Litigating for the Principle of the Matter - A Bad Beginning!

Posted on April 18, 2009 by Gavin Craig

 Norm Coleman is now declaring that he will appeal to the Minnesota Supreme Court in his never-ending quest to retain his seat as Minnesota’s senator.  He lost – that much is clear.  The court has rejected his attorney’s arguments of some massive unfairness in the system: Minnesota has a very good election system that has worked well over the years.  Coleman has been arguing that it is somehow unfair that if one county accidentally allowed a vote by an ineligible voter, then not withstanding the law making these persons ineligible, all the counties must do the same.  That nutty argument, and his total lack of any creditable evidence to support many of his charges, makes his case a losing proposition. 

Kevin Duchschere from the Star Tribune has written a good piece about the Coleman election case.  Coleman is currently trying to convince the public that he is continuing this fight for some higher purpose.  In other words, it is the Principle that he is fighting for. 

Any attorney who has litigated a case has probably heard a client declare that it is not the money – it is the principle.  I think these are universally the worst clients.  When we tell a potential client that their case might be good – or not, but either way it is not economically a good decision, they don’t necessarily listen.  When that same client wants to bring the action anyway, (or defend instead of settling the matter) because it is the principle of the matter that counts most, this should be a real danger sign to the attorney.  These clients almost always eventually decide that it really is the money, and not the principle that matters most.

It is easy for Coleman to take this position because he is not paying for the legal fees.  If Coleman really believes that he is fighting for some high principle and he is right, (and I doubt both of these assertions) then he should be willing to fund the entire cost of the litigation.  If he is not prepared to do that, I don’t think his representations are creditable.  “Put your money where your mouth is.”

 It is always easy to fight on other people’s money. 

The same principle applies to litigation between emotional ex-business partners, or any other business litigation for that matter.  When the fight becomes over “principle,” it is usually time to suggest that the potential client find another lawyer.     

 

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Minnesota Senate Race Goes On Forever.

Posted on January 27, 2009 by Gavin Craig

I will confess that I am confused by the case of Ex-Senator Norm Coleman to try to challenge the election returns in Minnesota. The State already had a recount, and they looked at all of the votes that were questioned by the parties. The result of the recount, after the board reviewed all the challenged ballots, including the absentee ballots, was a victory for Al Franken by 225 votes. Coleman is now challenging that result. Coleman must somehow prove that the commission set up for the recount did it wrong, even though they followed the directions of the Minnesota Supreme Court through every step of the way.

The Coleman campaign is now preparing for what they call a very tedious proceeding. Apparently they want to the court to recount all the ballets again. Coleman's counsel will have to prove that there were irregularities and inconsistencies (that the state recount commission missed,) and these votes were for Coleman. Coleman is also threatening to bring a class action case on behalf of all of the voters whose absentee ballot was not counted because of an error by the voter.

Meanwhile the state is without there second senator. I think that the legislature needs to rethink the process of election challenges. In my view every proper vote needs to be counted, but it seems as though we already went through that step with the recount. I am not sure if the proposed instant runoff will solve the question of which ballots need to be counted. After all, the state law is clear about which absentee ballots must be rejected. (No signature, arrive late, etc.) Part of the problem was that many ballots were challenged, some on the most trivial grounds.

There is always the problem of ballots that were rejected or challenged because the intent of the voter was not clear. I don't think instant run off solves this problem. On the other hand, lengthy court challenges after the recount are not in the interest of the state or the people. At some point the state needs to have a process that the people believe is fair (and the recent recount procedure seemed very fair - it was even live on the web if the people wanted to watch,) and perhaps that should be the end of the matter. In other words, the process needs closure short of a lengthy litigation process.

Having said all of that, I think that the legislature should consider a procedure that declares that in the future, should there be a recount, the decision of the recount board shall be final, absent fraud. When the recount panel is directed by the state Supreme Court, the people should feel comfortable that the process was properly conducted and the results were the best that could be achieved.
 

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