Could attorneys representing poor-to-middle-class defendants successfully use Trump-style legal defense tactics?

In My Humble Opinion
1

This is going to be kind of a scattershot Factual Question because it gets into different jurisdictions, different rules, etc. And of course the difference between criminal trials and civil trials will have an effect.

Succinctly:

Could Trump-style legal-defense tactics be used successfully by attorneys representing defendants (civil or criminal) of considerably lesser means than Donald Trump?

Scenarios I was mulling:

  • A public defender is retiring in a month, and on a lark decides it would interesting to attempt kind of a wild-haired kitchen-sink defense of her next client, a person accused of car theft (a felony hot-wire job, but no weapons charges or anything aggravating).

  • A middle-class white-collar worker is accused of stealing money from their employer. The evidence against this worker is not quite open-and-shut, but reasonably solid. The white-collar worker can’t afford a celebrity lawyer, but has scraped together enough to pay a family-friend “regular Joe/Jane” attorney.

  • Various kinds of quotidian civil cases – well below the news-making level of public interest – where neither party can afford to bring in “big gun” lawyers but nevertheless do manage to retain competent counsel.

So anyway: Could lawyers in THOSE kinds of cases do things like accuse members of the prosecution team of having an inappropriate relationship? This has bought Trump several months in Georgia – could it do the same for an ordinary defendant?

How about throwing a Gish Gallop of motions at a judge? Celebrity/big-gun lawyers only, or can any old attorney get away with it and buy their clients months at a time?

Constant appeals to higher courts before a lower-court decision is reached? Trump’s crew seems to do it often, and the motions to do this are seemingly respected and mulled over for weeks at a time.

Does it just take straight cash? If a billionaire thought playing with the American justice system was a fun little pastime, could they dangle a big-gun lawyer gratis at an indigent criminal defendant who’d otherwise have to go with a public defender AND THEN be correct to fully expect that the big gun would perform Trump-lawyer tricks in county court to easily get the defendant off? As kind of a “proof of concept” thing?

EDIT: I swear, I’ve wanted to ask these kinds of questions in several Politics and Elections threads. But those threads wouldn’t have been the right venue.

2

I am not a lawyer, but I would guess the standard would be different and such judges would show far less patience to the defendant and his lawyer. The lawyer might get in trouble and any defendant who showed a fraction of the contempt-of-court that Trump has shown would be seeing the inside of jail.

3

A Trump-style defense doesn’t appear to even be working for Trump. Oh, is delaying tactics have been fairly successful in some of his cases, but whenever a case actually goes to court he loses. Badly.

4

Plus you have the unique MAGA doxxing and threats of violence. Plus a unique offender for whom being seen as a “victim” might/would be a positive.

5

Doesn’t this sound like a typical sovereign citizen approach to the judiciary?

And that always goes so well.

6

Well, the average Sov Cit is an army of one. Unfortunately, this defendant has an actual army.

7

The other thing to keep in mind is that Trump has time on his side - if he can delay his trial to past the election (assuming he gets elected,) he gets presidential immunity.

Your average defendant has no such thing working in his favor - dragging out a case in court simply prolongs and delays but does not change his fate.

8

The average public defender or civil lawyer can do a lot of things if they think it would be effective. They’re not typically going to muck things up just to slow things down. They’re going to focus on what will help achieve the ultimate goal.
Trump has an unusual need for delay, that 's not typically present. While most defendants are not eager to have their day in court, they don’t have such an overriding need to delay things indefinitely. (but as you can imagine, delays are not rare in the court system)

Other random points.

I’m not sure the whole prosecutor relationship issue slowed things down at all. A judge is perfectly able to hear this kind of motion and keep the trial date on track. Tons of motions get heard while we’re waiting for the trial date to come around. (I could be wrong, but I don’t recall hearing that the judge delayed setting the trial or set it for a later date because of that motion). (I still don’t understand the defense motion. Every good size prosecutor’s office in the country has lawyers involved in all kinds of relationships. It doesn’t create a conflict of any kind, real or imagined.)

The ability of Trump to get the appellate courts involved before the trial courts have finished does strike me as unusual. Still, it’s not unheard of to have issues that come up in cases that do require a higher court to weigh in. I’ve had cases stayed to consider an appeal of a change of venue motion, for example.

9

[Moderating]
I don’t think this thread can have factual answers. Off to IMHO.

10

I kind of asked the question incorrectly, it appears. I made it too Trump-centric. I don’t conceive of it as a Trump question – rather, it’s a non-Trump question: Why aren’t more non-Trump defendants using these tactics to delay, delay, delay? Run out the clock, as it were?

Now that we’re in IMHO, maybe I can expand a bit – still having to invoke Trump for the sake of examples, though.

While I’ve watched Trump’s various indictments and trials (both civil and criminal) go on, I ask myself over and over: “Why wasn’t THIS summarily struck down by the judge?” “Why wasn’t THAT summarily struck down by the judge?” “Why was this entertained?” “Why didn’t the judge just say 'No - and don’t waste the court’s time with that again!”

It dawned on me that, well, maybe all this kind of stuff was a legitimate approach for anyone to avoid legal consequences for whatever. For instance, could Lori Loughlin (more resources than the average American, admittedly) have gotten off for whatever she did to wrangle a scholarship for her daughter had Loughlin’s lawyers used Trumpian tactics? Or at least tied things up for so long that Loughlin’s case would STILL, to this day, not have gone to trial?

Or Casey Anthony, to look at it from the criminal side. Jose Baez’s defense prevailed at trial without (as far as I know) using Trumpian tactics. But, purely as a tactical choice, could Baez have conceivably gone all Trump-lawyer and just delayed things, made prosecutorial staff have mini-trials about their personal lives, etc., etc., and in the end gotten Anthony off? Had Baez chosen the Trumpian defense path, could it have worked?

Take someone like Rod Blagojevich – former governor of Illinois who was impeached and eventually stood criminal trial for attempting to sell Obama’s vacated Senate seat. He was found guilty and served eight (?) years. Could Trumpian defense tactics have gotten him off – or at least bought him five years or so?

I mean, you look at the Trump trials, and the non-lawyer mind boggles. Why don’t more defendants try this stuff? At least the delaying stuff?

I have to admit, too, that the Fani Willis mini-trial just looked too easy to this non-lawyer. Could Trump’s team have just made up everything out of whole cloth, hypothetically? Say, in real life, that Willis and Wade barely knew each other and never interacted outside of work. Could Trump’s defense fabulated a story about a Wade-Willis relationship, submitted it as a motion, and still bought a multi-month delay (as happened in real life)?

11

Maybe I misunderstood Trump’s Georgia trial timeline. I had thought the trial was firmly starting in March, but the Willis-Wade motion was filed in late Jannuary - early February. Then the Willis-Wade motion led to Willis’ mini-trial which took over a month (?). Then Judge McAfee took weeks to rule. And then. And then.

And now Trump’s Georgia is apparently in indefinite limbo. I know, SCOTUS has to rule on immunity, blah, blah. Sheesh.

12

But just slowing things down can be effective!
Schedule a court hearing, have police, witnesses & victims show up, then ask for adjournment for a few weeks – do this often enough and then some of them won’t show up any more – that’s when the defense attorney demands a dismissal since the witnesses aren’t present.

I can give a real example of that. My car was stolen by a young assistant of a repairman who took the keys from my keyrack inside the house, and came back in the middle of the night to steal the car. After being used in various other crimes, it was eventually involved in a high-speed police chase on the interstate, went off the road and rolled several times. Totaled. Inside were booze, drugs, guns, multiple sets of car & house keys, etc. The thief & other occupants tried to run, but were caught, and brought to trial. Eventually.

This was in a county about 3-1/2 hours away from me. Since it was scheduled for 8am, I had to travel down the night before and stay in a hotel. Get up early in the morning and find the courthouse. Then wait & wait – apparently they list all cases for the day at 8am (how user-friendly). After a few hours, I ask the clerk about it – I’m told the case has been rescheduled for several weeks later, and neither the defense of prosecutor are present, But I was, since I hadn’t received any notice of a change from the original notice. So I got in my car and drove home, arriving about supper time.

This happened a second time, but at least the defense lawyer showed up – jut to ask immediately for a delay of a few months so he could ‘prepare’ the case. So I drove half a day to go home again.

By then, I had decided that I wasn’t going to bother attending any more of this farce. But then, due to Covid, they started offering virtual attendance.

So I attended the next few court session virtually – called in, waited on hold for an hour or two, then listened as it was rescheduled for later. At least I (the crime victim) didn’t have the expense of meals, motel, and mileage to add to my losses.

At one session, I did ask the Judge if, being in virtual court, it was allowed for me to light a candle, since yesterday had been the 5th Anniversary of my car being stolen. He said there was no need to be ‘snarky’. I replied that, being in my 70’s, disabled, and in poor health, I wondered if I would survive long enough to ever get my day in court. He said the case would continue even if I was deceased. I thought ‘a lot of good that would do me’ but decided I better not say it.

Eventually, in the 6th year, it actually came to trial. The lawyers had reached a plea bargain; he pled guilty to auto theft (the drugs, stolen property, sawed-off shotgun, ammunition, stolen keys, etc., in the vehicle and the high-speed chase & destruction of the vehicle weren’t mentioned).

He was sentenced to about 2-1/2 years (his previous crimes didn’t count apparently, since he was a juvenile). But it was reduced by 10 months for ‘good behavior’, and since he had already spent more than the remaining time in various jails awaiting trial on other crimes, he wasn’t sent to prison. I guess time spent in jail on one charge also counts to offset your next sentence?

But look at how the delays obtained by the public defenders worked for this criminal: made it difficult & expensive for me, the victim, to keep showing up for court ('d have stopped showing up if I hadn’t been so stubborn); it was also difficult for witnesses; and then the public defender in mitigation tells the Judge ‘this crime happened long ago’ – because you evaded court for so long!

So the delays seemed to work.

13

Disheartening story. I thank you for sharing it and basically answering the OP in one stroke.

14

I’ve also been in a court case where the opposing party kept asking for seemingly unnecessary postponements over and over again to the point a trial that should have taken a week took over an entire year.

15

I think a big factor is that a lawyer representing some average citizen is not going to be able to depend on the kind of friendly judicial reviews Trump and his lawyers are depending on.

16

Because time is money. If you have money, you can buy time.

If you don’t have money, then you either (a) don’t have the money to pay an attorney to engage in so many time-delaying tactics or (b) if you are poor enough to have an attorney who will work at no cost, then that attorney is probably very time limited and will not have months and months to spend on drafting and briefing and rebutting responses to nigh-frivolous and ultimately futile motions just to draw things out. They will have many clients, a limited number of hours they can work on each, and an employer who expects them to be smart with their time. All that time on one client means so many other potential clients not getting help, and possibly not getting even basic legal assistance.

The rare exception might be a pro bono attorney in a high profile case, given a free hand by their Big Law employer to show off (and so drum up business in the long term, like advertising).

17

Wasn’t there something like this in the Georgia case on the defendant side? I only vaguely recall the details but it was something along the lines of one defendant being represented by the husband lawyer while another defendant was represented by the wife lawyer. However the specifics lined up, it presented basically the same scenario of not illegal, not even unethical but appearances people! Appearances! But aside from one talking head mentioning it on TV one time several months ago, I haven’t heard anything else about this “inappropriate relationship” among the lawyers on Trump’s side.

I’d also love to hear from our local legal eagles as to what Trump’s legal budget could do if applied anywhere else. If you had $100 million to spend as you pleased in the US justice system, how would you get better value out of it than Trump is getting? How many legal aid clinics would this fund for how many years? Et cetera.

18

Project Innocence.

19

*Innocence Project, I believe.

(Please note I’m not commenting just to make a pedantic correction, rather I just learned something about the Innocence Project that is at least tangentially related to this thread, but since I am expanding on that, and so felt a correction would be helpful for the sake of clarity going forward.)

Anyway, with that out of the way, I was today years old when I learned that the Innocence Project was founded by two of OJ Simpson’s “dream team” lawyers (Simpson’s acquittal for murder murder being another fine example of how enough money can buy outcomes that most people couldn’t hope to achieve).

It’s nice to see (two of) those attorneys using their powers for good (and in fact I also just learned that one of the two, Peter Neufeld, had spent most of his career prior to his time on Simpson’s “dream team” as a legal aid attorney, representing low income individuals).

20

That’s your answer right there.

Maybe 30 years ago I worked briefly at a private firm. At the time I was pretty convinced it wasn’t worth litigating any claim worth less than $10k. How much time does it take for a lawyer to write a demand letter, draft a complaint, a motion, make how many court appearances…? Billing at - what - $200/hr? $300? Sure, you try to have your staff do must of the scutwork for you, but the costs add up pretty damned quickly. And most clients aren’t thrilled to be told you won them their $5k judgment - and here’s your bill for $6k.

And your pro bono/legal aid/PD has plenty of cases backed up to not want to waste time dicking around on one case. Generally, they aren’t presenting the BEST case. They are presenting a reasonably good case given the resources they have to apply to it.

You hear folk claim they want to litigate “for the principle of the matter!” One thing lawyers bring to the table is an understanding that principle is generally damned expensive.