Top Federal Lawyer analyzes Trump civil trial misstep. Former President Trump was found liable in his recent New York State civil trial for sexual assault and defamation largely based upon his own testimonial misstep. As has been widely reported, President Trump declined to appear and testify at that trial. On the one hand, President Trump appeared to have intended to create the impression that the case against him was so weak and trivial that it did not merit his time. However, President Trump was not required to attend the entire trial. Tactically, he could have chosen to appear at trial only for purposes of testifying at trial. He chose not to do so. That was a critical tactical error. He had already provided sworn deposition testimony, prior to the trial, which was videotaped. Under the applicable New York civil trial/procedure rules, the plaintiff’s attorney was allowed to designate and play at the trial portions of that deposition testimony. Presidents Trump provided several answers during his deposition testimony that advanced the claims being brought by the plaintiff and/or undermined his own credibility – including his denials regarding his alleged lack of familiarity with the plaintiff. Knowing that such deposition testimony would be introduced at trial, it was a serious error for President Trump not to at least show up at trial to testify, in order to attempt to explain away or otherwise provide context to those portions of his deposition testimony. His mere presence would have also served to assure the jury that he took the case and the allegations seriously, and that he was not thumbing his nose at the proceedings. Instead, he allowed his deposition testimony to stand and to stand unrebutted. Based upon the jury’s finding of liability against him, and its substantial award of damages – five million dollars – President Trump may very well think twice before declining to at future civil trials, and certainly those in which his deposition testimony is offered against him. Of course, the analysis underlying any decision to testify or not testify in future CRIMINAL trials – if he is ever charged – will be entirely different. President Trump will not be subject to a pre-trial deposition before any future criminal trial; nor will he be required to testify at any such trial; and importantly the burden of proof (proof beyond a reasonable doubt) will be entirely different.
Written by Michael Leonard
Leonard Trial Lawyers
May 26, 2023