Thursday, July 31, 2014

Making Sense of the Trial in South Carolina

In trying to make sense of the trial in South Carolina (which I did not attend, but know only from the reports of those who did), I noted certain pervasive themes.

First, the trial was a clash of diametrically opposed camps. Bishop Lawrence, his parishes and his Diocese were focused on going forward with their evangelical mission; the lawsuit was a drag on their ability to do so. Bishop vonRosenberg and his Episcopal Church (USA) were obsessed with looking back – to what they viewed as a hierarchical structure from the outset; to the prerogatives of national power that are concomitant to such a structure; and especially to the power wielded collectively by the House of Bishops, and by the Presiding Bishop in their absence.

Second, the trial was a clash of legal strategies dictated by the law of South Carolina. This case came to trial against the background of the South Carolina Supreme Court’s 2009 decision in All Saints Waccamaw Parish v. The Episcopal Church, a case I analyzed in this earlier post. The Court held two things: first, that a religious body who followed its own procedures, and South Carolina law, in amending its governing documents could not have those amendments declared void in the absence of superior church laws or rules forbidding such amendments, and which were in place before the dispute arose; and second, that the only kind of a religious trust that could have any effect under South Carolina law was one declared in a writing signed by the owner of the property being placed in trust – and not by the national church unilaterally, in its role as a putative beneficiary of any such trust.

Both holdings were premised on the declaration that South Carolina courts were to follow “neutral principles of law” in resolving church property disputes, and not by deferring automatically to determinations made internally by church bodies or personnel who were not the “highest judicatory bodies” in that church.

Given this backdrop, the strategy pursued by Bishop Lawrence and his attorneys was to emphasize the absence of any language of limitation or deference in the governing documents of either the diocese, or of its member parishes, and to show how they followed their own governing procedures in voting to leave the national Church. But the strategy pursued by ECUSA and its attorneys was designed to try to fool the trial court into thinking that this was not a dispute over property at all, but was instead a fight over opposing religious doctrines. (The First Amendment prohibits secular courts from getting involved in such disputes, and so ECUSA hoped that by painting the matter that way, the court would be forced to accept ECUSA’s designation of who were the true successors in interest to Bishop Lawrence’s diocese, once it voted to leave.)

To her great credit, Judge Goodstein refused to be baited into the trap which the defense steadfastly set for her with their objections, arguments, and proffered witnesses and testimony. Time and again she emphasized that her hands were bound by the All Saints Waccamaw decision, and that she could proceed upon no other ground except that dictated by neutral principles of law – which is to say, the ground upon which each and every other kind of property dispute is resolved in South Carolina courts of law. The remarkable thing is that I see no possible advantage to the strategy pursued by the defense, whether on appeal in the state or federal courts. One cannot get around the Waccamaw decision; on can only confront it head-on. By failing to do so during the fourteen days of trial, ECUSA pretty well conceded its own case.

Third, the trial was a battle over image. ECUSA was fighting over its brand as the church of America’s wealthy and powerful elite, whose roots go back to before the Revolution; Bishop Lawrence’s diocese was fighting for its place in the traditions of Anglicanism – which equally go back to before the Revolution. For ECUSA, other Anglicans must simply get used to what it does, because it claims to be the only legitimately Anglican franchise in America; for +Lawrence and his Episcopal (“bishop-led”) Diocese, ECUSA’s brand of Anglicanism is no Anglicanism at all – one needs to distance oneself from it as fully as possible, by claiming solidarity with GAFCON and similar Anglican groups.

Fourth, the immediate stakes were the money and the property – but in the final analysis, the real issues were power and authority. Bishop Lawrence and his diocese confined their initial lawsuit just to a claim against ECUSA to quiet title to their property, and prevent infringement of their seal and trademarks. Later, after the rump group (“ECSC”) formed, it was added as a defendant, because it was calling itself the “Episcopal Diocese of South Carolina.” Because of statements from 815 that the Church would seek to oust all of Bishop Lawrence’s congregations from their individual parish properties, thirty-five of those parishes joined as co-plaintiffs in the lawsuit to quiet title. True to form, ECUSA and ECSC then counterclaimed against each of the parishes, plus against each of their rectors and vestry members individually.

The naming of all those individual counter-defendants was a brazen attempt to intimidate them, by showing that ECUSA would spare no expense in forcing them all into court, and in trying to ruin them financially. There were no good legal reasons for multiplying the number of individual defendants, as ECUSA showed when it failed to update the status of each of them as old members rotated off their vestries, and new members came on. (Those who were no longer members still remained as named parties, while those who became new vestry members were not added.) The sole point was to name a whole bunch of individuals, and inconvenience them, and not to ensure that they had anything actually to do with the parishes.

By filing first in the State Circuit Court, and by obtaining a temporary restraining order at the outset, Bishop Lawrence and his attorneys had seized the initiative, and had placed ECUSA’s attorneys on the defensive. The latter sought to regain the initiative by filing a trademark infringement lawsuit in federal district court, and by noticing the removal of the main action from State to federal court. Once again, these moves multiplied the legal costs enormously – for no good legal reason other than to resort to sheer power in an attempt to gain the upper hand.

This made the defeat of ECUSA’s federal strategy even more significant, when Bishop Lawrence’s attorneys slowly but steadily persuaded the federal courts that they did not need to intervene, and to send the whole matter – trademarks and all – back to State court. At that point, ECUSA’s strategy became one of delay, delay and more delay, in an attempt to continue to run up the legal costs for Bishop Lawrence and his parishioners. And by deliberately and transparently seeking to delay the actual trial, ECUSA and its attorneys began to lose any credibility they may have had in the trial court.

Thus the trial had to open a day late, all because ECUSA delayed taking the parish depositions (remember those parishes they considered it so important to sue individually?) until the last possible minute in an effort to force the judge’s hand. Needless to say, that tactic earned them no points in the judge’s eyes. Yet the trial began on Tuesday, July 8 with Judge Goodstein energetically delving into the details of the dispute with Bishop Lawrence’s first two witnesses: his Chancellor Wade Logan, and his Canon to the Ordinary, the Rev. Jim Lewis.

After the opening witnesses laid the ecclesiastical and canonical framework for the lawsuit, there followed four days of testimony from witnesses for the individual parishes. Their questioning quickly fell into a pattern of going through their deeds, articles and bylaws, and Judge Goodstein had the parties expedite the testimony by stipulating to the admissibility of all the documents.

On Day 6 of the trial (July 15), ECUSA and its rump diocese finally got to begin their portion of the case, and the mood shifted almost immediately. They called three irrelevant witnesses – irrelevant, because their testimony was all directed toward the conduct of Mark Lawrence as the bishop of the Diocese. The case was not about Bishop Lawrence’s conduct; it was about the acts of the diocese and its parishes in deciding to leave ECUSA. But the dissidents had begun this sorry affair by personalizing their disgruntlement with Bishop Lawrence, and they just could not let it go.

On Day 7, ECUSA finally got to the meat of the matter by calling an acknowledged expert in South Carolina’s religious and non-profit corporations law, Professor Martin McWilliams of the University of South Carolina law school. He offered an elaborate theory as to why the diocese’s vote to secede from the national Church was invalid under South Carolina law: according to him, the diocese incorporated the national Church’s constitution and canons into its articles by reference, holus bolus, when it simply mentioned them in passing. Then, because the national governing documents (as amended from year to year) were part and parcel of the diocese’s corporate articles, it could not change those articles in any manner that was inconsistent with the Church’s governing documents.

This theory, however, had a hole in it so wide that one could drive a truck through it, and it was a simple matter for Bishop Lawrence’s counsel, on their cross-examination of Prof. McWilliams, to discredit it completely. First Prof. McWilliams conceded that there was no language in the national governing documents – even if they had been incorporated into the articles by the brief reference to them – which forbade a diocese from seceding, or from amending its articles in any manner whatsoever. And with that concession, any effect Prof. McWilliams might have had with his testimony was finished. For he next had to concede that the Diocese was wholly within its rights under South Carolina law when it amended its articles so as to remove its language of accession to the national Church.

After that major concession, the case for ECUSA and its rump group never regained its momentum, and their attorneys became ever more desperate in their tactics as they tried to recoup lost ground. On Day 8 they tried to call an expert witness they had not bothered to disclose by Judge Goodstein’s deadline, and she blocked the testimony after giving the hapless attorney trying to introduce it a good tongue-lashing for disregarding her rules.

Then the attorney compounded his offense by trying to sneak the excluded witness’ report (which addressed the supposed confusion brought about by the use of the name “Episcopal” in connection with both groups) by attaching it to the report of the next expert who was disclosed, and who was therefore allowed to testify. Judge Goodstein ordered him to take the report out from the exhibit, and not to refer to or mention any of its contents – for which I understand ECUSA had paid the expert approximately $1 million – ever again in her courtroom.

Still another undisclosed expert – the well-known South Carolina historian, Prof. Walter Edgar – was prevented from opining about any significance of the innumerable facts and documents about which he did testify. This left his testimony unexplained and unhelpful, like a map without place names or a legend.

All went downhill from there. Witnesses called to discredit Bishop Lawrence further (Bishop Clifton Daniel, Thomas Rickenbaker, and Bishop vonRosenberg) ended up adding to the credibility of his case – by again admitting that no language in the governing documents prohibited what his diocese had done, and by casting aspersions on his character that were easily deflected on cross-examination.

On Day 12 (July 23), the defense rested, and plaintiffs commenced their case in rebuttal, which was scarcely necessary after the immateriality of the defendants’ proffered case. Perhaps the nadir of the defense attorneys’ relationship with Judge Goodstein came on the next to last day of the trial (Day 13), when ECUSA co-counsel Mary Kostel tried to lecture Judge Goodstein about how she was “bound to accept” the truth of the Church’s preliminary certification that Bishop Lawrence had “abandoned the communion of this Church”. In proffering the exhibit during the defense case, Ms. Kostel had characterized it as a “final” decision against Bishop Lawrence.

But on Day 13, she made the mistake of crossing swords over the document with Bishop Lawrence’s Chancellor Wade Logan, who knows his canon law. He explained to the court that the document was only a preliminary finding on the route to deposition, and that only the House of Bishops could find actual abandonment after a hearing on the charges. When Judge Goodstein finally understood how Ms. Kostel, as an “officer of the court,” had misrepresented the nature of the document to her – a mischaracterization she had the temerity to repeat in her arguing the effect of the document – the steam began to come out of Judge Goodstein’s ears. She abruptly banged her gavel and ordered local counsel to take Ms. Kostel out of the courtroom and instruct her in her duties as an officer of the court, admitted only as a courtesy for the duration of the trial.

The next day, the trial finished without further incident, and with the testimony of Bishop Lawrence. He was easily able to refute the charges that he had plotted all along to take his diocese out of the Church (as though those charges were even relevant to the issues Judge Goodstein has to decide). It was perhaps a mark of how low the defendants’ mood and energy had sunk when his cross-examination by the Presiding Bishop’s Chancellor, Mr. David Booth Beers, ended on a pleasantry after a mere ten minutes of fencing, and without scoring any points.

Judge Goodstein now has the case on hold while the parties submit simultaneous opening and reply briefs over the next sixty days. After the briefs come in, she will take the matter under advisement, and probably issue her written decision within another thirty to sixty days, i.e., by Thanksgiving or thereabouts. For the multiple reasons I have summarized above – but especially because the gist of those reasons appears wholly to have gone over the defense’s collective heads – I expect Judge Goodstein to find in plaintiffs’ favor, and award them their properties, trademarks, and bank accounts free and clear of any claims by EC USA or its rump group. Indeed, ECUSA has yet formally to admit the latter as a full-fledged diocese under its much-touted Constitution and Canons. Why, indeed, should anyone respect those rules, when ECUSA cannot do so itself?



Friday, July 25, 2014

Illinois Appellate Court Affirms Judgment for Anglican Diocese

On July 24, 2014 the Illinois Appellate Court for the Fourth District filed its opinion in the appeal taken by the Episcopal Church (USA) from a judgment entered against it by the Hon. Thomas J. Ortbal in September 2013. The three justices on the panel joined in a twenty-page decision that affirmed Judge Ortbal's judgment in all respects: the (Anglican) Diocese of Quincy properly amended its governing documents so as to secede from ECUSA and cease being a member diocese in 2008; the real and personal property remained with the withdrawing diocesan corporation under Illinois law, and neither was subject to any express or implied trust claims by ECUSA; and ECUSA could not, after the Diocese had completed its vote to withdraw, purport to remove the diocesan trustees or officers and replace them with people from its remnant group that decided to stay with the national Church.

The opinion by the appellate court is a model of clear reasoning, and needs little commentary to be understandable by a lay person. It begins by explaining precisely how the dispute came about, and traces the facts up to the time of the original lawsuit brought by the Anglican Diocese after ECUSA's attorneys had persuaded the Diocese's bankers to put a freeze on all of its funds on deposit with them.

Then the opinion summarizes the proceedings leading to, and evidence offered at, the trial before Judge Ortbal in April and May of 2013. The key testimony was mostly received on the question of whether or not ECUSA could be said to be a "hierarchical" church with respect to its member dioceses.

Readers of this blog have known the answer to that question for a long time. ECUSA, the national Church, likes to claim that dioceses do not exist apart from the national Church; but the truth runs the other way: the national Church would be nothing without its member dioceses -- and particularly those pre-existing dioceses corresponding to the former Church of England in each of nine former colonies. Representatives from those nine dioceses (referred to at the time not by the word "diocese", but rather as, e.g., the "Protestant Episcopal Church in the State of Maryland") met together in Philadelphia and New York over a five-year period beginning in 1785, and eventually agreed to come together in a General Convention ("calling together") of all of their nine separate churches in a deliberative body that could adopt uniform standards of worship and discipline to be shared among all of them.

Thus it was individual State churches that brought the national "Church" (denomination) into being, just as it continues to be the individual dioceses (several of which may exist side-by-side in any one State today) that continue to make up its membership, and to send representatives to its triennial national meetings ("General Convention"). The analogy is properly to a conglomerate like the American or National League, made up of the individual teams who are their members; or to the United Nations, a confederation of individual sovereign states; or (on a very local level) to a book club, whose members come together once a month at each others' homes.

In all such cases, the organization may be viewed as a separate legal entity from its individual members, but the defining characteristic is that the organization would amount to nothing without those individual members. Under our First Amendment, members of such groupings are free to withdraw from membership at any time -- and if all members withdrew, the organization would cease to exist.

So it is with ECUSA, ever since its founding in 1789: its members came together initially to agree on the governing documents, called the "Constitution and Canons"; and have met roughly every three years since as a legislature to hear reports from members, and to approve new canons and resolutions as the members may collectively agree upon.

As such, ECUSA has at the top of its structure only a legislative body (General Convention). People who argue that ECUSA at the national level is "hierarchical", on the model of the United States of America, forget that unlike America, ECUSA lacks both a judicial and an executive branch at the national level. (Its Constitution also lacks -- deliberately so -- a Supremacy Clause.) And its legislative branch -- again unlike America's -- meets for only 8-10 days every three years -- which is to say, less than one percent of the whole time for which it is elected.

Once it adjourns, General Convention typically never comes together again in the same form, ever again. It has no powers of enforcement against Dioceses, and no ability to judge a dispute between dioceses, or between a diocese and ECUSA itself. As a legislature, General Convention never sits as a court, to hear evidence and witnesses, or to issue opinions on matters of ecclesiastical and canon law.

So it should not be remarkable that the Illinois appellate court took note, in its opinion, of this expert testimony from Dr. Jeremy Bonner offered at the trial (pp. 8-9):
Q. In your opinion, can a religious organization which lacks a constitutionally established executive and judicial function[, and] which has no language of supremacy in its constitution, function as an hierarchical church? 
A. I do not see how. 
Q. How can [the Church] then enforce its canons against a member diocese? 
A. It can't. It can express its displeasure and can exert moral outrage and attempt to persuade its dioceses of the need to change, but recent disputes have shown the limitations of that strategy.
And this is precisely the weakness of ECUSA's strategy as it is being played out in the courts of Texas, California and South Carolina. It pretends to have a "three-tiered, hierarchical structure," when the reality is that there are just the member dioceses at the top, who act and decide matters through their triennial conventions. The rest of the time (more than 99% of it), the individual dioceses are what makes up the national denomination, and which deal with its day-to-day affairs and interface, through their bishops, other clergy, and manifold parishes, congregations and missions, with the churchgoing public, and with the outside world.

The Illinois appellate court not only found that ECUSA was not "hierarchical" at the topmost level, but because Illinois courts apply "neutral principles of law" to church property disputes, it also found that the issue of "hierarchy" was irrelevant to its decision of the case. The deed to the Diocese's real property stood solely in its own name ever since it was first granted, in the nineteenth century. And the names of the bank accounts, together with the written custodial agreement between the diocese's bank and the diocesan corporation, did not have ECUSA anywhere as a party, co-owner, or trustee; nor did they mention ECUSA in any respect.

On this basis therefore, the appellate court had no difficulty in unanimously affirming the Judgment given by Judge Ortbal. Along the way, it also held that ECUSA could not substitute its Diocese of Chicago into the case to replace its former rump group of Quincy, which merged into the Diocese of Chicago just before Judge Ortbal came out with his findings and decision. ECUSA, the court ruled, had not taken an appeal from Judge Ortbal's denial of the motion to substitute, and so it had no appellate jurisdiction to rule on the matter now.

This aspect of the decision probably diminishes significantly the chance that any further or higher appeals will go anywhere. The one ECUSA group that could have taken title to Quincy's real property and bank accounts no longer exists, and is no longer a party to the case. (As a New York religious association, originally formed at common law, ECUSA itself cannot hold title to any property, real or personal; it has to do so through its New York corporate counterpart, the Domestic and Foreign Missionary Society.) Thus there is no longer any effective appellate relief that could be granted, and any further attempts to appeal by ECUSA alone should be dismissed as moot.

Of course, that fact will not deter ECUSA from trying. It could ask next for a "petition for rehearing" by the full appellate court, or it could file a petition for leave to appeal the decision to the Illinois Supreme Court (of which only about 4-5% are granted). The former would most likely be quickly denied, given the unanimous panel's decision, but the Illinois Supreme Court could take from six to nine months to dispose of or dismiss the latter.

At some point, the freeze on Quincy's bank accounts will be lifted, and the Anglican Diocese will be able to resume its mission without being dragged down by the uncertainties of litigation. The dragon has been slain, and while it may have a few last gaps, its demise is simply a matter of time.



Monday, July 21, 2014

S. Carolina Day 10: When Will ECUSA Start to Play by the Rules?

Why are ECUSA and its attorneys so incapable of following the rules? Could it be that the lawlessness of 815, as aided and abetted by its attorneys, has now infected ECUSA's ability to present a civil case under the rules of court in South Carolina?

From first appearances, that would seem to be the only conclusion to draw from today's proceedings. First, let me use the account from the Episcopal Diocese's Press Office to provide the necessary background for what I shall go on to explain, and then I will put things into context:

DAY 10: DIOCESE OF SC v. THE EPISCOPAL CHURCH

TEC Attorney Admits TEC Constitution Does Not Prevent a Diocese From Leaving the Denomination

Judge Refuses to Consider Evidence about Whether TEC is Hierarchical


ST. GEORGE, SC, JULY 21, 2014 – An attorney for The Episcopal Church on Monday acknowledged that – despite TEC’s repeated claim that dioceses may not leave the denomination – there is nothing in the group’s constitution that specifically prohibits such a disassociation.

“It’s true it doesn’t say whether a diocese in the U.S. can or cannot [leave],” said Mary Kostel, attorney for TEC. “It’s arguably ambiguous.” [Ed. Note: Ms. Kostel could scarcely expect that such an outlandish remark on her part should be allowed to pass without editorial comment. What she is saying is that the absence of a specific prohibition in a governing document makes it somehow ambiguous as to whether or not the drafters still meant to prohibit the act they specifically did not prohibit. Example: The First Amendment does not contain any express language about a person's "freedom to disassociate from a group." So such a "right" must be "ambiguous" -- because it was not made express in the language of the Amendment -- and thus whether such a right actually exists is up to Congress to decide. Contrary to Ms. Kostel, what the courts have always held is that the First Amendment's "freedom to associate" necessarily embraces a corresponding "freedom to disassociate." The question of "ambiguity" in such a case does not even rise to the point of being debatable.]

The comment came during the 10th day of trial in suit to prevent TEC from seizing the property of the Diocese of South Carolina and its parishes. Much of the morning was spent in a discussion between attorneys and Judge Diane S. Goodstein about the admissibility of testimony by historian Walter Edgar, a professor at the University of South Carolina.

Though Edgar was not identified as an expert witness [my emphasis -- Ed.], TEC wanted him to testify about his expertise and provide opinions on the hierarchical nature of TEC and to demonstrate that it has authority over its dioceses and parishes. But Judge Goodstein denied that he would be allowed to.

This is the second time in this trial that TEC failed to follow the rules on the use of witnesses. “When he shifts from saying ‘this is what it says,’ to ‘this is what it means’ we’ve crossed into expert testimony,” she said.

Judge Goodstein acknowledged that she understands TEC’s attorneys want to introduce the idea of a hierarchical denomination in order to pave the way for an expected appeal. However, she made clear that the claim is irrelevant to the case under South Carolina law.

“Let me be very clear that in every way the defendants [TEC attorneys] have done everything within their ability to establish the hierarchal nature of this church. I accept that,” she said. “Our courts have said we will not enforce the hierarchical decisions. We’re a neutrality state.” [Ed. Note: The Judge is on solid ground here. The Supreme Court of Carolina, in the All Saints Waccamaw decision, came down clearly against deference to hierarchical tribunals (i.e., as in Watson v. Jones), and in favor of the more recent "neutral principles" standard of Jones v. Wolf. ECUSA's attempt to put South Carolina back into the earlier deference camp is a non-starter. As a trial court Judge, Judge Goodstein is required to follow the Supreme Court's precedents -- she has no discretion if those precedents are on point. ECUSA itself had a full opportunity to argue for its "deference" standard in the Waccamaw case -- and it lost that argument at the highest level. So how can it possibly hope to persuade Judge Goodstein to acquiesce in its attempt to disregard what the South Carolina Supreme Court decided -- in a case, I repeat, in which ECUSA had full opportunity to argue as it is trying to do now? One of the hallmarks of the law is that, unlike a popular audience, it does not listen to you when you keep trying to go back to the same losing argument over and over again.] The afternoon was spent with Edgar literally reading highlighted excerpts from numerous journals of the Diocese of South Carolina [see his report linked earlier], showing that the Diocese participated in TEC activities and adhered to its rules while the Diocese was a member of the denomination. The diocese has never disputed that fact.

In fact, during the morning discussion before Edgar even began his testimony, Diocese of South Carolina attorney Henrietta Golding said, “If you’re a member of a club or fraternity, you abide by the laws. …There’s no relevance that the Diocese followed the Constitution and Canons. They were together at that time. There’s no significance because a party to this action followed the rules. We were members then.”

Edgar also spent some time testifying about individual financial contributions TEC had sent to the diocese and its parishes through the years. While he never mentioned a total number, after reading page after page of excerpts, it was clear that the denomination had provided several thousands of dollars.

However, when asked in cross-examination by Alan Runyon, lead attorney for the Plaintiff, Dr. Edgar testified that he had not been asked to, nor did he attempt to, see how much money the diocese had voluntarily given to TEC during the same time TEC says the Diocese received grants and loans "It could even be 900 percent more than you testified TEC has given over the same period and you do not know because you did not ask?" Runyan said.
I am still shaking my head over this report. I find it difficult to believe that ECUSA, the ECSC, and their collective attorneys could think that they would be allowed to call another witness to the stand to give "expert" opinions after they had failed to disclose him as an expert witness to their opponents, or to Judge Goodstein.

Professor Walter Edgar is an acknowledged authority on South Carolina history. The report he prepared for "disclosure" to the plaintiffs is replete with passage after passage he has pulled from historical documents pertaining to the Diocese of South Carolina, in order to demonstrate how, in his view, the Diocese always took note of, and followed the Constitution and Canons of what was then the Protestant Episcopal Church in the United States of America, or PECUSA.

But at the end of his expert report, there comes this amazing passage:
I will use my expertise as a professional historian to give a proper analysis and interpretation of any of the voluminous documents that are involved in the factual history I have been asked to present. I will render an expert opinion whenever necessary to explain the context of the history of the Diocese as it relates to these matters.

It would be impossible for me to list each and every expert opinion I might be required to render because such will depend upon issues raised by the Court and counsel in search of correct interpretations of the documents I am asked to inspect.
In effect, this passage asks the court to extend the witness carte blanche to render any opinions he sees fit to give -- without the necessity of alerting the other side in advance, so as to allow them to prepare for his cross-examination.

Needless to say, those are not the rules. The purpose of expert discovery in the first place is to (a) pin down the other side's expert to specific, articulated opinions -- which may then be subjected as necessary to the cross-examination required to test their merit; and (b) to avoid any element of surprise at trial when the expert does testify.

Apparently ECUSA did not bother to disclose Prof. Edgar as an expert, and represented that he would simply catalog an entire litany of historical facts, taken from the various diocesan and other records, for the Court to consider. Well, he was allowed to do that -- but he was stopped when it came to expressing his opinions about those facts, because he had not previously disclosed just what those "opinions" would be.

I am accordingly in some doubt about ECUSA's game strategy. Were they counting on the plaintiffs' lawyers waiving, or being ignorant of, the relevant rules? That's hardly a winning strategy.

Did they count upon the good graces of the Judge to excuse their ineptness? Again, after they flouted her orders to disclose the names and opinions to be rendered by all experts, how could they reasonably expect any quarter from her corner?

The case for ECUSA and ECSC has now lost any momentum it ever had. Instead, the case flounders as counsel struggle to put on what evidence they can after they are required to follow the same rules that everyone else in South Carolina must.

This is not the way to impress a trial judge who expressed herself as eager to be guided through the historical documents, and who looked forward to hearing from qualified experts for that purpose (see the beginning of the account for Day 9 at the link just given). This is not to deny that Prof. Edgar might well have been just such a capable expert. Instead, however, the opinions he might have offered have gone to the trash heap of "what might have been."

All that remains, as the diocesan press release notes, is a litany of instances where the Diocese of South Carolina, while it was a member in good standing of the national Church, diligently followed all the then rules to be a member in good standing.

But evidence that one followed the rules when one was a member of the club is not evidence that one agreed to permanent membership in the club. The two issues are entirely different, and evidence of the one is no proof of the other. (Nor is the evidence that the national Church gave a few ten thousands to the Diocese over the years, while the Diocese itself gave millions back to the national Church. That is evidence only of the good relationship that once existed between them, but which is no more as a result of the national Church's (and its SC followers') ham-handed insistence on seeing Bishop Lawrence illegally removed from his position.

In other words, evidence that everyone abided by the rules becomes irrelevant once one side proclaims that it does not intend to follow them any longer.

[I note that the ECSC website now has its account of the day's proceedings up -- but one reads it in vain to find out just why Prof. Edgar was prevented from offering opinion testimony as to the documents he highlighted. This must be why ECUSA cannot learn its lessons: from the highest level at 815, on down to the laborers in the ECSC trenches, all talk about following laws and rules, about playing the game fair and square, falls on deaf ears. They are interested in one thing, and one thing only: can they jawbone, or bully the court into letting them run things the way they want? When they are held to following the rules, it's all the other side's fault for insisting on those rules -- and the Judge is being "partial" and "biased" because she decides to enforce them.

I almost never link to this site because of its many factual and legal distortions, all dressed up in rather spiteful bias, but today I shall make an exception. Steve Skardon has on his Website a remarkable first-person account of how yesterday went, viewed from the standpoint of a remnant Episcopalian who senses that things are not going well, and is struggling to understand why. If he could just see how ECUSA and its attorneys behave as though "the rules are made for other folk, not for us," he might -- in light of his own personal experience with Judge Goodstein which he recounts for the reader's benefit -- begin to get a glimmer of why that attitude does not sit well in her courtroom.

I will have more to say about this brazen strategy in a separate post. For now, let us be content to observe that it has profited ECUSA and its rump group nothing. ]