The Dave and Larry Show

DaveScot and Larry Fafarman really should take their act on the road, I think. I'd pay money to see these keystone cops try and explain legal concepts to each other and argue about it, wouldn't you? Dave's post on jury nullification continues to provide much amusement. As Dan said in a comment, when Larry is the voice of reason in a thread, that's frightening. Dave's claim is that there should be a right to trial by jury in such cases because of the 7th amendment. But even BarryA, an ID supporter and apparently an attorney, has debunked Dave's argument:

The phrase "suits at common law" is were your argument goes off the track. Way back in the day they had courts known as "common law courts" or "law courts" and courts known as "courts of equity." The distinction between law and equity still exists even though jurisdiction over the two areas has been merged in the federal courts and most state courts. Why is this important? Dover was a suit for injunctive relief. As such it was an equitable action, not a "suit at common law." There is no right to a jury (and never has been) in a case seeking equitable relief such as an injuction, and the Seventh Amendment does not apply.

And he's right. The right to a trial by jury applies to criminal cases and to civil cases that ask for punitive damages. Civil cases that ask for only injunctive or declaratory relief, as is the case with constitutional law cases that seek only to have the courts tell the government agency to stop violating the constitution, are suits of equity, not suits at common law, and there is no right to a trial by jury in such cases. And all Dave's rhetoric about defendants deserving a "jury of their peers" is quite silly, since it's not an individual being sued, it's the government. The government has no peers, of course, and matters of constitutional law are decided by judges, not by juries.

Larry left a comment pointing Dave to my response to his absurd claims in this regard. Naturally, Larry is wrong about most of what he said. For instance, he says:

Ed made some really big bloopers in the above article. For example, he assumed that the ACLU is getting only a small part of the attorney fee award. Wrong. Pepper-Hamilton is getting nothing except reimbursement for its expenses and the whole kaboodle after deduction of expenses is going to the ACLU and the Americans United for Separation of Church and State -- see

What Larry doesn't know is what a staggering bill there is for expenses in this case. Pepper Hamilton picked up the entire bill for the expenses in this case, and those expenses were enormous. They agreed to forego the billable hours for the attorneys and paralegals (and that was well over a million dollars worth on its own), but the expenses left over are still enormous. They covered the full cost of discovery, the full cost of all of the depositions that had to be taken (including travel and housing expenses either for the witness or for the attorneys and necessary support staff), the full cost of compiling and organizing all of the evidence, depositions, witness reports and so forth (all of which was converted into digital format for use during the trial with a state of the art computer system and the people to set it up and run it every day in court), plus all the usual costs of travel, meals, accomodations, conference room space and such during the trial itself. Those expenses were probably well into the hundreds of thousands of dollars before the trial even started. Yes, the ACLU and Americans United split what was leftover, likely a few hundred thousand dollars, but also bear in mind how much of their own expenses they had into it. The article that Larry linked to also says, for example, that Richard Katzkee, the AU's legal director, had 1000 hours into the case. At a standard $150 per billable hour, that's $150,000 right there, and Vic Walczak of the ACLU probably had about the same into it. So as I said, they're not getting rich off this stuff. What legal fees they get reimbursed barely cover the actual expenses they have into the case, and anything left over in a case like this has to go to cover the expenses in numerous cases that they don't get reimbursed for, either because they lost or because the case was settled without any reimbursement relatively early in the proceedings. All of this rhetoric from the right about the ACLU being "funded with taxpayer money" is one giant red herring.

Dave then responds to Larry's comment with his predictable and continued cluelessness:

You're missing the whole point. If legal fees are considered "damages" then an otherwise equitable claim becomes a legal claim. The 7th amendment is crystal clear that when there's a monetary damage claim (above a certain amount which admittedly needs to be adjusted for 200+ years of inflation) the case is a case at common law with a right to a trial by jury.

But this is nonsense on mutliple levels. First of all, the text of the 7th amendment does not say that if there is more than $20 in damages, the case automatically becomes a suit at common law. It says, "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved...". There are two criteria that must be met to have a right to a jury trial - it must be a suit at common law, and the damages asked for have to be more than $20. Having more than $20 in damages does not transform it into a suit at common law. Where the demand is for injunctive or declaratory relief, it remains a suit of equity even if there are damages asked for greater than $20.

And you have to laugh at his argument that if you consider legal fees to be punitive damages, that would change everything. Well, yes. And if we called it a peanut butter sandwich, it would change everything too. Reimbursement of legal fees does not magically transform into punitive damages just because Dave wants to call them that. Punitive damages are entirely different from legal fee reimbursements, and they are given for entirely different reasons. The law allows reimbursement of legal fees in cases against the government for the entirely obvious reason that a citizen should not have to be rich, or go into debt, to stop their government from acting unconstitutionally. If they win such a case and show that the government is doing so, they should not have to go broke to do it. That has nothing to do with punitive damages.

The Dave and Larry show - coming to a stage near you. I wonder if Larry will also play multiple characters - me, his brother, anyone else he feels lke impersonating these days. That would make for quite a funny show as he comes out first as himself, then as his brother, then he comes out and accuses other people of being his brother, and so forth. Needless to say, this play would be a farce, as is their collective understanding of these legal issues.


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In a way the peers of the US government would be other governments. Maybe Dave wants constitutional cases tried by the UN?

By RandomGuy (not verified) on 02 Jul 2006 #permalink

They could call it The Oliver WendellScot and Felix Fafarman Show. No disrespect intended to Holmes and Frankfurter.

Just as amusing as all of the above is the fact that at least one commenter over there thinks these two are real legal experts. Priceless.

Dan wrote:
Just as amusing as all of the above is the fact that at least one commenter over there thinks these two are real legal experts. Priceless.

In her defense, she is still a bit wet behind the ears. I checked out her blog and the profile says she is 17. The newest post reads:

On Picking Up Guys @ Starbuck's

Don't bother.

Apparently a brain is a turn off. I AM SO MAD. There's this guy in the SB and he's cute and we start talking. And so he's all like "what are you doin' tomorrow?". So I told him I might go to church and then the library or the bookstore. And he says "Library????? Bookstore???? What? Are you a braniac or something?"

Yeah, he's spending Sunday alone.

And he can go Shake his own Speare, too.

HAHAHAHA I kill me.


Let's just say that Janie's critical faculties are not fully developed.

Let's just say that Janie's critical faculties are not fully developed.

But they're getting there. They're getting there.

Well Ed, apparently Tim Sandefur agrees with DaveScot on the latter's interpretation of the law, 100%.

If you believe DaveScot.

When will you learn that DaveScot cannot be wrong? Ever.

I wonder if the Thomas More Law Center knew that it wasn't a trial by jury, seeing as how they called Barbara Forrest a "card carrying ACLU member".

And as for Larry, on Jason's blog he says he's really mad at those Darwinists for stifling genuine criticism, and so he's developing an interest there too, with predictably hilarious arguments.

The post that Dave S refers to is, quite literally, incoherent. I can't see how DaveScot gets that Sandefur agrees with him. Or how what Ed said is substantively different from what Sandefur said. Maybe Ed has the patience to try to untangle DaveScot's incomprehensible reasoning; I certainly don't.

Well Ed, apparently [url=]Tim Sandefur agrees with DaveScot[/url] on the latter's interpretation of the law, 100%.

No he doesn't. Tim Sandefur and Ed Brayton both have it exactly right (except that Ed keeps saying "punitive damages" where he means to say "damages" or "monetary damages.")

An award of attorneys' fees is separate, and is not part of the jury verdict in any case. The jury decides the factual issues before it. After the jury renders its verdict, the prevailing party may (in some cases) move to recover its attorneys' fees in a post-trial motion heard only by the judge -- not the jury.

So even the plaintiffs in Dover had sought monetary damages rather than injunctive relief, and even if the Dover case had therefore been a jury trial, the jury would still have had nothing to do with the attorneys' fees portion of it.

In any event, recoverable attorneys' fees are not damages. Most tort causes of action include damages as one element -- but an allegation of attorneys' fees would never count. They are separate from the underlying action, and are therefore dealt with in a separate (post-trial) motion.

When will you learn that DaveScot cannot be wrong? Ever.

It's DaveScot's world. We just live in it.

By George Cauldron (not verified) on 02 Jul 2006 #permalink