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The Collateral Estoppel Effect Of Last Week's Carroll Decision At The Second E. Jean Carroll Defamation Trial

If you thought that defending the recent case against Trump was hard, just imagine the trouble someone would have trying to defend the next case.

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The national press is so slow.  Responsible reporters told you the result of the E. Jean Carroll case only on Tuesday, May 9, after the verdict came down. I thought that was too slow, so I told you what the verdict would be on Monday, May 8, 24 hours before the actual decision.

The national press is now thinking about the implications of that jury verdict. Not me: I’m thinking about the effect of the verdict in the recent E. Jean Carroll trial on the other E. Jean Carroll case, which is still pending.

Remember: E. Jean Carroll sued Trump twice. The first case was only for defamation (while Trump was in office). The trial judge, Lewis Kaplan, found that Trump was not acting as a government employee when he allegedly defamed Carroll while in office. Trump appealed. The case went to the Second Circuit, the D.C. Circuit, back to the Second Circuit, and has now been remanded back to Judge Kaplan for additional fact-finding. So, in the first lawsuit, Kaplan has to think more about whether Trump was acting as a government employee when he allegedly defamed Carroll.

Meanwhile, Carroll filed her second lawsuit — the one that was just decided. That lawsuit alleged that Trump defamed Carroll in a statement Trump made after he was out of office (so the “government employee” issue doesn’t arise) and that Trump committed sexual battery on Carroll. Trump just lost that second case.

Got it?

Here’s my question: What is the effect of the verdict just rendered on the still-pending earlier defamation case?

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And (lucky you!), here’s my answer: As ordered by the appellate court, Kaplan will do additional fact-finding on the question of whether Trump was acting as a government employee when Trump allegedly defamed Carroll while he was president. Since Kaplan has already ruled once that Trump was acting as a private citizen when, as president, he defamed Carroll, I’ll guess that he’ll come out that way again after he does the additional fact-finding.

Perhaps that new decision will again be subject to appeal (I really don’t know, and I don’t get paid enough for writing this column to try to figure it out); if so, Trump will surely appeal. But eventually that other case will come to trial.

And here’s the interesting part: The judgment at the recent trial (unless reversed on appeal) will be binding, as collateral estoppel, when that second case is tried.  (When a court decides an issue between two parties, that decision is generally binding; neither party can relitigate it.) Thus, at the next trial, the judge will tell the jury, more or less: “I instruct you that Donald Trump committed sexual battery on E. Jean Carroll. You do not have to think about that issue. That has already been decided, and it is a fact. In this case, you must decide only whether Donald Trump’s statements while he was president defamed E. Jean Carroll.”

If you thought that defending the recent case against Trump was hard, just imagine the trouble someone would have trying to defend the next case.

So here’s another prediction: That second case will either be settled or E. Jean Carroll will win at trial, perhaps years from now when that case approaches trial.

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I was right last week. Perhaps time will prove me right again.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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