From the “chilling effect” of sunlight department, Steyn writes:
Many “climate skeptics” wonder why the defendants would want to get the complaint dismissed rather than put Mann through a trial in which he would have to take the witness stand and discuss his work under oath. I can understand their enthusiasm for this but for me the priority has always been the broader cause of free speech:
Defendant Steyn stands by his words and is willing to defend them at trial and before a jury, should it come to that. However, as a noted human-rights activist in Canada and elsewhere, he believes that the cause of freedom of expression in the United States would best be served by dismissing the amended complaint, and that a trial would have a significant “chilling effect” in America of the kind the Anti-SLAPP laws are specifically designed to prevent.
The “chilling effect” is a bigger threat to civilized society than all Dr Mann’s warming. But the judge chose instead to put us on the road to a full-scale trial. So be it.
As readers may have deduced from my absence at National Review Online and my termination of our joint representation, there have been a few differences between me and the rest of the team. The lesson of the last year is that you win a free-speech case not by adopting a don’t-rock-the-boat, keep-mum, narrow procedural posture but by fighting it in the open, in the bracing air and cleansing sunlight of truth and justice.
=============================================================
Unfortunately, the motion was denied.
Read the whole thing here: http://www.steynonline.com/6025/trial-and-error
![RoadCones-300x224[1]](http://wattsupwiththat.files.wordpress.com/2014/01/roadcones-300x2241.jpg?quality=83)
Mann would be a fool to pursue the case further, but then again, his ego is often so large that I surmise the state department of transportation must be forced to put out orange traffic cones ahead of him when he travels, so I doubt it will happen.
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Yeah, cynical, even in small claims court, the judges are often intolerant jerks to those who represent themselves for $500 cases, not-so-subtly encouraging patronage of their private peers in the guild. Tarpit is great term.
“I can understand their enthusiasm for this but for me the priority has always been the broader cause of free speech:”
I can understand why MArk Steyn is not eager to go to court with al associated expenses and stress, but in my view “free speech” will not be endangered in any way if this does go to trial. The more important, more immediate issue is exposing these frauds for what they are.
I don’t blame Steyn for filing for dismissal. Only a fool would risk a trial which will be one of the warmists’ last stands. They will throw everything they have at it, including any dirt our snoops have collected on the judge. The fact that his motion was denied alone shows how unpredictable the results are.
Tom G(ologist) says:
January 23, 2014 at 12:36 pm
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
I have also been to court a few times on engineering and contractual issues. Since judges have no technical expertise in engineering, the rationale for their decisions which they state in their judgements are sometimes completely baffling and devoid of sound logic (from an engineering/contractual perspective). A multi-million dollar case can turn on one phrase in weeks of a trial. It is pretty much a crap shoot so usually it is in everyone’s interest to settle but sometime clients think they are 100% right and so does the opposition. Then it gets messy.
Since no judge is going to have any concept of what is being talked about technically, they will pretty much have to deal with the legal issue which could go anywhere depending on who spins the best yarn. That might be a bit harsh but I have seen a few major whoppers told in court. The judge won’t know truth from fiction as the judge wasn’t there and has to judge on what is presented.
I wish Mr Steyn all the luck in the world.
Cool. I look forward to watching.
Tom G – I greatly fear you may be right; but it may be in Steyn’s nature to fight this one to the bitter end on the principle of the thing. The trial court has failed to dismiss it; but the appellate courts haven’t reviewed it yet. I’m still hoping this order can be appealed right away (the last appeal was dismissed as moot; but it wouldn’t be moot now, I think). If the court says “wait ’til the end of the case” then Steyn has to either fight it all the way through or, if he settles, waive his right to appeal. And that would be a great shame…because if cases like Mann’s stay alive, that’s a serious curtailment of our First Amendment rights, and I hate to see that.
“This isn’t a game of checkers, The biggest threat here is of Steyn going to court and losing. That would be a catastrophe. To avoid it, Steyn must take every opportunity he can to end the case as early as possible.”
I really dislike this kind of scared rabbit approach to life. I admire Mr. Steyn and I completely understand who he’s not eager to expose himself to further jeopardy, and yet someone, some time has to stand up to these people. Yes, there’s always a danger of losing, but that’s not a good reason not to fight, if the fight is worthy enough. In my humble judgment it is.
Alex:
Unfortunately, in many cases, it is out of the hands of the actual defendant (in this case, Steyn) or their employer (NR). The people who call the shots as to whether settlement is reached or not might be the insurance company for NR. I have not heard that they are in it, but I would be surprised if they are not dragged in ultimately. And insurance companies HAAAATE to go to trial. They will settle for, yes, sadly, $$$$$ to a plaintiff if it means they are not at risk of a bad judgment which would establish a legal precedent.
@cynical_scientist
Can I get an amen, brother!
Alex,
I thought you couldn’t bring your lawyer into small claims court.
But I do agree with you, and cynical_scientist, who wrote:
“The role of the judge in all of this, especially in the first few years of trial, is to make bizarre rulings which prolong the agony as long as possible.”
I’ve seen it first hand, where an organization I was in brought suit. Our lawyer said, “Given all the facts on our side, and the complete absence of any facts supporting [the other side], I don’t see how we can lose.”
Guess what happened?
Yes, the ruling went against us. I have no doubt we would have prevailed on appeal, but our board decided that the money wasn’t worth what was essentially just making an ethical point. So we threw in our hand.
As they say, the one with the experience gets the money, and the one with the money gets the experience. I suppose in the long run it’s a fair trade. Sort of.
Oh, and btw, if there is a $$$ settlement, don’t expect that you would ever know how much a cretin like Mann received. Just be certain in your little heart of hearts that it would be more than enough to spike your indignity meter.
Alex says:
January 23, 2014 at 12:43 pm
Tom G(ologist), so by “good chance this will settle,” you mean, “good chance Steyn, NR, etc. will pay Mann”? Or they’ll walk away from each other?
__________________________
Read Steyn’s last paragraph (above, beginning: “As readers may have deduced…”)) and answer your own question.
What I have found when dealing with a judge, and I have been before judges in most of those cases in which we settled, as the judge presides over settlement agreements, is that the side that wins is represented by the best story teller. And I don’t mean ‘story’ as in falsehood. I mean the person who comes across as the best presenter, most polished, best prepared, reasonable, creditable person. A good presentation vs a poor presentation, regardless of the facts, goes a long way with a judge who has no clue of the technical details and no way to tease out which spin story is the closest to reality.
There is also the issue of what is know as Departmental deference. Judges view the positions of the opponents in a case. If one of the sides represents a government agency or a public institution and the other side is from a commercial entrerprise, there is deference to the story from the public entity under the rationale that the commercial appellant has a monetary stake in the matter but the public institution is more impartial by its very nature, so its story receives deference (preference). This is not a covert occurrence. It is well known in the legal practices. I know it first hand because some of my cases were against state and/or federal agencies and our lawyers had to plan against it. So, we have a periodical which makes its money by selling stories people will be tempted to buy, vs a professor from the state university system……
You do the math.
I agree with Tom (G).
The procedural nature of the courts are littered with technical land mines everywhere. Seeing how administrations everywhere are pushing the carbon schemes, You can bet that Mann will have more than adequate funding from many well to do sources and have a dream team similar to that of OJ Simpson. My guess is that Mann will not even pay a single penny for this.
Mr. Steyn is playing the cards as best he can, but, I would imagine he will be out moneyed and out lawyered substantially due to the nature of the case. I hope that WUWT will keep us all posted in the event Mr. Steyn needs (and I am sure he will) significant outside assistance.
Start parody . . .
Is Mann a mythological hero in his own mind only when he is in mythic legal battles with imaginary evil konspirators?
He’s happy.
How happy?
He’s as happy as Lewandowsky and/or Cook are with their ideological support from Naomi Oreskes against evil konspirators.
. . . end parody.
John
Steyn and Rand Simberg, whose article Steyn apparently cribbed, made specific factual allegations of scientific fraud against Mann. They and their organizations have been sued by Mann for defamation. That means they have to prove fraud by a preponderance of the evidence. They filed for dismissal apparently based on their 1st Amendment right to free speech.
The problem for them, of course, is that they weren’t just expressing opinions, which they have every right to do, no matter how whacky, but they alleged fraud, a very specific fact based accusation.
Contrary to what Steyn is quoted as saying above, they filed for dismissal because they don’t want to go to the discovery stage of the case where they will be buried with actual evidence. IOW, they won’t get away with the brand of shoddy journalism these types live on. They have a lot to worry about, Mann doesn’t.
Doug
1. The First Amendment is not relevant in the context of a defamation case. Defamation is a common-law tort (citizen vs. citizen), not a limit on speech imposed by government.
2. A motion to vacate is difficult to win, even in jurisdictions with anti-SLAPP laws. And it should be. The judge made the right ruling, for the right reasons, in this instance.
3. Precisely because a motion to vacate is so easy to defeat, the dismissal of the motion to vacate is not probative with respect to the ultimate outcome of the case. Nobody should be cheering yet. If the question of fact comes down to whether Mann “molested and tortured the data,” as the judge suggests, there will be ample evidence adduced from discovery to make the case.
4. The terms “molesting” and “torturing” – and even “fraudulent” – are not legal or scientific or precise in the context in which they were used, so some poetic licence should be allowed in their use. In my judgment, Mann clearly engaged in practices that can reasonably be characterized as “molesting” and “torturing” data. However, a judge with little scientific background or critical faculties – the majority of judges, after all – might well be bamboozled into thinking that Mann was “exonerated” of the charge by the various white-washing exercises he was put through. Thus it is understandable that the Defendants do not wish to take the case to trial – no matter how fun the discovery process might be to interested observers.
5. Cost penalties are available at the end of the day to dissuade unmeritorious claims. Mann’s own vituperative comments about those he disagrees with – such as calling Judith Curry “anti-science” – should weigh heavily in a judge’s assessment of costs against him should he lose. He is a hypocrite, and should be shown no mercy when it comes to awarding costs.
IMO.
I agree with all those who warn to stay away from the legal system whenever possible. It is a self perpetuating money pit where the Lawyers on each side help maintain the other sides Lawyers income by continuing the case until one side is proven broke.
I know Mark has said he doesn’t really believe in a legal defense fund, but this is so serious I sure hope someone with a popular blog will start one on his behalf. I contributed to the NRO fund, and I suspect tens of thousands of us would chip in for Mark.
Doug says:
January 23, 2014 at 1:55 pm
“That means they have to prove fraud by a preponderance of the evidence. “
No. It means they have to prove they themselves were persuaded by the evidence without reckless disregard for the truth. That is the standard in the US.
Grant A. Brown says:
January 23, 2014 at 2:02 pm
“Defamation is a common-law tort (citizen vs. citizen), not a limit on speech imposed by government.”
Mann is a public figure, and it is indeed a First Amendment case.
I would be willing to pony up some money to help Steyn with his legal defense costs. $200 would be easy, more would be possible.
Steyn should explore that avenue …
Doug, Steyn knows what he is doing. Mann should not have picked a fight with someone who “buys ink by the barrel”.
The motion to dismiss was pro forma and necessary, in Federal court you always want to preserve an honest position of reasonable accommodation. They are busy and at every opportunity you remind them that you are the one trying to make this go away without them having to do any more work.
Grant A. Brown says:
January 23, 2014 at 2:02 pm
“4. The terms “molesting” and “torturing” – and even “fraudulent” – are not legal or scientific or precise in the context in which they were used, so some poetic licence should be allowed in their use.”
Grant, In the U.S. there is a 5 year statute of limitations on FRAUD. This is why the administration kicked the can down the road on bank fraud for 5 YEARS stemming from the crisis in 2008.
So we can safely assume that Mann will skate on that one but in the PR (Public Relations) world, could prove handy. One thing needed would be the most recent fraud he may have perpetrated < 5 years ago.
. The First Amendment is not relevant in the context of a defamation case.
Yes, it is.
“his ego is often so large”…
How large is it?
In my state he would require a lead car and a tail car with flashing lights and signs that warn: “OVERSIZED LOAD”.