As I’ve been looking over the threads here I have run into a few things on the Kitzmiller decision, and so far as I can see, there have not been posts from people with relevant litigation experience. As it happens, I spent nineteen years practicing civil rights law in U.S. District Courts, Courts of Appeals, and (to a limited extent) the U.S. Supreme Court. I spent my early years in Philadelphia, where some of the counsel in the Kitzmiller case came from, and if he were not a young whippersnapper, I might have gone to school with Eric Rothschild, who was at Penn Law School a few years after me. While I did not do establishment-clause cases, Kitzmiller has a lot in common with the sorts of disputes I was often engaged in – it all arises under, and is governed by, the same old post-civil-war statutes which governed my caseload.
I am available, should anyone have questions about Kitzmiller, to let you know whatever I can about it. I do find that there are a number of very strange misconceptions about it which find expression in forums where ID is discussed, some of which, regrettably, are spread by people like Michael Behe, who should know better.
There is a little corner of the case which I hardly ever see anyone discuss, and which is a subject near and dear to my heart: the summary judgment motion which was filed by the defense. Summary judgment motions were my favorite weapon. Essentially the idea is this: if you take the evidence in the case and construe all of it in the light most favorable to your opponent, should you still win? If you should, then summary judgment is the way to make it happen. This state of things can exist, in litigation, for any number of reasons. Is your client immune from suit? Is the claim being made against you missing some critical element on which the plaintiff bears the burden of proof?
Usually these are filed by the defense, because it’s easier to break a claim by producing one flaw in it than it is to string all of the information required to present a valid claim together. Intelligent Design Litigation, and of the sort loved by Michael Behe! But my particular specialty, which in several cases led to my putting defendants spectacularly on the back foot, was in winning summary judgment for plaintiffs rather than for defendants. I settled my last case – for a YEC client, no less! – after getting the District Court to rule, on summary judgment, that a city had breached its contract with my client and had engaged in an unlawful search and seizure of his property. All that was left for trial was to figure out how much they owed him.
There are good reasons why these motions, though great favorites of skilled litigators, are NOT filed in quite a few cases. You need facts that are unambiguously in your favor in some critical legal respect; if there is any sort of argument that depends upon such things as your intent, and there is a conflict in the evidence bearing on that intent, you’re not going to win the motion. The very worst thing you can do – and one does see this, but not often – is to file a motion for summary judgment where, instead of laying out the facts that are bad for you and explaining why they don’t really matter or aren’t really bad for you, you just pretend they don’t exist and base the motion upon the claim that there’s no evidence for any of the plaintiff’s claims. Why is that bad? Two reasons.
First, you’ll lose. It’ll be a huge waste of time, and a waste of the Court’s time, which the judge likely will not appreciate.
Second, you’ll give your opponent an opportunity to give the judge a detailed, blow-by-blow preview of the evidence against you. If that evidence is quite devastating, that preview will not put the judge in a favorable frame of mind as trial approaches. He will know, even as he hears the first witness, what the whole structure and theme of your case is.
In Kitzmiller, the mostly-Protestant school board was represented by the Thomas More Law Center. Having only viewed A Man For All Seasons, and not looked into the details of the man himself, the Board didn’t see what was coming. More was for a time Henry VIII’s Chancellor, and gloated about the burning of Protestants, saying of one that he “burned as there was neuer wretche I wene better worthy.” A lovely fellow, whose image as a hero of religious freedom may be ever so slightly erroneous. If only the Thomas More Law Center had had an appropriate motto, such as “Burning Protestants Since 1529”!
Well, the Thomas More Law Center filed a motion for summary judgment. What sort was it? It was, of course, the worst possible sort: one which asserts that the plaintiffs have no evidence of anything, opening the door wide to a full-bore preview of the devastating case against the Board.
It was no shock that the motion was denied. But here was the groundwork of the plaintiffs’ victory. Yes, a trial still had to be held, and yes, the Board might hope for Ken Miller to blow up on the stand and Michael Behe to shine. But that is not what happened, and the Thomas More Law Center skipped town, having represented the Board for “free” and left them with a bill for the plaintiffs’ fees and costs of $1,000,000.
As someone who used to try civil rights cases in US District Court (and in Pennsylvania, even!), I ate a lot of popcorn while Kitzmiller was going. Unfortunately, the blow-by-blow coverage was limited while the trial was going on. The transcripts are interesting, and it certainly was a case of immense disparity in skills of advocacy. I have seldom seen a case tried so well as this was tried by the plaintiffs’ counsel.
The longest endnote in Behe’s latest book is one long protest against the trial and the decision. But it was the people on Behe’s side who decided to go to war, and they really only have themselves to blame for their strange optimism.