I first wrote about threats against judges here. Since then, one Donald Trump appeared. He has threatened and publicly attacked judges almost daily. Judge J. Michael Luttig has expressed concern about how Mr. Trump has almost normalized threats against judges. As the very conservative Judge has pointed out:

“We all have to understand that from the first time the former president began his attacks, vicious attacks on the federal courts and the state courts and their individual judges, his objective was to delegitimize those courts,”

Judge Luttig explains that Mr. Trump does this, so that when and if the judges rule against Trump, his followers will see the ruling as politically motivated. Mr. Trump is the only person claiming these institutions lack legitimacy. But, so far, no one in power is calling him out on his abuse, says Judge Luttig.

Attempts to Kill Judges

Just a few years ago, Judge Julie Kocurek was ambushed at her home in Austin, Texas. The Judge was shot four times, but survived. Judge Kocurek was a criminal court judge. The man who shot her had appeared before her in a fairly routine case involving fraud. But, he was also head of a large, complex, criminal fraud scheme. He wanted to be sure the Judge did not shut him down.

In 2020, a Federal judge in New Jersey was targeted by a lawyer. The lawyer managed to kill Judge Esther Salas’s son and wounded the judge’s husband. Judges take on real risk. Mr. Trump is exacerbating that risk. As Judge Luttig says, judges and their staff should not be attacked simply for doing their jobs.

In Donald Trump’s upcoming trial in New York he has again publicly attacked the presiding judge, Juan Meehan, and his daughter. Reacting to the attack on a family member, Judge Merchan warned: a person must “draw the conclusion that if they become involved in these proceedings, even tangentially, they should worry not only for themselves, but for their loved ones as well.” 

See The Hill report here for more information about Judge Luttig’s comments.

Some of us trial lawyers enjoy watching the various Trump trials. Partly because we always enjoy watching someone else’s trial. And too,Trump’s legal machinations never cease to amuse and amaze. He disrespects judges hearing his case every day. He even attacks the Judge’s law clerk. In the litigation world, court staff are generally hands off. We all know not to fuss at them without a very, very good reason. The staff cannot push back. They can only utter a meek sorry if they commit an error. Donald Trump went way beyond litigation norms in attacking Judge Engoron’s law clerk during the trial.

Now, his chickens have come home to roost. He is having trouble finding the funds for an appeal bond. The bond is necessary, to prevent collection efforts during the appeal process. Mr. Trump can submit his appeal with or without an appeal bond. But, without the bond, there is no legal impediment to the New York AG starting collection efforts. The AG is named Letitia James. That is the same Leitita James Mr. Trump has been castigating for months.

In normal lawsuits, most Defendants do not start collection efforts during an appeal. It is a lot of bother and an appeal bond is usually a phone call away. And, too, usually, there is some minimal good will between the parties. But, Donald Trump has never met Mr. or Ms. Good Will. He does not know what they look like.

Hutzpah

Then, in a remarkable display of hutzpah, Trump asks Judge Engoron to be excused from posting an appeal bond. He would prefer to put up some real estate. He is good for it, his lawyers assure the Judge. This is the same Judge Engoron who Mr. Trump also has been insulting for weeks and months. The same Judge whose law clerk he attacked over and over. Now, Donald wants a solid from that same Judge Engoron.

There is a reason why the better trial lawyers try to not make lawsuits anymore personal than they are already. Anger, frustration, pain lie just slightly below the surface in every lawsuit. We do not need to make it worse by attacking very publicly the court and the court staff. Because, in every lawsuit, there are times when we do need a favor from the other side. Generally, the only favor is where the depositions will take place, or when one lawyer needs emergency time off for a sick family member. Or, sometimes, it’s when you want the Judge to believe you are acting in good faith and cannot raise the funds for an appeal bond.

As busy lawyers, we deal daily with the dreaded statute of limitations. State of limitations is the legal term referring to the deadline by which a lawsuit must be filed. Perhaps no area of law deals with the SOL more than Personal Injury lawyers. So, there is always some temptation to “fudge” the record if we outright miss an SOL. One Georgia lawyer, Jo Anne David-Vega gave in to temptation.

Ms. David-Vega had a large caseload which she accrued quickly in 2016. By 2019, she missed the SOL for an automobile collision. Her client called some 65 times asking for a status of his case. The client later filed a malpractice lawsuit and a grievance with the bar association. In her defense, Ms. David-Vega fabricated an email and text message supposedly showing that the client had fired her before the SOL had expired.

Different Font

The Georgia Supreme Court noted the email differed in format and font from other emails sent by the client. The email had perfect diction, capitalization and punctuation. Ms. David-Vega eventually admitted the email and text message were fake.

Ms. David-Vega expressed remorse for missing the SOL. She had accepted a new part-time job which suddenly added 150 cases to her caseload. Her parents were ill. And, she said, she had trouble saying no and had trouble asking for help. She had a good reputation with the judges before whom she appeared. A special master recommended a two year suspension of her license. See ABA Bar Journal report here for more information.

As litigators, we are often called on to summarize facts in one way or another. On appeal, we must summarize the facts of a trial below. What happens when we slant those facts? Good advocacy requires that we slant facts to some degree. But, if we go too far, then we have committed a deception on the court. That is what happened to a lawyer with Gibson, Dunn & Crutcher, a national, silk-stocking law firm.

Gibson Dunn submitted an appeals brief after losing trial in a California district court. The lawsuit concerned allegations that Gibson Dunn’s client, Zovio, Inc. and Ashford University, engaged in unfair competition and false advertising. Zovio lost the trial. The trial judge entered findings of fact. But, Gibson Dunn mis-stated those facts. In the brief, the Gibson Dunn lawyer:

  • Highlighted favorable testimony while minimizing or ignoring contrary testimony
  • Said the university sought to be a “place of opportunity” for disadvantaged students, while downplaying that the trial court found Ashford had deceived those same disadvantaged students
  • Said the role of admissions counselors was to “help and educate,” while ignoring the fact finding by the trial court that the admissions counselors were sales persons who were pressured to persuade potential students to enroll

Practice Guides

The appellate court noted the advice in a leading practice guide suggesting the brief should state fairly the critical facts, free of bias. But, the California Fourth Court of Appeals found Gibson Dunn’s brief to actually distort the facts. Yet, the appellants were not arguing sufficiency of the evidence. The facts found by the trial judge were not at issue.

The appellate court also noted the brief was peppered with statements that have no citation to the trial record. The defendant also argued that Zovio suffered financial ruin, which claims was based on material outside the trial record. The court of appeals said it was ignoring unsourced material and assertions based on evidence outside the trial record.

That is a rookie mistake, a string of rookie mistakes, to cite to evidence not actually in the trial record. It is equally blatant to not mention directly contrary facts. Many lawyers commit these errors. But, few commit this many errors in one brief. See ABA Bar Journal report here. This sort of tongue-lashing from a court of appeals is quite rare.

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.