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.
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?
- 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?
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:
- George Santos sponsored a bill to enable the government to recover fraudulent COVID unemployment payments.
- On Tuesday, George Santos was indicted for fraudulently collecting COVID unemployment funds.
- On Wednesday, the House was scheduled to vote on the bill enabling the government to collect COVID unemployment benefits
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.”
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.
Teri: I dont know if you will ever read this but I just wanted to send you a virtual hug from miami florida. i love reading your stuff. . . . you have a unique ability to take complex legal topics and make it understandable.. . . and i say this as a 31 year practicing lawyer in the florida bar.
wishing you the very best,
john m. quaranta
First, this reminds me of the old joke: “Lawyer calls her client and says ‘we got the court’s decision, and justice was done.’ The client responds “Appeal immediately!.'”
Second, in New York, does collateral estoppel attach once the trial court’s decision is entered, or does it attach only after all appeals, or times for appeal, have passed? If the former, I would think that E. Jean Carroll could file another suit on the recent comments, with a summary judgment motion as to, at least, falsity.
Thank you Teri for this clear explanation. I must say I enjoyed that you repeated ‘he is a loser’ or ‘he still loses’ many times.
And JJ looks so cute today!
I find it interesting that the media journalists continue to give Trump a platform for his ostentatiousness. While I recognize that the first amendment applies here, I see that it also provides a medium for Trump’s continuing slander and libel (cf – https://terikanefield.com/trump-is-not-trying-to-delay-he-is-trying-to-obstruct-and-destroy/). Perhaps all these other women he assaulted sexually and verbally can (and should) get on this path to recovery (pun intended). It appears to me that defamation is a prominent tool in Trump’s lexicon. It should be an expensive one as well!
The reason I like reading your posts is that you lay out the actual consequences of these lawsuits. I am constantly dismayed at how people who want to see Trump brought to justice immediately pipe up with the very excuses and flim-flammery that Trump will use to pretend he’s Teflon. Yes, that is his talking point but you don’t have to do it for him. If more people would refuse to amplify the “he didn’t really lose because (they didn’t include the rape charge, $5 million is pocket change to him, he’s not going to ever pay it anyway, its all just good for fundraising)” and instead, just relentlessly repeated – he lost, he’s a loser, justice is slow but see, it prevails….there might be a chance of having a real counter-narrative for the people who are only marginally paying attention. When the left and the right say the same things – Trump always wins in the end – that becomes the narrative. It is so frustrating, and it is why I read your take on things every time.
What’s weird is that there is plenty to be enraged about, but people actually worry about the wrong stuff. Instead of worrying about whether Trump will have to pay $5 million now or later, they SHOULD be worried about the Republicans about to wreck the economy and blame it on Biden (fixed an error. Thank you to people who pointed it out)
I think that is about just wanting to control individual stress. I do try to read it all, but the things going on that are really ripping the world apart just cause so much stress that it makes getting on with your day impossible. The only way to address that stress for me is to think about what I can do in my little piece of the world to make things better. It seems pretty small next to the big problems.
” The only way to address that stress for me is to think about what I can do in my little piece of the world to make things better.”
Isn’t that any of us can do to address the stress?
If you’re doing what you can to make your little piece of the world better, then you’re doing the best thing you can do. IMO. And my hat is off to you for that.
Yes, the real threat is the Republicans in Congress determined to cause at least a recession so they can blame President Biden.
> they SHOULD be worried about the Republicans about to wreck the economy and blame it on Trump
Blame it on *BIDEN*. 🙂
do you mean blame it on biden? Cause if not I am really confused…
re “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.”
Reminds me of Football – the ruling on the field isn’t overturned without good evidence that it was wrong. If it was close – the ruling on the field stands.
Thank you, this was very helpful. I do have a question about Trump’s fundraising while the case is being appealed. Since this case has nothing to do with his presidential campaign, it’s a civil case against him personally, why would the funds raised go into his campaign funds? Wouldn’t he have to tell his supporters and wouldn’t he not be able to use his campaign apparatus to do the fundraising? Maybe a gofundme page? Just curious.
Thank you for this explanation of appellate land!
If Ms Carroll does sue again over Trump’s repeated comments – on CNN and others that are sure to follow, then will she be able to go after any funds that he raises that were likely a result of his repeated claims, and /or in fundraising emails or texts?
Great work summarizing civil appellate law. Also agree about the tiresome talking heads. Those who cater to the anti-justice department mode stay on TV and sacrifice their integrity. While those who reflect the real world, don’t. Ultimately, the whiners become a trumpian echo chamber trying to convince that everybody and everything is bad, so trump and trumpism is no worse.
Teri,
Thank you for your enlightening commentary. As always, a joy to read.
Re the Supreme Court. I always knew it was difficult to get a hearing there, but not that the Court only hears 70 out of 10,000 cases. Wow. My question is this. As a layman it feels as if the Court is very willing to hear cases on pet causes of its majority, such as loosening gun controls, religious “liberty” for conservative Christians, deregulating business, and so forth. Do causes aligned with the majority’s hobby horses truly have an inside track? And has it always been thus?
Thanks so much for your thoughts.
I advise you to view Sen. Sheldon Whitehouse, The Scheme on youtube.
There is a concerted effort by some very rich people to shift the SC further to the right .
https://youtube.com/playlist?list=PLhyg5hj7I21i1Aqcaym9TRFrpWjPN9_ms
https://www.citizensforethics.org/reports-investigations/crew-reports/democracy-reform-blueprint-accountable-inclusive-ethical-government/
https://www.citizensforethics.org/reports-investigations/crew-reports/improving-our-democracy/#issue2
Q, will Trump have to post a bond for the 5 million to go forward w his appeal? This is common in many appeals, as long as the plaintiff asks for it. Then Carroll will b certain she did not have to chase him for the money of she wins the appeal. Thx for your posts, they are great
Thanks, Teri. This directly answered everything I wondered about and more.
> It isn’t about delay
It’s about a spoiled little boy unable to constrain his hissyfit and his lawyer doing his bidding. Someone said that NY law requires the bond be put up when the appeal is filed. IANAL
Would love to be a fly, listening to the conversations between E Jean Carroll and Roberta Kaplan, her attorney. If getting a court to award (more) damages is this easy, I hope she goes for it, if only to clip Trump’s wings (mouth), and teach him a lesson. It’s not at all about the money, it’s about turning the tables and dominating this obnoxious jerk who thinks he can get away with anything. I know she’s involved in another lawsuit, so I’m sure there’s issues of timing and how much energy she wants to put into this.
I watched an excerpt of Trump’s video deposition, where he defended his remarks in the Access Hollywood tape. Beneath all the “answers” and equivocation was a man seething with rage that someone would dare challenge him. This is an extremely dangerous man who desperately needs to be put in his place.
While I agree with you that Trump is an authoritarian and doesn’t like to lose, I would also point out that he has another motivation to keeping these cases rolling as long as possible and keeping them in the news cycle: GRIFT. He is fund-raising off this, big-time. His followers will send money every time he asks – his “HELP ME FIGHT THE CORRUPT JUDGES” posts and such make sure that whatever he owes, he’ll raise more than that. The funds can be – and are – easily laundered through the Trump Org by having the campaign rent space from his resorts and such. It’s a very short and easy step to turn campaign contributions into Trump’s personal money.
So, it may sound cynical, but I think he wins monetarily. And he still has his adoring fans. I think those two things are huge motivation for him.
Zing! An arrow of clear explanation from your knowledge to my old brain. Thanks, as always. I look forward to more losses from the big loser. They warm my heart.
JJ is awful damn cute! Ollie would be jealous if he weren’t a movie star dog himself.
Santos did actually claim to be biracial at one point!
But he hasn’t yet claimed to be a mother.
(AFAIK; willing to be corrected, as always.)
I enjoy your posts! Thank you.
Hi Teri – thank you for this post. I have three questions:
1. How long does Trump have to file a brief* after this notice of appeal?
2. In theory, is there any penalty for his continuing to repeat the same defamatory statements that the jury penalised (a) at all, or (b) at least while this matter is being appealed?
3. In the event that Ms Carroll sues him again for exactly the same defamatory statements, can a judge direct a jury that a previous jury found these defamatory, so they must be found defamatory again?
*He’s going to use the brief to introduce all the defamatory, salacious, nasty and/or irrelevant matter that Judge Kaplan ruled he could not introduce in the trial, isn’t he? Not actually a question because I know this man by now 🙁
I’d have to look up the federal rules, but in California once I was appointed (the record had already been prepared) I had 30 days from when the notice of appeal was filed. Extensions were always available, even though I never did it. But I was court appointed so in my world, they were freely granted.
Another really useful, easy to understand explained. Thanks! And now to dive in the social media update…
As I understood it, before the time starts running on filing appellants opening brief the parties must first prepare a record for the appellate court. This step can become time consuming when there are disputes about what should and should not be in the record on appeal. I believe the time for filing the first brief is somehow dependent on the preparation and filing of the record. But maybe I’m wrong.
Collateral estoppel prevents the parties and certain other lis from re-litigating an issues previously decided against such party. Generally it must have fully litigated as compared, for example, raised in the first case but not tried or determined. I would venture to say that if plaintiff were to sue Trump again for other defamatory statements she might have to prove, for example, that the statements were defamatory, we’re published and caused damages.
Thanks, Teri! So the net is Trump is a loser (we already knew that), he’s not functioning in the real world, and he’s in big trouble despite his protestations to the contrary. The sad part is that there still people who support him, and many (maybe most) of them remain willfully ignorant and accede to his grift. That’s the dangerous part. If nobody paid him or his ilk any mind, we might not have as much of an authoritarian threat.