#60 ©Copyright 2000, all rights reserved worldwide. Gambling and the Law® is a registered trademark of Professor I. Nelson Rose, Whittier Law School, Costa Mesa, CA.

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 fees.

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 their defense.

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 “Fortune” magazine.

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 the O.J. Simpson criminal verdict.

Trump’s lawyers will file a motion to dismiss for failure to state a claim. 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 robberies.

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.

[Professor Rose can be reached at his Web Site: www.GamblingAndTheLaw.com]

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