My compatriots Steve McIntyre and Ross McKitrick have inflicted more damage on the reputation of Michael E Mann's global-warming hockey stick than anybody else on the planet. So, when one finds oneself being sued by the litigious Dr Mann, a prudent person pays close attention to anything the Messrs Mac have to say about the case. Steve McIntyre listened to the oral arguments in the DC Court of Appeals a month ago, and was not happy with what he heard. He has now written an extensive post on the subject, which I highly recommend, except for the first sentence:
I have an audio copy of the oral argument in Mann v Steyn...
Not to be pedantic but in fact it was Mann vs Everybody But Steyn. A year ago, my co-defendants National Review, Rand Simberg and the Competitive Enterprise Institute decided to appeal Judge Weisberg's me-too of the previous judge Combs Greene's denial of their anti-SLAPP order. I declined to join them on the grounds that, as the previous impenetrable sentence suggests, the DC court system had made such a procedural train wreck of the case that we might as well get on with the trial the fraudulent Mann claimed to want, and be done with it. The District of Columbia's new anti-SLAPP law had clearly failed on its first significant outing, but, given that once this case is over I intend never again to set foot in that hellish metropolis, that's hardly my problem.
So my three co-defendants went ahead without me, and at the end of November the troika of DC judges finally got around to hearing oral arguments on the matter. Steve McIntyre was not impressed:
One of the things often under-estimated by those readers (especially at WUWT) who are bloodthirsty for litigation as a means of settling scores is that it's not easy for litigation lawyers to fully assimilate a complicated history. In the oral argument of the anti-SLAPP motion, both the lawyers and judges seem too often to be playing blind man's bluff with the facts, making a decision both unpredictable and probably somewhat random.
Too true. If you've attracted as many lawsuits as I have over the years, you'll be aware that, as a general rule, you usually know more about the case than your lawyer. On the other hand, your lawyer knows more about the law, which is why you need him - particularly in the procedurally byzantine American courts. (I make an exception to the preceding generalization for my old friend Julian Porter, QC, who was in on the ground floor of the Canadian Islamic Congress complaints and, indeed, a little earlier than me.) But the trick is to explain the case - particularly one with as convoluted a backstory as Mann's hockey stick - to your lawyer in a way that he can grasp in order to be able to explain it to judge and jury in a way that they can grasp. He also has to know it well enough to recognize when opposing counsel is just peddling a lot of hogwash and to be able to punch holes in it. With that in mind, Steve McIntyre summarizes the various barristerial performances:
John Williams, Mann's lawyer, frequently misrepresented the facts (as he did in the written brief). Michael Carvin, National Review's lawyer, was not only too ignorant of the facts to stuff the misrepresentations of Mann's lawyer, but made some bizarre gaffes that made me cringe listening to it. In my opinion, Carvin's representation was only passable when he was tub thumping about the First Amendment in a context that did not require knowledge of the facts in this case. Andrew Grossman, CEI's lawyer, seemed to me to be the person who understood the facts reasonably well, but he got sidetracked onto technical issues of evidence and, unwisely in my opinion, let Carvin handle the rebuttal for both parties.
I would venture an additional criticism of Mr Carvin: The First Amendment tub-thumpery only works with a big-picture free-speech argument, rather than the considerably narrower and more qualified argument that NR is offering and is, in fact, one of the reasons for my split with them. Mr McIntyre adds:
Carvin did forcefully make some First Amendment arguments, but, in doing so, too often failed to observe that various opinions were not only permitted, but reasonable... Because Steyn and National Review have parted ways, Carvin and National Review seem to have been unaware of the long backstory and more or less presented the dispute (from National Review's perspective) as little more than a purely academic controversy over the validity of tree rings as a temperature proxy, leaving the judges completely mystified on why Mann, as opposed to any one of hundreds of scientists, was at issue. I do not see how the judges could possibly understand the articles without understanding Mann's distinctive role in the Climategate emails and that the widespread calls for misconduct investigations were not "commissioned by" either CEI or National Review.
On the so-called "exonerations" by official bodies Steve makes an easily understood topical analogy:
Recently, misconduct and misconduct investigations have been widely publicized in the recent U.S. controversies about police misconduct and police misconduct investigations. No one seriously contends that a report of a misconduct inquiry necessarily puts an end to discussion or controversy...
Indeed. No one thinks that a grand-jury decision means everyone should stop talking about Ferguson or Staten Island, and immediately fall into line.
Further, if a police chief was charged in respect to one misconduct investigation, one can presume that there would be vociferous demands that other misconduct investigations be re-examined. Although these analogies seem obvious, they were not pursued in the briefs or oral argument.
Just so. The point in my original post is that, given that Penn State's investigation into one eminent faculty member (Sandusky) was found to be a sham, it's extremely reasonable to suspect that their investigation into another eminent faculty member (Mann) was also a sham. It is so reasonable, indeed, that it's a basic legal principle: falsus in uno, falsus in omnibus. The fact that we have now been litigating the matter for over two years and are still basically in Act One Scene One speaks poorly for the so-called protections of the First Amendment.
Do read the comments below the McIntyre post, which are full of interesting back-and-forth. I especially draw your attention to this:
The case will be remanded to the trial court with instructions to allow limited discovery for determining if malice existed. Further the court will remand with instructions that the defendants are not required to accept the findings of the 8 exonerations.
To which Steve responds:
I was chatting with someone the other day and observed that the decision that would result in maximum delay, least amount decided and maximum legal fees would be a remand for limited discovery and, on that basis, had made a private prediction that the Court would so find.
That's the same conclusion I intuited a year ago, and that was confirmed after watching Their Honors at work. They did not seem to me inclined to toss the whole thing, but nor did they seem the types who would wish effectively to cripple their new SLAPP law at birth. A crappy, limited decision sufficient to get them off the hook and keep things chugging along indefinitely in the fetid swamp of DC justice works best for them.
Still, Mann can't dodge trial forever, and I will eventually get him into court, where my counsel will put him under rigorous cross-examination for the first time in his life. In the meantime, if you've any spare cash floating around before paying off the Christmas credit cards, you could do a lot worse than pick up some of our exclusive Mann vs Steyn trial merchandise, or an autographed copy of my free-speech book, or our limited-time Steyn vs the Stick Winter Warmer special offer. And, if you can't choose which item to purchase, you can always make like the DC courts do and boot the big decision down the road by picking up one of our SteynOnline gift certificates.
~Because Steve McIntyre is such a shrewd analyst, I always get excited when I see an email from him in my inbox. This was his most recent one:
In observing that Lindsay Lohan's career apexed in Mean Girls, you missed observing that two of the Plastics (Regina, Karen) have had very successful careers as leads, one of whom was Canadian.
Regina was played by Rachel McAdams and Karen was played by Amanda Seyfried. It was more or less the first major roles for both of them and both have had numerous leads subsequently. Rachel McAdams is Canadian and still lives in Toronto.
I assumed airily that this was an ingenious analogy: Michael E Mann is the Lindsay Lohan of climate science, the burnt-out child star whose antics everyone is entirely sick of, and whose global warming is, like Lindsay's career, on pause. Oh, Mann can complain that me and Rand Simberg are being mean girls to him, but everyone knows Rand is Amanda Seyfried and I am as appealing as my fellow Torontonian Rachel McAdams.
That put a spring in my step for a day or two, until I went back and reread his missive and the full horror dawned: Steve McIntyre had sent me an email about Mean Girls.