Donald Trump and his family are on trial for allegedly defrauding banks and businesses. Judge Engoron has already granted summary judgment against the Trumps. That means he has ruled there is no genuine issue f fact such that a jury is needed. The only remaining issue is damages.

Mr. Trump was upset that there was no just to decide this matter. Indeed, Trump has been vilifying the judge for weeks. It is basic Litigation 101 that we should not antagonize the person(s) who will decide our fate. But, there is no jury. There has not been a jury involved in this lawsuit for some time. Some observers blame Trump’s lawyers for not checking a box. What happened?

Equitable Relief

It seems the law on which the lawsuit is based, known as Sec. 63(12) of the New York Executive Law does not address juries. Juries are not prohibited and neither are they specifically provided for. New York caselaw does prohibit juries when equitable relief is sought. Equitable relief refers to what the plaintiff is seeking. The plaintiff in this case is the state of New York via Attorney General Letitia James. AG James sought equitable relief, not relief specifically provided for in a statute or written law.

For example, when a person is inured in a car wreck, she can ask for certain things specifically provided for in a statute: medical expenses, emotional suffering type damages and punitive damages. And, lawyers also add a fourth category of damages known as “equitable relief.” Equitable relief means whatever the judge thinks is fair. In AG James’ lawsuit, she is seeking only equitable relief. She is only seeking what the Judge thinks is fair. But, her lawsuit suggests some things for the Judge to consider, such as “disgorgement.” Disgorgement means disgorge the ill-gotten gains.

Trump’s lawyers could have requested a jury, knowing they would have to litigate and probably appeal that issue. But, they chose not to. Mr. Trump complains that it is not fair that his case will not be decided by a jury – perhaps because he now realizes too late that the Judge he has excoriated will soon decide his fate. But, his real beef is with his lawyers, not with the court. See ABA Bar Journal report for more information here.

Of course, another tack would be to simply stay away from fraud or the appearance of fraud. But, that would require Mr. Trump to accept some responsibility for his actions.