Category: United States Law and Policy

One point which was emphasised in the litigation department of where I was a junior litigator was to always prepare for trial.

Each step of the litigation process, from pre-action correspondence onwards, was to be regarded to be part of a whole. Each part related to another part.

Everything had to fit together.

This meant that, say, shooting off letter before claim with no real regard to what would – or could – happen later on was an absolute no-no. You do not just send a threatening letter, still less issue and serve a claim, just to press the other side into settlement. You had to assume that the case could go all the way, and plan accordingly. Sending threatening letters as an end in themselves could be left to other law firms. Only when you had thought through every contingency should any legal letter be sent or any claim brought.

Perhaps paradoxically, this meant cases did tend to settle early. As military theorists aver, for peace prepare for battle. The other side’s lawyers (if competent) can often tell if a threat or a claim is serious, and they will advise their clients appropriately.

This policy tied in with the maxim from the same litigation department: we may be disappointed by what the other side do in a dispute, but we are never, ever surprised.

(Always beware of the litigation lawyer who says in correspondence that they are “surprised” by something the other side do, for they are doing the wrong job.)

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President Donald Trump does not adopt this cautious thought-through approach with his litigation.

He instead seeks to press the other side into an early settlement. He assumes that with a big enough threat that the other side will cave. For him threatening and issuing lawsuits are about creating and using leverage. It can be fairly described as bullying.

And in practice it often works. There are many law firms as well as other entities and institutions that duly surrendered at the prospect of a legal assault. Such appeasement may have good reasons or bad reasons, but it means that Trump does not need to do any more that raise his litigation standard. The other side do the rest – and do it to themselves.

But what happens when the other side does not give in, and they instead make a fight of it?

Then such a front-loaded tactic can come a cropper, for it is a tactic without a strategy. Like a chess player who can only think one move ahead, an aggressive litigator can quickly be placed at a disadvantage. For what can seem a good idea when launching a claim can soon be exposed as a very bad idea.

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And so we come to the pratfall, the utter clustermuck of President Donald Trump’s lawsuit against the British Broadcasting Corporation.

This is an example of a front-loaded claim which is now coming apart because of its own contradictions. And we can watch this happen in real time. The admirable United States practice of publishing dockets online mean we can see the progress (or otherwise) of this lawsuit, document-by-document.

The circumstances giving rise to the claim are well known. The BBC showed (in the UK) a documentary about Trump where footage of a speech was misleadingly edited. This was a significant editorial mistake for which the BBC apologised. Executives even resigned.

Trump smelt blood. Trump often brings cases when there is an actual wrong. What he then does is use that wrong as a basis for far-reaching and excessive demands. In his case against his own Treasury there was a wrong about his wrongfully disclosed tax records. He is adept at spotting weaknesses and exploiting them.

And so Trump is suing the BBC in respect of this editorial error. The error was enough for a pretext for a claim, so as to exert pressure on a major media company. But there are problems with the claim. There seems to be, for example, no evidence that anybody in the United States even saw the documentary, let alone that the programme caused him any damage.

Yet when he brought the claim, he put the demand at five billion dollars (or ten billion dollars depending on how the claim is constructed, though the two amounts seem to be duplicated).

How could he possibly justify such an inflated demand?

Well, Trump asserted that the BBC documentary at issue had made him suffer “extensive economic harms” and “injury to [his] business and personal reputation inflicted by [the BBC]… thereby causing massive economic damage to his brand value and significant damage and injury to his future financial prospects”.

He further pleaded that this damage resulted in “direct harm to his professional and occupational interests, including, without limitation, the value of his brand, properties, and businesses, and severe diminishment and tarnishing of his reputation as a politician, leader, and businessman in the eyes of the American public and around the world.”

This, of course, is all twaddle – preposterous flapdoodle.

But it served the immediate purpose of rendering plausible the amount demanded. It was not just harm to him personally, but to his business. There was not just economic harm, but “extensive” economic harm. There was not just economic damage but “massive” economic damage. And so on. The claim could not be put higher.

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Such bombast and bluster in support of an inflated claim has now brought problems to Trump, for the BBC did not fold but are defending the claim. Trump now has to evidence the claims of “extensive” and “massive” economic harm and damage.

The BBC are seeking discovery – disclosure – of documentation and other materials that are relevant to whether Trump has suffered any such economic harm and damage.

Discovery is an important pre-trial stage in any litigation case. What comes out in discovery will often make a break a claim or a defence, long before any trial date. No sensible plaintiff (as they are called in the United States, and still should be called here) should ever embark on a claim without an assessment of its own evidence base.

And similarly, no defendant should ever oppose a case hoping, Micawber-like, that something will come out in discovery. Discovery should always be a servant and not a master. But if a defendant is having to defend a case, discovery is a fair and effective weapon in the litigation arsenal.

Because of the wide-ranging claims of commercial damage, the BBC are entirely justified in seeking discovery of documents relevant to the claim. And such discovery is not limited to evidence in support or defence of the claim, but it covers any relevant material. The material does not even need to be admissible. The only exception is privileged documentation.

Trump does not want to disclose this evidence, even though the claimed damage is an element of the claim being brought. His lawyers resisted the application. His lawyers argued that the request is improper as well as disproportionate and unduly burdensome. The lawyers even said that such commercial damage could just be dealt with by a simple expert report at trial.

In essence, Trump and his lawyers were trapped between the broad terms of the initial claim and the direct consequences of those broad terms. What must have seemed a bright idea to force the BBC into early settlement is now a very real problem for them at this disclosure stage. They have to put up, else they may face a court order to shut up.

Because of the refusal to disclose the evidence, the matter went before the court. And in a readable and interesting Order, the judge sides completely with BBC. In paragraph after paragraph the judge hoists up Trump and their lawyers by their own petard.

This, of course, may not be the end of the case. Trump may appeal. Trump’s lawyers may come up with some ingenious device to get past this obstacle. Or the BBC may choose this moment to offer a face-saving sop to Trump so as to extract itself from this daft but dangerous litigation. This case is unlikely to have a clean break.

But until and unless something else happens, Trump and his lawyers have a problem – and it is a problem entirely of their own making.

Always prepare for trial.

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Yesterday this blog published a post, but it had a borked link to the judgment mentioned. Although this was quickly corrected online, it meant those who only read emails would not have the link.

That judgment of the ages is here – and you really should read it in full.

And my Weekly Constitutional article at Prospect on the case is here.

I should be publishing a fuller post on here on the case soon.

In a significant development the court has now re-opened the litigation which had ended in the supposed ‘settlement’ of a slush fund for President Trump’s political supporters.

You may recall that this blog has previously covered this extraordinary case.

The story so far in essence:

– Trump (and his son and company) brought a largely contrived case against his own government for inflated damages of $10 billion;

– the court rightly doubted that this was an actual dispute between the parties, and so required further submissions on jurisdiction;

– just before the deadline for those submissions, Trump and his co-plaintiffs pulled their claim, leading the court to formally end the case;

– there was then a supposed “settlement” between the parties but without any court recognition which purported to set up a $1.776 billion slush fund and also to grant legal immunity for Trump and others;

– but this ‘settlement’ has been challenged by former Capitol police and also by a group of former federal judges.

Well, the action brought by the group of former federal judges has actually gained some traction.

The judge has now re-opened the case.

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Here is the online docket, and sometimes dockets are a form of poetry.

You can see on 18 May 2026 the case was closed, and then on 27-29 there was an application and then an Order to re-open the case.

You may recall from an earlier post that the former judges are attacking the ‘settlement’ from the perspective that there was an abuse of process in pulling the case and then purporting to settle it.

The judge now has re-opened the case, and she is now asking for even more submissions from the parties.

This places the parties in a far worse position than they were on the eve of the case being pulled. And here there seems to be no way out for the parties by trying to pull and ‘settle’ the case again. They have to come up with the submissions, else presumably the the case will be struck out.

You will see that those challenging the ‘settlement’ can, in turn, make submissions in reply.

This is a huge set-back for the parties setting up this slush-fund on the back of a ‘settlement’. If the case is struck out, there is nothing to settle, and so there cannot be any kind of ‘settlement’.

The rug is being pulled.

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There is so, so much wrong with this case, from every angle. It is like an implausible exam question for law students. This is not what litigation is for and this is not what settlements are for.

But at least now there is a chance for the court to self-correct the excesses of the parties, for if the case is struck out there cannot be a ‘settlement’ – either recognised by the court or otherwise.

Let’s keep watching.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.