Mann has evidently filed a lawsuit against CEI and The National Review. I see a link to the lawfirm for his attorney. But I was wondering if the complaint/filing/claim (whatever it’s called) were public? I’d be interested in reading the papers.
165 thoughts on “Mann Lawsuit: Filing?”
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I wonder if he likes Donald Fagen:
http://artists.letssingit.com/donald-fagen-lyrics-weather-in-my-head-hh578fp
I’m wondering who the four old hippies are.
Lawsuits in the USA are usually public.
I would expect one (or both) defendants to post a copy of the filing as soon as they get it.
Mann is probably considered a public figure. If so he will have a difficult time winning as one can say almost anything about a public figure with immunity. Exceptions center around intentional lies.
Thanks
JK
jim karlock– I thought filings were public. But Mann’s page doesn’t have a link to the filing and I haven’t seen it yet. With luck a reader will see it and post the link.
I’m interested in reading the filing itself to compare to the facebook page. For example: Is the comparison to Sandusky part of the defamation complaint? If yes, I assume the CEI National Review defense on that would be “no defamation occurred on that count because the article does not suggest he was ‘X’ “. The fraud issue is going to be dicey too.
http://legaltimes.typepad.com/files/michael-mann-complaint.pdf
Lucia See:
Penn State Climate Scientist Sues National Review for Libel which has posted the Michael Mann Complaint at the Superior Court of the District of Columbia, Civil Division. Case 0008263-12
Thanks for the link! I like “Unsatisfied with their lacerations of his professional reputation…” I love the whole “Nobel prize recipient”. Him and a zillion other people.
Oh yeah, that’s the case that generated the “Get Lost” headline that amused Anthony so much.
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Hmmm. From point 25 in the complaint, it looks like the CEI guys could take a lesson or two from SteveMc in plausible deniability. Why take the risk of making direct accusations when you can simply use risk-free innuendos?
.
Note also the NR’s formal reply to Mann’s initial letter:
http://www2.nationalreview.com/pdf/2012-08-22_National_Review_Response_Letter.pdf
“the investigation was part of a politically motivated effort to discredit climate change science .”
This screams Conspiracy. I can only imagine the backroom cigar-smoking intrigue… (queue x-Files music)
Andrew
I’ve only gotten through the first ten pages, but I already have to say wow. I mean, wow. I’d wager this may be one of the dumbest things Mann has done.
Should be interesting. My prediction: Mann abandons the suit when the court orders him to produce email correspondence for discovery; he objects, and appeals the court’s decision, but looses on appeal. The other parties counter with a claim for legal fees to that point; the whole mess takes about 3-5 years to resolve. Meanwhile, the urgency for ‘immediate action’ on climate change continues to decline, Mr. Obama’s second term ends, and Mike Mann to descends into a horrible snit about how big-oil interests have blocked his efforts to save the Earth. Good thing someone else is paying his legal fees. Result of it all: nothing.
I’ve finished reading the complaint, and I’m still finding it hard to believe he’d do something so stupid. But rather than focus on that, I’d like to highlight two quotes that made me crack up:
Not only is this a stupid comment, but if one adopts this standard, Michael Mann and his supporters have been accusing any number of people of academic fraud.
With everything Dr. Mann has said and had said about him, how in the world could he suffer extreme emotional distress from a couple articles?
After reading over the complaint, I have only one descriptive word… arrogant. He will lose, but I don’t think winning was the motive for filing…. it’s more the desire to punish your enemies when they are winning the war of public opinion.
I have read many complaints like this. Under the Florida Rules the complaint would be dismissed or struck for failing to plead only the material facts without inclusion of scurrilous and extraneous matters, as well as incorporating each count into the next. The Federal Rules are more strict. The intentional infliction of emotional distress fails to state a cause of action, at least in Florida, and probably in DC. The nice thing is that we finally get to see all Mann’s emails and records in discovery.
I am not familiar with Pennsylvania rules of Civil Procedure, but if they are in any way similar to the Federal Rules I can see many broad avenues open for discovery…which might not sit too well with the University or with Professor Mann.
These comments on the lawsuit are worth reading: http://goo.gl/0A5PY
RE: SteveF (Comment #105265) October 23rd, 2012 at 5:42 pm
. . . He will lose, but I don’t think winning was the motive for filing…. it’s more the desire to punish your enemies . . .
For those of us who are fans of Mr. Steyn (&/or National Review) Mann’s losing is a given. It’s the public beating we’re looking forward to. If in fact, Mann’s desire was to punish his enemies,his strategy seems to be akin to that of George Chuvalo’s ‘if I use my face to block punches, that’ll free up both hands to punch back with.’ The difference being, Chuvalo had the legs and the chin to do it – or try. (Even in his prime, twice Ali couldn’t knock him down; altho George didn’t win he went out dancing with his wife while Ali went to hospital.)
I don’t think Mann has the legs or the data to defend against the beating he’ll take from Mr. Steyn . . . but like I said, looking forward to it.
You guys remember me from last year? I said that 16 years of no warming was rapidly approaching and that it didn’t appear that anyone was prepared for the repercussions. First, a few guys denied it (saying the no warming period was closer to 10 years than 16 years). Second, while a few did acknowledge it, it was met with a shrug. I ended the e-mail conversation stating that my supposition was right: no was prepared to discuss it. So, imagine my pleasant surprise of the fallout from the Daily Mail article regarding the MET temp series showing no warming of the past 16 years. Then, absolutely no mention of global warming/climate change by the US presidential candidates. Upshot from me for the past 4 years: some of you guys are whistling past the graveyard, much like the holders of CDO’s in 2007.
Wow! A George Chuvalo reference!
A Canadian of a certain age, eh?
Wow! A George Chuvalo reference!
A Canadian of a certain age, eh?
A likely case of hubris and nemesis.. Will be interesting to watch, and toto I do hope that SteveF is wrong, and we get to see in discovery the oh so secret electronic correspondence Mann and his supporters have done just about everything to keep from us.
I like this at popehat
I predict the Mann side will argue to signal opinion you need to use the term “bogusity”. Otherwise, people might think you mean to state a fact.
funny Mann claims.
1. That he was one of the first to discover modern warming
2. That he won a Nobel Prize
3. That CRU investigations cleared him.
WRT 2; Algore and the organization called the IPCC won the prize. Organizations and institutions can win the prize. No more than 3 people can win the same Nobel.
“he was one of the first to document the steady rise in temperatures in the 20th century?
WTF, Phil Jones forgot to put him down as a co author?
WTF, Hanson forgot as well
Jesus Christ, who knew that Mann was one of the first to document the steady rise in temperatures.. He did this in what paper?
In every paper I’ve ever read of his, he used Jones work.
Did he even read the complaint?
I have not read the complaint, but Steven M, is this accurate?
“3. That CRU investigations cleared him.”
I do not recall the CRU investigations really being about Mann in any way. Penn State – yes.
Ok.. Questions to legal eagles.
Page 14 paragraph 35. “commission of a criminal offense”. Criminal offenses are generally pretty specific. Precisely what criminal offense do either NPR or CEI accuse Mann of? Shouldn’t the counts be clear on that?
paragraph 38: “The aforementioned statements are false” There are a whole bunch of statements. Many are clearly opinion (example: tortured and molested data. Heck “fraudulent hockey stick” is an opinion.)
paragraph 48. I can see how “scientific misconduct” might be defamatory per se. But how in the world can being “the posterboy of the corrupt and disgraced climate science echo chamber” be defamatory per se?!
paragraph 60: “Ringmaster of a tree-ring circus” can’t be defamatory.
paragraph 99: I’m a bit puzzled by the notion that the NRO or CEI articles have affected Mann’s reputation very much. Neither article said anything that hasn’t been said a zillion times before in many blogs and forums. I mean.. what about the Minnesottan’s for GW hide the decline video? That went viral long before NRO or CEI’s articles. The complaint itself explains that lots of people have been thought badly of Mann prior to the NRO and CEI articles. Does the fact that many people clearly were saying bad things about Mann prior to the articles matter to a defamation claim?
lucia:
The paragraph refers to accusations of “academic fraud” so that’s the crime. Of course, academic fraud is not a crime (in and of itself), so it doesn’t make sense.
You’re right that many are clearly opinions, yet the claim is arguing they are all false.
It’s actually not as unreasonable as you may think. One of the four types of defamation per se is defamation that harms one’s professional reputation. The idea is if your professional reputation is impugned, it’s assumed there is damage to you without you having to prove it.
An earlier portion of that quote calls Mann’s hockey-stick graph fraudulent.
Yes and no. No matter how many people have said things about Mann, what matters is his actual reputation. If Mann still had a good (or at least okay) reputation despite all the previous commentary on him, he would have grounds for a defamation suit.
However, it matters in another way. With defamation per se, damages are presumed. However, that presumption can be called into question. What this means is NRO and CEI have two responses. First, they can try to argue Mann’s reputation is too damaged for further damage to be possible. Second, they can argue if Mann’s reputation is still good after all the criticism he’s received, their articles couldn’t possibly have harmed it. Both are viable challenges to the presumption of damage.
Mann must be getting his legal defense funded by some big pockets. I can’t imagine he would be doing such a foolish suit out of his personal funds. What is being alleged against National Review? I remember it as they reposted something someone else wrote.
Then again, in the ClimateGate e-mails, he was very keen to have Doug Keenan sued by Phil Jones.
Maybe he just wants the lawsuit out there so more of the public will know that journalism at the National Review consists of comparing people they disagree with to Jerry Sandusky.
Kan (Comment #105305)
October 23rd, 2012 at 10:01 pm
I have not read the complaint, but Steven M, is this accurate?
“3. That CRU investigations cleared him.â€
I do not recall the CRU investigations really being about Mann in any way. Penn State – yes.
##############
Mann is trying to claim he was cleared by CRU investigations. he wasnt. They did not look into any of his behavior.
I dont know if they have to show actual damage to his reputation.
If they do I dont know how they do that. His profession thinks he rocks. The public that knew about him before the statements either loved him or hated him. He still gets invited to speak, travel, write papers,..
Emotional distress is another matter. Here I think Mike has a case.
I say give the pussy a few bucks and send him on his way.
Paragraph two refers to the steep rise in temperatures since 1950. Since even Phil Jones agreed that 1920-1940 was as steep, I’d suggest he is in trouble from the get-go.
defaming yourself by exagerating ur work is no way to start a defamation suit
Just keep him away from London. We have a ‘libel tourism’ business here, and defendants (some from Godknowswhereistan) almost always win, whatever the merits of the case. Libel lawyers are prolific; try to get hold of a copy of U.K. satirical magazine Private Eye for details.
Cui, I think you mean the plaintiff (prosecution) almost always win, because our UK libel laws are very strict. But I think laws have now been set up in the US and the UK to stop ‘libel tourism’.
Brandon
I still don’t see how being accused of being the “posterboy” for your profession would damage your reputation in your profession. I get it that his profession is characterized as a “bad adjective, bad adjective, ‘profession-used as adjective’, echo-chamber”. But I really don’t see how his being the accused of being the poster boy for that profession could harm the person accused of being a “posterboy” in the eyes of those in the “echo chamber”.
JimNav:
Which would backfire because the National Review wasn’t comparing him to Sandusky. They were likening the investigation of him by Penn State to the investigation of Sandusky. It’s the same organization. We’re not supposed to talk the organization he works for or criticize it now for its performance with other previous employees?
I’d use a less loaded example, Anil Potti of Duke University. Fudging data on chemotherapy cocktails (given to humans who were suffering from cancer) to make it look like his cocktail was more effective than it was. Duke figured out he’d lied about something innocuous on his resume, and “forced” his resignation over that rather than carrying out a real investigation.
Potti is now free to operate as a medical doctor in North Carolina (and in two other states) and retains his benefits from because he “left” rather than was fired. His co-author is still at Duke and not a finger has been raised against him.
Universities don’t have a good track record on this account. Professors investigating their colleagues always yields an inherent conflict of interest with predictable outcome. (That’s why there’s historically so few revoked tenures in this country. If you think the real reason is the high quality of the work uniformly done, you’re living on a different planet than me). And the “exoneration” of Mann by PSU was a complete joke, even by “complete joke” standards.
The document is a great piece of comedy. I was expecting dull legal jargon written by the lawyer, but it seems to be classic Mannian delusion and self-promotion:
“He was one of the first to document the steady rise in surface temperatures during the 20th century” – huh? Was he?
“Awarded the Nobel peace prize” – yeah right. What was the title of his book? Ah yes ‘The Hockey Stick and the Climate Wars’.
“The defendants assert that global warming is a hoax”, no, they don’t in the piece under discussion.
Mark Steyn says on his website
“I’ll have more to say about this when I’ve stopped laughing.”
Put another way, Paul, the climate warriors need a better hero to look up to. This one is a clown.
One other comment. Because Mann is undeniably a “public figure”, as that term is defined in New York Times v. Sullivan, to prevail on any count of his complaint Mann must prove that the alleged defamatory statements were made with actual malice. Mann must therefore prove that the statements were made with knowledge of their falsity and for the purpose of inflicting injury.
Where did you see the “in the eyes of”? Online dictionary defines “posterboy” as :
So the statement would mean that Mann “typifies or represent a particular characteristic of” the “corrupt and disgraced climate science echo chamber”. Such as, say, corruption.
WJR – Mann must therefore prove that the statements were made with knowledge of their falsity – or with reckless disregard as to their truth.
I read the complaint looking for facts that could establish that…all I could find was the business in paragraphs 21 and 30 about government and university investigations that “exonerated” him (and how the Union of Concerned Scientists and “well respected journalists” all agreed the defendants did wrong – oh no!). The implication, to my biased mind, is that Mann thinks Steyn, CEI, NRO, etc. have to believe the government – i.e., if the government says Mann’s innocent of wrongdoing, and you disagree in public, you get sued. That’ll be hard in this case, because in the offending articles attached to the complaint, the writers say why they disagree and provide links…
I don’t look forward to the “circus” and hope the defendants try for dismissal, and summary judgment if they don’t get dismissal, and stay the heck away from a DC jury.
toto–
I didn’t see “in the eyes of” in the CEI or NRO quote and didn’t say I did. We are discussing whether anything about that quote can meet the definition of “defamation per se“.
The “in the eyes of” has to do with whether or not the CEI or NRO quote could hypothetically be defamation per se. I agree with the person above that the quote can only be defamation per se the claim-of-fact in the statement about the posterboy would damage his reputation in the eyes his profession. Damaging his reputation more generally would not meet the criterion for ‘defamation per se‘. (It might be defamation, but it wouldn’t be defamation per se— and the ‘per se‘ bit matters to certain aspects of the legal claim.)
So, with respect to the quote, and the discussion of ‘per se‘, the question not “what is a posterboy” is not particularly relevant. We agree on the meaning of “poster boy”. The question is ” How can that the claim he is “a poster boy” damage his reputation in the eyes of people in his profession? is relevant. Because with respect to “per se” the issue of “in the eyes of people in his profession” is important.
If people in the profession of climate science do not buy into the notion that their own profession is a “corrupt and disgraced […] echo chamberâ€, then Man being a “posterboy” for their climate science cannot lower their opinion of him. Because they don’t think being a posterboy of climate science is bad. (And — since they are climate scientists themselves–CEI or NRO claiming climate science is corrupt is unlikely to make climate scientists think climate science is corrupt.)
So, as far as I can see, the “posterboy” statement cannot be defamation per se because it doesn’t meet the criteria for defamation per se. Manns’ legal papers seem to suggest he is going to advance that argument. But I don’t see how it can possibly prevail.
Here is what Mann had to say about his participation in last nights PBS Frontline Special Climate of Doubt.
https://twitter.com/MichaelEMann/status/260935192116609024
In case he hides it.
Link to the show. http://www.youtube.com/watch?v=A5GVHqlnPAc
Is that Lucia talking with Morano at 1:51 into the show?
Well… yes. But it seems to me neither the defendants nor the plaintiffs are likely to be well loved by a typical person who might be empaneled on a DC jury.
Didn’t Mann just recently win an award bestowed upon him by the people whose opinion of him is alleged to have been lowered by the criticism that is the subject of the lawsuit?
Is Mann claiming that absent this criticism he would have instead won the Nobel? Again…?
.
No. I wore a jean jacket and jeans.
thomaswfuller2 (Comment #105340)
Good point.
Being ridiculed by NRO/CEI would probably raise Mann in the esteem of many of his climate science/activist peers.
Filing the lawsuit raises the profile of the Steyn article.
Is Mann just playing the no-publicity-is-bad-publicity angle? Maybe he’s looking to fill the climate-hero chasm left by Gore.
ok defamatory per se means its so bad you dont have to prove actual damage to reputation.
IMHO Mann is just playing the martyr.
The judge gets deplorable ratings for her past performance.
Was Mann’s lawyer able to “cherrypick” her or was this just the luck of the draw?
If the case later goes to appeal, how is the judge chosen at that time?
I think this is going to depend on what the judge allows in discovery. Those that are antiMann are drooling over being able to actually get into the emails and data. I think those would be extremely damaging to him if they got out, but I’m afraid that the judge is not going to allow it. I think the judge may rule that to defend their statements they are going to have to prove their position with data that they had in hand at the time they made them. I’m not a lawyer but somehow I think this is going to be tried in a technical sense from a law point of view, rather than a chance to really get to the bottom of what skullduggery Mann has been up to.
Just look at what happened in the Virginia case with how they twisted the law to prevent FOI to be enforced.
mosher
Yes. But for the “professional damage” part of “per se” to kick in, you don’t have to prove damages occurred if the statement could hypothetically cause damage in your field.
I don’t see how saying Mann is a posterboy for climate science could even hypothetically cause damage to him in his field. So, I don’t see how it meets the bar of per se.
If that statement could be seen as defamation per se it seems to me this could:
“Joe Blow is the posterboy of the dirty, nasty, stinking, corrupt carsalesman profession.”
And so could these two:
“Care salesmen are dirty, nasty, stinking and corrupt. Joe Blow is the posterboy of care salesman!”
How could either statement even hypothetically damage Joe Blow’s reputation with carsalesman? If those statements can’t even hypotheticallydamage his reputation with that group then it can’t be libel per se. (I think… anyway…)
How Lawyer Andrew would proceed in court:
1. Establish the idea that any graph can be misleading unless you know comprehensively how/with what information it was constructed. Easily done with a short demonstration.
2. Establish the idea that Mann is withholding information.
Andrew
Cui bono, that’s OK. I think AMac lives near London, and can win the case for them.
If someone other than an employer covers your legal bills, isn’t that income that taxes would be due on? Mann is getting big time help to pay for this.
Paul Matthews (Comment #105319): Paul, you’re right! Shows I’m no lawyer. Oh dear…
MikeN (Comment #105365): Go AMac!
Mark Steyn explains how this is the first time in history one Nobel Prize winner has sued another.
http://www.nationalreview.com/corner/331497/nobel-mann-takes-revolting-peasants-mark-steyn
Craig– On the legal bills and taxes: Beats me! Mann is the one suing, so it wouldn’t make sense for Penn State to pay the bills. But maybe there is some way someone can set up a trust that takes in money and then pays the bills. Beats me.
lucia:
It’s not just the eyes of those in his profession that matter. If I accuse a plumber of being the posterboy for a corrupt profession, that could (maybe?) hurt his professional reputation. The fact plumbers disagree with my portrayal doesn’t necessarily mean people looking to hire plumbers would. Insulting many plumbers doesn’t change the fact I also insulted one specific one.
The key here is his professional reputation can be harmed without people within his profession thinking less of him. It’s clearer if you refer to business reputation instead of professional reputation, but I feel weird calling professorship a business.
Will J. Richardson:
This isn’t quite right, but you’re on the right track. Malice doesn’t require intent to harm. It also covers reckless disregard. That’s why you’ll see a lot of lines in the complaint say the defendants knew, or should have known.
Brandon–
I’m mystified by the plumber example. It’s true that if people who are not plumbers come to believe all plumbers are corrupt it will hurt the professional reputation of all plumbers. But it doesn’t seem quite right that one plumber could claim defamation because someone criticized all plumbers. (Change plumbers to lawyers or used car-salesman, you you just have something people say all the time.)
If in addition to criticizing all plumbers, someone mentioned that “plumber A” was an example of a plumber, I don’t see how that really vaults it into defamation of plumber A.
Ok… but maybe I don’t get what “professional reputation” is supposed to mean then. Anyway…. in the case of a professor or researcher, I don’t see how the posterboy line can be
“injurious to another in [Mann’s] trade, business, or profession” even hypothetically. The reason I don’t is I don’t think “harming the reputation of climate scientists or researchers collectively is sufficiently specific to Mann to count as defamation of Mann. Defamation suits are supposed to be of a person.
So if National Review can show that the hockey stick is fraudulent, and Mann engaged in data manipulation to preserve the blade, they are pretty much home free. I don’t think the Sandusky detail will go anywhere.
the key question is, surely, how many dollars Mann can pay his lawyers. I would be surprised, on the basis of his complaint, if any court would let him proceed…but he still has to cover the legal costs. But since the complaint was written by Mann rather than a lawyer, for the technical reasons enumerated above, maybe he has not paid anything yet.
It is a car crash waiting to happen.
diogenes (Comment #105393) ,
“the key question is, surely, how many dollars Mann can pay his lawyers.”
I don’t think so. It is either pro bono or funded by a third party. Mike could not possibly pay these guys the ~$1,000 per hour tab they normally charge.
sorry stevef…I forgot this was lalaland USA
diogenese
Did Mann write the complaint himself? And a lawyer is willing to let him do that? Sounds like a good way to start a case in a deep hole.
The complaint’s signed by his lawyers, so I would find that hard to believe.
Could this be the ‘Climate Science Legal Defense Fund’ going on the offensive?
lucia:
That pretty much sums up the idea.
Why not? If an entire group is defamed, every member of that group has the right to seek redress.
If Mann’s lawyers could somehow prove the sentence was defamation, not just rhetoric (I can’t imagine how this would happen), I don’t see any reason a judge would not consider it defamation per se. All labeling something defamation per se does is shift the burden of proof in regards to damages to the defendant. Rather than the plaintiffs having to prove damages happened, the defendants would have to prove damages didn’t happen.
Shifting the burden of proof doesn’t mean the plaintiffs have any sort of case. The defendants could find meeting the burden of proof incredibly easy, as they would in your example of used-cars salesmen.
I shall await the upcoming “YOU CANT HANDLE THE TRUTH!” moment when Mann is put on the stand.
MikeN
ITS NOT ABOUT THE BLADE
Does anyone know if this goes to trial by jury or will it be heard before the District Court judge?
In either event, the outcome does not seem like a slam-dunk to me. Assuming that there is no technical K.O. as in the case of a blocked discovery process, it seems unlikely to me that the average lay person will be able to follow any of the scientific arguments. He/she is as likely to base judgment on the intellectual weight and reputation of the witnesses called or on the generalised statements of learned societies, which I am sure will be used by the plaintiff, or maybe on the quality of story told about hiding data and results, which I am sure will be used by the defendants. Good time to go long on popcorn.
@Brandon Shollenberger (Comment #105381)
You are correct that the “actual malice” does not require separate proof of an intent to harm. Intent to harm is presumed from the act of publishing defamatory information know to be untrue. The gist of the Supreme Court’s discussion of the actual malice standard commences at page 279, here: New York Times v. Sullivan
Paul_K, it’s possible for either type of trial to happen.
As for your description of how things would play out, I think you’re way off. First, nobody has to follow technical arguments to decide whether or not something could possibly be defamation. Second, since Mann is considered a public figure, he has to prove malice on the part of the defendants. If a jury thinks matters are too complicated, they’re not going to think the defendants knew (or should have known) they were wrong.
Third, and most importantly, you don’t need to understand anything complicated to understand criticisms of Mann’s work. All you have to be able to understand are simple points. For example, did Mann calculate R2 verification scores for his reconstruction? Did he publish favorable ones? Did he hide adverse ones?
It’s easy to show the answer to all three of those is yes, and that alone would be enough to argue for intellectual dishonesty. And there are plenty of other simple examples.
The blade is fixed by math. You can’t not get the blade unless you use another series besides temperature, but whatever you choose be it upwards or downards trends, or even sinewave, you’ll get it.
This one is a particularly amusing looking hockey stick. Somebody should frame it and send it to Mike.
What you’ll also get is the flat-lined 1/f noise outside of the calibration period. Which is obviously junk by visual inspection and confirmed to by junk by more modern reconstructions, like even Mann 2008 (EIV).
Figure.
In my opinion, Mann withheld adverse statistical results then lied about withholding them. You can fantasize that he didn’t if it makes your tummy feel better, but there’s no way to say that’s not a reasonable conclusion to make from the available information.
I don’t think you need to go to legal definitions of “fraud” here before a layperson can declare something as fraud. Definition 2 “Unjustifiably claiming or being credited with particular accomplishments or qualities”.
Carrick writes “The blade is fixed by math.”
In the area of the blade there is “Mike’s nature trick” for Mann to defend. Especially when he said he never stitched temperature records onto proxy records (but it appears he did to create his favourable smoothing)
Brandon
Does defamation law permit that? I mean quite specifically: Does defamation law in DC permit an individual plumber the right to sue for defamation if someone says something harmful and false about plumbers collectively? I can’t say I know what defamation law says, but if it permits this, I’m rather surprised.
lucia, there is nothing in any defamation law I’ve seen which would prevent it. I can’t think of any reason it would be prevented either. Defamation isn’t okay because it targets a group, and it isn’t reasonable to require a group collectively file a defamation suit.
Of course, a suit like that can be thrown out as frivolous if the judge thinks there is no chance damages actually happened.
Paul_K
I think a judge always does some initial rulings to screen for certain hurdles. So, in principle, a judge can throw things out entirely so it never reaches a jury. So a judge can potentially throw the matter out entirely. After that, I’m not sure. I think the choice of jury/judge might be up to the plaintiff/ defendant. On, the other.. both? I don’t know.
Brandon,
Seems I have been saying very bad things about lawyers and used car salesmen as a group for a very long time. But I am not worried about a defamation lawsuit, since the truth is an absolute defense. 😉
Carrick said:
I agree that this is Mann’s area of greater vulnerability. The verification r2 was very much at issue at the time of the NAS panel, but they avoided it. Mann told the NAS panel that he hadnt calculated a verification r2 statistic for MBH, though he had.
It would be far more rational for him to let sleeping dogs lie. This has nothing but downside for him.
Steven Mosher,
READ THE FILING, IT IS ABOUT THE BLADE!
Brandon write:
I agree.
Despite all the “inquiries”, none of them contain a clear statement of facts on this longstanding issue. Mann gave false evidence to the NAS panel on this point as well, something that may come back to haunt him.
This issue also ties directly into Mann’s “dirty laundry” email (which was about the residuals), since verification r2 could be directly calculated from the dirty laundry. Without the refused residuals, one had to attempt to replicate Mann’s reconstruction from scratch – something that no one had come close to prior to Ross and me.
Brandon’s plumbers would need a class action, IMHO
Brandon, I think that you are leaving out an important distinction. Saying that plumbers/lawyers are corrupt is an opinion, and is protected speech. Saying that a particular plumber is a posterboy for plumbers is also an opinion. It doesn’t matter what damage that does to the reputation of a plumber or plumbers in general.
Defamation amounts to asserting a falsehood as fact, resulting in damage to the plumber’s reputation. So, if I say that Joe the Plumber cheated me, when he did not, I have defamed him.
I have every right to say all lawyers are scum. Variations of this appear in numerous movies, books, etc. It is an opinion that can be neither proven, nor disproven. It is so common that no judge would believe that my assertion has resulted in additional damage.
I can say that climate scientists are frauds, and Mike Mann is a posterboy for climate scientists. Both of those are opinions. If I assert that he is a fraud because X, Y, Z I open myself to a defamation suit because X, Y, Z can be proven or disproven. I can also say that male strippers are sleazeballs (opinion), and, therefore Mike Mann resembles a male stripper(opinion). Being compared to a male stripper may or may not hurt his reputation, but it isn’t defamation. Neither is being compared to Sandusky.
Brad Pitt’s Chanel No. 5 commercial is one of the stupidest commercials in history. That’s my opinion. Does it hurt Chanel’s or Brad’s rep? Does it damage the add campaign (maybe no one wold have noticed it, if people weren’t talking about it negatively)? Maybe, but I am still allowed to say what I like about it.
Certainly, very few people would notice Mann if people weren’t talking about him negatively.
This is the original Sandusky reference from Steyn’s article: “could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.”
While the comparison to Sandusky is morally objectionable, it isn’t in the legal sense. Can Steyn defend the second half of the sentence? The climategate emails would tend to support the “in service of politicized science” piece. There are plenty of statistics experts to support the “molested and tortured data” piece, though these are hyperbolic, non-technical terms. And I don’t think anyone would argue the “dire economic consequences” piece.
lucia, you asked, “Does the fact that many people clearly were saying bad things about Mann prior to the articles matter to a defamation claim?”
From writersservices.com: “If the person already has a bad reputation, then a defence is that no further damage is possible since ‘actual damage’ is an essential element for a libel claim.”
So, maybe.
MikeN
“So if National Review can show that the hockey stick is fraudulent, and Mann engaged in data manipulation to preserve the blade, they are pretty much home free. ”
Mann didnt do anything to preserve the blade because the blade is instrumental.
His flaws all related to the shaft
MrE:
You cannot have a class action lawsuit if the individuals involved do not already have the right to file a lawsuit. Class action lawsuits do not magically create a right to seek redress. They merely offer certain advantages, such as reducing the time and financial burdens on the individuals.
Tamara:
Definitely. That’s why I said:
I can’t imagine it being found to be defamatory. I’m merely pointing out that if it is defamatory, it’s not unreasonable to say it is defamatory per se.
lucia:
There are always stages before a jury gets involved where a judge determines if the case should go to trial. After that, whether it is a bench trial or a jury trial depends on a number of factors. As a general rule though, if a jury trial is requested, it’ll happen (except when dealing with trivial cases).
I find it interesting Mann’s complaint stresses the desire for a jury trial. Those are more expensive and time consuming. That means he wants to pay (or have someone else pay) more to make this a bigger deal.
Now that I think about it, when talking about this suit, Mann is encouraging people to donate money to some climate defense fund. It wouldn’t be uncommon for something like this to be put forward for fundraising purposes even if the lawyers thought it’d fail.
I wonder if I’m being cynical to suspect that.
Mosher:
Not true. For example, the trick everyone has heard about was all about the blade.
Mike N “Mann engaged in data manipulation to preserve the blade”
No, his methods didn’t even require any temperature signal in the proxy data to preserve the blade. The only problem in the blade part is the temperature proxys tending to diverge from instrumental temperatures outside or at the end of the calibration period.
Niels: “The only problem in the blade part is the temperature proxys tending to diverge from instrumental temperatures outside or at the end of the calibration period.”
The calibration period was 1902 to 1980 according to the lawsuit.
Didn’t the divergence happen in 1960? So in fact the blade from 1960 to 1980 was being preserved.
Brandon Shollenberger (Comment #105457)
For once, I agree with Mosher. Disappearing the MWP and LIA (with the accompanying huge uncertainty bars) gives the blade more prominence than it deserves.
“Indeed, they did not simply “hide the declineâ€, their “hide the decline†was worse than we thought. Mann et al did not merely delete data after 1960, they deleted data from 1940 on”
http://climateaudit.org/2011/12/01/hide-the-decline-plus/
TimTheToolMan:
Fair enough. It’s fixed by the math over the calibration period.
He did fudge the temperature record.
In fact with CPS you can get any shape you want.. and it will fail R2-verification just as badly as Mann’s did.
MikeN:
Once he introduces the hockey stick graph, it’s all fair game.
There’s so much he’s done wrong in making one graph, it’s rather like a smorgasbord for the defense.
Duke C.:
While that is certainly true, it isn’t actually agreeing with Mosher. Neither the fact most of what Mann did affected the shaft, nor the fact those effects altered how the blade was perceived, means Mann’s “flaws all related to the shaft.”
The Competitive Enterprise Institute’s preliminary legal analysis of the lawsuit by its lawyers is here: http://goo.gl/bytZ6
I imagine Mann could lose on an- SLAPP motion before the case goes very far. I think DC has an anti-SLAPP statute.
http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation
The defense can move for dismissal — that is, they can claim that the facts (not the legal conclusions) in the complaint, even if proven true, do not establish liability. I’d do that in their place — I’d argue that their facts (“we were cleared by Penn State and the government!”) are not enough to establish “actual malice” (“Steyn knew that I don’t manipulate data!”). They can do this before discovery. If the judge dismisses without prejudice, Mann could try to come back with a better complaint.
After discovery, the defense can move for summary judgment – that is, they can say, “The plaintiff cannot marshal enough evidence to prove an essential part of the claim.” The plaintiff has to respond by presenting evidence — affidavits, deposition transcripts, etc. — to show they can. If they succeed, it goes to trial; if not, not. I think they should try both things, because these are matters of law and if the judge doesn’t grant them, they can be appealed in a way a jury verdict can’t.
Under the Seventh Amendment, either side has a right to trial by jury in suits “at common law.” Which I believe the Supreme Court has read to mean, “in any lawsuit that is similar to an 18th-century common law suit.” Since libel and slander were common law suits, this counts. Mann demanded trial by jury in this case, and I dare say he wants it. Though if what I just read about the judge is true, then it could be bad news for the defense either way if the case makes it past summary judgment.
No need to fear Tunnels will prove Mann correct…………
Manns complaint itself contradicts the blade. In para 2 of the complaint it refers to the steep rise in temperatures since 1950, whereas the blade of the stick (1998) clearly shows a steep rise since approx 1910. So which is it?
Joseph W. (Comment #105478)
The judge is exactly what I was afraid of and somehow I don’t think that was a random draw.
Mann now being accused quite unfairly of faking his Nobel Prize certificate. Quite untrue, it was Pachauri who faked it.
Steveta, it seems it is not that unfair, at least if what the Nobel Prize committee as really stated what is alleged in this paper :
http://www.examiner.com/article/professor-mann-claims-to-win-nobel-prize-nobel-committee-says-he-has-not
Anyway he opened the Pandora box : now we are going to get the good, the bad and the very ugly… I also believe that his constant use of denier term to qualify the skeptics is really indecent. This term was used to qualify those who denied the reality of the Shoah.
Tibor – thanks for that link. Geir sounds very definite:
//
Geir Lundestad, Director, Professor, of The Norwegian Nobel Institute emailed me back with the following:
1) Michael Mann has never been awarded the Nobel Peace Prize.
2) He did not receive any personal certificate. He has taken the diploma awarded in 2007 to the Intergovernmental Panel on Climate Change (and to Al Gore) and made his own text underneath this authentic-looking diploma.
3) The text underneath the diploma is entirely his own. We issued only the diploma to the IPCC as such. No individuals on the IPCC side received anything in 2007.
//
But Climate Depot support Steveta’s take:
http://climatedepot.com/a/18179/Update-Climate-Depot-corrects-Nobel-Committee-on-One-Point-The-Committee-as-reported-by-Examiner-incorrectly-claimed-Michael-Mann-had-added-text-to-his-UN-IPCC-issued-Nobel-certificate
Curious, yes that’s what I understood in Steveta’s comment, but if Pachauri gave you such a certificate and if you did not receive any document from the Nobel Committee, would you have made such a claim ? If you look at his recent tweets he considers for his part that this claim is absolutely normal. I consider it’s pathetic.
Strange isn’t it, it’s almost as if Mann believes that a member of Usain Bolt’s athletic team, say his physio, won Gold medals too…
Of course, it is possible that Mann didn’t realise that his certificate had been created by the IPCC/Pachauri rather than the Nobel Committee! Surely, he couldn’t be that naive, could he?
It would be interesting to ask Lundestad if the IPCC/Pachauri had obtained permission in advance before reproducing the Nobel iconography by the thousand…
Tibor – I reread Geir’s comment and then I read Mann’s facebook entry para 3:
//
‘Dr. Mann is a climate scientist whose research has focused on global warming. In 2007, along with Vice President Al Gore and his colleagues of the Intergovernmental Panel on Climate Change, he was awarded the Nobel Peace Prize for having “created an ever-broader informed consensus about the connection between human activities and global warming.”‘
//
and then the second para of his defamation action which concludes with the sentence:
//
‘As a result of this research, Dr. Mann and his colleagues were awarded the the Nobel Peace Prize’
http://legaltimes.typepad.com/files/michael-mann-complaint.pdf
//
So to me it is pretty clear that the views of Geir and Mann are at odds. The complaint document goes on about Mann being an IPCC lead author etc and in para 17 it reasserts he shared the Nobel Peace Prize “with the other IPCC authors”.
I guess a definitive letter from the Nobel Institute will be presented in court. Must say with his snotty “birth certificate” tweet I’d expect he’s reduced the chances of it being a letter of support.
Curious, I think Michael Mann is entering a megalomaniac phase and you are right his attitude deserves him but maybe it is a deliberate action in order to be considered as a victim by his followers, a step further toward a political involvement.
not deserve sorry it is a gallicism I meant is detrimental…
steveta_uk (Comment #105482)
October 26th, 2012 at 4:10 am
Manns complaint itself contradicts the blade. In para 2 of the complaint it refers to the steep rise in temperatures since 1950, whereas the blade of the stick (1998) clearly shows a steep rise since approx 1910. So which is it?
################
Paragraph two is a shambles. Mann had nothing to do with documenting the rise in temperatures this century nor the steep rise in the latter half.
Complaint is more than a bit rambling. But the superfluous stuff probably makes the client happy. Maybe he wrote it. It almost seems as if the real injury alleged is how dare anybody sneer at a scientist of such global stature.
Defendants have heavyweight firm but can’t imagine anyone would want to actually litigate this.
I never liked the use of “corrupt” or “fraud” even in a defensible context. I prefer “politicized” “arrogant” “insular” “clubby” and “biased”.
Defendants have heavyweight firm but can’t imagine anyone would want to actually litigate this.
I think a lot of plaintiffs’ firms would say five words – “Get me to the jury.” A jury that’s been through U.S. public schools in recent times has gotten plenty of Green propaganda, maybe been shown An Inconvenient Truth in class. Now here’s a chance to punish dirty, evil deniers. What will a jury do? No one knows and that’s frightening.
While I do think the case is weak under the law, I’ve seen weaker cases than this settle – because the defense is afraid of how the jury will redistribute wealth, if they get the opportunity. That’s why the pretrial motion practice is so important here – it’s a chance to kill the case in a way that’s subject to review by the appellate courts, so that even a very biased judge is under some constraints.
Defendants have heavyweight firm but can’t imagine anyone would want to actually litigate this.
I think a lot of plaintiffs’ firms would say just five words: “Get me to the jury.” If the jury’s been through U.S. public schools in recent times, they’ve been subjected to a lot of Green propaganda – may’ve been shown An Inconvenient Truth in class. Give them an opportunity to punish some “deniers” and who knows what they’ll do?
The case is weak under the law, I agree, but I’ve seen weaker cases settle because the defense was (properly) afraid of what a jury would do given the chance to redistribute some wealth, for reasons that have little to do with the law. That’s why the pretrial motion practice is so important – it’s a chance to kill the case in ways that can be reviewed by the appellate courts, so that even a very biased judge is limited in ways a jury isn’t.
(Tried to post before but it seemingly vanished – if I double posted please delete one.)
“steep rise in temperatures since 1950”
Don’t you mean “shallow rise from 1950 to 1979 of .05C and then a steeper rise (matched by 1909 to 1943) to 1998 and then flatline”?
curious, given that Michael Mann has with impeccable logic laid claim to being a recipient of the Nobel Peace Prize…..
My congratulations to every living person in the European Union!!!
You too are now by this logic also individually winners of the Nobel Peace Prize. As a bonus gift, you are also allowed to claim one important scientific discovery as your own.
Bruce, if you’re talking about Mann’s reconstruction, it would be “steep decent after 1960” … being as his reconstruction diverged from the global record.
If you find this confusing, the nice people at SkS have put together this series of talking points for you. With Mike’s blessings of course.
Maybe the Nobel prize should be equally divided…. about 25 Euro cents per person. Mike surely is deserving of this; maybe more.
SteveF, think of the 25 Euro cents as offsetting the printing cost of the certificate.
I almost forgot… if your portfolio is decline you are also allowed to invoke the Briffa Bodge one time so that your portfolio decline is actually an increase in value.
In true climate science fashion, this *apparent* dissimilarity in sign [â„¢] “simply doesn’t matter.”
I’m really taken by the expression “apparent dissimilarity in sign.”
I resolve to get it written into a paper that I’m reviewing.
Carrick,
“I resolve to get it written into a paper that I’m reviewing.”
Crap, that reminds me: I owe two reviews to journals. I need to print out the papers before I travel to Colombia on Sunday.
I’m surprised Mann overlooked claiming to be Time Magazine “2006 Person of the Year”. At least that would have been legitimate since everyone in the world was awarded that. 🙂
Defendants have heavyweight firm but can’t imagine anyone would want to actually litigate this.
I think the case is weak under the law, but I also think a plaintiff’s counsel would utter five words: “Get me to the jury.” If the jury went to U.S. public schools in recent times, they’ve gotten their share of Green indoctrination – may’ve even been shown An Inconvenient Truth in class. Maybe they’ll follow the law scrupulously and maybe they won’t, but it’s a scary proposition.
I’ve seen cases weaker than this settle – I think because the defense was afraid of the jury’s “adventures in redistribution.” That’s why the pretrial motion practice is so important – it’s a way to get rid of the case without facing a jury, and since motions for dismissal or summary judgment are matters of law, they can be reviewed by the appellate courts in ways a jury verdict can’t. That puts a curb on even the most biased judge.
Seems the rodents over at Rabett Run have doubled down and all believe Mann has been awarded the Nobel Peace Prize.
Amazing stuff over there, wow!
re: Rabett Run, all those pesky hardcore facts seem to get in the way. Its the “idea” that Mann was awarded a Nobel peace prize that they want to believe in and it doesn’t matter so much if he wasn’t actually awarded one as such.
Unfortunately for Mann, law is very precise and if Mann claims to have been awarded a peace prize then that will be seen as evidence he will twist the truth to his own purposes.
Strangely science is also very precise…the difference is its only obvious when one is twisting the truth after a very difficult and complex reproduction process and we can only thank people like Steve McIntyre for their tireless efforts in doing so.
Carrick, do you know where I can get my Nobel prize certificate ?
Meh, I shouldn’t have singled out Steve McIntyre on this site in particular because there so are many people here who take it upon themselves to dig a lot deeper than the average AGW believer. Lucia most definitely included. Anyway, you know who you are and I for one greatly appreciate your efforts!
Georges, I prefer too “arrogant” and the rest than fraud, during the First World War a french scientist claimed Germans were inferior than Frenchs because Germans drunk beer and and Frenchs wine.
Jon P (Comment #105533)
October 26th, 2012 at 11:21 pm
Rabbet Run is one of the places I don’t go to. Far too seedy.
Joseph W.:
Personally, I think they should skip moving for dismissal. First, it grants them a chance for discovery. I suspect they’d want that. Second, a dismissal gives Mann a chance to rewrite the complaint. It’d be easier to get a summary judgment in their favor if Mann’s complaint is as it is now than if it were rewritten.
Not only does that prevent him from refiling, it gives them a win. If the complaint just gets dismissed, Mann will say he didn’t lose. He’ll say it was just legal whatever. A summary judgment will prevent that.
It sounds somewhat petty to win just to make Mann lose, but it’s important since Mann is criticizing the defendants in the media. He’ll have a much harder time doing so if a judge flat-out says he has no case.
Either you aren’t familiar with all the nonsense Mann has done, or you have a very different outlook on these things than I do. If I were the defendant in this suit, I’d want a jury trial. Michael Mann wouldn’t be a sympathetic character, so what worry is there?
Unless you think the jury would be crazy-biased to support the AGW movement (given it’d take place in the United States, you can be almost positve it wouldn’t), there is nothing that would make them side with Mann.
TIbor:
Send me your email, and I’ll make you a copy and send it to you. (That will be 0.25 euro if you want a hard copy, please.)
That counts. Mike says it does.
Carrick–
Make Tibor send a birth certificate first. 🙂
Bradon
I’m just guessing demographics of a DC jury. If I base it entirely on my preconceived notions of the demographics of DC, I don’t know who the jury will dislike more: The plaintiffs or defendants!
Carrick, I’m really disappointed I thought this was my share for the Nobel Prize, I cannot spend everything just for the certificate, I have to keep something for my humanitarian actions. Thanks anyway.
I doubt if this case stays in DC. Steyn and National Review are in New York, outside the jurisdiction of the DC courts. They can either refuse jurisdiction, or have the case remove to the federal court of their choosing.
Tibor–
Come on. We know that’s just an excuse. You are trying to avoid sending Carrick your birth certificate!
Yes it is true, I’m too old a man !
>Mann didnt do anything to preserve the blade because the blade is instrumental.
>
>His flaws all related to the shaft
The complaint refers to people saying he manipulated the blade. I think hide the decline covers the blade well enough, even if the primary e-mail is Phil Jones.
I doubt if this case stays in DC. Steyn and National Review are in New York, outside the jurisdiction of the DC courts. They can either refuse jurisdiction, or have the case remove to the federal court of their choosing.
No, they can’t, at least not on the basis of jurisdiciton. The complaint cites the DC ‘long arm statute’ and the basic test for personal jurisdiction comes from International Shoe v. Washington. Basically, if you or your company has enough ‘minimum contacts’ with another jurisdiction, the courts in that area can get personal jurisdiction over you, and as the complaint points out, Steyn and NR publish things to be read in DC all the time.
Since one of the defendants (CEI) is located in DC, I doubt they could successfully challenge the venue, either. Whether NR or Steyn could get their case severed from the case against CEI (and then move their case be transferred for improper venue) – this is beyond my knowledge but I doubt it. In general federal case law favors trying related cases all together, and these cases are closely related.
In general, if more than one court has jurisdiction over a case (and the defendants), it’s the plaintiff rather than the defendants who gets to decide which court that is. (Exception: if both state and federal courts have jurisdiction, then the defendant can “remove” a case from state to federal court; but this is DC.)
Unless you think the jury would be crazy-biased to support the AGW movement (given it’d take place in the United States, you can be almost positve it wouldn’t), there is nothing that would make them side with Mann.
If only that were true! D.C. votes in presidental elections, and it is a very very blue “state” – went 85% for Al Gore (in 2000) according to the records at that link. Add that to the way our schools and MSM cover “Green” issues — I think it all too likely that a DC jury would indeed be heavily biased towards the noble, heroic champion of science versus the dirty, evil right-wingers. You can never know for sure, but I would not have much confidence if the case gets that far.
In some cases, a dismissal might be a waste of time — if the facts exist so that the plaintiff could actually come back with a sufficient complaint. In this case, however, I have considerable doubts whether Mann could even colorably come up with facts that show Steyn & Co. believed he doesn’t manipulate data, yet said so anyway in public. The implicit “the government cleared me and you have to believe the government!” – strikes me as not only weird, but creepy. I’d never throw away an issue like that.
And if the judge improperly denies a motion to dismiss, that is simply one more appealable issue.
Discovery is two-edged…at the very least, Mann’s lawyers get to take depositions of the defendants, and grill them mercilessly. If they can squeeze out something that sounds like an admission (I can imagine the line of attack – “So you didn’t graduate college! You’re not a climate scientist! You don’t know whether my statistics are good! You don’t know if I’m right but you wrote about it anyway!”), they might create something to take them past summary judgment. I suspect Steyn will hold up well even under the hardest examination – but I would not give them the chance for free in his place. No indeed I wouldn’t.
MikeN:
Mine is somewhat different. I know the tricks people used to “hide the decline” bother people, but truthfully I’m more bothered by failing to report adverse results, and then lying about never having calculated them.
I do not know much about U.S. legislation but I think Steyn would have very good lawyers too and the right to investigate in what Mann has concealed. What do you think about the arguments given in these two papers?
http://www.forbes.com/sites/timworstall/2012/08/24/suing-mark-steyn-for-libel-has-michael-mann-ever-heard-of-oscar-wilde/
http://www.forbes.com/sites/larrybell/2012/09/18/climategate-star-michael-mann-courts-legal-disaster/
The first one is really great I think!
I’m not sure it will fly though. It’s possible the judge will rule that the defense can’t get much in the way of discovery– I suspect that sort of depends on the precise nature of the defense. Also, even if they get discovery, maybe they’ll need to keep it confidential? (I don’t know– I have no idea what happens in these sort of cases).
We’ll see. I think we are seeing a case where there are backers with plenty of money willing to risk being out of pocket. Both sides would rather have the story under public discussion for political purposes. Popcorn futures look bright.
Carrick, you are not being sued by Mann, and the main points mentioned in the lawsuit were fraudulent hockey stick, and manipulation of the blade.
Joseph W, how related do the cases have to be? NR is mostly quoting from CEI, and adds in just a little editorial comment. Mann is nevertheless suing them for different speech. CEI withdrew the ‘Jerry Sandusky of climate science’ comment. So who should be found guilty of defamation for this comment, the ones who quoted CEI, or the ones who withdrew the comment?
Joseph W, how related do the cases have to be?
I can’t answer that definitively, but I can give you a taste. In law school we studied a case called Lasa per l’Industria del Marmo Societa per Azioni v. Alexander (how did I remember the name of that case? Because I sang it to the tune of “La Donna e Mobile.”) An Italian company sued a whole bunch of defendants over a contract to supply marble for a Tennessee courthouse. The defendants brought a whole bunch of claims against each other, not based on the contract that was the basis of the original suit. The appellate court said, no matter; the claims all “arise out of the same transaction or occurrence” and should be tried in one case…
You can also see how the evidence in one case would be relevant to the other case. For example, all the defendants can win if they demonstrate that Mann actually did the things he’s accused of doing — so as a matter of judicial economy, it makes sense to have that issue tried once, by one jury, in one court, instead of two or three times by two or three different juries in two or three different courts.
There’s much more to it and it really goes beyond my knowledge to say whether the defense could have the cases severed; all I can say is, don’t bank on it.
Both sides would rather have the story under public discussion for political purposes.
…which they can accomplish, and have accomplished, out of court without the lawsuit. (Actually, what Mann wants is for his opponents to shut up and stop discussing it.) If you’re suing for money, you should go to court for only one reason: to get the money. If you’re being sued for money you should go to court for only one reason: not to pay the money. If you can accomplish that goal without going to court and “rolling the dice” — that is the wiser thing. Going to court to humiliate or “expose” the other side is a mug’s game, talking over-eager clients out of that game is an important part of a good lawyer’s work, and I hope none of the defendants are foolish enough to play it if they don’t have to.
Remember, Mann’s asking for punitive damages. Punitive damages are based on “how much do you have, and how much does it take to make you hurt”? The sky’s the limit, and I don’t think anyone would be foolish enough to be willing to pay those just for the sake of publicity – not when there are much cheaper ways of getting publicity, and the parties here know how to use them.
JosephW
I don’t disagree. But “should” may not be what’s important here.
Agreed. but even good lawyers sometimes fail to talk their clients out of doing something foolish. If it’s horrifically foolish, some won’t take the case. But this may fall in the borderline foolish range. I don’t know enough about trying these things to really know.
Joseph, thank you for sharing your knowledge, unfortunately I’m afraid it is the mug’s game option here. In case of trial is Michael Mann obliged to give access to all the samples he had ? And in such a case, do you think it will be easy for both parties to show cherry picking did occur or not ? And what if Mann for a reason or another cannot show the samples ?
Joseph W.:
There is an enormous difference between “biased” and “crazy biased.” Crazy bias involves… crazy. As in, the jury would have to be completely unwilling to listen to views that contradict theirs.
I suspect you already know this, but I want to point it out because some people miss it. Mann doesn’t have to show the defendants believed anything. All he has to show is they should have known what they said was false. It’s a much easier burden to meet.
Depositions do not allow Mann’s lawyers to “grill them mercilessly.” Nobody has free reign in depositions. If somebody used the line of attack you describe, a decent lawyer would give them a funny look and tell his client they’re leaving.
None of this is free. The only question is how much money do the lawyers cost versus how much money the case generates via fundraising.
Well, that and if the defendants could recover their costs/countersue.
Joseph W.:
This isn’t true, at all. There are many reasons to go to court when suing/being sued, and it’s not just about the exchange of money.
lucia:
The scope for discovery is very wide. At the very least, the defendants would be entitled to see everything which might indicate Mann’s work was fraudulent. As such, they’d be entitled to see everything he used to produce his results. They’d also be entitled to see any communication with co-authors or colleagues regarding his results. So forth and so on.
The biggest problem is most discovery in civil suits is handled by the defendants and plaintiffs. The court doesn’t get involved much. That means the defendants would have to try to get Mann to release certain things, and if that doesn’t work, turn to the judge to get her to compel him to. It can be a huge hassle, and depending on the judge, there are lots of little things that can go wrong.
As for confidentiality, I believe most things turned over can be shared freely unless there is some agreement/ruling which forces the parties to keep them confidential.
Definitely. Lawsuits don’t have to be filed or fought because either side cares about the suit itself.
Brandon, I’d like to think you’re right, but things can go wrong, especially if a jury are bamboozled into an ‘us vs. them’ conflict. Remember OJ?
cui bono, there are lots of things that can go wrong in a trial, and it’s possible to lose cases that seem like they should be open and shut. The thing is if there is going to be a miscarriage of justice, it will almost always be in favor of the party the jury likes. Mann isn’t particularly likable, so…
If people only got to hear Mann’s side of things, they might feel sympathetic for him. But once they start hearing about all the BS he’s pulled, they’re going to just see him as a dishonest prick. They’re not going to see him as some scientist that got dragged into a battle not of his choosing after they see how much self-promotion he does.
Sure, a jury may not like the defendants much, but someone like Mark Steyn is far more likable than someone like Mann.
Moshpup,
“Steven Mosher (Comment #105421)
October 24th, 2012 at 11:24 pm
MikeN
ITS NOT ABOUT THE BLADE”
Keep repeating that enough times and a few people will actually believe you!!
HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA
Brandon, I was thinking more of leftist DC types on the jury being spun a yarn by Mann’s lawyers about a much-respected climate scientist with many awards (ok, not the Nobel) and no axe to grind (ha!) vs. evil right-wing snippy journos.
Juries here in the UK tend increasingly to consist of benefit claimants and retirees, as employed people shy off due to work pressures. Now let the jury know about Steyn’s views on benefits…
I dunno. Let’s see how it goes.
212th chance to prove Mann committed fraud. This time!
Boris,
Outside certain extreme skeptical groups, I don’t think anyone has claimed the Mann committed “fraud”. At the same time, no one has has followed his work, even his allies, denies that his claims were not entirely supported by his work – i.e. his conclusions are suspect. Furthermore, none of the allegations rise to the level of academic misconduct, at least so far. At the same time, his claims to have been completely vindicated are patently false. Wegman did not vindicate him; North did not vindicate him.
Mann has embellished his results, just as he embellished his claims to the Nobel prize. That leaves him vulnerable. Unfortunately that also leaves all the good science about global warming vulnerable as well. Guilt by association may be a logical fallacy but that is how people think.
Joseph W
What do you think are the pros and cons for the defense, of removing the case to federal courts?
John, check out this from one of Mann’s defenders. He essentially shows Mann did commit fraud, though he walks away from the thread as he sees the conclusion forming, saying he will get back to it later.
http://arthur.shumwaysmith.com/life/content/michael_manns_errors
There is an enormous difference between “biased†and “crazy biased.†Crazy bias involves… crazy. As in, the jury would have to be completely unwilling to listen to views that contradict theirs.
But I don’t agree that you’d need “crazy bias” for the jury not to follow the law here. Suppose, for instance, that the trial is full of technical issues and the jury simply doesn’t understand what they’ve just heard. What will they do? One possibility is that they find for the defendants (“if we don’t get it, the plaintiff hasn’t met the burden of proof”). Another is that they’ll revert to their biases, and find for the Good Guy over the Bad Guys. And since the Good Guy is in the business of Saving The Planet — use damages to bankrupt the villains.
I don’t think my view of human nature is overly jaundiced, but I very much fear a D.C. jury (and quite a few other American juries) could easily follow the second course, and I wouldn’t bet my life savings the other way.
I suspect you already know this, but I want to point it out because some people miss it. Mann doesn’t have to show the defendants believed anything. All he has to show is they should have known what they said was false. It’s a much easier burden to meet.
No, that isn’t so here. I believe it is the general rule under D.C.’s defamation law (“at least negligence” is the standard you’re referring to), when the plaintiff and defendant are private parties. But when the plaintiff is a public figure (as Mann is) and the defendant is media (i.e., “Press”), then New York Times v. Sullivan applies — that’s constitutional law based on the First Amendment, and as such it overrides D.C. law. It was crafted for cases just like this — where freedom of the press runs up against defamation law.
Under that standard, the plaintiff has to prove “actual malice.” Which means he has to prove either that the defendants believed their statements were false, or else made the statements with “reckless disregard” as to their truth. So, under the law, if Steyn & Co. believed they were telling the truth about Mann – they win; and in fact Mann has to prove they didn’t believe it (either disbelieved it, or didn’t care if it was true or not). Whether a jury will follow the law is a separate question.
Depositions do not allow Mann’s lawyers to “grill them mercilessly.†Nobody has free reign in depositions. If somebody used the line of attack you describe, a decent lawyer would give them a funny look and tell his client they’re leaving.
At which point, the opposing lawyer asks the judge for a court order to force the client to answer the questions under pain of contempt. And if the judge is as described in the O’Sullivan article I linked above, what happens…? She gets a lot of discretion.
But even if Mann’s lawyers prefer a gentler approach, my point remains. “Mr. Steyn, please tell us about your higher education…please tell us about your training in statistics…about your training in climatology…” etc. etc. — they can still use that to try to establish “actual malice” (“Steyn doesn’t know climatology, yet he dares to comment on a climatologist’s work that he admits he doesn’t understand! So take us to a jury.”) Discovery can give the plaintiff ammunition he didn’t have before; which is why it’s better to at least try dismissal before getting into discovery.
None of this is free. The only question is how much money do the lawyers cost…
I didn’t mean “free” in the sense of “no monetary cost” (at a deposition you’ve got to pay for the court reporter as well as the lawyers) – I meant “free” in the sense of “without first challenging the sufficiency of the complaint.”
This isn’t true, at all. There are many reasons to go to court when suing/being sued, and it’s not just about the exchange of money.
If it’s (1) a money case, and (2) you can get the money/refrain from paying the money, (3) without going to trial – then it is foolish to go to trial. A lot of clients don’t see that. They fantasize about humiliating or “exposing” the other side in public or imagine they will feel “vindicated” by a verdict out in public. And when the verdict isn’t what they were expecting, as often it isn’t – they’re poleaxed.
(Now in some cases, money isn’t what’s at stake — for example if you’re trying to get a law found unconstitutional in a civil rights suit, you may not be satisified with damages even if you’re seeking them; but that is a different kind of case from this.)
What do you think are the pros and cons for the defense, of removing the case to federal courts?
I can’t give you an intelligent answer for this D.C. case; I never practiced in D.C.
In some states, there are big differences between the juries – since the federal court sits in a larger city, the jury is more urban, and that makes a difference for the outcome. I wouldn’t think that was an issue in D.C., but again, I do not know D.C.
Also – I assume the removal would have to be based on diversity (since defamation is not a federal claim per se), so the defense would have to prove that the plaintiff is seeking over $75,000 in damages. Where I come from, federal courts are very quick to remand a case back to the state court if the defense can’t prove that, and savvy plaintiffs will refuse to commit themselves on the issue of how much they want (notice that this complaint does not seek a particular amount of money; just “whatever is determined by the jury”). So whether it’s even possible to remove it and make the removal stick — this I do not know. But I bet that the defense counsel in this case do know, and we’ll find out soon enough if they think they can.
In case of trial is Michael Mann obliged to give access to all the samples he had ? And in such a case, do you think it will be easy for both parties to show cherry picking did occur or not ? And what if Mann for a reason or another cannot show the samples ?
Thank you kindly! #1, that’s what discovery is all about, but I don’t know what will happen in this case;
#2, it’s beyond my competence to answer this question;
#3, then no doubt the defense would want to point this out to the jury if it gets that far, as evidence that Mann is everything the authors said he was.
But what the jury will do with that information – whether they will understand it and draw the conclusion the defense wants – this I do not know.
Thanks Joseph, I also take good note of the fact “freedom of the press runs up against defamation law”, for the second point you already answered the question in fact : it can be very difficult to make accessible to the jury the scientific facts.
Joseph W.:
Okay, I’ll admit there is another possibility than the jury being crazy biased. The defendants could instead have completely moronic lawyers who for no good reason decide to get bogged down on detailed, technical points. The problems with Mann’s work are not complicated or difficult to understand.
If you want to see for yourself, try skimming/reading this. I wrote it about Mann’s book, but it still covers a number of things one could easily explain in a trial. Warning, it was originally a PDF file, and the formatting doesn’t look as good since that is a blog post.
Or you could just read my earlier comment in this thread.
I’m not sure I see the difference between “should have known” and showing “reckless disregard,” but you’re welcome to whichever phrasing you prefer. The more important point is what you say is wrong. The defendants in a defamation suit cannot get off the hook simply by saying they believed what they said to be true. They have to show that belief was reasonable.
I don’t see any value in pursuing a disagreement on these points since they’re not relevant to the topic at hand, but I want to stress I disagree with you. Very strongly.
I’ll be closing comments on this thread because it’s too long. Add new comments here:
http://rankexploits.com/musings/2012/mikes-nobel-embellishments/