Trump was Found Liable for Sexual Abuse and Defamation — and He’s Appealing. Now what?

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:

• The appellate court may order a new trial. Unless something really egregious went wrong the first time, the trial court is likely to come to the same result.
• The appellate court may order the trial court’s judgment to be modified or corrected. The appellant (person bringing the appeal) is still likely to lose but with, perhaps, a modification, like lower damages.
• The appellate court may order the trial court to reconsider the facts, take additional evidence, or consider an aspect of the case. Likely scenario: The trial court does that and comes to the same conclusion.

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.

Procedure:

• Trump will file an appellant’s brief.
• E. Jean Carroll will file a Respondent’s Brief.
• Trump will file a Reply Brief.
• The Court will schedule oral arguments.
• At oral arguments, a lawyer from each side will give a little speech and then answer questions from the justices.
• The Court will take time to think about it.
• The Court will issue a decision.

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.

• He can argue that the judge made mistakes in admitting (or refusing to admit) certain evidence.
• He can argue the judge made rulings that were prejudicial to him.

If he wins on any of these, the case would be remanded and the court would probably come to the same conclusion.

• He can argue that $5 million was excessive.

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:

• E. Jean Carroll should not have been able to bring me to trial for sexual assault this many years after the incident.

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?