Joe Tacopina Complains about Woke Jonathan Swift

Joe Tacopina has filed for a mistrial in the E. Jean Carroll suit, accusing Judge Lewis Kaplan of bias.

The motion would not go over well with Kaplan on a good day.

But among Tacopina’s complaints is that Judge Kaplan recognized a literary reference Carroll had made in her book that Tacopina didn’t even recognize as a literary reference.

When Defendant’s counsel elicited testimony from Plaintiff that her book contained reference to all men in this country being sent to Montana and retrained, the Court, in order to bolster the testimony of Plaintiff, chose to essentially testify himself as to why such commentary was a satire due to Jonathan Swift’s work A Modest Proposal:

Q. Okay. At one point I think in your book you propose we should dispose of all the men?

A. Into Montana.

Q. Into Montana?

A. Yeah, and retrain them.

Q. So retrain. So all the men here in this courtroom, in this country, all get shuffled off to Montana and get retrained.

A. You understand that that was said as a satire.

Q. Ah, Okay.

THE COURT: It comes from Jonathan Swift’s A Modest Proposal 700 years ago, right?

THE WITNESS: Yes.

THE COURT: Let’s move on.

MR. TACOPINA: Thank you, your Honor.

When Kaplan interjected like this, Adam Klasfeld noted how common it is for Kaplan to identify a literary reference. Others following along chortled at the irony of Tacopina missing the joke. This joke.

But it wasn’t enough for Tacopina to complain, in this mistrial motion, that he wasn’t in on the joke because he didn’t recognize it as one. He decided to double down, scolding Carroll for misapplying one of the most recognizable forms of satire in the English language.

After Carroll testified that the above-referenced notion of disposing and retraining of all men was a satire, the Court interjected in a manner that corroborated such testimony by stating such notion derived from Swift’s A Modest Proposal. Rather than addressing the subject of men, Swift’s “proposal [was] to ‘solve’ the problem of Irish poverty by killing and eating Irish children. See Jonathan Swift, A Modest Proposal (1729).” Farah v. Esquire Mag., 736 F 3d 528, 536 (D.C. Cir. 2013). That said, if Plaintiff wished to elicit testimony about a three-hundred year old book that did not address the subject matter of her own book, she could have done so on re-direct. It was not for the Court to provide evidence from the Bench to corroborate Plaintiff’s position in a way that suggested to the Jury favoritism of any one party.

Note that Tacopina is not referring to some expert literary source for his assertion, in bold, of what A Modest Proposal is. He’s referring to a DC Circuit opinion upholding the dismissal of a lawsuit Jerome Corsi and Joseph Farah filed — represented by Larry Klayman — against Esquire Magazine for mocking their Birther book when it was published. The very next line in the opinion, after the citation, reads,

Satire’s unifying element is the use of wit “to expose something foolish or vicious to criticism.” Satire,Encyc. Britannica Online.

The opinion ultimately ruled that no reasonable reader could miss that the Esquire piece was satire (and indeed, Farah recognized it as parody; he just complained that it wasn’t very good parody).

Even if none of these elements standing alone—the story’s substance, outlandish and humorous details, stylistic elements—would convince the reasonable reader that the blog post was satirical, taken in context and as a whole they could lead to no other conclusion. Farah immediately recognized the blog post as a “parody,” although he told The Daily Caller that in his view it was “a very poorly executed” one. Findikyan Decl. Ex. 28. Admittedly, apart from its headline, the article did not employ the sort of imitation and exaggerated mimicry that are typical of parody. But satire is a far broader concept than parody, incorporating a variety of literary forms and devices. And poorly executed or not, the reasonable reader would have to suspend virtually all that he or she knew to be true of Farah’s and Corsi’s views on the issue of President Obama’s eligibility to serve in order to conclude the story was reporting true facts.

I guess, legally, Tacopina wants to refashion Kaplan’s reference as premature judgment that Carroll’s argument was satire, in hopes that he could get the 2nd Circuit to rule that his legal arguments were as stupid as those of Klayman, Corsi, and Farah.

Ultimately this comes off as Tacopina — and by extension, Trump — whining that he’s not in on the joke, whining that there’s some kind of elite culture that Carroll and Kaplan share that grab-them-by-the-pussy types can’t be expected to adhere to.

But he’s doing it about one of the most recognizable works of classical English, Christian culture out there. E. Jean Carroll and Judge Kaplan are so woke they both have shared reference to the English literary canon.

I’m just hoping some nice mother in Florida with a sense of humor will make the Modest Proposal that Swift be banned under Ron DeSantis’ anti-woke censorship laws for being — as a canonical work of English culture — too woke.

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195 replies
  1. cmatt1923 says:

    “I’m just hoping some nice mother in Florida with a sense of humor will make the Modest Proposal that Swift be banned under Ron DeSantis’ anti-woke censorship laws for being — as a canonical work of English culture — too woke.”

    Not if DeSantis gets there first.

  2. Pam Gillespie says:

    My iPhone autocorrects Tacopina to taco pins and I think that might be satire.

    • Rena says:

      My husband and I just refer to him as Tapioca. Not sure if that qualifies as satire, though.

  3. SaltinWound says:

    Is the judge saying all satire “comes from” A Modest Proposal? I mean, there’s nothing in A Modest Proposal about retraining men and the judge is implying Carroll’s satire was a specific reference to Swift. How? This chiming in from the judge may not be grounds for a mistrial but it does seem misleading to me. Why is the judge acting like an overeager student?

    • JVOJVOJVO says:

      As to your first question, No! Respectfully, your first question is really terrible. The false premise and focus of your post are intentional and alerted me to the fact that you’re not being honest in asking it. As for what the judge is “implying” – your take here is also rubbish but thanks for qualifying it with “seems to be.” As for your conclusion that it “seem[s] misleading to me,” there is no response needed since it is unsupported and unexplained. It seems to only attempt to discredit the judge. Are you a judge, teacher or professor? What you mistake for an “overeager student” is to me, in my courtroom experiences, a knowledgeable, careful, independent, and balanced judge keeping a very light reign on the proceedings in his courtroom, imho. Your comments seems to be very biased and loaded like a student that believes his/her opinion is always right and they can use vague, mushy words as “evidence” of support.

    • Bruce Fuentes says:

      Really? You are unable to see the relationship? I guess like the orange shitgibbon and his hapless goon, you are unable to understand the reference also.

      • SaltinWound says:

        What? I understand it’s satire. Did you not think the judge was implying Carroll’s jab about retraining men was a direct reference to Swift’s piece about eating children? Okay.

        • obsessed says:

          “His hapless goon” was pretty good though. Since our electorate is so pathetically stupid that successful nicknaming is inarguably an important factor in elections, what would a professional comedy writer suggest for the current crop of fascist-leaning candidates?

        • dannyboy says:

          Thanks for this. I can’t wait for the replies. Trump is not the only one who gets to assign nicknames.

        • David Wilson says:

          I find him pathetic as well. The nicknames would work better if weren’t so easy, and so apt, to use them. I suspect, though, from your posts here, you aren’t very funny either.

        • timbozone says:

          “As a professional comedy writer” can you give us some better nicknames for failed Twitler? #mercenarymercy

        • trnc2023 says:

          “PS as a professional comedy writer I find the nicknames for Trump pathetic”

          As a comedy reader, I find your posts here hilarious.

    • BobBobCon says:

      “Is the judge saying all satire “comes from” A Modest Proposal?”

      No.

      You’re stupidly confusing derivative from derived from.

      As in, The Onion’s humor has often been derived from other sources.

      The Babylon Bee is just stupid derivative garbage trying way too hard to be The Onion and failing.

      • SaltinWound says:

        Okay. Wow. This is taking a while. If the judge doesn’t think all satire comes from A Modest Proposal why does he think Carroll’s does in particular?

        • sxp151 says:

          Her book is titled “What do we need men for? A modest proposal.”

          Stop being disingenuous please.

        • SaltinWound says:

          I’ve learned that. I hadn’t seen the book title in any of the writing on this.

        • timbozone says:

          And, “as a professional comedy writer” it was too hard to look up on the Internet… #mercenarymercy

        • BrokenPromises says:

          Yeah, well sending all men to Montana, let alone retraining them is hardly a modest task. [wink]

        • FrankTim says:

          E Jean Carroll’s book which Tacopina is referencing is titled:

          “What Do We Need Men For: A Modest Proposal”

          Carroll’s title of the book is an on the nose reference to the Swift work. This indicates that she’s mirroring the absurd proposal of the Irish eating their babies with an equally absurd proposal of sending men to Montana for retraining.

        • xbronx says:

          a modest correction – NOT “the Irish eating their babies” as you write but rather the Irish selling their babies to rich English gentlemen and ladies as food. Dean Swift smiles at the Judge’s referential nod.

        • Rayne says:

          Can’t tell you how many times in my lifetime I’ve shuddered noting the brand name “Swift” on meats.

        • Katherine Williams says:

          The fact is, republicans and conservatives frequently identify some minority group as the cause of all the Nation’s problems, and suggest -seriously- that the group de jour be rounded up and placed in concentration camps. They’ve even tried to do so with what they call “illegals”.

          So you can understand why Tapioca was shocked at the idea of all men be “transported far beyond the Northern sea.” I mean, to Montana.

        • e.a. foster says:

          Please don’t send them to Montana. Its on the Canadian border and any Northern Sea would have to be accessed via Canada.
          Why not send them to Arizona? We could send a few Canadian men there also.

        • catfishbarb says:

          Not Massachusetts, home of the Masshole . California is the better place to enlighten men.

        • Steve13209 says:

          Because the notion of sending all men to Montana for retraining to solve the problem of their misogyny is similar to Swift’s ridiculous idea of eating the Irish to solve the poverty problem. They are similar satire, but Swift’s was written first, so this kind of outrageous idea is derived from his work. Get it?

          As a comedian, can you give us some Trump nicknames you DO find funny?

        • IconDaemon says:

          “Short-fingered vulgarian” is one of my favorites. “T💩p” is one emoji-enhanced nickname my friend Rob concocted.

          [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; I assume this name was selected to protect your privacy. Please confirm by replying to this comment and I will update your last comment from August 2022. Thanks. /~Rayne]

        • Russalnyde says:

          Since this seems to be an opportunity for posting nicknames…I’ve taken to referencing the newish governor of Arkansas SHS as SH(it)S.

        • Russalnyde says:

          I’m sending my apologies for debasing the conversation. I just happened to be catching up on this thread shortly after having been on the phone with a relative from AR. I was stewing, then steaming and took a cheap shot to relieve the pressure of being peeved.

        • bmaz says:

          Don’t worry, you are fine. Sorry about any issue with your relative, that really can be infuriating.

        • Rena says:

          “Short-fingered vulgarian” may be my favorite. It goes so well with the “small hands” trope. Although it is just easier to refer to “TFG.”

        • bmaz says:

          It baffles me how anybody here thinks using cheap ass “nicknames” is a positive plan. It is bad for the accessibility of your comment, and the blog.

        • Buzzkill Stickinthemud says:

          I confess I was ignorant of the reference to A Modest Proposal, so I read some of its wiki. It sounds like Kaplan likened Carroll’s satire to that of Swift, in particular the use of a simple yet absurd solution to a social problem, Irish poverty in Swift’s case, and I assume men assaulting women in Carroll’s case.

    • Tomas says:

      Her book is titled “What Do We Need Men For?: A Modest Proposal” and going by what people were writing about the trial, I think the judge was referencing the title rather than the specific back-and-forth about removing all men to Montana for retraining.

    • emptywheel says:

      I’m going to, for the moment, assume that you meant this in good faith (I think JVOJVOJVO interpreted it as satire itself).

      The structure of Modest Proposal is, “gotta problem? propose shipping it off somewhere to do something drastic.” That’s the model Carroll adopted, which I think was made more obvious by the form of the book.

      So it’s not content, it’s form. Make sense?

      • SaltinWound says:

        What made it make sense for me is that “a modest proposal” is also in Carroll’s title. Otherwise I wouldn’t have gone farther than saying it’s the same genre. Thanks.

        • Savage Librarian says:

          But have you given any thought as to why your comity writing skewed so eagerly toward the Defense, without you making any effort to even learn the title of E. Jean Carroll’s book? Tacopina is probably counting on people like you to have premature conclusions.

        • Bradley A. Ross says:

          I think the point is that some of the reporters should have made it clearer that the judge was basing his statement on the titles of two works. Some were implying, including possibly Tacopina himself, were implying that Judge Kaplan had very detailed knowledge of the work by Swift, possibly in the way that some people memorize Shakespeare. This would have been unusual, but not unheard of. (I was forced to memorize passages from English literature in high school and college.) From the comment, I’m not sure if Tacopina was aware that the judge was basing his comment simply on the title of Carroll’s book. I was trained as an engineer, and engineers are not known for their skills in writing prose that will last forever in the English classrooms for thousands of years into the future, but I am aware that Jonathan Swift wrote “A Modest Proposal” and “Gulliver’s Travels”. I am also aware that Shakespeare wrote “Julius Caesar” and “Romeo and Juliet”.

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      • JVOJVOJVO says:

        Sorry, I viewed the post in a few contexts but landed on it being most likely troll-ish as I was thinking what EJC would think when reading it? Of course, I’m necessarily projecting but I was also channeling some bmaz / critical thinking law school class style and then just outlined my critical points. It was not properly refined. I certainly meant no offense. I will wear my bmaz chiding with pride. ;-) I still think I should be allowed to post as my original JVO – I thought it was pretty unique. Thanks either way, Rayne. Truly appreciate what you all (and this community) do!

        • Ravenclaw says:

          You get points for making a post that lands in the liminal space defined as (a) too extreme in tone for bmaz to stomach and (b) not so extreme as to be screened out altogether by him or other mods.

    • John Paul Jones says:

      It’s the subtitle of the book: “What Do We Need Men For? A Modest Proposal.” The author thus signals to the reader that the entire book should be viewed in the context of Swift’s noted satire. You would have to go a long way to have missed all references to the essay going through either high-school lit. courses or first year college courses. It’s like whole wheat bread for lit. teachers: a staple.

  4. TimothyB says:

    Why might the Court think “What do we need men for: a modest proposal” is an allusion to Swift? This is the question we are debating?

      • TimothyB says:

        Attorneys who have cross-examined me using a passage from a book have either had the book in their hand or a photocopy of the cover page and the page they want to misquote; either strategy would reveal the subtitle. The latter strategy is more jury-friendly and would have, in this instance, given Mr. Tacopina’s game away.

  5. Zirc says:

    The title is a dead giveaway, and the judge is merely pointing out the similarity of Carroll’s point to Swift’s: In rhetorical terms retraining all men in Montana equals eating poor kids in Ireland, as EW points out a fairly standard mode of satire. Kaplan is off about 400 years regarding the date of “A Modest Proposal,” something Tacopina tacitly corrects in the snippet EW provides of his complaint. I am not a lawyer and can’t comment on the appropriateness of Kaplan’s interjection, but it seems to me to be a thin reed on which to base a mistrial.

    As far as being retrained in Montana goes, the men must also learn to ride pygmy ponies and harvest dental floss.

    Zirc

    • Buzzkill Stickinthemud says:

      It’s been decades, but I caught your reference to Zappa (pygmy ponies and dental floss).

    • Suburban Bumpkin says:

      Frank Zappa…I think I still have the album, oh to be a dental floss tycoon.

        • theartistvvv says:

          *Overnight Sensation*, an essential part of the Zappa oeuvre; the present day composer is missed.

          Saw him in the 80’s with Vai shredding onstage; Vai solo’d first, and Zappa sat on the drum riser and blew him away.

    • Alan Charbonneau says:

      He’s off by 400 years, likely because he had a vague sense of it being written in “the 1700’s” and mistook part of the century for the number of years.

    • Kick the Darkness says:

      Read this and had to play Joe’s Garage. I remember, as a relative naif, doing passenger pickup at LAX for the first time and hearing “the white zone is for loading and unloading only” and thinking “hey the Central Scrutinizer is for real”.

      But thinking of the drive to LAX, If I was to be chromosomally adjudicated and relocated, it occurs to me that having a pygmy pony and kicking around the Two Medicine region of Glacier National Park might not be so bad.

  6. Drew in Bronx says:

    On woke Jonathan Swift.
    He was Dean of the Anglican cathedral in Dublin and a renowned preacher. One of the twelve sermons he published was using the text from Acts 20:9: “A certain young man by the name of Eutychus, and being carried down into deep sleep as Paul’s disquisition went on and on, was upended in his sleep and fell from the third floor, and was lifted up a corpse.”

    It is a hilarious deadpan skewering of preachers, listeners, self-indulgent non-attenders and political opponents alike.

    Swift has always been about being woke.

  7. Rugger_9 says:

    I’m also wondering why Tacopina thinks is will have any traction at all. It’s not a reference that by any rational reading implies Kaplan favors Carroll’s case (maybe I’m wrong but I see no glowing tributes about it), nor does Kaplan have the reputation AFAIK (though I’m in CA, maybe the locals know better) of engaging in legal Kremlinology. His rulings so far look like a no-nonsense judge wanting to remove theatrics from his courtroom. That policy doesn’t suit Defendant-1 or Tacopina so here we are.

    I guess this is an example of the legal strategy choice of arguing the law, arguing the evidence or pounding the table. Tacopina went for Door #3 from the very beginning.

    As for the legal mechanism, would this be an appeal point within the NYS system or is there an off-ramp to the federal appeals side?

    • Ravenclaw says:

      Just a guess: He is trying to build a plausible argument that the judge behaved in a manner prejudicial to the defense throughout the trial as a basis for appealing an adverse verdict. This is just one of many more-or-less-silly complaints he has uttered.

  8. phil_01MAY2023_1129h says:

    Not only don’t folks on the far right not get satire, they also fail to grasp metaphor, not to mention suffering from an irony deficiency.

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  9. earlofhuntingdon says:

    Tacopina probably thought the reference was to Indecent Proposal, something with which his client might be more familiar.

    • readerOfTeaLeaves says:

      “And when you’re a star they let you do it. You can do anything.
      So much for proposals…

  10. TimothyB says:

    I appreciate SaltInWound’s gracious acknowledgements. I wasn’t trying to pile on; I see now, but couldn’t when posting, that FrankTim had already made the same point I did 2 minutes earlier. The content moderation here at emptywheel.net is wonderful, but implies a lag of five minutes.

  11. Kick the Darkness says:

    I’ve always been in the group that gets the boot during jury selection. Which is understandable and really for the best. But next time I’m hoping the judge goes “I’m sorry my loves, but I’m afraid it’s got to be medical experiments for the lot of you.”

  12. Rugger_9 says:

    Amanda Marcotte over at Salon has an interesting take on Tacopina’s cross examination, and how it fits other known characteristics for Defendant-1. It is worth reading in full, but the tl/dr version is that this was an assertion of power to put Carroll in her place, not anything to do with lust. FWIW, power and control are a significant motivation for rapists.

    If this is an admission of guilt like it sure sounds like it is, any mistrial motion will fail (as the dawn one already did).

    https://www.salon.com/2023/05/01/donald-defense-attorney-in-rape-trial-may-have-accidentally-revealed-the-motive/

    • Ginevra diBenci says:

      Those who need to dominate due to a fear of being perceived (including by themselves) as weak seem to experience power over others the way most of us do “lust,” as I think you are using that term, Rugger. Exerting your will over another person’s wishes is a turn-on.

      With her intellect and popularity, E. Jean Carroll would naturally have been a “challenge” for Trump. It’s unlikely she would have flattered him, and he might have internalized the kind of joky flirting she’s described engaging in at Bergdorf’s (she urged him to try on a lacy women’s teddy) as intolerable belittlement. He has an alleged pattern of assaulting women who write, not (that we know of) the ones whose professions aren’t built on having such a voice.

      Trump is still notably trying to take Carroll down. He can’t overpower her physically, but he won’t stop the dominance tactics. Every “truth” or pseudo-tweet in which he invokes her age (in truth almost the same as his) or looks is one more bullying blow. He can’t stop himself, which means it’s likely still a turn-on, one of the few left for him.

    • Ginevra diBenci says:

      Rugger, thank you for the Marcotte link. I read it after I wrote the comment that’s in mod now. My disagreement with Marcotte is based on personal experience and way too much research: the argument that rape is an act of power and *not* sex imposes far too strict a binary on what in reality is messy and mixed.

      The rapists I have known derived a gratification (if not release) that certainly seemed sexual, from actions that involved imposing their physical power in order to dominate (aka “winning”). Many of the killers I’ve studied got sexual gratification from the ultimate act of dominance, taking another person’s life. I don’t think we fully understand the relationship(s) between violence and sex yet, and until and unless we do we are better served considering them together.

      • Rugger_9 says:

        Good points, to which I will add that when an action has to be explained like Tacopina was doing in his cross examination, it is also indirectly admitted. Why explain something that never happened?

        I also saw Marcotte’s discussion as completely eviscerating the ‘she’s not my type’ defense that the RWNM seems to think is definitive.

      • Ravenclaw says:

        Thank you for that, Ginevra. Ignoring the dual nature of rape (and perhaps, as you suggest, some murders) will never lead to an understanding of its true dynamics.

        • theartistvvv says:

          Indeed, sometime back on a music forum in the midst of a whiney discussion about politics or something equally sensitive for some, I made reference to a lyric in a song where ““la petite mort” referred to an orgasm, and was thereby accused of threating the whiner’s life.

          Sorry, that was a flashback …

    • MsJennyMD says:

      Thanks for the link. A 2016 quote that screams volumes for behavior.

      “I did try and fuck her. She was married. I moved on her like a bitch, but I couldn’t get there. And she was married. You know I’m automatically attracted to beautiful. I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star they let you do it.
      You can do anything … grab them by the pussy.”
      D.J. Trump

  13. P J Evans says:

    Tacopina’s education seems to be lacking. I met “A Modest Proposal” in high school.

    • Alan Charbonneau says:

      I was introduced to Swift’s Modest Proposal as a freshman in college.
      But my 8th grade English teacher shared this, perhaps apocryphal, story of Napoleon escaping from Elba and marching towards Paris:

      1815, the Paris Moniteur newspaper reported Napoleon Bonaparte’s flight from exile on Elba and his return to power and glory:

      March 9: The monster has escaped from the place of his banishment

      March 10: The Corsican ogre has landed at Cape Juan.

      March 11: The tiger has shown himself at Gap. The troops are advancing on all sides to arrest his progress. He will conclude his miserable adventure by becoming a wanderer in the mountains …

      March 12: The monster has actually advanced as far as Grenoble.

      March 13: The tyrant is now at Lyons. Fear and terror seized all at his appearance.

      March 18: The usurper has ventured to approach within 60 hours’ march of the capital.

      March 19: Bonaparte is advancing by forced marches, but it is impossible for him to reach Paris.

      March 20: Napoleon will arrive under the walls of Paris tomorrow.

      March 21: The Emperor Napoleon is at Fontainebleau.

      March 22: Yesterday evening His Majesty the Emperor made his public entry and arrived at the Tuileries. Nothing can exceed the universal joy.

      I’ve used the “nothing can exceed the universal joy” quote numerous times in my life. It’s one of my very favorites…

      • Konny_2022 says:

        But “His Majesty the Emperor” was forced to abdicate exactly two months later, on June 22, 1815, after he had lost the Battle of Waterloo, and exiled to St. Helena until his death in 1821.

        So I don’t quite understand whose joy you have in mind when using the quote.

  14. 2Cats2Furious says:

    I’m genuinely baffled by the purpose of Tacopina’s motion for mistrial, unless he’s trying to antagonize the judge into losing his temper. None of his complaints – even taken as a whole – come anywhere close to the standard for a mistrial.

    At times, Tacopina seems to forget this is a CIVIL – not a criminal – case. The judge should appear impartial, but he doesn’t have to grant extra leeway to counsel for a civil defendant.

    In my experience as a civil litigator, federal judges tend to be more protective of the jurors’ time, so if Tacopina is asking the same questions over and over, or in an argumentative fashion, they have no problem sustaining objections and/or telling counsel to “move along.” That seems to be the bulk of Tacopina’s complaints. The entire motion seemed like a silly exercise in futility to me.

  15. Molly Pitcher says:

    I guess that the erudition of “Q” has been unrecognized and underappreciated. Surely “Q” has been referencing Swift when claiming that the Hollywood and Liberal elite are eating babies.

    • Buzzkill Stickinthemud says:

      Of course! There’s no other possible explanation. The only problem is, Swift did not go far enough in his descriptions of how to prepare baby. Being a liberal elite, I’d be happy to share some recipes.

      • David B Pittard says:

        I’m no cook, but thought boiling was the way, but then I read that you throw the baby out with the bath, which seemed counter-productive.

  16. 90's Country says:

    The more comments I read about Tacopina not understanding this or that reference makes me think that this bs motion is so typical of Trump’s approach to screwing with the legal system that it may have in fact come from him.

      • Peterr says:

        Do judges not get fed up with lawyers making bad motions? “Quit wasting the court’s time with motions you know — or ought to know — have no merit.”

        • 2Cats2Furious says:

          What “territory” is that where it makes sense to file BS motions for mistrial in a civil case? What benefit can be gained from doing so?

        • earlofhuntingdon says:

          It’s a kitchen sink defense, usually used when you’ve got nothing else. Besides, I suspect your rational notion of benefit and Trump’s have little in common.

        • 2Cats2Furious says:

          Protecting the record can be accomplished by obtaining rulings on objections throughout the trial, and filing a motion for new trial if the jury verdict doesn’t go the party’s way.

          This particular motion for mistrial wasn’t remotely worth the effort of drafting and filing. I absolutely disagree that this is something defense attorneys do in a civil case as “standard,” or something attorneys “have to make.”

        • bmaz says:

          And, yet, who gives a shit that a formal motion, as bad as it was, was filed? Total nothing burger.

        • 2Cats2Furious says:

          Yes, yes they do. I would never bring such a petty, weak motion like this in front of a federal judge in a civil trial.

      • 2Cats2Furious says:

        What? Motions for mistrial based on a series of petty complaints are “standard” in federal civil trials?! “You have to make it,” with “it” being a motion for mistrial that has no chance of success?! That has not been my experience at all.

        I could understand if this was a criminal case, where a mistrial benefits a defendant, that you may want to swing for the fences. Or, if you’re a defendant in a civil case whose main purpose is to delay, which seems to be Trump’s goal. But in my experience, the vast majority of civil defendants aren’t going to file a BS motion like Tacopina did, which only serves to irritate the judge and – even if successful (incredibly unlikely) – would only increase litigation costs.

        • Peterr says:

          Hmmm . . .

          In reading your last sentence, I’m struck by two things. First, you wrote “civil defendants aren’t going to file a BS motion . . .” Strictly speaking, the lawyers for civil defendants file motions, not the defendants, though I would assume a lawyer would have conversations with his/her client about possible future motions that have major implications for the course of the trial and possible appellate proceedings. But would they run each and every motion past their client?

          This line of thought led me to my second observation. Something that would “increase litigation costs” in this situation would be something that increases income to Tacopina, right?

          Of course, given the client we are talking about here, it’s one thing to increase your billable hours, and quite another to collect on those billable hours.

        • timbozone says:

          Unless their defendant/client in a civil case is made out of money, one would think that a responsible lawyer would need to run such a strategy by the client first…

        • earlofhuntingdon says:

          Fundamental moves and filings are things a lawyer should always run past their client. They’re the one on the hook for the consequences.

        • 2Cats2Furious says:

          Of course the motions filed by a party are typically filed by that party’s lawyers, unless a party is representing themselves pro se. But, it is a common legal shorthand to say “Defendant filed his motion for summary judgment, alleging that…” without clarifying that Defendant’s attorneys filed said motion.

          To answer your other question, any dispositive motion (like a motion to dismiss, motion for summary judgment, or motion for mistrial) should absolutely be run past the client first, as should all motions that have a significant impact on the case.

          I absolutely agree that Trump’s SOP is to delay, delay, delay, which is probably why Tacopina filed his weak motion for mistrial, despite knowing it was unlikely to succeed. The only issue I have is with bmaz’s comment suggesting that such motions are commonplace in civil litigation, when in my experience, they are not. Most attorneys I know in civil litigation would not want to risk pissing off the judge during trial, especially when they can instead file a motion for new trial after the verdict, in the event that the verdict goes against them.

        • earlofhuntingdon says:

          Pissing off judges and everyone else is pretty much Trump’s lifetime behavior.

        • theartistvvv says:

          There are various reasons for such motions, including posturing for the next case, or the next interaction with the judge or opposition even within this case, as well as possibly (even if accidentally) preserving issues for appeal, and here because it’s a “trademark” act of Tacopina and tfg to push the envelope.

          And if it costs the defendant greater legal fees, it cost the plaintiff attorneys effort, perhaps frustration …

          Finally, as much as they do or don’t care about what the judge does in *this* trial of these issues, they likely anticipate a (potentially drawn-out) appeal.

        • Rugger_9 says:

          Perhaps I’m more fuddled than usual, but doesn’t Tacopina’s signaled failure to call any witnesses undermine any appeal points? It’s a civil trial and preponderance of the evidence is much easier to hit when one side presents a case with evidence and the other side does not. Any idea what Tacopina will present to blunt the testimony from all of these witnesses? It’s a bad hand but badly played as well.

          OT, I’m wondering if Defendant-1 will try to crash the coronation of Charles III Saturday. It fits his persona and he’s been practicing at M-a-L weddings.

        • theartistvvv says:

          This is a civil case, and in a civil case the plaintiff has the burden of proof – unless an affirmative defense (not really a thing in a criminal case) is raised which shifts the burden of proof as to that defense to the defendant.

          IOW, the defense has no requirement to call any witness(es) or produce any evidence, and it is in fact reversable error (in every state, as far as I know) to allow argument re same. [A competent lawyer does it anyways in a non-overt fashion – they can’t say, “The defense failed to provide any evidence”, but they can say, “You heard no evidence to the contrary” or even safer, “All of the evidence you heard says …”.]

          Any point of appeal re Plaintiff’s evidence would go toward foundation and admissibility, manifest weight, or perhaps other procedural attacks (e.g., improper argument).

          The statement, “preponderance of the evidence is much easier to hit when one side presents a case with evidence and the other side does not” may be a practical effect, but legally it is the strength of the evidence presented by plaintiff that is at issue, *e.g*., first, did they make a *prima facie* case by producing sufficient evidence of the intentional tortious act and the proximate causation of the claimed resultant damage ? If so, the analysis shifts to how the counter-evidence and/or any other attacks (such as impeachment, strength of cross examination, obtained limiting instructions, summation argument) serve to diminish (if at all) the weight that evidence has when considered toward any verdict.

          Tacopina’s general approach, as bmaz said elsewhere in this or a proximate thread, is (I paraphrase) “nothing happened, and no harm if it did”, but he, Tacopina, will undoubtedly continue on any further cross examination and in closing argument to attack the witness’ credibility by arguing things like bias, intervening time/failed memory, whatever inaccuracies arise to attempt to conclude that the witness’ credibility is so questionable they are not to be believed.

          At this point, it’s not a “he said/she said” case so much as a “did she and the other witnesses persuade” thing.

          I note that one potential hilarious issue of evidence is if Tacopina is ill-advised enough to argue that Plaintiff failed to produce any physical evidence, said in light of tfg’s refusal to provide his DNA until the last second.

          Finally, I don’t think the Coronation is a crashable event.

  17. johno808 says:

    By the way, the genesis of the phrase “a lie travel’s halfway around the world while the truth is still putting on its shoes”, often used in the Trump era, is attributed to Jonathan Swift (not Mark Twain).

  18. wrack says:

    Has no one here considered that shipping all (or at least many) men off to Montana might not be such a bad idea? I ask as a man and a non-comedy writer.

    [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. You’ve also used a different name on this comment; your previous 12 comments have been published under “wrhack.” Once you choose a site compliant name please stick with it. Thanks. /~Rayne]

    • ExRacerX says:

      Comedically, it’s an excellent joke.

      As a serious proposal? Nah. Shipping any group anywhere is a fully fascistic idea..

    • Peterr says:

      If the goal is reeducation of men, I’m not sure Montana would be the place to go. Montana’s governor Greg Gianforte is clearly in need of this kind of thing (flashback to 2017), and he’s already there.

    • Rayne says:

      As appealing as the notion may be, do we really want to damage Montana’s ecosystem including the Bitterroot mountains, or dilute Native American’s vote?

  19. David F. Snyder says:

    From the Wikipedia page on “A Modest Proposal For preventing the Children of Poor People From being a Burthen to Their Parents or Country, and For making them Beneficial to the Publick”

    In English writing, the phrase “a modest proposal” is now conventionally an allusion to this style of straight-faced satire.

    https://en.m.wikipedia.org/wiki/A_Modest_Proposal

  20. David F. Snyder says:

    “Siri, take a letter to my lawyer, Mr. Tacopina:

    Gentleman … question mark …”

  21. Doctor My Eyes says:

    I almost forgot to post my appreciative comment to this post while reading the enjoyable commentary, mixed in with the deeply troubling issue of the destructive effects of testosterone on human society and how power and sex are intertwined. It’s gratification folks–we all are crazy for it. Self-discipline requires effort. Most people I know could do a little better along those lines. To be clear, I can’t imagine how anyone could ever commit rape, but I do struggle with craving for gratification. Sexual excitement mixes in with many other kinds of gratification, as a glance at the number of different fetishes will confirm. It goes to the same place in the brain. Unfortunately for us all, Trump doesn’t just stick with gobbling fast food.

    As to my response to this post: the incisiveness of this sentence is worthy of Swift himself:

    Ultimately this comes off as Tacopina — and by extension, Trump — whining that he’s not in on the joke, whining that there’s some kind of elite culture that Carroll and Kaplan share that grab-them-by-the-pussy types can’t be expected to adhere to.

    • earlofhuntingdon says:

      Donald knows that no matter what he does or who he pretends to be, he’ll always be on the outside looking in. He doesn’t really see what’s there, but he knows he can’t have it, or be part of it. His rage is unquenchable.

      He should never be in public office or a position of power again.

      • loveyourstuff says:

        Succinct and deeply insightful: “Donald knows that no matter what he does or who he pretends to be, he’ll always be on the outside looking in. He doesn’t really see what’s there, but he knows he can’t have it, or be part of it. His rage is unquenchable.” Thanks. Hashtag “unquenchable.” I don’t tweet. Will someone hashtag earl’s summation of Donald’s psychopathology?

        • Doctor My Eyes says:

          I love me some Earl but to be fair, the insight is Marcy Wheelers’, masterfully explicated by our royal guest.

        • earlofhuntingdon says:

          An earl is a mid-level member of the nobility, below duke and marquis, above baron and viscount. The only royal in these here parts is Marcy, but I’m pretty sure she’s not attending the coronation on Saturday.

    • RipNoLonger says:

      Pulling from my bubble memory – aren’t conservatives (and by tenuous extension magats) challenged when it comes to humor and irony? They see other people smiling and laughing at some words and get angry that they “don’t get it.” That’s probably also why so much of the liberal/progessive attacks that involve humor or innuendo/back-handed compliments are so ineffective.

    • JohnJJSchmidt says:

      Thanks to my prostate cancer treatment, I no longer have ANY testosterone. It is a different world to me now. Not as profound as you might think, but not subtle either.

      • Tom-1812 says:

        I started Androgen Deprivation Therapy myself about six months ago after my prostate surgery was not totally successful, the reason for which I can’t help but think was due to delays in scheduling my operation a year ago due to the local hospital being flooded with Covid patients who hadn’t been vaccinated.

        Apart from occasional mild hot flashes, the main side effect I’ve noticed is a tendency for my thoughts and feelings to be more wistful, nostalgic, and emotional overall. I think my kids were puzzled a month or so ago when their old Dad, whose taste in movies usually runs to historical films, classic Hollywood movies from the ’30s and ’40s, westerns, and film noir, urgently texted them to say they absolutely had to see this beautiful, heartbreaking new Irish film called “The Quiet Girl”, which they did.

        • JohnJJSchmidt says:

          I had radiation which didn’t really work and the cancer spread (arrested now though).
          I found over time, 2 years now, that I have zero libido, but the interesting thing is I do not feel the need to impress women and little desire to compete. Nice part is that I am immune to being manipulated by a little flirting. (I could have really used that when I was younger.) I also find that I am more empathic than I already was. No lifetime movies though.

          Sorry to get WAY ot but I found one of my new 4 a day horse size pills is $10,000 a month, paid in full by Part D.

        • Tom-1812 says:

          My treatment is in the form of injections in the abdomen every three months. Not sure how much they cost as I have the benefit of the Canadian healthcare system. I’ve only been on the therapy about six months but I, too, have noticed a general loss of interest in sex. On the other hand, the hair on my head has thickened. Just glad to have my PSA at next to undetectable levels. I tend to be in a reasonably warm and buoyant mood most of the time, but I think that may be partly due to giving up alcohol about a year ago as well as to the ADT.

  22. Jordan Orlando says:

    We’re dealing with such creeps and idiots in the Trump era. It’s exhausting. There’s a video somewhere in which Trump says that the “message” of Citizen Kane is that “he needed to get a better wife.”

    • Thomas Paine says:

      Gordon was a wonderful songwriter and poet. He joins Leonard Cohen and Joni Mitchell in the pantheon of the greatest folk artists of all time. We still have Joni, but Gordon and Leonard are in a better place, hopefully singing poetic duets accompanied by acoustic Martin or Gibson guitars. Rest in Peace.

      • Epicurus says:

        No drums and the best song lyric ever from one of the best songs ever.

        Is the home team still on fire, do they still win all the games,
        And by the way, did she mention my name
        Did she mention my name.

    • Ginevra diBenci says:

      Lightfoot had a hit song about a Great Lake shipwreck, something that had long been an obsession of mine (and still is). He didn’t need no Titanic.

      • theartistvvv says:

        I have always been fascinated by the trivia that the female subject of “Sundown” is the woman who allegedly gave John Belushi the fatal hot shot – I have a hard time understanding the mutual interest.

  23. Marie Burns says:

    People often have trouble “getting” satire, and that’s because satire requires the reader to understand an exterior frame of reference with which s/he may not be familiar. But to anyone who does get Carroll’s riff on “A Modest Proposal,” her analogy is obvious: both Swift & Carroll “modestly propose” to rid society of a particular meddlesome problem by disposing of the irritant in grossly unacceptable ways. The analogy was immediately obvious to Judge Kaplan.

    I don’t blame Jumpin’ Joe Tapioca for being ignorant of one of the best-known essays in Anglo-Irish literature, but he made himself ridiculous, as Marcy points out, by faulting Judge Kaplan for being aware of a famous bit of literature some of us read in 7th-grade English class.

  24. HGillette says:

    How often when a lawyer asks for a mistrial on the grounds that the judge is biased does the judge grant the mistrial? I’m guessing never?

    • bmaz says:

      Oh, that is not right at all. The defense was “it never happened”, and, if it did, there was “no defamation nor calculable damages”.

      • Rugger_9 says:

        If the rape never happened, then there is no need to explain the rape motives which is one of the things Tacopina did this week. I noted this on an earlier post. I also don’t get the sense that Tacopina was able to show any evidence that Defendant-1 wasn’t there to commit the rape such as a tape or receipt, but the plaintiff did bring the evidence.

        • Rugger_9 says:

          I see that Defendant-1 has announced he is returning to NYC to ‘confront’ E. Jean Carroll and cutting his trip to Scotland and Ireland short. I guess he discovered he could not crash the coronation without being unceremoniously removed by dozens of guardsmen. You’d make millions off the video.

          There was also a report that the High Court in Eire wants to talk to him on 15 May regarding an ongoing environmental lawsuit so maybe he’s dodging that as a side benefit.

          However, I do wonder what the idea of ‘confronting’ Carroll without actually testifying really means. Does he sit at the table and glare at her? I can’t see Tacopina allowing Defendant-1 to testify because of the huge liabilities at cross examination in addition to the deposition evidence and the risk that the DNA sample might be taken then and there. It’s a sign to me that Carroll’s case has struck a nerve and with the civil trial standard also means he’d probably lose.

          I can’t see how showing up now in court helps Defendant-1 after blowing off the Carroll trial to this point. Can the lawyers here make some sense about what Tacopina is doing here? I think there is zero chance that Defendant-1 agrees to be seen but not heard.

        • bmaz says:

          You cannot put Trump on the stand. But have no idea what “confronting” Carroll could mean if you do not.

        • Rugger_9 says:

          Maybe it’s the CNN ‘town hall’ sellout? It’s the widest reaching platform that will not have any pushback on his claims.

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