*Published with the generous permission of Teri Kanefield. Read all of her writing here.
By Teri Kanefield
Trump scored a major loss when a jury found him liable for sexual abuse and defamation and ordered him to pay $5 million to E. Jean Carroll for damages.
He then filed a notice of appeal. Naturally, people want to know what this means and what to expect.
(And no, the double meaning of “he’s appealing” did not occur to me until I read the jokes from my social media readers 😂 From one Mastodon reader: “It’s probably the only sex appeal he ever had.”)
Take out your notebooks. It’s time for Appellate Law 101. 🤓
I didn’t watch any video clips of Trump’s lawyer announcing that Trump would be appealing, but I imagine this as a typical scenario: After the verdict is handed down, the lawyer representing the losing side leaves the courtroom, shakes his fist at the sky, and barks, “We will appeal!”
This is (usually) the whimper of a frustrated person who just lost who is likely to keep losing. Let’s start with the statistics. Here is the success rate of appeals in federal court:
Criminal Appeals: 6.9%
Private Civil Appeals:14.2%
Bankruptcy Appeals: 24.4%
Administrative Appeals: 7.8%
Even if Trump “wins” on appeal, meaning he is one of the 14.2%, the appellate court will usually send the case back to a lower court ( remand it) and order the trial court to take further action. For example:
In other words, the success rate is actually lower than 14.2% because a person can “win” on appeal and ended up losing again.
This brings me to the first principle of appellate law relevant to Trump’s case:
Appellate Law Principle #1: After you file a notice of appeal, you are still the loser. Your loss isn’t somehow delayed or abated or negated. You remain the loser until (or unless) the verdict is overturned and a verdict in your favor is entered.
While the appeal is pending, E. Jean Carroll can still try to collect on her judgment. I’ve never practiced civil litigation, but I understand that in order to avoid paying while his appeal is pending, Trump would have to put up the money in the form of a bond held by the court, which means Carroll will easily collect her money later when Trump (most likely) loses his appeal.
E. Jean Carroll sent this to subscribers this week:
In other words, she knows she is the winner even if Trump is shaking his fist and saying “I will appeal!”
Appellate Law Principle #2: You do not get a new trial on appeal.
Trials happen in the lower courts. (We can also call them “trial courts.”) Trial courts are where evidence is entered, and witnesses testify. The fact-finder (usually a jury) weighs the evidence and decides which witnesses to believe. Litigation is often competing versions of the same story. The jury decides which version is true. Appellate courts know they are not in a position to reweigh the evidence or second-guess a jury. The jury watched the witnesses testify. An appellate court didn’t.
Appellate courts mostly look for legal errors.
They do not usually consider new witnesses or new evidence.
Basically, if there is any evidence at all to support the jury’s verdict (in other words, as long as the jury didn’t come back with something completely untethered to reality) or if the jury could have gone either way, the verdict will stand.. The test is called the “substantial evidence” test and it’s a difficult hurdle for the appellant.
Appellate Law Principle #3: For most issues, the appellate court gives deference to the trial judge’s decisions.
Trial courts have a lot of discretion. If a judge has discretion, and you think the judge was wrong, it’s not enough to argue on appeal that the judge was wrong. You have to show that the judge “abused his or her discretion.”
According to Black’s Law Dictionary, abuse of discretion happens when the court’s ruling is “grossly unsound, unreasonable, or illegal.” The California Courts website warns that “This does not happen very often.”
An example of abuse of discretion would be what Judge Cannon did in Trump’s special master case. She made up law. She took jurisdiction when she had no authority to do so. That was why the 11th Circuit Court of Appeals gave her a trouncing. Nothing like that happened in E. Jean Carroll’s case.
Judges usually stay tethered to the law and they try not to make nutso decisions because they don’t like to be overturned on appeal. As I said when discussing Trump’s special master case, getting overturned on appeal is like getting a D in law school. (And “nutso” is a recognized legal term.)
Appellate Law Principle #4: It’s not enough to show the judge made a mistake. The error has to be harmful, prejudicial, or somehow (depending on the jurisdiction) rises to the level of a “reversible” error.
Furthermore, it is not enough to show the judge made an actual mistake. You have to show that the error was either substantial or somehow prejudicial.
If appellate courts overturned trial decisions every time a trial court made a mistake that wouldn’t affect the outcome, the system would collapse with the weight of all the re-trials. It would also put an unfair burden on the winner, who would have the expense of a new trial where she would probably just win again.
Expect this to take about a year.
Appellate Law Principle #5: Therefore, Never Pin Your Hopes on an Appeal
I have been warning the “INDICTMENTS RIGHT NOW” people that it’s important for the prosecution to get it right the first time. An indictment is just the beginning. Trials are unpredictable. Juries sometimes get it wrong. Judges make mistakes.
Appellate courts, however, are more predictable. Most of the time, they affirm lower court decisions.
The United States Supreme Court is not a normal appellate court. The Supreme Court generally decides big things like constitutional issues. Also, the Supreme Court receives about 10,000 petitions each year and when all is said and done, will hear about 70 cases.
So never pin your hopes on the Supreme Court, even taking your case in the first place.
When Trump was president, he was able to raise novel issues of law because a president is situated differently. The role of the president is defined in the Constitution and statutes. That’s why, when he was president and he was basically fighting other branches of government, he could get to the Supreme Court.
Trump hasn’t really accepted the fact that he is no longer the president. In the E. Jean Carroll case, he is just another guy who grabbed a woman and sexually abused her. (Appellate Courts = 🥱)
Okay, so what issues can Trump raise on appeal?
If he wins on any of these, the case would be remanded and the court would probably come to the same conclusion.
The judgment wasn’t excessive, so he’d probably lose on that. Even if he “wins” on that issue, the case would be remanded and the amount would be adjusted. He would remain the loser. He would just have a lower bill to pay.
Or, he can try to challenge the New York law (the Adult Survivors Act) that allows victims like E. Jean Carroll to sue their abusers regardless of when the incident occurred.
Generally, a statute of limitations bars claims after a certain period of time passes after an injury. The Adult Survivors Act allows a one-year window for cases to be brought beyond the statute of limitations.
Should Trump raise this issue, it would look like this:
See the problem with that? He wouldn’t be claiming he didn’t sexually assault her. He’d be claiming it should be too late now for her to raise the issue.
To succeed he would have to overturn the entire law. He’d have to argue that no woman should be able to bring lawsuits against their abusers under that law. Good luck with that. Moreover, even if he were to win on that (which would be extraordinarily unlikely) he’d still be a loser on the defamation issue, which rested on a finding that he sexually assaulted Carroll. (The truth is a defense in a defamation case, so even without being able to sue him for battery, she’d still be able to prove in court that he sexually abused her.)
See how he still loses?
Bottom line: If your lawyer shakes his or her fist and says “We are appealing!” it means that you just lost and, if it is a criminal matter, you’re probably in big trouble.
Aaand Trump defamed E. Jean Carroll again in his CNN townhall
Her lawyer announced that she may sue Trump a third time after his ‘vile’ comments. While I don’t do civil litigation, I believe that the legal doctrine of collateral estoppel means that she would not have to relitigate the same claims. The only question for the jury would be the amount of damages. So Trump can keep defaming her, and he can keep losing.
No, it isn’t about delay
A tired talking point is that Trump brings all of these appeals and complaints to “delay.” This talking point dates back to his presidency when he was, in fact, able to delay proceedings because he was president.
I maintain that he brings all of his complaints and appeals because he wants to show he’s a fighter, a tough guy who fights back against the corrupt liberal establishment that has it in for him. He uses his court filings to give his supporters talking points, to raise money, and to pretend to flex his muscles like a Strongman.
He’s a showman and these appeals are part of the show. (Before you argue, please see this mini-rant entitled “It’s not about delay. It’s about obstruction and destruction.”)
A Double-Whammy This Week for Republicans: Trump Found Liable for Sexual Harassment and George Santos was Indicted
If, prior to this week, the Republicans managed not to feel embarrassed by George Santos’s far-fetched and whacky lies, consider this sequence of events:
It is not only a sequence of events worthy of Hollywood, given Reagan’s “welfare queens” stereotype, there is also irony in a Republican man being charged with what we might call “welfare fraud.”
In the 1980s, Ronald Reagan pushed an ugly stereotype about “welfare queens.” According to this stereotype (which was proven untrue but still believed by a portion of the American public) a “welfare queen” was a Black woman who had lots of children so she could collect welfare. The stereotype was that Black mothers were lazy cheats and public assistance just allowed them to be lazy.
The Republican Party is now faced with what we might call a welfare cheat in their midst—and the welfare cheat is a Republican man.
Also, notice: Nobody had any idea that Santos was under investigation or that a grand jury was hearing evidence. We didn’t know there was an investigation until after the grand jury returned an indictment.
Remember those former prosecutors in 2021 and the first half of 2022 who told you that you could be sure that Merrick Garland’s DOJ was not investigating Trump or any of the high-level insurrectionists because grand juries always leak? Well, obviously that wasn’t correct. (And yes, those same former prosecutors are still on television telling you how to interpret the latest news about the investigations.)
Comparison of Social Media Sites
With a little help from my techie friends, I overhauled my page comparing the various social media sites. I needed help because I wanted to understand what the heck it meant that Bluesky would be “decentralizing” and using “protocol.”
If you are interested in how social media may be turning us into authoritarians and what steps we might take to prevent it, see my update, here.
And now, some Dog Content
JJ knows exactly when it is time for a walk.
He makes sure I don’t forget to bring him.