Re: [asa] The Swift-Boating of Judge Jones

From: David Opderbeck <>
Date: Wed Dec 13 2006 - 12:13:40 EST

Pim, this is a rare case in which I'm going to agree with you fully. I
noticed this argument surfacing on some conservative email lists and
yesterday. It is an absolutely silly argument. It is routine for trial
judges to request proposed findings of fact and conclusions of law from
parties, and equally routine for them to adopt a party's findings in
or in part. I know this from 13 years of experience litigating in
courts. I also know it because the U.S. Supreme Court has weighed in
on th=
practice: "*even when the trial judge adopts proposed findings
verbatim, th=
findings are those of the court and may be reversed only if clearly
erroneous*." Anderson v. City of Bessmer City, 105 S.Ct. 1504 (1985).

  The Third Circuit, the circuit in which Judge Jones sits, also
recognizes that a trial court can adopt a party's proposed findings
verbatim. See Landsford-Coaldale Joint Water Authority v. Tonolli
Corp., 4
F.3d 1209, 1215 (1993)(stating, *"[w]e similarly reject the
argument that the district court's verbatim adoption of many of [the
defendant's]proposed factual findings contravened the purposes of
Fed.R.Civ.P . 52(a) such that they do not warrant review under the
erroneous standard. This argument has been rejected by the Supreme

As everyone here knows, I disagree with some aspects of Judge Jones'
opinion. The claim that Judge Jones "plagiarized," or is otherwise
culpable of some misconduct, as a result of adopting a party's proposed
findings, however, is false.

On 12/13/06, PvM <> wrote:
> It seems that the PandasThumb predicted correctly the new "talking
> points" of the Discovery Institute, after the MP3 of a Behe lecture
> was published in which accusations of 'plagiarism' were made.
> See
> It is in this context ironic to note that PT also discovered a
> significant level of 'self plagiarism' by some DI authors.
> (
> The 'argument' is that more than 90% of the Judge's ruling is copied
> 'almost verbatim' from the ACLU's brief.
> Some interesting comments
> 1. Using the DI's concept of 'almost verbatim' one has to reach the
> inevitable conclusion that 100% of the human genome is almost verbatim
> found in chimpanzees.
> 2. The finding ignores that the Judge, while using the findings of
> fact, placed them in a coherent argument, while adding his own damning
> comments.
> 3. Legally speaking, the use of 'proposed findings of fact' is well
> established.
> So it seems that the DI is just annoyed how they messed up the
> Kitzmiller situation. Interestingly enough, the court record contains
> how amateurish the DI was in filing their amicus brief
> -----------begin quote------------
> KvD Transcripts wrote:
> [492]THE COURT: But I am distressed by the fact that there is an
> expert report attached to the amicus brief. You know, if I open the
> gate and I tell him I want an expert report, that's one thing. So I
> guess, you know, before we all start a plethora of filings, I'm
> telling you that to give it some thought, we can talk about it
> tomorrow, I could accept some argument on it if everybody wants to
> argue, and I can haul in counsel for the Discovery Institute.
> They have local counsel, in fact I think it's Mr. Boyle's firm
> who's local counsel, and we can go through that, have Mr. Boyle have
> another unhappy day in this court and have his head handed to him, or
> I can just summarily strike it. I'm not going to take an expert
> report. Now, there's yet another one that you have objected to, I can
> do that on the submissions and that's not a problem, but I'm
> interested, do you want to put a dog in that hunt?
> [493]MR. GILLEN: You know what, judge? Amicus at the trial court
> level, as rare as it is, you're going to have a full record, that's
> been our position from the beginning. The only thing I would suggest
> is like you say, you open the door now and who knows who's going to
> show up with a brief, and I don't =96
> [494]THE COURT: No, I didn't, I opened the door I think only to
> them.
> [495]MR. GILLEN: Right.
> [496]THE COURT: And I've corrected the error now and they're going
> to have to follow the rule to the extent that there are future
> submissions. I didn't open the door for anybody.
> [497]MR. GILLEN: Exactly. No way.
> [498]THE COURT: But I take the blame, but in this particular case
> this large missive which I received in as much as it has an expert
> report on it, I don't want to denigrate the Discovery Institute to the
> masses here.
> [499]MR. GILLEN: Right.
> [500]THE COURT: But I'm just not going to receive it. I understand
> what you're saying, Mr. Muise, sometimes you do, but not having had
> the dispute about Mr. Dembski =96
> [501]MR. GILLEN: Yes, I want nothing to do with that. I want
> nothing to do with not showing up here when he was an expert, and then
> trying to sneak something?
> [502]THE COURT: All right.
> [503]MR. ROTHSCHILD: Your Honor, just to make it clear, I mean
> it's not just any expert report. It's actually the expert report filed
> as rebuttal by Dr. Meyer in this case.
> [504]THE COURT: Oh, I understand.
> [505]MR. ROTHSCHILD: It sounds to me like, you know, it sounds
> like there's a basis to strike that doesn't need to deal with the
> opportunity you gave them.
> [506]THE COURT: There's no question about that. You know, it's no
> harm, no foul. But the fact that I was too charitable and they gained
> without a motion doesn't mean that I can't summarily strike it. I
> might have done it sua sponte even absent your motion. Think about it.
> If you change your position, let me know at the outset tomorrow.
> Otherwise I think that what I'll do is, I don't know what I'll do as
> to the first submission. That does not contain any expert report. I
> think =96 is that the 85 scientists =96
> [507]MR. ROTHSCHILD: Yes, Your Honor.
> [508]THE COURT: =96 submission? You may have other grounds, we'll
> let that be briefed and we'll go from there, I'm not going to
> pre-judge that, but I'm vexed by the fact that I've got, you know,
> another massive submission, and in the meantime their counsel has been
> e-mailing Liz, and as a judge told me and co-counsel years ago, "We're
> not running a law school here," and the substance of the question is
> how do we do this, and you know, we're not going to get into that.
> [509]MR. GILLEN: It's plain from the first brief they don't know.
> [510]THE COURT: Yes. I had Liz e-mail back and say get a copy of
> the local rules and we got a non sequitur e-mail back which basically
> said again how do we do this.
> -------------end quote-----------------------
> Seems once again that ignorance is Intelligent Design's best ally and
> worst enemy at the same time.
> What fascinates me is how the various Christian DI activists are
> ruthlessly attacking a fellow Christian, disparaging his
> contributions.
> See:
> Or
> Dembski's "Judge Jones: Towering Intellectual or Narcissistic Putz?"
> formerlly "Judge Jones: Towering Intellectual or Narcissistic Putz?"
> When people noticed this
> ---------Begin---------
> Your take on Judge Jones concerns me Mr. Dembski. Here a judge listens
> to the evidence, makes a judgement in agreement with Findings of Fact
> and Conclusions of Law presented by the ACLU. Now suddenly he is a
> narcissitic putz!?! Just a few months ago you had agreed to make an
> effort to conduct yourself in a more honarable fashion. What would
> JESUS do? Would JESUS resort to name calling? I don't think so. I know
> my comment won't get posted, becasue anything that disturbs your
> equilibrium never seems to find its way onto your blog. Just one more
> sign of the weak platform you stand on.
> --------------------------
> Dembski responded
> "Okay, I changed putz to schlemiel. Satisfied?"....
> When people continued to point out the vacuity of ID's arguments, they
> were banned. A good tradition on Uncommon Descent...
> Teach the controversy only seems to apply to issues that are
> comfortable...
> It's time that we as Christians decide where we stand and if it is
> worth remembering Augustine's wise words?
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David W. Opderbeck
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Received on Fri Dec 15 01:58:08 2006

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