Obviously Trump Can Delay Paying In E. Jean Carroll Case (Everyone Delays) — Pray He Does So By Posting A Bond

The American public has a terrible understanding of how the civil justice system actually works. The latest example of this is that The New York Times ran a story stating that Donald Trump might delay paying E. Jean Carroll the $83.3 million he was just ordered to pay her as though this was a newsworthy announcement, and as though this would somehow be a bad thing.

Of course Trump can delay paying E. Jean Carroll. You know who else delays paying the winning litigant? Pretty much every losing litigant in the entire history of civil litigation.

One of the big benefits of settling a case as opposed to going to trial is that you can build into a settlement agreement means of guaranteeing payment. Also, those who voluntarily agree to pay an amount, even reluctantly, are much more likely to actually pay it than are those forced to pay against their will following a trial.

People don’t like to pay sums they do not feel they should owe. They resist (even normal people who don’t have mobs of fervent supporters to order around). Thus, what The Times describes is actually the best-case scenario for Carroll.

Generally, someone appealing from a money judgment can post security — that is, something of value — to ensure the judgment will ultimately get paid. This security could take the form of what might be called a “supersedeas bond” or simply an “appeal bond,” depending on the jurisdiction and whom you’re talking to about it. In return for providing this security, the loser at the trial court level might be able to obtain an order to stay — that is, to suspend — enforcement of the judgment pending the outcome on appeal.

The type of security can take different forms, and different forms of collateral might be put up depending on the circumstances, but the easiest way to think of it that is essentially correct regardless of the circumstances is that the person who owes money to someone instead gives the sum they owe to the court. The court hangs on to the money until all levels of appeal have been exhausted. If the person who owes the money loses on appeal, the court then turns the money over to the winner to whom the money is owed.

Except in cases involving very large, reputable corporations, almost no one stays enforcement of judgments in this way. The reason for this is simple: should an appellant lose on appeal (which most do, because in most cases appellate courts must give deference to trial court decisions), when a stay had been procured after posting a bond or other form of security, the respondent gets her money nearly immediately following the appellate decision. This precludes the many, many other delay tactics short of bankruptcy that people use to avoid paying judgments they owe.

Why pay money to your lawyers to try to get a court to approve your stay pending appeal, and then guarantee a payout to the person on the other side, who you probably hate, when you can just not pay them and make them try to come and get the money? The court doesn’t have an army. It is up to the winning litigant to enforce her judgment, usually at great personal expense, as the legal fees pile up.

Although, theoretically, Trump has assets to which a lien could be attached, or against which a levy could be enforced, good luck with that happening quickly. People like Trump do not simply own things in their own names. Their assets are juggled around in a complex web of shell companies and unimpressive family members. As soon as you try to collect on a judgment using one of their assets they will deny they personally own that asset, a hearing will be scheduled several months out to get to the bottom of things, the judge overseeing that hearing will take several more months to issue an order, that order will potentially itself be appealable, and before you know it, a couple more years have gone by without obtaining a cent of what is owed — and that’s how it goes in cases where the defendant is not a former president screaming every day on the airwaves about political persecution, which makes the judges in all of Trump’s legal cases act even more cautiously than usual.

Sure, judges can try to punish people who use these sorts of tactics by adding to the number owed on paper (they really should punish the lawyers, which would make much more of a difference in actually curbing extreme delay tactics, but they don’t). Yet, someone who is not paying the judgment they owe anyway doesn’t generally care that much about another 1% or 5% or 10% tacked on.

A dogged-enough lawyer can collect against someone like Trump over an indefinite timeframe and with an unlimited budget. But Trump is 77 and is running for president. If he’s elected, the odds of him paying Carroll anything are quite low. Even if he loses the election, if he doesn’t post a bond, he very well might be able to outlast her collection efforts until he dies, in which case it will become someone else’s problem. Trump posting a bond or some other form of security before he appeals would probably give Carroll the best odds possible of collecting what she is owed at a minimum of further expense and heartache.

So, even though all of this is common knowledge to anyone with a few solid years of experience in civil litigation, I truly hope I’m not giving any ideas to Alina Habba, who I would wager does not know any of it. If she hasn’t bothered to read the rules of evidence, I somehow doubt she bothers to read this column.

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Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at [email protected].