Thank you for sharing!

Your article was successfully shared with the contacts you provided.
For those who watched the two-day election-contest trial in Judge N. Sanders Sauls’ courtroom this month, it must have seemed that some of the nation’s best litigators were having a bad law day — or maybe two. That’s not to say fine legal arguments weren’t made by lead lawyers David Boies of Armonk, N.Y.’s Boies, Schiller & Flexner for the Gore team and by Barry Richard of the Tallahassee office of Miami’s Greenberg Traurig for the Bush side. And even top trial lawyers could learn something from the sharp cross-examinations. But many observers found themselves stunned or even amused that each side’s decision to call certain witnesses backfired — big time. “I think we felt we knew what they were going to say, but in a couple of instances, we didn’t,” says Irv Terrell of Houston’s Baker Botts, which handled witness questioning with Chicago’s Bartlit Beck Herman Palenchar & Scott. In normal litigation, this might be an embarrassing acknowledgement for the crack litigators involved. But the unexpected, damaging statements their witnesses made in this anything-but-normal election-contest trial weren’t the product of negligent preparation or some avoidable bad lawyering. Instead, these routinely overprepared lawyers fell victim to a combination of events never encountered in most lawsuits. The surprises that sandbagged lawyers not used to surprises were “a combination of two things,” says Deeno Kitchen, a Tallahassee trial lawyer who joined the Gore team on Dec. 1, less than a day before the historic trial started. The first, he says, was “the velocity of the case.” The breakneck pace of the proceedings began when the contest suit was filed on Monday, Nov. 27, followed by discovery and depositions Friday and a trial squeezed into Saturday and Sunday. This took place while a stream of related election litigation moved along as the clock ticked toward the looming deadline of Dec. 12, when Florida’s presidential electors are scheduled to be appointed either for Vice President Al Gore or Texas Governor George W. Bush. The second source of surprises involved the selection of experts, Kitchen says. “You can’t call the Academy of Florida Trial Lawyers and say, ‘We need experts [in voting devices],’ ” he explains, referring to the esoteric nature of the testimony. “ You don’t have the professional witness. The man who invented the device, he’s a good ol’ boy. And when trial lawyers start asking questions, [expert witnesses like him] say things you don’t expect.” Take Kimball Brace, the Democrats’ expert, who testified that hardening rubber strips and chad buildup inside punchcard voting devices could have made it difficult for thousands of voters to vote on Nov. 7, producing hanging chads and dimpled ballots — part of the 14,000 ballots the Democrats wanted recounted or added to the final tally. “He was the first and last resort,” says Stephen Zack, a Gore lawyer, explaining that Brace was contacted because he had been frequently quoted by reporters as the election dispute snowballed. Zack, of Miami’s Zack Kosnitzky, says he that had no time to consider the selection of other voting-machine experts, even though a second one was on Gore’s original witness list. Bush lawyers were happy Brace was called. “I thought Brace would be a horrible witness for them and that if we scared him off in the deposition, they would bring somebody else in,” says Philip Beck of Bartlit Beck, who cross-examined Brace. Beck — joined on the case by five other lawyers from his firm, including well-known litigator Fred Bartlit and former U.S. Supreme Court clerks Shawn Fagan, Glen Summers and Sean Gallagher — read an affidavit prepared by Brace before trial and believed that Brace would be testifying about things beyond his expertise. He told his junior partner doing the deposition to go easy. “Basically, I was told to take a dive,” says Gallagher of the deposition he took the day before the trial started. On cross, Beck pecked away at Brace’s contention that problems with the Vote-O-Matic voting device in Miami-Dade and Palm Beach counties led to thousands of votes being cast that could not be counted through a machine recount, requiring a hand recount. “Would you agree, sir,” Beck asked, “that the problem with human inattentiveness, and that seeing crankiness, or even political bias, would be more likely to have an influence in how a manual recount comes out…?” “Well, I think your remark in terms of political bias is wrong,” Brace responded, “and it’s an insult to election administrators.” Beck: “Could you answer my question, please?” Brace: “There is certainly that take, and different interpretations.” Moments later, Brace was asked his opinion of the canvassing boards in south Florida, two of which Judge Sauls would have to find abused their discretion to go forward to a new recount. “In term of their professionalism, I think that all of them are probably the most professional group of elections supervisors in the country, true,” said Brace — testimony that couldn’t have helped Gore. “Your first witness, especially one on national TV, should be one who can pitch almost a perfect game, and he didn’t come close,” says Steve Uhlfelder, a senior partner at Holland & Knight in Tallahassee who has followed the entire case as a commentator for ABC television. WITNESS REVERSAL Although David Boies, Gore’s chief litigator, did not agree at all that Brace and the Democrats’ second witness — statistician Nicolas Hengartner, a Yale professor — may have backfired, he does believe two witnesses called by the Bush team ended up being Gore’s best witnesses. The first one is obvious to anyone who followed the trial. John Ahmann, who has been in the voting-device business for 34 years and holds several patents for components of the Vote-O-Matic, was the victim of the well-publicized Perry Mason moment when Zack asked him on cross about a 1982 patent application that would improve older Vote-O-Matics with problems — the ones allegedly still used in Miami-Dade County. The patent application was found via the Internet by a colleague of Zack in the middle of the trial and rushed to him for the cross-examination. “If chips are permitted to accumulate — this can interfere with the punching operations,” Zack said, reading Ahmann’s patent application in court, “and occasionally, it has been observed that a partially punched chip has been left hanging onto a card” resulting in the machine becoming “so clogged with chips as to prevent a clean punching operation. Incompletely punched cards can cause serious errors to occur in data processing operations utilizing such cards.” If that wasn’t enough, a few minutes later Ahmann made an admission that left Democrats so gleeful they distributed printouts of his testimony to reporters at the next recess: “[A]nd as you told me, in close elections, you should have a hand recount. Is that correct?” Zack continued. “Your honor I’m going to object, both on relevance and also beyond the scope of direct examination,” Beck said. “Overruled.” “Isn’t that what you told me just the other day before yesterday, sir?” persisted Zack. “This is normally — yes,” said Ahmann, “however, normally it’s in small elections, not nationwide elections. And when you have one candidate who is off by one vote or two votes, which has happened that, you know, [it's] a good idea to have a recount, you betcha, especially en masse, because most of their equipment is defective.” “You made no qualifications when you answered my question and I said: In close elections, a hand recount is advisable, correct?” “In very close elections, yes.” The backstory for Ahmann makes his testimony that much more interesting. The Democrats wanted him, too, says Ahmann, although Boies says he was unaware of that. Ahmann says that before he agreed to testify, he was called by someone inquiring on behalf of the Democrats, who asked if he would testify on their behalf. “If I testify, it won’t be for either party,” Ahmann says he said, recalling what he told the person who called him. “It will be the facts, the truth. As unbiased as I could make it.” He said the Democrats decided not to ask him to testify. “And I told that to the Republicans, and they said fine.” Boies says if he knew what Ahmann would have said on the stand — which he acknowledged was impossible because they didn’t have the patent application in advance — he might have called him instead of Brace. Becks says the Bush team was aware Ahmann might give pro-Gore testimony but insists his testimony is “what passes for high drama on TV, but I knew it wouldn’t affect the judge’s decision.” THE STATISTICIAN The second Gore witness, Hentgartner, the statistician, needed to give Judge Sauls a legal justification to rule for Gore — a statistical basis for ordering a recount of some 9,000 Miami-Dade “undervotes” that had not been hand counted. Instead, this is what he got: Gore lawyer Jeffrey Robinson of Washington D.C.’s Baach Robinson & Lewis asked, “What was the initial task that you undertook after you had been contacted in connection with this matter?” Hentgartner: “The initial task was to look at trying to give a prediction on the probability that the results of the election might be overturned if a full recount would proceed in Miami, Broward and Palm Beach.” “Are you today, offering any opinions on that subject?” “No sir.” On cross-examination by Beck, Hengartner was asked if he had an opinion about why there were more undervotes in Vote-O-Matic devices than in optical scanning voting machines. “I have many opinions, but I have no proof,” the statistician said. “Well, I want to make sure I didn’t miss something,” Beck said. “Did you express any of those opinions so far?” “No.” Says a Florida election law expert who has followed the case closely: “He was a bad witness because he didn’t give any of the numbers they needed to get past the first step” — the ones to persuade Judge Sauls he had a reason to recount the ballots. Judge Sauls’ ruling for Bush made that clear: “In this case, there is no credible statistical evidence and no other competent substantial evidence to establish by a preponderance of a reasonable probability that the results of the statewide election would be different from the result which had been certified.” BURTON FOR GORE? In a trial in which the key witnesses did appear to be topsy-turvy, Boies contends that the second Bush witness to help their case was Judge Charles Burton, the now-famous chairman of the Palm Beach County Canvassing Board. “And you believed that the votes that you counted … as part of your manual recount, were votes that you had identified as votes where you could discern the voter’s intent, correct?” Boies asked on cross, trying to convince Judge Sauls that a hand recount would be fruitful. “Correct, that those were clearly votes that were … not previously counted by the machine recount,” Burton said. But neither this nor any of the other testimony was enough to persuade Sauls, who ruled against Gore, even to take a look at the ballots trucked up from Miami-Dade and Palm Beach. Boies says he does not regret calling the witnesses he did because he has said all along that his best evidence would not come from any witness, but from the ballots themselves. Still, in the appeal of Sauls’ ruling to the Florida Supreme Court, in oral argument, Boies cited Ahmann and Burton — Bush witnesses — to make his case. Perhaps given what has gone on in the courts since Nov. 7, the unexpected has become the norm, so lawyers should not be surprised by flip-flopping witnesses. Given the number of lawyers involved — 50 or so at trial — the hectic pace and the circus atmosphere, witnesses were hardly the whole story. There was a craziness in the air that included a scene in which Boies posed with a retired librarian in the courtroom for a snapshot and another during which a Gore lawyer teased his Bush counterpart because he lost track of one of the 40-plus suits filed in the case. Perhaps the true mood of this exhausting legal process was captured when Kitchen, the newest member of the Democrats’ legal team, scribbled a note to Boies on a legal pad as 11 p.m. Sunday night approached. “I want a beer,” his plaintive big red letters said. “Me, too,” replied Boies.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.