When a lawyer objects to the other side introducing a piece of damaging evidence, does he or she wish the judge to sustain or overrule the objection? Leaving aside issues of tactics, the intuitive answer is that the lawyer wishes the judge to sustain the objection. That is why the objection was made. The real answer depends entirely on whether you ask the question before or after the jury reaches a verdict.
During the trial, the objecting lawyer clearly wishes the judge to sustain it so that the jury never gets to see or hear the damaging information. Immediately upon the jury reaching a verdict, however, that changes and the objecting lawyer would prefer the judge to have overruled the objection. Regardless of the jury’s verdict, the lawyer is in a better position if he lost every objection.
If the jury finds in favor of the objecting lawyer, having an objection overruled has the effect of denying the other side grounds for appeal. If the jury found against the objecting lawyer, the judge’s decision overruling an objection of the losing lawyer may provide grounds for appeal.
I was reminded of that anomaly by the results of the Iowa caucus. To see why, let's look at the Iowa campaigns of Dr. Howard Dean and Senator John Edwards.
Dr. Dean had a massive ground organization in Iowa. He had more than 3,500 volunteers in the state to ensure that Dean’s supporters would actually get to the caucus sites. Before the results, nearly every pundit remarked that the edge in organization would turn out a higher percentage of Dean’s supporters than candidates with lesser organizations.
John Edwards, on the other hand, did not have massive organization. Instead, he had a message. Before the results, Dr. Dean must have been very happy about the advantages provided by his organization while John Edwards must have looked at the Dean organization with envy.
The issue of federal financing is similar. If a candidate takes federal funding, he has to agree to strict limits on the amount that can be spent in each state. Dr. Dean, due to his fund raising prowess, opted out of the matching funds system and was not limited in the amount he could spend in Iowa. John Edwards was not in a position to opt out of matching funds. Thus, before the caucuses, Edwards was limited in the amount he could spend while Dean was not. In fact, Dean outspent Edwards by a substantial amount in Iowa. Before the caucus results, Dean must have been happy that he was able to spend as much as necessary to maximize his result while Edwards must have chafed at the limits.
As soon as the results from Iowa became known, everything changed. It now appears that the 18% of the delegates garnered by Dr. Dean was a ceiling. I presume that his massive organization in fact turned out a high percentage of his supporters. Further, without spending limits, Dr. Dean was able to put sufficient resources into getting his message out. It appears that about 18% of Iowa caucus goers liked the message Dr. Dean was selling.
Some have suggested that the Dean organization, while large, was amateurish and ineffective in the maneuvering at he caucus. That may be true, but that sort of thing matters only at the margin. If Dr. Dean had delivered on a hard count of 40,000 attendees or more, whether or not he captured a stray Gepardt or Kucinich delegate or two would have been irrelevant.
Other Deaniacs, including Joe Trippi have argued that Dean’s ship was sunk by Dick Gephardt’s attack ads. There may be some truth in that but lets face facts. If Dick Gephardt (Dick Gephardt!!!) can push up Dr. Dean’s negatives so as to sink his Iowa campaign, the GOP, in the immortal words of Bob Kerrey, will open Dr. Dean up like a boiled peanut in the fall.
The electorate in Iowa was almost 75% against the Iraq war which should have played to Dean’s strength. Despite a favorable electorate, and advantages in money and organization, Dean could produce only 18% of the delegates. When considering the advantages Dr. Dean had in Iowa, his 18% looks to be closer to a ceiling than a floor.
For Edwards, the view is the mirror image. Facing an electorate overwhelmingly against a war Edwards voted to authorize, and being limited in the amounts he could spend, and not having a massive organization to turn out his supporters, John Edwards cleaned Howard Dean’s clock. Edward’s 32% looks much more like a floor than a ceiling.
Now, of course, the issue is not longer Iowa. It is New Hampshire. There, Dr. Dean again appears to have advantages. He is from a neighboring state. He has spend a great deal of time and effort in New Hampshire. Before Iowa, at least, Dean was leading in the polls. Once again, Dean will organize a Perfect Storm of ground game volunteers to turn out the vote. Dean’s money raising machine remains formidable and he does not have spending limits. The issue is whether the voters will like the dog food.
For Edwards, he once again looks to be at a significant disadvantage. Not until South Carolina will John Edwards be the candidate without an accent. At last look, he was in single digits in the New Hampshire polls. He is limited in the money he has and the money he can spend. He has no Perfect Storm at his disposal. Edwards does however, have three major advantages. First, he has a superb message. His riff on the Two Americas is the best of any candidate. His emphasis on rewarding work and merit instead of wealth, privilege and influence is inspiring. He also has the most complete and most well thought out policy positions. If you do not believe me, go to his web site and check out his education policy, his economic policy, his health care proposals and other policy positions. Finally, John Edwards is one of the five best public speakers I have ever heard.
I suspect that the voters of New Hampshire and elsewhere will find Edwards’ dog food quite tasty. The question is whether he can get enough people to sample it.
It will be an interesting week. I am very pleased that Mary Beth will be in New Hampshire to report from the ground. Stayed Tuned.
The money thing is another worry for me with Edwards. There will be a period will his acceptance of matching funds prevents him from effectively responding to attacks from Bush, and by the, the FEC will almost certianly have hamstrung the abality of 527s like MoveOn to respond for him.
Posted by: kevin at January 22, 2004 03:15 PM