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If jury trials favor showmen, then appeals courts reward the sticklers — lawyers who shun passion for precision and prefer facts to flamboyance. Some who tuned in to the two and one-half hour hearing before the Florida Supreme Court Nov. 20 may have been disappointed. After all, the bulk of the court’s time was not taken up with impassioned arguments about lofty constitutional principles. The best advocates, while keenly aware of the television audience and the possible political fallout from the hearing, focused on the justices’ sometimes quirky concerns over obscure Florida statutes, seemingly conflicting deadlines, bureaucratic functions, and, ultimately, the power of the court to fashion a resolution. The justices ultimately embraced the Democrats’ arguments, ordering Secretary of State Katherine Harris to include late-filed manual recounts in final vote tallies. But that decision did not seem a foregone conclusion after Monday’s showdown. In the courtroom, no lawyer proffered an argument that blew away the justices or so succinctly summed up his case as to leave the court with no unanswered questions. In fact, several of the issues central to the justices’ decision were presented in briefs, but barely mentioned during oral arguments. Although largely overlooked in the media frenzy over the politics of the case, the questions before the Supreme Court’s seven justices were relatively straightforward: Did Harris abuse her discretion in refusing to accept hand counts in three Florida counties? Could the court overrule that? And did Florida law allow vote counts to extend beyond seven days after the election? In one of the most telling signs of the magnitude of the case, the attorneys were ushered in and out of the courtroom like Hollywood stars at an L.A. nightclub. Orange ropes and police barricades separated the attorneys’ path to the courtroom doors from the crush of protesters, spectators waiting in line, and vendors hawking memorabilia. The scene even had its own live soundtrack, provided by Angelina the Polka Queen (on the accordion) and King Ira (banjo). Clad in sparkly red outfits, the duo belted out a woeful country polka: “George W., won’t you make things right?” Those lucky enough to get the star treatment entered the doors in clusters of twos and threes, selected at the court’s request and composed of two attorneys and perhaps one representative, each group representing one of the nine parties involved in the case. They then had to produce driver’s licenses to get past the county and capitol police forces and the court’s bailiffs. For the rest of the lawyers working on the cases, it was public access only. They had to queue up like everyone else — the retirees, the insurance adjusters taking a day off, and the law students who waited all morning to get one of roughly 100 open seats. Even Gibson, Dunn & Crutcher partner Theodore Olson, who argued the federal court case in Miami on Nov. 13 and has been a strong force behind Gov. George W. Bush camp’s legal strategy, had to wait on line. “It’s only fair,” Olson said. But not to worry. Most of the attorneys who wanted seats didn’t spend all their billable hours Monday morning queuing up in front of the high court. It was clear that staff members or friends on line had saved seats for them. Many attorneys, including Olson, weren’t around at 9 a.m., when the public started lining up for the 2 p.m. hearing. Most weren’t visible until after 11:30 a.m. The rock star treatment for the participating attorneys ended at the door. Once they entered the courtroom, they faced a panel of seven justices hammering away — often impatient with those who seemed unable to grasp questions, give clear answers, or work through hypotheticals. Chief Justice Charles Wells was one of the more persistent and frustrated questioners. He started off by asking the attorneys “to get right to the heart of the matter.” But no one seemed quite able to satisfy his concerns. Again and again, Wells would ask, then re-ask, lawyers from both sides about what was a key issue for him: how to resolve the controversy surrounding the elections in Florida without jeopardizing Florida’s participation in the Electoral College. After Wells appeared dissatisfied by the first answer from Paul Hancock, the Florida deputy attorney general representing Florida Attorney General Bob Butterworth, he started over again. “What is the attorney general’s position as to the date in December that Florida’s electoral votes would be prejudiced or not counted?” Wells asked. “What’s the date, the outside date that we’re looking at and which puts Florida’s votes in jeopardy?” Dec. 12, Hancock said, referring to the date by which Florida must name electors in order to participate in the electoral college. But he didn’t respond to what seemed to be the subtext of Well’s concerns — what needs to happen so that the issue could be resolved by that date. When David Boies of New York’s Boies, Schiller & Flexner took the podium for Vice President Al Gore, Wells again took up the issue. “All of the controversies and contests in the state have to finally be determined by that date. Do you agree with that?” Wells asked. “I do, your honor,” Boies agreed. Wells: “How is it going to work within that time period for the votes to get totally recounted and then, if Gov. Bush wants to contest that, for him to get a contest finally resolved?” The justice was butting up against the problem of harmonizing Florida’s two election dispute options: one allowing a protest by a candidate leading to a recount before the certification of the results, and the other that kicks in after the results are certified. Wells expressed serious concern that the long delay in the recounts could end up running out the clock on an opportunity for Bush to challenge those recount results. But even Boies, arguably one of the premier advocates of the moment, didn’t fully satisfy the justices on this issue. “What is the time limit, then?” Justice Major Harding asked. “If I were sitting in your chair, that would be a difficult question for me,” said Boies, breaking into a smile. Joseph Klock Jr., representing Harris, then took the floor, and ran into the same question: On what date does the secretary take the position that her duty to certify the votes is going to be jeopardized? “The question you are asking, I can’t exactly answer that,” said Klock, a partner with Miami’s Steel Hector & Davis. Klock had the most tension-filled moments up at the podium. Time and again, the justices fired on him, interrupting his answers to ask new questions and interrupting his responses with yet more queries. Klock grew frustrated, getting shorter and sharper as his time wore on. First, Justice Barbara Pariente grilled him over what she implied were problems with the secretary of state’s criteria for rejecting supplemental votes from three counties. “When did she develop those criteria?” Pariente asked. Klock began explaining, but Pariente was dismissive. “She didn’t really exercise her discretion,” Pariente shot back. Then Justice Harry Lee Anstead started in, first pushing Klock to agree that large counties would have difficulty completing counts in seven days. Finally, Klock snapped back: “Justice Anstead, yes. May I go on?” Then Anstead mapped out a hypothetical in which votes were not turned because local election officials there had gone on vacation. Anstead kept trying to force Klock to acknowledge that there was leeway with the seven-day rule. It was obviously a line of questioning that Klock considered a waste of his 25-minute argument time. “If it was clear to the secretary of state that there was gross negligence involved in not getting them in, she is bound by the case law,” Klock said. “If we could get back, respectfully sir, to the situation we’re in here.” If there were any stars for hitting the points smoothly, they would have to be Boies for Gore and Greenberg Traurig partner Barry Richard for Bush. Both attorneys used similar tactics: patience with the court and sticking to the salient provisions and statutes that best supported their positions. “What the appellants are asking this court to do … is read a statute that says the returns must be filed by a date and time certain as though it said ‘may be filed’; to read a statute that says the secretary of state may accept late filed returns, as though it says ‘must accept late filed returns,’ ” Richard said. “The appellants have given this court no basis in this case for finding that the secretary of state was clearly erroneous,” Richard later added. “That’s the issue.” But Boies went head to head with Richard in the reading of Florida laws, citing Election Code Sections 166, 168, 102.111, 103.011, and 101.5614 — all in his first statement. “You have got a statutory system that does not contemplate that seven days brings down a curtain,” Boies said. Almost every lawyer was hit with a question he said he couldn’t answer. Pariente asked Hancock how long recounts should take. Hancock said it would take longer than seven days, especially in large counties. “Is that really something we have in the record, that it can’t be done [in seven days]?” Pariente asked. “I don’t know that there is any evidence in the record,” Hancock said. “It’s intuitive.” Pariente also caught Bruce Rogow, the lawyer for the Palm Beach Country Canvassing Board, unprepared for a question about the county’s recount effort. “Had there been any precedent in Palm Beach County in performing full manual recounts in cases other than machine error?” she asked Rogow. “I don’t know,” Rogow had to admit. Michael Carvin of Washington, D.C.’s Cooper, Carvin & Rosenthal, who represented Bush, was also forced to admit a hole in his knowledge. “Have you researched other states’ statutory schemes, compared to Florida?” asked Justice Anstead. “No, I’m not aware of — ” Carvin answered. “You haven’t researched other states?” Anstead re-asked. “No, no, I’m — ” Carvin said again. “You haven’t. OK,” Anstead said. There was no gloating last Monday. After the lawyers were allowed to leave the courtroom, they stopped on the courthouse steps for a press conference, only to realize there was a public address system that wasn’t working — and a crowd outside that had grown too loud for anyone to be heard. “Recount, recount,” chanted Gore supporters, many of whom wore stickers that read “This is America. Count Every Vote.” Bush supporters were quieter, but hoisted plenty of signs, including “Al Gore: Commander in Thief.” With that, police officers whisked the attorneys through the orange ropes, across the street, past dozens of satellite trucks and television station camps on City Hall grounds, and away from the courthouse.

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