Dispatches from the Creation Wars

Jon Buell and the Dover Ruling

Jon Buell, the head of the Foundation for Thought and Ethics and publisher of the book Of Pandas and People (Pandas), has written a long essay criticizing Judge Jones’ ruling in the Dover case. That’s hardly a surprise, of course. The judge ruled against his position, how could he do anything but criticize it? Unfortunately for him, his criticisms don’t hold up under scrutiny because they are based on false claims, legal ignorance and, in at least one case, an outright lie. This may be a long one, so let’s get started. He begins by complaining that the judge refused their request to intervene in the case:

When I learned that even the firm defending the Dover School Board, the Thomas More Law Center, would not call Dr. Thaxton or me as witnesses (and not even return our calls), FTE’s attorney filed a motion to intervene with the Court late last May, 2005. One might expect that Judge Jones would have wanted to hear from the key eyewitnesses to the development of Pandas, the text on which the entire trial focused, in order to come to the truth about this pivotal issue in the case…

In his report “Dover In Review,” Discovery Institute Senior Fellow and Chairman of the Dept. of Government at Seattle Pacific University, Dr. John G. West, marvels at the Judge’s obstinance: “Frankly, it is astounding that Judge Jones treats Pandas as central to his decision given that he refused to grant the book’s publisher, the Foundation for Thought and Ethics, permission to intervene in the case in order to defend itself.”

Their marveling at the judge’s ruling only reveals their ignorance of the legal standards for intervention in a case. It simply isn’t true that they should have been granted the right to intervene in the case under the Federal Rule of Civil Procedure 24, which is the law governing that question. The FTE had every legal right to get their position submitted to the court through an amicus brief, but intervening in the case means that they would be named a defendant, along with the school board, and that can only happen in very particular circumstances. Timothy Sandefur, an experienced attorney who has been involved in many Federal civil trials, does an excellent job of explaining the legal standard for intervention and why the FTE’s motion did not meet that standard. He writes:

Because intervention adds a new party to a case, it complicates things enormously. Intervenors can appeal, they can settle, they can do all sorts of things that make a case much more difficult to manage. This is why the Dover School Board opposed the publishers’ motion to intervene as did the Plaintiffs. The Federal Rules give the right to intervene in spite of that kind of opposition only when the intervenor “claims an interest relating to the property or transaction which is the subject of the action” and which the “disposition of the action may as a practical matter impair.” Obviously this was not the case here, since the publishers of Pandas in no way stood to lose a property right, or anything like it, as a consequence of the case. They argued that they stood to lose potential profits if because “[a] ruling by this Court finding that intelligent design theory is religion would destroy [their] ability to market [their] textbooks within this district,” Motion to Intervene by FTE at 7, but this is not the sort of direct, tangible interest that warrants intervention as of right, particularly since private schools and private individuals are still free to purchase Pandas if they want, and because the publishers failed to provide any evidence to substantiate their claim of potential losses. Order Denying Motion to Intervene of FTE at 11. Judge Jones found that the publishers’ asserted interest in the outcome of the case was “an uncertain and purely economic one,” id. at 12, and that their “‘interests [were] of a general and indefinite character,'” id. at 12 (quoting Harris v. Pernsley, 820 F.2d 592, 601 (3d Cir. 1987)). Thus the publishers had nothing to “defend,” and intervention was not warranted.

Moreover, Judge Jones found that the publishers waited five months before filing their motion–not what you’d expect of a group trying to “defend” themselves–and that they filed their motion only a month before discovery was set to close, meaning that to allow intervention would have required changing that deadline and possibly allowing a whole new round of depositions and other discovery. Id. at 8. And there was no reason to believe that the school board would not do just as good a job of defending ID as the publishers of Pandas. Id. at 15-19.

Judge Jones was right to deny the motion to intervene, and he was also right to grant the FTE amicus curiae status instead. Buell’s next complaint is just plain odd:

The Judge was also undaunted by the U.S. Supreme Court’s six tenets of Creation Science in Edwards (which description Justice Scallia called a “term of art,” meaning a term used by legal professionals that has a precise meaning in a particular subject area). To this codified description Judge Jones made nary a reference…

Precisely how the U.S. Supreme Court described Creation Science was as irrelevant in Judge Jones’ Court as was the testimony and cross examination of eye witnesses.

This appears to be little more than gibberish. There is no reference to “six tenets of Creation Science” in the Edwards ruling. The Supreme Court did not give a definition of creation science, nor would it be terribly relevant even if they did. There is a list of 6 tenets of creation science found in the McLean decision, a 1981 District Court ruling, but that list was not given by the court but taken from the Arkansas statute that was under review. But why this should have “daunted” Judge Jones, or even been worthy of mentioning in his ruling, is quite beyond me. This appears to be as meaningless an argument as if Buell had just randomly thrown words on a page.

This is not the only time in his essay that Buell refers to the 6 tenets of creation science that he, wrongly, thinks was a definition given by the Supreme Court. A few paragraphs later he says:

The complete absence of manuscripts or portions of manuscripts teaching the tenets of the six-part description of Creation Science is eloquent evidence that this and only this is why those two words are sprinkled throughout old drafts.

He’s really insistent that the 6 tenets of creation science used by the Arkansas legislature in Act 590, struck down in McLean is the one and only definition of creation science. He makes this argument so that he can say, “The Supreme Court says you have to have these 6 things in order to be creationism or creation science; Pandas doesn’t have all 6 things, therefore it’s not creationism or creation science.” But in addition to the fact that he is flat wrong that the Supreme Court mandated such a definition, there’s another big problem with this argument: the author of Pandas says otherwise. Here is the definition from the Arkansas act, cited in McLean:

“Creation-science” means the scientific evidences for creation and inferences from those scientific evidences. Creation-science includes the scientific evidences and related inferences that indicate: (1) Sudden creation of the universe, energy, and life from nothing; (2) The insufficiency of mutation and natural selection in bringing about development of all living kinds from a single organism; (3) Changes only within fixed limits of originally created kinds of plants and animals; (4) Separate ancestry for man and apes; (5) Explanation of the earth’s geology by catastrophism, including the occurrence of a worldwide flood; and (6) A relatively recent inception of the earth and living kinds.

And here is the definition offered by Dean Kenyon, the principal author of Pandas, in an affidavit he filed with the Supreme Court in Edwards:

Creation-science means origin through abrupt appearance in complex form, and includes biological creation, biochemical creation (or chemical creation), and cosmic creation. Evolution-science is equivalent to evolution. Evolution is generally understood by scientists (although some would disagree) to include biological evolution (or organic evolution) from simple life to all plants and animals, biochemical evolution (or chemical evolution or prebiotic evolution of the first life), and cosmic evolution (including stellar evolution) (of the universe). Creation-science does not include as essential parts the concepts of catastrophism, a world-wide flood, a recent inception of the earth or life, from nothingness (ex nihilo), the concept of kinds, or any concepts from Genesis or other religious texts.

Isn’t that interesting? While Buell demands that the Arkansas statute’s definition of creation science be used as the sole definition – which allows him to say that anything that does not include those tenets can’t be creation science and therefore isn’t religious – the author of Buell’s textbook says that none of those specific claims are a part of creation science at all, which means that it doesn’t have to contain those elements at all in order to be considered creationism for legal purposes. Which brings us to….the big lie.

Was there a systematic replacement in Pandas manuscripts of the words “creationism,” “creationist,” and “creation” with the term “intelligent design,” as alleged?

Let’s look at the three terms one at a time. Neither “Creationism” nor its synonym, “Creation Science” was ever used in any Pandas manuscript, as alleged.

This, ladies and gentlemen, is a baldfaced lie. Included in the earlier manuscripts of Pandas that the FTE turned over to the plaintiffs’ attorneys in the case, and entered into evidence during the trial, was an early manuscript titled Creation Biology from 1983 (this was entered into evidence in the trial, as P-563 Creation Biology Textbook Supplement [FTE006517 - FTE006742]). I’m going to quote numerous instances of these terms being used in that manuscript. From Chapter 3, pp. 10-11:

Evolution can at least explain these things, it might be urged, but the only explanation advancable by creationism poses more questions than it answers. But unanswered questions are an essential part of science; they define the areas of needed research. Reopened questions often expose time-hallowed but spurious answers that have impeded the progress of science, in some cases, for generations because no one imagined that they needed to be revealuated. [sic] Creationists have an obligation to advance possible explanations of such things as marsupial bones. And It is worthwhile noting (as we shall see later in this chapter) that evolution does not have all the answers about marsupial bones and the like; why should creationism be criticised because it cannot as yet answer questions that evolution has never satisfactorally addressed?

There the word “creationism” appears three times in a single paragraph. From p 3-29:

One obvious objection to this concept (which is actually an objection to creationism in general) is that adaptations are not perfect.

From pp. 6-1, 6-2:

Not that the ancient world, and the modern for that matter lacked for supernatural creation stories. One of the criticisms advanced against creationism embodies this very point: Which
creation story shall we consider to be the true one? Yet it seems to us that if creation by an intelligent entity is taken to be the Kernel of creationism, then the most fundamental postulate of creationism must be that species were originally created as species, which immediately raises the questions of just which ones, how many of them, and when?

From p. 6-12:

What of the creationist? If creation is true, it would be possible (though this is not demanded by the concept of creation) that there are limits to the amount of variation that natural
selection and other evolutionary mechanisms can produce. If such limits exist, creationism should establish that, and then find out what they are. Moreover, if creation is true, there may very well be species on the face of the earth that have undergone no substantial change since the day in which they were created. Is there any way of identifying such species if they exist? Creation research should address this problem. Finally, if creation is true it should be possible to mentally and perhaps even genetically reconstruct the originally created species. Here are questions enough to show that creationism is at least as open to research as evolutionary theory purports to be.

This is very important: notice that in the paragraph above, creationism is used as a form of “creation”. That clearly disproves his contention that “creation” and “creationism” have distinct meanings. Buell claims:

Although they differ by only one letter, “creationist,” is not a variant of “creationism;” it is a variant of “creation,” a modifier that means “of the viewpoint of creation.”

So he is arguing that a “creationist” is merely someone who believes in “creation”, not in “creationism“, and “creation” is perfectly acceptable while “creationism” is what was rejected in Edwards. That would be a silly enough argument on its own, but it’s a whole lot sillier – not to mention dishonest – when you see that his own early manuscript purports to show that “creationism” is a valid scientific theory. At this point, I think Mr. Buell should consider himself fortunate that he was not allowed to intervene in the case. If he had, and he had told this same lie on the witness stand, he might well have found himself in the same position that Alan Bonsell and William Buckingham found themselves – sitting in the witness stand as the judge stared at them and asked them why they were lying in his courtroom.

But then, bizarrely, Buell goes on to admit that they changed “creation” to “intelligent design” on purpose in response to the Edwards ruling!

Did we go through the manuscript and change the word “creation” to “intelligent design,” “intelligent agent,” etc. after Edwards? We certainly did! Why? For clarity sake. First, because by codifying “Creationism” and “Creation Science” with highly specialized meanings, the High Court had cast some suspicion on the word “creation.” Who would expect the public to understand the differences? It was a practical and important matter of good communication.

Now, we’ve already established that he was wrong that such a definition appears in Edwards and that, when it does appear in McLean (not a Supreme Court ruling, incidentally) it is only as a reference to the way the Arkansas legislature defined it in Act 590. More importantly, Buell doesn’t address the fact that the earlier and later manuscripts of Pandas used the exact same definition for “creation” and “intelligent design” that Kenyon uses in an affidavit defending the term “creation science” in Edwards. In Biology and Creation (1986), one of the earlier manuscripts of Pandas turned over by the FTE, they give the following definition:

“Creation means that the various forms of life began abruptly through the agency of an intelligent creator with their distinctive features already intact. Fish with fins and scales, birds with feathers, beaks, and wings, etc.”

And in the final published version of Pandas, they gave the following definition:

“Intelligent design means that various forms of life began abruptly through an intelligent agency with their distinctive features already intact. Fish with fins and scales, birds with feathers, beaks, and wings, etc.”

Almost word for word the same definition of “creation” as for “intelligent design”. More importantly – and this is where this artificial distinction that Buell is attempting to make completely breaks down – the definitions for both are substantively identical to Kenyon’s definition of “creation science” – “Creation-science means origin through abrupt appearance in complex form”. How much more clear could it possibly be made that “creation”, “creation science”, “creationism” and “intelligent design” have essentially identical meanings? It’s right there in black and white, from their own words, and found in the very book that ID advocates hail as the first intelligent design textbook. Game, set, match.

But of course, Buell is not done making bad arguments. Take a look at this one:

More importantly, this change in terminology reflected a more precise understanding of causation as worked out and formalized by the empirical philosopher David Hume. According to Hume, analogical reasoning allows us to comprehend the causes of past effects, even though we cannot observe them, by comparing them with repeated, presently observable examples of cause-effect (like effects have like causes, past and present). This understanding of causation has become critically important in the historical sciences. Hume applied this primarily to natural causes, but he regarded it to be true, as well, for intelligent causes. Hence the crying need for a new term.

Now that just has to make you chuckle. He is justifying the change in terminology from “creation” and “creationism” to “intelligent design” by arguing that the findings of David Hume demands the latter term. One would think, then, that Hume’s work must have been done between the time they used the earlier terms and the time they used the latter term. Just one problem: Hume died the same year the Declaration of Independence was written. Buell does live in Texas, of course, and maybe word travels a bit more slowly down there, but it still strains credulity a bit to think that he only discovered Hume in mid-1987.

In short, Buell’s arguments take two forms: the dishonest and the downright silly.

Comments

  1. #1 Dave S.
    April 7, 2006

    Jon Buell says:

    Let’s look at the three terms one at a time. Neither “Creationism” nor its synonym, “Creation Science” was ever used in any Pandas manuscript, as alleged.

    To which Ed responds:

    This, ladies and gentlemen, is a baldfaced lie. Included in the earlier manuscripts of Pandas that the FTE turned over to the plaintiffs’ attorneys in the case, and entered into evidence during the trial, was an early manuscript titled Creation Biology from 1983.

    You just provided the answer. Buell said the terms were not used in any Pandas manuscript. You refer to a totally different book called Creation Biology. In Creationville, this is classified as being completely honest.

  2. #2 Darkling
    April 7, 2006

    I was luck enough to see Eric Rothschild talk about the Dover case at Duke University recently. A very good talk, in which he brings up Jon Buell in his bisscussion of the Panda’s and People text.
    The talk was recorded and can be reached from here.

  3. #3 Ed Brayton
    April 7, 2006

    Dave S wrote:

    You just provided the answer. Buell said the terms were not used in any Pandas manuscript. You refer to a totally different book called Creation Biology. In Creationville, this is classified as being completely honest.

    Except that the previous paragraph says “Pandas manuscripts”, and Creation Biology was one of the early manuscripts of Pandas that he turned over under subpeona. The fact that he turned it over is an admission that it is, in fact, an early manuscript of Pandas.

  4. #4 Nick (Matzke)
    April 7, 2006

    I was luck enough to see Eric Rothschild talk about the Dover case at Duke University recently. A very good talk, in which he brings up Jon Buell in his bisscussion of the Panda’s and People text.
    The talk was recorded and can be reached from here.

    That link no work.

  5. #5 Darkling
    April 7, 2006

    That link no work.

    Bugger! Opps, looks like I pasted in the wrong address.Let’s try this
    one.
    Rothschild should be a the bottom.

  6. #6 ralbin
    April 7, 2006

    So, the application of Humean epistemology required the switch in terminology. The same epistemology that resulted in the On Miracles section of the Enquiry Concerning Human Understanding, which gives very good reasons to avoid invoking supernatural causation. The same David Hume who wrote the Dialogues Concerning Natural Religion, the most trenchent critique of the argument from design and which contains an anticipation of modern evolutionary theory. The same David Hume who regarded Christianity as a superstition. This is beyond bad argument, this is delusion.

  7. #7 Steve Reuland
    April 7, 2006

    Ed,

    While the 6 tenets of creation science weren’t a part of the “Balance Treatment Act” struck down in Edwards, they were part of the bill’s legistlative history (see Justice Powell’s concurring opinion). This led the court to believe that the intent of the bill was the same as in McClean. However, the act itself simply contained generic references to creationism, and that’s what the court ruled on.

    Buell’s argument via the 6 tenets of creation science is not original. It basically comes straight from DeWolf et al’s Intelligent Design in Public School Science Curricula: A Legal Guidebook. The mistake of attributing the 6 tenets to Edwards comes from DeWolf et al, who Buell probably cribbed from without bothering to check the original source.

    DeWolf’s argument is, basically, that because “creation science” and “intelligent design” have different content, then Edwards doesn’t apply to ID. Of course that doesn’t follow, because having different content doesn’t mean that the same principles don’t apply. Even worse, they claim that because Sci-cre and ID have different content, then this means they have a different source. That’s a complete non sequitur.

    Even putting that aside, the argument still fails because, as you correctly note, the court has never ruled that creationism must be understood to include these 6 tenets. Worse, the majority opinion in Edwards makes it clear that the problematic feature of “creationism” is creation via a supernatural being, which is a religious view:

    The preeminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind (12). The term “creation science” was defined as embracing this particular religious doctrine by those responsible for the passage of the Creationism Act. Senator Keith’s leading expert on creation science, Edward Boudreaux, testified at the legislative hearings that the theory of creation science included belief in the existence of a supernatural creator. See 1 App. E-421 == E-422 (noting that “creation scientists” point to high probability that life was “created by an intelligent mind”) (13).

    Hm, “created by an intelligent mind”. Where have we heard that before? By this definition (which was the one ruled on by SCOTUS) creationism and ID are one and the same. It just baffles me that DeWolf et al. would try to pass off such a ridiculous argument that can be countered simply by reading the text of the ruling. I can only surmise that their legal scholarship is as shitty as their science.

  8. #8 Steve Reuland
    April 7, 2006

    By the way, I just now noticed that Buell wrote the forward for the “Intelligent Design in Public School Science Curricula: A Legal Guidebook”. Clearly not a work he is unfamiliar with.

  9. #9 Ed Brayton
    April 7, 2006

    Steve wrote:

    While the 6 tenets of creation science weren’t a part of the “Balance Treatment Act” struck down in Edwards, they were part of the bill’s legistlative history (see Justice Powell’s concurring opinion). This led the court to believe that the intent of the bill was the same as in McClean. However, the act itself simply contained generic references to creationism, and that’s what the court ruled on.

    Well sure, the legislative history was bound to include a definition of creation science. You can’t mandate the teaching of it and not say what it is. But the court did not cite that definition in Edwards, as Judge Overton did in McLean. As you noted, the ruling in Edwards looked at what we might call the lowest common denominator of those tenets, the belief in supernatural creation, and said that is enough to make it inherently religious. It’s absurd, however, to claim that the legislative definition offered is the Supreme Court’s definition that an idea must meet to qualify as religious, especially when, as you note, that isn’t at all what the ruling says.

  10. #10 Steve Reuland
    April 8, 2006

    Ed, I had meant to point out that the 6 tenets were included in the second draft of the “Balanced Treatment Act”, but were later removed. They were removed because the legislature didn’t want an “all inclusive list” for defining creationism.

    So the LA legislature did pass a creationism bill without defining it, and court was left to determine what they meant by “creationism” based on the testimony of those called to support the bill and those legislators who spoke in favor of it. Contrary to Buell, the definition that SCOTUS ruled on is essentially indistinguishable from ID.

    Anyway, I wasn’t disagreeing with anything you wrote, I was just pointing out that the 6 tenets thing is a bit more complicated than it seems at first brush, and more importantly, that Buell was just repeating a standard DI talking-point.

  11. #11 LarryFarma
    April 8, 2006

    I disagree. I think that FTE should have been admitted as an intervenor because the Pandas book was central to the case. The book`s name appears 74 times in the 139 page opinion, with about half the appearances concerning the book`s content and about half concerning the school board`s actions in choosing the book. I think that the book`s centrality to the case was in itself wrong, because the issue in the case was supposed to be intelligent design per se and there are many books about intelligent design — Pandas just happened to be the book chosen by the Dover school board. I think that the only other ID book that was discussed in the opinion was Michael Behe`s Darwin`s Black Box.

    Judge Jones ruled that FTE`s motion to intervene was “untimely,“ even though the motion was filed only one month after FTE was subpoenaed by the plaintiffs and a whopping four months before the start of the trial. Though FTE was aware of the lawsuit for several months before the motion was filed, it is understandable that FTE might not have been aware of the depth of the Pandas book`s involvement until receiving the subpoena, because the lawsuit was supposed to be about ID and not about a particular book. A lot of delay was caused by Judge Jones himself, who took two months to rule on FTE`s motion.

    Adding FTE as an intervenor would not have greatly complicated the case because the Pandas book was already deeply involved. Also, though the scheduled depositions were almost over, the four months remaining before the trial left plenty of time for additional depositions. I don`t know how many expert witnesses FTE wanted to call — I think that FTE just wanted to call Dembski, who had withdrawn from the case and who may have already been deposed. Anyway, I think that deposition of the expert witnesses was unnecessary because they had submitted expert witness reports and had long paper trails, so there was already plenty of material available for preparing questioning. And in exchange for being admitted as an intervenor, FTE could have waived the right to bring new witnesses or depose the plaintiffs` witnesses.

    It is odd that Judge Jones scoffed at FTE`s interest in the case as being “purely economic.“ Apparently he had never heard the dictum that although money is not everything, it is far ahead of whatever is in second place.

    The Dover defendants` inability and/or unwillingness to protect FTE`s interests became glaringly obvious when the Dover school board decided to not appeal. If FTE had been admitted as an intervenor, it would have had an independent right to appeal. Actually, come to think of it, I am now wondering why FTE did not offer to pay some or all of the Dover school district`s legal costs — including the costs of the district court trial — if the new school board agreed to appeal. I think that an appeal might have been rather embarrassing for Judge Jones because I think that he would have shown more restraint in his written opinion had he anticipated an appeal. Also, the costs of an appeal would have been small compared to the costs of the district court trial — no lengthy discovery, depositions, trial testimony, etc.. Appeals are usually done just with briefs and sometimes short oral hearings. As a pro se litigant, I myself prepared lengthy appeals briefs for several appeals in federal appeals courts and two appeals to the US Supreme Court, without any clerical or other staff assistance whatsoever, and all of my briefs were in the proper legal format.

  12. #12 Ed Brayton
    April 8, 2006

    Larry, do you ever get tired of making bad arguments? Seriously, these arguments are just weak as hell. If you were in law school and gave these answers on an exam, you might be the first person to ever have a negative GPA.

    I disagree. I think that FTE should have been admitted as an intervenor because the Pandas book was central to the case. The book`s name appears 74 times in the 139 page opinion, with about half the appearances concerning the book`s content and about half concerning the school board`s actions in choosing the book.

    That’s great, Larry, but whether you think the FTE should have been admitted or not is irrelevant. The judge was bound to consider the question of intervention based not on the “I wonder what Larry Fafarman thinks” standard but upon FRCP 24 and the various court higher court precedents that have determined how those standards must be implemented. And by those standards, rejecting the motion to intervene was easily justified.

    I think that the book`s centrality to the case was in itself wrong, because the issue in the case was supposed to be intelligent design per se and there are many books about intelligent design — Pandas just happened to be the book chosen by the Dover school board.

    For crying out loud, Larry. No, the subject of the trial was not “intelligent design per se”, the subject of the trial was the specific policy adopted by the Dover school board. Legal proceedings are held about specific policies, not broad subjects of inquiry. Since Pandas was the book that the school board purchased and the book that they specifically told kids to read to learn about ID, it was the specific content of that book that mattered the most in the trial.

    Judge Jones ruled that FTE`s motion to intervene was “untimely,“ even though the motion was filed only one month after FTE was subpoenaed by the plaintiffs and a whopping four months before the start of the trial. Though FTE was aware of the lawsuit for several months before the motion was filed, it is understandable that FTE might not have been aware of the depth of the Pandas book`s involvement until receiving the subpoena, because the lawsuit was supposed to be about ID and not about a particular book.

    Another irrelevancy. The intervention criteria say nothing about “I’m sorry your honor, we didn’t think we wanted to until now”. But timeliness is very important. Both of the non-procedural sections of FRCP 24 begin with the phrase “upon timely application”, and for obvious good reason. The moment a case is filed, both sides allocate resources and begin the preparations for the trial. They line up witnesses, prepare expert reports, take depositions, and plan out several months in advance, all on the assumption that the case is going to be handled a certain way. If someone is allowed to intervene as a party to the case, all of this is thrown completely out of whack. That’s why the presumption is strongly against intervening, especially when the intervention doesn’t take place very early in the process. The FTE sent a letter to the attorneys for both sides declaring their intent to intervene in the case on May 23rd, a full 6 months into the case. But that letter was irrelevant to the court, which can’t do anything about it until they actually file a motion to intervene and they couldn’t do that immediately because they insisted on using ADF attorneys from out of state and they had to be admitted to practice before that district’s Federal courts. They didn’t ask to be applied until June 3rd. By that time, many of the experts had already been deposed by the two sides. If the FTE had been allowed to intervene, all of those would likely have had to be re-deposed by the ADF attorneys, at least all of the plaintiffs’ experts who had been deposed up to that point. They would also have had to bring their own experts to the case, all of whom would have to be given a couple months, at bare minimum, to prepare an expert report, then be deposed by the plaintiffs’ attorneys, all of which would have delayed the case by several months at least. The entire legal strategies of the two sides might have had to be modified as well, the schedules of all of the attorneys and witnesses and support people would have to be shifted back several months, which in some cases might not have been possible. And that’s just scratching the surface of the potential disruptions. As a party to the case – meaning they would actually become a defendant in the case – they would also have the right to request all sorts of things, including continuances. They would have had the right to settle their portion of the case, which would have thrown everything off again. This is why motions to intervene are rarely granted and why the presumption is strongly against intervention. Only where it is very clear that there is no other means of protecting a potential interest are they granted. And that simply wasn’t the case here.

    A lot of delay was caused by Judge Jones himself, who took two months to rule on FTE`s motion.

    Actually, the judge had two different rulings to make concerning the FTE and it several weeks for the preparation and consideration of briefs from all sides and to hold hearings on the subject. Jon Buell actually got to appear before the judge to defend the motion to intervene and the motion to squash the subpeona. Ironically, though, the FTE’s two motions are in conflict. On the one hand, they argued that Pandas was so integral to the case that they must be allowed to intervene; on the other hand, they argued that they shouldn’t have to turn over any of the manuscripts relating to Pandas because they didn’t matter to the case. Anyway, the delay in this case was all caused by the FTE, who waited 6 months to try and intervene.

    Adding FTE as an intervenor would not have greatly complicated the case because the Pandas book was already deeply involved.

    Nonsense, read what I wrote above.

    Also, though the scheduled depositions were almost over, the four months remaining before the trial left plenty of time for additional depositions.

    The trial was scheduled for 4 months later because the depositions and discovery were scheduled to be over by June 15th. If new depositions had to be taken, it would have had to be moved back because all discovery has to be done in order to proceed to several other pre-trial phases. If the FTE had filed a single discovery motion or added a single expert witness to the case, the entire discovery process that had begun in January would have had to start all over again. The trial would just be getting started right about now, most likely, because after the end of discovery you then have to allow the attorneys time to file dispositive motions; then you have to allow the other side time to brief a response to those dispositive motions; then you have to allow the judge time to rule on them. Then you have to allow time for pretrial memoranda to be filed and after that you have to schedule a pretrial conference. And then a month later, you can actually begin the trial. And bear in mind that you also have to give adequate time for the new attorneys involved to read and prepare briefs on every other motion that has already been considered, and you may well have to reconsider them and allow reply briefs to be filed before doing so. Motions to intervene can be massively disruptive to a case, especially 6 months into the case.

    I don`t know how many expert witnesses FTE wanted to call — I think that FTE just wanted to call Dembski, who had withdrawn from the case and who may have already been deposed.

    No, Dembski was withdrawn before he was deposed. But we have no idea who the FTE wanted to call, or what kinds of arguments they wanted to make and what it might have required, or what discovery motions they may have wanted to file, or what dispositive motions they would have wanted to file. It is precisely that unknown level of complication that justifies the strong presumption against intervention.

    Anyway, I think that deposition of the expert witnesses was unnecessary because they had submitted expert witness reports and had long paper trails, so there was already plenty of material available for preparing questioning. And in exchange for being admitted as an intervenor, FTE could have waived the right to bring new witnesses or depose the plaintiffs` witnesses.

    Nonsense, the judge can’t bargain away their rights as a party to the case. If they had been allowed to intervene as a defendant in the case, they would have to have all of the legal rights that any defendant in any case would have, and that includes the right to depose all witnesses for the other side.

    It is odd that Judge Jones scoffed at FTE`s interest in the case as being “purely economic.” Apparently he had never heard the dictum that although money is not everything, it is far ahead of whatever is in second place.

    For crying out loud, Larry, do you think that judges make decisions based on popular cliches? They make them based on well established procedural rules, and the fact is that having a financial stake in the outcome of a case is not grounds for intervention. The subject of the case was constitutional, not economic. The legal question the court had to decide was whether it was constitutional to use Pandas in a public school science classroom (that was part of the question, of course, the only part related to any interest the FTE had). The fact that the FTE might lose money if that question was answered a certain way has no bearing on how the question is answered. If it’s unconstitutional, it’s unconstitutional, regardless of whether that fact might cause the FTE to lose money. When the Court was considering the question of mandatory bible reading in public schools, a bible publisher would have had no right to intervene in the case just because one outcome might cost them sales. The loss of sales has no bearing at all on the factual or legal question the court had to answer.

    The Dover defendants` inability and/or unwillingness to protect FTE`s interests became glaringly obvious when the Dover school board decided to not appeal. If FTE had been admitted as an intervenor, it would have had an independent right to appeal.

    This is true, and frankly I wish they had been allowed to intervene so the case would have been appealed. There’s no way that ruling was going to get overturned. But what you think “became clear” happened long after the judge considered the motion to intervene. The only consideration the judge had to make was whether the attorneys in that proceeding were prepared to defend the legality of using that book in public schools. And they certainly were (though they obviously were pretty bad at it once the trial started).

    I think that an appeal might have been rather embarrassing for Judge Jones because I think that he would have shown more restraint in his written opinion had he anticipated an appeal.

    I think you couldn’t possibly be further from the truth. Remember that on appeal, all of the judge’s findings of fact are presumed to be accurate. The appeals court only examines the application of the legal standards to those findings of fact. And the ruling was incredibly thorough in considering every possible legal standard. That’s why he took so much time considering how he should rule based on every possible standard a higher court might apply, including both the Lemon test and the endorsement test. There’s no way that ruling was going to get overturned on appeal. Possibly by the Supreme Court, but only with a major shift away from decades of precedent and the scrapping of every existing legal standard on the matter. If John Roberts has shown anything to this point as Chief Justice, it is that he doesn’t like major shifts like that and he would almost certainly have steered the proceedings to the sort of minor, technical analysis that his predecessor clearly favored. I think ID advocates should be very happy that the case was not appealed; I strongly wish that it had been.

  13. #13 Wesley R. Elsberry
    April 9, 2006

    The trial record in the Kitzmiller case was unusually complete and compelling. Even Stephen Gey, who is pessimistic about future establishment clause cases going before the Supreme Court, in speaking at the Carolina Law Review in February, said that the facts established in the Kitzmiller case were of such a nature that the Supreme Court, even in its new composition, would have been highly unlikely to overturn Jones’ decision.

  14. #14 LarryFarma
    April 9, 2006

    From post of Ed Brayton | April 8, 2006 06:00 PM

    No, the subject of the trial was not “intelligent design per se”, the subject of the trial was the specific policy adopted by the Dover school board.

    Wrong. The judge`s official order on page 139 of the opinion banned intelligent design (the “ID policy”), not just the Pandas book.

    Judge Jones ruled that FTE`s motion to intervene was “untimely,“ even though the motion was filed only one month after FTE was subpoenaed by the plaintiffs and a whopping four months before the start of the trial. Though FTE was aware of the lawsuit for several months before the motion was filed, it is understandable that FTE might not have been aware of the depth of the Pandas book`s involvement until receiving the subpoena, because the lawsuit was supposed to be about ID and not about a particular book.

    Another irrelevancy. The intervention criteria say nothing about “I’m sorry your honor, we didn’t think we wanted to until now”

    FTE was in Texas — what did they know? They were not involved in the preliminary proceedings of the case. The subpoena was the first real sign that FTE received concerning the great depth of the book`s involvement in the case. And having subpoenaed FTE, the plaintiffs were hardly in a good position to argue against FTE`s motion to intervene. Furthermore, the affidavit by Jon Buell indicated that the decision to apply for intervenor status was not based just on the subpoena but was also based on subsequent court documents and discussions with the defendants’ attorneys. As you say, intervenor status is rarely granted, and it took a long time to gather enough information to justify a motion to intervene.

    The moment a case is filed, both sides allocate resources and begin the preparations for the trial. They line up witnesses, prepare expert reports, take depositions, and plan out several months in advance, all on the assumption that the case is going to be handled a certain way. If someone is allowed to intervene as a party to the case, all of this is thrown completely out of whack.

    Broad legal principles should not be blindly applied to individual cases without regard to those cases` individual circumstances. Here are the special circumstances of this case —

    (1) FTE would not have brought in major new issues, since the book was already one of the central issues in the case.

    (2) The start of the trial was still 3-4 months away.

    (3) Deposition of the expert witnesses in the Dover case was relatively unimportant. These witnesses had submitted expert witness reports and had long paper trails. In exchange for being granted intervenor status, FTE could have waived its rights to bring in its own witnesses and/or depose others` witnesses (more about this later).

    The FTE sent a letter to the attorneys for both sides declaring their intent to intervene in the case on May 23rd, a full 6 months into the case. But that letter was irrelevant to the court, which can’t do anything about it until they actually file a motion to intervene and they couldn’t do that immediately because they insisted on using ADF attorneys from out of state and they had to be admitted to practice before that district’s Federal courts. They didn’t ask to be applied until June 3rd.

    Maybe it took FTE a few days to find the legal representation it wanted. Anyway, it was just a few days delay. You are really getting nitpicking — or should I say gnatpicking, as in straining at gnats and swallowing camels.

    On the one hand, they argued that Pandas was so integral to the case that they must be allowed to intervene; on the other hand, they argued that they shouldn’t have to turn over any of the manuscripts relating to Pandas because they didn’t matter to the case.

    The manuscripts were arguably proprietary and confidential. Anyway, the issue of the manuscripts was separate from the intervention issue.

    If the FTE had filed a single discovery motion or added a single expert witness to the case, the entire discovery process that had begun in January would have had to start all over again. The trial would just be getting started right about now, most likely, because after the end of discovery you then have to allow the attorneys time to file dispositive motions; then you have to allow the other side time to brief a response to those dispositive motions; ……. etc., etc., ad nauseum

    You are making this too complicated. A new discovery motion or a new witness is unlikely to affect the whole case. In fact, at least two of the defense`s expert witnesses — Dembski and Meyer — withdrew from the case, and necessary adjustments were made.

    As a pro se litigant, I handled my own cases in federal courts from the district court level to the Supreme Court, so I am aware of the scheduling issues in the federal courts. As I remember, oftentimes just 3-10 working days are allowed for preparing reply briefs — these cases can move at a much faster pace than you think. The 3-4 months between the filing of the motion to intervene and the start of the trial was a comparatively long time.

    in exchange for being admitted as an intervenor, FTE could have waived the right to bring new witnesses or depose the plaintiffs` witnesses.

    Nonsense, the judge can’t bargain away their rights as a party to the case.

    I see no reason why the judge cannot do anything that the laws and the court rules do not specifically prohibit him from doing. In fact, the Federal Rules of Appellate Procedure even allows federal courts of appeal to suspend most of the appellate rules —

    Rule 2. Suspension of rules

    In the interest of expediting decision, or for other good cause
    shown, a court of appeals may, except as otherwise provided in Rule
    26(b), suspend the requirements or provisions of any of these rules
    in a particular case on application of a party or on its own motion
    and may order proceedings in accordance with its direction. From
    http://www.washingtonwatchdog.org/documents/usc/ttl28/app/0849/0849/rule2.html

    The reference to Rule 26(b) concerns prohibitions on enlarging the time allowed for filing appeal notices and certain petitions.

    It is odd that Judge Jones scoffed at FTE`s interest in the case as being “purely economic.”

    the fact is that having a financial stake in the outcome of a case is not grounds for intervention. The subject of the case was constitutional, not economic.

    Though the subject of the case was constitutional and not economic, the FTE`s stake in the case was economic, and that was what mattered so far as defending FTE`s stake in the case was concerned. Also, in the words of Judge Jones, the precedents he cited held that the applicant`s interests must be “uncertain“ as well as “purely economic“ to be considered to be unapplicable interests under FRCP Rule 24(a). While FTE`s interests were certainly purely economic, they were certainly not “uncertain.“ About half of the 74 appearances of the name of the Pandas book in the Dover opinion concern the book`s contents. A substantial part of the Dover opinion is virtually just a highly unfavorable book review of Pandas. The Dover opinion`s potential to affect the book`s sales is certainly not “uncertain.“

    FRCP Rule 24 is on http://www.law.cornell.edu/rules/frcp/Rule24.htm

    When the Court was considering the question of mandatory bible reading in public schools, a bible publisher would have had no right to intervene in the case just because one outcome might cost them sales.

    A specious argument. Most bibles are the same (King James version) or similar and there are many publishers, so no individual publisher could claim a unique or special interest in the case. However, if a lawsuit targets a specific version of the bible published by a specific publisher, then I would certainly say that that publisher would have the right to intervene.

    I think that an appeal might have been rather embarrassing for Judge Jones because I think that he would have shown more restraint in his written opinion had he anticipated an appeal.

    I think you couldn’t possibly be further from the truth.

    The Dover opinion has so many flaws that space does not permit me go into them here.

    Remember that on appeal, all of the judge’s findings of fact are presumed to be accurate. The appeals court only examines the application of the legal standards to those findings of fact.

    Appeals courts may examine everything, including findings of fact. One of the findings of fact being reviewed in the appeal of the Selman v. Cobb County case is whether a particular public petition was given to the Cobb County school board before or after the board enacted the evolution-disclaimer textbook sticker rule.

    I think ID advocates should be very happy that the case was not appealed; I strongly wish that it had been.

    Actually, I wonder — if the ACLU et al. really thought that it was such a great decision, then why didn`t they offer to free the Dover school board of all past and possible future attorney fee claims if the board would agree to appeal?

    Prosecutor William Jennings Bryan offered to pay John Scopes` $100 fine, but I don`t know if that was on condition that Scopes appeal. LOL

  15. #15 Ed Brayton
    April 9, 2006

    Wrong. The judge`s official order on page 139 of the opinion banned intelligent design (the “ID policy”), not just the Pandas book.

    Of course the ruling addressed whether ID could be taught in schools – the policy mandated that it would be so. But the Pandas book was the specific ID textbook that was used, so Pandas was at issue.

    FTE was in Texas — what did they know? They were not involved in the preliminary proceedings of the case. The subpoena was the first real sign that FTE received concerning the great depth of the book`s involvement in the case.

    And I’m in Michigan, but I knew what was going on. They knew that the Dover had bought 60 copies of their book for use in their school. They knew that the official policy involved using Pandas. If they didn’t think that the constitutionality of using that book in public schools was at issue in the case then they’re idiots and it’s absurd to throw off months of planning by everyone else involved in the case as a result of their idiocy.

    And having subpoenaed FTE, the plaintiffs were hardly in a good position to argue against FTE`s motion to intervene.

    Come on Larry, you can’t be so stupid that you don’t recognize the absurdity of this argument. People are subpeonaed in court cases all the time. The fact that they are subpeonaed is not grounds for having them join as a party to the case. I’ve been subpeonaed to appear in a case. Does that fact mean I should have been named a defendant? Of course not. Incidentally, both sides in this case argued against intervention, not just the plaintiffs.

    Broad legal principles should not be blindly applied to individual cases without regard to those cases` individual circumstances. Here are the special circumstances of this case —

    (1) FTE would not have brought in major new issues, since the book was already one of the central issues in the case.

    You have no idea what they would have brought to the case. But if in fact you’re right and no new issue would have been brought in, then that alone is enough to refuse the intervention. Their economic interest did not add any new legal aspects to the case. Their legal position was already being defended by the TMLC, and the FTE could file amicus briefs to make any argument that they didn’t think the TMLC was adequately covering (indeed, they did so). I would argue that they should actually have been happier with amici status than with defendant status because it means they could make their arguments and get them before the court without having to undergo cross examination about them.

    (2) The start of the trial was still 3-4 months away.

    But only because the entire discovery process was over by June 15th, which then allowed time for all of the various procedural and dispositive motions to be made, responded to and considered before the trial began. As a defendant, the FTE would have to be granted full rights to conduct discovery, depose witnesses and name their own experts and fact witnesses. That would have pushed the trial back even further.

    (3) Deposition of the expert witnesses in the Dover case was relatively unimportant. These witnesses had submitted expert witness reports and had long paper trails. In exchange for being granted intervenor status, FTE could have waived its rights to bring in its own witnesses and/or depose others` witnesses

    But you don’t know that they would have done so. In fact, if they didn’t have any new legal issues to bring up, or new evidence to offer, or new witnesses to bring testimony, then why on earth should they have been allowed to intervene? That’s the conundrum you can’t get around. If nothing new would have been added to the proceedings other than two new lawyers, there is no justification for intervention; if new witnesses, evidence or legal issues were required by their participation, then it would have delayed the trial after 6 months of work by everyone else involved.

    You are making this too complicated. A new discovery motion or a new witness is unlikely to affect the whole case. In fact, at least two of the defense`s expert witnesses — Dembski and Meyer — withdrew from the case, and necessary adjustments were made.

    No kidding, Larry. Taking a witness away doesn’t add more time to the trial. Adding new witnesses obviously does, because they have to prepare an expert report, they have to be deposed by the other side and, ultimately, the court has to admit them as a witness. A new discovery motion might well bring a response from the other side urging that the motion be denied, then briefs have to be issued by both sides – or all three sides, if they were allowed to intervene – and then reply briefs prepared as well before the judge considers the issue and rules on it. Then whatever the process of discovery entails has to be done, the results given to all sides, and time has to be given for them to prepare their case.

    As a pro se litigant, I handled my own cases in federal courts from the district court level to the Supreme Court, so I am aware of the scheduling issues in the federal courts. As I remember, oftentimes just 3-10 working days are allowed for preparing reply briefs — these cases can move at a much faster pace than you think. The 3-4 months between the filing of the motion to intervene and the start of the trial was a comparatively long time.

    It was a long time on purpose. This was an extremely complicated case, far more complex than most district court proceedings and infinitely more complex than most appellate proceedings. There was an enormous amount of discovery to be done. I know this because I was involved in it. I spent an extraordinary amount of time reading depositions and expert reports in the case and I wasn’t even directly involved with it. For the attorneys and the judge it was a thousand times more to do.

    I see no reason why the judge cannot do anything that the laws and the court rules do not specifically prohibit him from doing. In fact, the Federal Rules of Appellate Procedure even allows federal courts of appeal to suspend most of the appellate rules

    This was not an appellate case, Larry, it was a district court trial.

    Though the subject of the case was constitutional and not economic, the FTE`s stake in the case was economic, and that was what mattered so far as defending FTE`s stake in the case was concerned. Also, in the words of Judge Jones, the precedents he cited held that the applicant`s interests must be “uncertain“ as well as “purely economic“ to be considered to be unapplicable interests under FRCP Rule 24(a). While FTE`s interests were certainly purely economic, they were certainly not “uncertain.“

    No Larry, you’re misreading what Judge Jones said. He laid out exactly what standards had to be met, under higher court precedents he was bound to follow, for intervention. The FTE had to meet all four prongs of the following test:

    (1) the application for intervention is timely;

    (2) the applicant has a sufficient interest in the litigation;

    (3) the interest may be affected or impaired, as a practical matter by the disposition of the action; and

    (4) the interest is not adequately represented by an existing party in the litigation.

    Furthermore, the case law says that the burden of proving all four things is on the one seeking to intervene, the presumption being strongly against intervention. On the timeliness standard, the FTE made the same argument you’re making, that they were unaware that their interests would be so central to the case. But Buell also admitted under questioning that he was aware in January 2005, within a month of the complaint being filed, that the case specifically involved Pandas. Thus, any lack of understanding that Pandas would be directly involved in the case and that there would be testimony about it and examination of it would be his own fault because he failed to make inquiries. Also bear in mind that Dembski, the editor of the next version of Pandas and an employee of the FTE, had been named as an expert and began preparation of his report months before they tried to intervene. Do you really think it’s credible that Dembski never mentioned to his boss what was going on? Judge Jones notes that not only is this indefensible, it’s disingenuous. Dembski’s full report was completed in March and the FTE filed for protective orders in April. Yet they still waited to file for intervention until the end of May. On the timeliness issue alone, the case for intervention was lost and lost badly.

    As a side note, here’s what really happened here: the FTE thought that having Dembski involved in the case would protect their interests, but then he was withdrawn as a witness. On top of that, Dembski screwed up – he mentioned the next version of Pandas, The Design of Life, in his expert report. Our side didn’t even know about it until then, but it prompted a subpeona not only of the drafts of that future version, but of all the earlier drafts as well. It was only after Dembski screwed up by mentioning it that the FTE realized they were in trouble.

    On the economic issue, Judge Jones notes that the standard for intervention is that the intervenor’s interests in the case “must be legal interests as distinguished from interests of a general and indefinite character”. An economic interest in the outcome is not a legal interest. The ruling on the motion offered three separate precedents where the appellate courts rejected intervention for purely economic interests. Furthermore, their entire claim to an economic interest, far from being “certain” as you claim, was non-existent. How many copies of Pandas has the FTE sold to public schools? Virtually none. Almost all of their sales have been to churches and religious schools, and that would be unchanged by the outcome of the case. FTE could not show that even 1% of their sales were to public schools, so any economic interest was tenuous at very best.

    Appeals courts may examine everything, including findings of fact.

    Nonsense. For crying out loud, Larry, you know nothing about this issue. Only in rare circumstances does an appeals court not accept a lower court’s findings of fact. They have to be extraordinarly offbase in order to prompt a review of those findings, and when they do they generally will remand the case back to the lower courts. Only in rare cases does the appeals court grant a de novo review.

    One of the findings of fact being reviewed in the appeal of the Selman v. Cobb County case is whether a particular public petition was given to the Cobb County school board before or after the board enacted the evolution-disclaimer textbook sticker rule.

    Actually, that was already settled. One judge on the appellate court claimed that the trial judge was wrong on that issue, but the appellate court judge was wrong. The appeals court even issued a statement later retracting the charge.

    Actually, I wonder — if the ACLU et al. really thought that it was such a great decision, then why didn`t they offer to free the Dover school board of all past and possible future attorney fee claims if the board would agree to appeal?

    Because such an “anti-settlement” would be illegal.

  16. #16 LarryFarma
    April 10, 2006

    PART 1 OF 2

    Reply to post of Ed Brayton | April 9, 2006 04:48 PM

    FTE was in Texas — what did they know? They were not involved in the preliminary proceedings of the case. The subpoena was the first real sign that FTE received concerning the great depth of the book`s involvement in the case.

    And I’m in Michigan, but I knew what was going on.

    FTE had no reason to suspect that the book would be central to the case or that a substantial part of the Dover opinion would be virtually a book review of Pandas. Presumably a large part of the plaintiffs` preparation for the trial was secret, so there was no way that FTE could have been aware of their intention to make the book a central issue in the case. In fact, the plaintiffs may have purposely delayed issuance of the subpoena so as not to give an early tipoff of their intention to make the book a central issue. You yourself said that intervenor status is rarely granted, and early in the case FTE had no reason to believe that they had sufficient grounds to seek intervenor status. After receiving the plaintiffs` subpoena, FTE started acting with reasonable speed — I saw no signs of significant procrastination.

    And having subpoenaed FTE, the plaintiffs were hardly in a good position to argue against FTE`s motion to intervene.

    Come on Larry, you can’t be so stupid that you don’t recognize the absurdity of this argument. People are subpeonaed in court cases all the time.

    OK, I will explain. The proprietary and confidential nature of the material demanded by the plaintiffs’ subpoena — including manuscripts and even telephone and email records — showed that the plaintiffs intended to make the book a central issue in the case.

    You have no idea what they would have brought to the case. But if in fact you’re right and no new issue would have been brought in, then that alone is enough to refuse the intervention.

    I never said that no new issue(s) would have been brought into the case. But FTE probably would not have brought in any new issues unrelated to Pandas, which was already a central issue in the case.

    The issues and ideas that FTE wanted to bring into the case may have been very simple but just needing someone to represent them in the courtroom. A party`s representation in court does not just consist of witnesses, evidence and/or briefs but also consists of attorneys who know what questions to ask in the courtroom.

    I would argue that they should actually have been happier with amici status than with defendant status because it means they could make their arguments and get them before the court without having to undergo cross examination about them.

    An amicus brief carries much less weight than courtroom testimony. Also, as an intervenor, FTE would have had the same rights as the original defendants, including the right to appeal. And escaping cross-examination in trial testimony was no advantage because the judge allowed briefs replying to the FTE`s amicus briefs (only at the Supreme Court level are briefs replying to amicus briefs expressly prohibited).

    Taking a witness away doesn’t add more time to the trial.

    Not true. Taking a witness away is disruptive, just like adding a witness. The attorneys` strategies are likely to depend on an expectation that particular witnesses will testify. If a key witness is taken away, the trial might be lengthened if a replacement is allowed. And you yourself said that Dembski`s withdrawal was one of the factors causing FTE to file a motion to intervene — just dealing with that motion took a lot of time. And after Dembski withdrew from the case, there was a controversy over whether Shallit should be allowed to testify, since Shallit was supposed to be a rebuttal witness against Dembski — a compromise was finally reached.

    This was not an appellate case, Larry, it was a district court trial.

    I of course I know that — I was just using the rules of appellate procedure to show that judges often have broad discretion.

    END OF PART 1 OF 2

  17. #17 LarryFarma
    April 10, 2006

    Reply to post of Ed Brayton | April 9, 2006 04:48 PM

    FTE was in Texas — what did they know? They were not involved in the preliminary proceedings of the case. The subpoena was the first real sign that FTE received concerning the great depth of the book`s involvement in the case.

    And I’m in Michigan, but I knew what was going on.

    FTE had no reason to suspect that the book would be central to the case or that a substantial part of the Dover opinion would be virtually a book review of Pandas. Presumably a large part of the plaintiffs` preparation for the trial was secret, so there was no way that FTE could have been aware of their intention to make the book a central issue in the case. In fact, the plaintiffs may have purposely delayed issuance of the subpoena so as not to give an early tipoff of their intention to make the book a central issue. You yourself said that intervenor status is rarely granted, and early in the case FTE had no reason to believe that they had sufficient grounds to seek intervenor status. After receiving the plaintiffs` subpoena, FTE started acting with reasonable speed — I saw no signs of significant procrastination.

    And having subpoenaed FTE, the plaintiffs were hardly in a good position to argue against FTE`s motion to intervene.

    Come on Larry, you can’t be so stupid that you don’t recognize the absurdity of this argument. People are subpeonaed in court cases all the time.

    OK, I will explain. The proprietary and confidential nature of the material demanded by the plaintiffs’ subpoena — including manuscripts and even telephone and email records — showed that the plaintiffs intended to make the book a central issue in the case.

    You have no idea what they would have brought to the case. But if in fact you’re right and no new issue would have been brought in, then that alone is enough to refuse the intervention.

    I never said that no new issue(s) would have been brought into the case. But FTE probably would not have brought in any new issues unrelated to Pandas, which was already a central issue in the case.

    The issues and ideas that FTE wanted to bring into the case may have been very simple but just needing someone to represent them in the courtroom. A party`s representation in court does not just consist of witnesses, evidence and/or briefs but also consists of attorneys who know what questions to ask in the courtroom.

    I would argue that they should actually have been happier with amici status than with defendant status because it means they could make their arguments and get them before the court without having to undergo cross examination about them.

    An amicus brief carries much less weight than courtroom testimony. Also, as an intervenor, FTE would have had the same rights as the original defendants, including the right to appeal. And escaping cross-examination in trial testimony was no advantage because the judge allowed briefs replying to the FTE`s amicus briefs (only at the Supreme Court level are briefs replying to amicus briefs expressly prohibited).

    Taking a witness away doesn’t add more time to the trial.

    Not true. Taking a witness away is disruptive, just like adding a witness. The attorneys` strategies are likely to depend on expectations that particular witnesses will testify. If a key witness is taken away, the trial might be lengthened if a replacement is allowed. And you yourself said that Dembski`s withdrawal was one of the factors causing FTE to file a motion to intervene — just dealing with that motion took a lot of time. And after Dembski withdrew from the case, there was a controversy over whether Shallit should be allowed to testify, since Shallit was supposed to be a rebuttal witness against Dembski — a compromise was finally reached.

    This was not an appellate case, Larry, it was a district court trial.

    I of course I know that — I was just using the rules of appellate procedure to show that judges often have broad discretion.

    While FTE`s interests were certainly purely economic, they were certainly not “uncertain.“

    No Larry, you’re misreading what Judge Jones said. He laid out exactly what standards had to be met, under higher court precedents he was bound to follow, for intervention.

    No, I was just addressing a specific point made by the judge — I was not discussing all of the standards which had to be met.

    Also bear in mind that Dembski, the editor of the next version of Pandas and an employee of the FTE, had been named as an expert and began preparation of his report months before they tried to intervene. Do you really think it’s credible that Dembski never mentioned to his boss what was going on?

    Yes, it is not only credible, I think it is probable. Dembski was probably just involved with the preparation of his expert report and was not involved with other preparations for the trial — certainly not with the plaintiffs` preparations.

    Dembski’s full report was completed in March and the FTE filed for protective orders in April. Yet they still waited to file for intervention until the end of May.

    I already went through this — I said that it took some time to gather enough information to justify a motion to intervene. The delay was not huge, particularly not in view of the 3-4 months that still remained before the start of the trial.

    As a side note, here’s what really happened here: the FTE thought that having Dembski involved in the case would protect their interests, but then he was withdrawn as a witness.

    That was a contributing factor, but it was certainly not the sole factor. Anyway, Dembski`s withdrawal was just another unforeseen factor that helps to excuse the FTE`s tardiness in seeking intervention.

    On the economic issue, Judge Jones notes that the standard for intervention is that the intervenor’s interests in the case “must be legal interests as distinguished from interests of a general and indefinite character”. An economic interest in the outcome is not a legal interest.

    If an economic interest is not a legal interest, then by your above quote of Judge Jones, an economic interest would be considered to be an interest of “general and indefinite character.“ That is not necessarily true.

    The ruling on the motion offered three separate precedents where the appellate courts rejected intervention for purely economic interests.

    No, these were just district-court precedents, not appellate precedents.

    Nothing in FRCP Rule 24, “Intervention,“ says that the interests of the intervenor must not be “purely economic“ — in fact, the rule implies the contrary by referring to “an interest relating to the property or transaction which is the subject of the action.“ Deciding whether to allow intervention for purely economic interests is therefore a matter of discretion. The judges in those precedents cited by Judge Jones were merely exercising their discretion, just as Jones could have exercised his own discretion by ruling in favor of FTE on this issue of economic interest. Also, in none of these precedents cited by Jones was the would-be intervenor a direct target of the plaintiffs as was FTE in the Dover case. The more I read of Judge Jones` rulings, the worse they appear to be.

    Furthermore, their entire claim to an economic interest, far from being “certain“ as you claim, was non-existent. How many copies of Pandas has the FTE sold to public schools? Virtually none.

    An absurd argument. The decision could have an especially strong impact on FTE`s efforts to sell the book to public schools.

    One of the findings of fact being reviewed in the appeal of the Selman v. Cobb County case is whether a particular public petition was given to the Cobb County school board before or after the board enacted the evolution-disclaimer textbook sticker rule.

    Actually, that was already settled. One judge on the appellate court claimed that the trial judge was wrong on that issue, but the appellate court judge was wrong. The appeals court even issued a statement later retracting the charge.

    I have not heard that the issue of the timing of the petition has been settled. And I believe that the statement issued by the court was an apology for implying that the court had concluded that a plaintiffs` attorney had deliberately misled the court.

  18. #18 LarryFarma
    April 11, 2006

    Reply to post of Ed Brayton | April 9, 2006 04:48 PM

    FTE was in Texas — what did they know? They were not involved in the preliminary proceedings of the case. The subpoena was the first real sign that FTE received concerning the great depth of the book`s involvement in the case.

    And I’m in Michigan, but I knew what was going on.

    FTE had no reason to suspect that the book would be central to the case or that a substantial part of the Dover opinion would be virtually a book review of Pandas. Presumably a large part of the plaintiffs` preparation for the trial was secret, so there was no way that FTE could have been aware of their intention to make the book a central issue in the case. In fact, the plaintiffs may have purposely delayed issuance of the subpoena so as not to give an early tipoff of their intention to make the book a central issue. You yourself said that intervenor status is rarely granted, and early in the case FTE had no reason to believe that they had sufficient grounds to seek intervenor status. After receiving the plaintiffs` subpoena, FTE started acting with reasonable speed — I saw no signs of significant procrastination.

    And having subpoenaed FTE, the plaintiffs were hardly in a good position to argue against FTE`s motion to intervene.

    Come on Larry, you can’t be so stupid that you don’t recognize the absurdity of this argument. People are subpeonaed in court cases all the time.

    OK, I will explain. The proprietary and confidential nature of the material demanded by the plaintiffs’ subpoena — including manuscripts and even telephone and email records — showed that the plaintiffs intended to make the book a central issue in the case.

    You have no idea what they would have brought to the case. But if in fact you’re right and no new issue would have been brought in, then that alone is enough to refuse the intervention.

    I never said that no new issue(s) would have been brought into the case. But FTE probably would not have brought in any new issues unrelated to Pandas, which was already a central issue in the case.

    The issues and ideas that FTE wanted to bring into the case may have been very simple but just needing someone to represent them in the courtroom. A party`s representation in court does not just consist of witnesses, evidence and/or briefs but also consists of attorneys who know what questions to ask in the courtroom.

    I would argue that they should actually have been happier with amici status than with defendant status because it means they could make their arguments and get them before the court without having to undergo cross examination about them.

    An amicus brief carries much less weight than courtroom testimony. Also, as an intervenor, FTE would have had the same rights as the original defendants, including the right to appeal. And escaping cross-examination in trial testimony was no advantage because the judge allowed briefs replying to the FTE`s amicus briefs (only at the Supreme Court level are briefs replying to amicus briefs expressly prohibited).

    Taking a witness away doesn’t add more time to the trial.

    Not true. Taking a witness away is disruptive, just like adding a witness. The attorneys` strategies are likely to depend on expectations that particular witnesses will testify. If a key witness is taken away, the trial might be lengthened if a replacement is allowed. And you yourself said that Dembski`s withdrawal was one of the factors causing FTE to file a motion to intervene — just dealing with that motion took a lot of time. And after Dembski withdrew from the case, there was a controversy over whether Shallit should be allowed to testify, since Shallit was supposed to be a rebuttal witness against Dembski — a compromise was finally reached.

    This was not an appellate case, Larry, it was a district court trial.

    I of course I know that — I was just using the rules of appellate procedure to show that judges often have broad discretion.

    While FTE`s interests were certainly purely economic, they were certainly not “uncertain.“

    No Larry, you’re misreading what Judge Jones said. He laid out exactly what standards had to be met, under higher court precedents he was bound to follow, for intervention.

    No, I was just addressing a specific point made by the judge — I was not discussing all of the standards which had to be met.

    Also bear in mind that Dembski, the editor of the next version of Pandas and an employee of the FTE, had been named as an expert and began preparation of his report months before they tried to intervene. Do you really think it’s credible that Dembski never mentioned to his boss what was going on?

    Yes, it is not only credible, I think it is probable. Dembski was probably just involved with the preparation of his expert report and was not involved with other preparations for the trial — certainly not with the plaintiffs` preparations.

    Dembski’s full report was completed in March and the FTE filed for protective orders in April. Yet they still waited to file for intervention until the end of May.

    The event that made FTE aware of the Pandas book`s centrality in the case was FTE`s receipt of the plaintiffs` subpoenas on April 28. After that, FTE appeared to act with reasonable speed. As I said, it took some time for FTE to gather the necessary information.

    As a side note, here’s what really happened here: the FTE thought that having Dembski involved in the case would protect their interests, but then he was withdrawn as a witness.

    That was a contributing factor, but it was certainly not the sole factor. Anyway, Dembski`s withdrawal was just another unforeseen factor that helps to excuse the FTE`s tardiness in seeking intervention.

    On the economic issue, Judge Jones notes that the standard for intervention is that the intervenor’s interests in the case “must be legal interests as distinguished from interests of a general and indefinite character”. An economic interest in the outcome is not a legal interest.

    If an economic interest is not a legal interest, then by your above quote of Judge Jones, an economic interest would be considered to be an interest of “general and indefinite character.“ That is not necessarily true.

    The ruling on the motion offered three separate precedents where the appellate courts rejected intervention for purely economic interests.

    No, these were just district-court precedents, not appellate precedents.

    Nothing in FRCP Rule 24, “Intervention,“ says that the interests of the intervenor must not be “purely economic“ — in fact, the rule implies the contrary by referring to “an interest relating to the property or transaction which is the subject of the action.“ Deciding whether to allow intervention for purely economic interests is therefore a matter of discretion. The judges in those precedents cited by Judge Jones were merely exercising their discretion, just as Jones could have exercised his own discretion by ruling in favor of FTE on this issue of economic interest. Also, in none of these precedents cited by Jones was the would-be intervenor a direct target of the plaintiffs as was FTE in the Dover case. The more I read of Judge Jones` rulings, the worse they appear to be.

    Furthermore, their entire claim to an economic interest, far from being “certain“ as you claim, was non-existent. How many copies of Pandas has the FTE sold to public schools? Virtually none.

    An absurd argument. The decision could have an especially strong impact on FTE`s efforts to sell the book to public schools.

    One of the findings of fact being reviewed in the appeal of the Selman v. Cobb County case is whether a particular public petition was given to the Cobb County school board before or after the board enacted the evolution-disclaimer textbook sticker rule.

    Actually, that was already settled. One judge on the appellate court claimed that the trial judge was wrong on that issue, but the appellate court judge was wrong. The appeals court even issued a statement later retracting the charge.

    I have not heard that the issue of the timing of the petition has been settled. And I believe that the statement issued by the court was an apology for implying that the court had concluded that a plaintiffs` attorney had deliberately misled the court.

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