New York City is a litigious society. If you have a sidewalk, someone will sue you. Build a building, and many people will sue you and everyone you may be related to within four degrees of consanguinity. Put up scaffolding around a building, and within minutes of the final nail going in, a lawsuit will arrive. Are unemployment rates up? Surprise, so are lawsuits. People with lots of time on their hands and little money seem to have instant recall of how much they were aggrieved and in pain. Ah, the inhumanity of it.
Enter E. Jean Carroll, one of those victims whose memory gets sharper the more decades removed she is from the event, even though the one thing she can’t remember is the date the most traumatic experience of her life occurred. She kind of narrows it down at various times to when she was in her 40s or 50s.
Donald Trump might be able to consult his event calendar and security payment record to respond to the question, “Where were you on the afternoon of…?” But in this trial, he can do little to answer the question, “Where were you during the decade of…?” Unless he was locked away in prison, he can’t have a serious alibi.
Equally strange was that Ms. Carroll’s story resembles a plot line from a Law and Order SVU episode about rape in the Lingerie Department at Bergdoff Goodman. Memory contamination is one of the classic problems with eyewitness testimony. Even telling your story to others, as Carroll claims she did, can contaminate it. It is a human instinct to conform the story you are telling to what your listeners expect to hear. And over time, details creep in to make it fit even more neatly. Yes, never letting the facts get in the way of a good story is an old truism.
Perhaps that whole TV crime show’s coincidence — same crime, same store, same location in the store — nixed the rape charge in the jury’s mind. This store is not Macy’s, or even Neiman Marcus. A friend who worked there can give you chapter and verse on the high rollers who shop there. The people who work there are not high rollers, and they notice everything and everyone who comes in. And why wouldn’t they pay attention to customers who can easily drop $100,000 to $200,000 in an afternoon? Security is more than some cheap CCTV out of the box from Best Buy. Alas, security was never informed by Carroll that an incident happened in their store.
And if you watch the Trump video deposition, there seems little doubt he is telling the truth on the rape charge. Strange how many commentators say Trump lied about the case on the CNN town hall, but none seem to say she lied about being raped. Can both be telling the truth on that point?
And what was Carroll’s comment all about, the one before her lawyers cleaned her up and coached her, when she told CNN in an interview that she thought rape was considered “sexy”? They immediately cut her off and went to a commercial break, but how many rape victims say that? Not many.
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So just when you thought all these legal fireworks of a tabloid-ready sex scandal were over, Attorney Roberta Kaplan informed The New York Times Thursday that her client E. Jean Carroll is considering launching another lawsuit against Donald Trump. The fact that she was awarded $5 million despite the jury rejecting her claim that she was raped is not good enough? Time for round two. World Wrestling never had it so good.
Seriously, was it really ever about the money? Glamour, excitement, and being the center of attention are strong by-products of suing a famous person. Round two would ensure that continues. And then there is Reid Hoffman, the billionaire Democrat donor and Link’d-in co-founder who funded Carroll’s lawsuit. Did he really get his money’s worth, or does he want more bang for his buck? He said he just cares about women and their rights. One hopes he was wearing his Little Lord Fauntleroy suit when he said that.
As with Trump, for Hoffman $5 million is a rounding error in his portfolio. And while splashy jury awards make the headlines, attorneys who do this for a living will tell you, depending on the court system, there are legal reviews of judgments. If the amount a jury awards is out of proportion to the standard legal value assigned to similar claims, well bless their hearts. But in some jurisdictions, the claim can then be reduced. More than one claimant has found that the headline doesn’t match the check.
And Trump being Trump, you will not be shocked to learn that on Thursday, his attorney Joseph Tacopina notified the 2nd U.S. Circuit Court of Appeals that he was appealing the verdict. There are probably a million arguments that can be made for a reversal. And the judge in the case does not have a reputation for being scrupulous in following the details of evidence and the law. He’s lost on appeals before. So the verdict is not bulletproof.
There are also some rights-related legal arguments. When a person lobbies the legislature to change the law so she can sue a named individual, as Carroll may have done, is the legislature’s action a blind application of the law or an illegal political prosecution? A hard case to make. And there is the obvious problem: if what you claim in a lawsuit is not specific enough that a reasonable defense can be mounted and/or the evidence presented does not reach a minimum threshold, can someone mount a reasonable defense? From what it seems, this case is almost 100% hearsay.
Surely if Trump qualified his statements a little more during this fight, his attorneys would sleep better at night. But what are the odds that will happen? In the meantime, let the bombast begin. It ain’t over til it’s over. Take your seats, ladies and gentlemen. Round two of Carroll v. Trump is next on the card.
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