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Culture War Roundup for the week of January 16, 2023

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Does Trump sue just to fundraise?

Throughout the early history of the American legal system, if you wanted to sue anyone in court you had to follow this arcane and inconsistent labyrinth of common law pleading rules. What we today generically call "lawsuits" were pointlessly split up into "actions at law" or "bills in equity" or whatever, all of which had different pedantic rules depending on the jurisdiction you're in (for a long time, federal courts dealing with state law had to apply procedural rules that were in effect at the time the state joined the Union). When the Federal Rules of Civil Procedure were first created in 1938, the intent was to get rid of the stodgy traditional requirements in favor of something comparatively more informal. As reflected in Rule 8, all you really need to file a lawsuit is a "a short and plain statement of the claim showing that the pleader is entitled to relief" in your complaint.

This "permissive" paradigm was put to the test in front of the same guy who was responsible for writing those new rules, Judge Charles E. Clark. The 1944 case Dioguardi v. Durning is a fun read, and involves a handwritten lawsuit filed by a guy with a very questionable grasp on the English language complaining about a customs official seizing "tonic" bottles "of great value" imported from Italy. Clark ruled that "however inartistically they may be stated" the guy was clear enough to meet the new pleading standards. For a more modern example from a much more complicated case, see the complaint that was filed in the Tesla Securities lawsuit (I know nothing about this case, just picked it at random for an example). Despite the complex subject matter and the number of people involved, the complaint is only 58 pages and is structured logically enough to make it relatively easy to follow. It establishes why the court should hear the case, some background facts, and then articulates in clear detail who harmed who and why the court should do something about it.

In contrast, compare the lawsuit that Lance Armstrong filed against the U.S. Anti-Doping Agency in 2012. The Judge took one look at the PDF, saw that it was 80 pages long, and promptly dismissed it with a "I ain't reading all that" ruling:

Armstrong's complaint is far from short, spanning eighty pages and containing 261 numbered paragraphs, many of which have multiple subparts. Worse, the bulk of these paragraphs contain "allegations" that are wholly irrelevant to Armstrong's claims and which, the Court must presume, were included solely to increase media coverage of this case, and to incite public opinion against Defendants. See, e.g., Compl. [#1] ¶ 10 ("USADA's kangaroo court proceeding would violate due process even if USADA had jurisdiction to pursue its charges against Mr. Armstrong."). Indeed, vast swaths of the complaint could be removed entirely, and most of the remaining paragraphs substantially reduced, without the loss of any legally relevant information. Nor are Armstrong's claims "plain": although his causes of action are, thankfully, clearly enumerated, the excessive preceding rhetoric makes it difficult to relate them to any particular factual support. This Court is not inclined to indulge Armstrong's desire for publicity, self-aggrandizement, or vilification of Defendants, by sifting through eighty mostly unnecessary pages in search of the few kernels of factual material relevant to his claims.

Since lawsuits are already a vehicle to air grievances, it's understandable when clients/lawyers try to sneak in as many parting shots as possible. Lawsuits are endowed with an aura of gravity and seriousness that a bare press release or op-ed outlining the same grievances would lack. Unless things get *too *egregious, there's not a whole lot a judges can do to stop the practice of trying to disguise a press release under a legitimate lawsuit costume.

Back in March of last year, Trump filed a wide-ranging 108-page lawsuit against Hillary Clinton and several dozen other defendants. You can read the entire lawsuit yourself here but the basic allegation is defamation over claims/insinuations that Trump colluded with Russia during the 2016 election. The complaint was later "amended" in June to include yet more defendants, and ballooned to 193 pages in the process.

The Trump v. Clinton et al lawsuit eventually got dismissed last September. For a full accounting as to why you can read the 65-page opinion but the short summary is the lawsuit was a confusing constellation of disconnected political grievances Trump had smooshed together into a laundry list of allegations that could not conceivably be supported by any existing law. For example, Trump's lawyer Alina Habba alleged malicious prosecution without a prosecution, alleged RICO violations without predicate offenses, alleged obstruction of justice without a judicial proceeding, cited directly to reports that contradicted their claims, and on and on. None of these problems are supposed to be common knowledge, but it is *very *basic stuff any lawyer filing a federal lawsuit should either know or research before they step foot on a rake. But when the defendants in this case pointed out the problems, Habba's response was to just double down instead of correct them. My favorite tidbit was when they justified why one of the 30+ defendants, a New York resident, was being sued in a Florida court (even federal courts need personal jurisdiction established) by claiming that defendant should've known that the false information they were spreading would end up in Florida, and also that they "knew that Florida is a state in the United States which was an important one."

When someone is served with any lawsuit, they have an obligation to respond or risk losing the entire case by default. In very rare circumstances (namely with handwritten complaints from prisoners with nothing better to do), a lawsuit is so patently bogus that a defendant can sit on their laurels doing nothing, confident it will get dismissed without them having to lift a finger. Before Trump's lawsuit was dismissed, a veritable legal machinery from the 30+ individuals/corporations sued whirred into action, ginning up an eye-watering amount of billable hours in the process to investigate and respond to the allegations. The judge in this case was seriously annoyed by all this and on Thursday she imposed sanctions by ordering Habba and Trump to pay everyone's legal bills, totalling almost $938,000. You can read the 46-page opinion here.

I've written before about pretextual excuses, such as when NYC *claimed *their employee vaccine mandate was for public health reasons, but then implemented exceptions that were inconsistent with their lofty claim. I argued it's reasonable to conclude NYC was lying. Similarly, Habba may claim as a lawyer that her lawsuit was to pursue valid legal remedies on behalf of her client, but when her efforts are completely inconsistent with that goal, it's perfectly reasonable to conclude she's lying. If valid legal remedies was the real goal of the suit, even someone like me --- with no experience civil litigation --- can contemplate trivial changes which would have significantly improved its success (most obviously don't wait past the statute of limitations, don't try to sue 31 different entities all at once, don't try to sue in a court that lacks jurisdiction, don't try to sue fictitious entities, etc.). So if that wasn't the real goal, what was?

The judge in this case strongly suspects the real purpose of the (bogus) lawsuit was to use it as a vehicle for fundraising. The vast scope of characters sued matches with this explanation because while a disparate cast of defendants legally frustrated the lawsuit in the courtroom, it does make for a better headline when soliciting donations (Clinton! Adam Schiff! James Comey! Lisa Page! Peter Strzok!). Trump has a pattern of filing frivolous lawsuits (like suing the Pulitzer Prize Board for defamation for awarding NYT and WaPo) and then following up with "breaking news alerts" soliciting donations for his Save America PAC, so the timing matches up. The fundraising efforts appear to be working well, with the PAC having about $70 million on hand as of last fall.

The sanction this judge imposed is the highest by far imposed on any of Trump's attorneys. It's possible this is a coincidence, but the day after the sanctions, Trump voluntarily dismissed the lawsuit he filed in Florida (??) against New York's Attorney General. I'm assuming the judge hopes the $1 million penalty will discourage further waste of time for the courts and other potential defendants, but the fundraising mechanism I described feeds itself. The higher the sanction imposed, the more urgent the breaking news alert begging for money will be.

=edited

I've written before about pretextual excuses, such as when NYC *claimed *their employee vaccine mandate was for public health reasons, but then implemented exceptions that were inconsistent with their lofty claim.

Or, for instance, when someone writes a long comment purporting to be about the US legal system, but is really just a vehicle to take a shot at Trump.

  • -27

Sorry for the misunderstanding, the post was fully intended from the beginning to be about the $1 million sanction Trump and his lawyer received this week. As I started writing it, it made sense to include background info on pleading standards as way to showcase contrasting examples (Armstrong lawsuit vs Tesla lawsuit). Which part do you find pretextual? Would you find it helpful if I included a content warning at the top?

Edit: I apologize if my overly long introduction left you feeling duped about the content of the post. I added a content warning to make it clear what the core subject of the post is. If you have any other suggestions please let me know.

You should get a couple days ban for being so antagonistic. That edit to the original post is a shameful act for someone that's supposed to be a mod.

  • -11

@The_Nybbler believes that my post was pretextual, in other words that I was falsely claiming to write a post about the US legal system as a way to conceal my hidden purpose of criticizing Trump. I maintain that my real purpose was always from the beginning to write a post criticizing Trump, but given how long my intro about the US legal system was, I can understand why someone might potentially be mislead. Since I can't add a title to the comment I added a content warning to more explicitly signal what the post was about. What would you alternatively suggest for me to do to address The_Nybbler's concerns?

I'm not saying I agree with Nybbler. Someone behaving poorly does not excuse behaving poorly yourself. That edit's purpose is to be a petty insult, if it wasn't there'd be no reason to mention the person you're insulting. You could have easily just left the name out, but you wanted it to be insulting. I was asked to review the original post before I went into the thread and I thought it needed a warning because of the way it just called out another user seemingly for no reason. But after reading your post in response, the edit of that, and then the edit of the original post. It's just pure insult and pretending to be otherwise. I can understand banter and swipes and barbs to people with whom we disagree. But you go out of your way to humiliate and troll other users and get away with it because they made a mistake and were wrong and you are right. It's an aggressive and uncharitable trend you make a habit of and it disappoints me immensely that you can just get away with it because you do it with a smile and a bunch of links.

That edit's purpose is to be a petty insult, if it wasn't there'd be no reason to mention the person you're insulting. You could have easily just left the name out, but you wanted it to be insulting.

I understand your point about including his name and have edited it out. If you have any suggestions on how I ideally should have responded to The_Nybbler 's claim that my post was a pretext for criticizing Trump I'm all ears. It's weird to be accused of hiding a motivation I'm not hiding, so it seemed logical to respond by double-underlining the core topic of the post with a banner explicitly announcing the topic up top. How else am I supposed to respond to that kind of accusation?

But you go out of your way to humiliate and troll other users and get away with it because they made a mistake and were wrong and you are right. It's an aggressive and uncharitable trend you make a habit of and it disappoints me immensely that you can just get away with it because you do it with a smile and a bunch of links.

I remain open to receiving feedback on what I write and I genuinely don't understand how the first post is an example of trolling. I thought I was transparent when I wrote: "If I'm being fully honest, the scenario I would find the most emotionally satisfying and personally motivated towards pulling off would be where motteposting blunders haplessly into my trap and exposes himself as a complete hypocritical partisan about the standards of credibility he applies. I must admit that I did not get that, and I'll specifically give credit for things he did that were commendable." I'm not sure what is ambiguous about that or what else I'm supposed to say. What do you think is missing?

I similarly don't understand the criticism over the second link. DradisPing refused to admit they made a mistake and as far as I know this remains the case to this day. Do you think it's inappropriate to point out when someone confidently asserts false information and refuses to admit error? Furthermore, I maintain that examining why someone's mistakes happen to fall in the same direction is a topic worth examining. Which part do you disagree with?

Focusing on a single person for no reason to expose them as a bad faith actor is trolling. People are not ants in an antfarm. Not giving a person any time to respond at all before you make a top-level post detailing how wrong they are and pointing them out by name over and over is not the act of a person engaging in a debate. It's rude, tactless and unnecessarily aggressive. But it's clear to me that you are either unable to understand how your actions can affect other people or simply don't care. You wrap it all up in nice-seeming language but it's not. These are things you do to people you see as enemies. We're supposed to be having discussions and arguments with people that we may disagree with but they're still people. You are not treating people who disagree with you as people, you're treating them like they're enemies that need to be dissuaded or dismantled. Charity: from where I'm sitting you give it to no one.

You're losing me on the definition of trolling you're using. I don't see anything wrong with exposing someone's mistake, especially if I am emphatically accommodating rehabilitation ("it's fair to conclude DradisPing was mistaken. If so, I will preemptively praise them for editing their post and admitting their error."). I don't see the problem with this approach because I explicitly invite others to do the same to me. A good example of where I was scrutinized and a situation I wish happened more often is this post by @Fruck where they ask genuinely thoughtful and penetrating questions about why I had the beliefs I had. I walked away grateful for that exchange because it prompted productive introspection on my end.

If someone pointed out a mistake I made and gave me space to either correct it or justify it, I can't think of a reason why I would register that as a hostile act.