Last week there was lots of jubilation in the Mann-world PR headquarters because a judge had ruled that his defamation lawsuit could proceed. Except, there’s this inconvenient glitch. It seems that the judge got the actions of the two defendants mixed up in the ruling, kinda like that upside down Tiljander proxy thing.
From Andrew Lawtons “Landmark Report“:
Dazed and Confused: Steyn files motion for reconsideration on Mann lawsuit based on Clinton judge’s error in fact
Below are the public court documents submitted by Mark Steyn’s attorney moving for reconsideration by Clinton-appointed D.C. Judge Natalia M. Combs Greene as a result of her decision to allow the lawsuit by climate scientist Michael Mann against Mark Steyn and National Review to proceed.
Interestingly, it appears that Judge Combs Greene has mixed-up the defendants in the court’s ruling, attributing actions taken by the Consumer Enterprise Institution [sic] to Mark Steyn and National Review.
Mann v. National Review – Reconsideration Motion (fr0m Scribd)
Defendants National Review, Inc. (“National Review”) and Mark Steyn respectfully request that the Court reconsider its July 19, 2013 Order denying their prior motions to dismiss(the “Order”). A proposed order is attached.First, and as set forth in the accompanying Memorandum of Points and Authorities, theOrder appears to be based in part on material mistakes of fact. Specifically, the Order conflates the conduct of co-defendant Competitive Enterprise Institute (“CEI”) with that of National Review and Steyn, who never petitioned the Environmental Protection Agency to investigate Plaintiff or otherwise pressured the agency concerning Plaintiff’s research. Similarly, National Review and Steyndid not criticize Plaintiff’s scientific research for years, as CEI did. Nevertheless, the Order relies on these points to bolster its conclusion that National Review’s brief criticism of Plaintiff’s research was defamatory speech, not protected rhetorical hyperbole. See Order, at 17. (“On the other hand, when one takes into account all of the statements and accusations made over the years, the constant requests for investigations of Plaintiff’s work, the alleged defamatory statements appear less akin to ‘rhetorical hyperbole’ and more as factual assertions.”). In addition, the Order relies on these erroneous facts in concluding Plaintiff met his burden under the Anti-SLAPP Act of demonstrating that National Review published the statements at issue with actual malice. Indeed, the Order asserts that several investigations of Plaintiff’s work were prompted by allegations leveled by National Review and Steyn. See Order, at 21 (“It follows that if anyone should be aware of the accuracy (or findings that the work of Plaintiff is sound), it would be the NR Defendants.”). Yet there are no facts –in the record or otherwise –that suggest National Review and Steyn ever called for or prompted any investigation of Plaintiff’s research. Consequently, the Order should be reconsidered in light of the apparent confusion of facts pertaining to each set of Defendants.
Given that sort of quality judicial work, I suppose it is no surprise that Judge Natalia M. Combs Greene is rated in the bottom ten judges of the Washington D.C. area by the Robing Report.
The comments left about her professionalism are quite something.
Simon says:
July 31, 2013 at 11:21 pm
Simon as i said about the report claims that mann’s results were the same as others… that doesn’t mean that mann’s paper is good nor does that mean that the other are correct. The assumptions made by the repeat that… they claims evidence which does not exist or which has now been proven wrong… aka southern pole melt and a host of computer models. which are now proven wrong.
You quote must be taken in context of the report which clearly states as I pointed out about. This means the quote that you quote is meaningless from a scientific or legal stand point because the context its made in is completely vague and not based in science.
JP says:
July 31, 2013 at 1:53 pm
Mann’s portrayal of himself as just a disinterested scientist could be to support a claim of damages suffered or it could be to avoid being treated as a public person and thus having to meet a higher burden. I think he’s already lost the second point, so it’s not necessary to attack any further. Good attorneys don’t waste time on irrelevant issues or points they’ve already won.
I said:
“As I’ve said before, the court is not going to judge the science, so Mann will not have to produce his original data and methods. ”
temp says:
July 31, 2013 at 4:08 pm
You have both the burden and standards of proof wrong here. Steyn does not need to prove Mann is a fraud, and certainly Mann does not have to prove to the court his proxy temperature reconstructions are valid. Mann needs to establish by preponderance of evidence that Steyn made that charge either knowing it was false or in reckless disregard for its truth.
Now if Mann does attempt to walk the court through his work then he opens the door to discovery. But he (or his attorneys) would be stupid to do this. Aside from inviting unwelcome discovery it also risks putting the jury to sleep or giving them headaches (not to mention the judge). It is much simpler and more effective to reference the multiple investigations which have cleared him. There is plenty of reason to discount those prior investigations but they are on the record, which counts for a lot in court.
But Steyn does not need to prove Mann committed academic fraud; he only needs to show that the statement he published was not in reckless disregard of the facts. Queue the Wegman report, and Steve McIntyre’s investigations. All of which render it not reckless to say that Mann manipulated the data and statistical procedures to exaggerate late 20th century warming.
Please understand the legal questions determining libel will be largely divorced from the scientific debate over Mann’s work or global warming theory in general. The court will determine these things:
1) Did Steyn knowingly publish the statements attributed to him in the complaint?
2) Was Mann damaged by the publication of those statements?
3) Were the statements materially false?
4) Did Steyn publish the damaging statements knowing they were false or in reckless disregard for their truth?
5) Were the statements outside the bounds of what is generally accepted practice in criticism of public persons?
If the court finds all these tests are met; Mann gets a libel judgement. The court will not entertain evidence which does not speak to these legal issues.
I’m not an attorney either but my family is lousy with them and I’m reasonably confident this case will not yield any windfall of previously withheld documents that some people expect. It seems people assume Steyn’s attorneys will take every chance they get in court to foray into all those issues so important to skeptics. Absolutely wrong; they will put forward the simplest and most effective defence available, which is:
(a) plaintiff is a “public person” as defined by applicable statute and case law.
(b) plaintiff has not met the burden of proof required for public persons claiming libel.
This is a simple argument with ample case law for guidance. Any judge is expected to follow it and rule accordingly; it is the sort of thing courts do reasonably well. Making a detour into advanced statistics (or indeed any math beyond grade school level), or upside down lake sediment proxies or CO2 fertilization of bristlecone pines substitutes a complicated and unusual case for a simple and familiar one. Steyn’s attorneys have a duty to work for the best interest of their client; they have none at all to satisfy our curiosity. If they’re any good I can’t see them departing from the well-trod path. Even if Steyn has absolutely no credible defence, their advice would be to settle rather than risk a much larger judgement with a novel court strategy.
Since we’re all not attorneys versed in libel law, why don’t we just agree to print out this thread and post it on our respective walls. We’ll see what happens in six months or so.
Alan Watt, Climate Denialist Level 7 says:
August 1, 2013 at 5:07 am
You failed to mention the hyperbole in the Sandusky comparison.
Also, the burden of proof in the US is very high:
Steyn’s statement must be false. (Hyperbole cannot be either true or false.)
Steyn must have known that his statement was false.
Steyn’s statement must be malicious. (The jury gets to decide this.)
Steyn must have intended malice in making the statement.
Simon says:
July 31, 2013 at 9:08 pm
Could you please present one probing question from one investigation and the answer to it? If you want the investigations taken seriously here, give us some reason to do so. The questions were along the lines of “Do you recall falsifying data?”
Alan Watt, Climate Denialist Level 7 says:
August 1, 2013 at 5:07 am
“Since we’re all not attorneys versed in libel law, why don’t we just agree to print out this thread and post it on our respective walls. We’ll see what happens in six months or so.”
Good point. My guess is that there will be no trial because no lawyer worth his salt will risk putting Mann on the stand in an actual trial in an actual courtroom with an actual jury.
“You have both the burden and standards of proof wrong here. Steyn does not need to prove Mann is a fraud, and certainly Mann does not have to prove to the court his proxy temperature reconstructions are valid. Mann needs to establish by preponderance of evidence that Steyn made that charge either knowing it was false or in reckless disregard for its truth.”
I can not understand a bit of your argument… in order for mann to “establish by preponderance of evidence” that steyn made the charge “knowing it was false or in reckless disregard for its truth”, mann must talk about his work… or else mann who argument is “steyn says i’m a fruad, I say i’m not, find steyn guilty”. Thats not going to hold up in court.
Please explain to me how mann without bringing up his work can show that steyn knew it was a false statement….
” It is much simpler and more effective to reference the multiple investigations which have cleared him. There is plenty of reason to discount those prior investigations but they are on the record, which counts for a lot in court.”
I know of no investigation that has cleared mann… the claim by simons that say the north report claims mann didn’t do anything wrong is completely and utterly false. No court is going to put weight behind that report which has zero scientific rigor add in the north report really didn’t even talk about mann’s paper at all. The north report clearly states mann’s methods and science were wrong but his results were right… one can argue that clearly states proof he is a fraud. He got those results not through science but through random luck. Until such time that someone can show me these “investigations” they are simply flights of fancy by mann’s lawyers.
“But Steyn does not need to prove Mann committed academic fraud;”
This is true however steyn has the RIGHT as the defense to prove that mann committed fraud and to claim truth as a defense. That means that mann’s work will be open for discovery. The court can not block the defense’s RIGHT to defending itself by use of the truth. Truth is consdered the ultimate defense in a libel case…
“Absolutely wrong; they will put forward the simplest and most effective defence available, which is:
(a) plaintiff is a “public person” as defined by applicable statute and case law.
(b) plaintiff has not met the burden of proof required for public persons claiming libel.”
While I somewhat agree with this… A. requires they do alot of digging and casing a wide net. I would also point out one of the simplest defenses is to prove that mann is a fraud. Not only will they win the suit but then they can counter suit.
Sorry to be a late-comer to this thread (being over-worked suks….)
The REAL issue here is the corruption of the legal system. Judges decide more on politics than the LAW.
We are witnessing the complete perversion of TRUTH in America.
temp, you have missed the points so well put above.
Libel cases are not about the fine points of academic argument. Even if Steyn was completely wrong, and the Hockey Stick was akin to the Law of Gravity, that is not what the case is about.
People who imagine that this case will put Mann’s scientific work on trial just don’t understand how the libel laws work.
johanna says:
August 1, 2013 at 5:52 pm
Please do explain because the last time I studied libel law the truth is a valid defense… of which the defense has the right to put forward. Once again your argument goes down to mann says he’s not a fraud, thus steyn is guilty.
Steyn in no way has to prove anything but he has the right to defend himself and has the right to access information that supports his defense. Mann has the right to sue him and get access to information that supports his case as well.
Mann can not win by simply saying he is not a fraud. Now mann can arguable win the other point of he’s not a kid toucher by saying as much. The bar for mann to win the case is very very high not he must proof something that is near impossible. 1. He really has to prove he’s not a fraud 2. He then must prove that steyn knew he was not a fraud.
It is near impossible for him to due 2. without doing 1. as well.
This is no big deal. This decision was in the “Motion to Dismiss” stage. At this stage of the lawsuit, the judge must assume that everything the Plaintiff said in the Complaint is true. Dismissal can only be granted if even assuming all that, that there is no legal argument under which the Plaintiff could win. The Plaintiff could be lying through his teeth and you could have rock-solid evidence of the lie but it doesn’t matter at this stage. Motion to Dismiss assumes all facts in the Plaintiff’s favor.
It is very rare for a case to be dismissed at this stage. The fact that the Motion to Dismiss failed says nothing about their prospects of winning at the Summary Judgment stage or at Trial if it goes that far
Alan Watt, Climate Denialist Level 7
Wow… that last post of yours made so much sense. You are a clever man. Especially this bit.
“Since we’re all not attorneys versed in libel law, why don’t we just agree to print out this thread and post it on our respective walls. We’ll see what happens in six months or so.”
I for one will be back here in 6 months to see which one of us got it right… or wrong.
temp, once again you miss the point. Steyn’s team are not relying on “truth”, quite simply because both sides of the CAGW debate could put up duelling experts. So what? There is no “truth” in an objective, agreed sense here. If there was, there would not be the debates about climate issues that are happening all around us.
Legal criteria are not the same as passionate blog-readers’ personal views. Get over it.
johanna says:
August 1, 2013 at 7:13 pm
johanna you seem to miss the point the very fact that steyn can call experts to say mann is a fraud and is his paper is not science means that steyn spoke the truth… thus mann’s got nothing. Steyn doesn’t have to prove global warming is fake.
“Legal criteria are not the same as passionate blog-readers’ personal views.”
I completely agree with is why mann doesn’t have a leg to stand on… his investigations that cleared him are as legally valid as any blog post… the same as his claim he is not a fraud. IE once again he’s got nothing.
temp
Sorry, tell me again who these experts are who Steyn will call on to say Mann is a Fraud? Just one climate scientist will be good.
I’m sure Steve McIntyre would be happy to relate his feeling on the topic and how mann refused to turn over data. That as well as a number of ppl including MIT Lindzen would be happy as well to point out mann in no way was anything but fraudulent in the way he handled his hockey stick issue even to this day.
Remember mann still has refused to release the data for this… that is clearly within the bounds of fraud and the impression of. It will be near impossible in a fair court for mann to claim no i’m not hiding anything but at the same time refuse to release the data.
temp
only time will tell, but I think those two names you mentioned would regard themselves as men with integrity and will stay well clear of this debate. They my well disagree with Mann but they will not want to have it go on record they think he is fraudulent.
But even if they did McIntrye is a mining consultant not a climate scientist and Lindzen accepts the science behind CC he just doesn’t think it will be catastrophic. It would be a brave move by them to step up here and take on the might of the scientific community who are totally behind Mann.
temp says: August 1, 2013 at 10:15 pm
“I’m sure Steve McIntyre would be happy to relate his feeling on the topic and how mann refused to turn over data.”
They might be not what you want to hear.
“I was copied on one of Keenan’s attempts to instigate a fr-ud investigation against Mann and immediately made it clear that I did not support or endorse the request, strongly disapproved of it and even offered Mann my support.”
Simon says:
August 2, 2013 at 12:19 am
“It would be a brave move by them to step up here and take on the might of the scientific community who are totally behind Mann.”
Well I agree with that…. challenging the type of science mann is pushing is dangerous in every way. When people fought back against all tyrants cloaked in science they often suffered greatly. People have already suffered greatly from fighting against global warming cultism. So its true that most people would be scared for their safety to challenge them but i’m sure they can find people willing to fight.
temp
” So its true that most people would be scared for their safety to challenge them but i’m sure they can find people willing to fight.”
Yes they will. It’s just a question of who and whether they will have credibility in court.
My last word on this is that I hope Mann wins. Not because he is right or wrong, but because on both sides of this debate people have for too long got away with saying things that are viscous, untrue and unfair. Saying something on a blog is one thing, but publishing in a paper is another. Perhaps a hefty fine here will ensure people are just a bit more careful about what thy say…
Simon says:
August 1, 2013 at 9:12 pm
What according to you qualifies as a “climate scientist”?
Simon says:
August 2, 2013 at 1:40 pm
Do you deny that Mann has shamelessly molested data?
Then explain why did he hide the decline in a tree-ring series behind a bunch of graph spaghetti, cutting it off just before it started going the “wrong” way?
milodonharlani
Straight from wikipedia…
“Many commentators quoted one email in which Phil Jones said he had used “Mike’s Nature trick” in a 1999 graph for the World Meteorological Organization “to hide the decline” in proxy temperatures derived from tree ring analyses when measured temperatures were actually rising. This ‘decline’ referred to the well-discussed tree ring divergence problem, but these two phrases were taken out of context by climate change sceptics, including US Senator Jim Inhofe and former Governor of Alaska Sarah Palin, as though they referred to some decline in measured global temperatures, even though they were written when temperatures were at a record high.”
Translated… The phrase “Hide the Decline” was not about data manipulation by Mann, Jones or anyone else. It was about lining the actual readings up with what the tree rings were telling them. Nothing fraudulent or dodgy.
milodonharlani says:
Do you deny that Mann has shamelessly molested data?
Yes I do, which is why I think this is going to end badly for Steyn.
@Simon – I take it you are not an American? It matters not whether Mann has molested or not. Since Steyn was merely using hyperbole, he does not have to prove that. Mann has to prove that it is defamatory, that Steyn knew it was wrong (given the difference of opinion even here, that is virtually impossible) and that knowing it was wrong, he said it anyway.
Opinions are not meant to be facts. And the freedom of speech is strong in this country.
Simon says:
“Straight from wikipedia…”
Well, there’s your problem right there.
You appear to be hopelessly credulous, appealing to a fake authority like Wikipedia.
dbstealey says: August 2, 2013 at 7:07 pm
“appealing to a fake authority like Wikipedia.”
Well, at least he gave a reference, responding to:
milodonharlani says: August 2, 2013 at 2:07 pm
“‘Do you deny that Mann has shamelessly molested data?
Then explain why did he hide the decline in a tree-ring series behind a bunch of graph spaghetti, cutting it off just before it started going the “wrong” way?”‘
Np reference at all.