Editor’s Note: Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, “The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.”
Don’t misunderstand Judge Aileen Cannon’s decision Friday to stick to the established May date of the Mar-a-Lago trial. Though it could be read as a defeat for former President Donald Trump, as he wanted to push the date back further, in fact the defendant has just won a partial victory for his top legal strategy — dragging out the cases against him until after the 2024 election.
It’s crucially important that Cannon not buy in to his strategy, nor the judges in his three other criminal cases. (He has denied wrongdoing in all four.) Luckily, there are a few ways judges can stop his delay tactics, if they are willing to apply them.
Cannon is the Florida federal judge presiding over the case examining whether Trump mishandled classified documents at his Florida home. While she kept the same trial date, she handed Trump some of the time he sought by extending some of the case’s pretrial deadlines. The more the pretrial work bunches up against the trial date, the more likely the trial will be delayed — too much work to get done all at once.
Moreover, Trump hasn’t actually lost his bid to delay the trial date: The judge ruled the issue was “premature” to decide at this point, and noted her agreement with Trump’s complaints about the volume of evidence his lawyers must sort through before trial (his major argument for delaying). In court, one delay often invites requests for others, so Trump still has reason to hope.
The maneuvers by Trump’s lawyers are all part of familiar litigation stalling tactics. As a connoisseur of the American lawsuit, Trump knows that delaying a case can often derail it, and he is betting heavily on it. Delays cost time and money. Evidence disappears. Memories fade. Prosecutors, judges and even presidents come and go. The charges might get reduced, the fines lowered – maybe the whole thing even gets dropped.
The first way to delay a case is to drop a hailstorm of motions. First, you challenge where the lawsuit is located. For instance, Trump has claimed his election fraud case should be moved out of Washington, DC, because he can’t get a fair trial there. Next, you attack the people suing, claiming they have no recognized legal interest at stake. Trump just attacked the election fraud case on this ground. Next, you attack the way the claim was drafted. It’s defective and should be dismissed. Trump is using that one in DC and in Georgia, too.
Separately filed and heard, each motion can take months to resolve. Briefs are filed. Opposing briefs are filed. The motion is argued in court. The judge finally writes a decision, when — bang — the next motion is filed. The process starts all over.
In this way, if judges apply the usual court process, Trump can keep the cases marching in place for years — until after the 2024 election in particular. What’s more, Trump can use the number of pending motions to justify motions that he needs more time. That’s the thing Cannon just fell for: You create work and then complain about the volume of it.
Judges can thwart this by controlling the flow of motions. Parties have a right to file challenges, but judges have the right to manage the case. A judge might use the court’s inherent authority to order that challenges to its right to hear the case be combined with challenges on the legal sufficiency of the claims, attempts to move the case and efforts to change the trial date. Judges don’t routinely order such combining because most believe the parties should set the pace of the proceedings, but in complex cases, not doing so is a mistake.
Compressing pre-trial motions just takes care of the first wave of delay tactics. The longest part of lawsuits is often the exchange of evidence between the two sides — what’s known as the discovery process. Both sides demand documents from the other side. The other sides object. They take the matter to court. And so on. There are always more documents, so there are always more opportunities for motions.
To slay the discovery beast, judges should take charge of the process themselves by holding a discovery conference at the beginning of the case. Since most of the documents and witnesses the parties will require are obvious, the judge should eliminate the request and response process and simply issue a court order listing the documents that must be exchanged between the parties within 30 days and spelling out, if any are needed, what depositions of witnesses are allowed within 60 days.
In my experience, most judges don’t do this because they think they should defer to the lawyers and believe that lawyers should be able to work out their differences without a court hearing over who should gain possession of what document. This is a serious mistake and the main reason lawsuits take so much time and cost so much money.
If the parties think of something the court hasn’t ordered and the other side refuses to provide, they simply email the judge’s clerk and ask for a hearing, which can be done quickly and remotely. In particularly complex cases, the judge can schedule a couple hours each week to ride herd on the evidence gathering process, hearing and resolving the parties’ claims from the bench on a single day instead of waiting weeks or months after a hearing to decide them.
Then there’s the effort to go straight to the top and criticize the judge. Trump has attacked judges in Georgia and Washington. Some judges simply recuse themselves when challenged, resulting in more delays. Instead, when a party attacks a judge, that judge, or better yet another judge, should promptly hold a hearing forcing the accuser to present their evidence of judicial bias. Usually, there is no evidence and the motion is denied. Judge Tanya Chutkan wisely chose this course in the Washington election interference case.
Trump’s strongest timeout card is one he and other litigants invariably apply when things go badly — an appeal. It used to be that you would appeal after you lost a case in the trial court. But the new rules of asymmetrical court warfare say you appeal every major ruling at every point in the proceedings. No one can stop him from appealing unfavorable final results. Normally this appeal process would buy Trump years — until long after the 2024 presidential election. But it doesn’t have to be this way. When the national interest is at stake, appeals courts should simply expedite the appeals by hopscotching other cases on their dockets. Thankfully, some of Trump’s appeals have been handled expeditiously.
It has become routine in American courtrooms for parties to use the legal system’s penchant for deliberation and delay against itself. Judges need to open their eyes to this reality. They have the tools in the Trump cases to rectify the problem. As the old adage puts it, justice delayed is justice denied.
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