LOS ANGELES – For the most part, other than the fact it involves an adult performer and the President of the United States, the ongoing legal wrangling between Stormy Daniels and Donald Trump holds very little relevance to the adult entertainment industry.
The issues involved in the cases, both in Stormy’s challenge to the nondisclosure agreement and the defamation claim she filed later, don’t involve regulations which pertain to the industry, or flow from anything she has done in her capacity as an adult performer.
This doesn’t mean there are no important lessons members of the adult industry to be learned from these cases, though. Plenty of adult companies and their employees have had occasion to sign an NDA or have been involved in defamation cases – or involved in threats to file such cases, at least.
While there are many other ‘teachable moments’ couched within all the Stormy/Trump litigation, here are four which stand out most clearly.
If you’re going to use a “fixer,” try to find a competent one. Presumably, the reason former Trump attorney (and current indicted felon) Michael Cohen did things like setting up an LLC just for paying hush money to women with whom Trump may have had affairs was that he wanted to keep the existence of the agreements and payments a secret.
In the aftermath of the Wall Street Journal becoming aware of the NDA and payments, however, just about everything Cohen said and did only increased the likelihood of journalists digging for more information. As they turned up more information, they then turned to other attorneys with questions like: “Does what Cohen just said about how this agreement and payment were executed represent a violation of New York’s rules of ethics for attorneys?”
Needles to say, the above is not necessarily a question you want journalists to be asking other attorneys about your attorney.
Think carefully before filing what might be a meritless defamation suit – especially if you live in Texas. While Michael Avenatti has chosen to appeal the dismissal of Stormy’s defamation claim against Trump, the First Amendment experts I’ve spoken to all said there is a near-zero chance of the appellate court overturning Judge Otero’s decision – which means the attorneys’ fees requested by Trump (more on those in a moment) are only going to increase as the case goes through the appeals process and his attorneys put in more work defending against the claim.
It is particularly important to be cautious when filing a defamation claim if you reside in a state with a strong anti-SLAPP law and to be mindful of where you file the claim. As I wrote about back in May, if you reside in Texas – as Stormy does – filing a questionable defamation claim carries serious risk of backfire.
Lawyers don’t come cheap… If you’ve ever retained a lawyer for just about anything, and that lawyer wasn’t either from a legal aid office or working pro bono, you already know this lesson.
As Larry Walters put it to me the other day in discussing Trump’s motion for attorneys’ fees: “Federal litigation is expensive and this fee request is a good education for the public on how quickly fees can run up in these cases… The Daniels team must be careful when opposing a fee motion. The court can award attorneys’ fees incurred in litigating the amount of fees, so there comes a point of diminishing returns in these battles.”
…and Charles Harder really doesn’t come cheap.
Of course, it’s also true that in motions for attorneys’, sometimes lawyers are less “reasonable” than others. In his motion for attorneys’ fees, Trump’s attorney Charles Harder reported taking 88.5 hours to draft just the motion itself, resulting in $63,975.00.
While Walters said that “without seeing detailed billing reports for this work, it is difficult to evaluate whether the fees are reasonable,” attorney Marc Randazza, who has drafted many such motions in his career, was less charitable in his assessment of Harder’s accounting.
“Charles Harder is a really good attorney, so I could see him charging $1000/hour,” Randazza said. “But I’ve forgotten about more anti-SLAPP motions than this guy has considered writing. It’s fucking absurd, absolutely out of the question and the judge should deny it.”
Randazza added that he “could see it taking 15-20 hours” to draft such a fee motion, “if it was your first one.”
He also pointed out that he wrote an analysis similar the one in Harder’s fee motion in a recent blog post for Popehat.com and estimated that it took him approximately two hours to compose.
All that said, Randazza reserved his harshest criticism for a sideswipe Avenatti, who he termed “a total moron.”
“It shouldn’t take $340 grand to beat an intellectual lightweight like Avenatti,” Randazza said.
Each of the lessons involved here might have been different, had the parties to these cases conducted themselves a little differently.
Had Trump signed the NDA for example, maybe he would have felt less inclined to capitulate and abandon his defense of it, for example – an agreement to which, remarkably, his attorneys now claim Trump “has never taken the position that he is a party.”
By the same token, had Stormy never filed the defamation case, she wouldn’t have to worry right now about whether the court will grant the attorneys’ fees Trump has requested, either in full or in part.
Every lawsuit is its own animal, of course, so how to handle the ones in which you may find yourself embroiled will depend on the facts unique to it.
Still, these highly publicized cases involving the President of the U.S. and a member of our industry are instructive – if for no other reason than they provide guidance on things civil litigants probably should not do.
Heck, even Trump has learned something important which flowed from his courtroom battles with Stormy:
If anyone is looking for a good lawyer, I would strongly suggest that you don’t retain the services of Michael Cohen!
— Donald J. Trump (@realDonaldTrump) August 22, 2018
