Woody Guthrie said: "Some rob you with a six-gun, some with a
fountain pen." But, you do not usually find someone trying to do both.
On Dec. 21, 1998, Mark A. Merrill robbed a bank in Peotone,
Illinois. A month later, he held up the First National Bank of Illinois
in Mokena. He managed to make off with almost $22,000. But he did not
get far. Merrill pleaded guilty to the two bank robberies in March
1999. In August, he was sentenced to serve 63 months in prison.
Now, if you are sitting in federal prison for more than five years,
you have a lot of free time to think about how you got there. Whose
fault is it anyway?
The answer is obvious: Donald Trump!
In February, 2000 Merrill filed suit against Trump, the Trump Casino
in Gary, Indiana, and its manager, for $2.1 million. Merrill alleges
that if it were not for that darned casino encouraging his compulsive
gambling, he never would have robbed those two banks.
Talk about being in denial!
Frivolous lawsuits are fun to read about, but they are a nuisance to
the already overburdened judicial system and to the companies that have
to pay the bills. Unfortunately, in the coming years, nuisance suits
against casinos are only going to grow more numerous.
Potential plaintiffs often see casinos as the ultimate deep pocket.
Not only do casinos have lots of cash, but they do not get a lot of
sympathy from juries.
In the U.S., anyone can file a lawsuit against anyone else for any
reason, or for no reason at all, with virtually no risk. Most other
countries follow the "English Rule," which allows a judge to make a
party pay dearly for bringing a worthless suit. Under the "American
Rule," the losing party does not have to pay the winner's attorneys
A plaintiff on his own or with a lawyer on a contingency fee can roll
the dice with the legal system and maybe get a jackpot verdict. At the
very least he can force a company to spend time and money getting the
case thrown out.
The law has made a little progress in containing the worst misuses of
the courts. Anyone on California's "Vexatious Litigant List" cannot
file a lawsuit without first clearing it with a judge. But to make the
list, you have to be pretty outrageous: Like the convict who sued his
prison cafeteria for serving him a broken cookie.
Prisoners are a major source of lawsuits and appeals. They have
plenty of time on their hands and easy access to law libraries. What
does a casino lawyer do with a case like Merrill v. Trump?
The first step is checking to see if the plaintiff has made any
procedural mistakes. Defense attorneys look for these first, because if
they do not object immediately, they may have accidentally waived away
A common mistake made by non-lawyers is filing suit against entities
that do not actually exist. For example, a government official who felt
he had been libeled by an article in Fortune magazine, sued the magazine
and sent the papers to the Time-Life Building in New York. The case
ended up in the U.S. Supreme Court, because although the address was
correct, the defendant technically did not exist. There was no Fortune
magazine, only a company known as Time-Life, Inc., doing business as
If Merrill's suit survives to the point where it will be judged on
the merits, the casino's lawyers will attempt to have the case quickly
dismissed. Even though the lawyers may be getting paid by the hour, no
one likes to spend years on a case that will eventually be thrown out.
The casino fears not only the cost and trouble, but also the remote
possibility that the case may actually get to a jury. Jurors almost
always try and do their best, but there are occasional travesties, like
Simpson criminal verdict.
Trump's lawyers will file a motion to dismiss for failure to state a
Their job is to analyze the plaintiff's complaint and point out its
weaknesses to the judge. Merrill's suit boils down to the claim that he
discovered he was a compulsive gambler, that he asked the Trump Casino
to bar him and that the casino instead encouraged him to gamble by
offering incentives, including trips to Las Vegas.
I expect their arguments will go as follows:
- There is no statute, regulation or prior case in Indiana
requiring casinos to bar compulsive gamblers.
- Even if the judge finds the casino should have put Merrill's name on
a "Keep Out" list, this does not give him the right to sue. A few other
states do require lists of self-excluded players and have fined casinos
for failing to put someone on the list. But even these states have not
said that a person can sue a casino for being left off the list.
- Even if the casino had a duty to keep Merrill out and he has the
right to sue for breach of that duty, the casino did not cause him to
rob any banks.
The last is the killer argument. Merrill claims he told the casino
he was a compulsive gambler. Even if true, there was no way the casino
could foresee that allowing him to gamble would result in bank
Further, the law still treats human beings as having free will. It
was Merrill's choice to hold up two banks. In the language of the law,
his criminal act broke the chain of causation.
If Merrill's case makes it all the way to trial, he will still have a
tough time proving the facts he is alleging. After all, who is going to
believe that Donald Trump's Indiana floating casino would comp a player
to a trip to Las Vegas? The last thing Trump would want is his patrons
going there--Trump owns no casinos in Nevada.