For those of you who don’t live in the legal world every day like I do, being a simple Los Angeles trial lawyer, a lot of the legal stuff you see going on surrounding Trump and Trump-affiliated people might seem like chaos. Well, it is chaos. It’s complete chaos. There is almost no resemblance between what is happening with Trump and the law as normally practiced among normal people in normal times. Remember, there’s a Trump Exception to all the rules and all the norms that rejects any kind of precedent and procedure, as well as simple fairness, in its pursuit of the Bad Orange Man and his allies. When you understand that, you will understand why I shake my head when people ask me my legal opinion about what’s going on. My legal opinion about what’s going on is it has nothing to do with the law at all.
Understand that what we’re seeing now are attempts to frame Donald Trump and people affiliated with him to abuse and misuse the legal system to gain a political advantage. This is nothing new. It is something scumbags have been doing for thousands of years. Remember, Caesar crossed the Rubicon with his legion because if he had left his troops behind, they were going to prosecute him into oblivion. Lawfare is nothing new – its modern practitioners just better hope they don’t end up provoking warfare, too.
But legal concepts do come up, and there is a lot of confusion out there about how the legal system works. I could write a book on it – and might – but here, I want to share a few general legal concepts with you so that some of the stuff going on becomes a little clearer. The law can be opaque, so it is often hard to understand what’s going on because the liars and scammers occasionally run head-on into people practicing law as it is normally practiced. We saw that with the idiotic idea that some clerk in Maine or the Colorado Supreme Court could decide who can be on the presidential ballot. You saw a bunch of people with fancy degrees and prestigious sinecures explaining to you how this was a brilliant legal maneuver and how this One Neat Trick under the 14th Amendment was going to keep Trump off the ballot, and BOOM! The Supreme Court, nine-zip, punted that idiocy through the goalpost of humiliation.
The law still sort of works. It doesn’t always work, but it should always work because, properly applied, the law is the thing that puts the Constitution into action. If you haven’t seen it, go watch “A Man For All Seasons” about Sir Thomas More and his struggle to uphold the law in Henry VIII’s England. More gives a famous speech where someone tells him that to get to the Devil, he would ignore all the laws, and Thomas More tells him that that’s crazy, that when he cuts down all the laws and the Devil turns around on him, where will he hide then? It’s a great question, and one our ruling class should ask itself – because the Devil will demand his due.
But it’s hard to see what’s going on here in 2024 without a program, so let me explain a few things about how the law generally works as practiced in America when Donald Trump or one of his allies isn’t involved. Now, I want to be clear about a couple of things. First, I’m not your lawyer. This is not legal advice. Don’t take it as such. I am probably not licensed in your venue, and I’m not advising you on what to do or how to do it. I’m simply explaining some basic concepts. If you have a question about the law in your jurisdiction, go find a licensed lawyer and consult him, her, or whatever other gender they identify as. What you’re getting for me here are general concepts. Nothing more.
Let me reiterate. I’m not your lawyer.
First, legal professionals talk procedure while amateurs talk facts. When somebody comes to me with a case, they want to tell me all the facts about who said what and who did what and what happened and how, and I don’t care about any of that. Well, not yet. The first thing I want to do is understand the procedural status. Procedure is essential. Where is the case being brought? We call that venue. I want to know if it’s Washington, DC, where everybody is a Democrat, or Texas, where everybody’s a patriot, except in Austin. I want to know the court. State? Federal? Who are the judges – that shouldn’t matter, but the first thing every lawyer checks is what judge the case has been assigned to. In normal cases, it is often significant. In political ones, it is often dispositive.
And I want to know about when the stuff happened. There’s a thing called the statute of limitations, and that is a hard deadline to file a lawsuit or lose your potential rights. Now, there’s a reason for a statute of limitations. Memories fade, evidence disappears, and it’s almost impossible to defend yourself against something that happened 30 years ago. You see that in the E. Jean Carroll case, where she can’t even tell you when this alleged sexual assault happened nearly three decades ago. How the hell are you supposed to defend against that? In order to get Trump, the New York legislature lifted the statute of limitations to allow her to sue. The Trump Exception strikes again! And, of course, venue matters too in that case – in New York, everybody’s a damn communist. If you had a feeling that this was scummy, you were absolutely right. This is a travesty.
We’ve seen a lot of procedural machinations in the criminal cases. We haven’t even gotten to proving anything. All this stuff about dates and hearings and motions and disqualifications is procedural. The actual fact stuff isn’t even in the picture yet. Why don’t the facts matter yet? Because you can’t have legal proceedings unless you have a rigorous set of rules for how you govern them. That includes ways to challenge faulty cases – those are what the motions to dismiss are. How you do it is as important as what you do.
Here’s how you initiate a case. Someone files a case. In civil cases, it doesn’t even have to be a good case. A wise old lawyer told me all you need to file a case is a typewriter and a filing fee, which tells you how long I’ve been practicing. But that’s true. When you see a lawsuit filed, all it means is someone’s made claims. They have not proven anything. They have just made accusations, and those are worth the paper they printed on, and sometimes not even that. In criminal cases, the standard is supposed to be a little higher because you must at least get it past a grand jury, but of course, you know the cliché – a prosecutor can get a grand jury to indict a ham sandwich. And if you did that, Chris Christie would probably defend the sandwich pro bono.
All this procedural jousting we are seeing is important because Trump is fighting several different battles. First of all, Trump id fighting the election battle. Trump doesn’t want to have these trials before the election because they are all in blue cities, and even though they have zero legal merit, he is likely to be convicted. The convictions will probably get thrown out on appeal – an appeal is what happens after a trial court decision – but that’s not going to matter for the 2024 election, where Trump will be a “convicted felon.” So, Trump wants to delay these trials until after the election. And if he’s reelected, which is looking pretty good for him right now, he can direct his Justice Department to drop the federal cases. Which he should absolutely do, and it will make the liberals wail and gnash their teeth and be generally hilarious.
But the procedural fighting is also setting up the parameters of the trial. In the procedural phase, you try to pick apart the complaint by getting some or all of it dismissed. You’re also trying to gather evidence—in civil cases, that’s called discovery, and in criminal cases, there are different proceedings. You're generally getting ready for the trial.
What’s the trial? I mean you’ve all seen them on TV, and I’ve got to tell you, they’re about 1/1000th as interesting. “You can’t handle the truth!” moments are very rare. More common are hours of drab people looking at documents and saying, “Yes, I wrote that. Yes, it says what it says.” Now, understand that the judge doesn’t generally decide who wins a trial. They can, as in the ridiculous New York AG’s baloney civil suit against Trump, but usually you have a jury. Judges generally rule on matters of law, that is, what the law is and how it applies to a certain set of facts. The jury generally decides what facts have been proven. That’s also important on appeal. Appeals usually do not challenge the findings of fact. That is, if a jury says you ran a red light, a court of appeal will probably not disturb that finding of fact. What an appeal addresses are usually questions of law. That is, did the judge apply the right legal standard?
Using the right legal standard is very important. In the Florida case, we’ve been hearing about jury instructions. Bizarrely, the leftist Twitter lawyers are in a frenzy because the judge is asking the government and the defense to both submit jury instructions on the Presidential Records Act and some other issues. You might be shocked to hear that this happens all the time. Juries have to be instructed on what the law is so they can make their factual findings. There are a lot of standard jury instructions out there that are usually used. Judges don’t reinvent the negligence or breach of contract instructions for every new civil case. But there aren’t a lot of cases going to juries on the Presidential Records Act, and the jury has to be instructed somehow. The way judges do it when there is no standard jury instruction is the court orders the parties to propose their own instructions and then uses them as the basis to craft instructions. That’s perfectly normal, despite the howling from the half-wit lawyers. I’ve warned you already in previous columns that you should never trust a social media or TV lawyer, other than me or someone I approve!
The results of trials are another issue. We’ve seen the results in the recent civil cases with these massive monetary awards against Donald Trump. This is all crazy stuff. Those numbers are insane. It’s not even close to being normal. Yeah, there are some wild jury verdicts out there, but nothing like this. These jury verdicts are obviously part of the special Trump Exception. Man, the leftists aren’t going to like it when the Trump Exception becomes the rule, and it gets applied to them in red venues. In any case, expect the appellate courts to deal with that nonsense decisively.
In criminal cases, you have sentencing. In the federal courts, there are sentencing guidelines, and it’s a whole different procedure to come up with an appropriate sentence. Right now, we’re seeing some J6 defendants actually being threatened with increased sentences because they successfully challenged their previous sentences on appeal as not being in accordance with the law. You are not supposed to be punished for successfully pointing out errors. Again, the Trump Exception is in effect. It’s really disgraceful.
Now, most cases don’t go to trial. Going to trial is unbelievably exceptional. About 97% of cases settle. We saw the recent settlement in the Matt Schlapp case, where someone accused him of harassment. Disclosure: Matt is a friend, and I have given him legal advice in the past, but I am not counsel of record on this case, and I’m only talking about what I know from open sources. Apparently, there was a settlement. People who hate Matt because he’s a conservative who likes Trump take this as some sort of admission of guilt. It’s not. Every settlement agreement I have ever written or reviewed says something to the effect of “This is a settlement of a disputed claim and not an admission of liability.” The press reports say his insurance company is paying the accuser. Insurance companies are key in civil cases. There’s usually one lurking in the background, and they have a right to settle a case against you whether you want them to or not in almost all situations. In other words, you can tell your insurance company you don’t want to settle, but the insurance company can do it anyway. After all, it is paying a ton of money for your defense (your insurance policy typically pays for your lawyer as well as any judgment against you).
In this case, the accuser issued a statement essentially retracting the entire accusation, stating that his claims were “the result of a complete misunderstanding, and I regret that the lawsuit caused pain to the Schlapp family.” So, basically, Matt Schlapp didn’t pay this guy anything from his own pocket and received what looks to me like an apology and a total vindication, something Schlapp would not have gotten even if he had won a jury trial in a blue venue. I call that a total victory, just like Ron DeSantis won over the Mouse and Trump won over the insurrectionist ballot idiocy. Never, ever, trust the regime media to tell you the truth about a conservative’s legal victory.
When you’re looking at news reports of legal matters involving Trump or Trump-friendly people, understand that you are probably not going to get an accurate story. To do that, you have to come here. You have to come to me.
Court adjourned.
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