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[Phys-L] Re: intelligent design +- elections



On Thu, 10 Nov 2005, Hugh Haskell wrote:

At 11:29 -0600 11/10/05, Jack Uretsky wrote:

It is not at all obvious that the plaintiffs are going to win
this case. If they do win in the District Court, I'm sure there will be
an appeal. If the new Board rescinds the actions of the old board, the
case may well be dismissed as moot. I've not seen the Complaint, so I
don't know what the Plaintiffs have asked for. Defendants' attorneys
strike me as highly competent.

Why would there be an appeal if the new school board is made up of
those who believe that the policy that led to the suit in the first
place was misguided, including at least one of the plaintiffs?

An appeal occurs when a court reaches a decision and a party
adversely affected by the decision believes that the decision could be
reversed or modified by an appellate court.


If the plaintiffs win, and the new board agrees with the decision, I
doubt they would undertake an appeal just to clear up the issue,

If the plaintiffs win then they would not be entitled to an
appeal.

and
I doubt that the thomas More folks would be willing to take that one
on on behalf of the board--maybe there might be some third parties
who would be willing to assume the pro ID side and carry the case on,
but I have no idea how that sort of a transition would work, or if it
is possible.

My understanding of defendants' strategy is that it is based on
getting the intelligent design issue into the Supreme Court. I reach this
conclusion on the basis of the side issues that defendants are raising in
the District Court.


If the defendants win, then the new board is in a bit of a sticky
wicket, it seems to me.
If defendants win and the case is not moot - a very big if - then
plaintiffs are entitled to an appeal, which they undoubtedly will take to
prevent a future board from putting intelligent design into the
curriculum.

They could just rescind the policy and let
the matter drop, but there would be this pesky precedent out there
that could give them trouble later on,

This thought is roughly correct, despite the inartful language.

or they could encourage the
original plaintiffs to pursue the appeal which they would not bother
to defend. Or???

But my primary question had to do with the winning side recovering
legal costs from the losing side. I can't think of a way that this
wouldn't cost the board money, unless the judge finds for the defense
and they then support Thomas More in going after the plaintiffs for
compensation, but this would essentially mean that the defense
attorneys would now be suing the people who now make up the board for
recovery of legal expenses . . . I'm getting dizzy.

If "legal costs" is intended to include attorney's fees, then the
general rule in this country is that each side bears its own, regardless
of outcome. The exceptions include suits filed under certain statutes
that empower a trial court to award attorney fees to a "prevailing party".
It is left to the (reviewable) discretion of the trial judge as to whether
there is a "prevailing party" in such cases.
Other costs of litigation, such a filing fees, are automatically
awarded to a party that has prevailed on all issues before the court.
Witness fees may be included in such costs, subject to the court's
determination of reasonableness.


Hugh
--

Hugh Haskell
<mailto:haskell@ncssm.edu>
<mailto:hhaskell@mindspring.com>

(919) 467-7610

Never ask someone what computer they use. If they use a Mac, they
will tell you. If not, why embarrass them?
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******************************************************



Regards,
Jack
--
"Trust me. I have a lot of experience at this."
General Custer's unremembered message to his men,
just before leading them into the Little Big Horn Valley
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