E. Jean Carroll didn’t win $83M. Trump lost it.
An old colleague and I exchanged a rolling text dialogue during the E. Jean Carroll jury trial last week.
We were riveted by Donald Trump’s performative alpha-hood. He angrily shook his head while Carroll was testifying. He furiously wrote and passed notes to his counsel. He tried to get the last word when the judge admonished him. He delivered nonstop under-his-breath insults obviously meant for jurors to hear, our favorites being “con job,” “witch hunt,” and “ick.”
“Ick,” for those who didn’t follow, was what Trump blurted out when the judge described a sexual assault verdict delivered against him last year, in a different civil trial, by a different civil jury, that adjudicated Trump a rapist. As the judge described the previous verdict, Trump blurted, “ick.” He meant it as a slamming refutation, a show of disgust that he could ever have had sexual interest in an older woman.
My texting buddy and I have almost 50 years’ experience in front of civil juries, enough experience to convert Trump’s performance into instant dollar signs. With every caustic quip Trump let rip in front of the seven men, two women jury, the dollar signs grew. When he noisily pushed back his chair and walked out in a huff during Carroll lawyer’s closing argument, we texted each other, simultaneously: KA-CHING$.
When he sauntered back in and sat quietly composed for his own attorney’s closing, my friend texted, “Melania’s going to walk.” I had to hand it to my buddy. He nailed it.
The plaintiff ’s bar knows something about human psychology, and they understand shifting power dynamics. They know that juries are emotional creatures. They don’t like bullies. Mainly, they don’t like to see the judicial
process insulted while they are sitting in a jury box with eight strangers, taking time away from their own families and careers, because they believe in the American legal system. It doesn’t take a trial lawyer to intuit that Trump’s childish outbursts fell under the “don’t” column of Courtroom Antics 101.
Trump’s conduct took me back to a case I tried in front of a Chicago jury some years ago.
Our client lived on the fourth floor of a five-story Chicago walk-up. One day she fell down the stairs. It was a doozy of a fall; she fractured her ankle in a complicated break that required several surgeries.
The potential damages were steep but the liability side of the case said, “run.” Every major law firm she approached before us
turned her down. The case wasn’t winnable, they said, because she took the same flight of stairs for several years, and never fell down them before. Since the stairs hadn’t changed, it would be nearly impossible to convince a jury that the construction defect (the risers were not uniform), and not her own carelessness, caused her to fall.
The case had “loser” written all over it; sensible firms with deep pockets politely said, “No.”
We were hungry. We said yes.
We couldn’t afford fancy trial props. We certainly couldn’t afford to build a model of the staircase for an expert to demonstrate exactly why every building code in the country requires uniformity of treads and risers. Our “expert,” an equally hungry
architect in our building, ended up using the staircase model we could afford: an 8 ½-by-11 piece of white paper, folded. He used it to demonstrate the structural components of a staircase: vertical risers support horizontal treads on which your foot steps, and what happens when those measurements are out of whack.
Opposing counsel sneered at our disadvantage. He openly mocked the paper model. At one point, their lawyer asked our expert to take off his shoe and hand it to him. He then intentionally crushed the paper with the shoe, just to hit home how out-maneuvered, underfunded and inferior we were. His clients, who were builder-developers, sneered while our client was testifying (like Trump). When our
client cried on the stand because — wheel-chair bound for months — she put on over 40 pounds, the defendants found it funny.
The jabs and insults continued for a week-long trial that felt like a year. Then the verdict came back.
The Cook County Jury Verdict Reporter tagged it as a record, the highest verdict ever returned for the type of injury (bi-malleolar fracture) in a city not exactly known for frugal juries.
I’d like to say we won that record verdict, but
I’d be lying. In truth, the defendants’ arrogance lost it. Their blatant disrespect for us and our client, our poverty, and our theory, backfired.
E. Jean Carroll’s lawyers did an outstanding job during last week’s trial.
They were credible. So was E. Jean.
But they didn’t win that $83.3 million verdict. Trump lost it.
His contempt for the rule of law was palpable, and the jury saw it. He demonstrated that he is not bound by rules, thus proving E. Jean’s theory of the case. He insulted the legal process — one that jurors respected by showing up every morning, to serve in a trial when they had other important places that they, too, needed to be.
Small wonder Trump sees the judicial system as the one authority he can’t con. Small wonder he wants to destroy the rule of law rather than accept it.