The American public’s understanding of the civil justice system often leads to misconceptions around the workings of litigation systems, such as the ability to delay payment of punitive damages. Highlighting this, The New York Times reported that Donald Trump might delay paying E. Jean Carroll the $83.3 million he was ordered to pay her. This, however, isn’t an unusual occurrence as most losing litigants in the history of civil litigation have used delaying tactics.
Paying after a trial, as opposed to a settlement, affects the chances of receiving payments. Settlement agreements often guarantee payments upfront, increasing the likelihood that payors will honor their obligations. However, individuals forced to pay tend to resist, especially if they don’t believe they owe the money.
Appealing from a money judgment often requires the loser to post security – an act that might lead to the suspension of enforcement of the judgment pending the outcome on appeal. This security might range from a “supersedeas” bond to an “appeal bond”. Frequently, the payor provides the sum they owe to the court, which is retained until all appeals are exhausted. Upon losing an appeal, the court transfers the money to the winning party.
In principle, posting a bond should promote quick payments after the appellate decision. Realistically, only large corporations usually enforce this type of judgment stay. For a majority of losing litigants, other delay tactics are used to avoid payment of judgments to the detriment of the winning party. Furthermore, lawyers’ fees often pile up with the pursuit of enforcement.
While Trump theoretically possesses assets that could be seized if he refuses to pay, the practice can be a complex and time-consuming process. Assets like Trump’s are typically held in complex networks of shell companies and intermediaries which makes the attachment of liens or enforcement of levies quite difficult. Delaying tactics can often prolong payment for years, especially in high-profile cases.
Although courts try to discourage such delay tactics by increasing the amount owed, someone refusing to pay their judgment won’t be deterred by a small percentage increase.
It is true that a determined lawyer can collect against someone like Trump over an unknown timeframe and with unlimited resources. However, if Trump is elected to office, the odds of him paying Carroll anything becomes remote. The best-case scenario for Carroll might be Trump posting a bond or security before he appeals, thereby ensuring her due is fulfilled with minimal further expense and emotional distress.