STAY TUNED

 My son, Tobias, who is a professor of law and an expert on civil procedure posted this comment on Facebook today.

A note about the impact of E. Jean. Carroll's victory going forward: If the Orange Monster defames E. Jean again in the way he has in the past, she and her lawyers can file another lawsuit and use the judgment in her earlier verdict to immediately seek damages against him through the doctrine of preclusion. It is important to take a moment to think about the practical implications of that fact.

First some basics on Civil Procedure. In U.S. courts, when a person prevails in a civil case and obtains a judgment, that judgment does not merely constitute a victory on their claims. It also constitutes a determination that binds the parties to the lawsuit on all the issues that were actually litigated and decided in the proceeding and wound up being necessary to the judgment. Going forward, if the exact same issue comes up again then the person who lost on that issue in the first proceeding can be bound to the determination of that issue in any subsequent proceeding. This is the doctrine of issue preclusion. (There are some exceptions to that doctrine but none would apply here.)

Here's what that means in practical terms. The Orange Monster is running for President. He will be asked about E. Jean Carroll and her successful verdict, and even without being asked he will no doubt feel the compulsion to hold forth about her. He can still try to deny that he sexually assaulted her and claim that the jury decision was wrong; that's fine. But if he demeans E. Jean Carroll in the way that the jury found to be defamatory -- calling her a liar and saying her story is a hoax that she made up to increase book sales -- then Carroll and her lawyers can go straight to court, file another lawsuit, and seek additional defamation damages against him without having to prove her case all over again. All they will have to show is that whatever he said raises the same issue of defamation that the jury already adjudicated in the first lawsuit and they should be entitled to summary judgment in their favor. They would only have to prove damages. All of this is true even though the Orange Monster and his lawyer are appealing the judgment. Preclusion attaches when final judgment is entered at the trial court level.

This means that the Orange Monster will have to give mealy-mouthed answers to questions about E. Jean Carroll when he is asked about the verdict by the media or in debates (and he will presumably be asked all the time) and he will have to restrain his impulse to keep calling Carroll a hoax, a liar and a gold-digger in front of adoring crowds in the ways that worked so well for him before. If he cannot manage to do those things -- consistently -- then he will be slapped with a second lawsuit on a fast-track to force him to pay more damages for defamation.

I do not think he will be able to show that kind of discipline. We are going to see round two.