved for hearing legitimate causes of action. 

What Judge Parker’s decision demonstrated (in painstaking detail) is that there are plenty of public forums to peddle your conspiracy theories where they can be eagerly lapped up by people devoid of analytical capacity. However, when you come to court, you must follow the exacting rules to establish the truth. 

Trump’s lawyers failed to uphold even the minimal professional standards expected of attorneys. And they will now pay for their chicanery. 

Addendum. Judge Parker was appointed by a Democratic president. According to some, that means that her decision is politically motivated. That is an interesting but deluded argument, especially if you read the opinion. Had her intention been partisan, she would have taken a vindictive stance. She did not. In fact, one lawyer who asked for attorneys’ fees was denied them. The reason? Judge Parker noted that his participation did not add anything meaningful to the lawsuit. Had the judge been a political hack, she would not have been so careful in meting out the penalties.

Friday, July 30, 2021

Trump Loses His Valued Secrecy in Arbitration Case

Buried deep in the small print of many contracts is a provision stating that disputes will go into arbitration. That provision is typically inserted by the party having the higher degree of power: landlords, franchisors, etc. The two main reasons why arbitration (rather than lawsuits) are beneficial for the party with greater power are: (1) arbitration is a more streamlined and less costly option that proceeding through the court system and (2) arbitration proceedings are private, not subject to the same kind of public scrutiny as lawsuits.

The applicability of arbitration agreements came into sharp focus in a decision earlier this week by the Second Circuit Court of Appeals (one step below the U.S. Supreme Court).

Here is an oversimplification of the facts.  ACN Opportunity, LLC (ACN) is a "multi-level marketing" company that enlists individuals to work on its behalf as "Independent Business Owners" (IBOs) in exchange for a sign-up fee and annual renewal fees. A large class of people signed up. When most people hear the term “multi-level marketing,” something goes ding, ding, ding in their brains and they slowly walk away. These investors did not. Why?

The answer is Donald Trump and the Trump Organization. Through various forums, including at ACN events, recruiting publications and videos, and on two episodes of "The Celebrity Apprentice" television show, ACN was strongly promoted. This series of messages by the Trump group was critical, the plaintiffs asserted, in convincing consumers – including them – to invest in ACN as IBOs. The court noted that the investors’ chances of success were minimal at best: 

Contrary to the defendants' [Trump] representations that ACN's business opportunity was a low-risk entrepreneurial venture that offered investors a viable source of income, investigations by regulatory agencies allegedly have demonstrated that ACN's business was high-risk and that investors had a minimal likelihood of commercial success. Despite claims that ACN's business opportunity would be highly profitable for investors, it is nearly impossible for IBOs to profit or earn a satisfactory income from such multi-level marketing arrangements.

The problem wasn’t that Trump endorsed ACN. He endorses things all the time. The issue was that Trump claimed that the profitability of ACN was based on an “independent evaluation.” But was it?

[T]he plaintiffs allege that in exchange for millions of dollars in secret payments from ACN to the defendants[Trump] between 2005 and 2015, the defendants fraudulently promoted and endorsed ACN as offering legitimate business opportunities that were likely to afford IBOs success.

The plaintiffs had a choice. They could have pursued ACN for damages. However, under the terms of the IBO agreement, this would have gone to arbitration. So the plaintiffs sued Trump and the Trump Organization in the federal district court.

Trump cried foul, claiming that arbitration was required. Both the district court and court of appeals ruled against Trump, noting that since Trump was not one of the parties who signed the contract, arbitration did not apply.

Because of the court’s ruling (which specifically said it was not addressing the merits of the lawsuit), the case can proceed in the federal district court.

Why would Trump and his organization work so hard to keep this in arbitration? Public access to information.

Arbitration proceedings are conducted in private and the only thing that the public will typically ever hear is who won. Court cases, however, are widely reported, pleadings by the parties are public, and information that comes out during the lawsuit often reveals facts that some people would prefer remain hidden.

For an individual such as Trump who regularly uses arbitration agreements and nondisclosure agreements as a silencing measure, this defeat will be highly disconcerting.


Monday, July 12, 2021

Michigan Sanctions Hearing - Seven Lawyers Meet the Judge

Today there was a six-hour hearing in the Michigan Federal District Court. This is the latest stage in one of the multiple dismissed lawsuits claiming election fraud in the 2020 election. The purpose of the hearing was for the judge to decide whether the seven lawyers who brought this case should be punished (sanctioned) for filing the lawsuit and continuing to argue it after the case was finished.

Although you will hear a lot of posturing from those lawyers following the hearing, the reason why they were called into court to answer for their actions is a relatively simple one.

When lawyers file a lawsuit and sign their names to it, they are putting their reputations on the line. Their signatures affirm that the allegations contained in the complaint are true and accurate to the best of their knowledge.

What that means is that the lawyer has taken every reasonable precaution to make sure that the court is not mislead. This is also called “due diligence.” The lawyer’s responsibility extends beyond the complaint itself. It also includes sworn statements (affidavits) that are attached to the complaint. If you fail to exercise due diligence, the court may punish you with fines, suspension to practice law in that court, and referral to the state bar association who may take away your license entirely.

Seven lawyers had their names associated with the Michigan election fraud case. The judge called them all into court to find out who was responsible for what appeared to be an attempt to mislead the court or, as a related matter, to use this lawsuit to make political points.

The judge was interested in three things from each of them:

Question number one: did you actually READ the complaint and exhibits before you signed the paperwork?

Question number two: was there anything in the affidavits supporting the complaint that made you go: “Huh? That doesn’t make sense.”

Question number three: did you actually speak to the people who prepared to affidavits to make sure that their information was accurate? 

These are all yes and no questions that get at whether you did your basic job as a lawyer and acted ethically.

The vast majority of the hearing consisted of those seven lawyers (and the two lawyers they had hired) studiously trying to avoid answering those three questions. On the other side of the aisle, the lawyer for the City of Detroit (who was asking for the sanctions) spent a lot of his time giving his opinion of the evidence, which was similarly improper.

At the conclusion of the hearing, the judge gave all the parties the opportunities to file additional legal arguments before she renders her decision.

Do not believe for a moment that the judge will have been confused by either side’s extraneous arguments. She got the information she needed to make a ruling, as a good judge does.

The post-hearing posturing will likely contain complaints about how “we weren’t allowed to present evidence.” This argument completely misses the point of the hearing and is designed to simply make points.

How the judge will ultimately rule remains an open question. If I had been one of the seven lawyers facing sanctions, you can be sure I would have been remorseful. But then, I would not have put myself in that tenuous position in the first place.

Side note: the judge showed extraordinary patience during this hearing. Even when she could have been justified in losing her cool, she did not.

Friday, July 9, 2021

MAGA - My Attorneys Got Attorneys

Of the more than 60 post-election challenge cases that went down to defeat in states across the nation, one of the most high profile was in Michigan. Gov. Gretchen Whitmer and the City of Detroit among others were sued unsuccessfully in the U.S. District Court case in a case alleging voter fraud.

You may recall that one of the allegations of the complaint was that in some counties there were more votes cast than there were registered voters. What did not impress the judge was that the person doing this analysis used actual voting records from Michigan but related them to registered voters in Minnesota that had counties with the same name. Making this kind of allegation in a sworn affidavit has a name – a fraud on the court. The case was dismissed as having no merit.

Based on this and other defects, both procedural and substantive, the Michigan Attorney General and the City of Detroit told the court that the attorneys who filed and promoted this case should be sanctioned and fined. The sanction motion from January 28 stated:

It was never about winning on the merits of the claims, but rather plaintiffs’ purpose was to undermine the integrity of the election results and the people’s trust in the electoral process and in government. … The filing of litigation for that purpose is clearly an abuse of the judicial process and warrants the imposition of sanctions.”

These lawyers included “release the Kraken” proponent Sidney Powell who was one of Trump's lawyers at the time.

It is not unusual for winning lawyers to ask for sanctions against a losing party, especially when their conduct was unprofessional or incompetent. Typically, though, a motion for sanctions is denied or resolved based on briefs written by the parties.

However, U.S. District Court Judge Linda Parker took a somewhat remarkable approach. On June 17th, she issued the following order:

Each attorney whose name appears on any of the Plaintiffs’ pleadings or brief shall be present [virtually] at the motion hearing. 

This is not an order that a plaintiff’s attorney wants to receive. Judge Parker set the hearing for July 6th.

Nine days later, one of the plaintiffs’ attorneys asked that the hearing be rescheduled to a later date due to an emergency conflict with her schedule. The emergency? A previously scheduled family vacation. Out of what can only be described as the goodness of her heart, Judge Parker granted that request and reset the case for this coming week.

It gets better. Following the order resetting the hearing, the plaintiffs’ lawyers … got lawyers. These lawyers’ lawyers then asked the Court if they could appear in court on behalf of their clients (so that the original lawyers would not need to personally appear). The judge was not amused. In a one word order, she simply said “DENIED.” As one commentator noted, this was the equivalent of answering with a strong verb and a pronoun.

One more aside. As if the lawyers hiring lawyers at this late date in the proceedings isn't unusual enough, one of the original plaintiffs' lawyers (who now had her own lawyer) filed a pleading on her own yesterday. Without her lawyer. She misspelled her own name on the signature line.

The hearing Monday morning on all pending sanctions motions should be interesting.

Unrelated update to a previous article: Following and based upon Rudy Guiliani’s suspension to practice law in New York, the D.C. Court has also suspended his right to practice in that court.


Thursday, July 8, 2021

Fundraising Stalled? File High-profile Lawsuits!

When you initially sign up on a social media site, you first provide basic information about yourself. You are then directed to check a box that says something like “I have read the Terms of Service and agree to their terms.”

By checking the box (whether you ACTUALLY read the terms or not), you have entered into a contract with the provider. As with other contracts, the provider normally has full discretion to decide how or when to enforce the contract’s terms. These contract terms are markedly different than the enforcement of a law, which much be applied fairly and equitably to all people.

This is where a lot of people get it wrong, often because they are being sold bad information. They assume that because laws must be enforced uniformly across the board that the same rules apply to contracts. This is simply wrong.

Donald Trump just filed “class action” lawsuits against Twitter, Facebook and Google under great fanfare. His chances of success on any of these suits are minimal at best. We will only discuss the highlights here.

We should eliminate a misnomer first. Just because you have filed a lawsuit, it is not automatically a class action, even though that sounds impressive. When a lawsuit is filed with claims similar to numerous people, one of the first things filed with the court is a REQUEST to certify the case as a class action. The point you are making is that the number of people who are similarly affected is so numerous that it is impractical to name all of those people as plaintiffs.

Assuming that the court agrees (and that is no sure thing), an attempt is made to identify the members of that class. These possible members are then individually notified and given the option to opt out. This process should be familiar. We have all received those notices. Class actions are seldom certified in contract disputes (because everybody checked the box), but that remains a possibility.

Next, the Terms of Service contract often states the location of the court where an aggrieved person may bring a lawsuit. It is usually in a court that is conveniently located to where the service provider operates. The Terms of Service provided that the proper court would be in California. Trump’s lawsuits were filed elsewhere (at least one was filed in Florida). A basic, basic, basic rule is to file suit in the correct court. Otherwise, the judge may very well dismiss the case for having filed it in the wrong place.

If I wanted to be cynical, and perhaps I am, I would suggest that the cases may have been intentionally filed in the wrong court. Then, when the case is dismissed, the plaintiff can do a “poor me,” complaining that the judge did not really want to hear the case and dismissed it on technical grounds. If that sounds familiar, it should. You heard that a lot when election challenge cases were dismissed for having been filed in the wrong place.

Maybe Trump can get past the jurisdictional issues. If so, the crux of these lawsuits appears to be that getting kicked off the social media platforms were attempts at censorship and a violation of Trump’s first amendment rights to freedom of speech. That makes for a great sound bite (and he repeatedly uses it), but it has questionable legal basis.

Try this analogy. I enter into a franchise agreement (contract) with Tupperware that gives me the exclusive right to sell their products in the greater Portland area. Other people have similar exclusive rights in other areas. Being a successful entrepreneur, I decide to sell products in New Hampshire in violation of the contract. Tupperware shuts me down. I complain that Tupperware has violated my first amendment rights. I have no chance of success in this lawsuit for two reasons: First, I was the one who violated the contract, and second, freedom of speech does not apply to private contracts. Even if I can show that other franchisees have dome similar things, it simply does not matter.

This analogy breaks down, of course, as analogies do. However, the central point is this. You can claim censorship and first amendment violations all you want, but the courts have consistently held that these claims do not apply in contract cases. Social media companies are private and not, to use legal jargon, “state actors.”

Finally, if you wanted to file a groundbreaking first amendment case, who would you hire as a lawyer? My guess is that you would enlist a top-notch Constitutional law specialist. None of them would touch this case.

So if these lawsuits are simply longshots (and that is being charitable), why were they filed? In his press conference, Trump said:

"I stand before you this morning to announce a very important and very beautiful, I think, development for our freedom and our freedom of speech — and that goes to all Americans. Today in conjunction with the American First Policy Institute, I am filing, as the lead class representative, a major class-action lawsuit against the Big Tech giants including Facebook, Google, and Twitter as well as their CEOs Mark Zuckerberg, Sundar Pichai, and Jack Dorsey."

Moments later, an email went out to a group of his supporters that read:

Pres Trump: I am SUING Facebook & Twitter for UNCONSTITUTIONAL CENSORSHIP. For a short time 5X-IMPACT on all gifts. Donate NOW: (with a link) 

You may ask yourself whether the timing of this fundraising email was coincidental. If you do, follow the link.

Wednesday, July 7, 2021

Photography, a Governor’s Lies, and the Ultimate Irony

I enjoy taking photographs. The entire process feeds my soul. What I do with those photographs is up to me alone. Some I delete, some are shared freely with friends, and others are sold.  Their greatest value, though, is that they remain mine and nobody can reproduce them without my permission. They are my “intellectual property.”

Matt Halverson is a highly respected professional photographer. In 2005 he created a beautiful composite photograph of Mount Rushmore and published it with “Matt Halverson Photography” in the photo’s lower right-hand corner.  This ensured, at the very least, that any reproduction would contain proper attribution.

The past Independence Day, South Dakota governor Kristi Noem ridiculed President Biden for not having fireworks at Mount Rushmore and tweeted side-by-side photos. One of these showed Mount Rushmore fireworks under former president Trump which she captioned “Trump’s America”; the other, sparklers under President Biden.

Putting her snark aside, the problem is that she lied about the Trump fireworks photo. It was in fact Halverson’s photo, taken during the Obama administration. The lie was compounded by cropping Halverson’s photo to remove attribution.

Once the lie and misrepresentation came to light, photographers were livid and rightly so. If someone used my photograph for their own political purposes (and even lied about when the shot was taken), my reaction could well be to sue. MY problem is that the legal cost of enforcing my intellectual property rights has traditionally been exorbitant and time-consuming.

Here comes the ironic part. In December of 2020, then-president Trump signed the Copyright Alternative in Small-Claims Enforcement Act of 2020 (CASE Act), The CASE Act created the equivalent of a Small Claims Court for copyright infringement. As is the case in all small claims matters, the money damages you can recover are limited. Here it is $30,000.

So, should he decide to do so, Halverson will be able to sue Noem for copyright infringement under streamlined Trump administration rules concerning a photograph that purportedly showed “Trump’s America.”

Boom.

 

Tuesday, July 6, 2021

Cosby’s Release from Prison Had Nothing To Do With Guilt or Innocence

When the Pennsylvania Supreme Court reversed Bill Cosby’s conviction for sexual assault and ordered him released from prison, the reaction was immediate, vociferous, and often wrong.

Over the last few years, allegations about Cosby have arisen with such frequency that his public persona no longer bears any resemblance to Cliff Huxtable. His trial and subsequent conviction for sexual assault effectively put an end to a reputation tied smilingly to JELLO commercials.

As a general rule, a state’s supreme court will overturn a conviction based on some flaw that occurred during trial. These flaws cover a large variety of problems, ranging from bad legal representation to improperly admitted evidence to jury misconduct. The Cosby conviction had none of these. So why was the conviction reversed and what does it way about his guilt or innocence?

To understand what happened here, we need to talk about something called “prosecutorial discretion.” Prosecutors are given a tremendous amount of leeway in deciding whether or not to prosecute someone and to decide what charges, if any, should be brought. 

When a prosecutor declines to bring charges, many factors come into play. There may not be enough clear evidence of the crime. The witnesses may not be reliable. The alleged criminal may be cooperating in another investigation. Considering the prosecutor’s workload, the case may simply not be as important as others that are pending. The list goes on and on. 

The decision about whether to bring charges may also change over time. Cold cases may be resurrected with newly discovered evidence or charges may be dismissed when it becomes clear that the defendant was not really guilty. 

The Cosby case put a spotlight on prosecutorial discretion in the context of one’s right not incriminate yourself. 

At the time that prosecutors were considering bringing criminal charges, Cosby was also facing lawsuits brought by some of his sexual assault victims. These were “civil” lawsuits looking for money damages.  The plaintiffs in these cases had a problem. The only person, other than the victim, who could describe the circumstances of the alleged assaults was the defendant, Cosby. Cosby was refusing to testify in these cases, claiming that whatever he said in the civil cases could also be used against him in a criminal case. On other words, his right against self-incrimination in one arena (the criminal court) meant that he could refuse to testify in the civil cases.

Here is where prosecutorial discretion came in. The prosecutor told Cosby that he would not be charged in a criminal case. Thus, with the threat of self-incrimination removed, he had no option but to testify in the civil cases. Although Cosby ended up paying significant money in the civil cases, at least he was not charged as a criminal. 

Years passed and a new prosecutor came onto the scene. Using the prosecutorial discretion discussed above, the prosecutor determined that there was now enough evidence to bring Cosby to trial—that evidence being his testimony in the civil cases. Cosby was convicted and sentenced to jail. 

Cosby appealed the conviction (while serving time). He said that even though prosecutors have wide discretion, they may not later change their minds after I have incriminated myself. Cosby had relied on the good faith of the prosecutors and suffered for it. The state’s attorney countered that if a concern about self-incrimination was really that important, you should have gotten the agreement in writing at the time. 

The Pennsylvania Supreme Court reversed the conviction in a 79-page opinion.  It was not an easy decision to make. 

We do not dispute that this remedy is both severe and rare. But it is warranted here, indeed compelled. … Society’s interest in prosecution does not displace the remedy due to constitutionally aggrieved persons. 

What makes this case so unique is that there is nothing in the opinion that talks about Cosby’s guilt or innocence. There was no claim that the jury erred in finding Cosby guilty of sexual assault. Rather, the Court emphasized that prosecutors, even with all of their discretion, may not take away one’s Constitutional rights by later deciding to bring charges.

This case illustrates why justice is never an easy matter. Cosby’s new-found freedom does not come with innocence. And we should take solace in that.

Friday, July 2, 2021

It Helps if You Actually Read the Indictment

There is a lot to unpack from the indictments Thursday of Allen Weisselberg and the Trump Organization. As I always say, remember that an indictment is not proof of guilt. That is why there are pre-trial motions and ultimately a trial on the merits.

At this stage of the proceedings, you can expect a lot of posturing. Remember that none of what the lawyers and political pundits say is relevant to the proceedings. In particular, you should disregard “whataboutism.” If I’m a line of 20 speeding cars and I’m the one who gets pulled over, it is no defense to go in front of a judge and say “others were speeding too.” It is also no defense to say that I’m a Democrat and the arresting officer was a Republican. The correct, and only, defense is that I was not speeding.

Much of the initial defense and media focus is on the treatment of “fringe benefits.” The argument is that this a gray area in the tax code and a great many businesses reward their most valued employees in the same way. Therefore, the defendants here are being singled out for doing what a lot of others are also doing.

If these fringe benefits are, in fact a gray area, would you, as a large organization want to take the chance (over a period of more than 10 years) that you and your employees could be criminally liable?

Assuming that you wanted to avoid potential liability, there is a mechanism in place to protect yourself. It is to request a private letter ruling (PLR) from the IRS. These letters are issued all the time and offer specific protection to the individual or company requesting them. Most non-lawyers have not even heard of PLRs, mostly because they get little media attention and appear to be tediously dull and boring. Naturally, I enjoy reading them.

Weisselberg and the Trump Organization did not go the PLR route to protect themselves.

Back to the title of this article, it helps if you actually read the indictment. The most clearly illegal conduct, if proven, has nothing to do with fringe benefits. I’ll focus on just one of those allegations here.

Weisselberg was obviously a long-term employee of the Trump Organization. So, whether you include or exclude some of the fringe benefits, we know that he received a wage statement (W-2) that reflected his earnings during the year.  However, he also received checks as a NON-employee from Mar-a-Lago and other Trump organizations. In other words, he, as an employee of the Trump Organization, simultaneously claimed he was an independent contractor as far as Mar-a-Lago was concerned. As a non-employee, the money he received from Mar-a-Lago was reported on tax form 1099.

Why was it beneficial for Weisselberg to simultaneously be an employee and an independent contractor? The answer has to do with a special tax benefit available to independent contractors that is not available to employees. As an independent contractor, he was able to contribute to a KEOUGH plan, which is a tax-deferred pension plan.

Thus, in one pocket Weisselberg was collecting benefits associated with employment, and in another pocket he was collecting benefits for being an independent contractor. You can’t do both for the same organization.

As next steps, you can expect a number of preliminary motions from the defense. It would also not be surprising the see additional charges against Weisselberg (and perhaps other defendants) coming from the grand jury.

Regardless, this process will unfold over a series of months, not weeks. 

Wednesday, June 30, 2021

Fifth Circuit upholds Sanctions Against Democratic Voting Rights Activist Marc Elias.

 Marc Elias is probably the preeminent Democratic lawyer in the field of protecting voting rights. His reputation is well deserved, particularly in the context of post-election litigation. These post-elections cases were decided almost universally in his favor. Since that time, he has changed his focus to challenge a variety of state laws that, he claims, are designed to disenfranchise voters. In one of these cases, he sued the Texas Secretary of State.

Texas courts have a long and well-deserved reputation for being staunchly Republican. The Fifth Circuit Court of Appeals, which includes Texas, also leans strongly Republican. The reality, then, is that any Democratic challenge in that state begins as an uphill battle.

Elias fared poorly in the early stage of his lawsuit. It makes little sense for me to get into the weeds about the process and arguments here. Unless you understand how a court’s specific local rules can affect a proceeding, any attempt at explanation would be fruitless.

Suffice it to say that Elias not only did not strictly comply with the local court rules, but his attempts to “correct” the issues violated others. The Court determined that Elias’ filings and legal arguments lacked the candor required by the court and he was subsequently sanctioned for his actions. (Sanctions here meant that Elias had to pay the other side’s attorney’s fees and court costs.)

Elias appealed the sanctions to the Fifth Circuit Court of Appeals which today upheld those sanctions against him personally but reversed them against his junior associates (who apparently did not have enough experience to know better).

It is not relevant whether or not I believe the sanctions were warranted. What IS important is something that all lawyers know. Not every court you appear before is a friendly one; some might be outright antagonistic to you.

When faced with an unfriendly court, you must be sure to scrupulously follow the court’s local rules. Failure to do that will ensure that any arguments you make, regardless of their potential legal validity, will fall on deaf ears. Technical violations are violations nonetheless and give the court an easy way to dispose of cases that could otherwise be problematic.

I write a lot about lousy lawyering and many of my articles have been about deficiencies by Guiliani, Powell and Wood, who are unabashedly Republican. Frankly, they are easy targets. I thought it particularly important to discuss the failing of a Democratic attorney, if for no other reason than to show that my analysis is intended to be legally rather than partisan based.

Tuesday, June 29, 2021

The My Pillow Guy Has a Bridge to Sell You

About the time you think that Mike Lindell’s comments cannot be further removed from reality, you get his most recent screed. The latest is that Donald Trump will be “reinstated” as President by the fall (previously April, then August, but who’s keeping track). He says this will happen because of a 9-0 vote from the U.S. Supreme Court that will set aside the 2020 election.

It takes a delusional approach to the judicial system to come to this conclusion. There is simply no mechanism for the Supreme Court to even hear this case, much less to decide it 9-0. Zero. Zip. Nada. As a physician once told me: “there is no miracle without a mechanism.” And here, there is no mechanism to generate the miracle he promises.

So what we have here is simply a lie. One of the first things we are taught as a child is that sometimes we lie unintentionally. These lies, once discovered, are corrected, both a matter of personal integrity and to avoid harm to others. The principle is beautifully encapsulated in the tenth step of Alcoholics Anonymous. “Continued to take personal inventory and when we were wrong promptly admitted it.”

Whether due to ignorance or pathology, some people cannot admit to a lie. Instead, they double down or make even more egregious claims. When a personal who hawks pillows for a living does this, rational people will simply tune him out.

My main thrust here, though, is not to excoriate Lindell as much as he deserves it. Rather, it is to contrast his actions with that of lawyers who have a much higher duty of care to speak and act honestly. Many in our profession have a bad reputation, and deservedly so. We take an oath to act with utmost integrity and candor. When we violate that oath, in some cases by doubling down on lies, the public rightfully expects that lawyers should police ourselves and punish those who violate the public trust.

Legal sanctions that are being currently directed at lawyers like Rudy Guiliani, Sidney Powell and Lin Wood are not only legitimate but required in order to protect an unsuspecting and often gullible public. Most lawyers facing discipline will be contrite and apologetic. We have no use for the others.

Friday, June 25, 2021

Schrodinger’s Conspiracy – the Dog Ate My Evidence

Back in February, I wrote about a lawsuit in Texas where the lawyer claimed massive conspiracy and fraud to prevent Trump from a second term of office. The defendants included the current President, Vice President, all members of Congress and others.

The fraud was so pervasive, he alleged, that the only viable remedy was to essentially abolish two of the three branches of government and replace them with a temporary “steward”. The situation was analogous, he said, to the Lord of the Rings trilogy where, and I’m quoting from the complaint here:

[T]he rightful King of Gondor had abandoned the throne. Since only the rightful king could sit on the throne of Gondor, a steward was appointed to manage Gondor until the return of the King, known as “Aragorn,” occurred at the end of the story. This analogy is applicable since there is now in Washington, D.C., a group of individuals calling themselves the President, Vice President, and Congress who have no rightful claim to govern the American People.

In legal circles, this lawsuit has been lovingly referred to a “Gondor I”. That complaint was subsequently dismissed and refiled as Gondor II. I noted at the time that this suit had zero likelihood of success.

Six months have passed and now the lawyer has approached the court stating he has a problem. From his pleading:

Essentially, Plaintiffs are requesting time to reevaluate and the chance to get a fresh start with an amended complaint that is workable under the circumstances.

Unfortunately, Plaintiffs have suffered severe setbacks in this case over the last few weeks as the result of a bad actor and saboteur in their own camp. Plaintiffs and counsel were assured many times over that financial resources and a cadre of co-counsel and legal staff were on the verge of being provided to give Plaintiffs the ability to litigate their claims against the vast array of Defendants in this case. Unfortunately, these assurances turned out to be empty promises presumably designed to lead Plaintiffs on and discredit their legitimate claims in this case.

To make matters worse, the same individual responsible for leading Plaintiffs on was also responsible for managing, reviewing, and summarizing much of the evidence being presented to Plaintiffs’ counsel from various witnesses to support many of the factual allegations in Plaintiffs’ pleadings. This individual has now parted ways with Plaintiffs’ legal team after being confronted on various suspected deceptions and is now refusing to turn over this evidence that was in his possession and that supports many of Plaintiffs’ claims in their pleadings. 

Yep. The dog ate my evidence. The Court is unlikely to have much sympathy for a lawyer who filed not one, but two, cases without having the evidence in his possession and is seemingly unable to obtain it elsewhere.

The lawyer has asked for a 90 pause in the proceedings to figure out what to do next. He has another problem not revealed in his pleading. He had sued more than 500 defendants who were supposed to receive legal service of process of the complaint. All of these attempts to comply with the service of process provisions were … defective.

So what we have here is what one commentator has called “Schrodinger's Conspiracy. Stop the steal is a widespread conspiracy with hundreds of people aligned to sabotage Trump. But it's simultaneously so surreptitious that evidence doesn't exist or was stolen.

I said earlier that his lawsuit had zero chance of success. If anything, his odds have further diminished.

Thursday, June 24, 2021

Guiliani learns that ignoring the Code of Professional Responsibility has consequences

Today, Rudy Guiliani’s license to practice law was suspended for numerous violations of the Code of Professional Responsibility. It is highly unusual for a license to be suspended before formal disbarment proceedings are completed but, according to the court, Guiliani’s total disregard for his responsibilities as a lawyer warranted the suspension.

They were being kind.

The ruling was replete with misstatements and outright lies made by Guiliani in a variety of public forums.

Before getting into some of those, we need to talk about gross stupidity. If you or I knew that our license was in possible jeopardy, we would make the strongest possible case in our defense. Guiliani had the opportunity to do just that in his brief in opposition to the suspension—and didn’t. A footnote to the Court’s decision lays out some of the deficiencies.

In opposition to this motion, respondent refers to affidavits he has not provided. He also relies on a “confidential informant”. We do not understand, nor does respondent explain why, as a private attorney seemingly unconnected to law enforcement, he would have access to a “confidential informant” that we cannot also have access to. At yet another point respondent claims he relies on a Trump attorney who chooses not to be identified. Respondent also refers to hundreds of witnesses, experts, and investigative reports, none of which have been provided or identified and an Excel spreadsheet, also not provided, purportedly listing the names of thousands of deceased voters who allegedly cast ballots in Michigan.

If you are trying to defend your license, this is not a good start.

The court made a special point of noting that lawyers have a heightened responsibility to tell the truth and not to purposely mislead the public. This is particularly true when you are regularly appearing on radio, television and at public events.

Guiliani had a demonstrated history of using inaccurate numbers and “facts” to support his claims of fraud in the presidential election. These ranged from wrong absentee voting numbers in Pennsylvania to wrong “dead voter” numbers in Georgia. When he was proven wrong in every case, Guiliani defended himself by saying that he received bad information from, among others, his legal staff, bloggers, websites and “experts.” Guiliani provided no excuse for perpetuating those lies even after the truth was presented to him.

Lying to the public is one thing. Lying to the court is another entirely. Guiliani did that too. You may remember his disastrous oral argument as the attorney for Trump, et al in the United States District Court for the Middle District of Pennsylvania. There, Guiliani argued that this was a fraud case, even though there were no fraud allegations in the complaint. The court went into some detail:

[Guiliani’s] mischaracterization of the case was not simply a passing mistake or inadvertent reference. Fraud was the crown of his personal argument before the court that day. In his opening remarks, respondent claimed that the allegations in the complaint concerned “widespread, nationwide voter fraud of which this is a part…." He persisted in making wide ranging conclusory claims of fraud in Pennsylvania elections and other jurisdictions allegedly occurring over a period of many years. Respondent argued that the plaintiff’s fraud arguments pertained to the canvassing claim, notwithstanding that there was neither a fraud nor a canvassing claim before the court. Respondent’s fraud argument spanned pages 12 to 31 of the transcript. 

These violations of the Code of Professional Responsibility are easily enough to sustain a disbarment. However, since this is what is called an interim proceeding, the Court needed evidence that Guiliani should be immediately suspended because his conduct threatens the public interest.

Often, these interim proceedings go no further because the respondent demonstrates a change of conduct. In other words, they’ve learned their lesson. As the court record indicates, Guiliani continued to promulgate lies even after the disciplinary proceedings began.

The court made its decision clear.

[W]e conclude that there is uncontroverted evidence that respondent communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020. These false statements were made to improperly bolster respondent’s narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client. We conclude that respondent’s conduct immediately threatens the public interest and warrants interim suspension from the practice of law, pending further proceedings before the Attorney Grievance Committee.

Now consider the response of Guiliani’s lawyers to the 33-page decision.

"We are disappointed with the Appellate Division, First Department’s decision suspending Mayor Giuliani prior to being afforded a hearing on the issues that are alleged. This is unprecedented as we believe that our client does not pose a present danger to the public interest. We believe that once the issues are fully explored at a hearing Mr. Giuliani will be reinstated as a valued member of the legal profession that he has served so well in his many capacities for so many years." 

Well, they had to say SOMETHING.

Guiliani’s license will remain suspended until the full disciplinary process is completed.

Wednesday, May 5, 2021

The Lion, the Witch Hunt and the Wardrobe

Following the issuance of the Mueller report on Russian interference in the 2016 election, Attorney General William Barr reported to Congress that there was insufficient evidence to charge then-president Trump with obstruction of justice. Trump then declared himself exonerated and that the entire process was a “witch hunt.”

The difficulty from the point of view of Congress and the public at large is that we were asked to simply take their word for it. To the minds of some, the conclusion of exoneration simply did not meet the smell test. Robert Mueller himself stated:

The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office’s work and conclusions.

What Barr had done with his report to Congress was brilliant. There were actually two distinct questions to address: whether the president had acted in a way that obstructed justice and, if so, whether the president, by virtue of being president, could be charged. Rather than answering both questions, Barr combined the two to arrive at his conclusion that the evidence was insufficient to charge the president. In other words, if the president, as president, could not be charged, it made no difference what he actually did. Unfortunately, based on Barr’s report and the highly redacted Mueller report, there was no way of determining whether obstruction of justice had actually occurred.

Enter the Freedom of Information Act (FOIA). By federal statute, government agencies may be compelled to release records upon request, subject to documents that fall within nine specific exemptions. In many cases, this requested information helps us understand the conclusions that agencies make.

Citizens for Responsibility and Ethics in Washington (CREW), who describe themselves as “a nonprofit 501(c)(3) and nonpartisan U.S. government ethics and accountability watchdog organization” asked the Justice Department for release of the underlying materials that supported Barr’s conclusions. Much of the information was released, enough to establish a timeline of communications that predated and postdated Barr’s report to Congress.

One critical document that was withheld was the analysis prepared by the Office of Legal Counsel that Barr said supported his conclusions. CREW sued the Justice Department in the Federal District Court to obtain that document.

The Justice Department defended the withholding of this document under one of the exceptions to FOIA, specifically that it was “pre-dispositional” -- “the protections traditionally afforded certain documents pursuant to evidentiary privileges in the civil discovery context, including . . . the executive deliberative process privilege.” Translating that into English, you do not need to release information that was put together to help you reach your decision., especially if that information falls within the attorney-client privilege.

Judge Amy Berman Jackson, under her authority as judge, reviewed all of the documents in private (called an in camera review). This review allowed her develop a timeline of events. What she found was perturbing to her. Even though the Justice Department (and through it Attorney General Barr) said that the Office of Legal Counsel memorandum formed the basis of Barr’s conclusion, it was, in fact, not delivered to the Justice Department until AFTER Barr’s report to Congress. In other words, Barr lied.

After extensive legal analysis, Judge Jackson determined that the document was not part of the decision-making process and did not fall within the exception to the production rules. The Department of Justice was ordered to release the document (subject to further objections and proceedings).

The court’s decision is, of course, more complex than the summary here and I have intentionally omitted portions that do not relate to his specific issue.

Reading between the lines of the opinion, one thing becomes clear. Even though Barr’s report to Congress combined the issues of obstruction of justice and whether a president could be charged, the memorandum apparently unpacks the two. If that is the case, we may finally find out how much evidence there was of obstruction of justice.

One side note: some right-leaning pundits have suggested that CREW may not be as non-partisan as they claim. This is a red herring that obfuscates the true issue. Regardless of the motives underlying the request for information under FOIA, we as the public have a right to information. What we do with it is another matter.

Saturday, April 17, 2021

IRS Leaves No Roger Stone Unturned—and Why His Friends Won’t Bail Him Out.

Roger Stone has a history of underpaying taxes owed to the IRS. That alone does not make him unique. Fortunately for him and many others, the Internal Revenue Code provides a detailed mechanism for making periodic payments. These are called installment agreements which include interest on unpaid amounts and may also include penalties.

Tax debts of under $10,000 qualify almost automatically for installment agreements. Liabilities above that amount usually require an agreement with the IRS that takes into account your income and other assets. When listing your assets for purposes of this kind of agreement, your statements about the property you own are done under oath. Lying about your assets or their value is sufficient to void the agreement and to make the entire amount due immediately. Where appropriate, the IRS may file a lien on your property until the tax liability is resolved.

Generally, all goes well so long as the taxpayers make the monthly payments. Miss one payment, however, and the entire agreement can be voided. That is what happened in the Roger Stone case. Complicating matters for Stone is that he was apparently not truthful about all of his assets. Through the use of what the IRS referred to as a shell company, he was able to hide some of his income and use that money bucket to support what was called a “lavish lifestyle.”

The IRS filed suit against Stone yesterday to recoup the $2 million he owes. As always, the filing of a complaint does not necessarily mean the IRS will win. But Stone has a number of serious issues here. First, the default on the installment agreement, meaning that more than $2 million is immediately due the IRS. Second, the failure to pay income tax on the amount sheltered in the sham company. Third, the fraud he committed by lying about his assets at the time he entered into the installment agreements. Fourth, the fact that this is a civil action by the IRS, meaning that the pardon he was granted by Trump does not relieve him of liability.

Stone immediately responded in the calm and measured manner with which we are all familiar. He called it: “another steaming pile of horseshit from corrupt prosecutors apoplectic about my pardon.” He may be better served by outlining a more defensible position.

Should the IRS be successful, Stone could lose everything, including real estate that he had improperly funneled into his wife’s name. Further, if the IRS fraud allegations are proven, bankruptcy will not protect him.

One possible way out is for one of Stone’s rich friends to pay the amount he owes. Even if these friends are kind and generous souls, it is extremely unlikely that they will bail him out. The reason is the rules about making a gift. Gift recipients almost never owe taxes on the amounts they receive. So far so good.

However, the maker of the gift is limited to a tax-free gift of $15,000 to any individual in any one year (subject to exceptions that include the payment of tuition). Gifts above that amount require the giver to file my favorite tax form, Form 709, the gift tax return. No actual taxes are due at the time the form is filed, but the amount of the gift reduces amount that is exempt from death taxes, currently a little more than $11.5 million per individual. This means that if I made a $2 million gift to Roger Stone to pay his taxes, I would lose a $2 million exemption on my personal estate taxes. Not. Gonna. Happen.

Perhaps Stone’s reference to horseshit is well timed. He is fairly deep in it right now.

A side note since we’re talking about taxes. Occasionally you will see a television ad about “offer and compromise,” where the IRS will settle your debt for a small percentage of what you owe. Although the ads imply that most people qualify, only a tiny percentage of cases do.

Friday, April 9, 2021

We Have Moved from “Release the Kraken” to Buzz Lightyear. Really.

There is a lot to unpack this week in the wonderful world of “release the Kraken” lawyer, Sidney Powell. The week ended with her quoting from Buzz Lightyear in a legal brief. Bear with me as we cut through the legalese while unravelling the recent developments in her cases.

Two weeks ago, Powell moved to dismiss the Dominion Voting Systems’ defamation case against her, arguing among other things that no reasonable person would accept her comments about Dominion at face value. (For more on that, see my prior article: Sidney Powell’s Defamation Defense: No Reasonable Person Would Believe My Election Rigging Claims on FOX.)

The "no reasonable person" statement did not go unnoticed by the Michigan lawyers who are attempting to get Powell sanctioned for filing frivolous post-election lawsuits there. To understand why their ears perked up, you need to know a little about writing legal briefs.

When the court allows you to file a legal brief in support of your case, two things are of utmost importance: you need to file the brief on time, and you need to include everything relevant to the case in that document.  In other words, you have one shot to do the exhaustive research necessary to make your legal case. You do not have the luxury of later saying “Oops, I missed something.” Knowing that this is a one-shot deal is what causes sleepless nights.

There is one exception to the “one shot” rule, and that is when brand new information is revealed after the brief has been filed. If you have new information, you may request that the court accept a “supplemental brief.” This is what the lawyers in the Michigan sanctions case did earlier this week.

In their supplemental brief, the Michigan lawyers said that Powell’s statements in the Dominion case effectively proved that she should be sanctioned in the Michigan case. Her “statement of facts” were, from her own admission, not facts at all. You are not entitled to file a case citing “facts” when you are actually saying “let’s see how this plays out.” In all likelihood, the judge will allow this supplemental brief to be filed. It does not portend well for Ms. Powell.

You might think that the movement in these two cases would be enough drama to last a while in the Powell world. You would be wrong. Michigan is not the only state where sanctions against Powell are being sought. She is also defending against sanctions in Wisconsin.

The argument for sanctions in Wisconsin is similar—that Powell pursued frivolous litigation. Powell’s motion to dismiss in this case is a bit different, however. She is claiming that the original Wisconsin defendants cannot claim sanctions because they waited too long to ask for them. (Technically, the court no longer has jurisdiction to hear a claim for sanctions because the case was dismissed as moot.)

What is most interesting in the Powell’s brief in support of her motion to dismiss is not the case law she cites, as questionable as that is. Rather, what has caught most commentators’ attention is her characteristic, yet extraordinary, use of hyperbole.

Most lawyers would suggest that the Wisconsin defendants simply waited too long to bring their request for sanctions. Not Powell. She argued that allowing the sanctions motion to proceed “could extend the time for filing a sanctions motion ‘to infinity and beyond’ to harass a plaintiff in what amounts to nothing more than political grandstanding.”

That’s right. Powell quoted Buzz Lightyear and even footnoted it (Buzz Lightyear, Toy Story (Pixar 1995).)

The consensus among legal analysts is that there might be more persuasive people to quote than Mr. Lightyear. If Buzz does end up being legally credible, he will probably be quoted in the reply brief as well, something along the lines of “There seems to be no sign of intelligent life anywhere.”


Monday, April 5, 2021

Trump Twitter Case Dismissed as Moot—But That's Not the Interesting Part

Today, the U.S. Supreme Court dismissed the case brought against Donald Trump for blocking people on Twitter with whom he disagreed. The decision was not unexpected. After all, (1) he is no longer president and (2) he had already been permanently barred from Twitter.

Although there was no written opinion accompanying the dismissal, Justice Thomas wrote a 12-page concurring opinion. Thomas agreed that the case should be dismissed as moot but used the opportunity to talk about what may become an issue in the future—to what extent a private company such a Twitter should be allowed to operate outside of First Amendment safeguards.

The main subject of the opinion is not what caught my eye. Rather, it was Thomas’s comment about how Trump had used his Twitter account during his presidency.

Mr. Trump often used the account to speak in his official capacity. And, as a governmental official, he chose to make the comment threads on his account publicly accessible, allowing any Twitter user—other than those whom he blocked—to respond to his posts. [Emphasis added]

This apparently throw-away comment by Justice Thomas is more important than it appears at first blush. We have already seen Trump’s Twitter comments referenced in other legal proceedings. If, as Justice Thomas suggests, these Twitter remarks were often used in an official capacity, it undermines an argument often made by Trump’s lawyers that his Twitter posts should not be taken at face value.

It has been noted in other contexts that Trump’s voluminous Twitter posts could later be problematic for him. When a conservative justice such as Thomas says that Twitter posts have credence as official statements, it gives even deeper meaning to “problematic.”

 

Wednesday, March 31, 2021

Trump’s Tweets Sink a Non-Disclosure Agreement

Businesses have a legitimate interest in protecting confidential and sensitive information as well as their public reputation. Requiring employees to sign non-disclosure and non-disparagement agreements (NDAs) are one method of ensuring that. These written agreements may also be used with third-party contractors and volunteers (especially to political campaigns).

NDAs may also have the effect of limiting an individual’s free expression rights under the First Amendment. Therefore, the agreements require a delicate balancing of the inherent rights of the two parties.

Jessica Denson was hired by the Trump campaign in 2016 as a Hispanic outreach director. She accused the campaign of sex discrimination. Under the terms of the NDA, an arbitrator was appointed and issued a $50,000 award against her for violating the terms of the agreement. The arbitrator based his ruling only on the terms of the NDA. It was not his role to decide whether the NDA was actually enforceable. That award was later overturned.

Denson then filed suit against Donald J. Trump For President, Inc. in Federal court, claiming that the NDA was so broad in its scope that it was not enforceable and was an unwarranted intrusion on her Constitutional right of free expression.

The Federal District Court judge examined the NDA to see if it was “reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee.” Yesterday's ruling said it was clearly not.

For example, the agreement placed NO limits on time and area. It also was incredibly broad as to the people and entities who were “protected” by the agreements.

The provision applies not only to President Trump and his family members – including unnamed spouses, children, and grandchildren – but also to any legal entity ‘that, in whole or in part, was created by or for the benefit of . . . or is controlled or owned by’ President Trump or any of his family members. President Trump himself is affiliated with more than 500 companies, and his family members may be affiliated with yet more.

Showing that the NDA was overly broad was only half of Denson’s battle. She next needed to show that her free expression would likely be infringed by it. In other words, would there be an attempt to enforce it?

In many cases, this would be difficult to prove. Here, Trump did it for her. All the court needed to do was to quote his tweets. Here is one of the many that the court quoted.

[On] August 31, 2019, President Trump tweeted, ‘...Yes, I am currently suing various people for violating their confidentiality agreements. Disgusting and foul mouthed Omarosa is one. I gave her every break, despite the fact that she was despised by everyone, and she went for some cheap money from a book. Numerous others also!”

The court concluded: 

[T]he Campaign has engaged in a pattern of enforcing or threatening to enforce the Employment Agreement’s non-disclosure and non-disparagement provisions against former Campaign employees, including Denson, Newman, Sims, and Johnson. And the primary intended beneficiary of the Employment Agreement – President Trump – has tweeted about his efforts to enforce non-disclosure agreements. Given this record, Denson has demonstrated a “well-founded fear” that the Employment Agreement will be enforced against her.

Trump’s lawyers tried one last gambit. Maybe the court could salvage the good parts of the NDA, something called “blue lining.” The judge said no, that the agreement was not salvageable without a complete rewrite.

To summarize, the NDA attempted to do much more than just protect legitimate business interests and Denson was harmed by it. 

Denson’s win only applies to her own NDA. However, it is likely that others who were required to sign similar agreements may also try to get them declared invalid.

Considering that dozens, if not hundreds, of similar NDAs exist out there, the exposure to the Trump organizations is extensive. Therefore, expect an appeal of this ruling.

Tuesday, March 30, 2021

Trump’s Greatest Vulnerability—the Deposition

Vulnerability is not the same as guilt. I need to emphasize that up front.

Today, New York’s highest state court ruled that Summer Zervos may proceed with her lawsuit against Donald Trump. Zervos claims that Trump sexually assaulted her a number of years ago. He responded by calling her a liar. She filed suit against him for defamation. The litigation was placed on hold, due to Trump’s claim of presidential immunity. In essence, the court today said that since Trump is no longer president, the immunity arguments have disappeared.

Now that the case can continue, Zervos will be entitled to take Trump’s deposition. Why is that so immportant?

Depositions are a formal pre-trial process where an individual answers questions under oath. In a criminal case, a defendant has little to fear by being deposed. The defendant has the right to refuse to answer questions (5th Amendment right to not incriminate yourself). The fact that the defendant has refused to answer questions may not be introduced into evidence at the later trial.

In civil cases (where money damages are the usual goal), you have no 5th amendment rights. There are only three ways to answer a question, and all of these answers may create later problems.

First, you can answer the question. This answer had better be truthful. If is later shown to be a lie, you can be later charged separately for lying under oath (perjury). Even if you are not charged with perjury, the jury can use the lie to help them decide your credibility.

Second, you can refuse to answer the question. That refusal can be entered into evidence at trial, affecting your credibility to the jury. Separately, the other side may go to the judge after the deposition is over and have the judge require you to answer the question.

Third, you can say you do not know the answer or don’t remember. Again, your lack of knowledge or memory may be considered by the jury to determine your credibility.

This is not where deposition problems end. One of the issues that plaintiffs have is that some of the information they need to prove their case may be only known to or available to the defendant.

Answers to deposition questions often reveal the names of other people with knowledge of the circumstances. They may become witnesses later. Perhaps more importantly, depositions may reveal the existence of documents that may be relevant to the case. The plaintiff may follow the deposition by requesting that these documents be produced.

Defendants such as Trump are extremely guarded about written information that they think will make them vulnerable or the names of people with individual knowledge of what happened. The deposition process has the potential to open the door to that evidence.

If there were only one case pending or threatened against Trump, the opened door might not be a big deal. However, once the evidence comes to light, other cases may find a way to make use of it as well. And that is where the true vulnerability lies.