“All of these liars will be sued once the election is over,” vowed now President-Elect Donald Trump in October. This promise came after the lewd taped conversation with Billy Bush led to nearly a dozen women accusing Trump of unwanted sexual advances. Trump vehemently denied all of the claims and struck back against the accusers promising litigation. So, with the election long over, why hasn’t Trump filed those lawsuits?
Trump’s camp would want you to believe that the lawsuits cannot be pursued now because he is way too busy preparing to run the country. But, the real reason is that the lawsuits have an extremely low chance of success and would expose Trump himself to a rigorous and embarrassing Discovery process that would result in more humiliation rather than vindication.
Zero Chance of Success
Trump’s legal claims against the “liars” would be for Slander, which is the act of making a false statement damaging to a person’s reputation. The level of proof required to prove Slander is “clear and convincing evidence,” a very high standard. Truth is an absolute defense to an allegation of Slander.
Given that clear and convincing evidence is required to win and that each case is a “she said/he said” situation, the chance of Trump winning (even if it’s true that each and every accuser was lying) approaches zero. Each accuser would be able to use all of the other accusers as corroborating witnesses to prove that Trump engaged in a pattern of abusive, sexual conduct.
With these serious problems with his Slander claims, it would be unwise for Trump to file the lawsuits he promised.
Intrusive and Embarrassing Discovery Process
Putting aside the low chance of success, the other reason Trump has not filed lawsuits against his accusers is the fact that filing lawsuits would allow the Defendants’ lawyers to conduct intrusive and often embarrassing Discovery.
When a lawsuit is filed, the case does not go directly to trial. Instead, the parties engage in a formal Discovery process during which each side investigates the other side’s claims and defenses. Each party can send the other written questions to be answered under oath (Interrogatories), and each side can be forced to produce all documents that are relevant to the case. Each party can also be compelled to give a Deposition, which involves the party answering questions from the other party’s lawyer under oath in front of a court reporter and usually on videotape.
So, Trump’s dozen lawsuits would result in him sitting for a dozen Depositions. During these Depositions, Trump would be grilled not only about the specific accuser in that particular case, but also about all of the other accusers. Trump would also be confronted with video and audio of all of the other arguably sexually inappropriate comments he has made over the years, including clips that have surfaced from The Howard Stern Show. During his Depositions, Trump would likely feel as if he was the person on trial, not his accusers.
As a Trial Lawyer, I am careful to explain to my clients that filing a lawsuit is serious business. It makes sense only if you are confident that you will win the case and do much better than any pre-litigation offer to settle the case. When I represent injured accident victims, I tell them that, in a way, filing a lawsuit puts them and their family on trial. They will have to answer written questions and endure a Deposition. Their medical records will be subpoenaed and scrutinized. They may even have to be examined by a hired doctor for the Defense. Because of this intrusive Discovery process, I always warn my clients that a lawsuit is serious business and requires strong convictions.
The bottom line for Trump is that he should not (and, I predict, will not) sue his accusers.
Tim Rayne is a partner in the full-service law firm of MacElree Harvey, Ltd. which has over 35 attorneys in offices located in Doylestown, Kennett Square and West Chester, PA and Centreville, DE. Tim focuses his law practice in Car Accident, Personal Injury and Medical Malpractice cases, helping people who have been injured in accidents deal with insurance companies. Tim can be reached at 610.840.0124 or email@example.com. For more News and Information on Personal Injury law, check out Tim’s website at www.timraynelaw.com.