Judicial Notice (01.27.24): Don't Mess With Texas—Or Kaplans
An $83.3 million verdict against Trump, the passing of an eminent academic, more Cravath partner departures, and other legal news from the week that was.
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I spent a lot of time this week on domestic and parental duties, like replacing our broken dryer, working on getting passports for our boys, accompanying Harlan to piano lessons, and taking Chase to the pediatrician for his six-month checkup. I’m happy to report that he’s happy, healthy, and growing very nicely. He’s a big boy—and a very cute one, in my admittedly biased opinion.
This week’s testimonial for Original Jurisdiction comes from one of the country’s top criminal-defense attorneys, David Oscar Markus of Markus/Moss, PLLC: “David Lat is one of the OGs of legal news. From Underneath Their Robes to Above the Law and now to Original Jurisdiction, David’s writing is a must read every week… because it’s insightful, fun, and accessible. Every lawyer—from first-year associates to senior rainmaker—should subscribe immediately.” Thanks to David for his kind words, which mean a lot to me because he’s also a fellow legal blogger and podcaster (who broke some noteworthy news this week, discussed below).
Lawyers of the Week: Roberta Kaplan, Shawn Crowley, and the entire E. Jean Carroll trial team.
The big legal news of the week was the $83.3 million defamation verdict secured by writer E. Jean Carroll against Donald Trump, consisting of $18.3 million in compensatory damages and $65 million in punitive damages. This trial was only on the issue of defamation damages for Trump’s continued public attacks on Carroll; in an earlier trial, a jury found that Trump sexually abused and defamed Carroll, awarding her $5 million in damages.
It’s another big victory over Trump for Roberta Kaplan, Shawn Crowley, and their colleagues at Kaplan Hecker & Fink. As the title of this Times article by Maria Cramer and Kate Christobek aptly puts it, In Trump’s Bitter, Yearslong Brawl with Roberta Kaplan, He Keeps Losing. Here’s an excerpt from the piece (which quotes and links to my podcast interview of Robbie Kaplan in multiple spots):
[The trial] was a clash of two New Yorkers, both of them formidable combatants and talkers, but in different ways and from different worlds. Mr. Trump, 77, has a libertine past, a salesman’s flair and an extraordinary instinct for insult. Ms. Kaplan, 57, an openly gay lawyer who married her wife in Toronto in 2005, is methodical and disciplined.
But they are both shrewd, competitive power players in their respective realms, and unusually deft at using the press. They rely on their own outsize confidence to achieve their aims, making their showdowns occasionally charged—and tinged with drama.
Drama indeed: during Kaplan’s closing statement, Trump strode out of the courtroom, leading Judge Lewis A. Kaplan (S.D.N.Y.) to note, “The record will reflect that Mr. Trump just rose and walked out of the courtroom.” (Robbie Kaplan is not related to Judge Kaplan—even though they both have a talent for dealing with Trump, which is why they’re Lawyer and Judge of the Week, respectively.)
Like any good drama, the Carroll v. Trump trial elicited emotional reactions. See, e.g., the viral CNN appearance of former Wachtell Lipton partner and leading Trump antagonist George T. Conway III, who first connected Carroll and (Robbie) Kaplan and can therefore take some credit for the outcome. (Speaking of George, I’ve been telling him for years that he should launch a podcast—and a Substack newsletter too—and he finally took my advice, at least as to the podcast.)
Runners-up for Lawyers of the Week:
Plaintiff-side IP litigators have been on a roll lately. See, e.g., Jason Sheasby of Irell & Manella ($67.5 million verdict); Kerri-Ann Limbeek of Desmarais ($57 million verdict); and Natalie Bennett and Jason White of Morgan, Lewis & Bockius ($45 million verdict).
Meet the Identical Twins Who Saved the Pac-12. That’s the title of a great story for the American Lawyer by Patrick Smith, who profiles twin brothers David Silbert of Keker Van Nest and Greg Silbert of Weil, Gotshal & Manges.
‘Not Going Away’: A Star Greenberg Traurig Litigator Lost Her Voice. AI Brought It Back. That’s the title of another remarkable story for the American Lawyer, this time by Stephanie Wilkins, about Lori Cohen of Greenberg Traurig—who “achieved an impressive 58 defense verdicts before suddenly and inexplicably losing her voice.” Thanks to advances in GenAI, Cohen is back to arguing in court, even if her voice is not.
In memoriam:
One of the nation’s most controversial prosecutors, former New Orleans district attorney Harry Connick Sr.—widely criticized for his office’s extensive record of prosecutorial misconduct and wrongful convictions— passed away at 97.
One of the nation’s greatest legal minds, Charles Fried—a Harvard Law School professor for around six decades, a former U.S. solicitor general, and a former justice on the Massachusetts Supreme Judicial Court—passed away at 88. (I offered additional thoughts on Professor Fried’s passing on LinkedIn.)
Judge of the Week: Judge Lewis Kaplan.
While presiding over Trump’s civil-fraud trial, Justice Arthur Engoron of New York Supreme Court sometimes struggled to control the courtroom. But just down the street in federal court, Judge Lewis Kaplan did a better job of tamping down Trump during the two E. Jean Carroll trials.
On Thursday, Judge Kaplan allowed the ex-president to (briefly) take the stand. And it went relatively smoothly, as reported by Monica Hesse of the Washington Post:
Judge Kaplan, it became apparent from news coverage and trial transcripts, was in control of both himself and of the circumstances.… As a result, Trump was under oath for about three minutes total—deprived of the grandstanding, tangents and verbal runoff that often define his public speaking.…
[I]n this trial, Trump was not able to thwart the rules of the courtroom. Yes, he might have stormed out of the room in the middle of closing arguments, but the jury would still hear closing arguments. Yes, he could hold news conferences, but those would be out of earshot for the jury deciding the outcome of his case.
The legal system managed to do what debates, news media, primary challengers, voters and democratic norms had been ill-equipped to do: Cut his mic.
Judge Kaplan also did a fine job of reining in Trump’s legal team (and, occasionally, Carroll’s). Collected Kaplan quips are available at the ABA Journal.
Other judges in the news, both in the U.S. District Court for the District of Columbia:
Judge Christopher “Casey” Cooper heard oral argument on the Federal Circuit Judicial Council’s motion to dismiss Judge Pauline Newman’s constitutional challenge to her suspension. He seemed sympathetic to the argument that the case against her—handled by colleagues with whom she has messy personal and professional relationships, making them far from impartial—should have been transferred to another circuit.
Judge Royce Lamberth, a Republican appointee (Reagan), told us how he really feels about Republican politicians offering “meritless justifications of [the] criminal activity” committed during the January 6 attack on the Capitol.
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