Jury’s Out on Election, but Lawyers Can’t Lose

In the pitched election battle between George W. Bush and Al Gore, someone has to lose. Except, of course, the dozens of lawyers representing the two candidates. For them, even the losers likely will end up winning enhanced prestige and billing rates, legal observers agree.

From top litigators to no-name attorneys who have risen from relative obscurity to seize their 15 minutes of fame, the election-battle attorneys are earning high marks from their colleagues and have suffered relatively few missteps.

“These are superstars who have done super work,” said Haskell Kassler, a Boston lawyer who specializes in election law and assisted the Democrats in the Florida litigation.

But a final outcome is sure to bring second-guessing over the legal teams’ strategies. On the Gore side, for instance, some already are questioning the vice president’s decision not to join in a pair of lawsuits that seeks to throw out thousands of absentee ballots because the applications were allegedly tampered with by Republicans. Rejecting the advice of some of his own lawyers, Gore has distanced himself from the Seminole and Martin County lawsuits, apparently because he does not want to be seen as trying to throw out votes.

And on the Bush side, the Texas governor’s lawyers may have failed to do some basic investigating of one of their star witnesses in last weekend’s trial in Circuit Court in Tallahassee.

The expert, Napa engineer John Ahmann, who helped design the voting machines used in some Florida counties, testified to their reliability. But in the midst of his testimony, Gore’s lawyers discovered a 20-year-old patent application from Ahmann in which he said that the machines can become clogged. Ahmann then had to concede that hand recounts are sometimes advisable.

But Ahmann’s testimony does not appear to have done any lasting harm to Bush’s case, since the judge’s ruling on Monday handed the governor an across-the-board victory.

Indeed, in a case this fast-moving and complicated, separating blunders from brilliance can be tricky business, observers agree.

Just after the election, Don Weidner, an election-law specialist in Jacksonville, Fla., was convinced that Bush and his lawyers had “boxed themselves into a corner” by opposing all manual recounts.

George Washington University law professor Paul Rothstein also considered it “foolish” for Bush to take the issue to the U.S. Supreme Court because his lawyers “seemed to be acting contrary to what they said they were going to do--that is, keep the matter out of the courts.”

But Bush’s lawyers succeeded by pressing a subtle point, Weidner said, arguing before Leon County Circuit Court Judge N. Sanders Sauls that Gore had to show a “reasonable probability” that voting irregularities had changed the election outcome.

“Bush’s people were pressing a hard-line stance. When you take gambles, sometimes you gamble right, and in this case they were able to convince Judge Sauls that there was no need for the manual recount,” Weidner said. “Unquestionably, it was good lawyering.”

Others are not so certain. “So far the Bush lawyers have won across the board. But I don’t know that this is because of their skills. They had the better facts,” said Plato Cacheris, a prominent Washington defense attorney whose clients have included former White House intern Monica S. Lewinsky.

The circuit court contest pitted one of Bush’s attorneys, Barry Richard, against Democratic attorney David Boies, a famed litigator known for taking down such high-profile adversaries as Microsoft Corp. honcho Bill Gates.

Richard, ironically, is a registered Democrat who was president of the Young Democrats club while a student at the University of Miami in the 1960s. He describes himself as “meticulously nonpartisan” in his approach to the law, even as he now works to get Bush into the White House.

While well known in Florida as a top-notch appellate lawyer, he has a much lower profile on the national stage than Boies--who has earned a reputation as one of the very best trial lawyers in the country through his work on such famous cases as Microsoft and the Napster music copyright controversy.

Several dozen other lawyers have joined the fray in the last month, assisting in oral arguments, researching case law and helping to write briefs under deadline pressure. E. Lawrence Barcella Jr., one of Washington’s leading white-collar defense attorneys, wondered just how many lawyers it takes to litigate an election.

Answering his own question, Barcella said: “As many as both campaigns can afford.”

Florida’s statutes, he said, “are relatively straightforward with just a little bit of wiggle room. You probably don’t need some of the best lawyers in the country to handle it, but they’re doing their damnedest to argue the wiggle room.”

And many are making sure to get maximum visibility for doing so.

Erwin Chemerinsky, a constitutional law expert at USC, argued on behalf of Palm Beach County voters last month. “There was a lot of jockeying for position among the lawyers who wanted it to be their case and their moment in the sun,” he recalled.

The teams of super-lawyers have been hunkered down in dueling bunkers in Tallahassee that are closed to the media. The GOP litigators work in a cluttered warren of offices in the George Bush Republican Headquarters Building, while their opponents are cloistered in a powerhouse Democratic law firm.

Neither campaign has been willing to say much about which of their lawyers will be getting paid or how much, but what is clear is that both sides are working aggressively to get contributors to pony up cash for the post-election campaign, garnering millions in new donations through fund-raising breakfasts and e-mail solicitations.

Some Democratic attorneys agreed to volunteer their time while counting on pledges of reimbursement for travel costs and other expenses. “The jury’s still out” on whether they will ever see the reimbursements, one Democratic lawyer said.

Even so, the case seems likely to pay big dividends in future exposure and billings. Said Weidner, the Jacksonville attorney: “There are going to be an awful lot of lawyers who do awfully well from all this.”