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Wednesday, January 18, 2017

Donald Trump and civil procedure

Donald Trump undoubtedly hates procedure, because it may interfere with his focus on substantive ends (unless procedure furthers his substantive ends--see College, Electoral). But all the litigation surrounding Trump and his businesses can be a boon for teaching and illustrating procedure. My fall Evidence exam was all Trump University. Now we have the defamation lawsuit by former Apprentice contestant Summer Zervos, alleging that Trump defamed her when he called her a liar in denying allegations that he sexually assaulted her. Merits aside, the case could be used to set-up and demonstrate a number of procedural issues.

For now, I want to focus on what the plaintiff's strategic choices tell us about diversity jurisdiction, at least from a plaintiff's standpoint. Diversity supposedly exists so the out-of-stater, forced to come into the state to litigate (I doubt Zervos could have gotten Trump into court in any other state), can find a neutral forum that will not favor the local over the foreigner. But here, a Californian filed a state-law action in New York against a New Yorker in state court.  It is worth thinking about that choice. One possibility is that Trump is unpopular in New York, so the federal forum is unnecessary. Another is that federal procedure has become so plaintiff-unfriendly that plaintiffs would rather take their chances with state procedure, even against a local. Or maybe that original assumption--federal courts are better because more free of local bias--was never true. Or if it was, it is not anymore. As I said, good discussion and/or exam fodder.

Posted by Howard Wasserman on January 18, 2017 at 07:55 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


Don't be so quick to assume the plaintiff sought a forum based on an estimation on which would be the most favorable *legal* environment. It is entirely possible that the plaintiff is seeking to maximize *publicity*, either to maximize a settlement, or to monetize the publicity directly, or is getting some funding from one of Trump's political opponents.

Posted by: M. Rad. | Jan 21, 2017 10:54:10 PM

"Summer Zervos was a restaurateur from Los Angeles fired from The Apprentice in an episode filmed in September 2005. Why would she be in Trump's company in 2007?"

Good question. Seems like something that would be in the factual allegations of the linked complaint, perhaps in paragraphs 22 et seq.

Posted by: Anon | Jan 19, 2017 5:57:34 PM

Summer Zervos was a restaurateur from Los Angeles fired from The Apprentice in an episode filmed in September 2005. Why would she be in Trump's company in 2007?

Posted by: Art Deco | Jan 19, 2017 1:34:32 PM

So the answer is no, you didn't consider it at all. Nice.

Posted by: MarcusNeff | Jan 19, 2017 6:52:45 AM

Oh for goodness sake. I have two requirements for exam characters with real-life counterparts. The first is that the names be slightly different, to remind students to focus on the facts given on the exam rather than information from other sources. The second is alliteration, as in "Defendant Donald Drumpf," known as "D" to exam-writers short on space and time. Plus, it's his family's historic name, anglicized at some point to Trump. I can't imagine he's ashamed of it.

I was rather hoping they would react by distinguishing between the test for domicile and the standard for general personal jurisdiction, and applying both to the facts I gave.

Posted by: Jennifer Hendricks | Jan 18, 2017 11:02:02 PM

So life imitates art, and it imitates exam questions too.

But some questions for Professor Hendricks: Did you think at all about how your mocking riff on Trump's name might register with your students? Were you hoping to turn your exam into a political statement? Did you consider how your GOP-voting students (you must have at least one!) would respond or react?

Posted by: Marcus Neff | Jan 18, 2017 3:47:33 PM

Impressively clairvoyant.

I always change names to match role in the story. Trump U became Drumpf U.

Posted by: Howard Wasserman | Jan 18, 2017 3:43:42 PM

My civ pro exam was about lawsuits filed against a defendant named Donald Drumpf, who was president-elect and then president. The focus was on questions of his domicile and susceptibility to general personal jurisdiction in New York and D.C., given facts about his residential arrangements similar to those of his real-life counterpart.

Posted by: Jennifer Hendricks | Jan 18, 2017 3:25:22 PM

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