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Trump on Trial: Can a Client Commit Malpractice??


It’s about jury trials.

Specifically, it is about what I just saw on TV.  Donald Trump was standing outside the courthouse in NYC, where his current trial is taking place, talking about his case.  Talking too much.  Way too much.  His lawyer looked like he was about ready to keel over as he stood there behind him.

Here’s why:

Rule #1 throughout any criminal case, but especially during trial, is: Do not talk about it to anyone other than your lawyers!!  Anyone else is potentially dangerous.  Talking to the entire world?  Need I explain?  For sure the prosecution team just recorded it, and if he is ever questioned by them on cross examination?  You can bet your bottom dollar that they are going to use this.

A rule that I personally apply with my own clients in Jury trials shows how important it is to not say or do anything in public that might make you look bad.  In every case I have tried (scores), I have told my clients that, from the time they close the house door behind them in the morning until the time that they close the door behind them when they get home at night, they are “on trial”.

Who knows who might be watching?  If you are smoking and spitting outside the courthouse doors, swearing up a storm on your cell phone, a passing prospective juror might not exactly fall in love with you.  Cut off someone in traffic and glare at them?  Better hope they are not the Foreperson.

Even though you should never speak about your case publicly, if you are a bad client and do so anyway?  Avoid any details.  And NEVER say anything that might come back to haunt you.  “I’m innocent and this is all a bogus witch hunt?”  Not really OK, but at least it’s not an admission of guilt.

What I just saw is arguably an “Admission Against Interest”:  i.e. Evidence of guilt.  Mr. Trump was going into great detail (a Cardinal Sin) in front of a sea of cameras, all about actual memo lines on actual checks that were actually issued, and how the money was for “legal fees”.

The problem is that, apparently, the checks are what the case is all about.

NOTE: This post is also not about guilt or innocence.  I have no clue about that and have no access to full Discovery.  Unlike the “lawyers” on TV I do not comment on cases where I have not personally reviewed the file.  Frankly, it looks a bit complicated vis a vis how the facts apply to the New York State Law.  And besides, I am not a New York lawyer.

All I know, as a former prosecutor, is that when a Defendant makes a statement and admits something that you would need to prove beyond a reasonable doubt at trial, and the statement makes the evidence virtually “bullet-proof admissible” at trial?  Mana from Heaven.  Here was an admission that checks were written, and also that the checks were issued in order to pay “legal fees”, as stated “in the little memo line”.  His words.

Therefore, if the State offers evidence that the checks were actually written and that they were designated as being for legal fees and then they introduce additional evidence which proves that instead the checks were actually written in order to pay hush money to a porn star?  Boom.

The first half of the prosecution case, [i.e. that the checks were written and supposed to be for legal fees] has already been admitted.   By the Defendant.  On national television.  Now it can’t be denied.

All they need to prove now is that the checks were not used for actual “legal fees”.  The rest of what they need to prove? Trump just admitted all of it on national TV.

i.e.  He handed them half of their case on a silver platter.  It’s client malpractice imho.

There’s more.  It’s even more damning.  He also established that something that normally would ALWAYS be deducted as a business expense for tax purposes, was not claimed as such this one time. He said that as if it makes him look innocent.

Whoops.  WRONG!  It doesn’t.  Instead, it is clear evidence of guilt.

Think about it.  All the State has to do is bring out a pile of tax returns where tons of legal fees are being claimed as deductions.  It would show how odd it was that these special checks were NOT claimed this one single time.

Why on earth would they not be?  It’s simply not normal business practice.  I would claim legal fees as a deduction (if I ever needed a lawyer for business purposes).  Jeepers. I’m stumped.

Kidding.  The State will argue that the reason these checks for “legal fees” were not claimed was because they were being kept secret from the government!  Duh.

Not to mention that they were not valid deductions if, in fact, they were meant for hush money payments.  Those are not deductible.  Legal fees are though.

All of these admissions support the State’s “Theory of the Case”, at least as I understand their theory.  Again, this post is only about trial tactics and client conduct, not whether or not anyone is guilty or what somebody thinks about Ukraine.

It’s just the law, stewpud.

Oh, and that segues nicely to the next post:

The TV Pundits:  Legal (alleged) “Experts”? Really??

I don’t watch true crime shows, or read pulp crime fiction.  Why would I when I do it for a living, 24 / 7?  But I do admit, my guilty pleasure is watching actual trials and following along.  Too bad this one is not on TV, but there is enough spillover action to keep me entertained.  I mean, people are setting themselves on fire outside.  Good grief.

My goal is to comment on legal aspects of this circus, not the rest of it, and it seems a lot of legal issues might crop up.  It is already one of the most unusual cases I have ever seen, what with burning bodies and clients with their hair on fire.  Oops. That sounded political, but I’ll leave it.  It fits.

All said, the posts about this trial will only be about the real things going on, legally speaking, such as how jury trials work, not anything about the rest of the noise.

Kinda sick of all that to be honest.