Kowal Law Group Logo
Climate Change on Trial

Climate Change on Trial

Tim Kowal     February 5, 2024

Wealth, class, and high office don’t buy a lot of respect these days, but people listen if you’ve got some extra letters hung on the end of your name as scientists do. So climate scientist Michael E. Mann, Ph.D, sued for defamation when Rand Simberg and Mark Steyn called his “hockey stick” graph the product of manipulated data. The hockey stick, published in the late ‘90s, showed global temperatures holding steady for hundreds of years and then dramatically spiking in the 19th century.

This is a D.C. Superior Court case, and the jury trial is not over yet. You can listen to actor reenactments of highlights of the trial using verbatim transcripts at the podcast Climate Change on Trial, hosted by Ann McElhinney and Phelim McAleer. After listening to the re-enactments, I have a few reactions.

The trial court denied the defendants’ anti-SLAPP motions. Although public comment on global warming (or climate change) is certainly protected, the court ruled that Mann deserved a trial. Specifically, Mann was entitled to try to prove that when Simberg and Steyn accused him of manipulating the data on global warming—such as by leaving out the Medieval Warm Period and the Little Ice Age—and that when they accused U. Penn’s academic-fraud investigation of him as whitewashed by linking it with that same university’s contemporaneous whitewashed investigation into (now-convicted) serial child-molester Jerry Sandusky—that they knew or recklessly disregarded the legitimacy of the Hockey Stick and thus acted with “malice.”

One lesson I draw after listening to the reenactments thus far is this: If you, as the plaintiff, are going to drag a public debate into a courtroom, the court will not be happy about it if you don’t focus the scope down good and narrow. Mann’s team does not appear to have done much to avoid turning this trial into a trial about climate change. After 12 years of waiting, a D.C. jury is now headed toward deciding Mann’s case by deciding whether one of the most famous symbols of climate change is open to legitimate debate. Turns out, there is, as the jury and observers have learned after two weeks of trial (though one need not have waited 12 years for that). And because the difference of opinion is and was legitimate, there is no legal “malice.” Mann is going to lose.

But ever since the “97% of scientists agree” moment, it has been déclassé to suggest there is a difference of opinion on climate science. And the trial court surely does not want to have to hand in a court-stamped piece of work product that will be waved around in political hearings and Twitter threads. In this case, Simberg is a rocket scientist, and Steyn an accomplished journalist as well as litigant. So the court probably would have preferred that, if Mann insisted on pursuing his suit, he find a way to let the court decide it on a legal issues and not scientific ones.

As an appeal is certain no matter who wins, here are two observations and a prediction:

  1. Mann’s evidence of damages and causation is very thin indeed. Instead of declining, Mann’s annual income from all sources after the alleged defamation increased—significantly. And Mann’s causation case is complicated by the fact that he was implicated in the University of East Anglia “climate gate” scandal, out of which surfaced an email where scientists referred to “Mike’s trick” to “hide the decline” in global historical temperatures. Even Mann’s own scientist colleague had difficulty on the stand avoiding the “climate gate” emails when explaining why he chose not to include Mann in a major multi-author study. In fact, the court has already hinted at a JNOV on these issues (which makes one wonder how Mann survived the defendants’ anti-SLAPP motions).
  2. Moving to malice, Simberg and Steyn offered the expert opinion of Abraham Wyner, Professor of Statistics and Data Science at the Wharton School at the University of Pennsylvania—the same university where Mann works. Wyner testified that Mann had “manipulated” the data underlying the Hockey Stick, and that the graph was “misleading” because Mann underplayed uncertainties and variations such that the error range reflected in the Hockey Stick was too narrow. Contrary to Mann’s conclusions, Wyner testified, the data did not support that time periods hundreds of years ago definitively were cooler than the present. (The defendants had more experts scheduled, but the court limited them to one expert.) Wyner is credentialed and credible. A “malice” verdict in Mann’s favor would have to ignore him completely. I can’t see that happening. (Here, too, I have trouble understanding how Mann survived the anti-SLAPP stage, given there is no shortage of experts to corroborate Simberg and Steyn’s views on variability that undermine the Hockey Stick.)
  3. As a result, I would not be surprised if the court granted JNOV for lack of damages and/or causation. This may be the court’s only way of avoiding a judgment that will be interpreted by nonlawyers as proof that the Hockey Stick may in fact be fraudulent. I would also not be surprised if Mann settled.

Takeaway: If you are preparing for trial that involves a major public issue, avoid putting the judge in an untenable position. Most judges will want to compartmentalize the legal issues from the public issues, and try to decide the former and not the latter. If you’ve framed your case so that the only way you can win the legal issues is by winning the public issues, expect the judge to look for another way to decide your case—and it likely will not be in your favor.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!
Subscribe

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

Leviticus

"A judge is a law student who grades his own papers."

— H.L. Mencken

Copyright © 2024 Kowal Law Group
menuchevron-down linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram