Handing Down a Double Loss

This evening, I was talking with one friend about coaching and judging high school debate, and with another friend about parties who represent themselves pro per in court, and this combination of topics made me wonder if there are any reported cases where the court has managed to rule against both parties.  Back in the days when I was a high school debater, I had heard stories of debate judges giving the fabled “double loss” in exceptional circumstances, but when judging debates, I always managed to find one set of arguments I disliked more.  Maybe I’d be more flexible about the idea if I could get some precedent from actual judges.

After exhaustive research (well…one Westlaw terms and connectors search of “both parties lose”) I stumbled across the case of Gunther v. Tworek, 690 N.W.2d 885 (Wisc. Ct. App. 2004).  Overall, it is a fun little opinion that strongly conveys the court’s frustration with the parties.  The portion of this opinion that caught my eye was:

Finally, Tworek requests this court to grant him costs under WIS. STAT. RULE § 809.25(1). But while Gunther loses his appeal on whether interest was proven or calculable, all of Tworek's issues on cross-appeal are also dismissed. Because both parties lose their appeals, we will follow our standard practice and deny costs to both.

Unfortunately, this case is unpublished as well as uncitable, having been decided before 2009.  In making my argument for the double loss in a court of law, it would appear that I will need to press on without precedent.  I am not completely out of luck, however, as courts may still be swayed by the immortal words of Lord Mildew who once said “There is no precedent for anything until it is done for the first time” (quoted in Carrot & Co. v. Guano Assoc., A.P. Herbert’s Uncommon Law, p. 109, fn. 1).

Additionally, I doubt that the Wisconsin rules governing case citations apply in the debate judging context.  This is especially true for me, since I have never and probably will never judge at a competition in Wisconsin.  Gunther sounds far more convincing than secondhand anecdotes about rebellious coaches, so if debate judges are tempted to grant the double loss, I think that they should look to this case for inspiration and guidance.