The First and Second Laws of Litigation and Politics

I call it the “First Rule of Litigation.”  Thou shalt not underestimate your opponent.

It’s amazing how frequently members of my profession neglect this rule.  When colleagues forget it, I worry about the possibility of bad karma.  Pride goeth before a fall, right?   When opposing lawyers forget it – or at least act like they’ve forgotten it -- I get pumped up.  Few things cause me to put out total effort quite like an opponent’s arrogance or dismissiveness.  

We saw the political analogue of the First Rule of Litigation in the fall of 2016.  The Clinton Campaign was ahead in the polls – so solidly ahead, in fact, that they forgot to campaign in the Rust Belt.  They didn’t take Trump seriously there even though he spoke far more like a Rust Belt “everyman” than Hillary did.  In that part of the country, folks don’t take to politicians who put their finger in the wind before choosing their positions on key issues.  They’d rather vote for a politician who has guts than smarts.  Hillary should have known she was vulnerable in those areas, but she couldn’t help thinking she was running against a troglodyte who appealed only to “deplorables” and desperate fools and who thus didn’t stand a chance of defeating her machine.  As a result, she didn’t even bother to crank up the machine where she needed it the most.  The First Rule will get you every time. 

When you think about it, the First Rule of Litigation (or Politics) ought to be obvious to anyone who doesn’t view hubris as a virtue.  What’s less obvious, but also vital, is what I call the Second Rule of Litigation – thou shalt not OVERESTIMATE your opponent.  It applies just as much to politics.

It’s important to remember the Second Rule (of litigation or politics) because at times, combatants really do screw up in a major way, and that opens up doors you might never have thought could be opened.   I’ll spare you the reasons why a litigator should keep the Second Rule in mind, but it should be apparent now why it might behoove a political party never to forget it.     Just think about the special elections we’ve seen over these past few months.   Absent the Second Rule, there would be no point for the Dems to contest those elections.  And yet, with the Second Rule firmly in place, so many more Red seats are in play. 

In a sense, the Democrats have an unfair advantage.  Because the GOP controls the majority of the state houses, the Governor’s mansions, and both branches of the U.S. Congress, not to mention the White House, people expect more out of them.  The Dems, because they’re the party out of power – the “dissenting” party -- can whine all they want and get away with it. The GOP, by contrast, is supposed to display leadership, befitting their stranglehold on power.  That means they are expected to (a) lead with competence, (b) lead with class, and (c) lead with vision.

They’re doing none of the above.

First, we saw Roy Moore.  In a display of political incompetence at the highest level, he referred to Islam as a “false religion,” compared homosexuality to bestiality, wondered if 9/11 was God’s way of punishing us for abortion and homosexuality, and during the recent Presidential Transition reasserted his belief that Barack Obama was born outside of the United States.    He acted like he was trying to offend people.  In the end, even the reddest of states rejected him.  He gave them no choice but to do the impossible: elect a Democratic Senator from Alabama.

And then there was the ever-classy Rick Saccone.   His district went for Donald Trump by 20 percent over Hillary Clinton.  Winning this election should have been child’s play for Saccone.   Surely, like most of his constituents, Saccone resented Hillary for her “basket of deplorables” line, and rightfully so.  But when given his own chance to show Hillary how a class campaign is run, he responded by saying, in essence, “Hillary, I resemble that comment.”  Here are Saccone’s exact words:  “I’ve talked to so many of these on the left....  And I tell you, many of them have a hatred for our country.  I’ll tell you some more.  My wife and I saw it again today -- they have a hatred for God.”  I can’t wait to tell the rabbis I know – nearly all of whom are Democrats – that they are God-haters. 

But the biggest problem of all for the so-called “Party of Lincoln” isn’t the lack of competence or class. It’s the lack of vision.  We saw this problem doom the Clinton campaign, and we now seem to be watching it doom Republican candidates all over the country. Yes, they had a vision of tax cuts, and now they have a bill to show for it.  It wasn’t a perfect bill – and in fact, I think it was a horrid bill – but at least it reflected some sort of vision.   Now what, though?  What’s their second act?  What exactly is it that unifies the Grand Old Party?   What kind of change can we, the American voter, expect if we continue to color this land red?  Armed teachers? 

Anything else?    

Crickets. 

Soon enough, as a good Democrat, I’ll be reminding people about the First Law of Politics.  I won’t let favorable polls allow me to underestimate the party of Donald Trump.  Been there, done that.

But today, just for today, I want to remind you of the Second Law of Politics.  It has been known to cause wild swings at the ballot box from one election to the next.  Given the GOP clown car, there is every reason to wonder if we will see one of the wildest swings of all this November.  And believe me, that would be despite the Democrats, not because of them.