Martin A

One of the planks on which a successful US defamation case rests is to show that the defendant acted deliberately in a way intended to damage the plaintiff. This is known as "actual malice"

A statement like " I despise Michael Mann for many reasons" can be quoted in court as an illustration that the defendant fells "actual malice" towards the defendant.

The whole post you linked can be used as a further illustration. As an internet post it is not, in itself, defamatory, but can be quoted to the jury as evidence of Steyn's ongoing malice.

Mark Hodgson is more expert than Iin such matters, but I would suggest that Steyn's lawyers are currently pleading with him to stop digging.

Geronimo

When it gets to trial with Mr. Steyn, to prove defamation he will have to prove that Steyn defamed him by saying something he (Steyn) didn't believe to be true. How's he going to do that?

He doesn't have to.

Remember that this is a civil case, decided on the balance of probability. All Dr. Mann has to do is show that Steyn's article met the criteria for defamation.

One of these is that the defendant knew that what he wrote was false, or showed reckless disregard for whether what he wrote was true or false.

Dr. Mann is not expected to prove a negative. In this instance Steyn's defence is to show that, when the allegedly defamatory article was written, evidence of fraud was available to him.

If Steyn cannot provide that evidence, the jury will infer that Steyn's article met at least the "reckless disregard" criterion.

I think he does EM.

"Given that Mann is a public figure for the purposes of this litigation, under D.C.’s anti-SLAPP law, he could only prevail if the court could conclude there was a reasonable likelihood that a reasonable jury could find, by “clear and convincing evidence” that Steyn and Simberg acted with “actual malice” or a “reckless disregard” of the truth or falsity of the claims at issue. This is a high hurdle for a defamation plaintiff to clear. As the Supreme Court explained in St. Amant v. Thompson, “reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” In the alternative, the court must have reason to believe that the defendant was not acting in “good faith” because he had strong reasons to believe the allegedly defamatory statements were false."

Read the whole article here

Geronimo

I note that the writer you linked is a contributing editor for National Review Online and wrote for CEI.

Since he has connections to both corporate defendants in Mann V Stein, I do not regard him as an independent analyst.

EM he quoted a Supreme Court judgement and "FWIW, I also have profound disagreements with CEI on the threat posed by climate change and the appropriate policy response to this threat." but you are entitled to believe anything you like and say so. There is no free speech if you cannot say what you believe to be true.

The issue for both Simberg and Steyn was that the Penn State investigation was a sham, and in Steyn's case that the hockeystick was fraudulent. No enquiry has said the hockeystick was fraudulent, but then they didn't really set out to do so. Wegman concentrated on the statistics, as did the NAS inquiry, both said that the statistics and methods were wrong. They won't be allowed to use the weasel words saying it doesn't matter in court because that's an opinion. Mann may be asked to explain why:

1. He used a hitherto unknown method of PCA of a time series that "mined" for hockey sticks;
2. He used a data set of trees that we were specifically told did not have a temperature signal in the 20th century.
3. He used this data knowing that without it there was no hockeystick, because the CENSORED files found on his ftp site showed that he'd run the code without them and there was no hockeystick;
4. He hadn't shown cross validation statistics? Has he done them? If not why not?
5. He hid the "decline"

Along with some of the emails I've seen in the climate gate files I believe there is enough evidence for a reasonable person to believe that the hockeystick was indeed an artefact of Mann's manipulations.

Jan 6, 2017 at 2:37 PM | Entropic man

Haven't you be quoting and linking to the output of other members of the Hockey Team?

It is a problem for Mann calling witnesses. By the time this gets to Court, not many of them may be able to claim being too busy at work.

Which is why I previously wondered whether Trump may ask for enquiries into the possibility of Criminal Charges. It might help drain the swamp of Global Warming propaganda, or at least cease it's continuous production.

but I would suggest that Steyn's lawyers are currently pleading with him to stop digging.

Jan 6, 2017 at 1:22 PM | Entropic man

Do you think Mann's Lawyers were happy with Mann's comments about Judith Curry? What evidence did Mann possess to make those comments?

It does occur to me that Steyn is better advised than Mann. Steyn knows what he is doing. Mann has been reckless with Climate Science and the Law. Unfortunately, you can not "adjust" the Law retrospectively to suit selfish need and greed.

Trump would be doing the UK a favour if he launched further enquiries into possible financial fraud by Climate Scientists.

It could also benefit various other groups within the EU seeking EXIT, if those Progressives campaigning for the EU, and Climate Science derived policies, had been barking up the wrong Bristle Cone Pine.

I wonder if it was on the agenda for discussions between the UK Prime Minister's envoys and the Trump transitional team.

Pruitt and Ebell may have some suggestions for Trump about not getting bogged down in the swamp of Climate Science.

Radical rodent

Now that the motions to dismiss are out of the way, one hopes that Mann V Steyn can move to trial quickly.

The "actual malice" criterion was defined in the Supreme Court judgement of New York Times Co.. V Sullivan.

"The plaintiff alleges that this criticism of him and of his work was not fair and was not honest; it was published with actual malice, ill will and spite. If he establishes this allegation, he has made out a cause of action. No comment or criticism, otherwise libelous, is fair or just comment on a matter of public interest if it be made through actual ill will and malice."

The First Amendment does not give unlimited license to say what you like. The analogy is that your right to wave your arms around ends where my nose begins. A statement which meet the standard of defamation is not protected under theFirst Amendment.

Regarding the burden of proof I found this on the Wikipedia entry United States Defamation Law

Defamation per se
All states except Arizona, Missouri, and Tennessee recognize that some categories of false statements are so innately harmful that they are considered to be defamatory per se. In the common law tradition, damages for such false statements are presumed and do not have to be proven.

Statements are defamatory per se where they falsely impute to the plaintiff one or more of the following things:[2]

Allegations or imputations "injurious to another in their trade, business, or profession"
Allegations or imputations "of loathsome disease" (historically leprosy and sexually transmitted disease, now also including mental illness)
Allegations or imputations of "unchastity" (usually only in unmarried people and sometimes only in women)
Allegations or imputations of criminal activity (sometimes only crimes of moral turpitude)

The first important point is that "In the common law tradition, damages for such false statements are presumed and do not have to be proven." Mann V Steyn starts with the presumption of damage. This puts the onus on Steyn to demonstrate that his statements were not false.

The second important point is that "Statements are defamatory per se where they falsely impute to the plaintiff
...allegations ...."injurious to another in their trade, business, or profession"

That is the core of the case. Steyn alleged fraudulent professional conduct. He needs to back up that allegation with evidence.

Golf Charlie

Dr Mann's statements about Dr Curry are not germane to Mann v Steyn. Steyn's ongoing ad hominem attacks on Dr Mann are germane since they can be used to support the plaintiff's case for "actual malice".

EM, if Mann has evidence to back up his statement you would be right.

Mann doesn't.

Mann can't claim his feelings have been hurt by unsubstantiated allegations, if he is flinging around unsubstantiated allegations. As Mann has put a value on his hurt feelings, many non-Hockey Teamsters would have a fair amount to set as the cost of their hurt feelings.

By the way, who is supplying you with the responses? The writing style changes.

Golf Charlie

Do I detect a double standard? You object to Dr Mann saying something negative about Dr Curry, but you do not object to Mark Steyn saying something negative about Dr Mann.

I find myself adopting a more legalistic style on this thread as I do more research into the US law relating to Mann V Steyn. I am also paraphrasing some of the information, which may affect my own style. Any direct quotes are indicated by quotation marks or blockquotes.

Alas, nobody is feeding me data. Is anyone feeding you?

Golf Charlie

Dr Curry has done good work in the past and as an editor. Her last work on the stadium wave has not panned out.

Climate etc has become a denier echo chamber.

Perhaps her retirement is appropriate. One should know when to leave the stage.

EM, you and Mann are the ones employing double standards. I merely pointed out the hypocrisy of Mann.

Your writing style does change when writing about US Law. You had previously referred to work by Greg Laden, who has previously discredited himself as an expert. I have no legal qualifications, and do not claim to. I have had some experience in certain aspects of UK Law, relevent to my work. Mark Hodgson states that he is a Lawyer, but not a US one. He has explained at some length why he considers your stance to be incorrect, and you do not acknowledge his advice. As you select your legal advice to suit your needs, it is logical to assume that there is a reason for your writing style to vary too.

I think the history of Climate Science will find that Climate Science should not have stood by Mann and his Hockey Stick, hence the quickest way for the World to be put out of the misery, created by Climate Science would be for Trump to extend the investigation into fraud and corruption by some involved with the RICO 20, and see where it leads.

The Climate Science Legal Defense Fund may experience expenditure increasing, as income falls, but Climate Science funding by the US Taxpayer is about to hit the buffers anyway, so isn't it about time Climate Science really did move on from "The Hockey Stick", by abandoning it, rather than waste further time and other people's money?

I'll repeat it for you EM the First Amendment protects the right of free speech. If you believe something to be true then you are protected by the first amendment. It is not malicious to speak the truth no matter how vehemently it is said.

Martin A has put it succinctly although I'd add to it Mann had a tiger by the tail, said tiger has now got Mann by the tail because of his counter claim they must go to trial.

This case will go to the Supreme Court if Mann wins in DC, it is an important test of the First Amendment, whether you think Steyn is right or, as many of the Amici probably do, wrong, he still has the right to voice honestly held opinions under the First Amendment. Mann cannot win.

Poor EM, reduced so quickly to calling skeptics "ni99ers" , showing not only his bigotry but his other leading trait, ignorance. He actually defends Mann for his treatment of Curry while emphasizing his ignorance of America. So EM is currently winning the climate kook race to the bottom. Well played, EM.

hunter & geronimo

Mann AND all the assorted Hockey Teamsters plus the associated beneficiaries, wasting £billion$ per year, have too much to lose by Mann appearing in Court, and will continue to use all available delaying tactics, including blaming Steyn for the delays. Entropic Mann has kindly demonstrated the modus operandi, past and present, and proposed for the future. This is NOT going to end up in court during 2017.

All the more reason for Trump and his posse led by Ebell and Pruitt to have a legal Gun Fight at the EPA Corral. As this will draw in the Democrat Lawmakers from States far and wide, implicated in the RICO 20 Law Abuse scam, a lot of turkeys could be dead and stuffed in time for US Thanksgiving 2017.

The whole World will breathe better as a result.

Geronimo

The First Amendment is not a blanket licence to write whatever you like. It does not allow you to publish an opinion which damages another person, unless that opinion is true. This has been clarified by a number of Supreme Court decisions such as New York Times Co V Sullivan which I linked to earlier.

If the person doing so is making a false damaging statement or makes a damaging statement with reckless disregard for whether it is true or false, that is defamation and is actionable. Think of it as due diligence before you publish.

One of the arguments made by the defendants in the recent motion to dismiss was that Sinberg's editorial was opinion, and therefore not actionable because of First Amendment freedom. This was rejected by the court. In most states damaging factual statements and damaging published opinions are treated in the same way. They both have to be shown to be factually true.

I picked up an interesting wrinkle from Eli Rabett.

From the judgement:

Appellants do not argue that Mr. Simberg’s article, if capable of conveying a defamatory meaning, is not actionable because the statements that Dr. Mann engaged in deception and misconduct are true.

The judge has highlighted that Simberg and the National Review have not made the usual first defence for a defamation defendant, that Steyn's accusation of fraud is true and therefore allowable under the First Amendment. They have already conceded that part of the case.

This thread has moved on quite a bit since the last chance I had to look at it. As an English lawyer I have no idea how the interplay between the First Amendment right to free speech and US defamation law will play out. Clearly there are complicated legal issues there, which explains why so many amici briefs have been filed (none supportive of Mann, tellingly).

I think it's fair to say that Mann has done nothing wrong by failing yet to make discovery, and that the delays to date are not of his making (resulting largely as they do from the attempted strike out by Steyn's co-defendants and their unsuccessful appeal against their failure at first instance). However, noting the judicial comment quoted by geronimo below, Mann doesn't exactly seem keen to get on with it, and I find it bizarre that he feels he can insist on his opponent making discovery while seeking to avoid/delaying doing so himself:

"While Dr. Mann agrees with Mr. Steyn that discovery should move forward on Dr. Mann's claims, discovery cannot move forward on Mr. Steyn's counterclaims.

Plaintiff opposes the motion to stay discovery and argues that, at a minimum, the court should permit him to proceed with discovery against Defendant Steyn... Beyond that, Plaintiff takes the ironic – albeit legally correct – position that he should be able to proceed with discovery against Steyn, but Steyn should be precluded from taking discovery on his counterclaim because Plaintiff's anti-SLAPP special motion to dismiss the counterclaim triggers an automatic statutory stay."

If I were the plaintiff or acting for the plaintiff in a defamation case (indeed any litigation) where I was confident of my/my client's chances of success I would move each stage of the litigation on as quickly possible, not seek to delay matters, both because I would want to get to trial (and my vindication and damages) as quickly as possible, and because I would want to keep the pressure on my opponent. Mann doesn't seem to be doing that so far as I can see, which again I find telling.

I would bet against this case getting to trial this year or even next. But get to trial it will, because Steyn has counterclaimed, so Mann is no longer in sole control of pushing the case to trial or avoiding that happening. Steyn's counterclaim may be worthless for all I know, but that's not the point. The point is that by counterclaiming Steyn can keep the pressure on Mann and can insist on getting to trial, however long it takes. I suspect Steyn's counterclaim is quite calculatedly tacical.

I also believe that this case will end up in the US Supreme Court. Ironically, the longer the delay in that happening, the more it favours Steyn and damages Mann, given that the Supreme Court's membership is likely to change substantially as President Trump makes appointments to replace retiring Justices.

'Tis tres interessant. I'll take the long odds and bet against it going to the SCOTUS. Drop and settle would be my bet. There is too much to be lost by exposing the Crook't Stick so publicly.
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Heh, Em, the Bunny dreams of cabbages and kings.
======

Some light reading on Discovery and the Initial conference.

Now that the preliminary fencing is out of the way the FRCP define the timing of Mann V Steyn from here on.

FRCP Rule 26 provides general guidelines to the discovery process, it requires the plaintiff to initiate a conference between the parties to plan the discovery process.[4] The parties must confer as soon as practicable after the complaint was served to the defendants — and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b). The parties should attempt to agree on the proposed discovery plan, and submit it to the court within 14 days after the conference.[4] The Discovery Plan must state the parties' proposals on subject of the discovery, limitations on discovery, case management schedule and timing deadlines for each stage of the discovery process, including:[4][5]

End-date of the discovery. This should be at least 60 days before the trial. The trial target date is usually 6 months to 2 years after the conference.

Note the timings.

Plaintiff must initiate contact leading to an Initial Conference as soon as practicable.

A scheduling conference should be held at lest 21 days later (should that be within 21 days?) and its discovery plan submitted to the court within 14 days.

Discovery presumably takes as long as the scheduling conference agrees.

Discovery should end at least sixty days before the trial date. The trial date should be between six months and two years after the Scheduling Conference.

On the basis of this, the initial conferences and scheduling conferences should take place reasonably early this year, perhaps before Easter. Depending on how it plays out, discovery could take anywhere between four months and twenty two months. There is then two months run-up to the trial. The trial might start anywhere between August 2017 and April 2019.

Don't hold your breath. :-)

PS. I am finding this legal research rather enjoyable. It is like solving a logic puzzle.

PS. I am finding this legal research rather enjoyable. It is like solving a logic puzzle.

Jan 7, 2017 at 7:00 PM | Entropic man

Good for you, but you need to be balanced about the advice you accept.

Meanwhile, Trump is going to neuter the EPA, and remove it's claws. Mann and the Hockey Stick may get shredded in the scientific fall-out.