Trump Lawyers Fail to Demand a Jury Trial: Malpractice, Strategery, or Both?
![Trump lawyers](https://i0.wp.com/ordinary-times.com/wp-content/uploads/2021/09/Donald_Trump_51335308676-e1632317661391.jpg?resize=720%2C360&ssl=1)
Donald Trump in July, 2021. Photo by Gage Skidmore from Surprise, AZ, United States of America, CC BY-SA 2.0 <https://creativecommons.org/licenses/by-sa/2.0>, via Wikimedia Commons
The platform now known as X was all atwitter this morning with the realization that Donald Trump’s attorneys in the NY civil fraud case failed to request a jury trial. Some laughed in schadenfreudic delight, while others shook a metaphorical fist at the “corrupt” judge denying their demigod his rights. Personally, I tilted my head to the side like a confused beagle. Mistake or strategy? Neither explanation makes sense.
Before we dig in, one thing to note is that there is a question as to whether Trump was entitled to a jury trial here. It is a complex legal question that basically hinges on whether the case is a suit in equity, meaning the relief sought is not monetary. Examples of suits in equity are those in which a complaint asks for an injunction, specific performance of a contract obligation, or a declaration of some right. Suits in equity are not permitted a jury per the constitution. Perhaps Trump’s lawyers conceded that this was a suit in equity, but it seems like an issue worth hashing out in court. Furthermore, Judge Engoron stated there was no jury trial “because nobody asked for one,” by which we can infer a jury trial was a possibility.
So, what happened here?
For the most part, newly minted lawyers (which Trump’s attorneys are not) don’t know much about the actual practice of law. Law school is a lot of legal history, theory, writing, and learning to craft arguments. There’s not, generally speaking, a lot of instruction on everyday practice. There are undoubtedly programs here and there that are the exception to this rule, but for the most part, we graduate without knowing the ins and outs of motion practice.
Most of us who start in litigation will learn rather quickly, either through the mentorship of a more seasoned attorney, various “bridge the gap” seminars offered by local bar associations, and, in the worst case scenario, trial and error. That’s “worst case” because the consequences of errors and omissions have real world implications for the people or entities these baby lawyers represent. Some things are fixable; others are not. Many are maybe fixable, if you have an understanding judge. Either way, there can be painful lessons to learn.
I started out as an assistant prosecutor, which meant I had a treasure trove of stock motions and standard processes at my disposal. I also learned from my opposition, seeing the same standard sets of motions filed in most, if not all, cases: Motion for Discovery, Motion for Bond Reduction, Demand for Jury Trial, etc. When I left the prosecutor’s office and entered private practice, I had a good grasp on what I needed to do for my clients facing criminal charges, and soon learned that there were similarly standard motions for my civil cases. I was an associate at a small firm (small as in me and one other lawyer) where we took pretty much any case that walked in the door. In civil cases we were most often plaintiff’s counsel, but occasionally took on cases in which our client was being sued. In all cases, there were the same standard motions that we filed.
It may be surprising to learn that a jury trial is not the default option in all cases. Local rules of procedure, in criminal1 and civil cases, often require that one party actually request a jury, typically within a certain time frame of the institution of the action. Failure to follow this rule can result in losing one’s right to have the case heard by a jury. Instead, they will receive a bench trial (in which the judge is the finder of fact and ultimately decides the winner.) This is a very basic thing a lawyer must know and do in the representation of clients.
In the giant fraud case pending against Donald Trump by the New York State Attorney General’s Office, Trump’s attorneys allegedly failed to request a jury trial under this rule. I’m not saying I’m rooting for Trump, but if this was not intentional, then the malpractice of his counsel should not go unnoticed here.
In New York, New York Consolidated Laws, Civil Practice Law and Rules – CVP § 4102 governs requests for jury trials in civil cases. The rule states:
(a) Demand. Any party may demand a trial by jury of any issue of fact triable of right by a jury, by serving upon all other parties and filing a note of issue containing a demand for trial by jury. Any party served with a note of issue not containing such a demand may demand a trial by jury by serving upon each party a demand for a trial by jury and filing such demand in the office where the note of issue was filed within fifteen days after service of the note of issue. A demand shall not be accepted for filing unless a note of issue is filed in the action. If no party shall demand a trial by jury as provided herein, the right to trial by jury shall be deemed waived by all parties. A party may not withdraw a demand for trial by jury without the consent of the other parties, regardless of whether another party previously filed a note of issue without a demand for trial by jury.
A “note of issue” is basically a fill in the blank form for a civil lawsuit in which a party fills out certain information about the case, including the nature of the suit, the names of the parties and their lawyers, and in a big box right on the front, whether or not a trial by jury is demanded. Below is the Note of Issue filed by the AG’s office in the Trump fraud case:
Note the large box on the right labeled “Notice for Trial”. You see the boxes the parties must choose from indicating whether or not the party wants a jury trial. The AG’s office indicated they did not want a jury trial. This makes sense; the issues are complex in a fraud case and a good grasp of the law is on their side. It is also easier to convince one judge than multiple jurors.
What DJT’s counsel needed to do to preserve their client’s right to a jury trial was to respond, in no less than 15 days from service of this document, requesting one. They either did not file any response, or filed a response that did not request a jury (I have not been able to ascertain which.)
Gross mistake or strategic maneuver? It’s difficult for me to believe that it could have been an oversight, though it is very possible given his history of questionable representation. It is such a basic thing; even if they ultimately did want a bench trial – hard to fathom, given Trump’s vitriolic statements about the presiding judge – they should have preserved the right and waived later. Furthermore, to protect their own professional integrity, a waiver of a jury right needs to be recorded somewhere as knowing and voluntary. Maybe it is; maybe they have an email in their file somewhere in which Trump acknowledges the waiver.
Here’s the other thing, missing from online discourse today as this trial begins: even if this was a mistake, the attorneys did not just learn this morning that there will not be a jury. The prep leading up to a jury trial usually includes learning at least a little bit about the jury pool, even if it’s just the number of potential jurors being brought in. And since calling in a jury is a large undertaking, court clerks often contact the attorneys in the days prior to confirm the jury is needed – i.e., no settlement or plans for continuances. Finally, I have to believe that there would have been some pre-work submitted to prepare for a jury, such as proposed voir dire or jury instructions, any of which would have likely prompted someone from the court staff to say “what jury?”
So perhaps this is a strategic move, which would be bold given Trump’s public statements about his opinion of the judge, using words like “deranged,” “unhinged”, and “political hack” to describe judge Arthur Engoron. His attacks on Engoron predate the filing of this lawsuit, making a bench trial a risky move, especially if they sincerely believe Engoron is motivated by partisan animus.
Notably, Engoron already ruled on a central issue in the case last week, when he granted partial summary judgment in the AG’s favor finding, among other things, that Trump fraudulently inflated the value of assets in financial filings.2 If Trump has intentions of appealing this or any subsequent unfavorable rulings in this matter on grounds of a biased judge, he’s going to have to throw in a claim of attorney malpractice.
Given Trump’s history with his lawyers – nonpayment, disregarding advice, throwing them under the bus – it’s difficult to see the upside in agreeing to represent him. I can only imagine one would do so in hopes of making a name for oneself and maybe landing a gig on Newsmax or ONN (these are still things, yes?) Time and time again, I see lawyers who succeed only at beclowning themselves by entering into Trump’s orbit. All semblance of prudent practice of law goes out the window when you affiliate yourself with Donald J. Trump.
This is a case with serious implications for Trump, but these are not serious people. I can’t help but feel like everyone involved believes they are in a made-for-TV politico-drama without any real ramifications, especially Trump himself. The more he can cry persecution, the more his drooling sycophants and opportunistic hangers-on boost his martyrdom and their own visibility. He publicly lambasts the courts in which his fate hangs in the balance because he can’t truly fathom losing his wealth or freedom, and his enablers do nothing to discourage it because the high drama serves them, too.
Maybe the chance to villainize a single Democrat trial judge instead of a jury of their client’s peers, thereby perpetuating the narrative they’ve become part of, is more lucrative than actually helping their client. Lawyers who can’t rise above that don’t deserve the prestige of their positions.
- Yes, even in criminal cases, a defendant must invoke the right to a trial by jury, especially for lower level offenses.
- Because this was a summary judgment ruling, the outcome would have been the same even with a jury demand. Summary judgment is granted by a judge when the undisputed facts in evidence (via discovery documents or deposition testimony) entitle one party to a judgment as a matter of law.
All of this makes sense to me, in the same way that a lot of the post Jan 6 antics make sense.
I suspect Trump correctly recognizes that there are no viable legal paths out of this forest; there are only viable political ones. And it will be easier to get enough people to grant you that path if you were ‘denied a jury’ rather than found guilty/liable by one.
Alex Jones rolled similar dice when, rather than release specific documents & grant specific testimony related to the Sandy Hook cases that would have made him look both insanely liable and thoroughly detestable to a jury, he simply refused the courts demands and hoped when assessing damages a jury would assume better of him than they would if they knew everything. (And $1.5 billion or not, he might well have been right.)Report
The televising of the trial is already resulting in Discourse.
And it’s going to get worse before it gets better.Report
how so?Report
Here’s Sky News:
Report
Right, because the UK’s version of OAN is clearly an important arbiter of what we the people should know.Report
I did not say “The UK’s version of OAN is clearly an important arbiter of what the people should know”.
Arguing against me as if I did is to misunderstand what I said.Report
And whose fault is that?Report
Eh, I imagine an education system that fails to teach media literacy.
You wouldn’t believe how many television shows are criticized for not putting the equivalent of “AND THAT’S BAD!” in flashing red letters at the bottom of the screen.
I mean, look at the above exchange!
“This is going to create discourse.”
“How is it going to create discourse?”
“Here is an example of the discourse.”
“The source used in the example you gave is not one that I, personally, trust.”
And we’ve moved from “X will happen” to “I don’t like the example you gave. Not because the example is not representative of the phenomenon that I asked an example of, but I mean personally.”
“And that’s *YOUR* fault.”
“Yeah, I’m not convinced that it is.”Report
Em’s original post is discourse. Sky News ranting about a judge being polite is not. You choosing to focus on said judge from said source is basic, not well done trolling. You don’t get to lay your choices at the feet of media education (What ever that is).Report
No, Em’s original post is commentary.
The argument over whether the judge was just being polite or was actually signaling malicious intent is discourse.
And it’s going to get worse before it gets better.Report
That’s true by definition once you get involved.Report
Eh. I’m of the opinion that the discourse would exist even if I didn’t.
Though perhaps there are some who would be better able to curate their own bubbles without me around.Report
The “discourse,” such as it is, amounts to: “The trial is being televised and people will say stupid s**t.” Put that baldly, and that is the proposition you defend rather than something more consequential, the only sensible reaction is. “Yes, of course. And your point is?”Report
Man, if that were the question, I suppose that I’d have to say something like “I’m thinking it’s going to get dumber than we think. And that’s taking into account how I already think it’s going to be dumber than we think.”
Rather than being stuck being asked “how do you mean people will say stupid things?” as if I were asked to provide an example.Report
You said people were discussing and it would get worst and you pointed to Sky News. Seemed I drew an accurate conclusion.Report
That people weren’t discussing it and this was as bad as it was going to get?
That strikes me as being a bold stance to take.Report
Strikes me as Monday. In any given week.Report
I’ve known Justice Engoron since long before he was a judge. He has always been a pleasant person who smiles a lot.Report
I’m quite sure he is. Jaybird just happens to pick the most trollish source possible to imply something nefarious since he doesn’t have much else to share, and I felt like reminding him of that.Report
Oh, you believe that that was the most trollish source possible?
Do a search for “smile for the camera” on twitter. (But don’t do it at work. A handful of, erm, content creators have found that “smile for the camera” was trending and took opportunity to ply their wares.)Report
Nice, clear explanation. One quibble. Supreme Court Justices in New York, like Justice Engoron are, at least formally, elected, not nominated. In practice, however, once the honcho’s of the borough’s Democratic Party (Manhattan in this case) wheel and deal at the judicial nominating convention and decide who will get the nomination, that is almost always the end of the matter.Report
Thanks, will edit.Report
There is a thing called “Trump’s Razor” which states that the most stupid possible explanation is usually the correct one.
Since 2015 I notice that many media outlets and pundits and armchair Politics Knowers are constantly hypothesizing all sorts of 4D chess moves to Trump’s antics trying vainly to discern a deep Machiavellian strategery to the chaos, contrary to all available evidence.
Trump didn’t ascend to power by clever devious strategy. He rose by pounding the drum of racial hatred, fear, misogyny and cultural resentment.
These are not clever tools of strategy, but blunt hammers upon the primal lizard brain. In this way, they bypass the normal political channels which are subject to fact checking and sharp eyed rebuttal. These are entirely right brained emotional appeals which resonate with those who are also angry, resentful and fearful and looking for someone to hurt.Report
They can’t help themselves. Their entire paychecks are based upon constant hypothesizing or the non-paid ones get a psychic benefit from it. Stating something that Trump is getting a bench trial because of a stupid clerical error that went unchecked and uncorrected means collapsing their entire identity as smart and analytical people. And in the worst cases, it destroys the justification for their nice paychecks.Report
Bypassing “fact checking” by being deliberately wrong is a canny strategy. Then Trump gets all the nice liberal organizations to call him a liar — and Tell the Truth.
The truth was all he wanted in the first place, and if being a truthteller would get him any oxygen, he’d go for that instead.
But the liberals can’t resist “being right” even when it hurts the cause.
Trump is significantly less intelligent than Hillary or Bill Clinton, but he is a very smart operator.Report
What truth is he telling in this instance that no one in legacy media is telling?Report
Bhahahahaha.
Ahem. :Clears throat:
BHAHahahaha!!!
This really feels like a careless mistake. Maybe he thought he’d be President before we hit this point.Report
which wouldn’t immunize him against civil lawsuits in New York State, what with federalism being what it is. He can’t pardon himself from this either.Report
You’re not thinking dirty enough. He tells the Governor of NY to pardon him or he’ll do something nasty to them like withhold Billions of dollars of federal aid.Report
Or he loses a few hundred million in NY and gains more in the capital. It’s only money.Report
Hey, he’s already blatantly violated the _foreign_ emoluments clause, why not violate the _domestic_ one also by demanding personal favors from states for political actions? And it will be good for legal scholars too, no one remembers the domestic emolument clause even exists.Report
As Chip states, Trump’s Razor states that the stupidest answer is almost always the correct one with anything that involves Trump. The stupidest thing here would be a clerical error that went unnoticed and unchecked by Trump’s lawyers until it was too late. A jury trial would be perfect for Trump because as blue as New York is, it is still a large city and a jury pool is almost certainly going to contain enough unrepentant Trump worshipers to muddle things in his favor.
But a careless mistake was made and Trump lacks his jury. The man is not a super secret genius. He does not know his goose is cooked and that he is doing this so he can rant on social media about how he was denied a jury trial.
By god, I swear the reason Trump gets away with 99 percent of what he does is because smart people can’t resist speculating on strategy and this gives Trump and his cronies way more credit than he deserves.Report
Is it grounds for an appeal? I wanted a jury trial and my lawyers messed up the paperwork?Report
I think it would be very hard to make a grounds for an appeal or even a malpractice action but the malpractice action would have a marginally higher chance of succeeding over an appeal.Report
If memory serves, Justice Scalia wrote a majority opinion in which a poor defendant whose public defender literally fell asleep during his trial was not entitled to a new trial because reasons.Report
But this isn’t a poor defendant; it’s the man Justice Thomas’s wife thnks is the real president.Report
Some years ago, I was very interested in the “sleeping lawyer” cases. I came away suspecting that the real reason they came out the way they did was that if the sleeping lawyer had been awake and done no more while awake than the sleeping lawyer did while sleeping, the court would have ruled that the the representation was, though poor, adequate, and that would be too embarrassing to say out loud.Report
The only reference to Scalia and a sleeping defendant I could find was a 2002 case in which the Supreme Court declined to review an appellate ruling that the defendant was entitled to a new trial.Report
No, I’ve been thinking about this, and basic carelessness doesn’t quality as ‘stupidest’. You have to think narratively, if you were writing a book, what would the absolute stupidest thing that could have happened?
Here’s where I’m putting my bets, based on what I understand from this article: Trump’s lawyers were going to respond to this, and had the response form filled out correctly.
But Trump somehow ended up seeing the AG’s form, saw that it said he wasn’t going to have a trial by jury, and started telling anyone he was going to sue over this miscarriage of justice of being denied a trial. He demanded the lawyers draw up paperwork to sue over this, and would not listen to reason. This took so long that the deadline to respond properly expired.
I think that’s the stupidest possible thing that could have happened, and thus probably is roughly correct. Lawyers were going to respond, Trump somehow screwed it up. Maybe he didn’t screw it up over that specific thing, that’s merely ‘the funniest’ not ‘the stupidest’, but it is somehow his fault they didn’t respond.Report
I feel like there is a whole genre of writing which might as well be people writing “Trump and his allies can’t be this dumb, lazy, careless, stupid, cruel, etc., can they?” And then answer that should be screamed loudly again and again is “YES, YES THEY CAN BE THIS DUMB, LAZY, CARELESS, STUPID, CRUEL, ETC.”Report
There is an entire genre of conservative influencers and thinktanks loudly screaming “YES WE WANT TO DESTROY DEMOCRACY AND INSTALL A DICTATOR!” and pundits are still searching the Iowa diners at the 4:30 early bird special looking for someone to tell them what MAGA is all about.Report
Unfortunately it’s not just the conservatives. We’ve had multiple Presidents in there with cults of personality, it’s useful for becoming President.Report
Following the rules is a skill and not one they have.
Trump’s lawyers, by definition, need to be willing to work with Trump and that limits the talent pool something serious.Report
There is also an issue that NY’s attorney general is seeking more than monetary damages, she is seeking declaratory/injunctive relief that requires Trump take specific actions and New York law does not allow jury trials for that kind of relief.Report
See paragraph 2 :).Report
trial and error
Very nice.Report
Definitely incompetent lawyering in this case.Report
Just saw an interesting take on the details of all this.
Some internet lawyer compared what Trump was doing to a Ponzi scheme, just with Banks.Report
Its not actually inaccurate.Report
As in… Bank #1: give me X loan at generous interest rates and fees. I’ll pay it all back by getting a new loan from bank #2. Bank #2: give me X+1 loan at generous interest rates and fees. I’ll pay it all back by getting a new loan from bank #3. Continue cycle and everyone wins except for Bank #X who agrees and Trumps unable to find a new bank to join the scheme?Report
When I worked in the cable TV industry in the 1990s, it was standard practice to roll loans over. Although it was usually done with the same bank. There was no real intent to ever pay the loan off. The standard financial metric used to compare things from year to year was EBIDA (earnings before interest, depreciation, and amortization).
To get into Ponzi scheme territory, you would have to be borrowing to make the interest payments. Trump may or may not be doing that. The cable companies weren’t; interest was a cost of doing business and was paid out of current income.Report
Indeed, I’d dare to say it’s an entirely legit and normal business practice to manage debt that way. There has to be more to it considering that Trump had flat out run out of ordinary financial institutions that were willing to lend to him except Deutsche Bank by the time he ran in ’16. Perhaps his myriad fraudulent and failed businesses burned too many fingers as they went down.Report
There are two types of companies, which are financed completely differently. Most companies in real life are a mixture of the two types, but some pure examples do exist.
The first type are eternal companies, whose life is unlimited (not unlimited in a corporate sense -unlimited in the sense that they are [almost] free of obsolesce risk and therefore will be operating forever. Utilities are this kind of company. They show vegetative growth (as in customers mate and give birth to new customers that, once they reach maturity, sign their own contract with the utility). Utilities never pay their loans because they never lose customers or revenue. Quite the opposite, they grow permanently at a moderate but predictable rate, and keep getting new loans to serve the new customers. Banks love these companies because they are very low risk.
(As an aside, countries and governments are like this: taxpayers mate and have little future taxpayers. They never run out of a revenue source, so there’s no need to pay the loans, just to roll them over, and take new loans to serve the new taxpayers)
The second type are companies with a limited life. They are based on a technology that changes a lot, or based out of assets that deplete or depreciate substantially (a mine, for instance, or a big smelter or refinery). These companies take big loans at the beginning of their life to cover the substantial capital expenditures needed to start operations, and have to amortize those loans in full before the underlaying assets are consumed.
(As a second aside, households are like this. They have a limited time (the work life of the parents) to pay for all their big purchases, like housing and education, and cannot extend the repayment past a certain moment. That is why comparisons between the government’s budget and a family budget make no sense. We can discuss if taxes are too low or too high, but we can be sure that we are not running out of taxpayers.
In your particular case, TV cable is closer to a utility, so rollover of debts is likely the correct financing strategyReport
In theory you could make this work by getting more and more loans from the same bank to fund different real estate projects.
You use the money from the new loan to pay off the old one.
As Michael Cain has pointed out, that’s legal and normal…
What’s not normal is to inflate the value of the underlying property by 20x.
If we have one LLC is paying off the debts of another then we’re probably there. To be far I haven’t heard expressed directly but there’s a disconnect between these being separate LLCs and also being part of the Trump Empire.
We have a lot of hints that things deeply wrong here. The accounting is complex and opaque to the point of absurdity and we know there’s fraud.
In theory at some point the system breaks, but maybe at that point you dump all the debt onto one project that declares bankruptcy.
Is this a bank loan fueled Ponzi scheme? Some flavor of Enron? Something else?
Many of these moves seem breathtakingly risky unless you need to tell the banks that your assets are 20x what their real value is. Could be he has been totally bankrupt for decades and has just been really good at hiding it.Report
Or, considering how little new credit Trump could access by 2016, he wasn’t that great at hiding it but everyone who explicitly knew had no reason to pull the plug on him.Report