Will Tom Girardi’s Wardrobe Mishap Help His Appeal?

Tom Girardi had just finished testifying when he stepped off the witness stand and his pants fell to the floor.

It happened as he was the last witness at a June hearing where a California federal judge was set to decide if he should be sentenced for his wire fraud conviction or ordered to a medical treatment facility due to the moderate dementia diagnosis he first received in April 2021.

He quickly bent over and pulled his pants up, but it was undeniable that the legendary plaintiffs attorney who was known for his dapper appearance had just dropped his pants in front of a federal judge.

The judge had to decide: Was it a last-ditch attempt to convince the judge of his incompetence and avoid prison, or just the latest example of a frail 86-year-old man who is suffering from cognitive impairment? And if it really was an accident, does it now give Girardi a shot at winning his appeal and overturning his sentence?

“It’s the only card they could play,” Cole Schotz PC attorney Michael Weinstein, who worked as a federal prosecutor with the U.S. Department of Justice in Washington, D.C., told Law360. “The facts were so substantial, the victims were so substantial, the documents were so substantial, and the notoriety was so substantial that the only card they really had left was the competency, and that’s why they hit it so heavily in all aspects of the litigation and why they will come back to it on appeal.”

Girardi, however, would face a tough task in convincing an appellate panel to overturn the district judge’s assessment that he was competent to stand trial. The bar to overturn such a determination is a high one, because the appellate court would be reviewing the judge’s ruling on competency for clear error, the former prosecutors told Law360.

“As a starting point, they are going to give a lot of deference to the trial court judge, no ifs, ands or buts,” Weinstein said. “The trial court judge was able to assess both the credibility and the veracity of what testimony reflected. Both of the defendants and witnesses, things of that nature.”

“So the appellate court is not just going to come in and overturn things,” he added. “They are going to grant the benefit of the doubt to the trial court judge who witnesses this testimony.”

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