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The nationally watched intelligent design case has meant a lot of things for a lot of people, including the religiously diverse group of 11 plaintiffs. For Pepper Hamilton partners Eric Rothschild and Stephen G. Harvey, it’s personal. Rothschild and Harvey have been with the case since before its inception and were instrumental in bringing Pepper Hamilton on as lead counsel. The two attorneys, both religious in their own right, came into the case with a strong opinion on the separation between church and state, they said. “I’m a big believer in our civil liberties,” said Rothschild, a practicing Jew. “As a member of a minority religion I am particularly sensitive to the problem of when a government tries to introduce a particular religion in a public place or a public school.” Harvey, a Roman Catholic, said he is very pro-religion, but also has strong views on separation of church and state. “We’re never going to be able to agree on religion,” he said. “I don’t see any real good if it’s in the public sphere.” Religion in the private sphere, however, flourishes, Harvey said. Rothschild said this trial is serving to protect religion. “This is not the plaintiffs or Pepper or the ACLU trying to harm religion or confront religion,” he said. The director of the firm’s pro bono programs, Joseph A. Sullivan, said those personal views are not directing the focus of the case. “We are acting as lawyers, and our personal views are not at issue here,” he said. But Sullivan didn’t deny that personal interest makes Rothschild and Harvey a good fit for the case. “When we see attorneys who get excited in the way that Eric and Steve have, we welcome that,” Sullivan said. “We view it as a value-added feature of our representation.” Harvey said publicity was not a value-added feature of taking on this case, however. Harvey’s strong feeling on the subject matter and the challenging constitutional issues made him say, “I don’t know how I could say no to this case,” when Rothschild asked him to come on board. Harvey said the public attention received by this trial was something Rothschild warned him about, but it never really hit him until he was on the courthouse steps the first day of trial. He said when cameras were rolling and shutters were flashing all around him it really sunk in. Sullivan said media attention wasn’t a factor in the committee’s decision, but more of an added perk. But Rothschild said being a part of this legal history — which includes the Scopes monkey trial — makes him proud. “I’m a normal person, and when something I do gets this much public attention, it’s exciting,” Rothschild said. What put the case into even more of a historical context was his meeting at the trial with the great-great-great-grandson of Charles Darwin, Rothschild said. Pepper Hamilton has made a clear commitment to stay out of the spotlight as much as possible. The firm is not participating in interviews about case strategy or progress. Harvey and Rothschild turned down the chance to be in People magazine, Harvey said. The firm has limited media contact during the trial to a near-daily prepared statement, Harvey said. The drawbacks to such media attention can be hostile responses from the public for involvement in such a hot-button case. None of the men said he had any angry mail, unless of course you include Rothschild’s favorite letter, which simply said: “Loser.” It’s OK; he laughed too. This case lends itself to wonder whether the possibility of negative backlash played on the minds of the pro bono committee. “It wasn’t that hard of a decision,” Sullivan said. “The issues were extremely important.” Sullivan said he talked to Rothschild at length before even going to the committee about the broad issues and amount of resources the case would take on. Both Rothschild and Harvey said they have received great support from their paid clients and colleagues, regardless of personal opinions. Just because they are involved with one of the most highly watched cases in the country doesn’t mean their other clients can take a back burner, they said. Oftentimes colleagues will help out with Harvey and Rothschild’s other clients, a commitment that was made when Pepper Hamilton decided to take on this case. But not all the work can be done by others, which, when you have 16-hour trial days, makes for a hectic life outside of Dover. When Harvey spoke with The Legal Intelligencer, he was on break from the trial, but that doesn’t mean he got to be home with his family. He was in Minneapolis taking depositions for another client. In the long run though, it seems to be worth it for two lawyers who are so interested in the complexities of this case. “Eric and I, we love an interesting challenge,” Harvey said. Rothschild became interested in the Kansas evolution controversy in 1999 when he was an associate at Pepper Hamilton. He offered his assistance to the National Center for Science Education, a group that supported the teaching of evolution in classrooms. Just a short time later he was on its legal advisory committee. It was through that committee that in October 2004 he heard parents in the Dover Area School District were writing to the ACLU when the school board passed a policy mandating science teachers to read a statement before teaching evolution informing students that it is only a theory. The policy also required the inclusion of intelligent design, a theory that an intelligent higher being must be responsible for the complexity of Earth’s organisms. Rothschild contacted the local chapter of the ACLU and offered his assistance subject to the firm’s approval. Rothschild’s respect for, and past experience with, Harvey turned into an easy choice for the first pick for his team. When the idea was proposed to Sullivan, he and his committee got on board, and by December 2004 the case, Kitzmiller et al. v. Dover Area School District, was filed. Sullivan would not comment on the cost of the case, but said when Pepper Hamilton lawyers decide to take on a pro bono effort, they “don’t do number crunching.” Harvey said all the same resources used in a for-profit major litigation case have been put into this case, including technology and personnel. Harvey and Rothschild both commented on what they said is a great working relationship with their co-counsel, the ACLU and Americans United for Separation of Church and State. “This is a model for public interest organizations and law firms to work together,” Rothschild said. It was agreed in the beginning that Pepper Hamilton would be the lead counsel and contribute the most resources. Rothschild said, however, that it is very much a collaborative effort, with the other two groups respecting the fact that the firm is lead counsel. Other members of the Pepper Hamilton team include trial attorneys Thomas Schmidt and Alfred Wilcox and associates Chris Lowe, Stacey Gregory, Benjamin Mather, Joseph Farber and Eric Goldberg. The trial is nearing the end of the third of an expected five weeks.

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