As I write this on the afternoon of Thursday February 8, the jury is deliberating in the Mann v. Steyn case. They could come back at any time, so I’ll try to write this quickly in order that the post is not obsolete already when it is posted.

The last day of trial, yesterday, was devoted to jury instructions and closing arguments. Unfortunately, I had to miss the opening argument from Mann’s counsel John Williams. But I was then able to listen to almost the entire argument of Simberg’s counsel Victoria Weatherford, the entire argument by Mark Steyn on his own behalf, and the entire final rebuttal from Mr. Williams.

My overall comment on the closings of Ms. Weatherford and Mr. Steyn is that they were straightforward reviews of the evidence, or lack thereof, as it applied to each element of the claims, as those had been outlined by the judge in the jury instructions. Because Mann had presented little to know relevant evidence, the closings were quite devastating. Ms. Weatherford’s approach was more an item-by-item review of how plaintiff had failed to prove each element, while Steyn focused more on a few particularly noteworthy issues; but both were well within norms for this type of argument. By contrast, Williams’s rebuttal was almost entirely off point and/or improper. He drew repeated (and correct) objections, several of them sustained, ultimately forcing the judge to re-read to the jury the entire instruction as to the elements and burdens of proof for defamation in order to correct an incorrect statement of the law made by Mr. Williams.

In general, I have great faith in juries. And in this case, where my view is that the evidence strongly favors the defense, it should be an easy decision. However, given the highly charged politics of the subject matter, I do not have confidence in how the jury will come out.

The Jury Instructions

The instructions had been negotiated between the plaintiff and defendants, and mostly came from standard forms. There may have been some objections that one side or the other had preserved, but that was not mentioned publicly. Although I am not an expert in defamation law, the instructions seemed to me to be a fair summary of the law, with the exception that I was surprised that the phrase “actual malice” was not used. However, the instructions did use the words that I understand to be the operative definition of that “actual malice.”

In short summary, the judge instructed that there are four elements of defamation in this case: (1) publication by the defendant of a false statement of fact, (2) the false statement is defamatory, (3) actual damages, and (4) the defendant knew that the statement was false or recklessly disregarded its truth or falsity. The judge further instructed that the plaintiff had the burden of proof as to all four elements. As to items (1), (2) and (3), the plaintiff’s burden is to prove them by a “preponderance of the evidence.” But as to element (4), the plaintiff must prove it by “clear and convincing evidence.”

Item (4) is what I understand to be the “actual malice” element. This is the element that applies to a case in which the plaintiff is what is known as a “public figure.” In this case, Mann did not dispute that he was in fact a public figure. The “actual malice” element was made part of the law of defamation as to public figures by the Supreme Court in a case called New York Times v. Sullivan, back in the 1960s. The Supreme Court based its ruling on the First Amendment, ruling in effect that the constitutional command of freedom of speech prevents powerful public figures from wielding defamation law as a weapon to ruin adversaries who are engaging in protected speech.

Since New York Times v. Sullivan, it has been almost impossible for a public figure to recover on a defamation claim over media commentary. The fundamental problem is that the plaintiff bears the burden of proof, and by “clear and convincing evidence” no less, that the defendant knew or recklessly disregarded that the statement was false. As a practical matter, how is a plaintiff ever going to prove that? The plaintiff is trying to prove the defendant’s state of mind on something the defendant will never admit. Theoretically, the plaintiff could uncover emails in discovery that said something like “I know this statement we are about to make about X is false, but I am going to say it anyway in an effort to bring him down.” As you might imagine, that is highly unusual to find, and it certainly did not occur here. Both Steyn and Simberg testified that they believed what they wrote was either opinion (thus neither true nor false), or if fact, then true, and they stood behind it.

The instruction on element (3), damages, also deserves some comment. In my prior post on February 2, I noted that the law of damages in defamation cases is complex, and that in some cases and some states, a jury can award “general” or “presumed” damages without any showing of monetary harm. The instructions here were something of a mixed bag on this issue. The judge gave no instruction specifically allowing “general” or “presumed” damages. He stated that there could be “compensatory” and “punitive” damages. But as to compensatory, he said that it could consist of proven monetary harm, but that there could also be compensatory damages for “mental distress” or “humiliation.” As to punitive damages, he said that those could be awarded where the jury found that the statements were made with “knowledge of falsity” (or reckless disregard of truth), and with malice, spite or ill will.

Closing arguments.

I won’t go into any detail as to Ms. Weatherford’s closing. Basically, she went over the evidence as to each point of the judge’s instructions. The plaintiff had failed to put up anyone but himself as to whether his statistical work was correct; had not rebutted or even responded to the criticisms of Wyner, McIntyre or McKitrick; had not responded to the showing from the testimony of Scaroni and Foley that the Penn State Inquiry had not investigated the issues that were the subject of the allegedly defamatory blog posts; had shown no monetary damages, while his publications and book deals only increased; and, probably most importantly, had presented absolutely nothing on the critical question of whether the plaintiffs believed what they said was true.

Steyn emphasized several points that seemed rather telling to me: (1) on damages, Mann had knowingly offered into evidence a claim of a $9+ million loss from a certain non-awarded grant, when he had actually corrected the claim as to that grant to be only $100,000; (2) while Mann claimed the great defamation was associating him with convicted child molester Jerry Sandusky, he had willing associated himself with Penn State President Graham Spanier by acknowledging Spanier in his books, even after Spanier had been criminally convicted of enabling Sandusky’s conduct; and (3) Mann could show absolutely nothing about Steyn thinking his post might not have been true, and Steyn emphasized that he stood behind the post to this day.

And then we came to Williams. As I mentioned, I hadn’t been able to listen to Mr. Williams’s opening argument. But generally, the lawyer who gets the brief rebuttal at the very end will use it to emphasize his very best points. If these were Williams’s best points, it is truly appalling:

• Williams’s first point was that neither Weatherford nor Steyn had mentioned the NSF Report as to Mann in their closings. (The NSF Report is one of three reports that Mann claimed in the case had “exonerated” him of scientific misconduct.) Given the limited time for closing, that was a very reasonable decision on the part of Weatherford and Steyn. The NSF Report was a complete distraction with regard to the actual issues in the case. Whatever the NSF Report may have said, it could not possibly have gone to Steyn’s or Simberg’s subjective belief as to the truth of what they had said, and thus could not possibly fulfill Mann’s burden of proof on that issue. (And in fact, the NSF Report was not at all an exoneration of Mann, as had been covered during the evidence phase of trial. Among other things, it was only addressed to a particular definition or “research misconduct”, which included only “fabrication, falsification, and plagiarism.” Mann’s misconduct was alleged to be truncation of data series and failure to report adverse research results — thus not included in the NSF definition and never investigated.

• Next, Williams argued that no one giving evidence had questioned Mann’s “integrity, reliability or credibility.” This ridiculous claim drew an immediate objection, which was overruled — although the judge said he would re-read the instructions on that subject.

• Then Williams argued that Steyn and Simberg had not proven that they really believed that what they wrote was true. This was of course a complete mis-statement and reversal of the actual law and instruction on the key issue of actual malice. The statement drew an immediate objection, which was sustained. As a result of the mis-statement, the judge told the jury to ignore Mr. Williams’s statement and said that he would re-read to the jury the instructions as to defamation. He did that at the close of the argument. However, it was not clear to me that the jury understood that the re-reading was intended to correct Mr. Williams’s false version of the law and burden of proof as to actual malice. They could well be confused as to this, which was clearly Williams’s intent.

• Next, Williams said that his client had no need to prove monetary harm, but the jury could award damages based on reputational or emotional harm. The problem with this one is that he had no evidence to cite as to the alleged reputational or emotional harm.

• And finally, Williams made a pitch for punitive damages. In his pitch, Williams started to say “These attacks on climate scientists have to stop.” Again, there was an immediate objection, again sustained. In effect, Williams was arguing for abrogation of the First Amendment as to the climate debate. I find it outrageous. But will the jury?

UPDATE, February 9: The jury came back last evening with its verdict: $1 of compensatory damages against each defendant, $1000 of punitive damages against Simberg, and $1 million of punitive damages against Steyn. That makes this a dark day for the rule of law.

Essentially every left-wing news source has an article up this morning gloating about the victory. Most are behind paywalls — thankfully, so you don’t have to read them. For an example of one that is not, here is the piece from NPR. The few articles that I have had the stomach to read tout Mann as, for example, “one of the world’s most renowned climate scientists.” But they completely omit any mention of the pathetic weakness of Mann’s trial presentation — for example, of Mann’s failure to offer any proof on the key element of “actual malice”; or of the unrebutted proof of his improper scientific conduct, ranging from his incorrect use of statistics to minimize uncertainty (Wyner), or his failure to report adverse verification results (McIntyre). On these issues of the improper science, Mann hadn’t even called any witnesses to counter the showings by the defense. But why would a reporter bother to discuss any such things at this point? After all, the jury has ruled.

So where does the case go from here? In the first instance, the defendants have made motions for what is called “judgment as a matter of law,” based on Mann’s failure to prove his case. In most cases such motions are pro forma and routinely denied. Here they are quite substantive, for reasons discussed in my prior posts. There is also reason to believe from watching the trial that the judge was appalled by Mann’s conduct in several instances. However, we should recognize that in the milieu where this judge lives and works, he will get nothing but praise if he simply upholds the verdict, whereas if he overturns the verdict he will be vilified.

The judge does have some other options in his bag of tricks. He has substantial ability to reduce or even eliminate the punitive damages. There is also something called “court costs,” a very arcane part of the American system. “Court costs” does not include attorneys’ fees, but rather consists of some specific things (varying from jurisdiction to jurisdiction) like court filing fees and the costs of preparing depositions and exhibits for trial. In a case like this that goes through a big trial, the “court costs” could be in the tens of thousands of dollars, or even a hundred thousand. Typically they are awarded to the prevailing party, but in a case where the plaintiff has only won $1 of compensatory damages, the court could decline to award them.

Then there are appeals. Frankly, I would be doubtful that Simberg will appeal, having only a $1001 verdict against him. Steyn has far more incentive, but is proceeding pro se. Simberg has already issued a statement characterizing the verdict as a victory for him. Unfortunately, I don’t foresee CEI as backing Simberg on such appeals. CEI was dismissed from the case on pre-trial motion, and if Simberg appeals Mann would likely cross-appeal to re-instate the case against CEI.

The first appeal, if it occurs, would go to the D.C. Court of Appeals (different from the D.C. Circuit). That court has already ruled that the case would not be dismissed under D.C. anti-SLAPP statute, and that Mann had enough prospective evidence to go to trial on the issue of “actual malice.” I thought the court was dead wrong on both of those, but it’s not going to reverse itself. There is another ground for appeal, which is called “insufficiency of the evidence.” The problem is that for an appeal on this ground to succeed, there really has to be absolutely no evidence, and so appeals on this basis are only very rarely successful. A D.C. appeals court that has already stretched the law to the breaking point to allow Mann to get his case to trial is highly unlikely to then reverse a jury verdict on grounds of insufficiency of the evidence.

Which means that the only real hope on appeal would be at the Supreme Court. And that too would not be a big hope. The issue of the proper scope of the D.C. anti-SLAPP statute is really outside the scope of what the Supreme Court would likely take up, since the anti-SLAPP statute is not a federal law, but rather effectively a state law arising out of D.C.’s role as a state/local government. The issue that the Supreme Court could conceivably consider would be the First Amendment question of the contours of the “actual malice” test and the evidence required to prove it. But with the case having gone to trial, that issue will now be colored by the jury instructions and the verdict. I find it difficult to envision the Supreme Court getting into a “sufficiency of the evidence” review of the trial record. On the other hand, Mann’s lawyer seemed to think that his best proof of “actual malice” lay in the NSF report finding no research misconduct by Mann. Making “actual malice” provable this way essentially means that members of the public are required to accept an official government party line to avoid exposing themselves to ruinous defamation suits. Maybe, just maybe, that argument could draw interest from the Supreme Court.

In a small note of optimism, I suspect that Steyn can get help if he wants it from pro bono lawyers to proceed with appeals. Alternatively, he may decide that his best approach is to leave the United States and not pay the judgment. That is the approach that Mann has taken with the judgment issued against him in Canada for his failed defamation suit against Tim Ball.