Despite being a regular and caustic critic of the courtroom tactics and performances of Donald Trump and his lawyers, Friday’s whopping verdict against the former president in the second E. Jean Carroll civil case requires me to acknowledge that in this instance, they were right about one thing.
Team Trump’s strategic decision to seek to avoid the result of the first Carroll trial—a verdict of $5 million against the former president who was a no-show during that trial—by having him regularly appear and testify (sort of) in the second Carroll trial did indeed, bring about a different result. That result, however, was a disastrous $83.3 million verdict against the former president.
The jurors’ ability to witness up front and in person, the defendant’s grotesque, selfish, rude, and uncontrollable behavior surely made all the difference in the world.
As a decades long trial veteran, I can report that there are certain key courtroom realities that exist whether the case be civil or criminal, federal or state. One of these realities is directly relevant to today’s Trump verdict—few jurors serve their critical role with any real understanding of the law, courtroom procedures or legal terminology. So, the vast majority of jurors fall back on what they do know—human behavior—and really focus on that. This reality is exemplified by the following true story I relate in my book, The Vanishing Trial.
Many years ago, a white-collar criminal defense colleague shared his experiences in a lengthy federal trial he had recently completed. After the verdict, he and other attorneys asked the trial judge for permission to interview those members of the jury willing to make themselves available to counsel. Such post-trial post-mortems can provide lawyers with invaluable insights into what worked, what didn’t, and how the verdict was ultimately decided. While judges do not frequently grant such interviews, to my friend’s great appreciation, the judge in this case did so.
In the post-trial interview, a juror told my friend that the panel always knew, even before he opened his mouth, when his cross-examinations would be long or short. Taken aback, he asked how that could be. The juror explained that whenever he would start a long cross-examination, he would unbutton his suit jacket. When he had just a relatively few questions to ask, the jacket would remain buttoned. While my friend had been totally aware of this personal tic, the jurors were all over it.
How the Trump lawyers allowed their client to animate and underscore—in real time—the picture being painted by E. Jean Carroll and her attorneys of a coarse, unfeeling, disrespectable, and uncontrollable person is beyond understanding.
They also ignored—or were unaware of—a second, directly applicable courtroom reality. Jurors assume (sometimes incorrectly) that the trial judge is both all-knowing and evenhanded. After all, always addressed as “Your Honor,” the judge presides over the proceedings seated at a bench looming high above everyone else. Each time he or she enters the courtroom all others must stand in respect. Whenever he or she leaves the bench, all must stand yet again and not move until the judge has left.
Every time Judge Lewis Kaplan was forced to chastise Trump or forcefully repudiated something he said or did, additional, three dimensional “evidence” was offered in real time to support the plaintiff’s claims.
How Team Trump allowed their client to expose himself before the jury to Lewis Kaplan, a veteran judge famous (or infamous depending on one’s experiences) as a no-nonsense, strict enforcer of the rules in his courtroom is inexplicable.
In a recent Slate article, I opined that what happens in Judge Kaplan’s courtroom in the Carroll civil case would be an important guidepost for Judge Tanya Chutkan as to the most effective methods of keeping a uniquely uncontrollable defendant under control, with Judge Chutkan presiding over the far more significant 2020 election interference trial in Washington D.C. (That case was scheduled to begin in March but is facing likely delay due to a Trump appeal of Judge Chutkan’s rejection of his dismissal motion.)
The events and results of the second Carroll trial should also be a significant guidepost for Trump’s attorneys in the D.C. case, John Lauro and Todd Blanche—two former federal prosecutors with far more experience and skill than the Trump attorneys in the state and federal civil cases.
In short, because Lauro and Blanche’s colleagues were clearly unable to resist their client’s crazed, untethered dictates, disaster resulted—a near $100 million verdict would be considered a disastrous result for any client, even a self-professed billionaire. Lauro and Blanche replicating their less capable co-counsel’s inability to control their unruly client would surely result in yet another devastating result, this time with the stakes so much higher.
Of course, as a criminal defendant, Trump will have to appear at the D.C. trial. Given that his personal liberty will be at stake, his inability to ever acknowledge his own prior mistakes or admit personal limitations of any kind, Lauro and Blanche will surely have their hands full.