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.