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

 

March 10th, 2016

Thank You, Donald Trump!

Donald Trump speaks at the 2015 Conservative Political Action Conference (CPAC) at the Gaylord National Resort & Convention Center at National Harbor MD on February 27, 2015. (Photo by Jeff Malet)

Donald Trump speaks at the 2015 Conservative Political Action Conference (CPAC) at the Gaylord National Resort & Convention Center at National Harbor MD on February 27, 2015. (Photo by Jeff Malet)

Thank you Donald Trump!!! For you did the Constitution and the First Amendment a tremendous service.

You exposed for the entire nation that there are people out there that wish to shut down free speech, and that some are willing to abuse the courts in order to accomplish that goal. Specifically, you exposed that there are some that will bring utterly frivolous defamation suits for the purpose of curtailing criticism, otherwise known as chilling free speech.

As someone that has been twice sued for defamation, and argued in an op-ed that New York needs robust Anti-SLAPP legislation, we can fairly say the issue is dear to my heart.

You did this, Donald Trump. And I am not referring to your recent tirade where you promised to “open up” libel laws which you promised to change if you’re elected president, despite the fact that the president doesn’t hold such power.

No, your service came in comment you made over someone who had sued a reporter over an investigation of the net worth of a loud mouthed real estate developer who was claiming to be worth 5-6 billion when the reporter, Timothy L. O’Brien, said the guy was worth “only” 150M and 250M.

I know! Could you believe someone would bring such a moronic suit!

And to juice his net worth in defense of himself, you wouldn’t believe that the developer actually claimed his net worth varied based on his “feelings” (emphasis added):

Q. Let me just understand that a little bit. Let’s talk about net worth for a second. You said that the net worth goes up and down based upon your own feelings?

A. Yes, even my own feelings, as to where the world is, where the world is going, and that can change rapidly from day to day. Then you have a September 11th, and you don’t feel so good about yourself and you don’t feel so good about the world and you don’t feel so good about New York City. Then you have a year later, and the city is as hot as a pistol. Even months after that it was a different feeling. So yeah, even my own feelings affect my value to myself.

Q. When you publicly state what you’re worth, what do you base that number on?

A. I would say it’s my general attitude at the time that the question may be asked. And as I say, it varies.

Here is what the bellicose developer said about the suit that he brought despite knowing he would lose:

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.”

Yes, Trump, we are talking about you. As if anyone reading this couldn’t have already figured that out.

Your confession published yesterday that you abuse the courts in an attempt to silence critics will no doubt be a nice little weapon in the gun belt of First Amendment defense, and will hopefully go a long way to make sure that such things don’t happen —  by raising awareness of the issue and the way you abuse the courts.

Perhaps our legislators will take notice, as it pertains to the pending anti-SLAPP legislation.

And if there are any judges that happen to be reading this, this is why you shouldn’t be gun-shy with the sanctions when idiotic defamation cases are brought. If you would lower the hammer on vexatious litigants, you would see fewer patently frivolous suits, and proper speech protections for the citizenry.

Here’s a suggestion for the next worthless defamation suit Trump brings: Take his demand for damages — which will be a ludicrous amount — and use that as the barometer for sanctions.

See also:

 

January 28th, 2016

Doctor Tries To Take Down Lawyer’s Blog Post By Filing Grievance – updated x2

Michigan attorney Steven Gursten

Michigan attorney Steven Gursten

Wow. Defense-medical exams and a defamation claim against a law blogger! Two of my favorite topics wrapped up in one ugly Michigan incident now ongoing.

Now you folks know I have a thing or two to say about doctors that do a lot of defense medical-legal exams. And you know I have a thing or two to say about BS claims of defamation, having been on the receiving end of a couple of moronic lawsuits.

Now comes before us today one Dr. Rosalind Griffin, a Michigan psychiatrist, with a different tactic: Filing a grievance against lawyer Steven Gursten for blogging about a medical-legal exam that she did on one of his clients.

Gursten was so ticked off at Dr. Griffin, that he wrote about her. Like me, he thinks that many of the doctors that make these exams a staple of their practices are doing hatchet jobs on the injured plaintiffs in order to benefit the insurance companies.

(For a comic view of how one lawyer sees it, you can view this cartoon.)

The short version of today’s story is that Gursten’s client was hit by two trucks, and he asserts that the client suffered a traumatic brain injury, broken back, and other significant injuries. Dr. Griffen then did the defense medical exam (DME) — sometimes improperly called an independent medical exam (IME) — and issued a report.

Gursten then presented evidence and asked readers to draw their own conclusions as to whether Dr. Griffen committed perjury. In fact, by the title of his posting, you can see that this invitation to readers was his explicit intention:

Heading: IME abuse? Read the transcript of Dr. Rosalind Griffin in a terrible truck accident case and decide for yourself

Subheading: How many thousands of innocent and seriously hurt people lose everything because of so-called “independent medical exams,” such as this example by Michigan psychiatrist Dr. Rosalind Griffin?

Dr. Rosalind Griffen, as seen during her video testimony in this matter.

Dr. Rosalind Griffen

He presented evidence that Dr. Griffen — who he said is “a rather notorious IME doctor here in Michigan” — was less than candid in her assessment.

Gursten asserts that this evidence disproves the doctor’s claim that the client said during the exam that his condition was improving, that the client had minor medical conditions, and despite “a closed-head injury, traumatic brain injury, abnormal memory and concentration, PTSD and a badly fractured and collapsed T12 vertebral body, as well as fractures to his mouth, shoulder and knee” that the client’s chronic pain actually came from a 30-year-old whiplash that had been asymptomatic.

This presentation of evidence, and request that readers make their own determination as to whether Dr. Griffen committed perjury, occurred Nov. 13, 2014.

Thirteen months later, Dr. Griffen filed a grievance, claiming defamation, and asking that the Committee require the lawyer to:

  • “delete his outrageous posting”; and
  • “[R]emove the link to Google results for my name.” [I didn’t make that up, I swear. — ET]
  • Punish and sanction him for putting her testimony and her conduct under oath on the internet for people to read.

Gursten wasn’t cowed by the complaint and proceeded to put it up online this week in a new posting with this heading and subheading:

Heading:  Sticks and stones and…attorney disbarment? Will the First Amendment lose out when IME doctor files grievance to conceal her testimony in injury case from the public?

Subheading:  IME doctor files grievance to suppress blog post and punish attorney for disclosing her conduct

Over the course of a very extensive follow-up posting this week, he provided many examples of differences between what the doctor claimed, and what he said actually happened. This is a sample, with much more at the original posting:

What Dr. Griffin claims James Fairley said. What James Fairley actually said.
“[A]ccording to his own statement he feels less depressed and is making progress.” (IME Report, Page 8)  “Q. What’s a good day for you? A. I don’t know. I haven’t had one lately. … I just have a profound sadness … Q. Do you think you’re depressed, sir? A. I do. … Q. Have you been tearful? A. Oh, yeah. I cry at the drop of a hat sometimes.”  (Fairley Dep., Page 58 (lines 1-2, 7), Page 61 (lines 13-14), Page 62 (lines 4-5))

In the text of the grievance, Dr. Griffen complains thusly about the original blog post:

Notably, it is the first item returned when someone uses the Google search engine on my name, thereby ensuring that it will be noted and read by individuals researching me or selecting a psychiatrist who will best meet the needs of the patient.

The problem, of course, is that Gursten merely provided the documents and video testimony, and pointed to various sections of them, while offering his opinions. He did what lawyers do: He presented evidence and asked the jury (his readers) to decide.

The doctor’s complaints that calling her “notorious,” or her exam a “hatchet job,” would be merely opinion. And opinion is not actionable under the First Amendment. It isn’t even a close call.

She also tries to make the complaint, unconvincingly I might add, that writing about her exam and testimony violates Rule 8.4 of Michigan’s rules of professional conduct which state that it is attorney misconduct to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

Since there is nothing dishonest or fraudulent about providing evidence and asking a series of questions about where that evidence leads, I don’t see how she can possibly prevail. Nor is a public discussion of a very serious issue prejudicial to the administration of justice. In fact, a public discussion is beneficial to the administration of justice. I do it here all the time.

Why would Dr. Griffen — who happens to be a member of the very grievance committee to which she is complaining — file this?

Leaving aside the obvious possibility that she may have friends on the committee, the other possibility is that she tried mightily to find an attorney to bring a lawsuit, and that everyone told her “Are you shittin’ me?” though they may have been a tad more blunt. Then a year went by, the statute of limitations expired in Michigan, and she made this complaint feeling she had to do something.

And so she did. And now people out of state, who had never heard of her, are writing about her. Well played, doctor, well played.

(Pro tip: If you need to file a dopey defamation case, you might try Jonathan Sullivan at Ruskin Moscou Faltischek in New York. He’s the guy that brought Dr. Michael Katz’s pointless and doltish suit against me regarding an “IME” and testimony that Katz did. Who knows, maybe he wants to do it again?)

Addendum: More at Public Citizen, a small excerpt below. At the link are also case citations,  and a thorough exposition on the chilling effect that permitting such grievances has on free speech.

Griffin’s complaint amounts to a lightweight defamation claim (lightweight because most of the quoted words are either not actually about Griffin or are opinion rather than facts, because Griffin does not spell out any other allegedly defamatory words as Michigan law would require, and because she says nothing about knowledge of falsity or reckless disregard of probable falsity).  It is therefore not surprising that Griffin did not file a defamation claim within the one-year statute of limitations.  Instead, six days after the statute expired, she chose to file this bare-bones grievance complaint, hoping that paid grievance staff will conduct an investigation for her, and force Gursten to spend his time and money responding to questions from public officials about his opinions about whether and how justice is afforded to accident victims and specifically how Griffin has or has not testified unfairly or unjustly.

In discussing the Michigan’s Grievance Commission, in highly critical terms for allowing this to go forward and requiring a response from Gursten, Public Citizen’s Paul Alan Levy writes:

The Commission staff might well be hoping to exact an apology as Gursten’s price for peace, but at least so far, Gursten is not only not caving in to Griffin’s pressure, but he has called Griffin’s bluff and raised the ante.

Addendum #2: Scott Greenfield weighs in on Rosalind Griffin using a disciplinary complaint because an actual defamation case would fail, and the completely expected reaction (from anyone in the least bit savvy about the internets):

But if the lawyer disciplinary process seems like easy pickin’s to silence blawgers, the flip side is that we’re not particularly inclined to run scared, and we have this tendency not to take kindly to being extorted through the use of the grievance procedure to shut us up.

Has Dr. Rosalind Griffin ever heard of Barbra Streisand?  If she thought she had something to twist her face into a frown before, she’s really gonna hate what happens when her effort to use the disciplinary procedure to silence Gursten not only fails, but backfires big time.