Clerk Case Study: Clifford v. Trump

Bloomberg recently reported that Stephanie Clifford (aka “Stormy Daniels”) has a new judge. For those who haven’t been following the news, Clifford, an adult film star, recently sued President Trump in Los Angeles Superior Court. She is seeking to dissolve a non-disclosure agreement that prevents her from speaking publicly about their alleged affair.

The new judge, Judge Howard L. Halm, replaces Judge Elizabeth R. Feffer. Bloomberg reports that the basis for Clifford’s peremptory challenge is that Judge Feffer is seeking a federal judgeship and “Clifford feared that Trump’s influence in that process could impact the judge’s handling of the case.”

My colleagues and I tend to be rather interested in legal news, which shouldn’t be a surprise since Judicata is a legal tech company. This includes even minor-seeming events like the removal and assignment of judges.

We recently developed a drafting and analysis tool for California briefs — called Clerk — and we thought it’d be fun to throw Clifford’s Section 170.6 peremptory challenge at it:

For context, we’d previously used Clerk to evaluate two San Francisco Bay Area litigations — a Google pay discrimination lawsuit and a case involving public access to a California beach.

While this Section 170.6 peremptory challenge doesn’t address the substantive issue at stake in the lawsuit — whether Clifford can get out of the non-disclosure agreement — Clerk did give us a couple interesting tidbits to mull over.

To Err Is Human

First, the Section 170.6 filing makes a sloppy mistake — it misspells Judge Feffer’s name:

The filing incorrectly identifies Judge Feffer’s middle initial as “J.”

While egregious, this type of error is unfortunately common. In an analysis of the 20 largest law firms in California (several of which are in the top 10 internationally), we found that 45% had misspelled the name of their judge in a recent court filing.

And judges notice when this happens:

Judge Analytics

Second, Clerk tells us that Judge Feffer’s rulings tend to be more civil-defendant-friendly than the average judge:

For Clifford — who is the plaintiff — that didn’t bode well. Judge Feffer was appointed by a Republican, Governor Arnold Schwarzenegger, and Clifford was probably hoping for a replacement appointed by a Democrat.

But that didn’t happen. Judge Feffer’s replacement, Judge Halm, was also appointed by Governor Schwarzenegger. Though there is less data on Judge Halm (and judge analytics should be taken with a big grain of salt) his rulings show a potentially stronger bias towards civil defendants, which could be worse for Clifford:

While this is an interesting data point, it’s worth noting that judges are professionals and each case has its own unique set of facts. Nevertheless, Clerk’s analysis is consistent with what one would expect from a Republican-appointed judge. (If you’re interested in learning more about judge analytics, check out this blog post.)

Now What?

At this point we’re left to wait. President Trump’s lawyers have some time before their first filings are due. But we’re eager to see what Trump comes up with and what light Clerk can shed on his chances and strategy. Stay tuned for more!

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