Once again, Trump lawyers give us a master class in how not to litigate. Donald Trump was sued in New York civil district court for civil fraud. Attorney General James claimed the Trumps perpetrated fraud among lenders when they vastly overstated the value of their holdings. A couple of days ago, the judge presiding over that case, Judge Engoron issued his decision on AG James’ Motion for Partial Summary Judgment. The Judge granted AG James’ motion. That is an astounding result for such a high profile lawsuit. That summary judgment was granted indicates the Defendant’s case was weak. It is exceedingly rare for a high profile defendant to not settle a weak claim.
In any event, summary (i.e. “quick” or without a jury) judgment was granted. In his ruling, Judge Engoron expressed deep annoyance with the advocacy of the Trump lawyers. You know things are starting badly when the Judge titles the first section “Arguments Defendants Raise Again.” This should be Advocacy 101, but you should never press a failed argument a second time. But, here, the Trump lawyers have gone second and third times with the same, failed argument. The Judge refers to the Movie, “Groundhog Day” when he addresses yet again the frivolous argument that Trump’s Financial statements have a disclaimer that they should not be relied on. Indeed, Donald Trump himself often points to that disclaimer in his many comments about this case.
But, as the Judge pointed out, the disclaimer does not absolve Donald Trump, since the financial statements also state that Donald Trump is responsible for the representations contained in those statements. The Judge adds, wearily it seems, as he expresses annoyance at having to say this again, that there are times when a disclaimer can absolve a person of liability. But, such circumstances are not present here – not even close.
Eight pages into his decision, the Judge addresses sanctionable conduct. The Judge says he has addressed Defendant’s arguments regarding a Motion to Dismiss and James’ request for a preliminary injunction twice already [emphasis the court’s]. Both times, the matter was appealed and the Defendants lost both times. Yet, says the Judge, they are bringing up the same arguments a third time.
At this point, every trial lawyer in America is cringing. These mistakes, if they are mistakes, now lay in the first year lawyer zone. Only a first year lawyer would commit such errors that are sure to antagonize every judge.
The Judge mentions his inherent authority to sanction frivolous claims and defenses. He adds that he has already described these arguments as “borderline frivolous” upon the first time they were pressed.
At this point, we have to wonder if the lawyers are deliberately trying to antagonize the Judge. As the Judge mentions, their conduct in reiterating these arguments yet again is “egregious.”
The Judge sanctioned each of Trump’s attorneys $7,500 each. The Judge points out their many “fantasies:” restricted land is worth the same as unrestricted land; regulated rent has the same value as unregulated rent; the Attorney General does not have capacity to file suits; etc. The Judge describes these as “bogus” arguments. Even in New York, it is rare for a Judge to criticize the lack of skill among the lawyers so directly. This Judge is extremely annoyed. In Judge-speak, he is spitting nails.
The Judge noted that Donald Trump has been sanctioned in other lawsuits. Judge Engoron notes rightly that it matters not whether the silly arguments were made at the request of Trump himself or if the lawyers made these weak arguments on their own. Every lawyer has a duty to withdraw baseless claims or defenses, says the Judge. I would also add that every lawyer has a duty to not discredit himself in the eyes of the Judge, simply because the client has unrealistic expectations. As one Law Professor told us 40 years ago, if your client screws things up, at least save yourself, so you can at least retain your own credibility. Trump’s lawyers willingly sacrificed their credibility.
Repetitive weak arguments simply doom whatever valid claims a lawyer might have. My guess is those lawyers knew better. They had to. Yet, they went ahead. See the decision in New York v Trump, Et Al here.