This is second post concerning lessons to be gleaned from the proceedings in the trial to determine the damages to be awarded to E. Jean Carroll for former President Donald Trump’s defamation of her during his presidency. Part 1 can be found here.
3. “Kindness” is Not Grounds for a Continuance
Shortly before the commencement of the trial, Trump’s counsel sought to adjourn the trial so that Trump could attend his mother-in-law’s funeral. Trump did not attend the trial resulting in a verdict against him for sexual abuse and defamation in favor of Carroll and has been inconsistent in attending the various legal proceedings pending against him. He has also scheduled campaign events to overlap with the long scheduled trial.
His attorney, in seeking the continuance Trump’s counsel, Alina Habba argued it was “insanely prejudicial” for Trump to have to choose between the funeral and attending court. “I’m asking your honor to have the kindness my client deserves to be with his family tomorrow”, she said.
Judge Kaplan responded: “Indeed, the right that he has according to the Supreme Court of the United States is the right to be present either in person or by counsel and nobody is stopping him from doing either. The application is denied. I will hear no further augment on it”.
Notably, the trial had been scheduled for months, the jury was impaneled, and the parties, their counsel, and the Court were prepared to proceed. The damages trial was originally anticipated to conclude last week, however Judge Kaplan permitted the case to be continued to January 22, 2024 to allow Trump to testimony in his defense.
The illness of one of the jurors on Monday caused the case to be continued until after today’s primary in New Hampshire.
Judges generally have discretion on whether to grant a continuance of a matter. I experienced this first hand when a federal judge denied my request earlier in my career to delay the start of a trial by a day or two because my wife gave birth late the night before. No party would have been prejudiced by the delay of the bench trial, but the Court declined absent consent of my adversary.
4. Trial Attorneys Should Know the Rules of Evidence
Habba has been rebuked by Judge Kaplan a number of times during her cross-examination of Carroll.
In one instance, she sought to confront Carroll with her October 2022 deposition testimony, but failed to make a hard copy of the transcript available to the Court so that Judge Kaplan could read the testimony to himself and rule on any objections before Habba could use the testimony.
At a different time, Habba sought to read a 2019 tweet into the record and display it to the jury for the purpose of demonstrating that Carroll was being attacked by Trump supports hours before Trump called her a liar. Carroll’s counsel objected because the tweet was not in evidence. Judge Kaplan asked Habba to identify the tweet by exhibit number.
“I’m trying to get it in, Your Honor. I have to ask about it,” Habba told the judge. “Guess what?” the judge responded, “You may not read from a document that’s not in evidence.” Judge Kaplan then called a break and suggested Habba “refresh your memory about how it is you get a document into evidence.”
Following the break, Habba was again reprimanded about referring to the contents of a document not in evidence. The Court then walked Habba through how to cross-examine Carroll about the tweet, stating “I recommend that you show it to her and ask her if she recognizes it. And if she does, then you ask her what it is, and she will tell you what kind of document it is, and we’ll go from there.” Habba then attempted to do so without first marking it for identification, resulting in a further rebuke about doing it the “normal way” and “appropriately”.
The rules and procedures for introducing evidence, cross-examining witnesses, and using transcripts at trial are all well established. The experience litigator is well versed in each, as well as the presiding judge’s preferred practices with respect to the handling of transcripts and marking of evidence. The only uncertainty should be whether an objection prevents a party from introducing evidence, asking a question or using prior testimony for a particular purpose.
The evidentiary obstacles with which Trump’s lawyers have been confronted were of their own creation due to a lack of preparedness or proper understanding of evidentiary foundations and trial procedures. They are making rookie mistakes and demonstrate a lack of fundamental trial competences.