The Discovery Institute really needs better lawyers.

The ones they have don’t seem to really know what they’re doing.  A former Discovery Institute lawyer teams up to write an article suggesting that a single Dover school board member had a huge conflict of interest because that newly elected board member was a plaintiff in the Kitzmiller case and obviously such a board member shouldn’t be approving the payment of the attorneys fees to the plaintiffs.

Amazing.  There’s no conflict of interest in such cases.  But, as Panda’s Thumb reports, the board member in question hadn’t even taken office yet.

Oh, oops.  Well, not to let the facts get in the way of a good legal argument, The former Discovery Institute lawyer now argues that the ACLU is in collusion with the NEW school board to cut a sweetheart deal on attorney’s fees.

A review of the timeline reveals how ridiculous this suggestion is.
The trial was over November 4.  The NEW school board was elected November 8, four days after closing arguments. The vast bulk of the attorney’s fees had already been acrued by the time the new board was elected. The case was under submission, awaiting the judge's decision.  Only some minor post-trial motions would have been required after November 4.  The OLD Intelligent Design school board's defense tactics and litigation strategy had already caused the plaintiffs to expend the vast bulk of the fees by November 8, 2005.  The NEW school board had no opportunity to influence these fees at all.

Unfortunately for the defendants, the complaint alleges a violation of 42 USC 1983, the federal Civil Rights Act.  Guess what, 42 USC 1988 provides for attorneys fees to successful plaintiffs in 1983 actions. The OLD school board should have immediately factored in the risk of attorney's fees at least by the time the complaint was filed-- on December 14 2004. 

Remember that date.  The attorneys fees meter turns on as of that date.  The defendants can turn off the meter at any time by entering a consent decree  and settling the case and cutting off accruing attorney’s fees.  But there is no requirement that plaintiffs accept a settlement that doesn’t pay all their attorney fees.  No plaintiffs in their right minds will accept a consent decree without making sure their own lawyers get paid.

The DI lawyers and lawyer wannabees apparently don’t realize that once a party is entitled to attorneys fees they cannot be deprived of that right by a defendant’s decision to simply stop the constitutional infringement.  If the defendant does so the plaintiff still recovers attorneys fees. In fact, it has been long recognized that plaintiff can recover attorneys fees even before the lawsuit as long as the plaintiff’s actions and threatened lawsuit were the “catalyst” for the defendant’s changed conduct.

(The catlyst theory has been limited in some federal actions in Buchhannon Board and Care Home, Inc v. West Virginia Dept of Health.  That case is cold comfort to the defendant shere becuase the court specifically upheld the palitff's entitlement to attorneys' fees for settlements and any other court orders that awarded plaintiffs relief.  The catalyst theory is still available for state causes of actin in many jurisdictions, check yoru local jurisdiction for details.)

http://www.law.cornell.edu/supct/html/99-1848.ZO.html (apples only to federal law) and in limited situations.

Once the action is commenced, therefore the defendant is stuck.  There is no reason for a plaintiff to settle without attorney’s fees being paid. The defendant’s only hope to avoid fees is to win.  Once the court had the case under submission, the board could not avoid exposure to attorneys’ fees.

Therefore, this Discovery Institute statement is false:
“Because the Board members understood that removing the policy could have ended the legal controversy. Without the school board deciding to keep the policy, the same policy that board publicly opposed, the ACLU & AUSCS may not have been able to claim attorneys fees.”

So is this one:
“By rescinding the old board's evolution policy prior to a court ruling, the new board might have curtailed legal costs and fees incurred by a victorious ACLU and AUSCS.”

The whopper of course is this one:”  “A likely forthcoming decision by Judge Jones would overrule both the board and the theory of intelligent design.” Prior to December 20, 2005, who knew how Judge Jones would rule?”

Question: If it was such a slam dunk prior to December 20, 2005, what was the OLD school board doing even defending such a dog of a case?

Now that pounding the facts didn’t work, and pounding the law didn’t work, it’s time to pound the table like this guy.

Another question to the DI lawyers, ex-DI lawyers and DI lawyer wannabees:  You all seem so concerned for the taxpayers of York County.  If your concern for the taxpayers is sincere, what legal theories can you come up with to impose personal liablity on the OLD board members for the plaintiff's legal fees so as to ease the taxpayers burden?  That's a legal project we can all agree on, can't we? Never mind, somebody beat you to it.

Comments

[Wesley R. Elsberry]

Thanks, Joe. That's a great addition to the information I was putting together on PT.

[Flint]

Of course, the intent of the DI's claims is to shift the blame away from the old pro-creationist board, and onto the new pro-science board. Since this can't be done truthfully, it isn't done truthfully. I predict that the message will nonetheless resonate well with the target audience, which understands instinctively that lying's a virtue if you're lying for Jesus.

[Joe McFaul]

Wesley, your work was a gem! I was just adding $.02 to publicize it.

Now that there have been "adjustments" to the original posts at EN&V, your orignal post and follow ups are right on target.

[Larry Fafarman]

You completely falsified the Buckhannon opinion, which said in the first paragraph,

Numerous federal statutes allow courts to award attorney’s fees and costs to the "prevailing party." The question presented here is whether this term includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. We hold that it does not. (emphasis added) From Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001)

My condemnation of the Dover school board's failure to repeal the ID policy in December is at -- http://im-from-missouri.blogspot.com/2006/05/two-timing-new-members-of-dover-school.html