I. Basic Conclusion
The Supreme Court in a couple of decisions, State Farm Mutual Automobile Insurance Co v. Campbell (2003) http://www.law.cornell.edu/supct/html/01-1289.ZS.html and BMW of North America, Inc. v. Gore (1996) http://www.law.cornell.edu/supremecourt/text/517/559, has held, basically, that punitive damages, as circumscribed by Due Process, are limited to a multiple of actual damages in the range of 4 to 10 times actual damages. It doesn’t appear that Mann has sustained any financial damages as a result of the claimed defamation that is the basis of his lawsuit. Thus, although there are significant subtleties and qualifiers to my conclusion, I think it is very probable that the dispute between Mann and the defendants is basically, in financial terms, a fight over $10.
…
II. Major Assumption
…
I see no evidence that Mann has lost income as a result of the criticisms leveled by the defendants. If he has suffered substantial financial damages, this post is moot and useless.
…
III. Damages Generally and the Application of Constitutional Law to Damages
…
In the context of defamation law, there are generally 3 types of damages: 1. Actual, financial damages; 2. Presumed damages for matters such as mental anguish or humiliation; 3. Punitive damages which are designed to punish egregious behaviors in the context of civil law.
…
Comparatively recently, the Supreme Court has held that Due Process places a limit on punitive damages because the awarding of this class of damages tends to be highly unpredictable. In the view of the Supreme Court, punitive damages can be so irrational as applied as to violate Due Process. (See State Farm and Gore).
Being the most recent case, State Farm is most important. The most important holding of State Farm was that “in practice, few awards exceeding a single-digit ratio between punitive and compensatory [financial] damages, to a significant degree, will satisfy due process. In Haslip, in upholding a punitive damages award, we concluded that an award of more than four times the amount of compensatory damages might be close to the line of consitutional impropriety.†(P. 14 opinion in State Farm) However, the Court qualified its statement by holding that “there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than we have previously upheld may comport with due process where ‘a particularly egregious act has resulted in only a small amount of economic damages.’†(p. 15 opinion State Farm) In Gore, the court stated that: “the relevant ratio [of permissible punitive to actual damages] was not more than 10 to 1.†(P. 13 opinion Gore) Since the first modern case law limiting punitive damages was decided, I have not seen the Court suggest that anything above 10 times actual damages was permissible for a punitive damages award.
…
In a nutshell, what I believe the Supreme Court is holding is that unless an extraordinarily unusual set of circumstances is presented, 10-times actual damages, is the practical limit for punitive damage awards.
…
IV. Applying Due Process Principles to the Mann Defamation Case.
…
My bottom line is that if Mann went to trial and prevailed on his claim that he was falsely and maliciously defamed, I believe it is very probable that the most he would receive in damages would be $10. I don’t think that the behavior of political columnists in making [assuming for the sake of argument] over the top/false statements about the quality of Mann’s work is so egregious or reprehensible that the Court would depart from its 4-10 punitive damages to actual damages ratio. A major factor in my analysis is that climate science/advocacy is a highly charged and contentious field. For instance, see the common use of the term “denier†with holocaust denial implications, and Mann’s email to Andy Revkin calling Steve McIntyre’s work was “pure scientific fraud.†(see http://climateaudit.org/2014/08/22/epa-on-manns-fraud-invective/ )
…
V. Presumed Damages
…
Presumed damages are a traditional element of defamation damages where a plaintiff can show that he has been libeled per se. (False statements that are defamatory on their face, such as alleging that someone has committed a crime are labeled defamation per se.) Mental anguish is probably the most likely candidate for the recovery, potentially, of presumed damages in Mann’s case. However, the only authority I could find (my sources for DC law are not great, so if anyone else has better sources, please provide input) was the Digital Media Law Project, which was not as thorough as I would like. It did state though: “The District no longer allows presumed damages for defamation per se directed at public figures, following the U.S. Supreme Court’s decision in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). See El-Hadad v. United Arab Emirates, 496 F.3d 658 (D.C. Cir. 2007) (affirming unpublished lower court decision implying that presumed damages are no longer available for public figures).†See http://www.dmlp.org/legal-guide/district-columbia-defamation-law
…
Additionally, as mentioned by the DM Law Project, there are Consitutional issues with respect to whether presumed damages would be recoverable in defamation cases, partly on the basis of Gertz. Between, the DM Law Project analysis, Gertz, and Allstate, I think there are very substantial hurdles to any award of presumed damages in this case. So the issue of presumed damages does not play a major role in my analysis of the likelihood that Mann would only probably receive nominal damages if he were to win the case. However, it is something that has to be examined and considered.
…
VI. Attorney Fees
…
A very important collateral issue is whether Mann would be entitled to attorney fees if he prevailed on his defamation claim. Generally, courts have held that where there is an intentional or malicious action, the plaintiff is entitled to attorney fees. For instance, the Court in Alyeska Pipeline Svc. Co. v. Wilderness Soc’y 421 U.S. 240 (1975) stated: “when the losing party has “acted in bad faith, Page 421 U. S. 259 vexatiously, wantonly, or for oppressive reasons. . . .” F. D. Rich Co., 417 U.S. at 417 U. S. 129 (citing Vaughan v. Atkinson,369 U. S. 527 (1962)); cf. Universal Oil Products Co. v. Root Refining Co.,328 U. S. 575, 328 U. S. 580 (1946). I don’t know whether DC follows the general rule and am open to comments from others more knowledgeable than me.
…
However, assuming that DC follows the general rule, almost certainly the attorney fees would greatly exceed the recoverable damages. After several appeals and a trial (if, for instance, Steyn gets his wish), it is very probable that each attorney involved would be owed at least $750,000 in attorney fees. If traditional rules were followed and Mann won $10 in his suit for proving malicious defamation, there is a very good chance that his attorney would receive a very large attorney fee award.
…
I think it is useful for people interested in this lawsuit to ponder the issue of the consequences of a situation where the attorney fees almost certainly will dwarf any potential recovery by the plaintiff.
…
Concluding Observations
…
I don’t believe Mann’s attorney understood the difficulty of this case when he accepted it and filed it. I think he believed that Mann was a Nobel prize winner and had been exonerated 8 times. The facts show that Mann was not a Nobel prize winner and that only 2 weak “investigations†“exonerated†Mann of improprieties in the handling of data. Mann’s attorney’s partly legitimate misconceptions (I think he should have vetted his client more thoroughly, though) have led to a situation, where, in all probability, the attorneys have more of a financial interest in the case than do the parties. I think that it would be a positive influence on American defamation jurisprudence to have a continuing spotlight on the issue of what the recoverable damages by Mann are compared to what the attorneys will make as the case continues on.
…
Additionally, to give lay people perspective on how unpredictable legal proceedings can be, I am providing a link to the absolutely disgusting treatment of “Paul†(mostly due to pure chance) as explained by a former judge beginning approximately one-fifth of the way through the article. http://prospect.org/article/how-harvards-sexual-assault-policy-imperils-feminist-quest-justice
An analysis in which I concur. Mann’s university position and grants have obviously not been affected. He publishes regularly (e.g. His recent attempt to rebut Curry’s Stadium Wave paper. If anything, he has maybe sold more of his hockey stick wars book.
On the other hand, Steyn’s countersuit claims $10 million damages for being labeled a libeler. Hard to see that, either.
Rud: ” Steyn’s countersuit claims $10 million damages for being labeled a libeler. Hard to see that, either.”
…
I agree. JD
Am I correct in saying that your analysis hinges on ‘per se?’
I think the lawyers knew what they were getting into. Aren’t they being paid by the Climate Legal Defense Fund?
Mike N “Am I correct in saying that your analysis hinges on ‘per se?’”
…
Not quite. My analysis hinges on whether Mann has suffered any financial damages. Secondarily, there is an issue of whether presumed damages are collectible if Mann were to prove libel per se. The DM law project says they aren’t although their analysis is skimpy. There are also potential constitutional barriers to the collection of presumed damages as I mentioned above.
JD
JD Ohio: “I think it is useful for people interested in this lawsuit to ponder the issue of the consequences of a situation where the attorney fees almost certainly will dwarf any potential recovery by the plaintiff.”
Did you research whether a Rule 68 offer would have affected attorneys’ fees in this type of case if they’d made one?
JB: “Did you research whether a Rule 68 offer would have affected attorneys’ fees in this type of case if they’d made one?”
…
No, but you ask a very subtle question that in reality is not applicable to this case because of the underlying dynamics. By making the offer of judgment, the defendants would be admitting that they defamed Mann — they will not do so. If this were a situation where Rule 68 could be practically applied very subtle issues would arise. See http://settlementperspectives.com/2009/02/claims-for-attorneys%E2%80%99-fees-how-rule-68-can-sometimes-help/
JD
JD, Thank you again for your observations.
I think we discussed earlier whether Mann’s attorneys might be working on a contingent fee basis. I suppose there is no way to know, but clearly if they are they would be delighted if Mann is awarded attorney fees plus $50.
I assume that if they are being paid by Mann’s admirers (well there must be some somewhere) then they would be indifferent since the money would go to back to the funders.
I’ve seen two situations where the progress of the things became of far greater interest to the attorneys than to the plaintiffs possibly to the detriment of the plaintiff’s interest. Flogging a dead horse isn’t nuts if it can produce a payoff, at least for somebody.
JD Ohio: “No, but you ask a very subtle question that in reality is not applicable to this case because of the underlying dynamics.”
Thanks. I don’t recall ever dealing with Rule 68 in my day, but your question brought it to mind. Although I’ve felt the English Rule could benefit us on this side of the pond, the distressing frequency with which clients decided to proceed even though we assured them that only the lawyers would come out ahead made me wonder about what mechanisms the Brits might use to shield the loser from attorneys’ fees too out of proportion to the possible damages.
J Ferguson: Attorney Fees
…
My gut feeling, as expressed before, is that Williams is working on mostly a contingent fee basis. If he was being paid on an hourly rate, it would have been a big money maker for Cozen, and it is unlikely that he would have left or been asked to leave. Also, he hired a lower rate lawyer to do some of the writing on the briefs — if he was getting paid by the hour, he would normally not delegate work to someone outside of the firm.
JD
J Born: English v. American Rule on Attorney Fees
…
When I was a younger attorney I tended to favor the English rule but not now. If the loser pays attorney fees, really large companies can bankrupt individual plaintiffs or their attorneys and basically be impervious to their legal liabilities.
…
Think of Microsoft. Several million dollars is nothing to it. So if they don’t like a lawsuit, they simply work the plaintiff to death. If somehow, the plaintiff survives and does win attorney fees, Microsoft doesn’t care because the payoff is so small to them. Their calculus would be that if they work plaintiffs to death, in the long run, their working of the plaintiffs accrues to their favor because it would strongly discourage additional suits. If they lose any particular suit, they don’t care much because they would want to intimidate individual plaintiffs keep them from filing at all. In the bigger picture, the English Rule seems to me to favor large companies greatly as compared to individuals.
JD
There’s an interesting and acrimonious D.C. defamation going on concurrent with Mann which questions the scope of “libel per se” in modern D.C. See article here http://dcslapplaw.com/2014/08/20/doctors-slapp-at-yelp-reviewer-largely-dismissed-by-dc-superior-court/ which has the many filings.
As I understand it, the tort of “libel per se” (as opposed to “libel”) does not exist in all states and, additionally, the scope of the tort varies by state.
The issue in Washington Travel Clinic v Kandrac is whether the tort of “libel per se” in modern D.C. is limited to imputations of criminal conduct involving “moral turpitude”, or whether the other terms of the 19th century D.C. tort as set out in Pollard v Lyon 1875 survive:
There do not appear to have been recent D.C. defamation cases involving libel per se arising from statements about being “infected with a contagious distemper”. In some 19th century jurisdictions, the other libel per se tort was imputation of unchastity to a woman, again not a commonly argued libel per se tort in modern D.C.
The lawyers in Washington Travel Clinic v Kandrac appear to have quite thoroughly canvassed D.C. libel per se cases, but in my reading of the briefs, I didn’t see any libel per se cases in the past 75 years (and perhaps longer) pleading the term “prejudicial in a pecuniary sense to ..person engaged as a livelihood in a profession or trade”. Ironically one of the filings by the plaintiff cites weisberg’s decision as a precedent for the continued existence of the tort, though Weisberg’s comment cited cases that had nothing to do with the scope of libel per se in modern D.C.
In some old-fashioned libel per se cases, defendants were successful in obtaining dismissal when the plaintiff had failed to plead damages and the claim did not fit within the four corners of libel per se.
By claiming under libel per se (the same tort claimed by the Southern segregationists in NYT v Sullivan), Mann, like the Southern segregationists who also suffered no actual damage, avoided pleading damages. The Southern segregationists in NYT v Sullivan were awarded punitive damages by Alabama courts.
Mann’s implausible rhetoric that the various statements (“data manipulation”…) imputed “commission of a criminal offence” are designed to fit the square peg into the round hole of libel per se, but it doesn’t really fit.
It seems unclear whether the second Pollard v Lyon term for defamation per se (“prejudicial in a pecuniary sense to a person in office or to a person engaged as a livelihood in a profession or trade”) still exists as a tort in modern D.C. or whether the plaintiff has to show damages. It will be interesting to see how Washington Travel Clinic v Kandrac proceeds, as this could dispose of Mann’s case on grounds that no one has talked about yet.
JD, I also think that attorney Williams completely misunderstood the EPA decision as it related to Mann’s work. It’s the one “investigation” where Williams’ line departs from SKS and it’s the one investigation quoted at length in the Statement of Claim. Williams also appears to have misunderstood the loose connection between the EPA’s Myths vs Facts press kit statements and the actual documents.
Thus, Williams seized on the press kit statement that said that there had been no “manipulation” of the temperature data sets as pertaining to Mann’s proxy reconstructions, even though the EPA made no such statement (and avoided making such a statement) in connection with Mann’s work on proxies.
JD Ohio: “the English Rule seems to me to favor large companies greatly as compared to individuals”
Yes, I know how this argument goes; each side can conjure up situations that militate in favor of one or the other rule’s being more just; there are reasonable arguments on both sides.
Still, it’s unclear to me how Microsoft’s not having to worry about paying the other party’s (okay, to it, minimal) attorneys’ fees makes it any less likely to litigate the opponent into destitution.
JD Ohio:
Very nice analysis.
Of course, should Mann lose his case he would not be entitled to attorney fees.
Since that is the probable outcome of this case – I thought that should also be mentioned.
RickA and JD,
If Mann loses, might Steyn be awarded his fees?
JD
I’ve always wondered about plaintiffs being award high fees from losers. I don’t know a broad enough number of cases to know how rules would affect many cases, but it often seems to me that there should generally be some sort of upper bound to fee shifting to losers that goes beyond something like “reasonable hourly rates”.
For example maybe the fees awarded should be limited to the amount the losing party — particularly a defendant– paid his own attorneys. This would at least limit the burden on a losing party in your “microsoft” case. Yes, the party might have to pay double his own attorney’s fees– but at least a very wealthy client can’t create ridiculously punishing fees by hiring attorneys to do time consuming but not “unreasonable” preparation for court. (Maybe such a rule exists?)
I know I’ve also often gotten the heebie-jeebies on class-action suits. It often seems to me that attorney’s fees should be limited to the amount in cash actually paid out to members of the class. The credit for ‘payment’ should occur only when the member of the class actually cashes whatever check is sent them.
My recollection may be faulty, but I believe I once read of some class action where members of the supposed damaged class were sent coupons to redeem for merchandize from the company that supposedly damaged them. That is rather ridiculous. ( I know that with respect to Sears and my crummy dishwasher, I would NOT want to be sent a coupon to buy more stuff from Sears as any sort of ‘remedy’ for whatever gripe I might perceive with my dishwasher. Cash on the other hand– ok.)
I’m all for lawyers or people trying to step forward to help people who have been injured. But there is a certain point where there has really been little or no injury. I don’t think there is much need for judges to ‘reward’ lawyers with payment for stepping forward above and beyond what a client will pay in some of these instances. With respect to Mann’s case, I tend to think each party should be required to cover their own attorney’s fees– and most especially the plaintiff who brought the case.
“With respect to Mann’s case, I tend to think each party should be required to cover their own attorney’s fees”
A question for JD, or some other lawyer: if the case is dismissed on SLAPP grounds, the court may award costs of litigation to the defendant. What is the practice? What considerations have been cited to justify an award or non-award?
Joe
If I correctly understand JD Ohio’s argument, the problem isn’t Microsoft worrying or not worrying about having to pay the other parties fees.
The problem of incentive is the other way around. The big pocket party (Microsoft) has in incentive to drive up their own legal fees knowing they are putting the little guy at risk of having to pay Microsoft’s fees. So, the small pocket guy assumes a huge risk because his own costs might be a very heavy burden for him, and the risk assuming Microsofts legal fees are astronomical for him. Even if he thinks he could win, court is always uncertain and this could be a very useful strategy for the ‘big pockets’ party.
So big pockets parties have access to a strategy of driving up their own costs in those cases that are filed against them in order to make filing cases against them potentially too costly for little pockets parties who need to think about “what happens to me if I lose?”
If there is one area where environmentalists are skilled, it is law. It seems to me they have given up convincing the public at large of anything and have relied almost exclusively on progress via lawsuits and EPA regulation for decades now.
It wouldn’t surprise me at all if there were climate warrior lawyers lining up to defend Mann pro bono. It’s all for a good cause, you know.
The thought that Mann was economically damaged is humorous. If there is one huge red flag in all of the climate science debate, it was how Mann was embraced as a hero after the flaws of the HS were documented. At the time I just could not understand why this was happening, it seemed so wrong. Naive. It hasn’t got much better since then, but at least they don’t put the HS on the cover of IPCC reports anymore, I guess that is something.
IP law. You want “put them out of business with lawyers” scandal, look no further. This area is so corrupt it might as well be the mafia running it.
I could go on a tirade about software patents, how a jury of our peers make judgments on patent law and DSP algorithms, but suffice it to say I have seen a company I started go under by the very real threat of a patent lawsuit. Cost of trial: $2M to $5M. Revenue of the company at the time $1M/year. That’s an easy business decision to make, it doesn’t matter if you are right. Welcome to the free market.
Patent’s obviously invalid? So what, spend millions and years pushing that challenge through the patent office with a huge cloud over your company…..and when you don’t have millions.
But I’m not bitter, ha ha.
I recognize the need for patents in areas like pharmaceuticals, but I also recognize abuse of the system.
.
From listening to Lawyer Williams on the audio transcript of the November 25th 2014 hearing, one can sense from the tone of his voice, and generally from his verbal phrasing and his verbal mannerisms, that he now realizes he is on very shaky ground with the eight purported Mann exonerations.
.
If Lawyer Williams went into this lawsuit on a contingent fee basis without doing his homework on the basic facts, and is now facing the real prospect of losing his own investment in time and effort as a direct consequence, perhaps he also realizes that he has likely ‘been had’ by Dr. Michael Mann, LLC* — someone who is, in my humble opinion, merely a canny scientist-entrepreneur who is in the business of promoting and selling his line of Michael Mann Paleoclimate Research Products within the global warming industrial complex.
.
*LLC — Limited Liability Climatologist
>The big pocket party (Microsoft) has in incentive to drive up their own legal fees knowing they are putting the little guy at risk of having to pay Microsoft’s fees.
Burst managed to demonstrate Microsoft obstruction in court in their own patent dealings, to the point that they got a huge settlement from MS. They basically paid off 50% of company value as a dividend, and tried to sue other people, and the company ended up nowhere.
lucia: “The big pocket party (Microsoft) has in incentive to drive up their own legal fees knowing they are putting the little guy at risk of having to pay Microsoft’s fees.”
Yes, that is the usual argument, and it is indeed internally consistent. I didn’t read JD Ohio’s saying that, but I guess that’s neither here nor there; the argument does have some validity.
I think the argument on the other side is more compelling, but, as you say, we do want to limit the attorneys’-fee award to a reasonable level. Your idea of paying the other side’s lawyers no more than you paid your own is interesting, at least if combined with other criteria.
Currently a defendant can in some cases limit his exposure by making a pre-trial settlement offer that turns out to be at least as good as the verdict, although, as JD Ohio pointed out, that approach has traps for the unwary under the currently applicable statutes and rulings.
A comment I posted some time ago at Climate Etc is relevant to the main post:
“A few thoughts about libel law. First, the law of libel certainly has a legitimate place in the law. The father of one of my law school classmate was the victim of an alleged vicious libel. He was a bank officer and was accused of bank fraud by an investigative TV reporter. As a result he lost his job and was never again able to find work in his field. Tragically, he died before his case came to trial and under American law a cause of action for defamation does not survive one’s death so he was never able to vindicate his reputation in a court of law. Had he been able to prove his case in court, he would certainly been justified in obtaining whatever compensation the jury awarded. This type of case illustrates why the law recognizes a cause of action for defamation.”
“Does anyone seriously think that Steyn’s offhand remark in a blog post caused Mann any professional harm whatsoever? Among Mann’s professional peers, I doubt that any of them pay the slightest attention to the offhand remarks of a conservative polemicist such as Steyn. Among those in Steyn’s intended audience, Mann’s reputation was already in shambles and the belief that the hockey stick is fraudulent was already widely held. Sure one can argue that an accusation of fraud is libelous per se and therefore entitles Mann to nominal damages. Is that what this case is about? Or does Mann think that the verdict of a Washington D.C. jury as as to whether Steyn acted with malice when he wrote that the hockey stick was fraudulent will somehow settle the hockey stick issues to anyone’s satisfaction?”
“Will this lawsuit protect Mann from future libels? Yes, to a very limited degree. To avoid the risk of litigation editors will, upon seeing the words “fraudulent†hockey stick, cross out “fraudulent†and substitute “discredited†or “dubiousâ€, words that to the casual reader have a similar import, but are not actionable. If Mann is trying to establish a marker, he will be as successful as someone who tries to change the course of the Potomac River by driving a stake in its midstream.”
“The fact of the matter is that Mann’s reputation stands or falls, not based upon Steyn’s witticisms, but upon the more serious work of persons such as Steven McIntyre and the scientific community’s assessment of it. That is where this debate belongs, not in a D.C. courtroom.”
http://judithcurry.com/2014/03/25/trial-of-the-century/#comment-504650
I believe Mann’s legal expenses are being paid by a third party. Thus Mann himself is not out any fees and can’t get reimbursed and the attorneys are already paid.
On the other hand, Steyn’s counter suit does indeed have attorney fees as damages.
The tort system could have been a superior choice in protecting individual rights and properties and avoiding the supposed need for the government regulations that have little or no flexibility in delivering justice. It would have served the problems of AGW well. Unfortunately that system as it now stands has been corrupted and, while perhaps not intended, appears better applied to enrich the trial lawyers than serve justice. Tort reform should be a very high priority particularly in the US, but that appears not to be the case because of trial lawyers’ influence on politicians. Perhaps we need to build on arbitration courts as the better or more flexible alternative here.
I also am of the opinion that IP law needs a hard look with some rethinking of the basics of what should be considered intellectual property and why.
Tom Scharf: “I could go on a tirade about software patents, how a jury of our peers make judgments on patent law and DSP algorithms, but suffice it to say I have seen a company I started go under by the very real threat of a patent lawsuit.”
At least theoretically, the English Rule might have afforded a chance to get a wealthy risk taker to finance your side of the lawsuit. (Attorneys’ fees already are sometimes awarded in infringement suits, but usually not.)
Patent law is an unavoidably blunt instrument; we have to take the bad with the good. In the case of software patents, though, my assessment is that the good doesn’t even remotely justify the bad. I’d like to see them eliminated. Unfortunately, although I think I know a software patent when I see it, I’ve never come up with a good definition of what one is.
J Ferg: “If Mann loses, might Steyn be awarded his fees?”
Without doing any significant research, my first impression is no. It would be hard to argue that Mann’s suit is frivolous when 2 judges have upheld it, and I can’t think of any other grounds to award Steyn attorney fees.
JD
Lucia: “I’ve always wondered about plaintiffs being award high fees from losers.”
…
First off, I agree that the attorney fees awarded in class action suits are disgraceful when compared to the worthless work done by the plaintiff’s attorneys. I remember once getting $10 coupons from an airline class action lawsuit and trying to use them when booking my flight. Couldn’t do so because I was told I had to go to the airport in person to book my flight. What a joke.
…
With respect to high fees in general pertaining to plaintiffs, a big part of the problem is that defendants, even if the plaintiffs have a meritorious suit, fight plaintiffs very hard so as to deter additional suits.
…
A case I handled for 10 years may give you some perspective as to the potential validity of fees awarded to plaintiffs. A good friend of mine had a state concession for 10 years and literally did a perfect job. It came up for bidding, and the state awarded the bid to a totally unqualified bidder with no experience — his only qualification being he was an active member of the governor’s political party. The successful bidder was so unqualified that the professional people working for the state were enraged and eventually turned over to me their internal documents showing how unqualified the successful bidder was and demonstrating that my friend had submitted the best bid.
…
I sued under the First Amendment and federal civil rights grounds. (Sec. 1983) My friend was a Vietnam veteran who had been shot 3 times in Vietnam and was so upset about hearing rumors that he was going to be denied the bid that he lost 20 pounds worrying. He lost everything he had and had to take a low paying concession position in Florida. After 6 months he doubled the business and became the toast of the town and ultimately was very successful in Florida. I knew if I could get the case to trial, whatever I asked for from the jury, I would get in damages.
…
The case went back and forth for 10 years in the federal courts with me winning several times on interlocutory appeals but ultimately the federal court of appeals ruled that my friend had no case because, even though his First Amendment Rights had been violated, his rights were not clearly established at the time that the defendants denied him the contract.
…
There are several points here in reference to your inquiry. 1. I obviously had what almost all people would consider to be a meritorious case when viewed on pure justice [not legalistic justice] grounds. 2. Notwithstanding that I lost the case. 3. I probably saved the State of Ohio 20 or 30 million dollars by stopping its abusive bidding practices that had just begun after a new governor took over. 4. If I had gone to trial and won, I would have gotten a very large attorney fee award. However, a big reason for the award would have been the large amount of time spent was the State’s action in trying to protect its ability to shaft bidders. 5. The ultimate point being that if individuals are to have rights against large entities, their lawyer’s fees have to reflect all of the work they do and that some claims that should be filed will lose for any number of reasons.
…
Also, with respect to the English Rule pertaining to attorney fees, if that had been in effect, I would have never even considered filing the First Amendment suit. I knew that it would be difficult, but if there was a chance that it would bankrupt the client, it would have never been filed.
JD
J Born: ““The big pocket party (Microsoft) has in incentive to drive up their own legal fees knowing they are putting the little guy at risk of having to pay Microsoft’s fees.â€
Yes, that is the usual argument, and it is indeed internally consistent. I didn’t read JD Ohio’s saying that,…”
That is what I meant.
JD
Speaking of defamation, there’s the recent case of Alan Dershowitz. Apparently you can say pretty much anything about anybody in a legal filing if you don’t actually plan on doing anything. That is the subject of the allegations has no opportunity to rebut the claims in court and can, in fact, be sued for libel if he accuses the attorneys who submitted the filing of false statements.
Here’s one of the ones we were up against:
Claim 1: A system that reads electrical input=i, a (software)process by which input i is separated in components signal=s and noise=n, and signal s is used for the rest of algorithm.
Obviously I am paraphrasing but that is what it was. I referred to it as “the right answer patent”. How did it get through the patent office? The old fashioned way, keep refiling it until you get an incompetent patent examiner.
If you are a software or embedded systems engineer, never go looking at software patents in your technology area. You will find plenty of garbage like this and the damages clock starts ticking the moment you are aware of the patent. The chances you will actually find something innovative in a software patent is approximately zero.
JD Ohio,
I’m not against large attorney fees in all cases. In particular, cases against a State or the Feds are expensive to lodge and the State and Feds can and do ‘spend’ a lot to defend. When they do, the person pursuing clearly needs to spend their own ‘real’ money out of pocket and if any limit of the sort I suggested would likely be moot — because the state and feds did spend a lot (provided you do the accounting correct.)
I’ll admit– I’ve not thought out the rule that suggested itself to me vis-a-vis hypothetical Microsoft behaving in ways to make it to risky for small potatoes people to sue Microsoft. But the motivation of my rule is to somewhat protect the “small potatoes” guy– and not Microsoft or States.
I thik that was my take all the while…I read QB17….the upshot was damages of 1 penny. Libel courts are not where you discuss science.
ok …I am English…there is no point in me making any claim in tort unless I had made special financial arrangements. Unless I am bankrupt, a murderer or a millionaire, I have no recourse to the legal system.
diogenes,
After carefully reading contracts offered us by attorneys who we were considering for a contingent fee suit, we decided not to pursue it, concluding that such suits were available to the indigent and the very rich – not us. This in the US with what was assuredly an actionable provocation.
We considered this thing with two firms, each of whom seemed quite interested assuming our description of the situation was accurate, and it was. Although their contracts with us differed in some respects, I came away feeling I had more to fear from them than from the court.
I have to assume that most people don’t read these things carefully.
This is in no way intended to suggest that the contracts were in any way improper, they both in their attempts to protect their interests from craziness on our parts, girded their loins with every manner and method of converting their interest from contingent to instead be paid for by us at their customary fees – more or less at their “sole discretion”. If there hadn’t been two of them and both similar, I’d never have believed it.
Diogenes,
I think you meant “QB VII” ?
http://en.wikipedia.org/wiki/QB_VII
Now some, not Eli to be sure, might think there are some other weeds out there that could make the damages significantly higher (although the timing is tight or precient). Anyhow, if you are going to pick nits, Eli wants to play.
DeWitt Payne: “Speaking of defamation, there’s the recent case of Alan Dershowitz.”
Having witnessed a number of miscarriages of justice up close and personal, I have have sympathy for the victims. For some of the reasons expressed in today’s Wall Street Journal, though, I can’t spare much of it for Mr. Dershowitz.
Eli,
That article doesn’t explicitly mention dates. But tons of the events discussed clearly predate the July 15, 2012, “Jerry Sandusky of Climate Change” op-ed. Nothing that occurred prior to July 15,2012 can be counted as damages by that op ed. In fact, my impression is that article makes things worse for those claiming CEI, Steyn and Simberg damaged Mann. All that is evidence of not getting a job could show (if true) is that Mann’s reputation was already low, and so not damaged by the defendant.
Lucia that’s simply the divergence problem: in recent years, proxy records as recorded in internet sediments, simply do not match Mann’s own recollection of his reputation – for some completely unknown reason.
However if somebody were to splice proxy records from older dates (say prior to about 1998/1999) to Mann’s recollections after that date (obviously *nobody* would), it would clearly reveal a hockey-stick like rise in negative hot air about Mann, following the release of Steyn et al’s defamation into the atmosphere.
@ Copner:
lol +10
Now some, not Eli to be sure, might actually read that article and determine that every reference relates to before the Steyn article was published, except for this passage:
Now some, not Eli to be sure, might note that the last e-mail exchange between “Das Krapital” and anyone at UV was three days before the Steyn article was published.
And some, not Eli to be sure, might wonder why someone appears to have been drinking spiked carrot juice so late in the day.
Just a perspective about attorney fees from UK. Was wondering how the little guy established his rights against big players : ““In some areas of civil litigation costs are disproportionate and impede access to justice. I therefore propose a coherent package of interlocking reforms, designed to control costs and promote access to justice.†Accordingly, Lord Justice Jackson recommended permitting barristers and solicitors in England to enter into damages-based contingency fee agreements, but prohibiting shifting the costs of after-the-event insurance premiums and success fees. These reforms were adopted in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and will progressively come into effect, with contingency fees expected to be effective in April 2013.
If the United States’ experience with contingency fees is any guide, these reforms will bring significant benefits. It is more likely that impecunious claimants with meritorious, high-value claims will be able to find representation.” http://www.jdsupra.com/legalnews/contingency-fees-in-england-after-april-75476
JD
J Ferguson: Contingent Attorney Fees
…
Some perspective on contingency fee agreements. Unless something is spelled out in an agreement all the ambiguities or holes in a fee contract are construed against attorneys because attorneys have fiduciary obligations to clients. It is not unusual for clients who think they are clever to try to back out of an agreement after the contingent fee attorneys have done a lot of work. On other occasions clients can be quite unreasonable, so contingent fee agreements are written quite stringently, but unless there is a major blowup caused by major bad faith on the part of the client, there is really no expectation that it will be enforced on the part of the attorneys. Of course, they won’t tell you that, but that is what happens in practice.
…
Attorney fee contracts are completely negotiable on the part of clients, so if there were items you thought were unreasonable and could explain why they were unreasonable in a practical sense, a lot of attorneys would modify their agreement. (of course, not all. You need a thick skin to do this.) If you had a good case that had the potential for making money for the attorneys on a contingency basis, if you looked hard enough you would have probably found a firm that could have handled your case on terms acceptable to you.
…
A couple of examples of unreasonable clients from my previous workers’ compensation practice, so there is an understanding of why the fee contracts are written so stringently. I had a weak case that was dismissed during the preliminary stages for a completely wrong reason. I told the client that the court’s ruling was incorrect but that I didn’t think he should appeal because his case was weak. He insisted on appealing. I told him to send me the $50 filing fee for the appeal. He refused to do so. The case wasn’t worth $50 to him, but he was happy to have me spin my wheels and waste my time for no practical reason.
…
I had a widow’s case that required the overturning of 3 Ohio Supreme Court cases, which I could see was very possible. I appealed to an appellate court and asked that the matter be stayed pending the resolution of the Supreme Court cases. It turned out that I was right and she won her case, getting significant benefits. However, she didn’t want to pay her attorney fees after I won the case.
…
The bottom line is that you are right that the terms are quite stringent. However, in my experience in Ohio, there is little expectation that will be enforced unless the client becomes totally unreasonable.
JD
JD Ohio,
I was in a profession, architecture, with considerable exposure to difficult clients. I could see that a lot of what I didn’t like in the two contracts was there to protect the attorneys from time wasting by clients who may have been less than forthright about some of the details of their complaint. My solution would have been that the attorneys would have several weeks to assure themselves that the matter was what it seemed to be and worthy of their time, but after that, failing the emergence of some well concealed lie, they were on for the ride on a contingency basis and could not convert to time and expenses at their sole discretion if things didn’t go well – resign maybe, but I hadn’t thought through the effects of that.
My suspicion is that you are right about Williams and that he is soldiering on at his own expense on a matter he didn’t understand, or perhaps for a client he didn’t adequately interview when he signed on.
But my fear and I think diogenes’, was that litigation of this sort is for the wealthy or the indigent, the rest of us could find our hair cut very short by adverse turns in the course of a suit, maybe even trimmed by our own Counsel.
And yes, there is no doubt that a contingent fee “opportunity” can have great risk for the attorney, but then who better could there be to assay the risk before diving in? William’s activities make me wonder. You, too?
I haven’t seen it…but such a rule would be subject to abuse in cases with ideological content, where a lawyer committed to the “cause” could file nuisance lawsuits pro bono…so that, even if the suits had no merit, the other side couldn’t recover.
Overall the strength of the American rule is that it strongly encourages settlements in civil cases – regardless of which side is the richer. It works especially well in contract cases, from what I’ve seen — contract cases don’t have punitive damages or emotional distress damages, at least most of the time they don’t. That means nobody can fantasize about giant stacks of money that will “make back” all the legal fees.
If you’ve ever been involved in a long will contest, you may’ve seen what I’m talking about — that some people will fight ridiculous positions out of spite and daydream greed until finally the legal costs bring them to their senses.
But cases like this, which are fought for intimidation more than money, are cases where public policy shouldn’t favor settlement…that’s why it’s so good for SLAPP statutes to have fee-shifting provisions (and why it’s a shame that the judge gets discretion on whether to award fees with a dismissal…and since any dismissal now will be from a ruling that the trial judge himself erred, I doubt he’ll be in the mood to loosen the purse strings).
My gut feeling is that money damages were never the principal incentive. This is a pure SLAPP suit. Look at Mann’s history of suing anyone who publicly questions his work. And I doubt the lawyer took the case on a pure contingency…damned if I would. Or would have, in view of the fact that I am long retired.
Lot of interesting and relevant angles to this case.
http://www.dispatch.com/content/blogs/your-right-to-know/2015/01/murray-appeal.html
http://www.dispatch.com/content/blogs/your-right-to-know/2014/12/slapp.html
These articles are partially pay-walled. You may have to go through Google search to get to them. If anyone had noticed and presented it to the DC Court, this case would have been a good illustrative example of the positive force that Anti-Slapp laws can have.
JD
JD Ohio,
With these contributions:
“Since 2010, he has contributed $9,775 to Supreme Court Chief Justice Maureen O’Connor; $10,425 to Justice Sharon L. Kennedy; $6,325 to Justice Terrence O’Donnell; $4,100 to Justice Judith L. French and $3,450 to Justice Judith Ann Lanzinger.”
.
should the judges not recuse themselves… making it essentially impossible for the court to hear the appeal?
On what possible basis could someone “contribute” to a seated supreme court justice?
J Ferguson,
You contribute to their campaign because they are elected officials. As unseemly as elected campaigns for judges can be, federal judges who are appointed for life can be even worse. Frank Batisti was a bully and a Cleveland judge who destroyed the Cleveland schools with busing. Robert Duncan was a federal judge in Columbus who ordered the merger of the Columbus and suburban school districts through busing and who destroyed the Columbus schools through busing. The ordered merger of the school districts was effectively overturned in a 5-4 decision by the Supreme Court in Milliken v. Bradley.
…
Steve F: Recusal,
There is definitely an argument for recusal, but, without researching it, I am not sure that it will happen. Undoubtedly, there are reasons for recusal and cases dealing with it, but I am not familiar with them. Two practical points. 1. An easy legitimate way to dodge the issue would be simply to exercise its discretion and not hear the appeal. (The court only hears about 250 cases per year and I am sure that several thousand appeals are filed.) 2. Were the Supreme Court to hear the case, there is a good chance that they would rule against the coal company. The justices are keenly aware of their elected status and that taking contributions and ruling in favor of the coal company would give opponents a major campaign issue.
JD
J Ferguson: Comment 134893 — Contingency Fee contracts
…..
Several points about contingency fee contracts. First, in most cases lawyers are committing to several years of work without getting paid for their time. So, they need to protect themselves from clients who will bail on them after they have done a lot of work. Your suggestion about seeing if everyone got along after several weeks would not be reasonable to virtually every contingency fee lawyer, so they would not agree to drop all protections after several weeks. However, if you had a good case, many lawyers would be amenable to a good number of substantial changes to their standard contract, which is simply the first offer in a contractual relationship. You also should consider that if things go South (See Williams and Mann lawsuit), the lawyers can’t simply walk away from the case. They have to ask court permission to get out, which many times is not granted.
…
One example of bargaining. A Chinese couple I knew were injured when a motorist crossed the center line. This is obviously a very easy case for a plaintiff’s lawyer, and I knew that a lawyer could make money on the case even if he charged less than the standard percentage fee. So, I tried to negotiate the fee with a lawyer I will call Tom that the couple had first contacted. He got abusive and chippy with me about the fee, and I hung up on him. He called me back 2 days later and agreed to the lower fee. He was such an idiot that I wouldn’t have hired him, but the Chinese couple did at the lower fee.
…
My point is if you look at matters from the perspective of the contingency fee lawyer and whether he can make money on a non-standard agreement, you can negotiate a lot of attorney fees and terms. However, you have to have a thick hide and an understanding of the business aspects of a lawyer’s representation, which is difficult for lay people. (In fact, I have negotiated dental fees [paying cash upfront] reasonably successfully where I know that the dentist is charging double what the insurance companies will pay.)
JD
RE: Contingency.
My cousin is an attorney in a small southern state whose client was in a partnership. Call him partner A. The partnership’s counsel decided to act as counsel on behalf of the other partner, partner B ,instead of the partnership, and did not bother to disclose this to A. The partnership became financially compromosed to something over $80 million without bothering to advise A. When A complained and demanded steps be taken, he was sued by B by the partnership’s ostensible counsel. My cousin became involved and pursued a malpractice suit againt the law firm. Much of the case was contingent. My cousin took on considerable risk and expense, selling property, mrotgaging his home, and spending years of time on the case. The trial went in favor of the plaintiff (A) and the jury awarded over $100 million. The appeals went on for about 3 years after this. something over 5 years went into this case altogether before the State Supreme Court affirmed the judgement and the claim was settled. This was not a personal injury case and I have not been privy to financial inner details, but I do know that the contingency portion of this case was written carefully and both plaintiff and my cousin were pretty pleased. the point is contingency is like any commercial agreement- just about anything can be negotiated. (And yes, I do like to brag on my cousin. He does a great Atticus Finch impression).
JD Ohio,
Supreme Court Justices elected? I guess these contributions must have been made before they ascended.
I appreciate your comments on contingent fees. Thank you.
J. Ferguson – Many states do elect their state Supreme Court judges along with their other judges. (SteveF is obviously not talking about the U.S. Supreme Court, since the judges he names are not on it.)
Joseph W. Stupid me. You are so right. Those guys despite being Kennedys and O’Conners were not US Supremes.
Different country, I know. But Sou keeps up to date, and tells us that Andrew Weaver was just awarded $50,000 in his libel case against National Post and Terence Corcoran.
Nick,
Interesting. What was Dr. Weaver alleging?
hunter,
The judgment is here
News article here.
Nick,
Thanks. I wonder if the Canadian system has a Federal Supreme Court? According to the ruling itself there is reason to have interpreted him to have made at least some of the statements alleged.
Nick,
Canada has very different laws on libel, especially for ‘public figures’, like issue advocates and politicians. I would not be surprised if there were an appeal of this ruling, since at least some of the alleged statements appear factual.
Looking at the ruling…. Wow is defamation different in Canada than the US!!
In Canada
If I understand that correctly, to be ‘defamatory’ a statement doesn’t even need to be in the category of “fact”. That is, it looks like opinions can be ‘defamatory’ if they ‘lower the plaintiff’s reputation in the eyes of a reasonable person’.
In the US, from eff:
https://www.eff.org/issues/bloggers/legal/liability/defamation
Ours need to be “statements of fact”– which leave out opinoins, hyperbole and so on. I don’t think this is important to the Weaver suit, but …. is the difference I’m seeing real? I’m going to have to read the ruling in more detail!
Lucia –
From the Wiki entry for “Fair comment” under Canada:
How about dealing with the ruling, part of which states:
“I conclude the defendants have been careless or indifferent to the accuracy of the facts. As evident from the testimony of the defendants, they were more interested in espousing a particular view than assessing the accuracy of the facts.”
Wow! (d) is different from the US. In the US, if it’s opinion the plaintiff can’t advance the suit at all. Heck, a defendant can express the most bat-shit crazy opinion in the world– if it’s opinion, the plaintiff can’t win at all.
Gosh Eli, if you are handing out assignments for what we should “deal with” how about we “deal with” the bit where the judge wrote “Dr. Weaver argues malice is evident in the defendants’ actions, I do not find malice to be present. “?
For what it’s worth: as far as I’m aware, most of us haven’t been interested in this particular case. I wasn’t aware of it was going on. I’m not particularly astonished to learn that someone somewhere won a defamation case — especially if the win didn’t involve plaintiff-challenging US defamation law.
The ruling seems to be a win for Weaver on the main point– that is, the main article was defamatory and he gets $50K. On the other hand, there are a bunch of other points on which he did not prevail– even in Canada. He didn’t get “malice” bonus points. The plaintiffs weren’t liable for blog comments and so on.
The substance and fact pattern is quite different from Mann.
For me, the most interesting thing is reading how different Canadian law reads from ours. You get to find other things interesting. No biggie.
It seems like as far as Canadian law is concerned, if you make me feel bad by publishing something or saying something about me that someone else might think is mean, I can sue for damages.
….Dealing with the ruling: It would appear that Weaver actually did say at least some of the things he was suing over. Even a Rabett, if not blinded by the thrill of seeing a raskly den!al!st getting wacked, should find reason worth reflecting on in that sort of ruling.
I scanned this decision quickly (very hard to plow through the factual descriptions) and my first take is: 1. To the extent that the newspaper misstated actual facts, I have zero sympathy for it. However, the only fact that jumped out at me was its claim that the Weaver manufactured a break-in to distract attention from Climategate. On the other hand, much of the damages seemed to be attributable to his hurt feelings in, my view, of being criticized in a general political sense, and it appears that he was awarded damages for this because the court found that a connection could be found between those political criticisms and his capability as a scientist. I disagree with this. If I say a doctor, who is a politician, is a stupid politician, others can also infer that he is a stupid doctor. I should be able to criticize him as a politician even if that has collateral consequences with respect to the politician’s profession. (Because the opinion was so long, I didn’t read it real closely, so maybe my initial/tentative opinion here is wrong about what the judge did.)
….
2. I am amazed that the court apparently has the authority to make the authors and the newspaper apologize. This to me evokes images of Maoist China. Assuming that the defendants made defamatory statements under Canadian law, they should be held liable in damages. However, requiring them to apologize is a very extreme remedy smacking of thought control to me. What if the judge’s finding is wrong? Certainly, judges are not infallible.
…..
Assuming Canada is similar to the U.S., there is a very decent chance that the trial judge’s decision is the first salvo in a long battle.
…..
Also, the use of inference and innuendo to find that Weaver was harmed by statements that did not directly attack his work as a scientist brings up the use of the term D!!!er, which raises Nazi innuendo. If the law is as stated by the judge then those Canadians labeled as D!!!ers by alarmists probably have similar valid defamation claims against the users of that terms.
JD
” If the law is as stated by the judge then those Canadians labeled as D!!!ers by alarmists probably have similar valid defamation claims against the users of that terms.
JD”
that would fun.
mcintyre lives in canada.
hmm
Steven,
Perhaps Judith could go to a Canadian conference of some sort and Mann would share his thoughts about her while she is there……
Both Weaver’s actual complaint and the judge’s decision are very odd. I plan to write about it in more detail at CA, but interestingly the lawsuit touches on events discussed by Lucia before National Post here
http://rankexploits.com/musings/2009/conspiracy-theorists/ in connection with her derisive commentary on Elizabeth May’s speculations that the break-ins at Andrew Weaver’s office were part of a supposed wider pattern of coordinated attacks on climate scientists ultimately sponsored by what May called the “walking propaganda machines for the fossil fuel industry”.
Elizabeth May and Andrew Weaver were and are closely associated in B.C. Green Party politics. At the time, Weaver sent the Elizabeth May article to CBC to prepare them for his own appearance on CBC on December 2, an appearance that resulted in Weaver’s brief entry into the wider Climategate story.
A news story by the National Post (the news story not complained about) on December 3, 2009, prompted in part by Weaver’s statements on CBC, reported Weaver as claiming that various “security breaches” at the U of Victoria were “evidence of a larger effort to discredit climate science”:
The story later reported that Weaver “believe[d]” that the “the campaign is driven by the fossil-fuel industry”:
The supposed breaches included two break-ins at Weaver’s office and attempts to hack Environment Canada’s facility at UVic (though Environment Canada itself first denied the latter and later refused to comment.)
Weaver’s claims were quickly circulated in green circles as evidence of something wider and more sinister than a one-off event at UEA: at Think Progress, desmog, then the Guardian and Nature.
After this wide dissemination, opinion columnists for the National Post, in columns clearly marked “OPINION”, satirized Weaver’s interpretation of the break-ins as evidence of attacks by the fossil fuel industry (the attribution that had been confidently given by Weaver’s ally, Elizabeth May, and even more stridently by Michael Mann.) In doing so, they relied on the news story that had said that Weaver believed that the campaign is driven by the fossil-fuel industry.
I also satirized Weaver’s attribution of the break-ins at CA (see here http://climateaudit.org/2009/12/09/8155/) likewise citing the Dec 3, 2009 news story. In that story, I reported information from a UVic reader about numerous other thefts of computers in other departments at UVic. This story was in turn covered in a second National Post opinion column that was subject to the suit.
Weaver’s eventual complaint was that he did not, after all, believe that supposed UVIc hack and break-ins had been sponsored by the fossil fuel industry and that it was defamatory to attribute that belief to him.
The reporter’s notes (for the Dec 3 story) were considered by the court and the judge determined that the notes were insufficient to prove the truth of the claim that Weaver believed that the break-ins were due to the fossil fuel industry. There seems to be an important onus difference here: in Canada, the defendants have to prove the truth of the claim, as opposed to something more like reasonable belief or not knowing falsity.
The judge then held that the opinion columnists relied on a supposed fact (Weaver’s belief) that she found to be untrue and were therefore liable. This is a finding that, on its face, directly impacts all columnists and bloggers who comment on news stories. If you comment on a news story that subsequently proves untrue, then you can be sued in Canada. In theory, Lucia could be sued in Canada for a blogpost and her Canadian assets seized. I suspect that this decision will result in commentary from the Canadian libel community.
Given that Michael Mann has unequivocally attributed the Climategate hack to the fossil fuel industry and Elizabeth May’s evident belief that the fossil fuel industry had sponsored a coordinated series of hacks including at UVic, I’m puzzled as to why Weaver believed himself to be defamed by the claim that he shared a belief held by Mann and Elizabeth May. The reasoning in the case on this aspect is not clear.
There are other aspects of the judge’s reasoning that defy logic. The judge found that the innuendo of National Post’s columns was a claim that Weaver had
This is a ludicrous interpretation.
The other element of Weaver’s complaint concerned a story about Pachauri and the handling of this element is equally implausible.
JD writes:
This is not an actual “fact” about the articles. The two main articles about the break-ins are here:
http://www.nationalpost.com/opinion/columnists/story.html?id=c9025bed-3c7f-4acd-a9cc-18e5a41d63ba
http://www.nationalpost.com/opinion/columnists/story.html?id=1d0d5d49-fda6-441b-bdc9-c51313217bad
Read those articles before they are disappeared (by court order).
.
We complain about climate scientists acting as politicians.
Weaver is an elected politician.
Elizabeth May, also an elected politician, wrote “Global Warming For Dummies”.
.
Lucia said: “For me, the most interesting thing is reading how different Canadian law reads from ours. You get to find other things interesting. No biggie.”
.
For me, it is a biggie. I agree with Steyn, the loss of free speech is a biggie. We have been living in a bubble; it may burst.
The quote is taken somewhat out of context; for the original, see:
http://www.endofyourarm.com/2015/02/your-weekend-treat-my-exclusive_6.html
Perhaps someone can explain the Stokesian inanity of the following finding:
<blockquote.[207] With respect to Climate Agency Going up in Flames, I find Dr. Weaver did not call for the resignation of Mr. Pachauri, but rather as noted indicated he should “move onâ€.
Steve McIntyre:
“Stokesian inanity”?
Is that really necessary?
“Stokesian inanity”. Carrick, you ask: is it really “necessary”?
On reflection, not a “necessary” condition for inanity, but a “sufficient” condition. OK, in one sense, a needless jab, but I’ve spent a lot of time over the weekend reading these documents and they are very turgid. They make Mann v Steyn pleadings seem lively.
Nick frequently reminds us of what often seem to be distinctions without a difference: Weaver’s distinction between “resigning” and “moving on” – a distinction accepted by the judge – reminded me of Stokes playing lawyer.
But aside from the jab, I remain puzzled at a distinction, let alone one sufficient to give rise to a libel finding.
Steve, I admit I don’t pay much attention to laypeople’s efforts at lawyering, but I appreciate the input from people like JD Ohio and others, as well as their seeming endless patience towards what must be eye-rolling commentary at times from us schlubs.
I would suggest you could have made your point without the barb towards Nick (whose comments, unlike you apparently, I do value). And I don’t see how including the barb improves the quality of the point you were trying to make.
I have to say, I read the judge’s ruling before reading anyone’s reaction to it (other than the news article linking to it), and I came away with a very different view of it than others have. For instance, I’m surprised by this remark by Steve McIntyre:
In no way is saying someone should “move on” the same as saying he or she should resign. Conflating the two is a common form of spin. I’ll give an example from my time in high school. One of the teachers at my school did not have her contract renewed one year. She got the teachers’ union and some students to cause a big fuss about how it was unfair to “fire” her. The result was the school renewed her contract.
Of course, she knew she wasn’t being fired. She simply spun what was happening to make herself seem more sympathetic. In the same way, the National Post article spun what Andrew Weaver said. Weaver said Pachauri should “move on.” As I understand it, Pachauri’s job is filled via election every few years. All it would take for Pachauri to “move on” is for someone else to get the job the next time it was up for election.
This isn’t a minor thing. This sort of spin matters for careers. One of the reasons Weaver suggested Pachauri should “move on” is he feels nobody should hold Pachauri’s job for so long. That sort of reasoning wouldn’t hurt Pachauri’s career. On the other hand, Pachauri resigning in disgrace due to mistakes would likely hurt his career.
Suppose a contract at work is about to expire and I tell my boss, “I think we should have a new company fill the contract.” Would anyone seriously suggest that’s the same as me telling my boss, “We should fire our contractor”? I don’t think so. I think we can all see there’s a meaningful difference between them.
Brandon,
Not having your contract renewed is not the same as being fired for cause before your contract expires, but it’s still being fired, IMO.
JD Ohio:
Huh? Nobody claimed a break-in was manufactured. What the National Post said is Weaver claimed “big oil” was behind Climategate and the break-ins. The judge ruled Weaver never said anything of the sort. As far as I could see in the evidence cited in the ruling, the judge is right.
Huh? The National Post portrayed Weaver as being untrustworthy and incompetent. That’s not just a matter of hurt feelings. If people believed the National Post’s depiction of Weaver, that could easily affect his career. It can be difficult to have a good career when newspapers are going around describing you as unfit for your job.
Re Weaver vs National Post et al “judgment” …
It should be noted that the National Post is “studying the ruling before making any decision on an appeal.â€
For those who might be interested … after spending many hours plowing through this “decision” … even though IANAL … my initial take can be found at:
IPCC-nik Andrew Weaver’s “Wall of hate†wins him $50,000
Don’t have time now to respond in great detail to some of the comments. However, I agree with Steve Mc that as a practical matter, the difference between “move on” and resign, within the context of a defamation suit is inconsequential– both imply that Pacha urine is not being effective in his job. Also, I don’t think as a matter of public policy that courts should be refereeing disputes over such fine distinctions.
…
Secondly, I disagree that, in the context of opinion and political debate, (and that is a significant portion of what is going on here) being portrayed as being untrustworthy or incompetent, should be a matter to be resolved by courts in defamation actions. For, instance, I believe that Linda Greenhouse of the NYT is an incompetent clown (See her recent column on Obamacare ). I shouldn’t have to worry about being sued for making that statement.
JD
Brian is a lawyer. Among other points he makes are that
JD Ohio:
It is often the case individual attacks within a smear campaign are not very important in and of themselves. The issue here was not how important this particular misrepresentation was, however. Steve McIntyre did not say it was an unimportant. He said the finding which said noted the difference in what Weaver said and how the National Post spun it was inane. Whether or not you care about the difference, that difference was not silly or stupid.
If a newspaper intentionally misrepresents what a person says, over and over, using minor distinctions, do you think there should be no legal remedy? I don’t think so. I think the judge was right in viewing the effect of the various publications as a whole, not focusing on whether or not each individual component of each publications merited a monetary reward on its own.
Maybe I should have been more clear. The National Post specifically linked its accusations to Andrew Weaver’s actions as a scientist. It specifically misrepresented things he did as a scientist. It portrayed him as a dishonest and incompetent scientist.
If you publish a series of articles in which you portray Linda Greenhouse as a stupid and dishonest journalist, you should have to worry about being sued for that. Publicly attacking people for the actions they perform as part of their work is a serious thing.
By the way, “Pacha urine,” really?
Hilary Ostrov, I read that post, and I couldn’t follow whatever arguments you made in it. I saw a lot of claims, but no reason to believe most of them. A couple of them even seem clearly wrong to me, but I wouldn’t know how to respond to them since I couldn’t find any reasoning to respond to.
OMG, I guess I should remove that post, immediately, if not sooner!
If the great Brandon Shollenberger “couldn’t follow” or believe my “arguments”, surely no one else possibly could either.
Mea culpa, mea maxima culpa!
Brandon,
People in a free society are free to have an opinion that Weaver is a nincompoop, an incompetent and more.
Brandon: “Pacha urine” Sorry was typing on Android tablet in a rush and Android changed Pachuri to that unfortunate term. Didn’t have chance to review what I typed and missed Android autocomplete.
JD
Brandon: “If you publish a series of articles in which you portray Linda Greenhouse as a stupid and dishonest journalist, you should have to worry about being sued for that. Publicly attacking people for the actions they perform as part of their work is a serious thing.”
….
I said “incompetent clown”, not dishonest. There is a big difference. In her column she was stating that Supreme Court risked its moral authority by interpreting Obamacare literally as the law was written. This is stupid and incompetent (I have a comment on the NYT as to why) but not dishonest. She and many NYTs writers regularly impugn the morality and humanity of people who don’t buy into liberalism (think of Paul Krugman who claimed that those that didn’t buy into Hansenite alarmism were traitorous). If so, they have to accept that receiving harsh criticism is part of their job. As a practical matter, where people have major political disagreements, it is impossible to avoid hyperpole or harsh criticism, and I don’t believe defamation law is the place to resolve this type of dispute.
JD
JD Ohio,
I laughed at the Patcha Urine name change…. I figured it was on purpose, not the fault of auto-complete. BTW, the very first thing I do when I get a new cell phone is turn off that evil feature.
“Hilary Ostrov, I read that post, and I couldn’t follow whatever arguments you made in it. I saw a lot of claims, but no reason to believe most of them. A couple of them even seem clearly wrong to me, but I wouldn’t know how to respond to them since I couldn’t find any reasoning to respond to.”
agreed.
“If the great Brandon Shollenberger “couldn’t follow†or believe my “argumentsâ€, surely no one else possibly could either.”
I couldnt either. there’s two data points.
maybe I could interest you in a data adjuster?
Wow! Mosher and Shollenberger agreeing on something. The world can end now.
we also agree on Mann. In fact i think brandon has done some excellent work in that area. It takes a lot of focus to master an area.. haha something like 10000 hours.. basically if your going too go up against mann you’d better have a lot of time under your belt.
brandon isnt up to mcintyre levels yet, but if he focused exclusively he could help other people avoid saying stupid things about the HS.
he isnt as spread thin as say Willis.
My sense is the skeptics who have made headway are those who pick an exclusive topic
Mcintyre
Lewis
Watts
The ego’s of Mosher and Shollenberger are also in the same league.
Looking at the ruling…. Wow is defamation different in Canada than the US!!
Now you know why we are often described as polite. 🙂
hunter:
Of course. People can believe whatever they want. What matters is actions. If a person’s actions harm another, there may be legal remedies. You may believe your neighbor committed rape. That doesn’t mean you are automatically free to tell the world he did so.
And yes, the National Post articles may be titled “opinions.” That doesn’t automatically free the authors of all responsibility for what they say. Alleging facts while stating an opinion still means you’ve alleged facts.
JD Ohio:
I didn’t even consider that might have been caused by autocorrect as that’s such a strange “correction.” That’s one of the weirdest ones I’ve seen.
Certainly. If the National Post had limited itself to calling Andrew Weaver an “incompetent clown,” I think the case for defamation would be far weaker. I added the “dishonest” component to show how you might rightly get in trouble for criticizing Linda Greenhouse.
I remember reading discussions about Andrew Weaver. These discussions stemmed from some of these National Post articles. The discussions caused me to form opinions of Weaver I now know were wrong. For a few years, I viewed him in a negative light because the National Post distorted what Weaver said. Had it accurately reported what he had said, I would have held no negative view of Weaver.
I have no problem seeing why Weaver would sue over this. In his position, I’d have probably done the same thing. And in the judge’s position, I would have definitely ruled in his favor.
What the National Post did was wrong.
@Steve Mosher A data adjuster?! Nah, I don’t think so.
But, I certanly will concede that now-former climate modeller Weaver might welcome such additions to his (IMHO, inadequate) “arsenal”!
OTOH, having followed – and documented – Weaver’s inanities and inequities for the better part of 5 years, perhaps it’s too much to ask that either you or Brandon give some consideration to the possibility that I just might be somewhat more familiar with many facets and aspects of both the Canadian scene and the BC scene … on both fronts.
And, in particular, that I just might have a familiarity with the history of politics and union shenanigans in BC for the last 20+ years – than either you or Brandon have chosen to demonstrate.
Then again, if both you and Brandon consider that it is immaterial that the newly-minted judge – in this particular instance – has absolutely no demonstrated background or experience in Canadian or BC libel law – and that such deficits are underserving of feature and/or mention – then, of course, your joint opinions must be more valid than mine. And/or that of those who have indicated an understanding and appreciation of both the intent and the content of my post!
Hilary Ostrov:
You posted a link to your post, inviting people to read it. I commented to inform you and other readers of what my view on the post was. I specifically limited my remarks to my impressions, making no statements about how right they may or may not be. I certainly didn’t call for any action or judgement to be based upon my impressions.
As such, I think your response here is completely groundless. I’d go so far as to say it is unbecoming and makes you look bad.
Brandon,
“I remember reading discussions about Andrew Weaver. These discussions stemmed from some of these National Post articles. The discussions caused me to form opinions of Weaver I now know were wrong. For a few years, I viewed him in a negative light because the National Post distorted what Weaver said. Had it accurately reported what he had said, I would have held no negative view of Weaver.”
….
Since reading the judge’s dense opinion is difficult, maybe you can help me get a better handle on the facts. Please tell me the 3 most inaccurate statements that defamed Weaver and led you to have a negative opinion of him.
….
Also, if Eli or Brian is here, I would ask them to identify the three most harmful statements that defamed Weaver.
JD
@Brandon Thank you so much for your continued defense of your unsubstantiated opinions. But let’s move on, shall we?!
Perhaps you would care to explain how – if the National Post [NP] articles were so “damaging” to Andrew “we are the vote” Weaver – he managed to succeed in his May 2013 “historic” election as the first Green Party MLA (Member of the provincial Legislative Assembly).
This is a riding that is probably one in which the voters have one of the highest (if not the highest) per capita incomes in the province!
And, considering that, to the best of my knowledge, all NP articles are carefully vetted prior to publication, I’d certainly be interested in seeing some concrete examples of actual text which you, in your – no doubt – infintely superior knowledge, judgment and wisdom of the Canadian and/or BC scene – have deemed to be libellous on the part of the NP.
Hilary Ostrov:
Given my opinion was, “You didn’t seem to substantiate what you said,” I’m not sure what substantiation one might expect. But sure, let’s move on.
I don’t know what you mean by “so ‘damaging.'” The judged awarded $50,000 in damages. That seems appropriate to me. It also seems to suggest the damage was not large enough to preclude things like you describe. I don’t think I need to explain how damaging a person’s reputation doesn’t inherently mean the person’s reputation is damaged so much they can’t do things like win an election.
I don’t think anyone has suggested “knowledge, judgment and wisdom of the Canadian and/or BC scene” is infinitely superior to anyone else’s. Aside from you, that is. You not only seem to be suggesting that is true, but doing everything in your power to show it is in regard to you.
In case that wasn’t clear enough, I’m saying your attitude is stupid and ridiculous. I don’t know why you are using it, but I find it difficult to see why anyone should respond to you so long as you do.
JD Ohio:
I don’t think I’d care to try to pick out three individual statements as that seems bound to give a poor depiction, but even if that weren’t true, I don’t that much. I found the judge’s ruling to be relative easy to follow. Other people may not, but I have quite a few other things I’d rather focus on simplifying.
For instance, I still haven’t published Part Two of my overview of the hockey stick debate. I have 6,000 words written now, but I can’t see a way to make them work together in a single document. I keep feeling like I need to split this up into three parts, not the two I had originally planned, but I can’t find the content (or organizational structure) to justify it.
I find working on that far more interesting than detailing things like how intentionally painting Andrew Weaver as a person promoting specific conspiracy theories he knew (or should have known) to be false in order to distract people from serious ethical problems might be defamatory.
@JD After reading Brandon’s “responses” (for want of a better word) to our respective posts, it looks like we must concede that his unsubstantiated opinions trump … well … just about anything and everything!
You are certainly far more diplomatic than I, in the face of the charge of one who appears to inhabit the youth-savant brigade! A quality I much admire – and in my younger, more patient days, I even succeeded in demonstrating, quite often!
Consequently I, whose attitude in Brandon’s infinitely superior wisdom he has so devastatingly – albeit without so demonstrating – deemed to be “stupid and ridiculous” – would have hoped that he might have shown you the courtesy of appropriately responding your very reasonable request that he provide a mere three examples of his claim.
Alas, he has chosen not to do so.
Pity, eh?!
Hilary Ostrov:
Or you could not be a petulant brat and realize people can fail to agree with you without being egotistical pricks.
I already corrected JD Ohio on a couple simple points. That I might have other things I want to spend my time on, rather than explaining even more simple points anyone could pick up by reading the judge’s ruling is not particularly noteworthy. That’s especially true if such explanations are requested by people putting less effort into the discussion than those they make the requests of.
Often times, I’ll be willing to work out simple explanations of matters for people who want them even if doing so requires a disproportionate amount of effort. Every now and then though, I won’t be. Every now and then I’ll just tell people, “I’m preoccupied; go read it for yourself.”
I’m not always going to be willing to do other people’s work for them. Sometimes I’ll choose to limit myself to responding to the work they do.
So in other words Brandon is going to do a typical climate science defense of his position:
Decline to engage with mere den!alist scum on actual specifics.
Brandon, re #135117
http://cdn-www.cracked.com/articleimages/wong/topics/irony_small.jpg
hunter:
Say what? I’ve engaged every specific point brought up. The only thing I didn’t do is take the time to write up an overview of the topic. That is hardly remarkable. It is not my responsibility to summarize things for people.
If people want to discuss specific points, I’m happy to. I just don’t care enough about this subject to do people’s reading for them.
Lucia,
I read the threads here pretty regularly. It’s often tempting to join in the punnery but mostly I just smile. Wild blog you have here…
I’m wondering if Lucia has an opinion on the latest statistics controversy at Climate Audit.
SteveMcIntyre
Lucky for me I don’t own any Canadian assets. If I win $450 million in the Lotto on Wed, I might need to avoid investing in Canada. (N.B. I buy a Lotto ticket when the pot gets over $300 million and I learn of it. It’s fun to fantacize.)
David Young
Well… I’ll have to go over there. I’ve been busy doing ‘secret stuff’. (Mostly just “uninteresting stuff not worth discussing, but it’s kept me busy.)
Brandon,
No, you have not.
And I do find it fascinating that Weaver is also a politician, running for the extremist green party.
What is it politicians are famous for? Oh yeah, lying.
hunter:
If there’s a specific point which has been made you think I’ve refused to address, could you say what it is? I have no idea what you think I haven’t addressed.
Interestingly, the Green Party and Andrew Weaver’s close ally, Elizabeth May, were sued in B.C. for defamation in 2010 by John Shavluk (see http://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc804/2010bcsc804.html).
It is very hard for me to understand why the defences argued by May and the Green Party against Shavluk should not also apply in the Weaver case (mutatis mutandi). The Shavluk decision provides a relatively coherent and concise account of defamation defences in B.C. – something that is absent in the Weaver decision of Judge Emily Burke.
Hilary Ostrov pointed out that Burke was recently appointed. She was appointed on May 13, 2014 and the Weaver trial began in the first week of June. Prior to her appointment as a judge, all of her recent professional experience had been as a labour arbitrator. Not exactly Lord Denning or Lord Diplock.
Allow Eli to pull a Steve and quote the last line of the verdict awarding costs to Andrew Weaver’s close ally, Elizabeth May and the Green Party
“Accordingly, the action is dismissed with costs to the defendants.”
Eli, You seem to be following the Canadian case closely. Earlier (135118), I asked you to name what you consider to be the 3 most harmful statements made by the defendants. (Or, if you wish, 3 substantially harmful statements — you need not rank them if you don’t wish) You haven’t done so. This should be a really easy exercise for you, and I would ask you to do it.
JD
Bad assumption there JD.
ER “Bad assumption”. Don’t know precisely what you are referring to. Does seem apparent, and weird, (in light of your blog post) that you are unable or unwilling to name several ways in which the plaintiff was defamed in a meaningful and practical way.
JD
JD Ohio,
I suspect the bad assumption ELI is referring to is the notion that he can find 3 very harmful statements. Granted, you really only assumed that of those statements he thinks are harmful, he could rank them and list the three most harmful….. but I suspect if he did the exercise, he would be embarrassed to discover that few people would consider the ‘harms’ meaningful.
But who knows. Eli is, as often, sufficiently cryptic that few can guess what his point might even be. I tend to suspect that either (a) there is no point or (b) it’s a stupid point. Otherwise, he might be motivated to make clearer statements.
It seemed obvious to me Eli Rabett was referring to this to JD Ohio saying he “seem[s] to be following the Canadian case closely.”
Probably why he’s so “knowledgeable” about it…
It has been decades since I took urban studies, but I did find this to refresh my memory and to check against my assertion that densitities are increasing, not decreasing:
http://www.newgeography.com/content/002808-world-urban-areas-population-and-density-a-2012-update
“The Continuing Exodus from Rural Areas: Around the world, people continue to seek the promise of better economic outcomes in urban areas. United Nations forecasts indicate that another 2.5 billion people will be added to urban areas by 2050, while rural areas (which contain all population not urban) will be reduced in population by 300 million. The world’s urban population is expected to rise from today’s nearly 53 percent to 67 percent. More than 90 percent of the urban growth is expected to be in less developed nations.”
If anything this report is conservative. For example when I lived part time in Mexico City nearly 15 years ago opinions from multiple sources were that the city’s true population was over 25,000,000. There is no reason to think that number has been reduced since then. Yet the above cited article claims Mexico DF has “only” ~19.5 million. In other words I don’t think this is a hype report.
@ Steve McIntyre (Comment #135173),
I think the answer is rather obvious.
Responding to Eli Rabett’s comment above: RTFM. The defence in Shavluk was successful – that’s precisely why one would be interested in looking at whether the corresponding defences in Weaver could be distinguished. Again, I urge you to RTFM.
Responding to the challenge to Brandon to name three defamatory comments in the National Post opinion columns.
The two main areas of “factual disageement” pertinent to the libel claims were :
1. whether Weaver believed that the fossil fuel industry was responsible for the UVic break-ins and alleged hack;
2. whether Weaver had called for institutional reform and change in leadership at IPCC
On their face, it’s hard to see why either of these assertions would be defamatory. Weavers’ close associates, Elizabeth May and James Hoggan, both speculated that the fossil fuel industry were responsible. It’s hard to see why attributing the same belief to Weaver, even if incorrect, would be defamatory to him. And why saying that Weaver had called for reform and change in IPCC leadership be defamatory to him, even if incorrect. Especially to NP readers who would have viewed such actions by Weaver as showing leadership.
While Weaver claimed that the “literal meaning” of the articles was defamatory, the judge skipped ruling on the literal meaning and ruled only on the “inferential meaning”. Weaver claimed that the inferential meaning of the NP posts was that he had
Both Lucia and I commented on the incident at the time (Lucia on Elizabeth May’s version). Neither of us, nor anyone else to my knowledge, drew the conclusion that Weaver had “fabricated” the story to “further his own interests” or to protect “his own scientific credibility”.
I think that it’s more accurate to say that we thought that the claims made no sense, but didn’t try to go past that. A lot of people made speculations about who was responsible for Climategate at the time that didn’t make sense but it was entirely possible to dispute people’s explanations without implying anything further.
I think that Weaver’s claimed inferential meaning is BS and that the judge should have called him on it.
The more one looks at this decision, the stranger it becomes.
Steve McIntyre, I think you are understating what was said, by a significant margin. I don’t really care about this subject, but I think it’d be trivially easy to show things were way worse than you suggest. I’d say more, but my ongoing review of the book Steven Mosher and Thomas Fuller wrote about Climategate has left me unable to maintain my normal neutral and civil tone in disagreements tonight. (Amongst many other things, the two were completely unaware of your 2005 E&E paper!).
That said, I will take a moment to point out a bit of humor in your comment:
You and lucia both made posts to laugh at Andrew Weaver for a belief he didn’t hold. You now say you don’t understand why falsely claiming Weaver held those beliefs could be defamatory.
You thought an idea was deserving of derision. The idea wasn’t true. You don’t see how that adds up to defamation even though that’s like, the exact definition of defamation.
If Eli could have found 3 he would have posted them. One of the mainstays of climate believer argument is to refuse to argue a point. They instead dodge the discussion and simply assert how their beliefs must not be challenged by those they deem unworthy.
Brandon says:
Let me expand this point so that the steps are clearer. In my opinion, the green faction blogosphere (desmog, Think Progress) also presumed that Weaver believed that the fossil fuel industry (or their front groups) were responsible for the UVic incidents and interpreted this as further evidence of the perfidy of the industry and of a coordinated campaign against climate scientists. Weaver didn’t object to, complain about or attempt to correct them.
In American terms, it isn’t “libel per se” to say that Weaver believed that the fossil fuel industry were responsible for the UVic incidents, since it’s not obvious on its face that holding such a view is defamatory. To further clarify the difference, in Shavluk v the Green Party and Elizabeth May, the issue was whether Shavluk held anti-Semitic views, an accusation that was on its face defamatory.
By the way, I’ve looked very closely at the contemporary documents. When you say that Weaver didn’t “hold” the above view, do you have any evidence for this, other than the judge’s decision? I’ve looked very closely at all contemporary documents and have not located any which, in my opinion, show that he held any other view. Or that he took issue with people attributing that view to him prior to being ridiculed by the National Post opinion columns.
By the way, other than the present decision, one is allowed to ridicule people in Canada. However, the judge interpreted the “inferential meaning” of the National Post columns to be an accusation of dishonesty, though no such accusation was made in the article itself. I think that this was a very unfair and unwarranted inference – what are your thoughts?
Brandon, I agree that McIntyre and McKitrick 2005 (E&E) is essential to understanding the gist of our MBH critique. However, before you get too harsh on Mosher and Fuller in that respect, keep in mind that the report of the 2006 National Research Council panel, which had been commissioned to consider the controversy and which consisted of many experienced academics and was thoroughly peer reviewed, didnt mention the report either and got mixed up between MM2003 and MM2005 (GRL). Mosher and Fuller were writing very quickly to put Climategate into perspective and, from my perspective, I judge the NRC panel more harshly in this oversight.
From someone who was familiar with the context of the time, I think that it’s also important to keep in mind that Mosher and Fuller were trying to put the concept of “noble cause corruption” (i.e. things like police trying to “improve” the evidence against a “known” criminal) into play as an explanation for events and – and MM2005 (EE) while relevant for the critique of MBH – is not necessarily material to the theme of “noble cause corruption.” Mosher and I talked at length about theories of motive for the Climategaters and I think that I might even have sourced the idea of “noble cause corruption”. Over the years, I think that I would be inclined to increase emphasis on things like overweening pride and conceit and petty scratch-my-back academic practices, but I do not see how one fully explains the Climategate dossier without noble cause corruption.
Brandon,
I this post, I comment on things May said about the breakins. I don’t attribute any beliefs to Weaver.
http://rankexploits.com/musings/2009/conspiracy-theorists/
I don’t think quoting May and discussing the substance of her beliefs can be defamatory of Weaver.
Perhaps you can point to the post where you think I “post[ed] to laugh at Andrew Weaver for a belief he didn’t hold. ”
I admit to not remembering all the details– so if you could post a link that might help.
SteveMc — Thank you for the link to Shavluk case, which was far more readable (and more educational) than the other. Though I walked away from it even more grateful than I was before for our American standards.
I see the Canadian use of “qualified privilege” and “malice” in libel cases is way, way different from the American.
lucia:
Sorry about that. You’re right. It had been a while since I read your post and I didn’t remember the distinction between May and Weaver’s (supposed) beliefs since they largely overlap.
Steve McIntyre:
Well, I can’t prove a negative, so I guess I can’t really say Weaver doesn’t hold those beliefs. All I can fairly say is the National Post had no evidence he held those beliefs, and Weaver denies having held them. To me, that’s sufficient. If you have no basis for saying what a person believes, you go with what they say they believe.
I think explicit accusations of dishonesty are not necessary to paint someone as dishonest. I think people reading the four articles could certainly get the impression Weaver was dishonest. If they didn’t, they’d certainly get the impression he’s an incompetent scientist. Either way, I could certainly see why it might hurt his career.
Put simply, my view is ridiculing people is fine. Making things up out of thin air and stating them as fact in order to ridicule people is not fine.
Brandon,
Weaver’s complaints, in my opinion, are dishonest and disengenuous. He was not defamed in any defined sense of the word. It took a rookie judge redefining the law and the term to extract rationalizations for a judgement.
Actually, if the victims of Weaver’s suit care to pursue appeals, this might turn out quite well.
Steve McIntyre:
Michael Mann mixed up your 2005 GRL and E&E papers, referencing the GRL one while discussing what your E&E paper said. A couple academics copied this mistake in a peer-reviewed paper they’ve gotten accepted for publication which explicitly labels you a climate change denier. I don’t see that that excuses or mitigates anything Mosher and Fuller did. That other people fail to understand the basics of a subject does not excuse failing to understand the basics of a subject. Especially not when writing a book to, in part, inform people about that subject.
That said, I don’t think I’m “too harsh” on Mosher and Fuller on this point. I gave that example because it was particuarly relevant to you, but there are many other issues with the book. While there are many factual issues, to try to tie this back to the topic of this post, one of central problems with the book is Mosher and Fuller repeatedly misrepresent what people/groups have said while criticizing them. That is not okay.
When it gets to the point of just making things up, it can become defamation. Mosher and Fuller don’t have to worry about that because they discussed many people/groups, but the National Post does because they focused all these misrepresentations/fabrications on one person.
.
On a different note, the more I think about it, the more I think JD Ohio’s challenge to provide three statements is something of a trap. I don’t think he intended it that way, but the judge’s ruling makes it clear the ruling wasn’t being made based upon any particular statement. It was based on the net effect of what was said across the four articles. That means no matter what three statements anyone might pick, they would be insufficient.
hunter, we’re obviously all entitled to our opinions, but if we don’t explain why we hold them, little will come from sharing them.
Personally, I think people are being disturbingly nonchalant about the fact the National Post repeatedly made things up about Andrew Weaver. They just flat-out made things up about him, and nobody is expressing any real emotion about it. I don’t sympathize with the National Post at all. They failed at job in a spectacular way, and as a result, a person’s reputation was harmed. Even if Weaver wasn’t legally entitled to reparation, I’d still side with him. He was clearly wronged, and the National Post clearly behaved in an inexcusable way.
One of the strangest parts of this is nobody seems bothered by having been misled by the National Post. Even if you think the judgment was wrong, we should all still be able to agree the National Post making things up was bad.
Brandon, “JD Ohio’s challenge to provide three statements is something of a trap. I don’t think he intended it that way, but the judge’s ruling makes it clear the ruling wasn’t being made based upon any particular statement.”
No, it isn’t a trap. It is based on my experience that the public at large is not capable of remembering subtle distinctions. If the public can’t remember subtle distinctions and there are no truly clear harmfully disparaging remarks (such as falsely saying that someone associates with white supremacists) then it is much harder to show damages. If something is truly damaging to a person’s career or financial status, in the vast majority of cases, it can be summarized in a nutshell. (White supremacist, drug dealer, child molester). So far, I don’t see any of that here. However, because the judge’s opinion relied on a number of subtle and silly distinctions and inferences, it is possible that I missed something in the mountain of words and references to inferences contained in her opinion.
JD
Brandon,
Yes. Beliefs some people thought Weaver had seemed to be those expressed by May. However, I don’t see any evidence I jumped to such a conclusion at the time. I just comment on May.
I’d generally tend to accept that means Weaver didn’t hold them.
That said: I’m not sure that someone merely suggesting Weaver did believe those things amounts defamation. Defamation requires more than a false statement of fact.
Were I to suggest you like chocolate, and my suggestion turned out to be mistaken, my mistake would not amount to “defamation”.
I don’t have much sympathy for the post. But I would say they went a bit far is painting pictures. I think we have a tort of “false light”. (In some states “false light” is defamation. In some it’s a tort on it’s own. In some it’s just ‘the breaks.) Not sure where the posts article falls.
Certainly it was demagoguery. And badly done.
I don’t know Canada’s system well enough to know if appeals follow decisions as night follows day.
Brandon, you say:
You say that Weaver “denies having held them”. Do you have a direct reference for this? What I’ve seen are denials in the Statement of Claim that he had made statements evidencing such belief and, in the decision, findings that National Post did not ‘establish” that Weaver held these beliefs.
There’s a comment in a news story at the trial that Weaver made a direct statement of non-belief to the reporter, but the judge did not refer to this evidence in her decision nor does the excerpt from the interview quoted in the decision support this. (I havent seen the full interview transcript). I’m not sure that Weaver explicitly said something different: he definitely didn’t at the time.
I disagree on your statement that there was “no evidence” that Weaver held the views or the implication that NP had fabricated the imputation out of whole cloth. I certainly believed that this was Weaver’s belief at the time. It doesn’t make sense that both I and the NP opinion columnists would independently and more or less simultaneously attribute identical views to Weaver if there was no evidence.
The most direct evidence for the opinion columnists was the direct statement in a news article that that was what Weaver believed. The judge discounts the news column, but it was relevant to forming an honest belief. Plus the news article was widely quoted in the green blogosphere, including desmog, a blog that Weaver elsewhere said that he read daily. Weaver also sent Elizabeth May’s column to CBC, apparently with approval. Weaver’s failure to object to the original news article or correct the stories in the green blogosphere, in my opinion, are evidence that he believed in the association. It is circumstantial evidence rather than proof, but still evidence.
In addition, Weaver had originally appeared on the CBC television flagship national news in a segment on Climategate, bringing the break-ins and alleged hack to national attention. It was this appearance that prompted the original National Post news article. Weaver had sent CBC the article by Elizabeth May to brief them. In my opinion, both are evidence that Weaver believed the break-ins were connected to Climategate.
Weaver also said on many occasions that the fossil fuel industry financially supported deniers and was the beneficiary of disinformation – sometimes in discussion of the break-ins.
I remain baffled as to what Weaver’s actual belief is supposed to be. Brandon, you say that you accept Weaver’s statement that he did not believe that the fossil fuel industry industry was responsible, but that doesn’t explain what he did believe or why he brought the incidents to national and international attention. If he simply thought the incidents were local, why would he have brought them to national attention? That in itself is worthy of derision. What do you think that he believed? I ask this in all seriousness.
For the libel defence, you have to show that you could have honest belief on facts, not that the belief was true.
For what it’s worth, I also thought at the time that these were the views that Weaver held and, even now, find it hard to
lucia:
I agree. It was just my mistake.
Aye. And had the National Post only discussed the beliefs Weaver supposedly held, I doubt Weaver would have won a lawsuit. However, the Post also misrepresented what Weaver has said and done regarding the IPCC and created an entirely false depiction of how Weaver portrayed the relation between weather events and global warming.
As a whole, I can definitely see why that’d let Weaver win his lawsuit. Repeatedly making things up about a person, across multiple articles, in order to ridicule him is not acceptable. I have no problem with there being legal consequences for it, and it seems to fit the standards the judge cited as being applicable.
JD Ohio:
I can summarize it in a single sentence. It’s not hard. I just can’t demonstrate the summary is correct by quoting only three sentences.
Yes, I find it is just making subtle and silly distinctions to say things like, “Andrew Weaver never said anything like that. In fact, he said the exact opposite. Repeatedly.” And if you can’t tell what that made up quote is referring to, I’d suggest you have done a poor job of reading the judgment.
Brandon,
By your standard any newspaper applying the perjorative term “den!er” to skeptics should be sued and lose. And let’s do discuss the massive misrepresentations of skeptics in the attribution of motive and conspiracy accusatoins made against skeptics.
I find your deep concern about a newspaper’s accuracy regarding this non-issue of Weaver’s to be less than sincere. Especially in light of what McIntyre has found regarding greens making much more clear cut accusations about skeptics which the courts brushed off.
JD Ohio, I think that there is a huge and even embarrassing legal issue that looks almost trivially easy to appeal. In 2008, the Supreme Court (Canada) (WIC Radio v Simpson http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/5670/index.do) established the following test for fair comment as a defence:
In her decision, Judge Burke made some (in my opinion) incorrect and even quixotic findings of fact, some of which were on seemingly minor issues, such as a distinction between calling for Pachauri to “resign” or “move on” in relation to whether Weaver had called for a “change in leadership” at IPCC. The WIC Radio test requires the judge to assess whether the comment can be made given the remaining proved facts of which there are many not in dispute e.g. that Weaver had told a national television audience about the break-ins in a segment a Climategate segment, that his close associates (May, Hoggan) were speculating that the break-ins were evidence of a broader campaign against climate scientists, that all of them regularly mentioned in interviews that it was the fossil fuel industry that stood to benefit etc.
These other facts tend to be circumstantial, but they were highly relevant for how I, for one, understood Weaver’s beliefs.
Now here’s the punchline. Judge Burke dispensed with this test as follows:
Now I realize that you are not familiar with the Canadian law on the matter – and indeed it’s something that I’m only now reading about. But it strikes me as really surprising that a trial court judge, let alone one so newly minted, to so cavalierly and blatantly disregard a clear Supreme Court (Canada) test. It seems like a slam dunk for appeal.
On the relation between trial courts and Supreme Court, I do not believe that there is any relevant distinction between U.S. and Canadian practice.
Here’s another issue that I’d welcome input on.
Weaver claimed – and the judge accepted – that the “inferential meaning” of the original article included that Weaver:
Inferential meaning is not supposed to be wild interpretations but the natural inference that a reader would have.
While NP thought the belief in fossil fuel industry involvement was idiotic, I don’t think that there was any imputation in the article beyond that.
Wow. I’m apparently less than sincere in being bothered by a newspaper repeatedly making things up out of thin air in order to ridicule a person. I don’t get that. I thought everyone could agree it is bad to simply fabricate things about people to make them look bad. At the very least, I figured everyone could agree it’s inexcusable for a newspaper to say things they knew, or ought to have known, are so false they are they are the exact opposite of the truth.
Apparently I was right not to take much interest in this topic. It’d be bad for my health.
Brandon,
If it’s any consolation, I think you’re sincere.
I also think the post acted badly. Not sure if it quite rises to libel though.
There is a delicate balance. It’s important that libel require something more than saying something that was unflattering that turned out to be mistaken. If one can point to pretty strong reasons to have held the mistaken belief… I think it’s important that be considered.
I know you see this as “making stuff up”. But it could also easily be “believed stuff that turned out not to be true” or, even less incriminatingly, “believed stuff that might actually be true but which one cannot prove to be true”.
Of course newspapers publishing stuff that might not actually be true but they believe to be true based on dubious evidence is bad reporting. It also might not be fair to the person who objects to their characterization. But is it libel? I’m not sure.
By the same token, I don’t have much sympathy for the post. They put themselves in this predicament. But is the ruling correct as a matter of law? I’m not sure– and not just because I don’t know Canadian law. I’m not sure it would be right in the US– and I’m not sure it ought to be the correct ruling.
Brandon, I’m not trying to dump on you – I’m trying to understand that side of the argument. There’s not a doubt in my mind that NP sincerely thought that Weaver believed that the fossil fuel industry was responsible for the UVic incidents – that was my understanding as well. There’s also not a doubt in my mind that they believed that Weaver had called for reform and change in leadership at IPCC.
Lucia talked about “bad reporting” but that’s not fair in respect to the opinion columns which were marked opinion columns. The reporting was done in two earlier articles that were not litigated. Their opinion columns are allowed to be controversial. Oddly, Weaver didn’t litigate the factual reporting or ask that the articles be corrected, even in his lawsuit.
Lucia correctly identified other possibilities:
Given that Weaver made zero statements to the contrary at the time and did not contradict Elizabeth May, James Hoggan or Megan O’Toole, I don’t think that anyone can “prove” that Weaver did not hold such beliefs about fossil fuel industry at the time.
The judge found that NP did not prove that Weaver held such views. But as I mentioned above, that’s not the libel issue, which is whether someone could honestly believe that Weaver held such views on the proven facts. Seems entirely possible to me – I did.
lucia, one thing I haven’t seen anyone mention thus far is this isn’t the first time the National Post falsely claimed Andrew Weaver routinely blames individual weather events on global warming. They had done so multiple times before, and he had contacted them about it multiple times. They even changed articles in response to his e-mails. And all that is over a claim which was based upon absolutely nothing, one which requires ignoring what Weaver has said on many occasions.
When people state something as fact even which has no basis in anything, I think it’s fair to say they’ve made it up. When they repeatedly state it as fact, even in the face of corrections, I think there’s little other way to describe it. Maybe they convinced themselves it is true, but it still exists as nothing more than a figment of their imagination.
On the legal issue, in the United States, I am confident the lawsuit would have failed. I just think this case met the standards the judge cited.
Steve McIntyre, I didn’t think you were. I just find it remarkable how little ink has been given to the National Post pulling “facts” out of thin air. I find that far more interesting than examining the details of whether or not a $50,000 ruling was right.
As for earlier articles, I don’t know offhand which you’re referring to. What I do know is Weaver had to contact the paper about (amongst other things) the same false claim three different times, because it kept appearing even after they corrected articles because of his communication. At a certain point, I think we need to stop placing the burden on him.
As for what Weaver believed, the judge showed the paper’s reason for what it said was false. That there could be some entirely different reason for believing it doesn’t justify what they said. That’s especially true if that reason belongs to someone other than the paper, even more so if that person doesn’t have access to the same material the paper had (for instance, you did not have a transcript of the interview they used to justify their claims).
In any event, the court was presented absolutely nothing which indicated Weaver believed what the paper said he believed.
Brandon, the insincerity of your argument is that you pretend this newspaper is the only on that has ever done anything like this. It is almost as if you are singling the post out because they offended a green political hack who has an academic day job. So it comes across as if you are sort of hoping that climate scientists, like priests of some theocratic dystopia get special dispensation and immunity. they can say what they want, and if people disagree, misinterpret or just make them uncomfortable the inquisition will drop in unexpectedly.
Because no one expects the Spanish Inquisition
https://www.youtube.com/watch?v=7WJXHY2OXGE
Brandon, you write, “Mosher and Fuller repeatedly misrepresent what people/groups have said while criticizing them. That is not okay.”
If you can find the time I would like to see some examples.
Thanks in advance.
hunter, I have no idea why you think I am acting like no paper has ever done this sort of thing before. I know others have. I even know of several worse examples. I’ve reacted with the same stunned disbelief in each case.
This sort of thing does happen from time to time, but that doesn’t mean it is any less bad when it does happen. What the National Post did was inexcusable, and it’s the sort of thing that would upset anyone with any real interest in journalism.
If other examples of behavior like this by a newspaper show up, feel free to point them out. I’ll be happy to express my shock at them too.
Tom Fuller, you can find a number of examples at my site in the comments section of a recent post of mine. The post is dedicated solely to reviewing your book. My ongoing commentary has made it up to Chapter Five thus far.
Alternatively, I can collect examples from that page and present them in a more structured format if you’d like. It may just be a little while before I can. We’re having some bad weather here, and I don’t know if my home internet connection will be working.
Right now I’m commenting on my phone on the way home. We’re on the highway going 30 MPH. There may be delays in me getting things done.
Hi Brandon
Yes, I’d appreciate a structured format. Thank you and drive safely.
Brandon,
Bunk on your claim. Steve McIntyre, Anthony Watts, Dr. Spencer, Curry, Lindzen, etc. have had worse than Weaver.
It is entirely possible that fights break out over tiny differences. Is the Mann/Steyn lawsuit a “climatic” battle or a “climactic” one? I suspect the typical reader doesn’t notice a distinction. A more careful reader may notice, and (based upon the reader’s own view) choose to agree or disagree with the writer’s spelling. A reader who believes the dispute is about climate science and agrees that the writer meant to speak about climate is okay with the spelling climatic and would consider the spelling climactic at best a typo and at worst an idiotic mis-representation of the issue. A reader who believes that the dispute is about a pivotal issue in free speech law will be miffed to one or another degree (so to speak) with climatic but in agreement with climactic.
The kinds of people who care most about these sorts of things are valuable contributors in the world of publishing with job titles like “copy editors”. Sadly, many technical writers and those communicating in business and management do not have either the leisure nor funds to hire copy editors. Many journalists who would benefit most from a copy editors’ review — because journalists must so often necessarily write about topics where they are unfamiliar with the jargon — resent the copy editing process even when it is available. And of course when trying to get a book out on a short deadline for a time-sensitive market, all KINDS of misstatements, mis-spelings, oddpunctuations, and other confusions abound.
hunter, I don’t believe what you say is true. Could you provide examples showing any of those people “have had worse than Weaver” when it comes to reporting false facts?
And if so, could you provide any details about what they did to try to correct the problems?
Anthony Watts funded deliberate liar, by media matters:
http://mediamatters.org/blog/2012/11/28/meet-the-climate-denial-machine/191545
You do yourself no favors when you do a troll’s troll schtick.
Hunter,
I think you’ve missed Brandon’s point, which is that Weaver was misrepresented in a national newspaper repeatedly even after having requested a correction several times.
While there’s no doubt that Anthony Watts has been unfairly maligned, it’s not directly comparable.
A better comparison would be if in 2006 the Washington Post printed several columns suggesting that Anthony Watts withdrew his candidacy for county supervisor, to represent Chico on the Butte County Board of Supervisors because of a pending scandal, instead of his stated reason – family and workload concerns. This after Anthony repeatedly asked them to correct their reporting.
“Bunk on your…”
That’s been debunked here many times.
MichaelS,
No, I think my point is spot on.
And in fact since Weaver has now been elected, it only makes my point more clearly and raises another: That climate kooks are trying to carve out a new level of protection for their ridiculous claims and behaviors.
The summary of the so-called misrepresentation incidents in the decision is quite one-sided. I can speak to the most notable incident since, though, no one has mentioned it, it was about whether Weaver had described our work as “unadulterated balderdash”.
On January 27, reporter James Cowan (not Terry Corcoran, as stated in the decision) wrote an article about our forthcoming article in GRL. The difference between Cowan and Corcoran is surely relevant in a suit against Corcoran. Cowan called Weaver for an opinion. Weaver did use the words “unadulterated balderdash” in the context of our work, but in the context of whether our work had further implications, which Weaver described as “unadulterated balderdash” because Weaver in the interview “then went on to explain the existence of other hockey sticks as you [Cowan] pointed out in an article.”
This was not the only occasion on which a National Post reporter misunderstood Weaver’s circumlocutions.
On January 29, I emailed Weaver, with whom I had been in unsuccessful correspondence about false statements about our 2003 article by Mann and Rutherford in a pending Journal of Climate article edited by Weaver. Weaver said that he had been misquoted and that he did ” not like being misquoted or being quoted out of context.” (Despite his insistence on accurate representations concerning himself, Weaver refused to correct the misrepresentations against us in Journal of Climate.)
Since Weaver’s letter to the reporter had had no results thus far, I asked Weaver to write to the paper itself, requesting a correction. Weaver did so. The reporter, after reviewing his notes, acknowledged that he had misunderstood Weaver.
The Post issued a very backhanded correction as follows:
A couple of weeks later, Corcoran wrote
Watch carefully here as Corcoran’s comment refers not to Weaver’s recent interview with Cowan, but to his comments on our 2003 paper. It had then re-surfaced that Weaver had been interviewed by a BC student newspaper about a National Post article on our 2003 paper. Weaver disparaged Energy & Environment and said that “If that paper [MM2003] had been submitted to a science journal, it would have been rejected.” Weaver then spoke against giving equal space to both sides of a dispute, saying:
I don’t think that Corcoran was inaccurate in saying that Weaver condemned our earlier work as rubbish, though he was incorrect in using the word “rubbish” within quotations.
In the decision, J Burke says
But Weaver, who routinely objected to others missing his transitions, had missed Corcoran’s transition to commenting about our earlier work, rather than the recent quote to Cowan.
In August 2006, following the House hearings and release of the Wegman report, Corcoran wrote another article which included the statement:
Weaver objected as follows:
In his complaint, Weaver once again missed Corcoran’s transition to his comments on our 2003 (“original”) article, as opposed to his comments to reporter Cowan about the 2005 article. On August 31, Corcoran spelled out the distinction in detail as follows:
Judge Burke reviews the August 2006 exchange in paragraphs 50-51, but does not mention Corcoran’s above reply. Instead, she concludes her summary by saying “A letter from Dr. Weaver, which corrected factual errors by Mr. Corcoran, was published in the National Post on August 31, 2006.”
but I wrote to Weaver about it. The supposed misrepresentation concerned whether or not Weaver had described our paper as “unadulterated balderdash”.
In an interview with National Post reporter
Lucia, the last couple of sentences above are misplaced snippets and should be deleted.
Hunter,
Saying the comparison is spot on doesn’t make it so. Why is the one case identical to the other? Explain your reasoning please.
Brandon asked you to provide examples of those people, “having had worse than Weaver” and to also provide any details about what they did to try to correct the problem.
The example you linked to is a blog with a one-off mini bio of Anthony Watts . It’s not a national newspaper, it doesn’t show repeated misrepresentation and doesn’t provide any detail of what Anthony did to correct the problem.
hunter, it is absurd you’d suggest that link is in any way comparable to what happened with Andrew Weaver, much less that it somehow answers my request. You can keep up the stupid insults all you want, but I think that’ll just make it easier for anybody reading this to tell which of us is behaving in a more reasonable manner.
Steve Mcintyre,
Thanks for your very informative comment number 135416. It seems as if Weaver is a very hypocritical person. I was underwhelmed by the quality of the judge’s decision. I would be very interested in seeing the specific grounds where Weaver was claiming to be financially or tangibly damaged by the contested statements. My guess is that Weaver was deposed and was questioned about how he had suffered in relation to the contested statements.
In the United States, the depositions are initially considered to be public records, but in cases like these it wouldn’t be unusual for the deposition to be sealed. I suspect that if the deposition could be obtained or if other specific submissions claiming damages exist, that the grounds for damages would be laughably trivial. Maybe, someone can retrieve any depositions that were filed and are unsealed.
JD
Brandon,
If you wants to see who is full of it in this topic, look in the mirror.
Your veneer of reasonableness is cheap and transparent.
Weaver’s case is a joke, like most things centering around climate huckster claims of injury by den!alists.
Willie Soon is right now being lied about and destroyed in a coordinated fashion but that doesn’t rise to your bs level either I am sure.