Michael Mann defamation lawsuit -- calling on the judge to apply the law of the case doctrine

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Superior Court of the District of Columbia

Superior Court of the District of Columbia

A new filing in climate scientist Michael Mann's defamation lawsuit against National Review and the Competitive Enterprise Institute would keep in place earlier rulings by the Court denying Defendants' motion to dismiss and move the case forward from there. Meanwhile, lawyers for co-defendant Mark Steyn, whose writing is a subject of the defamation charge, have dropped him as a client.

A motion by Defendants National Review and Competitive Enterprise Institute to dismiss an amended defamation complaint filed by Prof. Mann is pending before Judge Weisberg in DC Superior Court. (See earlier post DC Court of Appeals dismisses an appeal by Defendants in Michael Mann defamation lawsuit.) In July 2013, Judge Combs-Greene, the original judge on the case, considered and denied the Defendants' arguments for dismissing what are Counts I through VI (out of 7) of Mann's amended complaint. Judge Combs-Greene subsequently denied Defendants’ motions to reconsider the July 2013 Orders.

Now, in filing a Plaintiff's Praecipe in Response to Defendants' Joint Request for Status Conference on January 10, Mann's lawyers argue that, contrary to the Defendants' contention, the "law of the case doctrine" applies to the Court's July 2013 Orders denying Defendants’ motions to dismiss the complaint:

Any arguments that Defendants would make to dismiss Counts I through VI are identical to those already rejected by this Court. ... The law of the case doctrine prevents the Court from revisiting identical arguments unless the July 2013 Orders were not “sufficiently final” or were “clearly erroneous.” Neither circumstance is present here. Accordingly, the law of the case bars this Court from reconsidering (for a second time), the denial of Defendants’ motions to dismiss Counts I through VI.

Moreover, contrary to Defendants’ assertions, the Court of Appeals did not “vacate” this Court’s July Orders denying Defendants’ initial motions to dismiss. ... therefore, the July 2013 Orders are still in force and operate as the law of the case.

(Count VII of Mann's Amended Complaint charges that Defendants' statement that Mann was "the Jerry Sandusky of climate science" was defamatory. The Court has not ruled on that count.)

Not speaking as a lawyer here, but it appears that this filing points in a very different direction from the way the Defendants' supporters were talking about the previous court decision, i.e., it would keep in place Judge Combs-Greene's rulings denying the motion to dismiss, and move the case forward from there. Might Judge Weisberg act to expedite this case, toward the much-anticipated discovery phase?

Also within the past week, Judge Weisberg granted law firm Steptoe & Johnson's request to withdraw as counsel for National Review's fellow Defendant Mark Steyn. Steyn's online writing for National Review is part of the defamation charge. One could speculate that Steyn's lawyers were not very happy about this loose-cannon blogging rant by Steyn, posted on December 24: Mumbo-Jumbo for Beginners.

Perhaps Steyn's beyond-snarky criticism of the former judge in the case, and accusing an opposing attorney of fraud, was the last straw for his lawyers. Perhaps Steyn would be happy to be a martyr on this, i.e., taking a free speech absolutist position rather than waging a defense that he didn't commit libel? An approach that his lawyer and more businesslike co-defendants might be unlikely to share.

To backtrack just a bit on how this case got started, from a post at Climate Progress:

The kick-off for the lawsuit was actually a piece written by Rand Simberg at the Competitive Enterprise Institute (CEI), which referred to Mann as “the Jerry Sandusky of climate science” because he “molested and tortured data in the service of politicized science.” The editors eventually removed the offending sentences, but not before Mark Steyn picked them up at National Review’s online blog. Steyn said he wasn’t sure he’d have “extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point.” He then went on to call Mann’s work on the famous “hockey stick” graph “fraudulent.”

So Mann sued Simberg, Steyn, CEI and National Review for defamation. A previous DC Superior Court decision already concluded in July that there was sufficient evidence of “actual malice” for the lawsuit to proceed, and slapped down the defendants’ claim that their statements were protected under the First Amendment.

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48 Responses to Michael Mann defamation lawsuit -- calling on the judge to apply the law of the case doctrine

  1. B L Nelson says:

    Your apparent glee at the events of this lawsuit in shutting down the free speech of the entities and individual being sued evidences your left-leaning attitude, and wholly misleading blog name.

    • Rick - Climate Science Watch says:

      Climate Science Watch is a government and corporate accountability project. We defend the climate science community against politically motivated denialist attacks (in which National Review and the Competitive Enterprise Institute have engaged). We're not into "shutting down" anyone's free speech. One of our concerns has to do with governments that shut down freedom of communication by scientists. We report on the developments in this case. What the Defendants wrote about Prof. Mann seems to us to be truly scurrilous and destructive. It's up to the court to decide whether they transgressed the legal boundary of free speech with defamation.

    • Tony Duncan says:

      Argus,

      you are confusing who is acting with Glee. Mark Steyn was clearly acting with glee in accusing Mann of fraud.
      this article is just pointing out that Steyn's arrogance seem to have caused his lawyers to second guess their decision to represent him. Or maybe they have realized that Mann's case has a strong likelihood of succeeding.
      I see no threat to freedom of speech if Mann wins his case. I only see it making arguments about science in the media more responsible.
      Anyone is free to make all sorts of ridiculous claims about the science as NR often does, but you cannot just flat out lie about a professional and say that his work is fraudulent. You are making assertions, that unless there is actual evidence can impact the person's livelihood. In this case there are many sources that directly contradict the claim, and in fact an inquiry was initiated connected to the writers claims, which concluded NO fraud.
      this is probably one of the most reasonable claims for libel that I have seen in the context of science.
      and the idea of NR using SLAPP as a justification for their attacks, I don't see how anyone can take that seriously. SLAPP is for people without any resources so that they are not silenced by the wealth of potential litigators pursuing frivolous cases. Michael Mann is one person, a scientist, who has been the target of vicious attacks for almost 10 years, the idea that his power is so much more than poor little NR is one of the most ridiculous things I have ever heard. It should be embarrassing to the magazine.

    • Gingerbaker says:

      "Your apparent glee at the events of this lawsuit in shutting down the free speech of the entities and individual being sued evidences your left-leaning attitude, and wholly misleading blog name."

      Tell it to the judge.

    • chrisd says:

      Freedom of speech does not protect libelous statements. Never did, never was intended to.

      It is disappointing that the right continuously uses freedom of speech as a defense for libel, slander, and lies. That's not what freedom of speech is about.

  2. Argus says:

    "Correction"

    If I understand Anti-Slapp (which may be a long shot), if the dismissal motion denial on the original complaint is not vacated, then defendant has an expeditious right of appeal under anti-Slapp (as is argued by both the ACLU and the "Reporters" in their amicus briefs).

  3. Al Sheeber says:

    Sounds like heavy duty injection of cash from the "entitled crowd" to keep the myth going and shut up any climate skeptic is orchestrated in collusion with hand picked judges for sale, who will sell their ethics for the cause of the Lefty reactionaries. Steyn is a reporter, an opinionator who can question and send up any public figure, What this unethical poseurs are doing, is intimidating a decent man with legal harassment and intimidation, much like the Arabs are doing here, "lawfare"!

    • Rick - Climate Science Watch says:

      The entitled crowd, unethical judges, Lefty reactionaries, and Arabs in America. Quite a conspiracy. And here we thought this was about whether a leading paleoclimatologist was defamed by analogizing him to a pedophile. Thanks for setting the record straight.

  4. Patty Villanova says:

    I daresay that very few of the people who are writing about or otherwise involved in this case know what the acronym SLAPP stands for, that is, Strategic Lawsuit Against Public Participation. As the name suggests, the main object of such a suit is not to avenge some humorous satire that was less offensive than something that might be heard on tv any night of the week on the Jon Stewart or Jay Leno shows.
    Rather, the object of Mr. Mann's vendetta is to shut down Mark Steyn and his ilk who have been champions of free speech or what's left of it. This has nothing to do with a brave defense of "science" and everything to do with dragging the "defendants" through our corrupt legal system and causing them to expend millions of dollars which will eventually bankrupt them, or at least put the fear of God into anyone who is even considering hiring Mark Steyn.
    I wonder what the gleeful jackals will have to say, or where they will look for help when, inevitably, the climate fanatics come knocking on their doors. Mann and his cronies have proven that they have zero tolerance for any person or institution that may disagree with them. And they have an army of loyal enforcers to do their dirty work. Personally, I'd rather take my chances with Tony Soprano than with any of the judges involved in this case.

    • chrisd says:

      Again:

      Freedom of speech is not freedom to libel. Freedom of speech is not absolute. It has limitations. There is no right to libel.

      Using this bedrock principle of our nation to defend libel, slander, and lies debases it beyond recognition. No one who loves this or any other country with free speech protections should ever use it like that.

      • gewa76 says:

        Please define what constitutes libel in this case. Steyn did not accuse Mann of sexual abuse. He questioned the integrity of Mann's work.

      • davideisenstadt says:

        there is a right to libel in this country...then one has to deal with being sued for libel...but there is a strong animus towards prior restraint, in other words...you have a right to do it, and a right to bear the consequences of doing so.

    • Rick - Climate Science Watch says:

      See Tony Duncan's comment re SLAPP. We'll see how the courts decide.
      Mark Steyn's published ranting about the case in the middle of the trial was really quite ill-advised. People might think twice about hiring him, though I expect he will have an audience that finds him entertaining.
      Prof. Mann's work is entirely within the mainstream of climate science, as paleoclimatology research has moved forward since his original "hockey stick" paper 15 years ago. For a concise overview see, e.g.,http://www.skepticalscience.com/broken-hockey-stick.htm.
      It's important to defend climate scientists who are subject to attacks on their credibility and integrity coming from the global warming denial machine, misguided ideologues, and black helicopter paranoia about climate fanatics knocking on doors. For too long there was too much failure to respond effectively, as the contemptible attacks on climate science and scientists mounted. Those days are over.
      People should pay attention to what is coming out of the climate science community and treat it with respect as an essential resource for societal intelligence.

      • Argus says:

        "People should pay attention to what is coming out of the climate science community..."

        If you don't mind, I'll opt for Wunderground and looking outside my window for all the climate science I'll ever need...or want.

        • Rick - Climate Science Watch says:

          Well, if you read Jeff Masters' blog at Weather Underground you'll get some good education. And here's a video interview with Jeff Masters, director of meteorology at Weather Underground, in which he talks about how the band of frigid temperatures relates to changes in climate:

          http://www.democracynow.org/2014/1/7/weather_whiplash_as_polar_vortex_brings

          Weather is what you see outside your window. Climate is about averages over geographical areas and time, in years, decades, and centuries. It is characterized in terms of means, variability, extremes, probabilities, projections, and so forth. You can't really learn "all the climate science [you'll] ever need" by looking out the weather -- although changes in weather and in weather extremes is one essential way that longer-term climate change will manifest.

          • Argus says:

            "And here's a video interview with Jeff Masters, director of meteorology at Weather Underground,..."

            ...and most amusingly hosted by Amy Goodman at "Democracy Now". You'll, of course, pardon me for my "damned-by-association" reaction. Leftist and warmist have become almost synonymous...much to the detriment of the scientific community's credibility...and I'll continue to utilize Wunderground et al and my front window for meteorology, not ideology and climatology, TYVM.

          • Rick - Climate Science Watch says:

            Don't bother me with climate science while I'm looking out my window, eh?
            You know, there is a mountain of evidence developed by many leading scientists over many years of research and observation. Their mainstream climate science analysis of anthropogenic global warming and its likely consequences, which you can read from the National Academy of Sciences, the IPCC, in ever-advancing peer-reviewed literature, and in many accessible sources, has nothing to do with "left" and "right". However, it does seem that the more progressive side politically is not the ones who have the most trouble with scientific reality. Global warming denialism, evolution denialism, antagonism toward the science comunity, and anti-science thinking in general, does seem to be endemic among quite a few (not all, of course) right-wingers. They're usually not hard to spot, for example when they use the term "warmist". A few pieces you might look at to see if you recognize yourself, then you can take it somewhere else:

            http://www.huffingtonpost.com/chris-mooney/the-science-of-truthiness_b_1379472.html

            http://www.climatesciencewatch.org/2013/03/21/climate-change-denial-books-and-right-wing-think-tanks/

            http://www.desmogblog.com/2013/03/20/research-reveals-almost-all-climate-science-denial-books-linked-conservative-think-tanks

      • Marshall Gill says:

        "It's important to defend climate scientists who are subject to attacks on their credibility and integrity coming from the global warming denial machine, misguided ideologues, and black helicopter paranoia about climate fanatics knocking on doors. For too long there was too much failure to respond effectively, as the contemptible attacks on climate science and scientists mounted."

        Funny, I always teach my children that Science should be able to stand upon itself. If it needs defending, it probably isn't particularly scientific. One assumes that those "defending" science with lawsuits will stand up and loudly support "discovery" in this case.

        The Canadian Human Rights Commissars tried to take down Steyn, it didn't end well for them. This won't end well for Mann either, but it will be a victory for Man.

        • Rick - Climate Science Watch says:

          Science can stand on it's own. Scientists can deal with alternative explanations, skepticism, whatever. When I talk about the 'global warming denial machine' I'm not talking about science debates and intellectual skepticism, I'm talking about the politically and ideologically motivated attacks over the years, dating back at lest to the early 1990s, much of it funded by corporate interests, seeking to manufacture an exaggerated pubic sense of uncertainty about climate science in order to ward off regulation of greenhouse gas emissions and other climate-related mitigation and preparedness policy. The science community was ill-prepared to deal with the stunning amount of aggressive, vitriolic attacks on the credibility of the climate science enterprise and on the personal integrity of leading climate scientists who dared to communicate their results to policymakers and the public. The global warming denial machine is in the tradition of how the tobacco industry for decades manufactured doubt about the dangers of smoking. That required a political response, not just a scientific one. The problem has been discussed in detail on this site and elsewhere. We're not interested in indulging those who want to go back to square one to re-litigate this point, as it were. The record is there if you care to study it.

          • Jim says:

            Rick,

            Scientists should be inherently skeptical. As long as there are doubts and alternative theories (solar activity, planetary alignment, incomplete survey data) then no science can be "settled." I'm no scientist; just a man with a lot of training in critical thinking and structured analytics. The "settled science" argument is a classic case of appealing to authority when your evidence is ambiguous at best.

          • Rick - Climate Science Watch says:

            Scientists are inherently skeptical, i.e., show me the evidence. My concern is not with intellectual skepticism, but with those who, for whatever political or characterological reasons, continue to latch onto and disseminate science-y sounding points that have been repeatedly dealt with and refuted by those with the most credible expertise in the field as they move forward intellectually. That is a problem to the extent that it muddies the waters of public discourse in such a way as to subvert appropriate action on the basis of what climate scientists do understand about the problem of anthropogenic climatic disruption. It's not about being against skepticism, it's about seeing something that is more political going on. "Just a man with a lot of training in critical thinking and structured analytics" is not a problem, because if you actually study the mountain of evidence reviewed and synthesized in the reports of the National Academy of Sciences ("America's Climate Choices" climate science volume especially), the Intergovernmental Panel on Climate Change, and so forth, you will learn something. What I call the "global warming denial machine" is more the corporate-funded and ideologically driven 'think tanks' and orchestrated campaigns to manufacture an enhanced sense of fundamental scientific uncertainty about things that are actually understood pretty well, in order to ward off regulatory policy on greenhouse gases and other societal actions based on the best available, widely vetted scientific assessments. This campaign misuses climate science and abuses climate scientists, who become collateral damage in the politicization of science by special interests.

            For an accessible, scientifically referenced set of responses to the whole panoply of common 'skeptic' arguments that seem to continue in the face of scientific refutation, see http://www.skeptialscience.com, e.g., http://www.skepticalscience.com/broken-hockey-stick.htm. Go through the climate science assessments and se how much you really want to divert this enterprise into chasing after 'theories' of climate change caused by 'planetary alignment'.

            On the denial machine, see, e.g., Orestes and Conway, Merchants of Doubt; Powell, The Inquisition of Climate Science; and Mooney, The Republican War on Science.

            Also, http://www.huffingtonpost.com/chris-mooney/the-science-of-truthiness_b_1379472.html.

      • Mark S says:

        Rick,

        Well said. I've just finished reading Dr.Mann's "Hockey Stick and the Climate Wars" and the pushback from both scientists and us the general public is long overdue. There should be no need for us to apologise for defending a brilliant scientist doing his job.

        They've had long enough pushing their idiotic agenda without criticism. Those days have ended.

  5. Argus says:

    Perhaps my memory fails me, but I seem to recall a certain sense of exuberance within the carbonista camp over Mr. Steyn's purported "dishonesty?" in characterizing the appellate ruling as having "...tossed out anything relating to Mann’s original fraudulent complaint...".

    Now we witness Mr. Mann's lawyers petitioning the court to, in fact, exhume from "mootworld" and revitalize the pathetic Judge Greene's prior ruling denying defendant's dismissal motion.

    Lol. Steyn will apparently get another bite at that particular apple.

    • Rick - Climate Science Watch says:

      My understanding is that Mann's lawyers are simply saying that the original judge's rulings were, under the law, not mooted, but still stand. We'll see what Judge Weisberg has to say about it.

    • Conrad Dunkerson says:

      The false information about the proceedings of this case in the denialsphere is starting to rival the false information about Mann and the hockey stick.

      The 'mooting' was not what you've been told it was. Basically, Steyn and co asked the judge to re-examine the previous judge's rejection of their motions to dismiss the case. Instead, the judge ruled that this request was moot because they were ALSO asking him to separately dismiss the case, on the same grounds, after Mann filed an ammended complaint (citing further idiocy from Steyn). Basically, the judge said 'I am not going to rule on the same things twice, therefor I reject your request to re-examine the prior rulings and will settle these issues in my response to your other motions'. In short, the defendants LOST their motion... yet the denialsphere trumpeted it as a grand victory. That's just pure outright delusion.

      Now Steyn's lawyers have dumped him, which is difficult to do unless you can show good cause, and Mann's lawyers are arguing that the judge shouldn't re-examine the issues already settled by the prior judge and instead only look at new issues. If this judge agrees to that then Steyn and co will no doubt appeal his mooting of their other request... basically he'd have avoided ruling on those issues in response to either set of motions. However, such an appeal would seem unlikely to succeed... the rulings by the original judge would have to be egregiously wrong, and they quite simply weren't.

      Of course, if the judge rejects Mann's motion and agrees to re-examine all the previously settled issues then the case would indeed be 'back at square one' as some denialsphere sources had incorrectly claimed it was after his previous ruling. That would be a surprising turn, and likely appealed by Mann's lawyers as violating the 'law of the case' doctrine. Though there isn't much point thinking about things two levels of speculation out from the current situation.

  6. Paul says:

    1. Nobody except Mark Steyn and Steptoe & Johnson know why they withdrew as counsel. It could be strategic, who knows?

    2. Steyn's position is that this case is about shutting down criticism of a public figure. It is entirely consistent with his position that he keep up the criticism.

    3. The defendants have amicus support from outside entities including the ACLU. Not exactly a bastion of right-wing lunacy.

    4. Fraudulent has many meanings.

    5. Most of the actions of the parties are at this point legally strategic not substantive and there is no point in trying to score either side based on the latest petition or whatever. Maybe a very knowledgeable impartial defamation lawyer can read something in the tea leaves but not the other 99.99% of us.

  7. Captain Obvious says:

    It is completely silly to suggest Steyn should just stop writing about Mann while this SLAPP progresses. Maybe you don't understand what the purpose of a SLAPP is after all?

    If I decide one day that I don't like your face, and file a lawsuit to make you wear a mask, are you going to comply and wear a mask until that suit is adjudicated? What then is my motivation to achieve a result when the mere process achieves my objective?

    Replace "face" and "mask" with "speech" and "gag" and you have this lawsuit. ... Even the ACLU has figured this one out...

    • Rick - Climate Science Watch says:

      The comment was not a matter of saying Steyn should stop writing about Mann. It was that Steyn posted commentary that trashed a judge in the case and accused an opposing lawyer of fraud. Then his own lawyers withdrew from representing him. I would call that posting ill-advised under the circumstances, just sayin'. As for the ACLU, my understanding is that their their amicus brief to the DC Court of Appeals is procedural, having to do with asking the Court to rule that it has jurisdiction on an Anti-SLAPP act appeal in the case. The Court has not ruled on this matter yet and perhaps we will get to that. The ACLU brief does not take a position on the merits of the defamation lawsuit.

  8. Gretch says:

    I wonder where Michael Mann gets the money to file all these law suits. Do any of you know?

  9. Dyspeptic Curmudgeon says:

    Re: Conrad Dunkerson
    "The false information about the proceedings of this case in the denialsphere is starting to rival the false information about Mann and the hockey stick".

    Yes and you are one of the ones spreading the false information.
    You have the legal specifics quite wrong. The Appeal was held to be moot because the first judge *made her own ruling moot*.
    The new judge will hear the second motion to dismiss as against the amended complaint.
    Your entire second paragraph is entirely wrong.
    You have to go to the DC Court system website and look at the history to understand how badly this action was screwed up by the idiot first judge.
    Go here: https://www.dccourts.gov, enter Michael Mann and select the correct case (2012 CA 008263 B) then select 'Case Details).

    Mann's original claim included the fraudulent claim that he was a 'Nobel Prize winner'.(And yes it was a fraudulent claim by Mann's lawyer: he had to know that Mann never won a Nobel prize or he is an incompetent idiot). Steyn et al. moved to dismiss the action under the anti-Slapp statute.
    Mann moved to amend the claim. The so-called judge dismissed the first motion and allowed the second on the same day. Mann filed the amended claim. Steyn et al. appealed, AND filed a new motion to dismiss the amended claim.
    There was some question whether an appeal could properly be brought from the dismissal of a slapp motion. The court of appeal accepted the ACLU's amicus brief, and accepted the appeal. *That* established a precedent that an interlocutory appeal could be taken in this circumstance. This had apparently not been litigated under the (new) slapp statute.(Generally appeals cannot be taken until things are final: but if a slapp motion were granted, it would be final and appealable, so a dismissal should be appealable too. That's what the ACLU argued, in part).

    The court of appeal held: "that these appeals are dismissed as moot because the trial court granted appellee's [Mann's] motion to file his lodged amended complaint and docketed the amended complaint and appellants then filed new special motions to dismiss which remain pending. It is
    Further Ordered these dismissals are without prejudice to appellants filing new notices of appeal from orders denying a special motion to dismiss."

    Note the appeal was moot, BECAUSE the judge allowed the filing of the amended complaint. That also rendered her decision about the first dismissal motion moot as well. And the last sentence provides a basis for further appeals.

    Mann's lawyers are now trying to argue that the idiot judge's original ruling constitutes 'the law of the case': that is, if I understand it correctly, that her dismissal of the first motion determines for all time whether the claim can be dismissed or not. I don't think this will fly: the amended claim is NOT the same claim. An amended claim is are not a substitute, nunc pro tunc for the original, but a brand new thing for motion purposes. I say that since otherwise the appeal court's ruling about mootness *makes no sense*. If the decision were not moot, the court of appeal would have had to actually deal with it.
    And it was commented upon elsewhere that the appeal had to be taken by Steyn et al. in order to 1) get a ruling that a slapp motion decision was appealable, and 2) to get a ruling that the idiot judge's decision was not to be treated as 'the law of the case'.
    So NOW the new judge will hear the new slapp motion, as against the amended complaint. And Mann is attempting to argue that the new motion should be treated as moot! in the face of the appeal court's ruling that it is made without prejudice to the filing of an appeal from a denial of a dismissal.
    Bluntly, this is a stupid position to take: if the 'law of the case' argument wins, then the new motion will be dismissed *without the merits being reached*, and the appeal court has effectively *invited* an appeal. Lotsa luck with that when you are back in the C of A. for the second time, arguing that the defendant cannot properly bring a motion to dismiss the action, where the merits of the motion have never been properly argued and dealt with, due to the incompetence of the first judge but whose decision must be sustained.
    And the 'law of the case' argument is very weak, because there never was any law determined. The appeal never dealt with it because Mann already had what he wanted, on the day, permission to file the amended claim, which made any arguments about dismissal of the first version irrelevant.

    This is, as Steyn pointed out, an incredible waste of resources and time. But I have no doubt that Mann will eventually have to attend depositions. And produce the documents which he everywhere fought against producing.

    • Bob says:

      You obviously got you money's worth at law school.
      Thanks for the explanation. Are you a Mencken fan?
      He of course another crumudgeon.

    • Conrad Dunkerson says:

      Wow. The ability of deniers to live in a completely different reality never ceases to amaze me.

      In any case, the judge has now ruled that Mann's 'law of the case' motion doesn't matter because he went ahead and ruled on all of the defendants motions... and agreed with the original judge in every instance. He also dismissed their one additional motion to dismiss.

      Thus, all of the fiction around what past rulings meant really doesn't matter... this judge came to the same, frankly obvious, conclusions as the original judge and the case can now move forward.... though the defendants may file another groundless appeal first.

      They really seem desperate to avoid discovery. I wonder if they'll offer to settle after their next appeal is denied.

  10. Argus says:

    If you'll kindly entertain a brief divergence from legal analysis...

    "Meanwhile, lawyers for co-defendant Mark Steyn, whose writing is a subject of the defamation charge, have dropped him as a client."

    Truth: Objection your honor...facts not in evidence!
    Court of public opinion: Sustained.

    I'd suggest that any reasonable assessment of Steyn's change in legal representation, especially given the very public rift between Mr. Steyn and his NRO editorial overseer, Jason Steorts, might also consider the plausibility that it was Mr. Steyn who, quite conversely, had sent Steptoe & Johnson packing.

    Hmmmmm?

    • Dyspeptic Curmudgeon says:

      Much more likely that Steyn took the step, *with the approval of Steptoe et al*.
      Steptoe Johnson, in the persons of:
      BRUDER-FOX, MOLLY
      COFFIN, Mr SHANNEN W
      CONTOIS, Mr THOMAS M
      MOESER, CHRISTOPHER
      MOORHEAD, Mr JAMES B B
      also represent National Review. The legal basis for claims against the parties differs. One wrote it, one published it. Steyn is presumably subject to questioning about exactly what he knew before he wrote the article. NR would be liable on different grounds. And not being a defamation lawyer (although I play one in my head, whenever I see Ben Stiller in the trailer for the Walter Mitty movie. ( I know, very weird)), I cannot elucidate prolixly and verbosely upon the exact differences. So I shall be short terse and succinct and stop.

      • Argus says:

        I'm ignorant as to procedure. Assuming Steyn et al's motion to dismiss the now-amended complaint is permitted to argue ALL plaintiff complaint elements (contrary to plaintiff's recent argument), will there then be ensuing oral arguments before the court prior to a ruling or can/will the judge make his rulings based only upon submitted briefs?

        "Steyn is presumably subject to questioning about exactly what he knew before he wrote the article."

        Are witnesses normally called as part of the above process or is witness testimony reserved untill all pre-trial judicial considerations have been dealt with, to include appeals (which are likely inevitable)?

        • Dyspeptic Curmudgeon says:

          Motions are generally resolved on written materials which include affidavits. Generally, the deponents can be examined/deposed to clarify their statements in the affidavits. Live testimony is rare at the motion level in most courts (contrary to The Good Wife!).
          Trial is where witnesses are examined 'live'. But the parties are subject to deposition before trial which includes documentary disclosure. We are nowhere near that yet.

          • Argus says:

            "Motions are generally resolved on written materials which include affidavits."

            OK. Then would it also follow that, without deposing Steyn to somehow establish a predicate for asserting Steyn's personal "disbelief" in his own expressed "opinion", the complaint should be dismissed out-of-hand as being without foundation?

      • Drewski says:

        I understand:

        You hesitate to articulate
        for fear you may deviate
        from the true course of rectitude.

  11. Ray Del Colle says:

    Climate change is happening now. Just ask 97% of the top climate scientists & every major National Academy of Science in the world.

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