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Notes -
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:
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
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.
It's less about general criticism, and more that this is ymeskhout's specific hobby horse that has been flayed for years at this point, and regularly comes with standards called for against Trump that were not followed or applied (in general or by ymeskhout personally) on the lawfare against Trump. As with other pet topics, it repeats old themes to the point of evaporative cooling, which then leverage's ymeskhout's bad habit of dismissing/forgetting/claiming prior engagements on points either didn't occur or have been dismissed, for lack of an engaged opposition to engage otherwise.
As far as Trump-related lawfare goes, ymeskhout's a partisan and an old one at this point. At this point I only pay attention when he starts being petty towards people calling him out, like how this time he edited-in a callout- against The_Nybbler and then edited it out after being called out for it.
You're not wrong, but if we modded everyone who flays dead horses, we'd have a lot fewer regulars.
(I like his posts because he explains law stuff in a lawyerly way, even if he is a bit cute sometimes when specifically criticizing Trump. But his theory that Trump is engaging in lawfare as a fundraising project does not seem unreasonable to me.)
Really though the first three meaty paragraphs are wholly unnecessary to the post. I don’t think that should be subject to moderation but should be discouraged. Part of “speaking plainly” is getting to the point.
I do often wonder if I am overexplaining things. Because of my job, I don't think I am well calibrated on how much non-lawyers need/want something explained. I'm a nerd about minutiae like the history of civil procedure and personally find the subject interesting so when I started writing about a "bad" lawsuit, it seemed relevant to include some background on what makes a "good" lawsuit. The point, one which I probably should've been clearer about, is that we used to have this very formal and stodgy standards for how lawsuits are worded but that changed in favor of something less formal. The intent was to encourage people to speak more plainly, and I showcased the Dioguardi case to highlight how low the bar was. The risk with less formal standards is that people might ramble on, and so I thought it was relevant that courts want you to get to the point when you file a lawsuit.
All those things combined (less formality, preference for short and plain statements) showcase the challenge judges have with strictly policing the gratuitous parting shots lawyers/clients include in their lawsuits. So towards that end I highlighted Armstrong's example as a rare case of a lawsuit being dismissed for being too long, as a way to illustrate the limits of what judges are willing to put up with. The point was to set the stage for how Trump's 193-page lawsuit should be evaluated. I think if I just linked you a 200 page PDF and said "this is bad", few people would understand why.
With all that said, do you still think the intro was totally unnecessary?
I think your post is very good. It flowed well and the order of presentation made sense to me (setting the legal context up first--it could have been shorter but I greatly appreciated the history lesson; it's funny how much understanding you can get from finding out that things used to be done very differently, or are done differently in other places).
FWIW I'm not sure that asking everyone for more explicit feedback is worthwhile. I think there are multiple comments in this thread that are really desperately scrounging for a criticism and aren't engaging in good faith. Asking them what they want is pointless, because what they really want is for their opponents to go away, but they can't really say that.
Thanks, I still think asking for feedback is worthwhile because it gives people the opportunity to rebut the conclusion that they're only upset because I criticized something they like. If they refuse to do so, that's on them. If they provide helpful feedback, then it's a win for both of us.
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Yes. Because it wasn’t really about pleading. The issue at hand is lawfare. That is, the rules relating to pleading don’t really implicate why Trump lost and lost “bigly.” The second part is interesting on its own which is you (and seemingly the court) think Trump is using the court for extralegal reasons. But hey, thanks for the free content (I don’t mean that sarcastically — my comments are just my two cents).
On the other hand, I haven’t done Civ Pro since my 1L year (in a transactional practice) so perhaps not the target audience.
We might ultimately disagree on this point but I still would be interested in any thoughts you might have. How the pleading was structured seems core to my argument that it was a pretextual lawsuit from the start. I can't read Trump or Habba's mind, but I can look at the pleading and immediately notice some red flags which are inconsistent with "good faith lawsuit".
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Usually discouragement comes in the form of downvotes and feedback, which he's getting plenty of. Generally I don't think it's the mods' role to discourage prolixity.
Agreed — shouldn’t be a moderation point.
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