Kitzmiller: the Disastrous Motion for Summary Judgment

Document link: DoverMotionforSummaryJudgment - Google Drive

In an earlier post, I pointed to the Dover Area School District’s Motion for Summary Judgment as a major tactical blunder. But I didn’t see a copy of it on the NCSE website, and if you are something of a “litigation tourist,” this document is a worthwhile destination of sorts.

To recap quickly what I said before: a Motion for Summary Judgment is a process where one claims that there are no issues of fact which require a trial, and that if one takes the evidence of record and assumes that all of the issues are resolved AGAINST the moving party (so, for example, if you say the light was green and your adversary says it was red, you must accept, for purposes of summary judgment that it was red, no matter how sure you are that this is untrue), the moving party is entitled to judgment. As I have also said, I was a bit of a connoisseur and specialist in these motions, using them to win cases for plaintiffs, in situations where very few people in my position would even have considered filing one.

The worst kind of motion for summary judgment is the one where you just ignore what the opposing party has in its quiver. All that does is waste the District Court’s time while giving your opponent a chance to march through the whole parade of the facts which are against you. In Dover, all of the facts were against the Board – the statements of motive, the actual underlying purpose, the surrounding circumstances like the burning of an evolution-themed art project, the testimony of the teaching staff, the history of the ID movement, et cetera.

When you are losing the way the Board looked like it would lose, trial is your friend. Witnesses can disappoint or even shock. Strange things not anticipated can come into it. And at trial, the US District Judge is the sole arbiter of the facts. If Jones had wanted to do it, he could have said, “meh – I don’t really believe Ken Miller. Michael Behe, on the other hand, makes all the sense in the world,” and “meh – I don’t really believe Buckingham said this was about Jesus dying on the cross, and standing up for Jesus. I really think the Board had only legitimate secular motives.” Those would not be the findings most judges would make, but his findings on them, even if perverse, would be very hard to get reversed on appeal, because while a Court of Appeals has plenary review over rulings of law, it has to defer to the discretion of the finder of fact on issues of fact.

So when trial is your last and best hope, the last thing you’d ever want to do would be to file a motion for summary judgment where you just ignore whole classes of evidence, as though you were writing a new Stephen Meyer book. But that is what the District did, and while it will never be possible to say for certain whether it made the District’s eventual loss even worse than it would have been, the result of such a motion is to turn the Judge’s attention to everything that is wrong with your case, and that doesn’t help.

The document link above will guide you to the Summary Judgment Motion brief filed by the District, the “Statement of Material Facts” in support thereof, and the exhibits. There are some bizarre bits in here. Note, for example, that they’ve attached their own expert reports, and their experts’ “rebuttal analysis” of the parents’ expert reports. This is never done, and for good reason. As I said, you must make the motion on the basis of a factual record where you are assumed to have LOST every disputed issue of material fact in the case. Your own experts have not been believed, while the plaintiffs’ experts have. Accordingly, your own expert reports are utterly useless in such a motion. While you may indeed have affidavits from your side, and normally do, these should be carefully restricted to points which your opponent cannot put in dispute.

Now, it may well be that when someone unschooled in litigation reads all of this documentation filed by the defense, it sounds very persuasive. But you have to have in mind what kind of blowback it invites. And when you’ve taken it in, and you’d like to know how devastating that blowback might be, I have uploaded that, too, to this folder: PlaintiffResponsetoMSJ - Google Drive

One note, however: it appears that most or all of the exhibits submitted in response to the motion are not available on PACER, the US Courts download system. Accordingly, while I have the defendants’ exhibits, the plaintiffs’ exhibits are omitted. If I can find them somewhere, I’ll post them.


Very helpful, @Puck_Mendelssohn.

And despite many hours of reading Dover trial documents some years ago, I either overlooked or had forgotten this nugget:

So I looked it up:

In the midst of this panoply, there arose
the astonishing story of an evolution mural
that was taken from a classroom and destroyed in 2002 by Larry Reeser, the head
of buildings and grounds for the DASD. At
the June 2004 meeting, Spahr asked Buckingham where he had received a picture of
the evolution mural that had been torn
down and incinerated. Jen Miller testified
that Buckingham responded: ‘‘I gleefully
watched it burn.’’ (12:118 (J. Miller)).
Buckingham disliked the mural because he
thought it advocated the theory of evolution, particularly common ancestry.
(26:120 (Baksa)). Burning the evolutionary mural apparently was insufficient for
Buckingham, however. Instead, he demanded that the teachers agree that there
would never again be a mural depicting
evolution in any of the classrooms and in
exchange, Buckingham would agree to
support the purchase of the biology textbook in need by the students. (36:56–57
(Baksa) (emphasis added)).
Cite as 400 F.Supp.2d 707 (M.D.Pa. 2005)



Incredible, indeed. I am sure that the DI was enthusiastic about the idea of a school district teaching intelligent design, despite its later statements, and I suspect that what may have happened here is that they made the mistake every inexperienced litigator makes, to some degree or another: they believed their own people.

If I were replaced by my goateed “Mirror, Mirror” doppelganger, and had not retired from the practice of law, I would eagerly welcome the opportunity to put the case for ID into such a dispute. But I would look for the ideal case. It should be one where the Board has been fooled into believing ID is real, not one where the Board has started advocating creationism and then shifted to calling that “ID” for tactical reasons. It should be one where there is no background setting of religious zealotry and bigotry. Then the plaintiffs’ job of demonstrating religious purpose would be vastly more difficult, and easier to wave away.

What I learned in my earliest days, trying small-claims cases as a first-year lawyer, was that after you have asked the client what happened, you ask him: “Okay. And what is the other guy going to say?” If you do not do this, you will hear things at trial for which you are not prepared, and you will find that your client did not think they were important to mention. Your client tends to think he wants to convince you; but professionally, your best tack is to be as skeptical of your own case as possible, in private, while putting on the best case you can, in public.

Now, the DI did not have lawyers, in the sense of “people with actual courtroom experience,” on staff. If it had, perhaps Campbell, Dembski and Meyer would not have signed on as defense experts, and perhaps the Thomas More Law Center would have realized from the get-go that this thing could only end in disaster. But the DI, hardly an honorable bunch, decided to throw a hissy fit when the Thomas More Law Center attorneys would not allow them to bring their own counsel to their depositions. This is set out, in the filings, in so many words in an affidavit by Meyer.

The Thomas More Law Center told Dembski and Campbell that it no longer needed their services. Evidently, however, the TMLC concluded that it really needed Stephen Meyer (!?!!? Someone needed Stephen Meyer?) and agreed to allow him to have his own counsel at his deposition. Meyer, however, claims that he had lost confidence in TMLC, and he withdrew his participation.

My suspicion is that the actual motive underlying this was that the DI had, in the meantime, figured out what a junior lawyer could have told them in the first place, and saw that it was going to go down in flames, because it had picked a very poor test case to get behind. Behe and Minnich, however, perhaps out of some sort of sense of honor, stayed on board and so the attempt to extricate the DI didn’t actually work, at least not fully.


Isn’t it interesting that the DI never reveals all these pertinent details?


It is. When asked, they basically say they warned the Dover School Board not to do it, and that they then told all of their fellows that they should stay out of the case. They neglect to mention that:

Their in-house lobbyist/counsel sent Buckingham additional creationist literature, getting him whipped up to adopt the policy. He claims that he did this to dissuade him from adoption of the policy, but that makes very little sense, if he had any ordinary grasp of things like “cause” and “effect.”

They had published materials suggesting that ID SHOULD be in high school science curricula. After it became clear that the Dover case was a dumpster fire, they said it shouldn’t and that they’d never said it should.

They piled in to the litigation: Campbell, Meyer, Dembski, Behe and Minnich, all DI fellows, all retained as experts for the Board. Then three of the five backed out. And ever since, they have been saying how hard they tried to dissuade people connected with the DI from becoming involved. Like their counsel’s efforts to dissuade Buckingham from pursuing the policy, I guess: if you want your fellows to abstain from any involvement, get your leader and multiple prominent fellows to sign on as expert witnesses. It’s a wee bit counterintuitive, but when has that ever stopped the DI?


So they were writing material for high schools with the intent that no high schools would use them? These people have a lot of time to waste.


I think what actually happened has a lot to do with the DI’s naivety. They thought they had a defensible case. The Kitzmiller v. Dover litigation taught them that they did not, and that soliciting fights of this type would render them infamous, pathetic and absurd. So they shifted from encouraging it to discouraging it, and, classic DI-style, insisted that we had ALWAYS been at war with Eastasia.


And they managed to accomplish that regardless.

Indeed! That outcome was not avoidable by any craft we here possess.


Hi Puck! I think I have a pretty thorough record of Kitzmiller filing PDFs – although I’m not sure if all the exhibits are in there as sometimes they were whole books etc. Anyway, drop me an email at Cheers! Nick


Thanks, Nick! Will do!

By the way, something I have wondered: whose pair of eyes was it that first glanced the expression “cdesign proponentsists”? Was that you? And if so, how long did it take you to stop laughing after you’d found it? As an ex-lawyer who occasionally had moments of a similar (though less amusing) character, I always got that feeling that Huxley said he had when Soapy Sam Wilberforce asked whether he was descended from an ape on his mother’s or his father’s side. Huxley heard that, and whispered to a companion, “The Lord hath delivered him into mine hands.”


Hiya! As is written in various places I think, it was Barbara Forrest that discovered cdesign proponentsists. It was indeed incredible, although we actually didn’t use it at trial, it was just too much (as I said to someone, “It would have been like pouring salt in the wound, when the wound was decapitation.”).


Ah, the plaintiffs’ counsel was more genteel, then, than I would ever have been. In Philadelphia, we always yearned for the moment when we could back the dump truck full of salt up and tilt it over the opposition; but as one moved west into counties where the culture was a bit more Amish/Mennonite, it might have been good judgment to quit while ahead – at least, if you were doggoned sure you really WERE ahead.

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Hey @Nicko_Matzko, nice to have you here.


Hi Nick! (@Nicko_Matzko), I didn’t see you step in, but I’m glad you found your way here.

For those of you not familiar with Nick, he has been around the evolution debates a long time. He also write about other stuff: Nicholas J. Matzke - Google Scholar Citations

At work, we keep a copy of the issue of Science with Nick’s paper on the phylogeny of anti-evolution legislation handy. It would be a hilarious work of fiction, were truth not stranger than fiction.


Yes, but probably not the way the clown school board of Dover was trying to do it! I knew a lot of the guys at the DI, NONE of them had anything good to say about the Dover School board or their legal team, but several has pretty disparaging remarks as the School board and legal team got people involved who shouldn’t been and tarnished their reputations.

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So they have been lying all along when they keep saying “No.”

It’s good to have confirmation from someone in the know.


How would a really smart and savvy school board go about instigating teaching ID, securing the cooperation of science teachers, and prevailing in the inevitable court challenge?


FIVE of them signed on as experts. FIVE. They were as fully on board as it gets.