Trump Lawyers Fail to Demand a Jury Trial: Malpractice, Strategery, or Both?

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.

1. Yes, even in criminal cases, a defendant must invoke the right to a trial by jury, especially for lower level offenses.
2. 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.