NEW YORK–(ENEWSPF)–November 10, 2016
President Elect Donald Trump (left), Who Is Also 92% Owner of Trump University, and Federal Judge Gonzalo Curiel (right), Who Presides Over Two Class Action Lawsuits Accusing the Putative University and Mr. Trump of Fraud and Racketeering
In the Trump University fraud and racketeering class actions pending in federal court in San Diego, Judge Curiel today denied President Elect Donald Trump’s motion for a blanket exclusion of evidence of statements Mr. Trump made during the campaign. See abcnews.go.com/… and fortune.com/… Mr. Trump’s lawyers had argued that such statements are irrelevant and might prejudice a jury. Lawyers for the certified class of Trump University students countered that the evidence is relevant to Mr. Trump’s credibility as a witness.
Judge Curiel ruled that because Mr. Trump had failed to specify what specific statements he wanted to exclude, the Court would rule separately on the admissibility of each offer of proof at trial.
Generally, prior statements, though otherwise irrelevant to a pending matter, are admissible to impeach a witness’s other testimony. Put differently, if a witness testifies to “X,” and previously stated “not X,” then the jury will be permitted to hear the prior statements.
Judge Curiel also ruled that Mr. Trump would be allowed to testify by videotape and need not show up in person. Under this often-used procedure, the camera is generally focused close-up on the witness, as his lawyers elicit direct testimony and his adversaries (here the lawyers for the class of those who paid Trump University tuition) cross-examine him. The videotape is then played by the jury, which watches as if it is in a movie theater. It is the same technology as is used in a videotaped deposition, except that it is taken specifically for use at trial as though the witness were there in person.
While he will entertain a new motion to delay trial until January, Judge Curiel stated that he is disinclined to grant it. The new motion is based on the argument that Mr. Trump will be busy during the transition of power, compelling the rhetorical question of whether he plans not to be busy after his inauguration. Thus, if the case does not settle, the trial will begin on November 28 with the selection of a jury of nine from a pool of perhaps 100 to 200 potential jurors; that process will likely take a day or two, and then the trial begins.
Judge Curiel encouraged settlement talks. Significantly, Mr. Trump’s lawyer, Daniel Petrocelli, said “we are all ears,” while the class’s lawyer, Patrick Coughlin, discouraged such hopes of resolution, stating that the parties were “miles apart” in previous discussions.
In related rulings today, Judge Curiel also held that Mr. Trump’s lawyers could not tell a jury that Trump University had a 98% approval rating from its former students, ruling that such ratings are irrelevant to whether the Mr. Trump or his University deceived the students.
Those are the facts. Here is my take.
These are sober, impartial rulings and cannot give the President-Elect much comfort.
I doubt that the trial will be postponed if settlement efforts fail.
As I posted twice before, this is not a case of a mismatch of legal firepower; the firm representing the certified class of allegedly defrauded students is in the very top rank among commercial class action law firms, and no one can claim a greater record of accomplishment on behalf of defrauded class members in other cases. This plaintiffs’ class action firm does not have a record of settling easily or early — in the parlance, they are not “Pilgrims,” i.e., Early Settlors. If Mr. Trump is not willing or able to part with tens of millions of dollars, this case is not going to settle. Moreover, imagine the fun and fame the plaintiffs lawyers are going to have trying this case; one in my profession and specialty can live 10,000 lifetimes and never get such an opportunity.
The videotape is no advantage for Mr. Trump — such a big screen effect if anything magnifies a witness’s demeanor, and the jury will see every orange bead of sweat.
Now just imagine the spectacle — a President-elect on trial, albeit a civil trial, accused of civil fraud and racketeering. Imagine if he is held liable. Please fasten your seat belts.
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