August 11th, 2017

About Eric Bolling’s $50 Million Defamation Suit – And the Ad Damnum Clause Loophole

Eric Bolling

News junkies know that yet another Fox News anchor has been shit-canned over allegations of sexual harassment, this time it being anchor Eric Bolling. Fox has “suspended” him for allegedly sending lewd texts and photos to colleagues.

But I’m not here to deal in the actual details, but rather, the $50 million suit he has filed against his accusers in New York state court, and the procedural quirk that allows him to make that claim despite New York’s apparent prohibition on doing it.

You see, Bolling’s attorney didn’t file a Summons with a Complaint, but rather, a Summons with Notice. To us New York lawyers, this is a very significant procedural issue. The brief document is here: EricBollingSummonsWithNotice

A Complaint has details in a defamation case, setting forth actual words that were written or uttered that are claimed to be false and injurious. This Summons with Notice crap, does not. It’s substance merely states:

The nature of this action is for damages and injunctive relief based on defamation arising from the defendant’s efforts to injure the plaintiff’s reputation through the intentional and/or highly reckless publication of actionable false and misleading statements about the plaintiff’s conduct and character. As a result of the defendant’s actions, the plaintiff has been substantially harmed.

While it is legal to start a suit this way, it is most certainly not the way lawyers practice.  He now has just 20 days to file the Complaint or risk dismissal.

But time wasn’t a barrier for any of this — he could have waited to draft a Complaint if it had merit — so why start suit in such a crappy fashion?

My theory:

There will be no real lawsuit to follow. This was rushed out the door to intimidate others from stepping forward and grab press. Put a big whopper of a number in the filing — in this case $50M — and people who may claim to have been harassed may simply say I don’t need this crap.

There isn’t any other reason I can think of. If it is brought to the attention of a judge, s/he is likely to simply strike it. But the damage has already been done.

But wait!  What about that mammoth $50M number? Regular readers know that I have railed against those who put ad damnum clauses into their pleadings. New York (thankfully) outlawed this practice for personal injury cases back in 2003 (and defamation constitutes personal injury). It used to apply only to medical malpractice cases, but in 2003 was changed to all personal injury cases. CPLR 3017(c) states:

In an action to recover damages for personal injuries or wrongful death, the complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.

New York’s Grand Poobah of Procedure, the late Prof. David Siegel, thought a monetary sanction should  be levied. In his authoritative treatise on New York practice he wrote:

“Some cases have held that a violation of the CPLR 3017(c) pleading restriction can be cured with a mere amendment striking the reference to the demand, but the imposition of a money sanction in an appropriate sum might better implement this aspect of CPLR 3017.”

But Bolling’s lawyer may have discovered a loophole to grab that press.  Because CPLR 3017(c) doesn’t list Summons with Notice as one of the documents that prohibits the ad damnum clause. Here it is again with emphasis added:

In an action to recover damages for personal injuries or wrongful death, the complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.

And yet, the Summons with Notice (CPLR 305) requires a prayer for relief (“shall contain”) except in medical malpractice cases:

(b) Summons and notice.  If the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default.

So it appears that when CPLR 3017(c) was amended in 2003 to forbid the placing of a specific demand for relief in a Complaint, the Legislature forgot that CPLR 305 requires it in a Summons with Notice.

We lawyer types have a word for that discrepancy: Loophole. I don’t know if Bolling’s lawyers knew it existed when they drafted this document, but there it is anyway. But when I sat down to write about the odd way this suit started, I certainly didn’t realize it. While I came to critique the way this suit was started that’s what I found instead.

A loophole.

And one that the Legislature should fix in the next legislative session by amending both CPLR 305(b) to add all personal injury suits to the actions that prohibit the demands for relief, and adding Summons with Notice to the list of documents that prohibit it in 3017(c).

 

February 24th, 2017

Melania Trump’s Lawsuit and Tax Returns

The other day I ripped Melania Trump‘s lawyers for stupidly claiming — in a defamation lawsuit against those that called her an escort while she was a model — that she had lost her once-in-a-liftime opportunity to capitalize on being the most famous women in the world for the next few years.

Personally, I thought the lawyers had committed legal malpractice in having done so, as it exposed her to a (well-deserved) torrent of scorn and derision.

She has now amended the lawsuit to take out the offending material.

But you know what is left? She still claims economic loss, and that is the subject of today’s post. Because if you claim economic loss, then one thing you can bet your last dollar on is that the defendants will say, “prove it!”

And part of that proof will be her tax returns, so that competing expert economists can do an evaluation of what she was making before (and how she was doing it), and how (if at all) it was affected.

First, the nuts and bolts of the claim from the Amended Complaint:

33.  The defamatory statements in the Article have caused Plaintiff damages, including to her reputation and to her business interests and prospective economic opportunities, as well as causing significant humiliation in the community and emotional distress.

So she has not only claimed a per se injury for being called a prostitute, she alleges damage to her business interests and prospective economic opportunities.

Now tax returns, in New York, are jealously guarded by the courts.  A party seeking to compel their production must make a strong showing of overriding necessity.

Melania Trump’s case is in New York County, the First Department, but all four of New York’s appellate departments have a high bar to hurdle.

But at least some of her returns, it seems, will meet that burden. And how much of her interests are intermingled with her husband’s? Nobody knows, but any intermingling at all could subject his returns (or parts of them) to discovery.

In one of the most oft-cited cases on the subject in the First Department, the court reversed a trial court justice that had granted the disclosure of tax returns in a partnership dispute. In Gordon v. Grossman the court held that “It was an improvident exercise of discretion to compel disclosure of the defendant’s tax returns. Because of their confidential and private nature, disclosure of tax returns is disfavored.”

And in Matthews Indus. Piping Co., Inc. v. Mobil Oil Corp., the lower court denied the defendants request to peak into the plaintiff’s returns and the First Department affirmed that decision. The court wrote that “The disclosure of tax returns is disfavored due to their confidential and private nature. Consequently, a party seeking to compel their production must make a strong showing of overriding necessity.”

Similar language comes from the Second Department, where the rule is that “A party will not be required to produce income tax returns in a particular action unless the record presents a strong necessity for such disclosure in order for the party to prove its cause of action or defense.” In Active Fire Sprinkler v. American Home, that court held that there must be “some showing that the particular information in tax returns has some specific application to the case.

Now here’s the kicker: Few people will want to donate money for any kind of legal defense fund, if one is needed. Because who wants to get in bed with the kind of d-bag that would write crap like that without evidence? (I have no idea if there is insurance coverage for this.)

But remember Peter Thiel funding the Terry Bollea (Hulk Hogan) sex tape lawsuit against Gawker?

Might there be some people willing to pony up money to see this matter go through discovery just to get to those tax returns?

Even if the returns are subject to a confidentiality agreement, all bets are off in a trial that takes place in open court.

Conclusion: Melania Trump has exposed herself, and potentially her husband, to having her tax returns revealed in discovery.

The only way out of this for her to drop her claim of economic loss entirely.

 

 

 

February 22nd, 2017

Saving TechDirt

As regular readers know, I’ve twice been sued for defamation over my reporting and opinions from this blog.

When Joseph Rakofsky sued me (and so many others) for reporting on his dreadful attempt to defend a murder case in his first ever trial, TechDirt was there to shout in our defense.

When Dr. Michael Katz sued me for reporting that a Queens judge repeatedly called him a liar in open court, TechDirt was once again there to scream from the rooftops.

Now it’s my turn to holler for TechDirt, as it’s very survival may hinge upon raising funds needed to defend itself from a defamation claim.

TechDirt, which gets 1.5M visitors a month, does original reporting and commentary about changes in government policy, technology and legal issues.

The blog is well written, well-researched, with just the right amount of snark to make reading that’s both enjoyable and informed even if the subject isn’t one you’d normally read.

So they’ve have been sued. For writing about who “invented” email.

Shiva Ayyadurai claims he invented email. And he didn’t seem to appreciate TechDirt’s Mike Masnick of calling him a fraud for making that claim.

As per a Fortune article on the suit:

Ayyadurai claims that a series of posts on TechDirt amount to libel—in part because the posts call Ayyadurai a “fake email inventor” and a “fraudster” and calls his claims to have invented the technology “bogus.”

Apparently, Ayyadurai created a program that he entitled “EMAIL” around 1978 or 1979. But, according to TechDirt, he merely creating code for one program, and that:

 “does not, in any way, establish him as “the creator” of “the” electronic mail system — merely an electronic mail system — and hardly the first one. I could write some sort of email management software tomorrow and copyright that… and it would no more make me an “inventor” of email than Ayyadurai.

TechDirt’s site references NetHistory for the story of how email was actually created. There is no mention of Ayyadurai, as the foundation had apparently already been laid before Ayyadurai created his program.

Email is much older than ARPANet or the Internet. It was never invented; it evolved from very simple beginnings.

Indeed, the core element of email, the idea by Ray Tomlinson to use the @ symbol, was described merely as a “nice hack” when it was first used in 1972, years before Ayyadurai named his program:

We needed to be able to put a message in an envelope and address it. To do this, we needed a means to indicate to whom letters should go that the electronic posties understood – just like the postal system, we needed a way to indicate an address.

This is why Ray Tomlinson is credited with inventing email in 1972. Like many of the Internet inventors, Tomlinson worked for Bolt Beranek and Newman as an ARPANET contractor. He picked the @ symbol from the computer keyboard to denote sending messages from one computer to another. So then, for anyone using Internet standards, it was simply a matter of nominating name-of-the-user@name-of-the-computer. Internet pioneer Jon Postel, who we will hear more of later, was one of the first users of the new system, and is credited with describing it as a “nice hack”. It certainly was, and it has lasted to this day.

At one point in 2014, the Huffington Post wrote a multi-part story about Ayyadurai  being the inventor of email. While there’s no doubt that Ayyadurai did create an email system, and did obtain a copyright for his particular code, that didn’t make him the inventor of email as you know it. So says TechDirt in its analysis of the article, concluding that the Post stories ignored the fundamental difference between a copyright on the particular code and a patent on the concept:

Copyright was not, and has never been “the equivalent of a patent.” Copyright and patents are two very different things. Copyright protects specific expression. Patents protect inventions. That’s why copyright protected only the specific code that Ayyadurai wrote, rather than the concept of email.

Techdirt acknowledges that Ayyadurai came up with some cool improvements, such as using the shortened word email in place of electronic mail, and making the full address book part of the email system. But that simply  comes under the classification of standing on the shoulders of those that came before you:

Ayyadurai has built up his entire reputation around the (entirely false) claim that he “invented” email. His bio, his Twitter feed and his website all position himself as having invented email. He didn’t. It looks like he wrote an implementation of an email system in 1978, long after others were working on similar things. He may have added some nice features … appears to have potentially been ahead of others in making a full address book be a part of the email system. He may, in fact, be the first person who shortened “electronic mail” to “email” which is cool enough, and he’d have an interesting claim if that’s all he claimed. Unfortunately, he’s claiming much, much more than that. He’s set up an entire website in which he accuses lots of folks, including Techdirt, of unfairly “attacking” him. He apparently believes that some of the attacks on him are because he spoke out against corruption in India. Or because people think only rich white people can invent stuff. None of that is accurate. There’s a simple fact, and it’s that Ayyadurai did not invent email.

TechDirt deserves a vigorous defense. If it doesn’t get that defense, it may go out of business. That is not just bad for the company, it is bad for anyone that believes in free expression.

An important note: Ayyadurai’s counsel is Charles Harder, of California. He’s the one, with bankrolling by Peter Thiel, that brought down Gawker regarding the publication of the Terry Bollea (Hulk Hogan) sex tape. Before the First Amendment issues could be challenged in an appellate court, the $140M verdict sent the company spiraling into bankruptcy.

But don’t think for a second that Harder is infallible. Because he’s also behind the Melania Trump lawsuit where she sued because she was called an escort. And, as I posted recently, I think he screwed the pooch by revealing that Melania wanted to use her new-found high profile to make millions. The negative press was devastating. And I blame the lawyers for that.

The suit is important, very important. Because, while it was easy to laugh at Gawker going down the tubes due to its reprehensible conduct, there were significant First Amendment issues regarding the publication of something that was true, and that Bollea had also made his sex life fodder for discussion.

As Scott Greenfield notes:

There’s no sex tape of Ayyadurai. There’s no ickiness pigeonhole to shove this into. It’s clearly a matter of public interest and concern. And Techdirt isn’t Gawker. At the time, the constitutional “scholars” argued that none of this would happen, there would be no chilling effect. It was just about Gawker, because Gawker, and sex videos because privacy. Nothing to see here, move along.

But Harder figured something out that you didn’t. Or you didn’t want to. He figured out that if you bring a suit, bring it in the right jurisdiction, try to get some home field advantage, a defendant might get Gawkered into submission. In this case, suit was brought in the United States District Court for the District of Massachusetts. That’s where Ayyadurai happens to be. Mike? He’s in California, far, far away.

Thus far, TechDirt has imposed the defense of “In pilleum caca.”(Go shit in a hat.) But it costs money to do that against the very well-funded Harder.

You can donate to the Techdirt Survival Fund here. Please give a few dollars if you appreciate the right to speak freely.

As I know all too well from personal experience, free speech isn’t free. It needs to be defended.

Elsewhere:

What a strange allegation, in alleged-inventor-of-e-mail vs. Techdirt lawsuit (Volokh at Washington Post):

No — a copyright registration for a program named “email” is not the U.S. government recognizing Ayyadurai “as the inventor of email.” No-one at the Copyright Office determines whether a program (or any other work) is a new invention. (Patent examiners may do that, but the Copyright Office doesn’t.) Indeed, no-one at the Copyright Office runs the program, reads the source code, or tries to compare the program’s description to those of other programs.

We Stand With TechDirt and So Should You (Carr at Pando):

Certainly the philosophical connection between Thiel’s attempt to kill Gawker and Ayyadurai’s attempt to silence TechDirt couldn’t be clearer: Both involve wealthy tech moguls using their cash (and Charles Harder) to shut down critical reporting, with the handy side effect that other media outlets are frightened into silence. At the very least, Thiel’s crusade against Gawker has emboldened plaintiffs like Ayyadurai to try to outspend the First Amendment.

But, of course, it barely matters whether TechDirt would win or lose in court — the cost of defending a $15m suit could easily be enough to bankrupt the site before a judge gets a chance to rule.

EFF is Proud to Stand Beside Techdirt in its “First Amendment Fight for its Life.” (Greene @ Electronic Frontier Foundation):

Techdirt is a vital resource – it provides a wide audience with independent journalism addressing some of the biggest technology issues of our time. The Internet community wouldn’t be the same without it. But of course this case is not just about Techdirt. It’s about freedom of the press generally.

Man who claims to have invented email has filed a lawsuit that could put one news website out of business (Hiltzik @ LA Times)

Ayyadurai has pursued his claim to be “the man who invented email” energetically in the news media. Lately he’s taken a new tack: filing lawsuits against news organizations that challenge his claim. His most recent target is a small technology news site called Techdirtand its parent company, the Redwood City research firm Floor64.

The website and its founder Mike Masnick — the author of most of the posts at issue in the case — have moved to have the lawsuit thrown out, partially on the grounds that Ayyadurai is a public figure and his activities are legitimate topics of public interest.

Techdirt says that because of its legal costs, the lawsuit has put it in a 1st Amendment “fight for its life.” In a Jan. 11 blog post aimed at drumming up public and financial support, Masnick wrote, “This fight could very well be the end of Techdirt, even if we are completely on the right side of the law.”

The history of email is capacious enough to accommodate hundreds of inspired engineers and scientists. Ayyadurai merits acknowledgment as a contributor to this rich pageant, especially given the talent he showed at 14. But no one should claim to be the inventor of such a multifaceted, evolutionary system, and Ayyadurai should stop trying.

 

February 8th, 2017

Melania Trump’s Lawyers Screw The Pooch

Before getting into the latest Trump lawsuit — this one by Melania Trump for defamation, filed in my local courthouse — I want to get one thing out of the way. I think that the families of politicians are off–limits for commentary and ridicule except in limited circumstances.

One of those circumstances is an active engagement in politics. Thus, Eleanor Roosevelt and Hillary Clinton were both fair game, but First Ladies Barbara and Laura Bush, and Michelle Obama were not.

Children are likewise off-limits, unless engaged in politics. Thus, Eric Trump, Donald, Jr., and Ivanka are all fair game, while Tiffany and Baron are not.

This is the reason that Rush Limbaugh and John McCain were both mercilessly skewered for picking on the child of a president. It is vulgar and completely beyond all sense of decency. While they had the constitutional right to conduct themselves that way, others had the right to flay them for having done it.

But yesterday Melania lost that protection with her claims in a defamation case. The nuts and bolts of the claim is that some blogger claimed she was an escort while also being a model, and she says that was false and defamatory. She sued the blogger and a website, Mail Online.

So far, no problem from me. If the claims are utterly false, have at it.

But her lawyers threw her under the bus with claims that she lost “multimillion dollar business relationships” during the years in which she would be “one of the most photographed women in the world.” This would be a “once-in-a-lifetime opportunity, as an extremely famous and well-known person.”

What the hell?  She’s complaining about not being able to use the White House for profit?

She, and the family, were ripped by the New York Times (and many others) yesterday in an editorial:

But any veneer of plausible deniability about the Trump family’s greed and their transactional view of the most powerful job in the world was shattered this week by a defamation lawsuit the first lady, Melania Trump, filed….

There is no benign way to look at that claim. Mrs. Trump evidently believes her new title affords her a chance to rake in millions of dollars.

Here’s the kicker: It is wholly unnecessary to make such comments when filing a complaint in New York.  A general claim of losses will suffice. The details will come later in a document called a bill of particulars, and even there, such hyperbolic language is not needed.

If the objective was to garner press with the suit, well they succeeded. Beyond, perhaps, their wildest nightmares. They have placed their client’s name on an exceptionally damaging document describing her desire for White House profiteering.

The lawyers also did something else very Trumpian: They made outrageous demands for damages, of $300,000,000. Yup, you read that right.

And, as regular readers of this blog know, you aren’t even allowed to make monetary demands in a complaint in personal injury suits in New York.  It is specifically outlawed, and is sanctionable. (And yes, defamation is a type of personal injury suit.)

The geniuses who did this to Melania?

The one pulling the strings is Charles Harder from Beverly Hills, who has experience in high-profile defamation cases. And he should have known better than to impugn his own client.

On the New York side as local counsel is Mark Rosenberg of Tarter Krinsky & Drogin.  According to his bio, these are his practice areas:

  • China Desk
  • Hospitality and Restaurant Services
  • Intellectual Property
  • Retail

Seriously? They couldn’t find local counsel who knew how to craft a simple defamation complaint in state court (which does not require the level of detail that federal court does), without negligently killing their own client in the process?

The job of local counsel is to make sure that the out-of-state-guy doesn’t screw the pooch on rules of procedure. And here, the rules of procedure were clear: It was unnecessary (and damaging) to have Melania confess her true motives of using the White House for profit, and unnecessary to potentially subject her to sanctions for an impermissible ad damnum clause.

The Trump v. Mail Media filing is here.

P.S.  Making a claim for legal fees at the end was also dumb, as they are not permitted. It shows one of two things: The lawyer is ignorant or the lawyer is copying from a form without actually reading and comprehending it.

 

January 18th, 2017

Zervos v. Trump (An Apprentice Sues Trump for Defamation — A Look at the Issues)

Summer Zervos

Donald Trump, who’s becoming a regular on these pages, was sued yesterday for defamation by a former Apprentice contestant, and it is clear he will have his hands full with this one. This post will look at a dozen issues in the Complaint, both as to how plaintiff’s counsel screwed some things up with lousy lawyering, and what may give Trump trouble.

First:  Suit was brought by Summer Zervos. She claimed (along with many other women) during the election campaign that Trump sexually assaulted her back in 2007, and he called her a liar for having said so. So, the statute of limitations having expired for assault, she sued for defamation on his recent denials.

The same tactic was used against Bill Cosby, using the denial of old assault claims as a means to bring a defamation action. Cosby’s claim of “self-defense” in denying the accusations failed (in federal court in Massachusetts).

Second:  She is represented by “celebrity attorney” Gloria Allred, who last appeared on my blog in 2009, and not in a good way. Calling her a publicity hound would be an insult to hounds everywhere. When publicity drives a suit, instead of good lawyering, opportunities are lost (for the client).

Third:   Today’s Exhibit A is the complaint Allred apparently drafted with her local counsel, Mariann Meier Wang, and I say apparently because if you read the first few pages, it doesn’t look anything like a legal pleading and I can’t imagine any competent lawyer drafting anything like this. (Zervos v. Trump)

It is a scream for publicity. A howl for attention. Perhaps, in some bizarre way, she is perfect for Trump — two people who will stop at nothing until they get the cameras turned on them. It has been used for an improper purpose, to deliberately put inflammatory material before the court for the purposes of garnering press.

For the non-lawyers checking in, a complaint is supposed to have “plain and concise statements” in consecutive paragraphs. They are supposed to have, as much as practicable, a single allegation in each paragraph.

Lawyers are kinda orderly like that. Because it makes it easy to admit or deny allegations and the court can then figure out what actual facts or issues are in dispute. And that can be really, really important because…

Fourth: The complaint, as it exists now, is a lost opportunity. A smart lawyer would put in those simple statements, then see if Trump denies them, and then cross-examine him on those denials. If done right, this can be very effective. Because if a defendant denies something he should admit, he has now done it with his counsel by his side. Not only is the defendant tarnished, but so is the lawyer. Both the witness and his lawyer would look like a fool in front of a jury if Trump denies a fact that is easily provable.

But as written now, it is impossible for Trump to admit or deny almost every single paragraph due to the drafting. And that is a big bonus for Trump.

Fifth: The plaintiff failed to verify the complaint. Oops.  This is real basic lawyering, and it’s a simple couple paragraphs at the end of the complaint where the signer states that the above is true. It is not required for the complaint, but if the complaint is verified by either the plaintiff or the lawyer, then the answer must  be verified too. And since Trump lives in Manhattan, where the suit was brought, he could be forced to personally sign that answer, with its admissions and denials.

An interesting side note on this is that the lawyer can verify the answer if lawyer and client are in different counties. But it seems doubtful that Trump will change his residency (based on current comments) and odds are  his lawyer will be in Manhattan. So if the plaintiff had been smart enough to verify, and had used simple statements, Trump could have been forced to sign on the dotted line. Now he doesn’t.

This was a blown opportunity.

Sixth: While those golden opportunities are lost, there is other material in there that will be fought over tooth and nail in the early going that will give Trump a headache. Such as proving the falsity of comments related to other women. Like this Trump tweet:

“Every woman lied when they came forward to hurt my campaign, total fabrication. The events never happened. Never. All of these liars will be sued after the election is over.”

This can be a real problem for Trump, as he potentially brought other women into the suit as witnesses with his over-the-top tweets. This is not a place he wants to be, for while he may be able to attack this particular plaintiff as a fabricator (‘Look, she kept coming back to me, over and over again!’) that is more difficult with more witnesses.

Seventh: In New York, parts of pleadings can be struck for unnecessarily putting “scandalous or prejudicial matter” in them (CPLR 3024). While it is highly unlikely that a court would kill the whole suit, of course, given that we have liberal pleading requirements that focuses on putting the defendant on notice of the facts, this could be an early issue. It wouldn’t be a winning argument, but would be one used to stall and delay the suit with motion practice.

Eighth: Another early defense argument may be that the conduct of putting immaterial comments and opinions in the complaint was done for an inherently improper reason, and that could theoretically be sanctionable under our court rules.  (While it would be a rare court that grants sanctions in New York, I expect a Trump lawyer to go on the offense. More motion practice, more delays.)

The response would no doubt be that it is impossible to harm Trump with the allegations, even if some of the material is irrelevant or that the complaint suffers from prolixity. In other words, no harm, no foul. While it’s a crappy complaint from a lawyer’s perspective, this would be the better of the two arguments.

Ninth: But the reason to go after the manner of filing the complaint is that this doesn’t appear to be a case likely to be dismissed outright by the court, but rather, one that will go through discovery. There appear to be sufficient allegations in there that x happened and then Trump lied about it, thereby defaming the plaintiff. And that means, ultimately, the deposition of Donald Trump on his conduct and comments. And because the complaint references other women as well, the discovery would be quite wide-ranging.

If Trump can somehow force the complaint to be modified, he could conceivably try to limit discovery when it comes to his conduct toward women other than the plaintiff.

Tenth: The plaintiff lives in California and the defendant in New York. Federal court was, therefore, an option. In favor of bringing the action in federal court, instead of state court which counsel chose, is that federal court is far less likely to put up with nonsense and you are far more likely to get far-reaching discovery. While it depends on the particular judge you draw, state judges tend to be more restrictive here.

In addition, federal actions tend to move much faster. So if the plaintiff actually had a political motive — such as getting a deposition of Trump done before the 2018 mid-term elections — federal court would have been the way to go.

Eleventh: On the other hand, federal court has a one-day limit on depositions. New York state court does not. That means Trump can’t filibuster his way through the day with word salad answers and hope that it’s done.

Twelfth: I said months ago that Donald Trump was a one-man-bar-exam. Everything he does ends litigiously. It doesn’t appear that this will stop anytime soon.