Big Lie Election Lawyers Benchslapped To The Tune Of $180K

And they ought to be bloody grateful it wasn't a whole lot more.

US Magistrate Judge N.Reid Neureiter is pissed.

He just dropped a blistering sanctions order on Gary D. Fielder and Ernest J. Walker, a couple of Colorado lawyers who wandered into the wrong courtroom with their Big Lie antics. And still they ought to raise a glass to His Honor on Thursday in gratitude that they didn’t have to cough up a whole lot more, since $180,000 doesn’t begin to cover the “real” bill for teams of lawyers from Gibson Dunn; Kaplan, Hecker & Fink; Brownstein Hyatt Farber Schreck; and multiple state AG offices.

The original complaint, which was filed six weeks after the election, purported to be a class action filed on behalf of 160 million American voters against Dominion Voting Systems, Facebook, the Center for Tech and Civic Life, Mark Zuckerberg and his wife Priscilla Chan, as well as election officials in Georgia, Pennsylvania, Wisconsin, and Michigan.

The combination of unconstitutional acts and omission by the Defendants, as described herein, has created a constitutional crisis, destroyed the people’s faith in elections, violated the rights of millions of people, weakened national security, triggered financial uncertainty and mental anguish, and increased the possibility of civil and world war, all of which has proximately caused damage to the Plaintiffs, and every registered voter similarly situated.

“It must also be noted that this was not a client-driven lawsuit,” Judge Neureiter fumed in an August order granting defendants’ motions for sanctions in the suit, which was dismissed for lack of standing in April. And while Fielder and Walker characterized their damages as a “nominal amount of $1,000 per registered voter,” the court probably didn’t even need a calculator to work out that this would add up to $160 billion, “a massive amount of money, likely greater than any money damage award in American history.”

The court was similarly unimpressed with the attorneys’ fundraising efforts, noting that “Plaintiffs’ counsel made a public appeal for financial contributions from arguably innocent and gullible members of the public in order to supposedly hire experts to support this case.”

This would have been been unseemly enough if they’d actually used the money to pay expert witnesses for their supposed RICO action. Which they did not.

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In reality, as disclosed at the hearing on sanctions, Plaintiffs’ counsel hired no experts, either before or after filing the Complaints, and did not speak to any of the alleged experts that were being used in other cases around the country. Given the apparent lack of standing to bring this case—and its likely failure given the existing Supreme Court precedent on the issue of standing—as well as the failure to hire or speak to any expert witnesses to support the underlying factual assertions in the Complaints, this financial appeal to the public for financial contributions was arguably deceptive

The court noted the risk that imposing sanctions “might chill zealous advocacy for potentially legitimate claims,” but concluded that “the repetition of defamatory and potentially dangerous unverified allegations is the kind of ‘advocacy’ that needs to be chilled.”

I have also considered the degree of counsel’s culpability, which is significant. This was not a client-generated lawsuit. This is exclusively a creation of the Plaintiff’s counsel. They are experienced lawyers who should have known better. They need to take responsibility for their misconduct. Defendants have been significantly prejudiced, not just because they have had to incur legal fees to defend this pointless and unjustified lawsuit, but because they have been defamed, without justification, in public court filings. Finally, I believe that rather than a legitimate use of the legal system to seek redress for redressable grievances, this lawsuit has been used to manipulate gullible members of the public and foment public unrest. To that extent, this lawsuit has been an abuse of the legal system and an interference with the machinery of government. For all these reasons, I feel that a significant sanctions award is merited.

Yesterday the court made it official, awarding $180,000 in attorneys’ fees to the various defendants, as first reported by the Washington Post. It was a significant haircut, however you slice it. The state defendants were willing to stipulate to nominal fees less than $10,000, and the plaintiffs’ counsel argued that Facebook et al. should get the same. Unsurprisingly, the private defendants did not agree with this assessment.

Facebook, which was represented by Gibson Dunn, asked for $50,000 for 166.8 hours of work. CTCL wanted $64,012.24 for 313.4 hours of Kaplan Hecker Fink’s time. Dominion’s number was $78,944 for 242.3 hours.

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The court was generally receptive, save for a little side eye at KHF’s demand for “$1,082.24 in computerized legal research costs.”

“Most firms have contracts with legal research providers, such as Westlaw and LexisNexis, that allow for unlimited research at a set monthly fee. That is part of the overhead associated with running a modern law firm,” the judge noted, adding that “the costs of legal research should be built into a litigation attorney’s hourly rate.”

Judge Neureiter also knocked Dominion’s recovery down to about $63,000, pegging it to CTCL’s award after its “legal research costs” got tossed. And yet, instead of thanking their lucky stars that they got approximately 1,000 hours of experienced attorneys’ time at the low-low rate of $180 an hour, Walker and Ernest have appealed.

Gobble gobble.

O’Rourke v. Dominion Voting Systems [Docket via Court Listener]


Elizabeth Dye lives in Baltimore where she writes about law and politics.