Litigation and trial practice

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I wrote about a pushy judge in the Paul Manafort trial here. The judge was fussing at the prosecutor and the prosecutor fussed back a bit. Now, the judge has apologized and explained to the jury that he was “probably wrong” for criticizing the prosecutor regarding one of the witnesses. IRS agent Michael Welch had been allowed earlier to sit in the court room and observe testimony. Perhaps forgetting his previous order, Judge Ellis fussed at the prosecutors for allowing a witness to sit in the court room prior to his testimony. So, later the prosecutorial team asked the judge to explain his oversight to the jury. See The Hill news report here.

It is probably symptomatic of the poor working relationship between the judge and the prosecutors that this inadvertent mistake occurred. The judge had fussed at them so much that he assumed they had erred. He spoke too soon, apparently.

Trials are not what we see on television. The judges and juries are not always somber, listening closely and making no mistakes. This is real life. The prosecutors saw the error and asked the judge to fix it. The judge is acting strangely. When relating a ruling that the prosecutor, Greg Andres did not like. Judge Ellis said Mr. Andres should not cry. The prosecutor said he was not crying. Judge Ellis remarked that well, his eyes were watery. There was no need for that retort.

In federal court, all lawyers run into the challenge of an overbearing judge. It can happen in state court. But, generally, pushy judges are mot likely to be encountered in federal court. In the Paul Manafort trial, the judge is not necessary overbearing, but he constantly presses the two sides to avoid lengthy, tedious testimony. That pressure has led to verbal fencing between the judge and the prosecutor.

For example, there was this exchange between Greg Andres, the prosecutor and Judge T.S. Ellis:

“The day’s first significant altercation came as Andres sought to question Manafort’s former  deputy, Rick Gates,            about his travels, using his passport as a visual aid.

“Let’s go to the heart of the matter,” Ellis said.

“Judge, we’ve been at the heart. …” Andres replied, before the judge cut him off.

“Just listen to me. … Don’t speak while I’m speaking,” the judge said, sharply. He added that he didn’t see how the testimony on travel “amounts to a hill of beans” with regard to the charges against Manafort, the former Trump campaign chairman.

See Politico news report.

There have been several such instances of Mr. Andres sniping at the judge and the judge fussing at him for perceived lack of respect, not looking at the judge, rolling his eyes, etc. In a criminal trial, the prosecutor can sometimes take the judge on like that. But, in a civil trial. the jury will perceive it as bad that the judge is fussing at a lawyer. So, usually in civil trials, we do not fuss back. In any event, it is frustrating that some judges will not let you provide testimony you believe essential to your case.

Pres. Trump and AG Sessions started a policy separating children from their parents at the border last April. It lasted just a few weeks, but resulted in some 2500 children separated form their children. The policy was changed and the federal government was able to re-unify most of the families. But, there are still several hundred children who are apart from some 500 parents.A federal judge in San Diego has presided over a lawsuit filed by the American Civil Liberties Union, the ACLU. The challenge now is those 500 parents were deported. This is a transient, mobile population. It will be very difficult to find them.

In a recent filing, the Department of Justice unwisely said the ACLU could locate these parents. DOJ said with their network of NGO’s. volunteers and other resources, the ACLU could find the parents. The DOJ was apparently trying to make a joke. The ACLU has no such network. It is more or less a national law firm, composed of individual lawyers in various cities. “NGO” refers to non-governmental organizations. The ACLU has no “network” of NGO’s. DOJ knows that. I can only think they intended the comment as a joke of some sort.

The judge, Dana Sabraw, said to be a dignified sort of judge, did not rise to the bait. He simply told the DOJ that this problem, created by the Trump administration must be solved by the Trump Administration. Judge Sabraw said that sort of plan was not “acceptable.”

It is never wise to make jokes about major problems. The judge will remember that callous humor later when DOJ might wish to be taken seriously. See AP news report here.

Judge Lynn Hughes in the Southern District of Texas is a difficult judge. He harangues attorneys who appear before him. He cancels discovery, even though the federal rules of civil procedure provide otherwise. He is a difficult judge on several levels. In the case of USA v. Swenson, No. 17-20131 (5th Cir. 7/3/2018), the US Attorney prosecuted an adoption agency for fraud. Shortly before trial, the US Attorney dumped thousands of documents on the defense. There were indications that the prosecution had been hiding or withholding documents until the defense knew to ask for those specific documents. The day before trial, the parties had another conference in front of Judge Hughes. The prosecution brought yet another large pdf file of documents to the hearing. The prosecutor apologized to the court, saying she had overlooked the documents.

Judge Hughes fussed at the prosecutor. He said she is supposed to know what she is doing. He said it was better in the old days, because the prosecutors wore dark suits and blue ties. They did not let “girls” do this in the old days. The case had been continued three time already. So, the judge dismissed the case with prejudice.

On appeal, the Fifth Circuit panel found there was no Brady violation here, meaning the prosecutor did not intentionally withhold material that would have helped the defense. It noted that the district court did not explain why one more continuance – the first continuance to be requested by the prosecutor  – would not suffice. The Fifth Circuit reversed the dismissal and remanded the matter back to the district court. But, remarkably, the appellate court remanded the case not back to the same judge, but to the chief judge to re-assign the case to a different judge. That is, the court remanded the case to a different judge, not back to Judge Hughes. See the decision here.

Reassigning to a different judge is as clear a rebuke as judges get. I expect it was the comment about “girls” that concerned the court of appeals. But, Judge Hughes is always a concern for the Fifth Circuit.

Parties to a lawsuit rarely discuss sanctions, but at least in federal court, sanctions are a real, if rare, possibility. Secretary of State for the state of Kansas, Kris Kobach, learned about sanctions. Mr. Kobach was advocating for the state’s voter ID law. The federal judge hearing the matter struck it down, finding that there were only 67 instances of non-citizens registering or attempting to vote in 19 years. The court found that the state of Kansas did not show an actual problem existed.

Secretary Kobach represented the state in the lawsuit. He was the responsible party. The state of Kansas failed to comply with discovery rules several times. The Judge said Secretary Kobach chose to represent himself in this matter. As such, the responsibility is his. The judge had previously found the Secretary of State in contempt for failing to follow court orders regarding voter notices. He had also been ordered to pay the plaintiff’s attorney fees.

Mr. Kobach excluded evidence which had been requested, yet he tried to use the same evidence during trial. That is as clear a violation of the discovery rules as it gets. The judge ordered the Secretary of State to take an extra six hours of Continuing Legal Education credit hours. The case is styled Fisher v. Kobach. See ABA Bar Journal report.

You know you messed up when the judge orders you to take CLE. Most of would suffer acute embarassment over being sent to Sunday school.  But, in the midst of the culture wars, Mr. Kobach may use this as a springboard to higher office. This is the same Kris Kobach who formerly chaired the President’s so-called Commission on Voter Fraud.

Well, the Texas Supreme Court surprisd me. They rejected the City of San Antonio’s appeal regarding the fire fighter’s union contract. I mentioned in 2015 that the City seemed to be relying on an appeal to the Texas Supreme Court. See my prior post here. The Supreme Court rejected the City’s appeal with no comment. That can mean the Supreme Court did not believe the issue was worthy of their time. Or, it could mean it did not disagree with the Fourth Court of Appeals decision. We do not know what the denial of the appeal means. When a Supreme Court rejects an appeal, the rules do not require an explanation.

The issue concerned the evergreen clause in the firefighter’s contract. When the Collective Bargaining Agreement ends, the provisions stay in effect for another ten years. That sort of clause is known as an “evergreen clause.”

For the City, whatever the meaning of the denial, the result is the same. They must now deal with a fire fighter union that feels vindicated. See San Antonio Express News report.

I first wrote about Kolby Listenbee’s lawsuit here. He is suing Texas Christian University because he claims the football staff, including the head coach, bullied him into playing even though he was hurt. Mr. Listenbee was recently cut by the Indianapolis Colts. A website, frogswire.com then posted a satirical post suggesting Mr. Listenbee is fragile and made of glass. Listenbee lashed out in a tweet accusing the TCU Horned Frog fans of being fake fans. His tweet claims that TCU fans only support the team when it is winning. He later deleted that tweet.

Frowgswire appears to be an independent website devoted to Horned Frog sports. See the frogswire post here.

As I mentioned earlier, this is a difficult lawsuit for the plaintiff. Mr. Listenbee is trying to argue the coaches’ conduct toward him harmed his athletic ability. But, here he is competing for a spot on a professional football team. Too, he is basically suing football for being football. To some degree, all coaches apply pressure to players to play with some injuries. To win his lawsuit, Mr. Listenbee will have to show that the TCU coaches went beyond the normal conduct of the average football coach.

A few years ago, Coach Mike Leach was fired by Texas Tech University in part because he sent a player suffering from a concussion to go stand in a dark shed on the practice field. And, of course, many years ago, the famous coach, Woody Hayes was fired after he struck a player. In every field or industry, the norm will vary. Compared to these two cases, the TCU coaching staff was relatively benign. Mr. Listenbee will have to have something better than simple verbal pressure or a guilt trip.

Full disclosure: I graduated from TCU with the class of 1980. Yes, it is true that attendance at games is way up compared to the late 1970’s. But, his lawsuit is not about the fans. It is about football.

Yes, shifting explanations alone can show pretext. A changing explanation for a firing can serve as evidence of lying. Numerous courts have so held. See, e.g., Henderson v. AT&T Corp., 939 F.Supp. 1326, 1338 (S.D. Tex. 1996); Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 238-239 (5th Cir. 2015). So, when Pres. Trump initially said he knew nothing about payments to Stormy Daniels and that reporters should ask his lawyer Michael Cohen about those payments, that was one explanation. And, now a month later, he says he did know about the payment of $130,000 to Stormy Daniels and it was not a campaign contribution. This is a new explanation. Now, this is a shifting explanation. As the Fifth Circuit said in Burton, a jury can infer pretext from shifting explanations. Burton, 798 F.3d at 236. A jury need not draw that inference. But, it can do so.

And, as lawyers around the country are saying at this moment, Pres. Trump just made his defense much more difficult.

For decades, there has been such a thing as the attorney client privilege. In our system of justice, we depend on lawyers who represent clients zealously. To protect that representation, we have developed this attorney client privilege. Until Watergate, the privilege applied to every communication between a lawyer and his/her client. But, the Watergate conspiracy had many facets, one of which was some lawyers refusing to answer questions based on the attorney client privilege. Many of the Watergate actors were lawyers, so the privilege was invoked many times. So, among the many Watergate reforms, the American bar Association re-looked the attorney client privilege.

The ABA researchers modified the privilege. They recommended that it not apply to planned or future crimes. Yes, zealous representation is still critical to our judicial system. But, said, the ABA committee, zealous representation is not as important as preventing crime and harm to others.

So, when Pres. Trump says the attorney client privilege is dead, he is wrong. He exaggerates, of course, but even allowing for hyperbole, he is wrong. The attorney client privilege has not included crimes yet to be committed for several decades. We do not know yet what supported the search warrant for Michael Cohen. But, with all the multiple layers of review it received, it is very likely the U.S. Attorney for the Southern District of New York is looking at possible crimes, yet to be committed. See Politico news report.

And, by the way, it is not unheard of for law enforcement agencies to seize documents from successful criminal defense attorneys. It is rare to do so, but it happens. Some law enforcement agencies become convinced that some defense lawyer, especially after winning a few trials, are committing crimes him or herself. So, sure, they might investigate some criminal defense lawyers by conducting a raid at his/her office.

Pres. Trump says he has no no idea why a lawyer representing him paid $130,000 to Stormy Daniels. See CBS news report. He was asked if he knew about Michael Cohen’s payment of $130,000 to Stormy. The President answered, “no.” He added the reporter should ask his lawyer, Michael Cohen, about the payment. “Michael Cohen is my attorney,” the President added.

Those are extraordinary things to say. His lawyer, Michael Cohen, used the Trump campaign email address when he communicated with he Daniels attorney. In disclaiming any knowledge of the payment, Pres. Trump has suggested Michael Cohen took some action without his client’s consent. That exposes Mr. Cohen to ethical issues with the bar association. It also means Michael Cohen becomes a witness.

Mr. Cohen is now a witness who can be deposed about his discussions with then Candidate Trump and questioned about why he would make payments for the benefit of Trump without his consent. In fact, the President said to ask his lawyer about the payment. That makes Mr. Cohen a witness, not a lawyer any longer, in regard to that $130,000 payment. And, this answer makes Pres. Trump a key witness, as well. He will surely be deposed about what he knew or did not know about the payment to Stormy.

It was a difficult question for the President to answer. Answering yes would have caused him as many problems as no. The only safe answer would have  been to ignore the question. But, Pres. Trump cannot ignore questions. His instinct is to always push back in some way. This “push back,” however, will likely haunt him for weeks and months as Stormy’s lawsuit progresses.