Well, neither. I will gently rib the state and federal bench by dividing judges into two categories: Lazy judges and not so lazy judges.
Why is this difference important?
After trial there is as “winner” and a “loser,” as Intelligent Design has found out. About 50% of all parties in trials come out as “losers.” Losers don’t like being losers. They moan, they blame the judges or their own lawyers. It never crosses their minds that the law and facts were against them. At Dover, there is no question that ID was the “loser.”
After the winner and loser is determined, the judge will usually “write” a “Statement of Decision” or “Findings of Fact and Conclusions of Law.” This sets out the facts and legal principles in support of the judge’s ruling.
They are either ignorant or willfully dishonest. The judge seldom writes the statement of decision from scratch. In many cases, a lazy judge tells the winning side to submit a proposed state of decision. This is what winning lawyers gleefully call a “blank check.” Nevertheless, it is a very good idea for the winning attorney to carefully write the proposed decision as legally and factually accurately as possible. The attorney will include all of the factual and legal support for the ruling correctly referencing the law and the evidence.
Here’s the rub, though: The attorney will also be allowed broad leeway to draw inferences from disputed facts or to resolve factual disputes in his favor. In truth, the “check" is not blank—the attorney must carefully craft the proposed decision to match the judge’s actually ruling. If he oversteps his preogative, he may find the judge will simply change his mind.
Not so lazy judges give an attorney general guidelines on what to put in the decision and will extensively re-write the decision into the judge’s preferred syntax.
Either way, if the attorney has done his job well, the winner's proposed facts and law will bear an uncanny resemblance to the final decision. There is nothing more exhilarating than to see your own words and analysis plunked directly into the final opinion. When that happens, you know two things. First, you won your case. Second, you did a very good job of anticipating the judge. Congratulations!
In the Dover case, Judge Jones (who is not lazy) required both sides to submit proposed findings of fact and conclusions of law. These are prepared by the attorneys as if the judge would sign them verbatim.
See—both are written as if the judge would sign with no changes. Both sides expect this routine practice. The Federal Rules of Civil Procedure set out the requirements for findings of fact and cocnlusions of law. The notes to Rule 52 acknowledge the common practice of preparation by the winning attorney.
Timothy Sandefur at Pandas’s Thumb correctly refers to the leading case approving of this practice. There are a number of cases that have analyzed Rule because they have been other losing whiners before the Discovery Institute who were also surprised that the very same judge who didn't agree with them during the trial still doesn't agree with them after the trial.
It is therefore willfully dishonest for an attorney to accuse Judge Jones of plagiarizing the proposed findings of the winning side. What Judge Jones did was routine procedure. And it takes nothing away from the opinion.
How do we know?
Remember Sherlock Holmes’ "the curious incident of the dog in the night-time?"
The dog did nothing in the night time.
"That was the curious incident," remarked Sherlock Holmes.
The Dover opinion is one year old. Both sides’ proposed findings are online. Attorneys on both sides scrutinized each others’ submission, probably committing them almost to memory. The judge then followed by issuing his opinion in December 2006.
Do you think that the Thomas More Law Center attorneys immediately noticed the similarity between the judge’s opinion and the ACLU brief in the past year? Of course they did.
Are they “barking” along with the ID chorus? No, they are not. They know better. Their silence says volumes.