In the 2012 edition of Washington Super Lawyers Magazine, we asked Perkins Coie business litigator David J. Burman to discuss one of the most famous cases in his career. In 2005, election officers and political scientists converged on Chelan County Courthouse to debate which candidate prevailed in the 2004 gubernatorial election.
Spurred by the Democrats’ hair-thin margin of victory, Republican gubernatorial candidate Dino Rossi’s supporters had pored over election returns and found disturbing instances of sloppy work-lost ballots, people who voted twice, votes by convicted felons whose eligibility was questioned. They sued, arguing that, if you excluded illegal and dubious voters, Rossi had actually won the day.
They managed to get the case tried in Wenatchee, which is famed for its production of apples and Republicans, and in front of a judge who had overturned a local election a few years earlier.
“It was a fascinating case,” Burman says. “One advantage was that, when it involves elections, it’s going to be resolved pretty quickly. So you get an intense trial, but there’s going to be an outcome.”
Burman’s role was to focus on the Republicans’ statistical argument. Elections are important events managed by workers who can make mistakes. The Republicans recruited some high-powered statisticians who assembled an argument that the errors occurred disproportionately in heavily Democratic King County; that, if you threw out votes by ineligible felons and others, the result would change the outcome.
Much came down to Burman’s cross-examination of the Republican expert witnesses, including a California college professor whose statistical theory was central to their case.
“I never studied statistics in college, and I’ve always wished I had,” Burman says. “So I’m sort of self-taught. A big part of it was reading what the witness had written and looking for inconsistencies.”
He found them. In court, he repeatedly apologized for his lack of sophistication on the subject, luring the professor into his trap. “I felt he was very dismissive of me,” Burman says. “He could not believe this lawyer was going to attack his work. And he wouldn’t look at me.”
When the time was right, as the witness peered toward the Republican lawyers for help, Burman pounced. “Please quit looking at them,” he barked. “Look at me and answer my questions.”