Judge Jones: Lazy or Not so Lazy?

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.

          The Discovery Institute and other ID whiners are all up in arms because it appears that Judge Jones plagiarized the winning side’s briefs.

           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. 

          The ACLU’s proposed findings are here.  The Thomas More Law Center’s proposed findings begin here and continue through here. 

          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.

Comments

[Bill]

Nice summary, Joe. Glad to see you posting again!

Great point about Thomas More saying nothing on the issue.

[Larry Fafarman]

In United States v. El Paso Gas Co., 376 U.S. 651 (1964), the Supreme Court said,

A trial judge's findings will stand if supported by evidence even where they are not his own work product, United States v. Crescent Amusement Co., 323 U.S. 173 , but such findings are less helpful on judicial review than those prepared by the trial judge himself. (emphasis added)

-- and --

[ Footnote 4 ] Judge J. Skelly Wright of the Court of Appeals for the District of Columbia recently said: "Who shall prepare the findings? Rule 52 says the court shall prepare the findings. "The court shall find the facts specially and [376 U.S. 651, 657] state separately its conclusions of law.' We all know what has happened. Many courts simply decide the case in favor of the plaintiff or the defendant, have him prepare the findings of fact and conclusions of law and sign them. This has been denounced by every court of appeals save one. This is an abandonment of the duty and the trust that has been placed in the judge by these rules. It is a non-compliance with Rule 52 specifically and it betrays the primary purpose of Rule 52 - the primary purpose being that the preparation of these findings by the judge shall assist in the adjudication of the lawsuit. "I suggest to you strongly that you avoid as far as you possibly can simply signing what some lawyer puts under your nose. These lawyers, and properly so, in their zeal and advocacy and their enthusiasm are going to state the case for their side in these findings as strongly as they possibly can. When these findings get to the courts of appeals they won't be worth the paper they are written on as far as assisting the court of appeals in determining why the judge decided the case." Seminars for Newly Appointed United States District Judges (1963), p. 166.(emphasis added)

So maybe you can put that in your pipe and smoke it.

[Joe Mc Faul]

Larry needs some reading glasses.

The U.S. Supreme Court holding he has quoted:

"A trial judge's findings will stand if supported by evidence even where they are not his own work product."

He then quotes a speech by J. Skeleley Wright who criticizes this practice:

"Many courts simply decide the case in favor of the plaintiff or the defendant, have him prepare the findings of fact and conclusions of law and sign them."

Now Larry, for the reading comprehension test.

Read the plaitnff's proposed Findings. Did Judge Jones sign them.

No, he did not.

Judge Skelley Wright was cricizing an entirely different practice.

Also note, why he was cricizing the practice...it makes appeals difficult. Who was Judge Skelley Wright? An Appeals Court Justice. Finally, did he say that judges could not include secitons of proposed findings?

No he did not. Did he say that judges had to re-write from scatch. No he did not.

Did he say that a trial judge who signs off on a propsoed secision with no changes commits REVERSIBLE ERROR?

uh, no he did not.

Are his comments even legally binding on Judge Jones. No they are not.

You can stop practicing law without a license, now.

Larry, what is your take on young earth creationism? You agree that Young Earth Creationsim has no scientific basis, correct?

[Burmiester]

Bullshit. Over 90 per cent of his opinion was lifter straight from the plaintiffs material.

There is nothing wrong with this, but quite LYING and saying Jones is some great scholar. He MANIFESTLY is NOT>he simply used the plaintiffs material.

Shit, he could have been asleep at the switch and done the same thing.

As one lawyer to another...who YA KIDDIN?

[Larry Fafarman]

Joe Mc Faul said,

-- He then quotes a speech by J. Skeleley Wright who criticizes this practice:
"Many courts simply decide the case in favor of the plaintiff or the defendant, have him prepare the findings of fact and conclusions of law and sign them." --

What Jones did was worse than just asking the prevailing attorneys to write the opinion and then signing it. Jones gave the false impression that he was the real author of the opinion.

[Keanus]

The purported "analysis" of Judge Jones's decision was a MS Word word count, not a sentence to sentence comparison and the count was only on the portion that addressed the question whether ID was science of religion. If that's the legal analysis of the DI, I'd hate to see what their science (which has yet to see the light of day) research looks like. In short the DI's analysis was nonsense—and would be an embarrassment to any practicing attorney—and Joe's quick explanation is right on. The DI folks are either fools or incompetent on the facts, both in the issues Judge Jones addressed and the way in which attorneys prepare their cases and judges prepare their decisions.

[Joe McFaul]

Larry:

Question pending to you:

Young earth?

cut and run, cut and run.

[Larry Fafarman]

Keanu says --
--"The purported "analysis" of Judge Jones's decision was a MS Word word count, not a sentence to sentence comparison and the count was only on the portion that addressed the question whether ID was science of religion." --

The DI report not only gives the word count but gives many side-by-side comparisons of statements in the Dover opinion and the ACLU briefs. Also, DI focused on the ID-as-science section but said that other sections of the opinion might also have material copied from the ACLU briefs (I know that the conclusion section contains copied ACLU material).

Joe McFaul says --

-- "Larry:

Question pending to you:

Young earth?

cut and run, cut and run. " --

I didn't come here to discuss that subject, you idiot, and I am against cluttering up someone else's blog with off-topic stuff. Your insistent challenge is completely out of line.

[Joe Mc Faul]

"I am against cluttering up someone else's blog with off-topic stuff."

It's my blog. I made it on topic.

Answer or cut and run. Your choice.

[Larry Fafarman]

-- "I am against cluttering up someone else's blog with off-topic stuff."

It's my blog. I made it on topic. --

OK -- as I said, I did not come here to discuss that topic.

[Joe Mc Faul]

Well, that topic is always topic A here.

Regardless of any scientific issue that may exist with respect to intelligent design, there is none over young earth creationism. There is no scientific support whatsoever for young earth creationism. It is not science or in any way scientific.

If a person can't find it in themselves to simply state such an uncontrovertable scientific fact, that person either has no intelectual integrity, no scietific curiosity, or too low of an IQ to discuss anything at all related to science.

Time is short--I can't discuss matters with everybody on this planet. I must invoke some method of screening out those for which conversation is useless.

YEC is one of my screening tools. It save a lot of time and effort. I also employ area 51, UFO abductions and farie apparitions as screening tools.

[Larry Fafarman]

--"Regardless of any scientific issue that may exist with respect to intelligent design, there is none over young earth creationism. There is no scientific support whatsoever for young earth creationism."--

There may or may not be scientific support for it -- I don't know. As I said, I did not come here to discuss that subject.

--"If a person can't find it in themselves to simply state such an uncontrovertable scientific fact, that person either has no intelectual integrity, no scietific curiosity, or too low of an IQ to discuss anything at all related to science. "--

I came here to discuss the law, not science.

Anyway, back to the original topic of this thread --

If the defendants’ arguments regarding the question of whether ID is science were really that bad, Judge Jones would have had good reason to present and rebut those arguments just for the purpose of showing how weak the defendants’ position was. Jones instead mostly or completely ignored those arguments.

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