By Roger Parloff
March 21, 2016

“I’m dying to go to court on this case,” Donald Trump said at a deposition last December related to the civil fraud suit against him in San Diego federal court over his controversial Trump University real-estate courses. “I’ve been waiting for it a long time.”

Yet Trump is willing to endure just a bit more delay—until after Election Day on Nov. 8.

As it grows increasingly likely that Trump will be the Republican candidate for President, his attorneys are pushing to postpone the trial from its previously contemplated August start date.

“This will be a zoo if it were to go to trial,” Trump’s attorney, Dan Petrocelli, said at a hearing earlier this month, referring to the difficulty in picking a fair jury in the home stretch of a Presidential campaign.

Though Petrocelli didn’t mention it, undergoing a three-week suit on charges of consumer fraud, unfair competition, false advertising, and “financial elder abuse” might also prove an unwelcome, off-message, distraction for the candidate.

Though the plaintiffs lawyers have also acknowledged that the current “media circus,” as one of them described it at a hearing March 11, will pose serious challenges to picking a fair and unbiased jury, they are pushing to keep the August date—or even to move it up to June, just before the Republican Convention, which is scheduled for July 18-21.

In a memorandum filed on Wednesday, the plaintiffs attorneys stressed that some of their claims, including those brought under California’s broad unfair competition law, do not carry a right to trial by jury and could therefore be tried by a judge alone (in what is referred to as a bench trial).

Since judges are presumed to be immune from inflammatory media reports, the plaintiffs lawyers argue that U.S. District Judge Gonzalo Curiel could at least hear those nonjury claims at that time. They have even suggested a willingness to drop certain claims from the case if need be, since class members could still benefit from a second, related class action suit. That case, which won’t reach trial until after the election, is being brought by the same lawyers and claims that Trump and his University violated the civil provisions of the federal Racketeer Influenced and Corrupt Organizations Act.

In a responsive submission filed on Friday, Trump’s counsel protested that the nonjury plan would run contrary to federal practice, which typically dictates that when there are a mix of jury and nonjury claims, the jury claims must be heard first. Petrocelli argued that departing from that practice would effectively deprive Trump of his Seventh Amendment right to trial by jury by tainting the outcome of the later jury claims.

In both Trump University suits, former students have brought class actions seeking damages and reimbursement of tuition—which ran to as much as $35,000 for the “Trump Elite Gold” version of the program.

The plaintiffs allege that the courses—where instructors “hand-picked” by Trump were supposed to teach his secrets for successful real-estate speculation—did not live up to their billing and left them saddled with crushing credit-card debt.

Trump has denied any wrongdoing and has stressed that more than 90% of the students rated his courses highly in satisfaction surveys—though the surveys were often filled out in front of instructors and before students yet knew the quality of the mentorship they were supposed to receive. I have discussed the allegations in greater detail here.

The existing trial schedule was set last December, when Judge Curiel and the attorneys for both parties all seemed to be operating on some different unspoken assumptions—namely, that the electorate would probably have put an end to Trump’s Presidential aspirations by the conclusion of the July convention, if not long before.

At a status conference last December, Judge Curiel noted that the Trump University case—almost six years old—was the second oldest case on his docket, that he was eager to move it to trial, and wanted to hear it in June. (The parties then estimated that it would take about three weeks to try.)

Petrocelli argued at that time, however, to set it “not sooner than July, so that Mr. Trump has the ability to compete [during] that part of the campaign.” Judge Curiel and the plaintiffs, represented by Jason Forge and Rachel Jensen of Robbins Geller Rudman & Dowd, appeared to acquiesce to that request.

But at a hearing on March 11, everyone present recognized that the world had changed.

“There are very serious issues being raised about whether the defendants can ever get a fair trial if the atmosphere and the environment are being poisoned,” Petrocelli said then. He added that the judge had previously deferred the trial date till “after the July convention to see what happens…. I’m going to have a lot to say on that subject if Mr. Trump is the nominee.”

Even plaintiffs counsel Jason Forge admitted that the circumstances posed a challenge. “It really is an unprecedented level of publicity,” he said. “We’ve all seen high-profile cases, but nothing like this…. But that does not mean we should not go forward on some claims.”

Then, last Wednesday, Forge filed papers proposing going forward on the nonjury claims, either in August or even as early as June. He stressed that many seniors in the class—including 74-year-old class representative Sonny Low—”need resolution before it is too late.”

No way, Petrocelli responded on Friday. Forge’s proposal was a “transparent attempt to prejudice defendants’ ability to defend this case at trial while Mr. Trump is running for President,” he argued. (Petrocelli knows something about high-publicity jury trials. He represented former Enron CEO Jeff Skilling in his criminal trial in Houston and won a $33.5 million civil wrongful death verdict against O.J. Simpson in Los Angeles.)

It’s unclear when Judge Curiel will rule on the schedule. He is, however, expected to soon decide on a pending motion to permit the originally named plaintiff in the case—Tarla Makaeff—to withdraw as a class representative, though she would remain a class member.

Trump’s lawyers oppose letting Makaeff out, since they deposed her four times and believe they can impeach her effectively on the witness stand.

Makaeff has cited the stress of the suit’s sudden publicity—Trump has trashed her by name on the stump—as exacerbating “health problems, family loss, and financial troubles in the years since the case began” to the point where continuing has become “unhealthy” for her. She has submitted confidential medical records to the judge under seal.

“No one could have anticipated that [Trump] would become a viable Presidential candidate and 24/7 media obsession as this case neared trial,” her attorneys have written.

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