Trump Has a “Right to Pursue Legal Challenges” to Election, But Not Without the Facts

The unofficial “show me” Missouri state slogan is not just an appropriate moniker for election legal challenges. It is a well-settled ethical requirement imposed by legislatures and courts for the filing of any litigation in this country.

We have all seen in these immediate post-election days not just the filing of a cornucopia of lawsuits attacking the process and results, but also a President Trump-inspired trope that the Republicans, like all citizens, have a “right” to file lawsuits to test the bona fides of election results across the country. No, they don’t.

The uniform and governing rule in federal and state courts across the country is that before lawyers and litigants can pursue a case, they are under an affirmative duty to certify that the lawsuit is factually and legally meritorious. Wishful thinking doesn’t cut it.

I have been a litigator and Civil Procedure law professor for decades and am the author of a litigation practice guide for lawyers and judges. In my book, in every semester’s class, and in each case, I underscore to judges, students, and my colleagues that you cannot even file (much less pursue) litigation unless you first have sufficient factual and legal support. Model Code of Professional Conduct, Rule 3.1, as well as the ethical canons in virtually all fifty states, mandate that lawyers not bring a civil action “unless there is a basis in law and fact for doing so that is not frivolous.”

Since 1983, Federal Rule of Civil Procedure 11 has mandated that lawyers and their clients not commence a lawsuit unless based on (1) well-grounded evidentiary facts, (2) a colorable basis in law, and (3) a proper purpose. And as to the “good facts” aspect of this rule, the lawyer is under an affirmative duty to conduct a reasonable investigation and substantiate the facts before filing a lawsuit making wild allegations of misconduct.

Violating Rule 11 is at the lawyer and client’s own economic peril. If the court concludes that litigation was filed without a sufficient factual or legal basis, it has the power to impose financial sanctions, including the payment of the other side’s attorney’s fees. The rule evolved in response to a growing sense there had been an increase in the filing of abusive litigation.

The late, great federal judge William Schwarzer wrote that one may not avoid the sting of sanctions by operating under the guise of “a pure heart but an empty head” when filing meritless lawsuits. Rather, one must pursue litigation with objective—not subjective—good faith based on actual evidence.

The plethora of filed and threatened lawsuits during this high-octane post-election cycle raises these concerns with special focus. Simply bellowing “stop the count” means nothing if there is no substantial evidence of legal or factual impropriety. Telling a court that vote count observers “are being excluded” doesn’t work unless it is true and material. And certainly internet-inspired conspiracy theories have no place in a solemn court proceeding or in the public discourse.

Bluntly put, the ethical requirements mean that you cannot file and vaguely hope to find evidence to support your case. You must have those facts (not just suspicions) in hand or, at a minimum, specifically identify what fact will have evidentiary support after a reasonable opportunity for further investigation. Zealous advocacy, yes. Filing “pie in the sky” litigation, absolutely not.

All this means that the required evidentiary support is judged by what you know at the time of filing—not with the benefit of skewed hindsight. You must review the available documentary evidence and interview relevant witnesses before you pursuing strategic, uncorroborated litigation. Implausibility, hearsay and hopeful ideology don’t fly.

Thus, it is not enough to say in lawsuits the election was “riddled with fraud,” “stolen from the American people,” or “deeply rigged.” To the contrary and in case after case, judges (no matter who appointed them) have insisted on facts. For instance,

  • In Michigan, Judge Timothy Kenny denied a preliminary injunction filed in Detroit to halt certification of the election because the assertion of “failed oversight” by election inspectors was speculative and unsupported, stating the “Plaintiffs’ allegation is mere speculation,” that they have “offered no evidence to support their assertions,” and they “are unable to meet their burden for the relief sought.”
  • Also in Michigan, Judge Cynthia Diane Stephens dismissed a claim brought by an election observer claiming that poll observers were excluded, explaining “[t]he complaint does not specify when, where, or by whom plaintiff was excluded. Nor does the complaint provide any details about why the alleged exclusion occurred” and otherwise dismissed the evidence as inadmissible hearsay without an exception.
  • In Georgia, Judge James F. Bass dismissed a suit alleging that ballots received too late were invalidly counted, stating that there was “no evidence” that the ballots were invalid.
  • In Pennsylvania, Judge Paul Diamond denied the Trump campaign’s motion for an injunction concerning greater access for poll watchers after the plaintiffs’ lawyers admitted that its poll observers were allowed in to observe. The Judge questioned the lawyers, “I’m sorry, then what’s your problem?”

Indeed, it is highly ironic that many of the politicians championing these election litigation strategies are the very ones in many other contexts who’ve complained of “the explosion” of frivolous litigation filed by “evil and greedy” plaintiffs’ lawyers. The “litigiousness” shoe now seems to be on the other foot.

Bottom line: you must have specific and credible evidence before you can file a lawsuit. And no surprise that the judges hearing these cases almost uniformly have and will continue to say “show me” or you’re out of here.

Image: Getty

 

About the Author(s)

James Wagstaffe

Attorney and Law Professor from San Francisco; Adjunct Professor teaching Civil Procedure at U.C. California, Hastings College of the Law; his publications include the best-selling Lexis Nexis Practice Guide: Federal Civil Procedure Before Trial. Follow him on Twitter (@JWagstaffeLxNx).