Richard B. Hoppe posted Entry 2026 on February 16, 2006 08:25 PM.
Trackback URL: http://www.pandasthumb.org/cgi-bin/mt/mt-tb.fcgi/2021

Last January in my public remarks to the Ohio Board of Education after it had narrowly voted to retain the ID creationist lesson plan, I said that “This Board has set a ‘Dover Trap’ for every local school district in Ohio”.

By “Dover Trap” I meant that the Trojan Horse “critically analyze” benchmark and the creationist model lesson plan that operationalized the benchmark tacitly sanctioned teaching intelligent design creationism (in any of its guises) in Ohio schools, and in doing so it exposed Ohio local school districts to the same risk that Dover took. Aside from the pedagogical problems of teaching the intellectual vacuity of creationism, any district that tolerated or sanctioned teaching Wellsian B.S. would in effect be betting $1 million that it was worth teaching.

Father Michael Cochran of the State Board was quoted as saying, “If they think we are wrong — take us to court.” That’s easy for Cochran to say: He wouldn’t pay for anything. But for some little district in Vinton County or Holmes County or Coshocton County, it would be a devastating blow to be so ill served by the Ohio BOE.

In a recent development, the American Family Association has offered similar legal assistance. In a press release its Center for Law & Policy has offered to defend the Ohio State Board if it reinstates the deleted material. (The Ohio ID creationist organization SEAO was a project of AFA.) One can expect that AFA’s defense will be as “free” as the Thomas More Center’s defense in Dover, and worth just as much.

Now that the offending benchmark, indicator, and lesson plan are gone from the Ohio state standards and model curriculum, there is not even the weak justification of State Board action for local Ohio districts to lean on. Any Ohio district that teaches intelligent design creationism-inspired glop now is wholly on its own.

I commend the “Dover Trap” phrase to colleagues elsewhere. Remind local superintendents that neither their state BOE nor their state legislature can protect them from the federal courts, and that they stand to take an enormous hit if they teach sectarian ID creationist pseudoscience, including the “teach the controversy” and “critical analysis of evolution” shams.

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Comment #80463

Posted by Skip Evans on February 16, 2006 8:54 PM (e)

What am I missing?

This is just about science, right? Religion has nothing to do with it.

So why do only legal groups like the Thomas More Law Center and the AFA want to take this to court?

Personally, I’d love to see another case, if only to put one more nail in ID’s coffin, as it doubtlessly would, but first I think Nick needs a rest ;)

Comment #80470

Posted by A.C. on February 16, 2006 9:24 PM (e)

The Dover Trap
Richard B. Hoppe posted Entry 2026 on February 16, 2006 08:25 PM (opening comment of thread)

Aside from the pedagogical problems of teaching the intellectual vacuity of creationism, any district that tolerated or sanctioned teaching Wellsian B.S. would in effect be betting $1 million that it was worth teaching.

A bill has been introduced in Congress to bar the awarding of attorney fees to winning plaintiffs in establishment clause cases. See –
http://www.legion.org/?section=pub_relations&subsection=pr_listreleases&content=pr_press_release&id=289

– and –

http://www.legion.org/includes/printable_version.php?content=aclu_magarticle

A lot of people who support a strong separation of church and state ( I generally do – for example, I am strongly opposed to school prayer ) are nonetheless upset by the taxpayer costs of these big awards of attorney fees. The threat of a big award of attorney fees to the plaintiffs in the Dover case was considered to be a significant factor in the ouster of the pro-ID Dover school board members.

Comment #80472

Posted by 'Rev Dr' Lenny Flank on February 16, 2006 9:42 PM (e)

How goddamn many names do you plan on posting under, Larry?

Jesus.

Comment #80473

Posted by 'Rev Dr' Lenny Flank on February 16, 2006 9:45 PM (e)

The threat of a big award of attorney fees to the plaintiffs in the Dover case was considered to be a significant factor in the ouster of the pro-ID Dover school board members.

Good. (shrug)

But hey, I’ll agree to dropping any and all attorney fees for winners in establishment clause cases, if YOU agree to jail time for any people who are ruled in violation of the establishment clause.

Deal?

Comment #80474

Posted by Sir_Toejam on February 16, 2006 9:45 PM (e)

blah, blah, blah.

thanks for your 2 cents larry.

why did you switch to using A.C.?

I think Arden Chatfield might get upset with you for using his initials to spout your drivel.

Comment #80481

Posted by Rilke's Granddaughter on February 16, 2006 10:59 PM (e)

Gentlemen, I trust you have realized by this time that there is another element at work here: Larry (etc.) is fairly clearly ill - in a psychological sense. His need for attention is quite desparate, and his constant variance in Names, while retaining the identical failed argument, is merely another mechanism to get you to pay attention to him.

I realize it’s sad to be so desparately lonely that you have to resort to being ‘annoying’ just to get someone to react, but it seems quite clear that’s what we’re dealing with here.

I don’t have a good suggestion for the mods on what to do about it; he’s sufficiently annoying that he wastes bandwidth that might be spent on productive conversation, and his presence has an adverse effect on the ‘tone’ of discussion, but since I doubt he’s using a single IP address to log in from, the only clear identification mechanism is the tenor of his argument.

And that’s part of the point: he needs to have us know it’s him. This is just another part of the dependency syndrome that he’s suffering from.

It’s interesting to watch; just like it’s interesting to watch the homeless sometime.

But if you actually want him to go away… ignore him. That’s the only thing he can’t handle.

Comment #80483

Posted by Michael Hopkins on February 16, 2006 11:22 PM (e)

It seems to me “Dover Trap” is nothing more than an old “bait and switch” fraud. As a consumer if I am promised a service at x price, and suddenly find that that service cost me big time via a charge I was not informed ahead of time then I would want to take them to court. In this case a service was promised at a price of $0.00 and the huge hidden charge is the millions in court costs of the plaintiffs that TMLC did not bother to inform Dover that they would have to pay.

I dare say that if that is not illegal, it should be. If someone is going to encourage you to go to court with a promise that you will not have to pay then they should have to pay it all. The exception will be if they are inform you up-front that they will not pay [fill in the blank], that it is likely to be substantial, etc. If lawyers are excempt from truth in advertising then I would like to know why it is so. If they are not then I want to see the TMLC either having to pay the court costs themselves and/or have its lawyers disciplined. Now that would certainly discourage future “Dover Traps.” And if the school districts know up front what they are getting into they might stay out of the mess all together.

Comment #80493

Posted by k.e. on February 17, 2006 12:56 AM (e)

Good point Richard B. Hoppe

phrases to remember each time the subject comes up

Dover Trap

and

Creationism Intelligent Design

or

Intelligent Design Creationism

They hate the two being connected in fact it drives them nuts.
When the steam starts coming out of their ears and they go Hyperbolic
just Remind them that

Not one Nobel Laureate supports Creationism Intelligent Design

and

A Non Activist Conservative Republican Believer, Judge Jones, found that Intelligent Design IS re-badged Creationism.

All that wasted passion, when they could be fighting for something worthwhile like this one
Evangelical Leaders Join Global Warming Initiative
saving ALL creation.

Comment #80498

Posted by Bob O'H on February 17, 2006 1:24 AM (e)

It seems to me “Dover Trap” is nothing more than an old “bait and switch” fraud. As a consumer if I am promised a service at x price, and suddenly find that that service cost me big time via a charge I was not informed ahead of time then I would want to take them to court. In this case a service was promised at a price of $0.00 and the huge hidden charge is the millions in court costs of the plaintiffs that TMLC did not bother to inform Dover that they would have to pay.

Someone will correct me if I’m wrong, but I thought the Dover board was informed. The charge comes from the plaintiffs’ lawyers (i.e. Pepper Hamilton), and the board had been told by their lawyer that they wouldn’t have insurance against the fees if they hired the TMLC, rather than their ususal lawyers.

The full story will be on PT somewhere, of course.

Bob

Comment #80500

Posted by Andrew McClure on February 17, 2006 1:36 AM (e)

why did you switch to using A.C.?

I think Arden Chatfield might get upset with you for using his initials to spout your drivel.

On the board where I spend most of my time, A.C. is actually the initials and common nickname of the most prolific poster on the entire site

“Anonymous Coward”

Someone will correct me if I’m wrong, but I thought the Dover board was informed.

The board was, yes.

But as far as I’m aware, the voters weren’t exactly.

And it is the voters’ money being spent…

Comment #80503

Posted by Sir_Toejam on February 17, 2006 2:00 AM (e)

On the board where I spend most of my time, A.C. is actually the initials and common nickname of the most prolific poster on the entire site

“Anonymous Coward”

hmmm, sounds like /. to me

Comment #80505

Posted by Mike Elzinga on February 17, 2006 2:13 AM (e)

I think the ID pusher strategy includes being in a position where, if they are sued and lose, taxpayers pick up the tab. This way they leverage taxpayer money to spread their gospel.

Comment #80520

Posted by raj on February 17, 2006 7:57 AM (e)

Skip Evans on February 16, 2006 08:54 PM

So why do only legal groups like the Thomas More Law Center and the AFA want to take this to court?

I can see to reasons to two different aspects of the question.

One, a legal group can represent a defendant only if the defendant retains the legal group to defend him. Perhaps defendants in cases like these retain only legal groups like the the TMLC or the AFA–or, for that matter, Pat Robertson’s American Center for Law and Justice (ACLJ)–to represent them. The same goes for plaintiffs who content that their free exercise or establishment rights have been violated.

On the other end, the TMLC, AFA and ACLJ probably bring the cases because it is good for their fundraising, or the fundraising of their parent organizations.

Comment #80521

Posted by raj on February 17, 2006 7:59 AM (e)

A.C. on February 16, 2006 09:24 PM

The threat of a big award of attorney fees to the plaintiffs in the Dover case was considered to be a significant factor in the ouster of the pro-ID Dover school board members.

The electorate voted the members of the school board into office, who approved the policy that violated constitutional rights. Ultimately, the electorate is responsible for the actions of the school board.

Comment #80522

Posted by Ron Okimoto on February 17, 2006 8:01 AM (e)

Michael wrote:

It seems to me “Dover Trap” is nothing more than an old “bait and switch” fraud. As a consumer if I am promised a service at x price, and suddenly find that that service cost me big time via a charge I was not informed ahead of time then I would want to take them to court. In this case a service was promised at a price of $0.00 and the huge hidden charge is the millions in court costs of the plaintiffs that TMLC did not bother to inform Dover that they would have to pay.

I dare say that if that is not illegal, it should be. If someone is going to encourage you to go to court with a promise that you will not have to pay then they should have to pay it all. The exception will be if they are inform you up-front that they will not pay [fill in the blank], that it is likely to be substantial, etc. If lawyers are excempt from truth in advertising then I would like to know why it is so. If they are not then I want to see the TMLC either having to pay the court costs themselves and/or have its lawyers disciplined. Now that would certainly discourage future “Dover Traps.” And if the school districts know up front what they are getting into they might stay out of the mess all together.

There seemed to be some confusion among the Dover board members about fees, but the TMLC did set the board straight that they would not cover plantiffs costs before the court case began.

The bait and switch scam was run by the Discovery Institute and their creationist supporters like the ID Network. The rubes in Dover and Ohio got suckered into thinking that they could teach ID, but the Discovery Institute didn’t have anything to teach about ID and tried to sell them the replacement scam instead. Ohio didn’t bother asking for a raincheck they just took the next scam from the Discovery Institute. The Dover rubes didn’t want to take the replacement scam. Essentially they demanded their rights as consumers to get the advertized product. The Discovery Insitute’s ID product had never really existed to sell in the first place, and the Dover rubes had their heads handed to them. Just think what would happen to an entity like Wal-Mart if they pulled a stunt like that?

The SEAO is an example in point. Their old web page used to boldly proclaim that they were going to teach the scientific theory of intelligent design. Just go to the link provided and try and see what they are stuck with now. These guys were supposed to be touted as “academics,” but they didn’t ask for a raincheck they just rolled over and accepted the pathetic replacement scam. Where did the Ohio board, the SEAO, or the Dover board get the idea that there was a scientific theory of ID to teach? What did they get from the scam artists that scammed them about ID? Why did the SEAO and the Ohio board happily roll over and accept the bait and switch scam?

It doesn’t look like improving science education is the goal of these guys. This dishonest mindset is something that you wouldn’t even want to advocate teaching in a social science class.

Ron Okimoto

Comment #80523

Posted by Ron Okimoto on February 17, 2006 8:11 AM (e)

raj wrote:

A.C. on February 16, 2006 09:24 PM

The threat of a big award of attorney fees to the plaintiffs in the Dover case was considered to be a significant factor in the ouster of the pro-ID Dover school board members.

The electorate voted the members of the school board into office, who approved the policy that violated constitutional rights. Ultimately, the electorate is responsible for the actions of the school board.

This isn’t quite true in the Ohio case. Many (all?) of the creationist supporters on the Ohio board were appointed by the Governor. He even recently claimed that he should have paid more attention to the candidate’s views on this issue before he appointed them. People may snicker at this statement because of the evidence that he put pressure on the board to do just what they did.

Ron Okimoto

Comment #80528

Posted by Red Mann on February 17, 2006 8:39 AM (e)

Did anyone see the article by “Father Jonathan” on FoxNews.com? He starts out being against teaching ID as science but then:

What do I think? I think that we should send Judge Jones down the hall. Time for Philosophy 101. He should have written this: ID is “a philosophical alternative being marketed for creationist religious reasons as a scientific theory.” Sure, he wanted to sock it to the creationists for trying to get their product sold under a different brand name. He completely misses the point, nevertheless, when he labels ID as religious and not philosophical. It’s philosophy just like Neo-Darwinism is. So pick and choose, or teach both. Of course philosophical theories have their place in education. They’re all over the place! Hint: any time you see an “ism” there’s a philosophy behind it. Marxism, feminism, elitism, environmentalism, vegetarianism, atheism… I could go on, but I don’t want to give an exhaustive description of the entire Harvard faculty. Or maybe what’s okay for them isn’t okay for the rest of America.

Read it here:
http://www.foxnews.com/story/0,2933,184953,00.html

Comment #80532

Posted by k.e. on February 17, 2006 9:11 AM (e)

Ah yes ….the the small c ‘catholic’ perspective, what else can they say …..except maybe materialism is consumerism and not naturalism. Well keep those checks rolling in folks.
Judge Jones got it right, but them he IS a protestant.

When “Our Father” is out on a limb and precariously glances back and sees pseudoscience as his only support, he has to call the master manipulator of language and thus reality Mr Murdoch, it the quickest way to spread the ‘good news’. Pure BS of course…..everyone knows an ‘ism can just as easily be denounced as just another witchcraft like…… oh capitalism.

Our father who art in fox studios
Blessed be thy name
Thy heaven is yours for the asking
Murdock will see it is done
On TV as on earth
Give us our daily snow job
And trespass on our forgiveness
As we sit back and read between the lines
And lead us not into ignorance
But deliver us from propaganda
For thine is the kingdom,
and the power,
and the glory,
for ever and ever. (You hope)

Amen.

Comment #80535

Posted by B.F. on February 17, 2006 9:51 AM (e)

Comment #80505
Posted by Mike Elzinga on February 17, 2006 02:13 AM

I think the ID pusher strategy includes being in a position where, if they are sued and lose, taxpayers pick up the tab. This way they leverage taxpayer money to spread their gospel.

And I think the strategy of the ACLU and Americans United includes being in a position where, if they sue and win, taxpayers pick up the tab. This way they leverage taxpayer money to spread their gospel.

It is the height of hypocrisy for ID opponents to use the high potential taxpayer expenses of these lawsuits as part of their strategy and then scapegoat the ID pushers for these expenses. In particular, the Dover plaintiffs and their legal representatives drove up the award of attorney fees by having a grossly excessive number of attorneys of record, 9-10. Many Americans cannot afford even a single attorney.

Comment #80536

Posted by k.e. on February 17, 2006 10:00 AM (e)

Larry your slip is showing

It is the height of hypocrisy for ID opponents Creationism Intelligent Design propagandists to use the high potential taxpayer expenses of these lawsuits as part of their strategy and then scapegoat the Creationism Intelligent Design pushers Creationism Intelligent Design OPPONENTS for these expenses.

Classic Larry
In particular, the Dover plaintiffs and their legal representatives drove up the award of attorney fees by having a grossly excessive number of attorneys of record, 9-10. Many Americans cannot afford even a single attorney.

Now there is a Crie de Guerre for you Larry get the cost of Justice down so it is affordable for the “Average American”—Good luck.

Comment #80544

Posted by ben on February 17, 2006 10:28 AM (e)

I suggest PT start a bathroom wall just for the obvious Larry Fafarman alter egos. I’d expect that Larry would quickly become accustomed to spending all of his time there because of the satisfaction of being surrounded by like-minded individuals, even if they were all just him.

Comment #80545

Posted by AC on February 17, 2006 10:33 AM (e)

Sir_Toejam wrote:

I think Arden Chatfield might get upset with you for using his initials to spout your drivel.

I’m not exactly thrilled either.

As far as the “Dover Trap” is concerned, if practical concerns (such as money) keep people with no respect for the constitution from violating it, so be it. Their actions are the cause of every such lawsuit.

Comment #80546

Posted by 'Rev Dr' Lenny Flank on February 17, 2006 10:36 AM (e)

I suggest PT start a bathroom wall just for the obvious Larry Fafarman alter egos.

It IS getting goddamn annoying. Especially now that the idiot is talking to himself through his other avatars.

Yes, the guy is obviously mentally ill and needs to start taking his meds again, but that doesn’t mean the REST of us should have to listen to the voices in his head.

Comment #80547

Posted by 'Rev Dr' Lenny Flank on February 17, 2006 10:39 AM (e)

As far as the “Dover Trap” is concerned, if practical concerns (such as money) keep people with no respect for the constitution from violating it, so be it. Their actions are the cause of every such lawsuit.

Amen. The simplest way to avoid a big legal bill against you is to not do stupid things which violate the Constitution.

But as I said before, I’m all in favor of dropping legal fees/expenses in First Amendment cases, provided that instead there is JAIL TIME for people who are found in violation.

Comment #80550

Posted by Anton Mates on February 17, 2006 11:13 AM (e)

Ron Okimoto wrote:

This isn’t quite true in the Ohio case. Many (all?) of the creationist supporters on the Ohio board were appointed by the Governor.

Not all; the two most vocal creationist advocates, and the ones which apparently worked the hardest to recruit creationist shills like Dan Ely and Bryan Leonard, while suppressing complaints from the DoE’s own scientific staff, were Cochran and Owens-Fink, both elected. The appointed members were initially mostly pro-creationism as well (Robin Hovis in particular was not, I think), but the majority of them had switched sides by the time the lesson plan got voted out.

Of the four Board members who were present at the last meeting and voted to keep the lesson plan, only one was appointed (Westendorf, the Board president.) Offhand I can’t recall how many of the absent members that day were appointed.

Comment #80552

Posted by Arden Chatfield on February 17, 2006 11:36 AM (e)

Good god, we now have both an ‘A.C.’ and an ‘AC’??

Larry, c’mon, either go back to ‘Larry’ or pick out a less confusing name.

Would you like us to pick out a name for you? How about ‘Max Power’? ‘Lance Strongo’? ‘Ima Pseudonym’? I’m sure we could come up with a cooler one than the ones you’ve pulled out so far.

Comment #80554

Posted by improvius on February 17, 2006 11:48 AM (e)

This way they leverage taxpayer money to spread their gospel.

Which is, of course, “don’t violate the constitution.”

Comment #80570

Posted by Mike Elzinga on February 17, 2006 12:59 PM (e)

Judge Jones recognized the strategy of the Intelligent Design/Creationism movement. Here are his words:

“Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.”

Notice that it is not the OPPONENTS of IDC who are causing the problem. It is the PROMPOTERS who are constantly attacking and bullying.

Lenny’s idea of throwing the IDC pushers in jail may be the only effective deterrent and cost-saving measure. So far, they have gotten off too easily. Everyone else bears the pain and the cost.

Comment #80589

Posted by PvM on February 17, 2006 3:06 PM (e)

People should really listen to the public comments made during the January 10 meeting

Transcripts do not convey the anger in the voices of the citizens commenting on the standards after Owen Finks starts cross-examining one of the commenters.

This is followed by a citizen presenting three boxes of email from the board, obtained through a freedom of information act request.

It also contains the response by the reverend on the board (forgot his name) when he is asked to show some respect and not read the newspaper during the public comment session.

The Ohio Citizens for Science and others have done an excellent job at exposing the problems with Ohio’s ‘teach the controversy’ and have exposed what is really wrong with the DI’s renewed attempts.

The fear was that ‘teach the controversy’ would be used to introduce creationist materials into the class room and indeed, the lesson plan which was submitted and approved (?) contained many of the same ‘arguments’ as found in Icons of Evolutions and an earlier draft even referenced it if I am not mistaken?
No wonder that scientists were so outspoken about the lesson plan.

So when Dembski or other ID activists complain that these ‘dogmatic darwinists’ oppose critical thinking, they should familiarize themselves with these cases. It clearly shows that the opposition is NOT against critical thinking but against the loophole it creates allowing poor science or scientifically vacuous ideas to be taught in science classes.

Comment #80594

Posted by Sir_Toejam on February 17, 2006 3:35 PM (e)

So when Dembski or other ID activists complain that these ‘dogmatic darwinists’ oppose critical thinking, they should familiarize themselves with these cases. It clearly shows that the opposition is NOT against critical thinking but against the loophole it creates allowing poor science or scientifically vacuous ideas to be taught in science classes.

not trying to dull the point you make here, but it’s quite obvious that Dembski et. al. are well aware of the deceitful nature of the arguments they make along these lines. They willfully choose to present their defeat as “opposition to critical thinking” or “repression of ideas” simnply in order to paint themselves the victim.

standard political strategy these days, sorry to say.

Comment #80599

Posted by W. Kevin Vicklund on February 17, 2006 4:01 PM (e)

Larry the Liar, posing in one of his many personas, wrote:

In particular, the Dover plaintiffs and their legal representatives drove up the award of attorney fees by having a grossly excessive number of attorneys of record, 9-10.

Since it’s been well over a month since I last destroyed this particular lie of yours, I’m going to refute it again for the benefit of any recent newcomers to PT. I know you will continue to propogate the lie, but we do need to every once in a while expose it as a lie, lest some unfortunate new to the argument take it as truth.

You have never established that 9-10 attorneys is grossly excessive, nor have you demonstrated that having more attorneys drives up the attorney fees. Your sole argument has been stating 9-10 attorneys as if the number by itself meant something (and at one point saying that the plaintiffs would artificially inflate their fees, which is a statement that borders on libel/slander)

First, given the details of the case, 9-10 attorneys is actually to be expected. There are three legal organizations representing the plaintiffs: the ACLU, Americans United, and Pepper Hamilton. When I asked one of my best friends, who has worked at a law firm for over 10 years, the usual amount of attorneys of record for a case that involves multiple legal organizations, she gave me the following breakdown. The lead firm will provide 4-6 attorneys (3 if the case is particularly small) and the other organizations will provide 1 or 2 each, depending on the size of the case. Judge Jones himself said that this was quite possibly the largest case ever seen by the PAMDC. When we look at the attorneys of record, we see that Pepper Hamilton, the lead firm, provided 5 attorneys, and the ACLU and Americans United each provided 2 attorneys, for a total of 9 - exactly what we would expect. I do not know where Larry gets the 10th attorney, though based on his demonstrated inability to comprehend legal documents and general propensity to misrepresent facts, I believe it was done intentionally to mislead.

Having now established that the number of attorneys was not in fact excessive, let’s look at whether the number of attorneys has a significant bearing on the cost of fees. Prior to asking my friend about the number of attorneys, I asked her her guess on the amount of reasonable attorney fees. In order to determine this, she asked me several questions. The questions focused on the discovery phase (length, number of witnesses to be deposed, and so on) and the trial (mainly the length). Her guess was somewhere between $1,000,000 to $2,000,000, with anything close to $1,000,000 being a bargain. She did not ask how many lawyers were involved. In fact, when I asked her later on whether the 9 lawyers would have cost more than 4 or 5, she said it didn’t really matter, since they are paid by the hour. In fact, if anything, it probably ended up costing a little less!

The reason for this is simple: not all attorneys make the same hourly rates. If we assume that the main 4 lawyers are the highest paid, then the additional lawyers will cost less per hour. Therefore, if the less expensive lawyers bear some of the burden that doesn’t require the top attorneys, the cost of the work is reduced. Time for the math:

Let’s say that the top lawyers make $450/hr, and the others make $300/hr. Breakdown the work into two types, productive (research, preparation, interviews, etc.) and non-productive (meetings, mainly). Assume that everyone is present for non-productive. To make things simple I will assume each top lawyer gets one assistant lawyer, so the scenarios can scale down to top vs. top+assistant.

In the top lawyer only scenario, the cost is given by the following equation (C is cost, p is productive hours, np is non-productive hours):

C = $450*p + $450*np

In th scenario in which the assistants are present, the equation is:

C = $300*p + ($300 + $450)*np

To find the break-even point, we set the two equations to be equal and solve for the ratio p/np.

$450*p + $450*np = $300*p + ($300 + $450)*np
$150*p = $300*np
p/np = 2

So in our simple scenario, if for every one hour of non-productive work, the assistant can perform 2 hours of productive work in place of the top lawyer, the cost is the same. If the assistant can improve the p/np ratio, then the cost is actually reduced!

Obviously, my scenarios are simplified, but the point is clear. The number of attorneys does not directly affect the cost of attorney fees. Rather, it is the division of labor and the amount of work required that drives the costs.

This leaves Larry with the following recourses. He could try to demonstrate that the plaintiffs were represented by an unreasonable number of legal organizations. This essentially devolves into whether he can demonstrate that the participation of Americans United was unnecessary, and they clearly made a sizable contribution on the church/state issue (hint - look at their full title). Second, he can attempt to demonstrate that the non-productive work was unreasonably high in relation to productive work. Or third, he can accuse the plaintiffs of falsifying records, which is a very serious charge. Do you really want to slander the ACLU, Larry?

Comment #80601

Posted by Keanus on February 17, 2006 4:07 PM (e)

I’m inclined to agree with Dr. Lenny that the losers in these cases go to jail but we all know the recidivism rate for ex-cons, so maybe some lengthy education might be appropriate. Perhaps upon future decisions, those on a school board AND their pro bono attorneys, e.g. the TMLC, etc., should be required to take a full year constitutional law course until they can achieve a passing grade. The attorneys in the meantime would be barred from representing any other clients in a constitutional law case until they can pass this course. This might result in Richard Thompson’s being in law school for the rest of his life, which might be a good thing for the schools in this country.

Comment #80604

Posted by Keanus on February 17, 2006 4:25 PM (e)

Kevin Vicklund’s analysis of the reasonable legal costs in this case makes great sense, and as he points out it’s probably a bargain given what was involved. I’d go even further in that his analysis does not mention the expert witnesses, Barbara Forrest, Kenneth Miller, etc. who, I understand, required only expenses or the yeoman historical and technical work provided by Eugenie Scott, Nick Matzke and others from the NCSE in support of the attorneys. I don’t know if their time went into compiling the costs, but, if it didn’t, it sure should. In short the case was probably as inexpensive as any case of this magnitude could be.

Comment #80608

Posted by gwangung on February 17, 2006 4:39 PM (e)

Do you really want to slander the ACLU

What’s a little slander, given the continual tidal wave of lies from anti-evolutionists?

Comment #80611

Posted by Russell on February 17, 2006 4:54 PM (e)

indeed, the lesson plan which was submitted and approved (?) contained many of the same ‘arguments’ as found in Icons of Evolutions and an earlier draft even referenced it if I am not mistaken?

You are not mistaken. The lesson plan was clearly cribbed directly from Wells’s deplorable book, and did reference it, before the board “cleansed” the model lesson of the most obviously indefensible lawsuit bait.

Comment #80612

Posted by AC on February 17, 2006 4:58 PM (e)

W. Kevin Vicklund wrote:

You have never established that 9-10 attorneys is grossly excessive, nor have you demonstrated that having more attorneys drives up the attorney fees. Your sole argument has been stating 9-10 attorneys as if the number by itself meant something

He’s just appealing to (and possibly suffering from) the popular American resentment of lawyers (and the legal system generally). Empty rhetoric, but your post is still informative.

Keanus wrote:

I’m inclined to agree with Dr. Lenny that the losers in these cases go to jail but we all know the recidivism rate for ex-cons, so maybe some lengthy education might be appropriate. Perhaps upon future decisions, those on a school board AND their pro bono attorneys, e.g. the TMLC, etc., should be required to take a full year constitutional law course until they can achieve a passing grade. The attorneys in the meantime would be barred from representing any other clients in a constitutional law case until they can pass this course. This might result in Richard Thompson’s being in law school for the rest of his life, which might be a good thing for the schools in this country.

That’s sure to be unpopular with those who criticize the government for requiring “godless evolutionism” in its public schools to begin with.

Comment #80624

Posted by Lenny's Pizza Guy on February 17, 2006 6:29 PM (e)

Purveyor Of Pizza To Darwin’s Defenders Resurfaces, Undaunted, Vows To Re-Attempt Near-Disastrous Voyage!
(With apologies, Richard, but “any thread in a storm!”)

Hack! Cough! Brrr! [Shakes self, flinging briny droplets in all directions.]

Stephen, Dean, and all:

I’m very sorry I was not in time for the festivities: I hope a few tankards were hoisted on my behalf nontheless. For reasons not yet entirely clear (but which will be discussed in detail with a certain Rev. Dr. in very short order), my conveyance proved unequal to the task.

Regrettably, this meant I had to “exapt” various portions of my intended contributions: the microwave warming oven was extra ballast which I was forced to jettison; the pies were consumed to ameliorate the unexpected duration and rigor of the voyage (and further reduced the drag on my less-than-ideally-buoyant craft); and the product boxes themselves were then cannabalized to provide additional flotation and insulation (amazing how durable and strong resin-impregnated cellulose can be, in a pinch).

I appreciated all the concerned inquiries that I discovered, archived, upon my return to duty. Though still a bit damp and bedraggled, I am not only alive and well, but find that I am now entitled to share with one Ms. Molly Brown the honorable appellation of “unsinkable.”

Hmmm. “Unsinkable Pizza Guy.” I kinda like the sound of that (and it for sure beats “Unthinkable Pizza Guy”!).

In any event, guys, we’ll try this again next year, though–with the advantage of more lead time–a more suitable conveyance will be the first item on the itinerary. And maybe this time I’ll call it something like Beagle II–though, now that I think about it, probably just about anything would have been better than what Lenny had spray-painted across the beam: Hovind’s Hovel

Comment #80626

Posted by B.F. on February 17, 2006 7:14 PM (e)

Comment #80599
Posted by W. Kevin Vicklund on February 17, 2006 04:01 PM

I do not know where Larry gets the 10th attorney, though based on his demonstrated inability to comprehend legal documents and general propensity to misrepresent facts, I believe it was done intentionally to mislead.

There were 10 attorneys of record listed on an early brief in the case (I think it was the official complaint), but one apparently dropped out. Anyway, the distinction here between the numbers 9 and 10 is hardly grounds for accusing me of intent to mislead.

Let’s say that the top lawyers make $450/hr, and the others make $300/hr.

The Supreme Court held in Blum v. Stenson,
The statute [i.e., the Civil Rights Attorney Fees Awards Act of 1976] and its legislative history establish that reasonable fees are to be calculated according to the prevailing market rates in the relevant community, not according to the cost of providing legal services, regardless of whether the prevailing party is represented by private profitmaking attorneys or nonprofit legal aid organizations. (emphasis added)

The above ruling states that fees are to be calculated according to prevailing market rates – there is no allowance for higher rates for hotshot attorneys who think that they are worth more. I believe that the attorneys from Pepper-Hamilton LLP – which is a huge law firm with maybe around 400 (?) attorneys – included two partners, who probably thought that they were worth more. Anyway, these attorneys originally agreed to work for free, so they should certainly offer a discounted rate when awards are computed.

Obviously, my scenarios are simplified, but the point is clear. The number of attorneys does not directly affect the cost of attorney fees. Rather, it is the division of labor and the amount of work required that drives the costs.

Your scenario was based on the false assumption that some attorneys would get higher hourly rates. Anyway, with so many attorneys, there must have been some duplication of work. And you know the saying that too many cooks spoil the broth.

This leaves Larry with the following recourses. He could try to demonstrate that the plaintiffs were represented by an unreasonable number of legal organizations.

You could say that – there were three organizations representing the plaintiffs. The defendants were represented by just three attorneys from TMLC plus one apparently independent local attorney.

This essentially devolves into whether he can demonstrate that the participation of Americans United was unnecessary, and they clearly made a sizable contribution on the church/state issue (hint - look at their full title).

The ACLU does not need any help on church/state issues – the ACLU intimidated the Los Angeles County Board of Supervisors into voting 3-2 to remove a cross from the LA County seal. And why was Pepper-Hamilton needed ? It was likely that church-state issues were outside the specialties of the attorneys from Pepper-Hamilton.

Do you really want to slander the ACLU?

Yes.

Comment #80604
Posted by Keanus on February 17, 2006 04:25 PM

I’d go even further in that his analysis does not mention the expert witnesses, Barbara Forrest, Kenneth Miller, etc. who, I understand, required only expenses or the yeoman historical and technical work provided by Eugenie Scott, Nick Matzke and others from the NCSE in support of the attorneys.

42 USC Section 1988 allows for attorney fees in this case, but not for expert witness fees. Section 1988 authorizes expert witness fees only for violations of 42 USC Sections 181 and 181a, which do not apply here. If the plaintiffs could soak the defendants for witness fees too, they would do it.

The former Dover school board members certainly deserve some of the blame for the high legal cost – they really screwed up. But the plaintiffs and their legal representatives certainly deserve a lot of the blame too.

Comment #80627

Posted by 'Rev Dr' Lenny Flank on February 17, 2006 7:24 PM (e)

the pies were consumed

Wha —– you mean you ATE MY PIZZAS?????

That’s it. No tip for you.

Comment #80629

Posted by Sir_Toejam on February 17, 2006 7:46 PM (e)

Anyway, the distinction here between the numbers 9 and 10 is hardly grounds for accusing me of intent to mislead.

… uh, right.

so sayeth B.F, aka:

Larry
A.C.
Bill Keely

etc. etc.

nobody needs to accuse you of being misleading, larry, you do that just fine all on your own.

You are one whacky individual.

again, we all recommend you seek treatment.

Comment #80631

Posted by Arden Chatfield on February 17, 2006 7:58 PM (e)

I do not know where Larry gets the 10th attorney, though based on his demonstrated inability to comprehend legal documents and general propensity to misrepresent facts, I believe it was done intentionally to mislead.

‘B.F.’ replied:

There were 10 attorneys of record listed on an early brief in the case (I think it was the official complaint), but one apparently dropped out. Anyway, the distinction here between the numbers 9 and 10 is hardly grounds for accusing me of intent to mislead.

Good lord. Larry is changing his name here basically every day now, and he’s not even pretending otherwise anymore. Why is Larry not being zapped for this? Is the consensus that he provides too much entertainment?

Comment #80632

Posted by the pro from dover on February 17, 2006 8:10 PM (e)

OK I see there’s a big problem here so let me be the first to trade mark the following: “the pro from dover”, “the pro” and “TPFD”. any theft of these protected aliases will be dealt with harshly. The first violation. You will be locked in a room and forced to listen to the entire collection of Tom Shane commercials over the last 6.023x10 to the 24th years. the second violation: you’ll be forced to be married to Courtney Love for 1 year. The third violation: You will go duck hunting with Dick Cheney.

Comment #80633

Posted by Lenny's Pizza Guy on February 17, 2006 8:18 PM (e)

(Regrettably, pursuant to Comment Integrity Policies 1 and 4, the management has had no choice but to edit certain portions of the following remarks that were deemed inappropriate for our younger readers.]

Lenny:

Wha ——- you mean you ATE MY PIZZAS?????

While, for the sake of clarity, Your Reverendship, I have prefaced my “handle” here with your name–to distinguish myself from all the dutiful pizza delivery personnel who have not had the dubious distinction of delivering your personal pizzas, economic reality–not to mention your practice of penurious tipping!–dictates that you are not my only customer.

As you well know, having supplied the conveyance which was intended to transport me thither, the pizza pies in question were ordered–not by you–but by Panda’s UK contingent, to whom I have already apologized and issued refunds and vouchers for next year’s event.

Now, about that conveyance, You Bag’O’Bilgewater, You Conveyor of “Quality” Kayaks, You …
[As noted above, the rest of this comment has, regrettably, been deleted.]

Comment #80634

Posted by Sir_Toejam on February 17, 2006 8:36 PM (e)

Is the consensus that he provides too much entertainment?

beats me. It seems larry WANTS to get banned, so he can claim martyrdom, for whatever reason.

maybe that’s why they let him stick around?

just a guess.

I for one have grown tired of his endless repetetive drivel.

He might provide some humor if he actually had something new to say, but he’s been saying essentially the same thing over and over again for months now.

it’s truly pathetic in my mind.

his tenaciousness to his particular drivel reminds me a lot of Carol Clouser, who i find equally as repetetive and boring.

at least Carol doesn’t try and change her name every day.

Comment #80635

Posted by Sir_Toejam on February 17, 2006 8:38 PM (e)

…oh and welcome back to Lenny’s pizza guy.

I was beginning to wonder…

did you manage to make your way back on your own, or were you rescued by the pizza guy rescue seal team?

Comment #80641

Posted by Corkscrew on February 17, 2006 9:58 PM (e)

Well, I personally think there is some value to having Larry around. See, a newcomer to the forum might well think that we were being too harsh if he/she came across us while we were laying into one of the more sophisticated trolls. Larry, on the other hand, is not only so obvious a troll that no court in the land would convict, he also provides a case in point of what we’re dealing with.

So when some innocent newbie, like I was a few months ago, comes across Lenny tearing some troll a new one, we can point to Larry as a perfect example of what’s driven us to this extreme.

Incidentally, I’m amused by Larry’s idea that “pro bono” should mean that the attorneys don’t get to claim any of the proceeds. Has he actually discussed this novel idea of his with any attorneys? The smart vote says: no.

Comment #80645

Posted by 'Rev Dr' Lenny Flank on February 17, 2006 10:12 PM (e)

Now, about that conveyance, You Bag’O’Bilgewater, You Conveyor of “Quality” Kayaks, You …
[As noted above, the rest of this comment has, regrettably, been deleted.]

Now, now — it only leaked, uh, a little bit.

Comment #80646

Posted by Sir_Toejam on February 17, 2006 10:26 PM (e)

Now, about that conveyance, You Bag’O’Bilgewater, You Conveyor of “Quality” Kayaks, You …
[As noted above, the rest of this comment has, regrettably, been deleted.]

Now, now —- it only leaked, uh, a little bit.
yeah, a little adversity and he starts bawlin like a baby.

phht.

Frankly, I expected a bit more from him.

slacker.

Comment #80647

Posted by 'Rev Dr' Lenny Flank on February 17, 2006 11:01 PM (e)

Frankly, I expected a bit more from him.

slacker.

You’d think he’s never been soaked with ice-cold salt water before. Jeez.

Comment #80672

Posted by W. Kevin Vicklund on February 18, 2006 6:26 AM (e)

I ask your indulgence while I compose another extended post slaughtering Larry’s legal garbage. Unattributed quotes are from Larry’s 80626 posting.

There were 10 attorneys of record listed on an early brief in the case (I think it was the official complaint), but one apparently dropped out. Anyway, the distinction here between the numbers 9 and 10 is hardly grounds for accusing me of intent to mislead.

Upon further inspection, it appears that Alex Luchenitser was left off of some of the later documents, and at one point one of the Pepper Hamilton lawyers was omitted, which screwed up my spot-check. The distinction is indeed meaningless, and on the narrow grounds of the number of lawyers, I withdraw my accusation of intentional deception. I do still hold that in general, Larry has shown a propensity to mislead and otherwise deceive PT, and so offer no apology for the general accusation. As I will soon show, he still continues this deception. Since Mr. Luchenitser was on record for almost the entire pre-trial phase, let’s make everything simple and state it as 10 attorneys of record henceforth.

The Supreme Court held in Blum v. Stenson,
The statute [i.e., the Civil Rights Attorney Fees Awards Act of 1976] and its legislative history establish that reasonable fees are to be calculated according to the prevailing market rates in the relevant community, not according to the cost of providing legal services, regardless of whether the prevailing party is represented by private profitmaking attorneys or nonprofit legal aid organizations. (emphasis added)

The above ruling states that fees are to be calculated according to prevailing market rates — there is no allowance for higher rates for hotshot attorneys who think that they are worth more. I believe that the attorneys from Pepper-Hamilton LLP — which is a huge law firm with maybe around 400 (?) attorneys — included two partners, who probably thought that they were worth more. Anyway, these attorneys originally agreed to work for free, so they should certainly offer a discounted rate when awards are computed.(emphasis added)

Blum v. Stenson in fact directly contradicts the two bolded portions above. You have not only shot yourself in the foot by invoking Blum v. Stenson, the bullet is now lodged in your groin. The ruling specifically mentions that the prevailing market rates are based on skill and experience, and the indeed three lawyers in the case each have a different hourly rate which the court found to be reasonable. Furthermore, the ruling clearly indicates that the fee should not be reduced if a lawyer is non-profit. The ruling so thoroughly and elegantly demolishes your contentions that I encourage people to read it in it’s entirety, including footnotes. I will include some of the highlights below.

First on the issue of different hourly rates from one lawyer to another (ellipses indicate intervening paragraphs deleted; full paragraphs are quoted for context)

US Supreme Court, Blum v. Stenson, wrote:

Not only has respondent failed to show that the hourly rates failed to provide a reasonable fee for the quality of representation provided, but she candidly concedes that the “fees awarded [to her attorneys] may be at the upper end of the market for awards under 1988 ….” Brief for Respondent 42. Absent specific evidence to the contrary, we cannot say that rates from $95 per hour to $105 per hour for these three attorneys do not fully reflect the quality of their representation….
In sum, we reiterate what was said in Hensley: “Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified.” 461 U.S., at 435 . We therefore reject petitioner’s argument that an upward adjustment to an attorney’s fee is never appropriate under 1988. 18 On the record before us, however, respondent established only that hourly rates ranging from $95 per hour to $105 per hour for the full 809.75 hours billed were reasonable. This resulted in a charge of $79,312. Respondent introduced no evidence that enhancement was necessary to provide fair and reasonable compensation. She therefore has failed to carry her burden [465 U.S. 886, 902] of justifying entitlement to an upward adjustment. 19 On this record, we conclude that the fee of $79,312 was “fully compensatory.” Accordingly, the judgment below is reversed only insofar as the fee award was increased by the sum of $39,656, and is otherwise affirmed….
[ Footnote 4 ] Ann Moynihan billed 487 hours and 50 minutes at $95 per hour. 512 F. Supp. 680, 682 (1981). She graduated from law school in 1977, and at the outset of this litigation, she had 1 1/2 years of experience as a practicing attorney. App. 320-321. Paula Galowitz billed 166 hours and 15 minutes at $100 per hour. 512 F. Supp., at 682. She graduated from law school in 1976 and served as a law clerk to a state judge during her first year after graduation. She had 1 1/2 years of experience as a practicing attorney at the Legal Aid Society at the outset of this litigation. App. 335. Arthur Fried billed 155 hours and 40 minutes at $105 per hour. 512 F. Supp., at 682. (The parties agree that the 115 hours noted in the District Court’s [465 U.S. 886, 801] table is a typographical error.) He graduated from law school in 1975 and served as a law clerk to a United States District Court Judge for the first two years thereafter. He had 1 1/2 years experience as a practicing attorney at the Legal Aid Society at the outset of litigation. App. 308-309….
[ Footnote 11 ] We recognize, of course, that determining an appropriate “market rate” for the services of a lawyer is inherently difficult. Market prices of commodities and most services are determined by supply and demand. In this traditional sense there is no such thing as a prevailing market rate for the service of lawyers in a particular community. The type of services rendered by lawyers, as well as their experience, skill, and reputation, varies extensively - even within a law firm. Accordingly, the hourly rates of lawyers in private practice also vary widely. The fees charged often are based on the product of hours devoted to the representation multiplied by the lawyer’s customary rate. But the fee usually is discussed with the client, may be negotiated, and it is the client who pays whether he wins or loses. The 1988 fee determination is made by the court in an entirely [465 U.S. 886, 896] different setting: there is no negotiation or even discussion with the prevailing client, as the fee - found to be reasonable by the court - is paid by the losing party. Nevertheless, as shown in the text above, the critical inquiry in determining reasonableness is now generally recognized as the appropriate hourly rate. And the rates charged in private representations may afford relevant comparisons. In seeking some basis for a standard, courts properly have required prevailing attorneys to justify the reasonableness of the requested rate or rates. To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence - in addition to the attorney’s own affidavits - that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. A rate determined in this way is normally deemed to be reasonable, and is referred to - for convenience - as the prevailing market rate.

I highlighted in bold the true money quote. It is quite clear that the hourly rate is not flat across the board, but that in fact it is driven by “skill, experience, and reputation” - exactly what a “hot-shot” partner from a large law-firm would have in abundance. Even a year as a law clerk gives a $5 raise due to experience. Imagine what 20 years as a lawyer would get you.

But let’s look at the claim that the lawyers should offer a discount.

US Supreme Court, Blum v. Stenson, wrote:

Title 42 U.S.C. 1988 (1976 ed., Supp. V) provides that in federal civil rights actions “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424 (1983). Adjustments to that fee then may be made as necessary in the particular case. The [465 U.S. 886, 889] two issues in this case are whether Congress intended fee awards to nonprofit legal service organizations to be calculated according to cost or to prevailing market rates, and whether, and under what circumstances, an upward adjustment of an award based on prevailing market rates is appropriate under 1988….
Petitioner argues that the use of prevailing market rates to calculate attorney’s fees under 1988 leads to exorbitant fee awards and provides windfalls to civil rights counsel contrary to the express intent of Congress. To avoid this result, petitioner urges this Court to require that all fee awards under 1988 be calculated according to the cost of providing legal services rather than according to the prevailing market rate. 6 The Solicitor General, for the United States as amicus curiae, urges the Court to adopt a cost-related standard only for fee awards made to nonprofit legal aid organizations. He [465 U.S. 886, 893] argues that market rates reflect the level of compensation necessary to attract profit-making attorneys, but that such rates provide excessive fees to nonprofit counsel. Because market rates incorporate operating expenses that may exceed the expenses of nonprofit legal services organizations, and include an element of profit unnecessary to attract nonprofit counsel, the Solicitor General argues that fee awards based on market rates “confer an unjustified windfall or subsidy upon legal services organizations.” Brief for United States as Amicus Curiae 6.

Resolution of these two arguments begins and ends with an interpretation of the attorney’s fee statute. The Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. 1988 (1976 ed., Supp. V), authorizes district courts to award a reasonable attorney’s fee to prevailing civil rights litigants. 7 In enacting the statute, Congress directed that attorney’s fees be calculated according to standards currently in use under other fee-shifting statutes:

“It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature. The appropriate standards, see Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F. R. D. 680 (N. D. Cal. 1974); Davis v. County of Los Angeles, 8 E. P. D.  9444 (C. D. Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (W. D. N.C. 1975). These cases have resulted in fees which are adequate to attract competent [465 U.S. 886, 894] counsel, but which do not produce windfalls to attorneys.” S. Rep. No. 94-1011, p. 6 (1976). 8

In all four of the cases cited by the Senate Report, fee awards were calculated according to prevailing market rates. 9 None of these four cases made any mention of a cost-based standard. 10 Petitioner’s argument that the use of market rates violates congressional intent, therefore, is flatly contradicted by the legislative history of 1988.

It is also clear from the legislative history that Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization. The citations to Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974), and Davis v. County of Los Angeles, 8 EPD  9444 (CD Cal. [465 U.S. 886, 895] 1974), make this explicit. In Stanford Daily, the court held that it “must avoid … decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return.” 64 F. R. D., at 681. In Davis, the court held:

“In determining the amount of fees to be awarded, it is not legally relevant that plaintiffs’ counsel … are employed by … a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorney’s fees to be computed in the traditional manner when its counsel perform legal services otherwise entitling them to the award of attorneys’ fees.” 8 EPD, at 5048-5049.

We cannot assume that Congress would endorse the standards used in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (CA5 1974), Stanford Daily, Davis, and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (WDNC 1975), if fee awards based on market rates were viewed as the kind of “windfall profits” it expressly intended to prohibit.

The statute and legislative history establish that “reasonable fees” under 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or non-profit counsel. 11 The policy arguments advanced in favor of a [465 U.S. 886, 896] cost-based standard should be addressed to Congress rather than to this Court.

Need I say more? Actually there’s quite a bit more I could say, but in the interests of brevity (I heard that snerk ;) I will hold back.

Your scenario was based on the false assumption that some attorneys would get higher hourly rates. Anyway, with so many attorneys, there must have been some duplication of work. And you know the saying that too many cooks spoil the broth.

Well, I’ve already demonstrated that my assumption is not false and in fact quite accurate. But let’s look at another case to address the number of attorneys. In this case, the partner-level lawyers were castigated for driving up fees by doing work that could have just as easily been performed by less experienced lawyers. This ruling on the awarding of reasonable attorney fees takes place in the Pennsylvania Eastern District Court, and even makes reference to rates in the Middle District Court (which is the District Dover was held in). It is also in the Third Circuit Court, same as PAMDC.

Let’s get the dirty laundry aired first.

Judge Newcomer, in ordering an award of reasonable attorney fees, wrote:

1. Mr. Meek’s Presence at Trial
Plaintiff was aptly represented at trial by two senior attorneys, Ms. McKinley and Mr. Lamar. Mr. Lamar played a critical and substantial role during trial and, the Court must
note, he played the role with the aplomb and skill of a litigator many years his senior. His presence at trial, like Ms. McKinley’s, was obviously crucial to Plaintiff’s success, and the time he has submitted (which includes travel time) is reasonable. There was no reason, however, that Plaintiff required an additional senior level attorney during trial. It is the Court’s finding that Mr. Meek’s presence during trial was unnecessary and
redundant, and that it would be unreasonable to include it in the lodestar calculation.
It is certainly true that Mr. Meek’s presence may have been helpful to Plaintiff, in that he may have offered strategic advice or kept notes for litigating counsel, but it is not reasonable to expect Defendant to pay for services which could have been performed by a lower-level attorney or paralegal, if said services were even called for. Mr. Meek, in this Court’s view, played no role at trial other than spectator. The Court notes that Mr. Meek has a superb and illustrious reputation, and the exclusion of his trial time is in absolutely no way a reflection of his professional prowess. Because Mr. Meek’s presence at trial was excessive and redundant, it is not a reasonable expenditure of hours. The Court strikes 44 hours from the Disabilities Law Project’s request.(emphasis added)

The point I’m highlighting is that a high-level attorney should not be used when a low-level attorney. Doubtless Larry will attempt to steer the discussion away from this point to the redundancy issue, but my following quote deals wonderfully with that.

Judge Newcomer, in ordering an award of reasonable attorney fees, wrote:

The lion’s share of counsel’s time was reasonable. As a number of the affiants have noted, Plaintiff’s case was not an easy one to prove, in both a legal and factual sense. See Ewing Aff. at 4; Yeager Aff. at 4. Plaintiff’s case was complex and he was fought at every turn by Defendant and its agents. Although certain of Plaintiff’s briefs were simply too long, as Plaintiff’s Counsel aptly notes, it is often more time-consuming to shorten a document with edits than to simply submit it as it is. See Plaintiff’s Resp. at 16, n.34. In general, the Court’s review of counsel’s billing logs reveals that the bulk of their
time was spent on time worthy pursuits.
Defendant attacks counsel’s use of time as excessive and redundant, arguing that many tasks were staffed by two senior attorneys when one might have been adequate. Defendant also attacks the large amount of time (241.7 hours) counsel spent preparing summary judgment briefs, the large amount of time (59 hours) spent preparing jury instructions, and Plaintiff’s utilization of three senior attorneys at trial when one or two would have sufficed.1 Additionally, Defendant has identified two small bookkeeping irregularities.
At the outset, Defendant’s arguments tend to blur the fact that, in addition to being extremely factually complex, and rather legally complex, Plaintiff’s case also occurred over a substantial period of time. The Court has reviewed Plaintiff’s billing records and finds them generally reasonable. As such, the Court accepts Plaintiff’s statement of hours with several exceptions: the Court finds that Mr. Meek’s presence at trial was unnecessarily redundant, that counsel spent an excessive amount of time on an ultimately unsuccessful summary judgment motion, and that counsel spent an excessive amount of time on jury instructions. Additionally, the Court will reduce Ms. McKinley’s time by 0.3 hours for an apparent bookkeeping irregularity in her account of hours on March 2, 2004, and likewise will reduce the time billed by her paralegal, Ms. Donnelly, by 2.2 hours, for an accounting irregularity on March 1, 2004.

1 Defendant raises a panoply of other objections to Plaintiff’s proposed fees, but the Court does not find merit in them. Defendant attacks Plaintiff’s staffing of depositions (generally utilizing two attorneys), Plaintiff’s billing for pre-trial preparation, Plaintiff’s billing for document review, Plaintiff’s billing for his response to Defendant’s summary judgment motion, Plaintiff’s billing for interoffice communication, and Plaintiff’s research billing. The Court has reviewed Plaintiff’s logs, and, given the complexity and contentiousness of the underlying litigation, deems the use of these hours reasonable.

As usual, the money quote is in the footnote. In a complex case, the use of multiple attorneys is reasonable. And Dover was in fact very complex. Note that the court did not find the use of two senior lawyers to be unreasonable. In fact, only during the trial, in which the third lawyer did not take an active role, was any redundancy found. In the case of Dover, all of the senior lawyers took an active, non-redundant role during the trial. And the trial is where you expect the best lawyers to be doing the work.

Let’s now look at the tie-in to the reasonable hourly rate issue. Follow the link in the quote to get a list of accepted hourly rates for the Philadelphia area. Note that it lists different rates for different levels of experience, ranging from $140-$150 for less than two years experience to $310-$400 for attorneys with over 25 years of experience. The Third Circuit Court, which presides over the District Courts of Eastern and Middle Pennsylvania, has deemed this to be a reasonable list of hourly rates.

Judge Newcomer, in ordering an award of reasonable attorney fees, wrote:

The accepted method of determining attorneys’ fees is the “lodestar” method. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). The lodestar method is a simple calculation; it multiplies the number of hours reasonably spent on a case by the
reasonable hourly rates of those who worked them. See Brytus v. Spang & Co., 203 F.3d 238, 242 (3d Cir. 2000). The result of the lodestar calculation is presumed to be reasonable. See Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996). After the party seeking fees submits its request, the adverse party can raise objections to it. From that point on, the Court has considerable discretion to adjust
the fee award in light of those objections. See Bell v. United Princeton Props, Inc., 884 F.2d 713, 720 (3d Cir. 1989). Here, Defendant takes issue with the reasonableness of both the hourly rate of, and hours billed by, Plaintiff’s Counsel. The Court will deal with each issue in turn.
III. ANALYSIS
A. Basis of the Court’s Inquiry
Whether an hourly rate is reasonable is a question of fact for the Court. See Washington, 89 F.3d at 1035. Plaintiff has submitted a detailed explanation of his fees, along with
affidavits from counsel, and from other practicing attorneys, to justify the reasonableness of both his counsel’s hourly rate, and of their time expenditures. Plaintiff has also submitted the median fee survey for the City of Philadelphia, from Community Legal Services, Inc. (“CLS”), a document that provides median ranges for attorneys in the Philadelphia area with different levels of experience. This document has been cited approvingly by the Third Circuit as probative of the reasonableness of an hourly rate. See Maldonado v. Houstoun, 256 F.3d 181, 187 (3d Cir. 2001). Finally, Plaintiff has submitted a recent Middle
District of Pennsylvania opinion, in which Judge Kane approved of an hourly fee of $275.00 an hour for Mr. Lamar, one of Plaintiff’s counsel. See Equal Employment Opportunity Commission and Marion Shaub v. Federal Express, Corp., No. 02-1194 (M.D. Pa. filed Jan. 14, 2005). Defendant has not informed this Court of any facts which tend to support its argument that Plaintiff’s hourly rates are unreasonable, with the exception of its
criticicism that Mr. Lamar’s hourly rate is higher than that suggested by CLS….
B. Plaintiff’s Hourly Rates
Plaintiff’s three primary attorneys have requested rates of $300.00, $310.00, and $275.00 per hour. Ms. McKinley, Plaintiff’s lead counsel through much of the proceedings, has
been a lawyer for over twenty years, and has extensive litigation experience. See Affidavit of Lorrie McKinley at 2, attached as Exh. A to Plaintiff’s Motion (hereinafter “McKinley Aff.”). She has submitted three affidavits from local attorneys, all of whom are indisputedly qualified to offer their opinion on the reasonableness of her fee, and all of whom endorse it. Two of these affiants endorse Mr. Lamar’s rate of $275.00 an hour, and
one of them supports Mr. Meek’s submission. Mr. Lamar has submitted an additional affidavit in support of his request, and also a recent Middle District Opinion awarding him a rate of $275.00 an hour. With one exception, Plaintiff’s requests are consistent with the Community Legal Services (“CLS”) fee schedule for attorneys with the commiserate level of experience. For Mr. Lamar, an attorney with fourteen years of experience, a rate of $275.00 an hour is slightly higher than the CLS suggestion of $220.00-$260.00.
Mr. Lamar’s litigation and advocacy skills were quite clearly a cut above an average attorney’s, and the Court has no trouble believing the multiple affidavits suggesting that an attorney of Mr. Lamar’s abilities can expect to garner $275.00 an hour. This conclusion is bolstered by the similar finding by Judge Kane of the Middle District of Pennsylvania. See Shaub, No. 02-1194, at *32-3.
Mr. Meek’s request is at the low end of the CLS range for an attorney with more than twenty-five years of experience ($310.00-$400.00), and Ms. McKinley’s request is within the CLS range for an attorney with between sixteen and twenty-five years experience
($250.00-$310.00). Defendant attacks Mr. Meek and Ms. McKinley as inexperienced litigators in the field of disability law, but the Court finds no support for this contention. Given their experience and performance at trial, the Court accepts the proposed hourly rates as reasonable. This Court has observed literally hundreds of attorneys before it, and it is quite clear that Plaintiff’s counsel are better than most, at least in terms of oral advocacy. Defendant points out the many times that the Court corrected Plaintiff’s Counsel, but fails to include Plaintiff’s Counsel’s rejoinders. Indeed, given the complexity of the facts at hand, Plaintiff’s Counsel was quite clarifying at times. The remainder of Plaintiff’s rates, for Mr. Earle and Mr. Resnick, are well within the CLS range. The Court accepts Plaintiff’s proposed fee schedule.

Larry, since I know you have problems accessing pdf files, let me know if you need a text version of either of these sent to your email address. In any case, any assertion by Larry that attorney fees are not awarded on a sliding scale according to skill, experience, and reputation has now been thoroughly fisked.

You could say that — there were three organizations representing the plaintiffs. The defendants were represented by just three attorneys from TMLC plus one apparently independent local attorney.

The defense had the opportunity to be represented by 3 organizations (plus the local), but turned it down. In fact, the FTE and DI were insistent that they be included on the defense team, and withdrew expert witnesses when this was denied by the TMLC. (Note: this is a separate issue from the motion to intervene - if the defense had been willing, there would have been no obstacle to FTE and/or DI joining the team) That is the fault of the defense, not the plaintiffs. All three organizations representing the plaintiffs made valuable and necessary contributions that resulted in a resounding win for plaintiffs.

The ACLU does not need any help on church/state issues — the ACLU intimidated the Los Angeles County Board of Supervisors into voting 3-2 to remove a cross from the LA County seal. And why was Pepper-Hamilton needed ? It was likely that church-state issues were outside the specialties of the attorneys from Pepper-Hamilton.

Well, I remembered reading a quote regarding this exact issue around the time the decision was handed down. Let’s take a look at the relevant excerpt.

eSkeptic: December 20th, 2005, wrote:

The ACLU was joined by Americans United for Separation of Church and State (AU), a frequent ally in such cases, and by the National Center for Science Education (NCSE), who operated as a pro bono consultant in the case. NCSE has been battling efforts to attack evolution for several decades and their expertise and experience provided many of the key arguments and lines of evidence used in the case.
The first step was to find a law firm who could handle the case and take the risk of not being paid. Most large ACLU cases are handled with assistance from major law firms who do the work pro bono. If the suit is filed against a government agency, they can typically expect to have their legal fees covered by that agency if they win the case; if they lose, they have to suffer the costs incurred. The parents represented would have to pay nothing. NCSE Executive Director Eugenie Scott put out the word to that group’s legal advisory council that they needed to find a law firm to take the Kitzmiller case; within a few short hours, the call was answered.
Eric Rothschild, one of the partners of the Philadelphia-based Pepper Hamilton LLP and a member of the NCSE legal advisory council, enthusiastically offered to take the case, telling Scott, “I’ve been waiting for this for 15 years.” Most major firms do pro bono work, but that work is typically reserved for younger associates without a large and established client list as a good way to get them experience, boost the image of the firm for the charity work, and provide a healthy tax write-off. But Pepper Hamilton would assign five attorneys to Kitzmiller, three of them partners. Rothschild himself took on the role of chief counsel. Add in Witold Walczak and Pamela Knudsen of the Pennsylvania ACLU, and Richard Katskee and Alex Luchenitser from AU, and there is no doubt the plaintiffs had established a formidable legal team.

The way I read that is Pepper Hamilton provided manpower and expertise on the science issues, AU provided expertise on the establishment clause issues, like it often does for the ACLU, and ACLU provided logistics support and additional expertise on the science issues, as well as representing the interests of the plaintiffs. Something to note: AU, without the ACLU, took on the recent California ID case. ACLU has a very broad base, AU specializes in church/state. Also, the three partners (Rothschild, Harvey, and Schmidt) from Pepper Hamilton plus Walczak from the ACLU (whom I believe also qualifies as a partner-level attorney) were the attorneys that took active roles during the trial. The lead from AU, Richard Katskee provided valuable expertise during the trial regarding establishment issues - his absence on Day 8 was noted during the trial because he was the plaintiffs expert on an issue that arose. In fact, the ACLU often enlists AU (and vice versa) when it comes to just this type of case, especially if it’s multifaceted like Dover was.

Do you really want to slander the ACLU?

Yes.

Your eagerness to engage in illegal activities is and has been duly noted.

Comment #80604
Posted by Keanus on February 17, 2006 04:25 PM

I’d go even further in that his analysis does not mention the expert witnesses, Barbara Forrest, Kenneth Miller, etc. who, I understand, required only expenses or the yeoman historical and technical work provided by Eugenie Scott, Nick Matzke and others from the NCSE in support of the attorneys. I don’t know if their time went into compiling the costs, but, if it didn’t, it sure should. In short the case was probably as inexpensive as any case of this magnitude could be.

42 USC Section 1988 allows for attorney fees in this case, but not for expert witness fees. Section 1988 authorizes expert witness fees only for violations of 42 USC Sections 181 and 181a, which do not apply here. If the plaintiffs could soak the defendants for witness fees too, they would do it.

I included the full text of Keanus’s post, the part Larry omitted is in bold. The reason I didn’t include expert witness fees is because I didn’t believe they were allowable. For the purpose of accuracy, I must point out that it is Sections 1981 and 1981a - otherwise, Larry is correct on this point. The relevant Section for Dover is 1983. Section 1988 covers reasonable attorney fees for all three sections, but not witness fees for 1983. But more to the point, the assistance of the NCSE was key to the victory and helped keep costs down.

The former Dover school board members certainly deserve some of the blame for the high legal cost — they really screwed up. But the plaintiffs and their legal representatives certainly deserve a lot of the blame too.

I have once again demolished all of your arguments, Larry. Once again, you have no basis on which to make the claim that plaintiffs artificially drove up the legal costs. The plaintiffs assembled what was needed to assure victory, and were fiscally responsible in the manner in which they did. Your only remaining argument is to falsely accuse the plaintiffs of padding the fees in a document that we don’t even have access to. Not only that, but my sources indicate if anything the fees are a bargain, if the initial estimates are to be believed. Thanks everyone with the fortitude to read through this long post, I think you will find the links fascinating.

By the way, I’m told bags of frozen peas work well in treating your self-inflicted injury. ;)

Comment #80686

Posted by KL on February 18, 2006 9:02 AM (e)

To W. Kevin Vicklund:

Thank you for taking the time to put together this well articulated response. I can only pass judgement on posts pertaining to secondary school science education and other aspects of working with students between the ages of 12 and 18. However, I can make no judgement of someone’s analysis of the legal process. I appreciate everyone who posts here who can explain/debunk/analyze issues in their particular field so that the rest of us can learn.

Comment #80687

Posted by Steverino on February 18, 2006 9:02 AM (e)

“Check please!”

Comment #80723

Posted by W. Kevin Vicklund on February 18, 2006 2:47 PM (e)

Thank you for the compliment, KL. In the interest of full disclosure, I am not a lawyer or in the law profession. I am, as I have stated previously, an electrical engineer (with a focus on power and control systems). In that sense, I am just as qualified as Larry, who is a retired engineer (though obviously not electrical), or KL for that matter, to offer legal analysis. Where the difference arises is that I have a lot of experience in my non-professional life with what is not-so-politely referred to as “rules lawyering”. I helped rewrite the chapter bylaws for my fraternity at both colleges I attended (I’m a member of Alpha Phi Omega, the national coed service fraternity). I also helped rewrite the rules for another organization I was once a member of. Finally, as a member of the Society for Creative Anachronisms, I have trained as a consulting herald, which involves a significant amount of interpretation of rather convoluted rules. So I know how to analyze legalese, even though I am not a professional. Larry does not appear to have been through that particular crucible, which is why it is so easy to refute him - he doesn’t understand what he is quoting (or he is lying and hoping people won’t take the trouble to discover his lies).

But frankly, my refutation only required a few Google searches, and Larry even provided some of the references! That and the willingness to spend nine hours on research and rebuttal. Most people could do it quicker than that, but I have a disability that prevents me from writing quickly.

Comment #80725

Posted by Keanus on February 18, 2006 2:52 PM (e)

Kevin, thanks for the clarification. The length is irrelevant in that all of it was of substance. However, given the time it obviously took you, perhaps Larry should provide his address where you can send your bill for legal counsel—at the prevailing rate, of course.

Comment #80820

Posted by B.F. on February 18, 2006 11:03 PM (e)

Comment #80641
Posted by Corkscrew on February 17, 2006 09:58 PM

Incidentally, I’m amused by Larry’s idea that “pro bono” should mean that the attorneys don’t get to claim any of the proceeds. Has he actually discussed this novel idea of his with any attorneys? The smart vote says: no.

And I am amused by your idea that this is a novel idea. What is a novel idea is the idea that pro bono attorneys should receive such awards. I have already investigated this matter thoroughly, and here are some of the things that I found –

The American Bar Association’s policy on pro bono work says –
[4] Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2). Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected, but the award of statutory lawyers’ fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section. Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means. (emphasis added)
http://www.abanet.org/legalservices/probono/rule61.html

The Supreme Court ruled in Blum v. Stenson, 465 U.S. 886 (1984) –
The statute [i.e., the Civil Rights Attorney Fees Awards Act of 1976] and its legislative history establish that reasonable fees are to be calculated according to the prevailing market rates in the relevant community, not according to the cost of providing legal services, regardless of whether the prevailing party is represented by private profitmaking attorneys or nonprofit legal aid organizations.

In Nevada –
CARSON CITY – The state Supreme Court said Thursday that attorneys fees can be awarded in cases where a person was represented free of charge. The ruling upheld an award of $3,000 in attorneys fees in a child paternity case…….The $3,000 will hardly cover the costs of the District Court process and the appeal, which in total amounted to more than $70,000 ……From – http://www.reviewjournal.com/lvrj_home/2005/Sep-23-Fri-2005/news/27253068.html

And in California –
LOS ANGELES – a state appeals court has decided that pro bono lawyers can win attorney fees as discovery sanctions, even though their client is not paying them for their time.

The unanimous three-judge panel of the 4th District Court of Appeal said that pro bono lawyers for an Orange County defendant were entitled to discovery sanctions against the plaintiff, who twice failed to appear for a deposition……

Attorneys said the panel’s opinion applied specifically to discovery sanctions but probably would be used to argue that pro bono attorneys are eligible for other kinds of fee awards.
From –
http://www.publiccounsel.org/news/2003/jun303.htm

Because of Blum v. Stenson and the Civil Rights Attorney’s Fees Awards Act of 1976, pro bono and/or nonprofit legal representatives in civil rights cases are eligible for awards of attorney fees, but there is no general eligibility for awards of attorney fees.

Here is one law firm’s policy on pro bono work –

As a general rule, the Firm does not seek an award of attorney’s fees in public service matters. We discourage our lawyers from seeking such awards when they undertake pro bono matters individually. An exception to this rule may be considered on a case-by-case basis, on the recommendation of the lawyer involved, where substantial time and effort have been devoted or other considerations indicate that such an application is appropriate. Where a fee is received, the balance of the fee, after deducting the Firm’s disbursements, will be donated to a suitable law-related charitable organization.
See – http://www.sullcrom.com/community/probono/

Here is one attorney’s criticism of attorney fee awards in establishment clause cases –

The ACLU, posturing to the public that it acts on principle and pro bono, in the public interest and without fee, in fact has raked in enormous profits in lawsuits brought under the establishment clause.

These lawsuits are nationwide, coast to coast, and run literally into millions of dollars in the pockets of the ACLU in attorney fee awards - although in fact neither the ACLU nor its mascot plaintiffs have incurred any actual attorney fees.

As a onetime ACLU staff attorney, I know that the ACLU recruits attorneys to take on its cases without fee, and that the ACLU does not charge attorney fees to the persons it uses as plaintiffs.

As pointed out in Comment #80470 , a bill has been introduced in Congress to bar awards of attorney fees to winning plaintiffs in establishment clause cases. These huge fee awards are causing a general backlash from taxpayers, including taxpayers who believe in a strong separation of church and state. The establishment clause is arguably one of the least important protections in the Bill of Rights. It is at about the same level as the right to not be offended, which is not even a constitutional right. I would bet that a lot of pro-separation Dover taxpayers, given a choice between having the ban on the ID statement and having the $1 million+ awarded to the plaintiffs, would take the money.

Comment #80824

Posted by steve s on February 18, 2006 11:09 PM (e)

Larry’s going to run around and clog up threads. This sort of problem is perfect for a /. style system. Somebody would moderate it as out of bounds, and that would be all she wrote. No PT-poobah would have to lift a finger.

Comment #80825

Posted by Engineer-Poet, FCD, ΔΠΓ on February 18, 2006 11:15 PM (e)

Mr. Vicklund, from one double-E (who likes to deal with things in-depth, even outside his speciality) to another…

that was delightful.

Comment #80826

Posted by steve s on February 18, 2006 11:22 PM (e)

you’re never getting that 9 hrs back, you know

Comment #80827

Posted by W. Kevin Vicklund on February 18, 2006 11:44 PM (e)

I may never get it back,steve s, but I learned (and confirmed) a lot in those hours. Much of it I didn’t even include, as it was tangential or completely off-topic. My wife is out of the country for 9 months - what else do I have to do with my time?

Engineer-Poet, what area of EE? Glad you liked my posting. It’s the little things, you know…

Comment #80835

Posted by k.e. on February 19, 2006 1:09 AM (e)

B.F. /Larry Fafarman/Bill/John/Alan etc etc

Your overpowering desire for self gratification will make you go blind…….Oh ……make that past tense.

time to change hands Larry.

How come a Mr Lawrence Fafarman (of California) has the same email address as you Larry and please, please, please tell us all about your objections to smog tax,
support of the confederate flags,
explanations about meteors, imaginary numbers, and
“veggie libel laws – of questionable constitutionality”
and mad cow disease on Oprah Winfrey TV show

also revisionism on the Holocaust and the US Civil war

Lenny is right you are a self gratifying wanker.

Comment #80847

Posted by B.F. on February 19, 2006 6:45 AM (e)

Comment #80672
Posted by W. Kevin Vicklund on February 18, 2006 06:26 AM

I ask your indulgence while I compose another extended post slaughtering Larry’s legal garbage

Speaking of “garbage,” was it really necessary for you to make such a long-winded post ? Instead of quoting long passages, couldn’t you just quote key statements like I do ?

I do still hold that in general, Larry has shown a propensity to mislead and otherwise deceive PT, and so offer no apology for the general accusation.

That accusation is completely unfounded.

eSkeptic magazine said – Most major firms do pro bono work, but that work is typically reserved for younger associates without a large and established client list as a good way to get them experience, boost the image of the firm for the charity work, and provide a healthy tax write-off. But Pepper Hamilton would assign five attorneys to Kitzmiller, three of them partners.

So Pepper Hamilton already deviated from normal practice by assigning a large number of partners to a pro bono case – three out of the five attorneys assigned by the firm. The Pepper Hamilton team had more chiefs than Indians. So you are saying that the defendants should not only pay the fees of an excessive number of plaintiffs’ attorneys, 9-10, but should also pay premium fees for a high number of high-ranking attorneys among the plaintiffs’ attorneys. Also, some attorneys want fees that are much higher than the average for attorneys of comparable experience. Some attorneys have regular fees of $1000/hr. – what would be a reasonable “market rate” for such attorneys ? You say that the Dover case was complex, but so what ? That is what attorneys are paid to do – handle complex cases.

One attorney had this to say about these fee awards –

Congress did not require judges to award attorney fees under 42 U.S.C. Section 1988. Congress made attorney-fee awards purely discretionary. Judges have interpreted that to mean that a prevailing party is to receive “reasonable” attorney fees, even if there are in fact no actual attorney fees. “Market rate” is used. In large cities, that can be a starting point of about $350 an hour.

So, in practice, what is a “reasonable” attorney fee? Whatever one lawyer, i.e., a judge, wants to give to another lawyer, taxpayers be damned.

The lead from AU, Richard Katskee provided valuable expertise during the trial regarding establishment issues - his absence on Day 8 was noted during the trial because he was the plaintiffs expert on an issue that arose.

Good grief – with 8-9 other attorneys and several of them specialists in establishment clause issues, they couldn’t fill in for this guy on a single day?

42 USC Section 1988 allows for attorney fees in this case, but not for expert witness fees. Section 1988 authorizes expert witness fees only for violations of 42 USC Sections 181 and 181a, which do not apply here. If the plaintiffs could soak the defendants for witness fees too, they would do it.

I included the full text of Keanus’s post, the part Larry omitted is in bold. The reason I didn’t include expert witness fees is because I didn’t believe they were allowable. For the purpose of accuracy, I must point out that it is Sections 1981 and 1981a - otherwise, Larry is correct on this point.

What do you mean, “otherwise, Larry is correct on this point” ? Larry is completely correct on this point – Larry correctly pointed out that Sections 1981 and 1981a are exceptions which do not apply here.

But more to the point, the assistance of the NCSE was key to the victory and helped keep costs down.

That’s a laugh – NCSE’s participation drove costs up. No expert scientific testimony was necessary in this case. The expert witnesses should have been scheduled to testify last, and their testimony should have been canceled when the religious motivations of the school board members became clear.

Not only that, but my sources indicate if anything the fees are a bargain, if the initial estimates are to be believed.

If you call that a bargain, I hate to think about what you would call a rip-off.

The party may be almost over. I think that the bill in Congress to bar the award of attorney fees in establishment clause cases has a fair chance of passing. One does not have to be a fundy to support this bill – one just needs to be a concerned taxpayer. See Comment #80470 of this thread.

Posted by KL on February 18, 2006 09:02 AM
I appreciate everyone who posts here who can explain/debunk/analyze issues in their particular field so that the rest of us can learn.

Thanks for appreciating my posts on legal issues, KL. Law is not my “particular field,” but I do know how to do research in this field, as I have amply demonstrated.

Comment #80859

Posted by k.e. on February 19, 2006 9:36 AM (e)

Larry stop referring to yourself in the third person

Your pathetic attempt to create the perception that third person communications exert a stronger effect in your case is just a delusion.

Twit

Comment #80901

Posted by B.F. on February 19, 2006 3:20 PM (e)

Comment #80672
Posted by W. Kevin Vicklund on February 18, 2006 06:26 AM

The ruling [ i.e., Blum v. Stenson] specifically mentions that the prevailing market rates are based on skill and experience.

I wish to thank you for discussing the body of the Blum v. Stenson decision. I had read only the syllabus, which was fairly misleading.

You even quoted footnotes ! Egads, who reads the footnotes ? Here is a quote from a footnote –

“To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence - in addition to the attorney’s own affidavits - that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. A rate determined in this way is normally deemed to be reasonable, and is referred to - for convenience - as the prevailing market rate.” From footnote 11, emphasis added

How could something of such importance be only in a footnote ?

Anyway, my original statement regarding the syllabus of Blum v. Stenson was as follows – “The above ruling states that fees are to be calculated according to prevailing market rates — there is no allowance for higher rates for hotshot attorneys who think that they are worth more.” My statement here could be interpreted as meaning that it is OK to assign different fee rates according to years of experience, but that attorneys who think that they are worth more than a normal rate for their level of experience should not be awarded more. Some attorneys’ regular fees are $1000/hr.. The above ruling from Blum v. Stenson says that “skill” and “reputation” should be considered in addition to experience, but assessments of skill and reputation are highly subjective and arbitrary.

Also, the Supreme Court really blew it on this case – the whole rationale for the decision was wrong. The court cited a Senate report, as follows –

In enacting the statute, Congress directed that attorney’s fees be calculated according to standards currently in use under other fee-shifting statutes:

“It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature. The appropriate standards, see Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F. R. D. 680 (N. D. Cal. 1974); Davis v. County of Los Angeles, 8 E. P. D.  9444 (C. D. Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (W. D. N.C. 1975). These cases have resulted in fees which are adequate to attract competent [465 U.S. 886, 894] counsel, but which do not produce windfalls to attorneys.” S. Rep. No. 94-1011, p. 6 (1976). 8 (emphasis added)

The above quote of the Senate report only said that it was intended that the fees “not be reduced because the rights involved may be nonpecuniary in nature” – this quote does not say that the fees should not be reduced when the plaintiffs’ legal representation is non-profit and/or pro bono. Blum v. Stenson goes on to say, “It is also clear from the legislative history that Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization,” but provides nothing substantial to back up that conclusion. Blum v. Stenson noted that court decisions listed in the above Senate report quote ruled that attorney fee awards for non-profit and/or pro bono legal representatives should be computed in the “traditional” manner, but those rulings are of no consequence here if the Senate report does not expressly agree. The court’s reasoning here is astonishing, but courts often do astonishing things.

Also, apparently there were just two Pepper-Hamilton partners on the team, not three, according to http://www.pepperlaw.com/pepper/pracarea/intelligent_design.cfm

The new Dover school board, instead of scapegoating the former school board members for the high legal bill, as at least one new member did, should be trying to chew the bill down. In particular, the board should challenge any pay rates claimed for the Pepper-Hamilton partners above the normal range for attorneys of the same experience.

Comment #80902

Posted by 'Rev Dr' Lenny Flank on February 19, 2006 3:29 PM (e)

Shut up, Larry.

Comment #80909

Posted by limpidense on February 19, 2006 5:31 PM (e)

I’m not reading any of what are clearly “aLarryFbyEVERYothername” posts, but the number of times this MPD interferes with a thread, and usually at great length, under different names does rather test my patience.
This is different than people I consider simple dishonest shits (the stinks of Blast and GoP come unbidden to my now-scarred memory): I simply avoid any discussion that involves them while they are there. I am getting tired of constantly having to avoid him, and therefore being discouraged from reading REAL posts by people who, whatever their beliefs, are not simply cranks.

Please do not allow this unfortunate person to derail every discussion and drive away others.

Comment #80911

Posted by Corkscrew on February 19, 2006 5:40 PM (e)

Larry BFman wrote:

Incidentally, I’m amused by Larry’s idea that “pro bono” should mean that the attorneys don’t get to claim any of the proceeds. Has he actually discussed this novel idea of his with any attorneys? The smart vote says: no.

And I am amused by your idea that this is a novel idea. What is a novel idea is the idea that pro bono attorneys should receive such awards. I have already investigated this matter thoroughly, and here are some of the things that I found —

The American Bar Association’s policy on pro bono work says —
[4] Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2). Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected, but the award of statutory lawyers’ fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section. Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means. (emphasis added)

Uh, dude, did you actually read the section you quoted? Read this slowly: but the award of statutory lawyers’ fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section

The award of statutory lawyer’s fees in a case originally accepted as pro bono doesn’t stop it counting as pro bono. In other words, it is possible for a case to be pro bono regardless of whether the lawyers get to take their pound of flesh from the loser. All that the section is saying is that it can’t count as pro bono if the lawyers had plans to charge their clients in the event of a loss. Which the lawyers here didn’t.

I’m slightly amazed that you posted a quote with a section that completely eviscerates your entire point. You even highlighted the section in question! I suggest working on your reading comprehension.

As an aside:

I do still hold that in general, Larry has shown a propensity to mislead and otherwise deceive PT, and so offer no apology for the general accusation.

That accusation is completely unfounded.

Dude, you’re posting under at least three different names that I’m aware of. At least one of those names is substantially similar to the name of another poster, whose views on the subjects under discussion are nothing like yours. And the only reason we know it’s you that’s posting under all these names is because you slipped up and referred to another of your names in the first person.

You’ve even posted under the same thread using more than one name. That moves it outside the realm of irritation and into the realm of astroturfing. This results, not surprisingly, in you having zero credibility remaining. Misguidedness we could handle, even daftness wasn’t a problem, but what you’re doing now is deliberate misrepresentation and that is unacceptable.

Comment #80913

Posted by Sir_Toejam on February 19, 2006 5:56 PM (e)

And the only reason we know it’s you that’s posting under all these names is because you slipped up and referred to another of your names in the first person

uh, you’re kidding, right?

any time you see complaints about the “excessive number of attorneys” in the Dover Case, you can count on it being larry.

really, his drivel never changes, and is quite easy to recognize, regardless of whatever his nom de plume is.

it does puzzle me why the moderators of the various threads he posts in are allowing him to violate rule 6 wuth impugnity however.

it will only encourage other idiots to do the same.

Comment #80915

Posted by Arden Chatfield on February 19, 2006 6:00 PM (e)

Dude, you’re posting under at least three different names that I’m aware of. At least one of those names is substantially similar to the name of another poster, whose views on the subjects under discussion are nothing like yours. And the only reason we know it’s you that’s posting under all these names is because you slipped up and referred to another of your names in the first person.

Four names that I can recall: ‘A.C.’, ‘B.F.’, that short-lived ‘Keely’ whatever, and of course, the original, ‘Larry’. Any others I’m forgetting? Someone mentioned an ‘Alan’. That would make five.

He’s also openly referring to his earlier posts under different names. For example, in just this thread, he said:

As pointed out in Comment #80470 ,

He said this as ‘B.F.’, but 80470 is by ‘A.C.’

Clearly this has become some kind of game for Larry. I hate to imagine how little of a personal life he must have.

Comment #80919

Posted by W. Kevin Vicklund on February 19, 2006 6:20 PM (e)

Unattributed quotes refer to Larry’s 80847 post. My previous post debunking Larry contains links to the referenced cases.

Speaking of “garbage,” was it really necessary for you to make such a long-winded post ? Instead of quoting long passages, couldn’t you just quote key statements like I do ?

Was it absolutely necessary? No. But it served a point. You had quoted a passage from a ruling that you claimed stated that higher fees were not permissible. Yet when I looked at the actual ruling, the full context clearly upheld my claim that skill and experience mattered when it came to determining reasonable attorney fees. I put in more context than was needed to make it abundantly clear that I was providing the full context, plus I gave the link to the documents quoted. This was to demonstrate to anyone how dishonest your quote-mining was, and the fact that I don’t quote-mine. However, I will return to my normal practice of minimum required context, under the understanding that I am being honest and complete in my portrayal of the information.

I do still hold that in general, Larry has shown a propensity to mislead and otherwise deceive PT, and so offer no apology for the general accusation.

That accusation is completely unfounded.

HAH! The post you wrote that in demonstrates one of the misleading practices you engage in, posting under multiple false names in part to avoid an existing ban and in part to make it appear as if someone actually agrees with you. The fact that all the regulars know you are doing this is immaterial - it is still dishonest, and a newcomer wouldn’t know. Also, your quote-mining in the earlier post is extremely dishonest. You either lied about what it meant, or you lied about knowing what the ruling stated. There’s lots of other times you misled or otherwise deceived, plus you have encouraged people to engage in illegal activities. The list is extensive.

So Pepper Hamilton already deviated from normal practice by assigning a large number of partners to a pro bono case — three out of the five attorneys assigned by the firm. The Pepper Hamilton team had more chiefs than Indians. So you are saying that the defendants should not only pay the fees of an excessive number of plaintiffs’ attorneys, 9-10, but should also pay premium fees for a high number of high-ranking attorneys among the plaintiffs’ attorneys. Also, some attorneys want fees that are much higher than the average for attorneys of comparable experience. Some attorneys have regular fees of $1000/hr. — what would be a reasonable “market rate” for such attorneys ? You say that the Dover case was complex, but so what ? That is what attorneys are paid to do — handle complex cases.

Attorneys are required to justify their fees according to prevailing market rates. They have to justify any deviation from the prevailing market rate. Do you even understand what is meant by prevailing market rates means? It is the standard range of fees based upon experience of all lawyers in the area. This is something that can be objectively determined with statistics.

Lawyers are paid to handle cases. In a complex case, experienced and capable lawyers are desired. Simple cases can easily be handled by less experienced lawyers. Let’s shift over to an analogy that Larry may better understand.

As an engineer, I have been involved with a number of projects. Lets break them down into four categories. Small and simple, small and complex, large and simple, large and complex. In my experience, a small and simple project is usually given to a less experienced engineer, because it is less expensive and the experience is not required, and not a lot of manpower is required to get it done in a timely manner. A small and complex project is usually given to a senior engineer, who works with one or two junior engineers. The experience is necessary here, but not a lot of manpower is required. The junior engineers do a lot of the basic work. In a large but simple project, a number of junior engineers are used due to manpower requirements, but only one of the senior engineers is used, and that is mainly for coordination and oversight; for really large projects, more senior engineers may be needed. Finally, in a large and complex project, a lot of senior engineers are needed to handle the complex workload, with assistance from junior engineers. This is standard for just about any business. The larger and more complex a job is, the more experience is needed to complete it satisfactorily. Why is law any different?

When I look at some of the cases where attorney fees are discussed, it seems the judges agree with me. The case in the Eastern district court that I referenced involved a man who had had a pair of seizures due to over-the-counter medicine, and was suing his company for denying him the right to work because they claimed it was epilepsy (this is a very general synopsis - read the decision for better understanding of the case). I would hazard a guess that this case was not nearly as large nor as complex as the Dover case, yet three partners, each representing a legal organization, were used. With the exception that one of the three did not provide a significant contribution during the trial itself, the judge did not find this to be at all unreasonable, in large part due to the complexity of the case. Note that PAEDC trial lasted 44 hours (based on the time the judge docked from Mr. Meeks, the extra lawyer). The Dover trial lasted about 110 hours (if you assume the customary 3 hours per session for 39 sessions, that’s 117 hours, but some were a bit shorter) of time spent in session. That doesn’t include all the time spent in taking or observing depositions, pre-trial hearings, preparation, filing, etc. Obviously, the Dover trial was much larger. And Judge Jones agrees that it is likely the largest case ever seen in the Middle District Court.

One attorney had this to say about these fee awards —

Congress did not require judges to award attorney fees under 42 U.S.C. Section 1988. Congress made attorney-fee awards purely discretionary. Judges have interpreted that to mean that a prevailing party is to receive “reasonable” attorney fees, even if there are in fact no actual attorney fees. “Market rate” is used. In large cities, that can be a starting point of about $350 an hour.

So, in practice, what is a “reasonable” attorney fee? Whatever one lawyer, i.e., a judge, wants to give to another lawyer, taxpayers be damned.

That attorney would be well-advised to look at existing case law. In fact, Larry’s own precious Blum v. Stenson provides an excellent summary of what Congress intended:

US Supreme Court Justice Powell wrote:

Petitioner argues that the use of prevailing market rates to calculate attorney’s fees under 1988 leads to exorbitant fee awards and provides windfalls to civil rights counsel contrary to the express intent of Congress. To avoid this result, petitioner urges this Court to require that all fee awards under 1988 be calculated according to the cost of providing legal services rather than according to the prevailing market rate. 6 The Solicitor General, for the United States as amicus curiae, urges the Court to adopt a cost-related standard only for fee awards made to nonprofit legal aid organizations. He [465 U.S. 886, 893] argues that market rates reflect the level of compensation necessary to attract profit-making attorneys, but that such rates provide excessive fees to nonprofit counsel. Because market rates incorporate operating expenses that may exceed the expenses of nonprofit legal services organizations, and include an element of profit unnecessary to attract nonprofit counsel, the Solicitor General argues that fee awards based on market rates “confer an unjustified windfall or subsidy upon legal services organizations.” Brief for United States as Amicus Curiae 6.

Resolution of these two arguments begins and ends with an interpretation of the attorney’s fee statute. The Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. 1988 (1976 ed., Supp. V), authorizes district courts to award a reasonable attorney’s fee to prevailing civil rights litigants. 7 In enacting the statute, Congress directed that attorney’s fees be calculated according to standards currently in use under other fee-shifting statutes:

“It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature. The appropriate standards, see Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F. R. D. 680 (N. D. Cal. 1974); Davis v. County of Los Angeles, 8 E. P. D.  9444 (C. D. Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (W. D. N.C. 1975). These cases have resulted in fees which are adequate to attract competent [465 U.S. 886, 894] counsel, but which do not produce windfalls to attorneys.” S. Rep. No. 94-1011, p. 6 (1976). 8

In all four of the cases cited by the Senate Report, fee awards were calculated according to prevailing market rates. 9 None of these four cases made any mention of a cost-based standard. 10 Petitioner’s argument that the use of market rates violates congressional intent, therefore, is flatly contradicted by the legislative history of 1988.

It is also clear from the legislative history that Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization. The citations to Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974), and Davis v. County of Los Angeles, 8 EPD  9444 (CD Cal. [465 U.S. 886, 895] 1974), make this explicit. In Stanford Daily, the court held that it “must avoid … decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return.” 64 F. R. D., at 681. In Davis, the court held:

“In determining the amount of fees to be awarded, it is not legally relevant that plaintiffs’ counsel … are employed by … a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorney’s fees to be computed in the traditional manner when its counsel perform legal services otherwise entitling them to the award of attorneys’ fees.” 8 EPD, at 5048-5049.

We cannot assume that Congress would endorse the standards used in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (CA5 1974), Stanford Daily, Davis, and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (WDNC 1975), if fee awards based on market rates were viewed as the kind of “windfall profits” it expressly intended to prohibit.

The statute and legislative history establish that “reasonable fees” under 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or non-profit counsel. 11 The policy arguments advanced in favor of a [465 U.S. 886, 896] cost-based standard should be addressed to Congress rather than to this Court.

In a matter of interpretation of what Congress desired, especially in light of the decisions Congress itself referenced as the appropriate standards, I am inclined to trust the unanimous decision of the United States Supreme Court over some unnamed lawyer. It is clear that the Act was intended to permit awarding of attorney fees in cases like Dover. Note that discretion is given. This is a two-edged blade. It can also mean that the court can deny attorney fees. Finally, judges take an oath to uphold the law, and in this case, that includes making sure that reasonable attorney fees are indeed reasonable. They can be disbarred, or worse, for awarding unreasonably high fees. The lawyer is slamming the integrity of the entire legal system. But of course, that’s what Larry’s real purpose here is. He couldn’t care a hoot about evolution. His real desire is to demolish our legal system.

Good grief — with 8-9 other attorneys and several of them specialists in establishment clause issues, they couldn’t fill in for this guy on a single day?

(Please just refer to the total number of attorneys as 10. It is easier and less confusing. I’ll back you up if anyone challenges you on the number.) According to the transcripts I looked at (I took a sampling, rather than open all 39 documents), Mr. Katskee appeared to be only attending court on days when witnesses testifying on issues related to the establishment clause were examined. That particular day, the witnesses were Bertha Spahr (a teacher), Dr. Brian Alters (an expert witness on science teaching and teaching evolution), Cynthia Sneath (a parent), and Steven Stough (also a parent). These were all fact witnesses, and there was no obvious need for his expertise that day until a side issue over the admissibility of newspaper evidence came up - it appears the ACLU lawyer was less familiar with the relevant cases dealing with newspaper evidence. It does not appear that any other attorneys from AU attended the trial sessions. Usually, it was 3 or 4 of the big 4 (Rothschild, Schmidt, and Harvey of Pepper Hamilton, and Walczak of the ACLU) and occasionally one other lawyer from Pepper Hamilton. It seems that the various attorney plaintiffs were only present on days when they were actually needed. Imagine that. Wouldn’t that tend to keep costs down?

Btw, it seems that Pamela Knudsen, the other ACLU lawyer, was the attorney initially contacted by the parents. It appears she acted as liaison between them and the legal team. Also, the local lawyer for the defendants was required to admit the TMLC lawyers pro hoc vise since they weren’t licensed in Pennsylvania. Just clarifying the purpose served by those two attorneys.

42 USC Section 1988 allows for attorney fees in this case, but not for expert witness fees. Section 1988 authorizes expert witness fees only for violations of 42 USC Sections 181 and 181a, which do not apply here. If the plaintiffs could soak the defendants for witness fees too, they would do it.

I included the full text of Keanus’s post, the part Larry omitted is in bold. The reason I didn’t include expert witness fees is because I didn’t believe they were allowable. For the purpose of accuracy, I must point out that it is Sections 1981 and 1981a - otherwise, Larry is correct on this point.

What do you mean, “otherwise, Larry is correct on this point” ? Larry is completely correct on this point — Larry correctly pointed out that Sections 1981 and 1981a are exceptions which do not apply here.

I was pointing out a typo that led me to a bit of confusion. You incorrectly typed “181 and 181a” instead of the correct “1981 and 1981a”. It took me a minute to figure out that it was a typo, not me missing a vital fact. If you hadn’t made that simple mistake, I would have instead merely noted that you were correct. But you can’t get it right even when you’re correct! Also, I should note that this quote demonstrates your dishonesty in pretending to not be Larry. Either you are Larry, and are falsely posting as B.F., or you are B.F. and falsely claiming Larry to have written something you wrote. I think we all know which option it is, eh?

That’s a laugh — NCSE’s participation drove costs up. No expert scientific testimony was necessary in this case. The expert witnesses should have been scheduled to testify last, and their testimony should have been canceled when the religious motivations of the school board members became clear.

This is wrong in so many ways, and directly serves to show why no-one should take Larry’s “advice” on legal matters. First of all, the normal order of a trial is to have all of the plaintiffs witnesses testify prior to the start of the defenses case. Testimony given out-of-turn is almost always due to the inability of a witness to attend trial during the appropriate phase, issues with sub-poenaing witnesses, or new evidence coming to light. To delay testimony out-of-turn just because it might not be necessary is absurd!

Furthermore, you are requiring the plaintiffs to know ahead of time what a judge is going to rule. In particular, the establishment of the religious motivation relied heavily on the reporters testimony, and they hadn’t even been deposed prior to the start of the trial. The reporters could have refused to testify - in fact, they were trying to get out of testifying - and the judge was not going to permit them on the stand unless the defense got a chance to depose them. If they didn’t testify, or the judge decided that their testimony was inadmissible, or that the testimony didn’t prove what the plaintiffs claimed it did, a good portion of the plaintiffs case regarding motivation would be nullified. The plaintiffs would be stupid to rest their case on such unstable ground.

The expert witness testimony was on much firmer ground. Why should they drop half their case when it wasn’t clear that the other half would even be allowed?

If you call that a bargain, I hate to think about what you would call a rip-off.

My friend’s words, not mine. Prior to the start of the trial phase, I had guessed somewhere between $1-2 million myself, and I’m not even in the business.

The party may be almost over. I think that the bill in Congress to bar the award of attorney fees in establishment clause cases has a fair chance of passing. One does not have to be a fundy to support this bill — one just needs to be a concerned taxpayer. See Comment #80470 of this thread.

And how many times has a similar bill been defeated since the 1976 act? One does not need to be an atheist to oppose this bill - one just needs to be a concerned citizen that doesn’t want the government interfering in their choice of religion. The purpose of awarding attorney fees is so that individuals who feel their civil rights are being threatened will come forward. It shifts the risks from the citizen onto the law-firm. A law-firm that takes on cases that aren’t actual violations of civil rights will soon find itself unable to pay the bills. And reasonable attorney fees actually prevent a winning attorney from “soaking” the loser.

Posted by KL on February 18, 2006 09:02 AM
I appreciate everyone who posts here who can explain/debunk/analyze issues in their particular field so that the rest of us can learn.

Thanks for appreciating my posts on legal issues, KL. Law is not my “particular field,” but I do know how to do research in this field, as I have amply demonstrated.

What you have amply demonstrated is that you are able to find cases that have some relevance. Unfortunately for you, quite often what you have researched contradicts your position. As I amply demonstrated, especially in regards to Blum v. Stenson, you have utterly failed to properly explain, debunk, or analyze legal issues.

Comment #80920

Posted by Rilke's Granddaughter on February 19, 2006 6:23 PM (e)

Arden Chatfield wrote:

Any others I’m forgetting?

I stopped counting at eight.

As I say, there are two possibilities: he’s being maliciously difficult - possibly because he didn’t like having his content-free posts trashed by other posters; or he’s mentally ill.

I am inclined to the latter, actually. His behavior is abnormal to a large degree; he doesn’t appear to even be aware of what he’s doing half the time.

In any event he’s disruptive, and I certainly hope the management finds some mechanism of making threads more productive by his absence.

Many forums that I’ve seen run into this problem with one or two nuisance posters. It’s always possible to find a mechanism to prevent them from malice.

Of course, unlike UD, it’s not honest to delete his threads. Now there’s a crew of folks who are in serious need of help.

Comment #80921

Posted by Sir_Toejam on February 19, 2006 6:28 PM (e)

Larry pouted:

Instead of quoting long passages, couldn’t you just quote key statements like I do ?

translated:

“My reading comprehension skills fail if the material is longer than one paragraph.”

unoftunately for poor larry, this has hampered his ability to reason in more than just this instance. In fact, it has plauged his ability to reason since he started posting on PT months ago.

Comment #80924

Posted by Arden Chatfield on February 19, 2006 6:44 PM (e)

Any others I’m forgetting?

I stopped counting at eight.

Out of curiosity, what are the other three? It’s probably a good idea to have a comprehensive list somewhere. Some of the others were probably one-shots in threads I didn’t look at.

Think Larry will ever start responding to his own posts? You know, actually starting conversations between A.C. and B.F.?

Comment #80928

Posted by Don Baccus on February 19, 2006 7:05 PM (e)

Arden wrote:

Think Larry will ever start responding to his own posts?

He already has responded to his own posts using a different name. He got called on that and appears to have stopped - for now.

Comment #80931

Posted by Arden Chatfield on February 19, 2006 7:19 PM (e)

He already has responded to his own posts using a different name. He got called on that and appears to have stopped - for now.

I think I missed that. Which thread was that in?

Comment #80932

Posted by Don Baccus on February 19, 2006 7:26 PM (e)

I don’t remember which thread but it was recent, and it was every bit as lame as you probably are imagining.

Comment #80935

Posted by Corkscrew on February 19, 2006 7:51 PM (e)

I think that the one where Larry was talking about himself in the third person was this one. There may be others.

My list of Larry names currently reads as:
Larry Fafarman
Andy H.
Bill Keeley
S.P.
A.C.
B.F.

That makes six, and fairly well demonstrates the disgusting astroturfing that Larry is engaged in. Any more pseudonyms I’ve missed?

Comment #80940

Posted by Doc Bill on February 19, 2006 8:14 PM (e)

B.F.?

Should I be flattered or insulted?

(don’t answer that)

Comment #80943

Posted by W. Kevin Vicklund on February 19, 2006 8:30 PM (e)

Roger Hall is another one, and I remember when he first started using alternate names, he used one of the same form as Andy H. (ie first name last initial) but I think it had a B as one of the initials.

Also, there’s the time he got caught by nanny-ware (hey, I just got caught for the first time in my yet to appear post re: Larry quote-mining himself) and supposedly asked a friend to post for him, then forgot to change back to his own name. Sounds a little fishy now, eh?

Comment #80948

Posted by Arden Chatfield on February 19, 2006 8:58 PM (e)

Larry Fafarman
Andy H.
Bill Keeley
S.P.
A.C.
B.F.

Okay, that’s six, plus ‘Roger Hall’, plus the ‘Alan’ that K.E. alluded to, that would bring it to the eight names that Rilke’s Granddaughter counted. I predict there’ll be others in the near future.

Since this problem seems not to be going away, maybe the way to deal with it is to treat it as a sport, like birdwatching? You know, who can spot a Pallas’s Grasshopper Warbler, who can spot a new Larry pseudonym, that sort of thing…

I think that the one where Larry was talking about himself in the third person was this one. There may be others.

Larry has talked about himself in the 3rd person several times now, what I was wondering if he’s ever gone for the whole enchilada and actually talked to himself. Actually quoted and answered one of his sock puppets. Maybe spotting that can be our next goal.

Comment #80949

Posted by 'Rev Dr' Lenny Flank on February 19, 2006 9:00 PM (e)

He also posted under Sir_Toejam’s name (while declaring that he wasn’t Sir Toejam).

Comment #80962

Posted by Sir_Toejam on February 19, 2006 11:28 PM (e)

He also posted under Sir_Toejam’s name (while declaring that he wasn’t Sir Toejam).

damn! i musta missed that one; or i more likely just ignored it.

I said weeks ago that I though Larry to be the nuttiest troll I personally have ever seen on PT, and while Blast is intractable, Carol is irrational, and Heddle is in his own little world, I can only say that Larry’s behavior seems to keep getting ever nuttier.

I’d say he’s gone off the deep end, but then i would have said that weeks ago, and he just keeps going…

what comes after “gone off the deep end”?

Comment #80963

Posted by GvlGeologist on February 19, 2006 11:45 PM (e)

“Posted by W. Kevin Vicklund on February 19, 2006 08:30 PM (e)

…..

Also, there’s the time he got caught by nanny-ware (hey, I just got caught for the first time in my yet to appear post re: Larry quote-mining himself) and supposedly asked a friend to post for him, then forgot to change back to his own name. Sounds a little fishy now, eh?”

Hey, who you callin’ nanny-ware?

As I recall (yes, I’m blowing my own horn here), I busted Larry for using another name for the first time. He objected vociferously that it was an innocent mistake, and I responded that IF it was an innocent mistake that I apologized (although I think I still called him on the BS in the post). Now I regret it. I hope it didn’t encourage him.

By the way, does anyone know of a way to review or find all of our old posts? I tried using the google search on the main page to find my exact post, and that didn’t come up with all of them.
Thanks!

Comment #80966

Posted by W. Kevin Vicklund on February 20, 2006 12:13 AM (e)

By nanny-ware, I meant the program that prevents your posts from immediately posting if you’ve posted too quickly. As I recall, his argument, which you caught him on, was that his friend posted it for him when it wouldn’t go through under his own name.

I’m still waiting for my listest fisking of Larry to post. Probably sometime tomorrow.

Comment #80968

Posted by 'Rev Dr' Lenny Flank on February 20, 2006 12:21 AM (e)

what comes after “gone off the deep end”?

“Deleted”, I hope.

Comment #80972

Posted by k.e. on February 20, 2006 12:39 AM (e)

Larry has also used 2 x Bill ????? and a John B and now that I think back several other “single use or low post count repeat personalities”

I might have to take back the Alan but Larry REALLY does think that the name he is currently using has some credibility. He thinks that he may be able to get away with it if he actually beleives them himself.

So when he refers to himself (to Larry) in the third person …to keep up the curtain so to speak…he is in his OWN MIND convinced that some readers will dismiss the cat calls as just wrong. Simple politics, keep repeating a lie for long enough it will become the truth.

He has been doing it almost from the very start when he couldn’t get a comment to post so he popped up complaining under a different name.

His posts under other names are so transparent that it is hard to believe an adult is capable of such a simple childish ego projection.

There is some stuff on pub-med about childhood development of ego and the use of the third person that most grow out of, but my own experience with some strong ego-centered adults that were the same when they were children, never grow out of it. And those individuals quite often have some very strange views.

It is the sort of thing where an adult can be fully functioning until their social environment changes.

I’ll bet most people that know Larry quickly find a reason to be somewhere else if he shows up. He is reduced to annoying the public services and the Courts for social contact.

The normal developmental process that adolescents make on the transition to adulthood did not happen in his case.

Larry I think David Irving may need your legal help in Vienna it looks like the court is going to spank him hard.

I have to say Lawrence Fafarman your display is the most basic of lies and indicates a moral fiber of less than zero.
In other words a lie, is a lie, is a lie and NOTHING makes it right not even the “Nobel Lie” of some religious dogma, but here we get to the good bit.

The fundamentalist dilemma:

The Fundamentalist has already dealt with the science /religion objective truth dichotomy by not worrying about whether a pre-big bang FSM wiggled his noodly appendage to prestidigitate a singularity that brought about time, space and energy remember matter did not exist at that time. (facetiously… it could be argued that the FSM did not matter, just watch the Jesuits or Dembski for that matter (giggle) make multidimensional claims for their own FSMtm)
If its in the Bible it IS FACT no questions asked like a good soldier.

When a parent lies to a child about something so basic as “where do we come from”
and that child later finds out that the parent could be wrong/lying he has to make the decision as to the validity of competing world views. Either his Parents lied to him or or the world is lying to him.

Now here is strange thing. The human child is biologically reprogrammed, that is to say, the brain physically changes during growth to carry out the functions required at various ages to accept the world view of the tribe as FACT.

The crucial step from adolescence to adulthood essentially FIXES that world view as hard as CONCRETE. THAT is WHY the Fundies are so hell bent on getting rid of anything that challenges what they consider to be FACTS. That is to say Genesis is FACT for them.

Man’s revealed knowledge to them is a lie. Not just evolution but history, archeology, geology, physics, semiotics of Myth, philosophy, economics, language, ecology, paleontology, ALL of the Art’s….. the list is as long as is human creativity.

The fundies ARE ONLY concerned with one thing “The One True Word of God” and when they get the bomb, you better believe it.

Comment #80988

Posted by B.F. on February 20, 2006 5:51 AM (e)

Comment #80919
Posted by W. Kevin Vicklund on February 19, 2006 06:20 PM

Yet when I looked at the actual ruling, the full context clearly upheld my claim that skill and experience mattered when it came to determining reasonable attorney fees.

Yeah, but all that stuff was not even in the main text of the opinion – it was in the footnotes (see Comment #80672 ). Big deal. Also, I showed in Comment #80901 that the whole rationale behind the decision was wrong, because the Senate report quote did not state that the attorney fees should not be reduced for non-profit and/or pro bono legal representatives.

your quote-mining in the earlier post is extremely dishonest.

By “quote-mining,” I presume that you mean quoting out of context. Where have I quoted out of context ?

Lawyers are paid to handle cases. In a complex case, experienced and capable lawyers are desired. Simple cases can easily be handled by less experienced lawyers. Let’s shift over to an analogy that Larry may better understand. As an engineer, I have been involved with a number of projects.

As an engineer myself, I know that junior engineers are not always given the easiest tasks, and often it is not known at the outset whether a task is going to be hard or easy.

There is no reason for higher pay rates for “complex” cases, because any complexity is going to be reflected in extra hours spent on the case.

Actually, to me, the Dover case was not complex at all, but was quite simple. Here is how different kinds of judges would have ruled on it –

Non-activist judge – Pro-ID board replaced by anti-ID board. Case is moot. Dismissed.

Semi-activist judge – former board members motivated by religion, hence 1st (purpose) prong of Lemon test is hopelessly failed. 2nd (effects) prong is moot.

Activist judge – In addition, applying the 2nd prong, “intelligent design” implies the existence of a “designer” and is therefore banned from public-school science classes. “Irreducible complexity” may be bogus science but does not mention anything related to religion and is therefore OK. There is no separation of bogus science and state.

Super-activist judge – Judge Jones’ decision.

Finally, judges take an oath to uphold the law, and in this case, that includes making sure that reasonable attorney fees are indeed reasonable. They can be disbarred, or worse, for awarding unreasonably high fees.

Federal judges are removed by impeachment and conviction, not by disbarment (this term applies to attorneys, not judges).

Good grief — with 8-9 other attorneys and several of them specialists in establishment clause issues, they couldn’t fill in for this guy on a single day?

– there was no obvious need for his expertise that day until a side issue over the admissibility of newspaper evidence came up - it appears the ACLU lawyer was less familiar with the relevant cases dealing with newspaper evidence.

Was it necessary to determine that admissibility on that very day ? The judge could have just listened to the testimony and decided later if it was admissible ( informal polls based on counts of newspaper editorials and letters to the editor are very unscientific and in my opinion should not be admissible, but Judge Jones ruled otherwise ).

Btw, it seems that Pamela Knudsen, the other ACLU lawyer, was the attorney initially contacted by the parents. It appears she acted as liaison between them and the legal team. Also, the local lawyer for the defendants was required to admit the TMLC lawyers pro hoc vise since they weren’t licensed in Pennsylvania. Just clarifying the purpose served by those two attorneys.

Egads, now we even need attorneys of record who are just “liaisons” for other attorneys. And I have no idea why a federal court would even care whether an attorney is licensed in the state where the court is located, because the federal courts use federal rules and because most of the issues that federal courts deal with are federal issues rather than state issues. And this idea that pro hac vice (the correct spelling) attorneys must be “sponsored” by a state-licensed attorney is even more featherbedding.

I was pointing out a typo that led me to a bit of confusion. You incorrectly typed “181 and 181a” instead of the correct “1981 and 1981a”. It took me a minute to figure out that it was a typo, not me missing a vital fact. If you hadn’t made that simple mistake, I would have instead merely noted that you were correct.

Well, you could have pointed out that it was a typo, instead of implying that I was only partially correct on substance.

That’s a laugh — NCSE’s participation drove costs up. No expert scientific testimony was necessary in this case. The expert witnesses should have been scheduled to testify last, and their testimony should have been canceled when the religious motivations of the school board members became clear.

the normal order of a trial is to have all of the plaintiffs witnesses testify prior to the start of the defenses case……. To delay testimony out-of-turn just because it might not be necessary is absurd!

In many trials, it is not known in advance whether a particular witness’s testimony is going to support the plaintiffs or the defense, so this whole idea of a “normal order” of a trial – “plaintiffs’ witnesses” followed by “defense witnesses” – is what is really absurd. Anyway, In this case, the order of consideration of the prongs of the Lemon test – first the “purpose” prong and then the “effects” prong – should have taken precedence over this alleged “normal order” of a trial. Also, this “normal order” – where applicable – could be followed in the testimony for each prong of the Lemon test.

Furthermore, you are requiring the plaintiffs to know ahead of time what a judge is going to rule. In particular, the establishment of the religious motivation relied heavily on the reporters testimony, and they hadn’t even been deposed prior to the start of the trial. The reporters could have refused to testify - in fact, they were trying to get out of testifying - and the judge was not going to permit them on the stand unless the defense got a chance to depose them.

To hell with the depositions – where is it written that every witness must be deposed first ?

“I think that the bill in Congress to bar the award of attorney fees in establishment clause cases has a fair chance of passing.”

And how many times has a similar bill been defeated since the 1976 act?

I have no idea – maybe you could tell me. All I know is that the ACLU et al. have become increasingly bold in abusing the 1976 act in regard to establishment clause issues, and one of these days the ACLU et al. may kill the goose that lays the golden eggs. I was disturbed that the ACLU put pressure on Los Angeles County to remove a cross from the county seal.

And reasonable attorney fees actually prevent a winning attorney from “soaking” the loser.

These “reasonable” attorney fees are how a winning attorney “soaks” the loser.

I amply demonstrated, especially in regards to Blum v. Stenson, you have utterly failed to properly explain, debunk, or analyze legal issues.

On the contrary, I showed in Comment #80901 that the whole basis of the Blum v. Stenson decision was in error.

Comment #80993

Posted by k.e. on February 20, 2006 6:42 AM (e)

B.F. Who is really “super activist” Lawrence Fafarman
bitches and wheezes.
Lawrence Fafarman
you are nothing but a tiresome boring old fart go away and die.

Comment #81036

Posted by Corkscrew on February 20, 2006 12:18 PM (e)

Larry, still lying about his identity wrote:

I was disturbed that the ACLU put pressure on Los Angeles County to remove a cross from the county seal.

Would a fundamentalist Christian be happy with the situation if the seal was an inverted pentacle or equivalent Satanic symbol? I seriously doubt it. Would they be keen on it being a Star of David or an Islamic star and crescent? Probably not. So why should any of those other religious groups be happy for the government (that their tax dollars help fund) to be represented by the symbol of what they believe to be a false religion?

Comment #81066

Posted by B.F. on February 20, 2006 2:53 PM (e)

Comment #81036
Posted by Corkscrew on February 20, 2006 12:18 PM

“ I was disturbed that the ACLU put pressure on Los Angeles County to remove a cross from the county seal. “

Would a fundamentalist Christian be happy with the situation if the seal was an inverted pentacle or equivalent Satanic symbol? I seriously doubt it. Would they be keen on it being a Star of David or an Islamic star and crescent? Probably not. So why should any of those other religious groups be happy for the government (that their tax dollars help fund) to be represented by the symbol of what they believe to be a false religion?

Corkscrew, you limey hypocrite, what do you think the British Union Jack entirely consists of ? The crosses of St. George, St. Andrew, and St. Patrick. All religious symbols.

The cross in the LA county seal was just a historical symbol recognizing the role of the Spanish missions in the history of the county. This cross was never intended to represent anything else.

Comment #81069

Posted by Shirley Knott on February 20, 2006 3:03 PM (e)

Oh, yes, Larry, tell us more – tell us in great detail how the efforts of the missionaries are worth celebrating and preserving. Slavery, de facto and de jure, are so very much a part of your pride in your heritage.
This should be rich…

hugs,
Shirley Knott

Comment #81075

Posted by GvlGeologist, FCD on February 20, 2006 3:54 PM (e)

I’m really beginning to be concerned about Larry. I think he’s really beginning to show signs of mental illness. Look at these last couple of posts:
From Corkscrew:
————————————-
Comment #81036
Posted by Corkscrew on February 20, 2006 12:18 PM (e)

Larry, still lying about his identity wrote:

I was disturbed that the ACLU put pressure on Los Angeles County to remove a cross from the county seal….….
————————————-

And then, by “B.F.”:

————————————-
Comment #81066

Posted by B.F. on February 20, 2006 02:53 PM (e)

Comment #81036
Posted by Corkscrew on February 20, 2006 12:18 PM

“ I was disturbed that the ACLU put pressure on Los Angeles County to remove a cross from the county seal. “

…….
————————————-

“B.F.” repeated Corkscrew’s post verbatim, EXCEPT for the line, “Larry, still lying about his identity wrote:” He isn’t even denying it, he’s just ignoring it. Very strange. Does he have multiple personalities?

Hey Larry, why are you posting under multiple names? You’re obviously not fooling anyone. What are you trying to prove? Do you think you’re clever? It’s not entertaining, it’s pathetic.

Comment #81079

Posted by Arden Chatfield on February 20, 2006 4:12 PM (e)

I’ve also noticed that even since we’ve all started publicly started drawing attention to Larry’s unique Multiple Personality Disorder, he’s starting to get much more crabby and insulting. If you look back on his messages from late December/early January, he seemed to be doing a better job of holding that in check. But the odd thing is, even tho the cause of his increased irritability is totally obvious, he still hasn’t ever acknowledged the cause even once – and he’s STILL posting under multiple aliases. This is very freakish. I’m starting to think he honestly can’t control himself.

Comment #81092

Posted by Rilke's Granddaughter on February 20, 2006 4:54 PM (e)

I’ve also noticed that even since we’ve all started publicly started drawing attention to Larry’s unique Multiple Personality Disorder, he’s starting to get much more crabby and insulting. If you look back on his messages from late December/early January, he seemed to be doing a better job of holding that in check. But the odd thing is, even tho the cause of his increased irritability is totally obvious, he still hasn’t ever acknowledged the cause even once — and he’s STILL posting under multiple aliases. This is very freakish. I’m starting to think he honestly can’t control himself.

No, he did allude to it once, under one of his many, many, many aliases; he basically said that only a fool would admit to posting under multiple names, and that I should simply shut up about it, since that would make innocent folks worried that they were going to be accused of posting under multiple names, and so they would have to it to avoid persecution.

It didn’t make much sense at the time; but it does contribute to the idea that Larry/Andy/SP/AC/Keely etc. has some serious health issues. His obsessive research on legal issues that no one cared about or bothered to accept in court is simply part of it.

Lonely or ill. Take your pick.

Comment #81159

Posted by RBH on February 20, 2006 8:45 PM (e)

This thread has apparently run its course. Thanks, folks.

RBH