E. Jean Carroll didn’t win $83 million, Trump lost it

An old colleague and I exchanged a rolling text dialogue during the E. Jean Carroll jury trial last week.

We were riveted by Donald Trump’s performative alpha-hood. He angrily shook his head while Carroll was testifying. He furiously wrote and passed notes to his counsel. He tried to get the last word when the judge admonished him. He delivered nonstop under-his-breath insults obviously meant for jurors to hear, our favorites being “con job,” “witch hunt” and “ick.”

“Ick,” for those who didn’t follow the play by play, was what Trump blurted out when the judge described a sexual assault verdict delivered against him last year, in a different civil trial, by a different civil jury.

In May, a New York civil jury found that Trump pinned Carroll against the wall of a private dressing room at luxury department store Bergdorf Goodman, forced her pants down and forcefully penetrated her. That jury adjudicated Trump a rapist. During last week’s trial, as the judge relayed the facts underlying the previous verdict, Trump blurted, “ick.” He meant it as a slamming refutation, a show of disgust that he could ever have had sexual interest in an older woman — Carroll was 52 when Trump, in his late 40s, sexually assaulted her.)

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My texting buddy and I are both long-in-the-tooth trial lawyers who, try as we might, can’t quite quit the endorphin rush of giddy legal highs and crushing lows. Between us, we have almost 50 years’ experience in front of civil juries, enough experience to convert Trump’s performance into instant dollar signs. With every caustic quip Trump let rip in front of the seven men, two women jury, the dollar signs grew. When he noisily pushed back his chair and walked out in a huff while Roberta Kaplan, Carroll’s lead counsel, was delivering her closing argument, we texted each other, simultaneously: KA-CHING$.

When Trump sauntered back in, respectfully, and sat quietly composed for his own attorney’s closing, my friend texted, “Melania’s going to walk.” I had to hand it to my buddy for nailing it.

The plaintiff’s bar knows something about human psychology, and they understand shifting power dynamics. They know that juries are emotional creatures. Their decisions are often more informed by feelings than facts. They don’t like bullies. Mainly, they don’t like to see the judicial process insulted and degraded while they are sitting in a jury box with eight strangers, taking time away from their own families and careers, because they believe in the American legal system. Most trial attorneys know that when a defendant (or plaintiff) insults the judicial process by pretending to be above it, he is insulting the jurors who will decide his fate.

It doesn’t take a trial lawyer to intuit that Trump’s childish outbursts fell under the “don’t” column of Courtroom Antics 101. Trump’s conduct took me back to a case I tried in front of a jury in Chicago some years ago.

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Our client lived on the fourth floor of a five-story Chicago walk-up. After living in the same apartment with the same stairs for several years, one day she fell down the stairs. It was a doozy of a fall; she fractured her ankle in a complicated break that required several surgeries to fuse.

The potential damages were steep but the liability side of the case screamed, “Run.” Every major law firm she approached before she landed at our tiny two person firm turned her down. The case wasn’t winnable, they said, because she took the same flight of stairs for several years, and never fell down them before. Since the stairs hadn’t changed, it would be nearly impossible to convince a jury that the construction defect (the risers were not uniform), and not her own carelessness, caused her to fall.

The case had “loser” written all over it; sensible firms with deep pockets politely said, “No.”

We were hungry. We said yes.

The trial lasted a week. We couldn’t afford fancy props. We certainly couldn’t afford to build a model of the staircase for an expert to demonstrate exactly why every building code in the country requires uniformity of treads and risers. Our “expert,” an equally hungry architect who rented space in our office building, ended up using the staircase model we could afford: an 8 1/2 X 11 piece of white paper, folded. He used it to demonstrate the structural components of a staircase: vertical risers that rise to support horizontal treads on which your foot steps, and what happens when those measurements are out of whack.

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Opposing counsel sneered at our disadvantage. He mocked the paper model. At one point, he asked our expert to take off his shoe and hand it to him. He then intentionally crushed the paper with the shoe, just to hit home how out-maneuvered, underfunded and inferior we were. His clients, the developers, blurted out insults while our client was testifying. When our client cried on the stand because — using a wheelchair for months — she had put on over 40 pounds, defendants and their counsel found it funny.

The jabs and insults continued all week until the jury returned a whopper of a verdict in our client’s favor. The Cook County jury verdict reporter tagged it as a record, the highest verdict ever returned for the type of injury (bimalleolar fracture), in a city not exactly known for frugal juries.

I’d like to say we won that record verdict, but I’d be lying. The truth is that the defendants’ arrogance lost it.

Their blatant disrespect for us and our client (all women), as well as our poverty and our theory of liability, backfired.

E. Jean Carroll’s lawyers did a fine and credible job during last week’s trial. So did E. Jean.

But they didn’t win that $83.3 million verdict. Trump lost it.

His contempt for the rule of law was palpable, and the jury witnessed it firsthand. He demonstrated that he will not be bound by rules, proving E. Jean’s theory of the case. He insulted the process, one that jurors respected by virtue of showing up, every morning, to serve in a trial when they had other important places that they, too, needed to be.

No doubt Trump’s criminal defense teams will have a word with him on how to comport himself in his four upcoming criminal trials, which together comprise 91 felony counts. No doubt they will also fail to rein him in.

Small wonder Trump sees the judicial system as the one authority he can’t con. Small wonder he wants to destroy the rule of law rather than accept it.

Sabrina Haake is a columnist and 25 year federal trial attorney specializing in First and 14th Amendment defense. Follow her on Substack.