Thoughts on watching the oral argument in the Trump fraud case

When I post an article to FWIW, I generally put up a linking post on X (which you may still think of as Twitter). That's normal self-promotion, and not necessarily unhealthy.

The unhealthy part comes when I start browsing... and re-Tweeting... and liking... and bookmarking... and going into and through a myriad of rabbit holes, some of them apparently sane and informative, others obviously anything but. The really crazy ones are sometimes the most entertaining... and addicting.

Way back in 1993 Peter Steiner came up with an iconic cartoon for The New Yorker (at left) that suggested (and not for the last time) that not every Internet "expert" was what they seemed to be. And now there's 'Legal Twitter.' I don't mean to suggest that any particular account is flea-bitten... but one can sometimes get suspicious.

Lately about a gazillion Tweets have been posted about the September 26 oral arguments in the case of People of the State of NY v. Trump, No. 2023-04925. That's a link to the video of the oral argument in the preceding sentence; the YouTube video of the argument is at the end of this post.

A great many of the posts on X about the argument, many of them with clips from the argument, suggested that the New York Attorney General was 'destroyed' (or similar terms) in the argument... some suggesting that, by the end, the State was begging not to have sanctions imposed.

Um.

Actually, part of the argument concerned an appeal from sanctions against Trump's lawyers.

I know this because I watched the argument today.

I watched it because I wanted to see for myself how well or badly Trump fared in the argument.

I don't claim to be an expert on 'Legal Twitter.'

I don't have a license to practice in New York. I've never practiced in New York. I have argued a fair number of appeals, however, though only in Illinois.

And, in the course of arguing cases before an appellate bench, I developed a sense of whether I was likely to prevail... or not. (It's one of the reasons I always... well, almost always... wanted oral argument on an appeal: When I filed my last brief, whether appellee's brief, or appellant's reply, I was always convinced I had crafted a winning argument. A decision issued without argument sometimes brought with it a cruel letdown.)

I'm not saying I could always walk out of a courtroom knowing I had won or lost... well, there was one time....

*** Shimmer *** Shimmer *** Shimmer ***

How's that for special effects?

I represented the family of an immigrant from the former Yugoslavia. He came to this country in August 1998, after the repeal of the Illinois Structural Work Act. He was dead 90 days later.

He was doing rough carpentry work on a new home in Hinsdale. They were just starting to put frame of the home up on the day of my client's fatal accident; there were no internal walls yet constructed. The subfloor was in place, but no basement stairs had been installed. Instead, two large pieces of plywood covered the opening.

The plywood was nailed in place; otherwise it would have opened into the basement like a trap door. The general contractor was going to handle the installation of the basement stairs himself. He removed all the nails which had protected the opening, but hadn't moved the plywood off the opening when he was interrupted by a page. The contractor also owned a tavern in Cicero... and some men wanted to see him about the video poker machines that he had installed there. The contractor immediately dropped everything and took off. It would not do to keep those good fellows waiting in Cicero... if you know what I mean.

Concerning the condition of the jobsite that he left behind, the contractor's deposition testimony was, essentially, (1) I removed all the nails, but didn't move the plywood so that the opening could be seen; (2) I knew I'd created a dangerous situation, but I had to leave; and (3) I'm sorry I created a dangerous situation.

It was lunchtime. My man started to walk through the house to join the other workers for lunch.

He never made it. He dropped through the plywood trap door that was created by the contractor's removal of the nails, tumbling over as he fell, hitting his head on the basement floor. He never regained consciousness.

I was brought in for the appeal from the summary judgment awarded to the defendants.

That result may seem absurd the way I've laid out the facts... I hope it does... but my guy was not available to explain what happened and, in the vernacular, nobody saw nothing. Even if they did have a clear line of sight. And they did. However, nearly everyone on the job also hailed from the former Yugoslavia... there was a language barrier... and a pronounced reluctance, quite common among immigrants from former Communist countries, to talk to the police. And appellate counsel can only work with the record made in the trial court.

Still... I thought I had a case... a good case.

I don't know why the man's family came to oral argument. His widow, a couple of grown sons, some other relations... they all crowded around me after the argument was concluded, telling me what a great job I'd done.

It tore my guts out.

They did not understand how badly the argument went. The panel was not hostile or rude or anything... but, when I got up for rebuttal, the justice presiding closed his folder and pushed his chair back. He was done. And so was I.

I remember trying to break the news to the family, trying to find a way to tamp down their enthusiasm. I also remember that the decision came down in nine days.

Nine days.

*** Shimmer *** Shimmer *** Shimmer ***

Anyway, while the outcome was never as certain as it was in that case, I would typically leave oral argument with a pretty fair sense of whether I had a shot... or whether I'd been shot down. I wasn't always right, but I was usually right.

I watched the Trump appeal video to see if I could develop a sense about where the panel was going. No, I hadn't read the briefs. No, I hadn't particularly followed the trial. I certainly had not studied the record.

But, if the argument had gone the way that so many were claiming on X, I was pretty sure I'd be able to tell.

And I could not tell.

It's never a good sign when you catch your first question just as you finish identifying yourself. That happened to the New York AG here. And there's clearly some judicial discomfort about the scope of the statute in question and the amount of the damages awarded. But both sides faced pointed questions....

I guess we'll have to let the court speak for itself. When it decides to speak.

But don't take my word for it.

At this point, in this climate, I pretty much don't believe anything about anybody unless I see it for myself. See for yourself, if you have 50 minutes, and see what you think.