Donald Trump has sued or been sued some 4,000 times. He ought to know more than many lawyers how to win a lawsuit. Yet, he and his lawyers consistently violate every guideline regarding successful lawsuits. There are only guidelines, because a litigant can do everything right and still lose. Just like a litigant can do everything wrong and still win. But, the guidelines help.

$355 Million Mistake

Donald Trump was assessed a civil penalty of $355 million for civil fraud. With pre-judgment interest, that amount will exceed $400 million. That is a huge loss. And, he and his family committed huge, avoidable mistakes. Eric, Don, Jr. and Donald, Sr. all testified poorly. They were clearly not well-prepared for their testimony. Often, when major witnesses are not well-prepared, it is because they refused to meet with their lawyers and engage in the necessary amount of practice time. Just like football players practice plays over and over, so should a major witness practice his/her testimony until he is comfortable with the expected questions.

Over-Confident

When Don. Jr. testified, he was relaxed and making jokes from the witness stand. That suggests he was too relaxed and over-confident. in his 92 page ruling, Judge Engoron said this about Don, Jr.’s testimony:

“Trump, Jr. then testified that he does not know the details of how or why [CFO] Weisselberg ended his employment relationship with the Trump Organization, which this Court finds entirely unbelievable.”

Don Jr. evaded questions he did not have to evade. He probably did not understand the implication of many of the questions posed to him. But, he or his lawyers had to know he would very likely be asked about the former Chief Financial Officer, Allen Weisselberg. That should have been easy preparation.

Lack of Preparation

Regarding Eric Trump, the Judge had several negative comments about his credibility. Such as:

“Eric Trump’s credibility was severely damaged when he repeatedly denied knowing that his father ever even compiled an SFC that valued his assets and showed his net worth “until this case came to fruition.”

Here, Eric simply strained credulity in denying knowledge of a fact about which he had to know. He had to know that the company prepared Statements of Financial Condition and that those SFC’s would be the subject of many questions. Eric was the primary point of contact for persons doing appraisals of some of the Trump properties. Contemporary emails showed Eric and Don Jr. having final review of the SFC’s. It looks like Eric did not have a good understanding of what the evidence already entailed. He perhaps assumed he would not be sad about SFC’s? In a lawsuit that was deeply focused on all renditions of property value? Someone was clueless in preparing to testify. It is pointless to deny something which is so easily shown. Eric rolled the dice with his credibility and lost.

Donald Sr.

Then, of course, the rambling answers of Donald, Sr. His campaign speeches from the witness stand. His frequent out-of-court attacks on Judge Engoron and his staff all engender dislike by the fact-finder. It is Litigation 101 to not offend or insult the court staff. Many young lawyers adopt a snarky attitude toward the staff when the clerk makes a clerical error. It is near suicide to attack the court staff for any reason. It is obvious to this author that Donald Trump did not listen to his lawyers. As trial lawyers, we all tell our clients to always extend courtesy to court room staff and to the Judge.

Donald Sr.’s frequent lapses in memory also detracted from his testimony. All three Trumps had a distinct lack of memory …. until they were shown contemporary documents. As the Judge said in his Judgment:

“[Donald Trump, Sr.’s] refusal to answer the questions directly, or in some cases, at all, severely compromised his credibility.”

Clearly, they did not practice answering questions with their lawyer about those documents. The Trumps might have still lost even if they had practiced their testimony. The Judge at one time said there was ample evidence of fraud. Heck, the Judge even granted summary judgment on the question of liability. It is very rare to grant summary judgment in a civil fraud case. But, as the guidelines suggest, the Trumps’ chances would have increased if they had simply done their homework.

See AP news report about that judgment in New York v Donald J. Trump here.

Many discrimination cases lose on motions for summary judgment. In Gutierrez v. City of Converse, No. 17-CV-01233-JKP (W.D. Tex. Jan. 10, 2020), the Western District denied in part and granted in part the City of Converse’s Motion for Summary Judgment. Ms. Gutierrez worked for the Converse Fire Department for eight years when she was fired in 2017. Plaintiff Gutierrez was an EMT paramedic. She was accused of leaving the scene of a critically ill patient without leave to do so.The Acadian Ambulance crew was first to arrive and was the crew in charge.

Scene of Critically Ill patient

Ms. Gutierrez went to the scene of the patient and then came back out of the house. She met her partner in the garage and said they cannot get a stretcher in there and that they would leave. Her Captain said there was no Converse Fire Department policy regarding leaving the scene of a patient. But, the Chief of the department testified that there was a policy about leaving a work site and Plaintiff violated that policy. Gutierrez argued that her male partner was not disciplined for the same offense. he too left the scene with Gutierrez. But, the Chief said the male partner did not go inside the house. That amounts to sex discrimination, said the female EMT.

But, the male partner was not involved in the decision to leave the house of the ill patient, noted the Court. Judge Pulliam found Gutierrez could not show a male employee was treated better than Gutierrez. So, he granted summary judgment regarding Plaintiff’s sex discrimination claim.

Equal Pay Act

The Judge also granted summary judgment regarding Plaintiff’s disability discrimination claim and her claim for retaliation. Her retaliation claim failed, said the Court, because she complained about discrimination after she was already scheduled for discipline regarding leaving the scene of an ill patient.

The Court did allow Plaintiff’s claim under the Equal Pay Act to stand. The Court noted in just a few paragraphs that Gutierrez was hired about the same time as a male employee. The male employee started off being paid more than Plaintiff. As time progressed, that male employee consistently remained paid more than Plaintiff Gutierrez.

See the decision in Gutierrez v. City of Converse here.

There are few more sensitive issues in litigation than asking a Judge to recuse him/herself. No Judge believes he bears any bias that would affect his rulings. But, in very rare situations, litigants will have to file the appropriate motion. Do not do it the way Alina Habba did it. Ms. Habba responded to one article in the New York Post that claimed at a mega-law firm, Roberta Kaplan was mentored by Lewis Kaplan. As in Judge Lewis Kaplan. Judge Kaplan was the judge in the defamation lawsuit filed by E. Jean Carroll. And Roberta was Ms. Carroll’s lawyer.

If a litigant believes the Judge has some potential conflict of interest, s/he needs to file a motion before the trial occurs. But, Ms. Habba did not do that. She submitted a letter to Judge Lewis Kaplan after the second trial had concluded. And, to make it worse, she relied solely on the New York Post article. She described the allegations in her letter as, well… as “allegations.” So, she did not even have actual evidence of some mentor relationship, from 30 years ago.

Sanctions

Roberta Kaplan responded within a day threatening to seek sanctions against Habba for lodging frivolous accusations. Indeed, the alleged mentor relationship would have occurred 30 years ago in one of the largest law firms in the country. Even if there was some mentor relationship so long ago, it is unlikely such a relationship creates a conflict of interest today. Every senior lawyer has multiple mentor relationships over the life of a career.

But, in relying on unsourced “allegations” for accusations lodged in court just looks amateurish. Ms. Habba did her client no favors in filing the sort of letter only a brand new lawyer would file. That is especially unwise in Federal court. Sanctions are taken much seriously in Federal court.

There is a saying in litigation. Like the king, if you go after a judge, you better get the judge. That means if you seek recusal and fail, the judge may hold that motion against you. I think this adage applies less so here. Ms. Habba by the end of the trial, had already offended Judge Kaplan about as much as any trial lawyer could. She made more mistakes in her one trial than 50 courtrooms full of brand new lawyers.

See ABA Bar Journal report here.

Under the Fair Labor Standards Act, all employees are entitled to overtime. But, what if there is a dispute about the overtime? What happens when the employee claims a large amount of overtime, but the employer says there was no overtime?

Supreme Court precedent holds that if an employer maintains time records, then the employer is entitled to a presumption that no overtime is owed. But, if the employer does not maintain those time records, then if the employee presents credible evidence that he worked overtime hours for which he was not paid, then the court may infer that the employee’s records are correct. So, how much evidence does the employee need to obtain the benefit of this inference?

The decision in Flores v. FS Blinds, 73 F.3d 356 (5th Cir. 2023), reminds us that the burden for the employee is low. In Flores, the Fifth Circuit reversed a grant of summary judgment by the lower court. The employees presented their testimony in which they said they averaged 70 hours per week and they presented numerous work orders suggesting a very lengthy work day. Too, an FS Blinds manager confirmed that yes, their work day started at 5:30 a.m. This was enough evidence for the Fifth Circuit.

The panel rejected decisions in other Fifth Circuit cases that were not published. It noted that the lower court mis-construed the testimony of the workers. They did not say they worked 70 hours every week. They simply said they averaged 70 hours per week. See the decision here.

In another crazy twist to the Ken Paxton lawsuit, the AG has filed an Answer that essentially admits liability. AG Paxton issued a press release with the Answer that again defames the plaintiffs. Paxton’s Amended Answer comes soon after the presiding judge ordered AG Paxton to appear for his deposition. And, even before that order was the Texas Supreme Court’s order on Jan. 12, 2024 that AG Paxton must sit for a deposition. This chain of events suggests Mr. Paxton wants to avoid being deposed.

Mr. Paxton’s Amended Answer admits to liability. That is, AG Paxton admits he violated the Whistleblower Act when he fired the plaintiffs. The press release reads as if AG Paxton believes this Answer ends the lawsuit. But, admitting liability is just one part of a lawsuit. There still remains the question of damages. So, whatever Mr. Paxton believes, the plaintiffs still have the right to conduct discovery into damages. Such discovery in regard to a state entity may be limited – there just may not be much to discover, but that is a decision for the plaintiffs.

In any event, the Judge’s order regarding Paxton’ deposition still stands. The plaintiffs may need to conduct the deposition just in case another monkey wrench appears later. AG Paxton has made this lawsuit personal from the very start. The plaintiffs likely feel no compunction about conducting a deposition that may not provide a lot of benefit. There is a reason most of engage in trial practice with some minimal sort of courtesy.

See Texas Tribune report here.

A hospital nurse reported possible child abuse. She was fired soon after. Was that report to Child Protective Services protected activity? That is, was her report covered by the Texas statute that prohibits reprisal for reporting possible abuse? The Texas Supreme Court says no. In looking at Texas Family Code Sec. 261.110, the higher court noted that if Nurse Thompson was fired within 60 days of her report, then the court will presume that report to CPS lead to her termination. Yet, the court never mentions in its opinion whether she was fired before or after the 60 day period had run.

The Texas Supreme Court decided that this provision in the Texas Family Code was similar to other statutes that employ a “but for” type analysis. So, it looked at whether the employer could show Nurse Thompson would have been fired even if she had not made the report to CPS. The Nurse had been written up for allegedly speaking in a disrespectful toward a doctor a few months prior. (But, we have to wonder how many nurses might be accused of that in any hospital).

HIPAA

The incident that lead to her termination involved a child patient. Ms. Thompson believed her parents were mis-managing her treatment. Nurse Thompson called a nurse at the patient’s school. The parents had signed a HIPAA release. But, that release expired few weeks before Nurse Thompson’s phone call. About this same time, the nurse reported the possible abuse to CPS. The parents then complained to the hospital. And, the hospital investigated and learned about the phone call to the school.

The hospital claimed her phone call to the school nurse violated HIPAA. But, the Texas Nurses Association and the Texas School Nurses Organization both submitted briefs saying that phone call did not violate HIPAA. The Supreme Court said it did not matter whether her phone call violated HIPAA. The only thing that mattered was why the hospital fired Ms. Thompson. But, that bare assertion begs the question. It is critical in cases like this to ferret out the employer’s true motive. If it can be shown that calling the school nurse did not violate HIPAA, then the hospital would have to explain to the jury why it believed otherwise. If their explanation does not hold water, then the jury could choose to dis-believe the hospital. If the jury did not believe the hospital’s story, then it could conclude that the hospital acted out of a retaliatory motive.

I expect there was other evidence that would have questioned the hospital’s motive. But, the Supreme Court, notoriously anti-employee, did not include it. See the opinion in Scott & White Memorial Hosp. v. Thompson, No. 22-0558 (Texas 12/22/2023) here.

I first wrote this a few Christmases ago. It still seems to resonate. Every Christmas, I look back to my Christmas in Iraq, some years ago.  I served as a Civil Affairs officer supervising a staff of 3.  In the war zone, everyday is a work day. On Christmas Eve, we worked a full day. After duty hours, my unit attended a barbecue put on by our sister company, a Psychological Operations unit. Our unit theme was Pirates, so we all wore our Pirate gear.  For most of us, that meant simply wearing an eye patch. But, our unit First Sergeant, supported by a resourceful spouse back home, came in full Pirate regalia, from mock boots to a beard and plastic sword. Santa appeared, looking quite jolly. The beverage of choice was some tasty fake beer from Germany. We enjoyed each other’s company. We were a family away from our real families. We, some 40 of us, shared a bond forged in training and honed going outside the wire, knowing who we could rely on and who we could not. We had made it this far, with no casualties. It was a small celebration of life and duty in a far away country.

Interpreters

Some of our Iraqi interpreters joined us, not needing to understand the occasion. Even though they were mostly Moslem, they all seemed to understand the spirit of the celebration.

Christmas day 2005 was quiet fortunately. My staff section was able to take most of the day off. I checked email and then went to Mass. Mass in a war zone is sublime.  Life is reduced to its essentials. Church was warm and comforting. The Christian spirit filled the generic old Iraqi government building. Light streamed into our little chapel, our rifles at our feet. The Army priest was one of us, sharing our risks and hopes.

Christmas Vacation

Later, I joined some friends to watch a movie (Christmas Vacation) set up on a laptop and screen. We split among the four of us a box of chocolate liqueurs, the first alcoholic “drink” I had had in many months.

But, the best part was simply being off for much of the day. No responsibility, no fires to put out, no urgent issues, no staff sections to cross swords with.  It was a lovely day, amidst stress, worry and fear. For me, that Christmas in a war zone, Iraq, will always stand out.

Lawyers in each of the 50 states are investigated regarding various grievances every day. Most of us respect that process. One lawyer in Connecticut respected the grievance process less than others. Bar association investigators contacted Lawyer David J. Kurzawa for information about a grievance filed against him. He told them he was too busy fishing to respond at the moment. He told the investigators they were not a priority at the time.

He went on to describe his successful fishing trip to a Maine lake. They caught 50 fish, all of which they released, except for one dinner. They cooked three fish 20 to 22 inches long. The fish were dipped in egg batter and bread crumbs, fried in peanut oil. The peanut oil will dissolve any remaining soft bones left in the fillets. They applied lemon juice to the cooked fish. The result was “to die for,” assured the lawyer. Mr. Kurzawa said he would respond to them regarding this “terrible offense” next week.

The grievance concerned two checks drawn on Kurzawa’s Trust fund, which had bounced. But, the lawyer was busy with his fish. He also had a real estate closing to get to soon. There were documents that had to be signed before he left. Right now, he said, their investigation was not a priority. He tells his children all the time that they are surrounded by idiots. It is important to teach people to THINK, he told the investigators.

He did add in a separate letter that he and math do not get along. (Many of us can commiserate). Mr. Kurzawa was first admitted to the bar in 1987 and has no history of grievance problems. (That might be about to change). See ABA Bar Journal report here.

Deborah Laufer sought to dismiss her appeal to the U.S. Supreme Court, but the court still heard oral arguments on her case. I previously wrote about her case here. Ms. Laufer is confined to a wheel chair. She has accessed websites of hotels and B&B’s for years to see if they satisfy the requirements of the Americans with Disabilities Act. The ADA requires that those websites describe the accessibility of the various hotels for persons with disabilities. If those websites do not adequately describe their accessibility features, Ms. Laufer sues them.

As I mentioned previously, Laufer ran into a problem when her lawyer was sanctioned by a U.S. District Court. Ms. Laufer was then concerned that that attorney discipline would affect her appeal. So, she submitted papers indicating she would file no more such lawsuits and wished to withdraw the current appeal.

Standing

So, on her appeal to the U.S. Supreme Court, the issue was standing. Is a person who views a website sufficiently harmed when they find a lack of accessibility information? Ms. Laufer had no intention of staying at each of hundreds of hotels and B&B’s. Can she truly say in court that is harmed? In a Fair Housing Act case, the U.S. Supreme Court upheld the right of testers to file suit. That decision in Havens Realty Corp. v. Coleman, 455 U. S. 363 (1982) said testers have standing. But, that case differed slightly. In that case, a black person and a white person both inquired about leasing an apartment. The black person was told directly that he could not rent the apartment. For Justice Thomas, that was enough difference to make the decision in Havens not applicable. Justice Thomas would have ruled against Laufer.

In any event, Justice Barrett wrote the majority opinion finding the matter as moot. In so doing, she noted that Ms. Laufer had filed hundreds of these lawsuits all across the country. She had, said Justice Barrett, single-handedly created a circuit split. Three courts of appeals have found Ms. Laufer to have standing, while another three circuits, including the Fifth Circuit, had found Laufer lacked standing to bring these lawsuits. Justice Barrett’s majority opinion vacates the decision of the First Circuit which had found Laufer did have standing. So, in effect, the Supreme Court decision upholds the district court opinion that dismissed Laufer’s lawsuit.

It is a difficult decision – as most Supreme Court cases are. Ms. Laufer is filling an important role, one not assumed by any governmental agency. Hotels and many other public buildings routinely ignore the physical requirements of the ADA. But, the whole specter of filing lawsuits with little discernible harm is troubling. In fact, the discipline of her attorney supports the narrative that Ms. Laufer was simply engaged in a profit-making enterprise, not in actual civil rights activism. That is a shame, because she filled a real need. Persons with disabilities as a group are least likely to speak up for themselves. They prefer to not make waves. Laufer was their champion, if imperfectly so.

See the decision in Acheson Hotels v. Laufer, No. 22-429 here.

A U.S. District Court in Illinois has dismissed a lawsuit filed by a small Illinois law firm. The small firm sued DoNotPay, an online site that provides contracts, offers legal advice for appealing traffic tickets and procedures for property tax appeals. It is an artificial intelligence website. According to the law firm, MillerKing, the website claims to be affiliated with licensed attorneys, but is not.

The Judge ruled that MillerKing did not show that it had standing for the suit. MillerKing claimed it suffered decreased business and suffered harm to its reputation. But, the Judge did not agree that those harms were actual harms.

DoNotPay is not licensed to practice law. So, it was also accused of unauthorized practice of law. The Court allowed MillerKing to amend its complaint and perhaps add sufficient facts to show standing.

A similar lawsuit is pending in California. But, that lawsuit was filed by an aggrieved customer. See ABA Bar Journal news report here.