Avenatti’s Plan and Strategy Going Forward: Many Considerations that Are Not Obvious

Let me put my lawyer hat on for a minute and share something with you that I’ve been asking myself lately. What the hell is Avenatti really trying to do as an end goal?

I suppose it is best by starting off real clear about this, I am not criticizing him. Lord teaming-up on an early morning no-knock, Avenatti has done more damage to threaten the presidency than Mueller. Of course, as everyone here knows, that is because he has had more TV time than the GEICO commercials, almost always with something that he’s smart-bombed right on the President’s inflated pointy head.

Mueller has a slightly different “style,” in that he has strict rules to follow as a federal prosecutor. Mueller basically doesn’t leak shit, even though Mueller likely knows stuff that would make Avenatti pass out with the vapors. So, comparing the damage each lawyer has done is comparing apples to prosecutors.

The other difference between the two is their end goal. Or is it? Our first assumption was and may still be that Avenatti’s end goal is to use this case to win a settlement which assures he never has to work again, while also assuring that if he does choose to work again, he can have his pick of cases that walk in the door tee’d up for a rather easy multi-million dollar judgment. The nice thing is that this is the same result his client wants, a gigantic judgment that assures she never has to work again.

Notice that I said “settlement.” I did not say “judgment” from a trial. I did so for a precise reason. That reason is that civil trials are not necessarily about “this guy’s been really bad.” They are far more often about how much the client has been damaged by the defendant. This is where the questions really start to naturally flow.

Avenatti stated early on that he and his client wanted to “free her from the legal contract to talk about whatever she wants about what happened.” Okay, that’s a great goal when you have a nuclear story that make people look at Trump differently from that day forward, one we didn’t see coming. The trouble is, it sure seems like we’ve already heard that story. We know Trump got to enjoy a spanking with a Forbes magazine (not “enjoyable to all,” but whatever, consenting adults). We know they “did it,” and even know it was limited to “one position,” (Seems to defeat the entire purpose of risking a marriage to be with a porn star, one would think the whole point involves the unique ….never mind, now I’m risking my marriage, and we’re getting far afield). Point is, we know the “mind-bending” story. So, what does his client really have to gain by achieving that goal?

The other thing civil trials can be about is behavior so reckless, so damaging, that the judge allows the jury to consider “punitive damages.” Punitive damages are named perfectly, because they have nothing to do with “making the plaintiff whole again.” They are meant to punish the defendant’s behavior, they serve a societal purpose. Punitive damages dissuade others from engaging in similar behavior. Avenatti has major ammo when it comes to punitive damages, you have the President calling his client a liar, mocking her profession (which I am not, it is honest work, someone has to do it, god knows there’s a demand for product), and basically making her look bad. There is also the matter of the threat to her, and that’s a big big one. I am sure that scared her terribly. But, that’s one aspect that Avenatti doesn’t seem to have the evidence to prove yet.

He has said that his goal (for now) is to get Trump in a deposition. Well, fine, Trump sure doesn’t want a deposition, and this is where the questions really start forcing one to go “hmmm.” Let’s say that Trump offers a few million dollars to Stormy to settle and go away. That’s tempting, obviously. Let’s say the judge orders the deposition, and Trump is a week away, then Trump might offer a lot more than a few million to go away. That’s really tempting.

The problem with that is that, right now, Stormy and Avenatti are heroes to many in the country (despicable parasites to the Trumpers) and it seems they would lose that status the minute they agree to take $15 million to not go through with the deposition, because the country damn sure wants to hear that deposition, too. If Stormy and Avenatti give that up, the country may see the whole thing as a very very informative money grab, by people in it to get rich. Avenatti would get what he wants out of this case, money and the fame to pick his future multi-million dollar clients. Stormy would, too. IF THAT IS HER GOAL.

But, for some reason, Stormy has built some credibility as a deep person serving a deeper cause than just money, which may just be a nice side effect, but not the main goal.

So, the presumption may be to get that deposition, whereby Stormy and Avenatti continue to serve the country, and go to trial, where they would attempt to get even more millions as punitive damages.It is hard to “punish” a very rich man without granting the Plaintiff a giant sum of money. If the Defendant were a poor person, one can “punish” that person severely by awarding $5,000 – the dynamic becomes obvious.

Careful about thinking; “Well, the punitive damages are near guaranteed, look at how he’s treated her, look at how someone threatened her (if they can prove that). But that presumption involves the jury agreeing that they need to hammer the President. But, there’s no way to guarantee that the entire jury will be made up of liberal democrats who detest Trump, in fact there’s every reason to believe that the defense would ensure that the jury is made up of “voters from both sides” (and they’d want a jury full of Breitbart commenters.) So, Avenatti faces a real problem at trial, because he could put on the perfect case, and yet the jurors who see Trump as doing no wrong, could simply just say “no” and refuse to come down on his side. He has to know that is reality.

There is one other possibility. It would be a highly unusual goal for a client, but one that looks more and more likely in this matter.

Avenatti is ethically bound to follow his client’s instructions, while also ethically bound to confine his actions to appropriate legal goals. It may well be that Ms. Daniel’s instructions to Avenatti consist of something like “I want this man destroyed in every way possible, because I believe he used me, lied to me, he’s done far worse to other women who are afraid, and is overall just a terrible human being, and I don’t appreciate being threatened.” Okay, I can certainly sympathize with her feeling that way, and that can be a goal in litigation …sort of. You do need to have another goal, winning some legal right, either to money or freedom to talk, or whatever. What you cannot do is walk into court and say – in any context – “Judge, our case is about humiliating Trump and driving him from office.” NO JUDGE will put up with their courtroom being used for such a goal, except one hearing from officially empowered prosecutors, like Mueller, and even Mueller can’t say he’s there to ruin Trump.  Mueller must say that their goal is to hold Trump accountable for any crimes they may happen to charge, and if everyone knows the “side effects” to such a result – a neutered Trump – so be it.

Back to Avenatti. Let’s say he gets his deposition. It likely won’t be anytime soon, and you can bet your house that the defense will say; “Okay, but judge, this guy is trying his case on TV and it is really hurting our client. We need him gagged from this point forward.” MANY judges will totally agree, because one way to get a giant case reversed on appeal is to allow a ton of inadmissible evidence out in the media.

Avenatti may still get that giant settlement, and the deposition may or may not be sealed. If the judge rules that Avenatti can no longer talk about all the dirt they’ve found, that puts a big dent in Stormy Daniel’s possible goal of “bringing down Trump” because then she would have to await trial to bring down Trump. By the time the civil case roles around to an actual trial, Mueller may well have eviscerated Trump, to the point that Trump is not only “not president,” with a ruined reputation, by that time Trump may have no money (Russian spigot cut-off and all) and is in bankruptcy court already. That takes the wind out of being committed to trial, not getting a penny from the judgment.

My readers are awfully sophisticated, and I’m sure you following the gist of what I’m saying, which is, it’s kind of hard to figure out just exactly what Avenatti is really trying to do. Look, if the dude drops one more scoop of ice cream on Trump’s head, the financial records demonstrating money coming from “foreign and corporate” sources to pay Trump’s fixer, Cohen, it gets to a point where Trump’s defense lawyers survey the landscape and determine that there’s very little more “damage” Avenatti and Stormy can do to Trump, and at that point, dig in and fight him without worry that their client will look worse and worse.

So, one finds him/herself asking, what is really the end goal here, millions upon millions (which she deserves if she was threatened) or destroy Trump? Because, as I’ve laid out, they’re kind of mutually exclusive, given the fact that Mueller damn sure knows everything Avenatti knows, and is going to present it long before a civil trial comes around, even if Mueller’s really big stuff is still a year away.

Avenatti has provided the country an invaluable service, and he’s damn good on TV. His client is sympathetic, in part because no one really cares if someone is in porn nowadays, and in part because she’s not Donald Trump. We know things about Trump and Cohen that we would not have known for quite some time if we were to hear it from Mueller’s report. But, that invaluable service has its limits, and they’re moving closer by the day, with each revelation, and the possible “big limit” in the judge saying “alright, depose away, but no more TV, you’re gagged, bro, because it isn’t fair to taint the entire jury pool. Much of this stuff may not make it into evidence at a real trial.”

Which brings us back to where we started, the end strategy. I will tell you what it isn’t, it is not solely to free Ms. Daniels from the “shut-up” contract. She’s already violated that. The real goal is not obvious, nor is how to get there. Depending upon what the real goal might be, we may well be fast approaching the Avenatti expiration date on TV. That would be too bad, because he’s revealed breath-taking corruption, even if Mueller will ultimately takes care of those implications. Will Stormy settle for millions (does Trump even have it?) thereby looking kind of more like opportunists? Or will they risk the gag order, which defeats her goal of bringing Trump down? Are they committed to a trial they might lose? Are they willing to risk winning that giant trial only to find out that the disgraced former president has no money anyway, and is already ruined?

Lots of questions, and I don’t have a clue as to the answers. I am, for now, just glad that Trump must be squirming. The man bragged about sexually assaulting women, which – as the Dad of a 10 year old girl – makes me relish Trump sitting there worrying. It seems fitting that a woman who he “bagged” (there’s no real way to put it nicely when he had a new wife and child at home), may be the one that prepares the country for the big hammer. Because if you think Avenatti is a bad ass, wait till you meet Mueller unchained.