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.

 

November 1st, 2016

Trump and the Threat of Legal Sanctions

Trump Free speech

An old graphic, because Trump is a repeat offender.

Today we once again turn to Donald Trump, the One Man Bar Exam. Specifically, as to how he might be sanctioned in New York should he bring a frivolous defamation suit here.

Quick background: To absolutely no one’s surprise, Trump threatened to sue the New York Times two weeks ago for defamation because it reported the news. Specifically, it reported that women had stepped forward to assert that he’d sexually assaulted them.

He then went on to assert that he would likewise sue the bevy of women who have stepped forward to talk about the assaults they claimed.

Now comes Ted Boutrous of Gibson Dunn and Crutcher to say that he will defend anyone Trump sues. For free. And he likely has 100 lawyers around the country willing to pitch in their services. There is no shortage of lawyers who would gladly take Trump’s testimony and delight in obtaining liberal discovery about him and his manner with women.

In a discussion on how Trump would get destroyed if he were dumb enough to bring such a suit, Boutrous writes at Politico regarding sanctions:

If Trump does end up pursuing these cases, he could do worse than lose. He could get hit with monetary sanctions for bringing frivolous claims and be subjected to countersuits by these women, who can argue that he has defamed them by calling them “liars” and who are private figures and thus not governed by the Sullivan “actual malice” standard that restricts Trump’s claims against them. All they would have to prove would be that Trump negligently made a false statement that injured their reputations.

Now I don’t actually think Trump will sue. I think he did this solely to intimidate others from coming forward, so that they would think, “I don’t need this shit.” It’s a classic case of intimidation.

But if he is irrational enough to ignore the advice not to sue, and he brings the action in state court in New York where he lives, I’m here to tell you the legal mechanics of how such a sanction could come to be.

Since I’ve been sued twice for defamation over blog posts here, in addition to being a personal injury attorney who routinely brings lawsuits, I have a pretty good prospective from both sides of the -v-.

Since I think the case is an absolute slam dunk against Trump if he sues a media outlet I’m going to leap ahead and go straight to the issue of sanctions.

I’ve written about this stuff before. After Trump brought a dumb defamation claim against Univision, and sought $500M in damages, I laid out the case against him. Then I wrote an April Fool’s gag, complete with fake judicial opinion, laying out the case for sanctions.

In supporting the motion for sanctions, the court might consider Trump’s prior acknowledgment that he brings frivolous suits, as he stated to the Washington Post:

Trump said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”

While New York doesn’t have an anti-SLAPP statute, much to my dismay (my NYLJ op-ed is here), and has a judicial culture against sanctions, any lawyer dumb enough into letting his arm be twisted into bringing suit may well look to New York’s state court as the place to sue.

So these are the four places to look for sanctions in a New York action that I can conceive — two of which I have never seen happen —  assuming the judge bucks the judicial culture against awarding them:

First:   CPLR 8303-a: This provides for an award of mandatory costs and fees up to $10,000 for making a “frivolous” claim. In order to meet this definition of frivolousness under this statute, a court must find either that

(1) the “claim … was commenced, used or continued in bad faith, solely to delay or prolong, the resolution of the litigation or to harass or maliciously injure another”; or

(2) “the claim … was commenced or continued in bad faith without any reasonable basis in law or fact and could not be supported by a good faith argument for an extension, modification or reversal of existing law.”

Note that this is per claim, so that if Trump brings suit with multiple claims, it is 10K per claim, not per lawsuit. It’s a nice multiplication factor to use against the vexatious litigant.

Second:  Then there are the court rules, specifically, 22 NYCRR § 130.1–1, wherein a court, in its discretion, may also impose financial sanctions upon any party who engages in frivolous conduct. Conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false. (22 NYCRR § 130.1–1[c][1–3].)

So essentially we have a statute for commencing a frivolous suit and a court rule for conduct. The one for conduct has no limitation.

Third:  This is for an angry judge, who wants to buck the judicial culture against sanctions, and try to use the logic used by the federal courts, wherein courts retain an inherent power to sanction, “to manage their own proceedings and to control the conduct of those who appear before them.” Chambers v. Nasco.

New York judges already have the power to dismiss cases and award attorneys fees, but how far beyond that is an open question. (See, New York’s Court of Appeals in 2014 in CDR Creances SAS v. Cohen, in the context of fraud on the court, with discussion of federal court decisions.)

A judge angry with an abuse of the courts with such a frivolous suit by a wealthy individual might easily expand the Chambers v. Nasco rationale to New York, and it could easily be upheld in such a circumstance.

And I would argue that a sanction should be commensurate with Trump’s wealth, to insure that it has the necessary impact. Let’s fact it, a $10,000 sanction for someone that claims to be worth “in excess of $10 billion” is not even a rounding error for the accountants.

Fourth: If Trump brings suit, there is a 110% chance of him placing a ginormous, stupid number claim for damages in the complaint (even though he may well be libel-proof).  You are, quite simply, not permitted to do that, as it would explicitly violate CPLR § 3017(c), which prohibits ad damnum clauses (the monetary damage clause) in personal injury cases. It reads, quite simply:

In an action to recover damages for personal injuries or wrongful death, the complaint, … shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.

Now there are only two possible reasons for a plaintiff to put such a thing in a pleading, given that this law was passed in 2003. First, that the party deliberately violated the law in the quest for press, in the hopes of embarrassing someone with headlines. Second, that the lawyer is ignorant.

While it has never been done before, to my knowledge, the sanction was urged by New York’s late guru of civil practice, Professor David Siegel as a way of enforcing the law against those that willfully violate it.

Finally, if I were writing the brief, I would make damn sure to point out that Trump is a vexatious litigant, and that if the court refuses to sanction then it should expect more of the same. Again. And again. And again.

 

April 2nd, 2016

Deconstructing the Trump Sanction Hoax

Is it April 2nd already?

Is it April 2nd already?

It’s been a number of years now since I’ve run April Fools’ gags. But the time was right to come out of retirement.

For those new to this joint, I ran them from 2008-2012, and had a lot of fun. I do it with a motive. And, as I do here today, I always have a deconstruction the next day, because a gag without a point isn’t much fun to do.

This includes my gig as the official White House Law Blogger, that punked the NY Times, as well as a 23-blog conspiracy the following year that sent readers round in web circles. My first, and one of my favorites, was the time the Supreme Court had three justices recuse themselves in a fantasy baseball case, because they were involved in a high court league themselves.

OK, enough about the past.  Yesterday I took on Donald Trump for his conduct in bringing a frivolous defamation claim that I wrote about last year.

And in doing so, I confess it wasn’t an easy thing to do. Within minutes of the post going up, folks that knew my prior pranks were already hollering that, on this particular day, they wouldn’t believe a word I wrote, no matter what. The passage of four years, it seems, did nothing to diminish my April Fools’ Day reputation.

But the hoax had a point to make (or I wouldn’t do it), and it was rather straightforward: I’ve now been sued twice for defamation for my writings on this blog (Rakofsky and Katz). Both cases were completely frivolous and tossed into the judicial trash can on an immediate motion to dismiss. No discovery, no answer, no nothing, other than my motion to chuck it. But neither judge wanted to go the sanctions route, despite being so clearly warranted.

Such is the judicial culture in New York.

I followed up with an op-ed in the NY Law Journal, calling on the Legislature to approve Anti-SLAPP legislation that was pending. Vacuous suits, and threats of suits, serve to chill free expression. If you are fearful of writing your opinion, or using satire, parody or any other literary device to make a point, then your First Amendment rights have been devalued.

Enter, stage right, Donald Trump and his comments to a Washington Post reporter about a defamation suit he brought (and lost):

Trump said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”

Add to hit the numbers defamation suits he has brought or threatened (like the recent threat to sue Sen. Ted. Cruz)

And so, when my scheduled depositions on Thursday busted, I had an extra few hours to put on my jester’s hat and make use of our glorious First Amendment by slapping together this “decision” by a judge that sanctioned Trump for a whopping $500M. Who better than the Official White House Law Blogger to write it up?

Trump Free speechThe judge in the hoax, by the way, was Lester Bruce Sullivan, aka, L.B. Sullivan, better known as the guy who helped make First Amendment history by losing an important piece of litigation: New York Times v. Sullivan.

Was that $500M a dumb number? You bet it was. But that was the laughable number that Trump sued for, in order to get headlines. Which it did. So my “judge” thought that was the fitting sanction.

The point of the exercise was to show that, when folks have money, they can stamp on the First Amendment rights of others simply by making “life miserable,” in Trump’s own words.

Unless, of course, the weight of a real sanction makes them weigh that decision more carefully.

The use of sanctions should not be confused with costs or some kind of fee shifting merely because someone has lost. This isn’t an issue, after all, of two sides each saying they had the green light, or two experts in a medical malpractice case disagreeing on the standard of care.

No, this is an entirely different beast: This is about those that deliberately abuse the legal system, even when they know full well beforehand that there is utterly and completely no merit to the claims.

The Legislature should take action: The time to pass the Anti-SLAPP legislation is now.  If, that is, you believe our free speech rights are important.

[Addendum, 4/4, A reader who is on staff in the Assembly has pointed out that the NYS Assembly passed this legislation three times: in 2014, 2015, and 2016. It is the Senate which has not passed it to date.]

My thanks to Paul Alan Levy at Public Citizen and Scott Greenfield at Simple Justice for likewise blogging on the subject to help push the story.

 

April 1st, 2016

Judge Hits Trump for $500M Sanction for Frivolous Defamation Claim

Roof and TrumpRemember that case over the summer where Donald Trump sued Univision when it pulled out of the Miss Universe pageant due to his incendiary remarks about Mexicans? (SummonsAndComplaint)

Well, during that suit, he threw in an idiotic claim for defamation. It was based on the photo you see here of Trump’s mug next to that of mass murderer Dylan Roof, which was put on Instagram by Univision‘s president of programming and content, Alberto Ciurana.

At the time it happened, I ripped the defamation claim to shreds as frivolous. As did Popehat, albeit more colorfully than I (Donald Trump’s Lawyers Don’t Know Or Don’t Care What Defamation Is)

Now, it appears, a New York judge agrees. Even though the case was removed a couple weeks later to federal court, it was filed in New York’s Supreme Court (our main trial level court). And because it was filed there, the court apparently retains jurisdiction over anything that happened while still under its roof.

Most of the suit was about the contract between the parties (the contract was never made public, to my knowledge). But the state court decision here focuses only on the empty defamation claim.

Since statutory sanctions are limited to $10,000 per frivolous claim, or in this case $40,000 in the aggregate due to multiple plaintiffs and defendants, the court has seized on its inherent power to police its own courts. A $40,000 sanction after all, is meaningless to a man that claims to be worth “in excess of $10 billion.”

The court noted, interestingly, Trump’s recent interview with the Washington Post about bringing a lawsuit designed to harass, even though they are losers:

Trump said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”

Since Trump sued for $500M, the judge figures that must be the right number that will make an impression on someone who claims to be as rich as Trump.

The 13-page decision and order by Acting Justice L.B. Sullivan is here –>  Decision-Order-Trump-Defamation

Trump, it seems, is a walking, talking bar exam question. Every time he does something he opens more cans of legal issues.

Where will this one go?  Obviously up on appeal.

 

Update, seen elsewhere:

Has This Judge Trumped the Donald? (Paul Alan Levy @ Public Citizen)

Does Donald Trump Suddenly Look A Half Billion Thinner? (Greenfield @ Simple Justice)

Update x2:

Deconstructing the Trump Sanction Hoax