Litigation and trial practice

Pres. Trump’s case continues to worsen. Ten former State Department officials signed affidavits attesting that the travel ban does not make the U.S. safer. Former CIA Director, Gen. Mike Hayden, former Secretary of State Madeleine Albright, former Secretary of State John Kerry, former National Security Advisor Susan Rice and others have submitted testimony that the ban does not do what the administration claims it does. See NPR news report.

This would be like in an employment suit, former high level managers directly contradicting the employer’s stated rationale for a termination. It would be comparable to several former high level managers saying “No, the revenue projections were positive. Lay-offs were not necessary.” Too, it is just extraordinary when ten former officials care enough to go to the trouble of reviewing and then signing affidavits within such a short amount of time.The exhibit was filed early Monday morning. So, they must have coordinated all this leg-work on Sunday. Judges do take more notice of a lawsuit in which persons with no apparent financial stake in the outcome will go to some trouble to support a lawsuit.

Many of these persons were Democrats. But, for purposes of a lawsuit, that may not matter. What does matter is all ten former officials have expertise regarding the claimed rationale. Many discrimination cases hold that if the stated rationale does not hold water, then the finder of fact can construe the true motive was an improper one, such as discrimination.

The administration starts with a deficit. It is trying to argue that the travel ban is not a Moslem ban. Yet, Donald Trump has been quite well known for proclaiming the need for a Moslem ban for many months. Do his lawyers really expect the judge to disregard his public pronouncements? I doubt it. The Department of Justice lawyers have been given a very difficult case and are doing the best they can with it.

It is very unwise for a party to a lawsuit to discuss the lawsuit or the judge in public. Those statements will almost always become known to the judge. Donald Trump insists on discussing the judge’s actions in the lawsuit over the travel ban. On Sinday, he tweeted that Judge Robart’s decisions was “terrible” and that if there was some mayhem resulting from the lifting of the ban, then the fault would lie with the judge. He accused the judge of placing our country in peril. See CNN news report. There is an old saying: do not mess with teachers in the classroom, policeman on the streets or judges in the court room. Each of those persons are accustomed to being in charge of their respective environments. More importantly, each environment will quickly devolve into chaos if respect and decorum are not maintained.

Comments outside the court room will be noted. Assigning improper motives to the judge will cause some offense. That is so unwise in the midst of a difficult lawsuit. And, it surely drives his legal team crazy. His comments make this lawsuit personal. But, even worse, his comments help show the true motive for this travel ban.

Challenges to the ban are based at least in part on discrimination. The best way to show discrimination is comments by the persons who created or implemented the ban. His comments are admissible evidence. He might well be making his case worse, not better with his tweets.

Donald Trump is involved in many lawsuits. He lost one of them. Mr. Trump purchased a golf course in 2012 ago for $5 million. That was a good price, but part of the deal was that he had to accept the liabilities then pending. Some 65 members were trying to withdraw from their membership. There was some $41 million owed to them as refundable deposits. Under the terms of their agreement, the resignation process was complicated and lengthy. It could take ten years to resign one’s membership. Mr. Trump named the golf course, Trump Golf Course. It is in Jupiter, Florida.

A couple of months after assuming control, Mr. Trump said if they wanted to resign, then they could not have access to the club. Yet, they were still required to pay dues of some $8,000 to $20,000 per year. The members then said well, if they were losing access to the course, then their resignation was final and they were entitled to a refund of their deposits. Mr. Trump’s company refused to issue refunds or to otherwise speed up the resignation process. The members filed a class action lawsuit, saying the new owners were unilaterally changing the terms of their agreement. Eric Trump was the operations person for the golf course and he admitted on the witness stand that paying dues without access to the club violated a fundamental principle of life. Donald Trump testified via videotaped deposition.

The trial was held in federal court last August. This week, the judge issued his ruling in favor of the members. He awarded the members $5.6 million for refunds of their dues and deposits. As always, Mr. Trump said he would appeal. See CBS news report.

But, Mr. Trump’s hardball business tactics did work well in one sense. During the four years of the lawsuit, about half the members changed their mind and withdrew from the resignation list. That saved him tens of millions in refunds he would have owed. See NPR news report. Whether these many lawsuits are good politics is beyond the scope of this blog. But, one must wonder.

Yes, some lawyers have a conscience. Like the “Saturday night massacre” a generation ago, Pres. Trump fired Sally Yates, the acting Attorney General because she refused to defend a questionable ban on travel for seven Moslem countries. See one description of the Saturday Night Massacre in 1973 here. Elliot Richardson and William Ruckleshaus refused to carry out what they believed was an unlawful order to fire Archibald Cox, the Watergate prosecutor. Ms. Yates refused to defend Pres. Trump’s ban on seven Moslem countries. She explained that she questioned whether that travel ban was lawful. See CBS news report.

The White House did not clear its ban with government agencies. It issued the ban with no prior coordination with the Department of Justice.  The travel ban obviously surprised the Attorney General’s office. As Ms. Yates indicated, she had serious doubts about its legality and she wrestled with what to do over the weekend.  She considered resigning rather than dealing with the problem, but she felt that leaving the office would just push the problem off on someone else.

Like 1973, this could portend further trouble for the president. When Nixon fired those two lawyers in 1973, that action very likely started his long journey toward eventual resignation. Firing the Attorney General and his first assistant was seen by many as unnecessary on Pres. Nixon’s part and clearly intended to protect himself. That was a shock to the country, just as today firing the acting Attorney General is quite surprising today. Ms. Yates is the only person at DOJ who is authorized to sign off on requests for warrants for foreign investigations. Her absence will surely cause further problems.

People in public life have to be careful about they say and do. Pres. Bill Clinton was sued by several women during the last couple of years of his administration. Pres. Trump appears headed toward those same troubled waters. During the campaign a former Apprentice contestant, Summer Zervos, accused Mr. Trump of groping her and assaulting her. The candidate denied it. Now, she has sued the soon-to-be President. Her attorney is the celebrity lawyer, Gloria Allred of Los Angeles. See CBS news report. Ms. Zervos says she will drop the lawsuit if Pres. Trump will simply acknowledge the truth of her claims. That does not seem likely. Mr. Trump enters office already a party to several lawsuits. It looks like his tally will only increase.

But, the President-Elect did settle his Trump University lawsuit. He agreed to pay the victims of his fraud $25 million. See CNN news report.

So, if you are at work, thinking you might be fired, you might think about taking some documents home with you. Some documents might help later if you have to file suit. Taking documents from your employer is problematic conduct. Yes, the documents might help your case, but they could also give your employer a basis for suing you. In Highland Capital Management, LP v. Looper Reed & McGraw, No. 15-000055, 2016 WL 164528 (Tex.App. Dallas 2016), the employee took home some 60,000 documents. Highland Capital sued its former employee, Patrick Daugherty, for violating his employment agreement, misusing confidential information and other causes of action. While that lawsuit was still pending, it also sued Mr. Daugherty’s law firm, Looper, Reed and McGraw, accusing the law firm of everything from refusing to return those documents to using those documents to threatening to use those document if certain sums were not paid to lying to the plaintiff about the scope of those documents.

Looper Read filed a motion for summary judgment. Looper Reed relied on the attorney immunity doctrine and on the fact that Mr. Daugherty prevailed in the original lawsuit. The attorney immunity doctrine apples to suits by third parties against lawyers for action taken during the course of representation. The trial court granted summary judgment.

The Dallas Court of Appeals found that Looper Reed was indeed protected by the attorney immunity doctrine. The former employer argued that the law firm acted in a criminal, tortious way in using the documents. But, the court of appeals noted that the law firm’s use of the papers, accepting them, reviewing them, advising a client to reject a counter-demand, speaking about an opposing party in a negative light, etc. are the sort of duties required of any lawyer. So, accepting Highland Capital’s allegations as true, they still do not rise to the level of actionable conduct. See decision here.

Not one, but two chefs backed out of agreements to open restaurants in Donald Trump’s Washington, D.C. hotel. I previously wrote about celebrity chef Jose Andres here. Also, Geoffrey Zakarian backed out of a similar deal. Donald Trump sued both. Both backed out after he disparaged Mexican immigrants. Both chefs claim they would have trouble hiring staff and attracting patrons after such remarks. Donald sued, as he often does. Mr. Trump is set to be deposed in Mr. Andres’ lawsuit next week. See CBS news report.

Both chefs have talked settlement with Mr. Trump. But, no agreement has been reached. The President-elect has tried to postpone the deposition. But, it is his lawsuit. He cannot file a lawsuit and then complain that the rules are not convenient for him.

In every court room, there is just a thin veneer of civility. That is why all the court personnel are so polite. They know one angry word, one snarky comment will provoke a reaction. In the case against Bill Cosby, there are plenty of legal issues to try the nerves of both parties. In one recent hearing, the prosecutor got very upset in court when Bill Cosby’s lawyer appeared to be trying to make public the names of 13 other women who have accused Mr. Cosby of sexual assault. Brian McMonagle, the defense lawyer who represents Bill Cosby, wants the names of the thirteen possible witnesses. The prosecutor, Kevin Steele, became enraged during the defense attorney’s argument. Mr. Steele was convinced the lawyer was trying to intimidate the thirteen women. He argued that Mr. McMonagle wanted to identify them so they could be intimidated. The defense lawyer responded, that the women are “adults, not children.” Mr. Steele also “blew up” when Mr. McMonagle positioned a projection screen in a way that appeared to allow reporters to see the name of the women accusers. The Judge eventually allowed that 11 of the women who have voluntarily gone public would be identified. He also warned both lawyers that if this conduct continues, he will call the sheriff’s deputies. See ABA Bar Journal report.

The defense lawyer was trying to use exhibits in court that contained the names of the 13 women. See NBC news report. And, of course, his retort that they are “adults” suggests he was not concerned about the consequences to the 13 women if there names were made public.

If the defense attorney was indeed using exhibits during the hearing that contained names which have up to now been confidential, then he was indeed apparently trying to make their names public. Yes, Virginia, lawyers do play games to try to intimidate the other side.

Donald Trump famously said Mexican immigrants are rapists and criminals. This was early in his campaign. The chef at his then new hotel in Washington, D.C., found those remarks offensive. Chef Jose Andres backed out of his written agreement planning the new hotel. Mr. Trump filed suit for breach of contract. Now, the chef has insisted on an opportunity to depose Mr. Trump. Mr. Andres is Spanish-American. He was born in Spain. He owns restaurants all across the U.S. He is a celebrity in his own right.

The President elect has been trying to avoid the deposition. But, the judge refused. He ordered the new President to appear for his deposition. The judge ruled he must appear for his deposition the first week of January. In a lawsuit of this sort, Mr. Trump’s remarks are center piece of the lawsuit. Of course, he must be deposed.

And, really, it is Mr. Trump’s lawsuit. As I sometimes have to remind my clients, if you pick the forum, then you must abide by the forum’s rules. See CNN news report.

Mr. Andres has suggested they settle their differences and make a donation to a charity. Mr. Andres tweeted his suggestion. But, so far, the incoming world leader insists on going to trial.

Coach Bev Kearney was placed on suspension in 2012 when it was discovered she had a long-term relationship with a student. Even though she had won six national track titles at the University of Texas, she was disciplined when the administration learned of the affair. She was then fired. See my prior posts here and here about her lawsuit.  She filed suit claiming retaliation after complaining about discrimination. She also alleged that she had been treated differently than other white, male coaches and teachers who also had relationships with students. Coach Kearney is African-American. She compared herself to Major Applewhite who had a brief affair with a student in 2009 and to an unnamed volleyball coach. As I mentioned in this post, her case based on disparate treatment would be difficult.

It is difficult to show disparate treatment. Every department is different. Every boss has different standards. Coach Kearney’s affair occurred in 2002. Coach Applewhite’s one-night stand occurred in 2009. But, the trial court and the court of appeals were satisfied that Coach Kearney had alleged sufficient allegations to indicate she could show disparate treatment. The employer had filed a plea to the jurisdiction, which is comparable to a motion for summary judgment. As I mentioned, Coach Applewhite’s affair with a student lasted only one night and he was disciplined for it. A volleyball coach from the late 90’s and Major Applewhite’s treatment, said the court, sufficed to show allegations of disparate treatment. The court noted, however, that the employer mentioned for the first time in its reply brief that the situations involving the volleyball coach or Coach Applewhite were not similar enough to Coach Kearney’s situation.

But, as most courts of appeals would, it declined to consider allegations raised for the first time in UT’s reply brief. From the employee’s perspective, that is fortunate. It is difficult to argue that different supervisors were applying the same standards, or that one infraction is truly similar to another infraction. The employer might well have succeeded in arguing that Major Applewhite’s offense was short-lived, lasting just one night, and that he did receive discipline for it. He may not have been fired, as Coach Kearney was, but the employer could argue that his offense was not as bad. Coach Kearney’s offense was a long-term relationship. I think the plaintiff dodged a bullet in their appeal. Lawyers do make mistakes, and this may have been significant. See the decision in University of Texas at Austin v. Kearney, No. 14-00500, 2016 WL 2659993 (Tex.App. Austin 2016), here.

UT, however, has requested an appeal. It will be interesting to see if the employer can squeeze in its argument that the situations of the other white, male coaches should not apply.

Coach Kearney also alleged she suffered retaliation. The Court of Appeals, however, noted that she cannot both claim to have been singled out for unique treatment and that she suffered reprisal for prior complaints of discrimination. The court of Appeals essentially finds that her pleadings negate the retaliation theory of recovery. That ruling strikes me as overly formalistic. But, the Texas Supreme Court is almost certain to affirm this pro-employer finding.