Mitch Darling: An Apprentice Sues Trump for Defamation

Summer Zervos

Donald Trump was sued yesterday for defamation by a former Apprentice contestant, and it is clear he will have his hands full with this one.

Suit was brought by Summer Zervos. She claimed (along with many other women) during the election campaign that Trump sexually assaulted her back in 2007, and he called her a liar for having said so. So, the statute of limitations having expired for assault, she sued for defamation on his recent denials.

The same tactic was used against Bill Cosby, using the denial of old assault claims as a means to bring a defamation action.

She is represented by “celebrity attorney” Gloria Allred, who last appeared on my blog in 2009, and not in a good way. Calling her a publicity hound would be an insult to hounds everywhere.

Today’s Exhibit A is the complaint she apparently drafted, and I say apparently because if you read the first few pages, it doesn’t look anything like a legal pleading. (Zervos v. Trump)

It is a scream for publicity. A howl for attention. Perhaps, in some bizarre way, she is perfect for Trump — two people who will stop at nothing until they get the cameras turned on them.

For the non-lawyers checking in, a complaint is supposed to have “plain and concise statements” in consecutive paragraphs. They are supposed to have, as much as practicable, a single allegation in each one.

Lawyers are kinda orderly like that. Because it makes it easy to admit or deny allegations and the court can then figure out what actual facts or issues are in dispute.

But the complaint, as written, is a rant. It has been used for an improper purpose, to deliberately put inflammatory material in it for the purposes of garnering press.

It is also a lost opportunity. A smart lawyer would put in simple statements, see if Trump denies them, and then cross-examine him on those denials. If done right, this can be very effective. Because if a defendant denies something he should admit, he has now done it with his counsel by his side. Not only is the defendant tarnished, but so is the lawyer.

If the complaint was designed for strategy, it would be only 1/3 as long, setting forth: This is what happened, and these are the words that Trump used to lie about it. As written, it is now impossible for Trump to admit or deny almost every single paragraph due to the drafting. And that is a bonus for Trump.

While that golden opportunity is lost, there is other material in there that will be fought over tooth and nail in the early going. Such as proving the falsity of comments related to other women. Like this Trump tweet:

“Every woman lied when they came forward to hurt my campaign, total fabrication. The events never happened. Never. All of these liars will be sued after the election is over.”

This can be a real problem for Trump, as he potentially brought other women into the suit as witnesses. This is not a place he wants to be, for while he may be able to attack this particular plaintiff as a fabricator (‘Look, she kept coming back to me, over and over again!’) that is more difficult with more witnesses.

In New York, parts of pleadings can be struck for unnecessarily putting “scandalous or prejudicial matter” in them (CPLR 3024). While it is highly unlikely that a court would kill the whole suit, of course, given that we have liberal pleading requirements that focuses on putting the defendant on notice of the facts, this could be an early focus.

Another defense argument may be that the conduct of putting immaterial comments and opinions in the complaint was done for an inherently improper reason, and that could theoretically be sanctionable under our court rules. (While it would be a rare court that grants sanctions in New York, I expect a Trump lawyer to go on the offense.)

The response would not doubt be that it is impossible to harm Trump with the allegations, even if some of the material is irrelevant or that the complaint suffers from prolixity. In other words, no harm, no foul. While it’s a crappy complaint from a lawyer’s perspective, this would be the better of the two arguments.

But the reason to go after the manner of filing the complaint is that this doesn’t appear to be a case likely to be dismissed outright by the court, but rather, one that will go through discovery. And that means the deposition of Donald Trump on his conduct and comments. And because the complaint references other women as well, the discovery would be quite wide-ranging.

If Trump can somehow force the complaint to be modified, he could conceivably try to limit discovery when it comes to his conduct toward women other than the plaintiff.

One last thing about Trump’s eventual deposition: He can’t filibuster his way through the day with word salad answers and hope that it’s done. New York state court, where this was filed, doesn’t have a one-day time limit on depositions.

I said months ago that Donald Trump was a one-man-bar-exam. Everything he does ends litigiously. It doesn’t appear that this will stop anytime soon.