Marc Elias is probably the preeminent Democratic lawyer in the field of protecting voting rights. His reputation is well deserved, particularly in the context of post-election litigation. These post-elections cases were decided almost universally in his favor. Since that time, he has changed his focus to challenge a variety of state laws that, he claims, are designed to disenfranchise voters. In one of these cases, he sued the Texas Secretary of State.
Texas courts have a long and well-deserved reputation for being staunchly Republican. The Fifth Circuit Court of Appeals, which includes Texas, also leans strongly Republican. The reality, then, is that any Democratic challenge in that state begins as an uphill battle.
Elias fared poorly in the early stage of his lawsuit. It makes little sense for me to get into the weeds about the process and arguments here. Unless you understand how a court’s specific local rules can affect a proceeding, any attempt at explanation would be fruitless.
Suffice it to say that Elias not only did not strictly comply with the local court rules, but his attempts to “correct” the issues violated others. The Court determined that Elias’ filings and legal arguments lacked the candor required by the court and he was subsequently sanctioned for his actions. (Sanctions here meant that Elias had to pay the other side’s attorney’s fees and court costs.)
Elias appealed the sanctions to the Fifth Circuit Court of Appeals which today upheld those sanctions against him personally but reversed them against his junior associates (who apparently did not have enough experience to know better).
It is not relevant whether or not I believe the sanctions were warranted. What IS important is something that all lawyers know. Not every court you appear before is a friendly one; some might be outright antagonistic to you.
When faced with an unfriendly court, you must be sure to scrupulously follow the court’s local rules. Failure to do that will ensure that any arguments you make, regardless of their potential legal validity, will fall on deaf ears. Technical violations are violations nonetheless and give the court an easy way to dispose of cases that could otherwise be problematic.
I write a lot about lousy lawyering and many of my articles have been about deficiencies by Guiliani, Powell and Wood, who are unabashedly Republican. Frankly, they are easy targets. I thought it particularly important to discuss the failing of a Democratic attorney, if for no other reason than to show that my analysis is intended to be legally rather than partisan based.