String betting legal motions and dilatory appellate practice

Great for civil practice...not so much in criminal courts

In the perfectly awful 1987 movie “From the Hip”, Attorney Robin “Stormy” Weathers (Judd Nelson) is implored by his client, Banker Raymond Torkenson (Edward Winter), to stretch a simple 1 day tort case into 3 days to run up the other side’s legal fees. Unethical? Maybe. Standard legal practice? Yup.

Ask any insurance defense law firm or any of Trump’s lawyers before he ran for President — if you want to win a losing case, stretch out the case interminably. Delay every legal step, appeal every order, and wait for the plaintiff to run out of money or patience. Or both.

Of the 4,500 or so lawsuits Donald Trump faced before 2015, only a handful got close enough to trial to force Trump to settle. The rest withered and died on the docket.

Criminal cases are different. Mostly because it’s not about money (at least not primarily). Criminal cases are centered on punishment and retribution for societal wrongs. Rehabilitation is an after effect and deterrence is a failed policy objective.

And while civil courts are built on the notion of resolving disputes between parties; criminal court are built upon the timely administration of justice — delays violate the public trust. The state has a vested interest in the outcome and the accused — their part in the process is temporary and involuntary.

Ask any criminal defense attorney what their standard spiel is to accused clients and this what you’ll get:

“When we are in court — shut up (mostly for 5th Amendment reasons). It’s not in our interest to piss off the judge and in the off chance we are forced to go to trial, remember this: the judge presiding over the trial will also sentence you, if you are convicted.”

And this gets thrown in at the first or second client meeting:

“If I can find a means of getting this case dismissed I will file it as part of my regular pre-trial practice. Forget what you’ve seen on TV and the movies, neither the DA nor I is allowed to play “hide the ball”. The DA and the judge will know well in advance about any motions we intend to file, because the rules of criminal procedure are designed largely for transparency and timeliness.”

Enter Donald Trump.

While federal US District Judge Aileen Cannon (who Trump appointed to the bench) is doing Trump’s heavy lifting in the Mar-a-Lago classified documents cases, Trump’s lawyers have, in all of his criminal cases,¹ excelled at legal motion string betting.

String Betting is the forbidden practice of continuously adding to one’s bet in poker. It can happen in other table games at casinos and is viewed there as an annoyance, but in poker, it’s viewed as a kind of cheating.

Legal motion string betting is achieving trial delay through the ethically questionable practice of asking “what else can we file?” There’s little to no strategy beyond hoping to prevent a trial from occurring.

Unfortunately for Donald Trump, Manhattan Judge Juan Merchan is having none of this and the presumptive GOP presidential nominee is headed to trial beginning on the 15th of April. That case is the only sure one to be tried before Election Day.

In Georgia, Donald Trump’s lawyers are currently trying the “freedom of speech” gambit. Nevermind that particular argument has already failed for two co-defendants in that case, it’s legal lollygagging and half-assed motion practice time for Team Trump. It’s hard to imagine this case going before Election Day; but both the judge and the DA are facing electoral challenges this year, so don’t be surprised if it does happen or if it takes on a more aggressive pace after the smoke clears after November 5th.²

If Trump loses his presidential immunity appeal to the Supreme Court next month (and he most likely will), depending upon when the decision is announced; the DC Election Interference case could go this Summer. Don’t count on it though.

So far only two judges have shown little to no patience for Trump’s legal tactics, Manhattan Judge Juan Merchan and US District Judge Lewis Kaplan; the other judges have shown signs of corruption (Aileen Cannon), undue patience for legal sideshows (Manhattan Judge Arthur Engoron and Georgia State Judge Scott McAfee), or have been stymied by Trump’s lawyers’ second favorite legal tactic — dilatory appellate motion practice.

US District Judge Tanya Chutkan gets a pass on taking a firm hand with Donald Trump; because she has been out of the loop legally speaking, since Trump appealed her December 2023 ruling on absolute presidential immunity. Chutkan’s ruling, which was a blistering “no” on the issue of presidential immunity, got upheld by the DC Court of Appeals (3-0) at the end of February 2024, and is scheduled for oral argument before the US Supreme Court on April 22, 2024. A decision could be made as late as the first week of July 2024.

Trump’s dilatory appellate practice tactic has bought him 5 months for sure and perhaps as many as 8 months, if the Supreme Court drags its feet to the end of its term. If Trump wins in November, it’s a victory for what money can do in the criminal court system — render one untouchable.

1. In addition to the Florida case, Trump has criminal matters in New York, DC, and Georgia.

2. Judge McAfee could frustrate efforts to bounce him off the bench by starting the trial for Donald Trump before Election Day. This subject will likely be another post.