When the first drops of flop sweat appear, along with an acrid perspiration smell, rapid breathing and speech, you know that you are seeing a lawyer who knows he is outrun, outgunned, outmaneuvered and generally out-lawyered. It is a magnificent sight to behold in an opponent - just as it is miserable experience to feel the symptoms begin to emanate from yourself.
These are epiphany moments in litigation and times when cases can settle.
Based on the events of the past few days, it seems pretty clear that Fritz Knaak knows he's fighting a rear guard action in the Franken - Coleman recount, set to start this week.
There are really four categories of cases for lawyers. In the first two, you have a good case or a bad case, but your client's outcome expectations match the quality of the case. Not much chance to be the hero or the goat.
If you have a client who has a great case, but not especially high expectations, here's where you get to wear the big red "S."
The fourth category is the worst for a lawyer. It is where the case is bad or problematic, and the client has high expectations. These are the cases from G.O.A.T. This is Fritz's case. Spot feels his pain.
Fritz's client is really all Republicans in Minnesota, whose attitude was summed up by Norm Coleman the day after the election: we won, so give it up. Fritz is starting in a really big hole in the client satisfaction department.
A bunch of Dartmouth political science types - Dartmouth, the incubator of the Power Line Boyz, after all - says that the recount is likely to favor Al Franken:
We show using a combination of precinct voting returns from the 2006 and 2008 General Elections that patterns in Senate race residual votes are consistent with, one, the presence of a large number of Democratic-leaning voters, in particular African-American voters, who appear to have deliberately skipped voting in the Coleman-Franken Senate contest and, two, the presence of a smaller number of Democratic-leaning voters who almost certainly intended to cast a vote in the Senate race but for some reason did not do so. Ultimately, the anticipated recount may clarify the relative proportions of intentional versus unintentional residual votes. At present, though, the data available suggest that the recount will uncover many of the former and that, of the latter, a majority will likely prove to be supportive of Franken.
(A thump of the tail to the 'Farian.)
Now, these facts are not lost on Fritz & Co. No siree. Fritz expects that the majority of the "residual votes," you may be more familiar with the term "undervotes," boys and girls, will favor Al Franken. Al doesn't even need all that many.
That is why, as Charlie points out, Fritz is throwing such a hissy fit over the re-examination of some absentee ballots that were initially disallowed:
Minnesotans should not just be concerned about this potential – they should be almost fearful of the Franken Campaign's unprecedented efforts to get across to their private data to influence this recount – and equally fearful of the Franken Campaign's efforts to force rejected and spoiled ballots into a recount for the first time ever in the 150 year history of our state.
Ah. "Fear." Such a good Republican word, isn't it?
Parenthetically, boys and girls, Spot will mention that Charlie made a good comment when he said that lathered Fritz's argument would apply with equal force to any ballot not counted for any reason. Why have a recount?
(Spot will also say that it was a small and ungracious thing of Charlie to use a post title "Knaak, Knaak, Who's There? Underminer." when he had to have known in his heart of hearts that it would have been natural for Spot to use that title.)
But back to cases. Fritz knows that every uncounted ballot out there is a potential pick-up for Al Franken, and that's why he doesn't give the smallest rip about whether the votes were legally cast or actually do express an intent to vote in the Senate race. He wants to keep them out. That's what the betting man would do.
Fritz Knaak is also employing the tactic of trying to de-legitimize the forum in which the dispute will be resolved:
Just four days before the recount starts in the U.S. Senate race, Republican U.S. Sen. Norm Coleman's lead attorney suggested Saturday that the neutrality of the Secretary of State Mark Ritchie's office has been "breached."
Fritz Knaak said he was stunned and disappointed by what he called "eroding" positions from Ritchie's office in a dispute over Democratic challenger Al Franken's legal attempt to get lists of rejected absentee voters. That request is expected to be heard in Ramsey County District Court as early as Monday.
As the linked article states, even our Republican governor doesn't share that view.
Spot says this is not an especially honorable thing for a practitioner - not an officer of the court here, but in a similar position - to do. Katie? Maybe. But not an advocate in a very public dispute.