If you are a litigator, it’s time to get out the popcorn: Donald Trump Civil Trial

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So, there are a lot of things that the general public does not know about litigation in the real world that lawyers who actually litigate cases consider litigation 101. Trump’s trial is going to reveal the basics to the public I guess.

What are the basics so far? 1) request a jury trial at the time of your first pleading. In New York, you have to simply check a box.  In Pennsylvania, you have to check a box when you file a complaint. Or, the defendant can request one in their answer or first pleading. It is pretty basic stuff. You always request one. It adds $400 or so in cost to the first filing of the lawsuit, but it covers your tail and you don’t have to think about it further. You can ALWAYS withdraw your request for a jury trial. So, Trump’s lawyers failed to do that. That is pretty basic malpractice in my mind unless there was a memo saying save the $400 or do not request the jury trial. For Attorney Habba to stand up in Court and ask why there was no jury trial, suggests that she did not read the case file, which is embarrassing. It also seems like nobody wanted to tell Trump about this error. I would guess that he will file a malpractice claim against Habba and/or refuse to pay her bills. Odds are that he is not paying her bills and her firm is going to be on the hook for a lot of lost time.

Basic Rule #2: No matter how much you hate the trial judge, don’t piss him or her off. Trump seems to have done this with his usual panache. It makes it very difficult for the judge to give you the benefit of the doubt on close calls if you anger him or her.

Basic Rule #3: If you lose on summary judgment, you better engage in settlement negotiations. Plainly, Trump’s lawyers do not have permission to settle the case. Nevertheless, having lost summary judgment, floundering around in Court is just going to increase the damages. No appellate court is going to reverse a verdict by this judge, so you better find a way to reduce your damages.

Moving on to more subtle points. While the media is all hot and bothered about the failure to request a jury trial, it bears asking why this matters? Would a jury trial in New York City help Trump? How? Perhaps anything is better than the judge most familiar with Trump’s misrepresentations. But, a New York jury would see fairly quickly that if you are telling taxing authorities something totally different from what you are telling lenders, then they cannot both be true. Once a jury begins to see the average person as a liar, the case is lost and anything goes. Here, where Trump is a known liar, it’s not too hard to get to the point where a jury could come back with a huge verdict against him. The only way around that would be some sort of show for the jury about how this is political persecution. That might play in Oklahoma, but in New York and Manhattan of all places? It just seems like a disaster waiting to happen for Trump.

What might happen? Well, much like Fox’s Dominion Voting Machines eleventh hour 750 million settlement, there could be a late settlement with the Attorney General in the next few weeks. If not, it’s going to be a big verdict.

Finally, the Trump Organization’s CFO, Allan Weisselberg, was not a licensed CPA and had no idea what GAAP meant. Uh oh. This is absurd and harkens back to Bernie Madoff-esque conduct. If you are running an allegedly important and busy real estate empire, it is curious to not have a CFO with an accounting degree. He claims to be an accountant by training. Well, there are a bunch of lawyers who are lawyers by training but could not pass the bar exam. This is something that interferes with their ability to find jobs as lawyers because they cannot sign legal documents. This did not occur to the Trumps? Instead, it probably did. Weisselberg could not work as an accountant outside of the Trump Organization, much like the Madoff fraud. Finally, even those who are not CPA’s could probably learn what GAAP earnings are. Weisselberg did not even do that. This is really a problem. The case is over if you are relying on Weisselberg to give you honest reasons for various valuations of the business.