Ungrateful Cobb County school board stabbed its law firm in the back

I have learned that the law firm that represented the wimpy Cobb County board of education in Selman v. Cobb County generously represented the board for free in the appellate phase of the case. An attorney from the law firm succeeded in getting the case remanded to the district court on terms very favorable to the board. Yet the board decided to throw his free work out the window by copping out and caving in to the plaintiffs. Furthermore, the board spurned other offers of free legal help. The least that the board should do now is compensate the law firm for the value of its appellate services that the board wasted by copping out.

Also, the school district could have easily afforded an attorney fees award to the plaintiffs if the board eventually lost the case in court. Cobb County has a population of about 660,000, dwarfing the 22-23,000 (2000 census) population of the Dover Area school district, which paid $1 million in attorney fees to the plaintiffs in Kitzmiller v. Dover.

A news article reported,

Last May, the appellate court sent the case back to the lower court for more fact finding and did away with the lower court ruling. It was back to square one. Failing a settlement, a new trial was a possibility, setting the legal meters running again. The school district's bill for attorneys fees reached $276,402 [total for both plaintiffs' and defendants' attorney fees] and would have gone higher -- by as much as $100,000 -- if the school system's legal firm, Brock Clay, had not taken on the appeal of the case in U.S. District Circuit Court for free.[correction -- "district" is extraneous -- it is just the circuit court of appeals. District court is the lower court].

Over four years, the school system paid the Marietta law firm $109,743 to defend its decision to attach stickers to the biology textbooks. In the settlement agreement U.S. District Judge Clarence Cooper signed Tuesday, the board agreed to pay another $166,659 toward attorneys fees of the five parents who sued the district . . . .

Linwood Gunn, an attorney with Brock Clay who represented the district in the case, said the $166,659 is about one third of the plaintiff's legal fees, which were close to $500,000.

Legal fees were a factor in the board's decision to appeal. "If we hadn't appealed Judge Cooper's decision, the board would have owed some $200,000 in plaintiff's attorneys fees," Gunn said.

But Gunn said the primary reason the school board decided to press its case had more far-reaching implications. "We felt Judge Cooper's order was incorrect. If the order was allowed to stand, it would have restricted the school board's ability to set its own curriculum, and school boards' across the state. We didn't feel like we could live with that order."

Gunn said the board's goal was not to return the stickers to the textbooks. "That was never our objective," he said.

Gunn said his firm handled the appeals case without charge because the firm felt that Cooper's ruling would set a negative precedent for Cobb and other school districts in Georgia.

"We felt it was worthwhile to do an appeal. We felt we had a good chance of success and didn't want the lower court's opinion to stand. We felt it was bad law. The Cobb County School District has been a long-standing client of ours and felt it was an important case to take to the next level." . . . .

The school board rebuffed other offers of help with legal expenses and legal expertise from around the country. The Scottsdale, Ariz.-based Alliance Defense Fund, a powerful Christian legal group, was among those that offered help.

Also, Selman v. Cobb County was considered to be an important test case and a lot of people were counting on Cobb County to hang in there. Probably other jurisdictions wanted to adopt similar stickers but were waiting for the outcome of the Cobb County case. The states of Alabama and Texas and others submitted amicus briefs in support of the school district. The Cobb County board of education should have recognized that it was not just representing itself but was also representing a lot of entities and people outside the school district. Cobb County's cop-out pulled the rug out from under a lot of people.

In vacating the decision and remanding the case, the appeals court said,

In remanding for additional evidentiary inquiry and new findings, we leave it to the district court whether to start with an entirely clean slate and a completely new trial or to supplement, clarify, and flesh out the evidence that it has heard in the four days of bench trial already conducted. (page 34)

On what basis could the plaintiffs have won again in the District Court? The missing evidence that was the basis of the original decision and the reason for the remand was not likely to be found. And what about a completely new trial? Intelligent Design and the book Of Pandas and People were the big issues in the Kitzmiller v. Dover decision, but neither ID nor the book were mentioned on the Cobb County textbook stickers.

Lists of articles and court documents about the case are here, here, and here (this is a list of articles as well as a timeline). Other articles are here, here, here, and here. The board's cop-out is discussed on Uncommon Descent, with readers' comments.

BTW, I cannot understand why remanded cases in the federal courts are automatically reassigned to the judges who originally decided them. A judge is of course likely to try to justify his/her original decision. In the California courts, the party that lost the original decision has the option of requesting that the remanded case be assigned to a different judge. Also, another difference between the federal courts and the California courts is that in the latter the parties have the right to a one-time "peremptory challenge" of a judge selected at random.