Not To Be Published (02/13/24)

Tip Summary:?

--?Climate Change Trial Update: Jury awards $1 plus $1M punitives for hockey-stick criticism

-- CEB has my article, “State wins a writ excusing it from disclosing whether its private research firm engaged in animal cruelty”.

-- Attorney who ignored appellate rules hit with $50k in sanctions.

-- New Cal.App.Law.Pod episode?w/?So You Think You Understand the Snitch Rule?

Dear Colleagues:

Each week, I look for cases presenting a likelihood to shock, surprise, puzzle, inform, anger, or elate. The summaries are mine, the reactions are yours. If you would like to share your reactions, or provide a tip, email me at [email protected].

And I am always happy to talk about these kinds of issues in your cases.

Tim Kowal

Climate Change Trial Update: Jury awards $1 plus $1M punitives for hockey-stick criticism

A D.C. jury found climate scientist Michael Mann was not harmed by criticism that Penn State had whitewashed its investigation of his provocative “hockey stick” graph, which used proxy data such as tree rings to depict global temperatures holding steady for hundreds of years before spiking sharply in the 1800s. The jury awarded only $1 in compensatory damages—but over $1 million in punitive damages against two of Mann’s critics, engineer-blogger Rand Simberg and journalist Mark Steyn.

Simberg and Steyn had noted that Penn State’s investigation had been led at the top by university president Graham Spanier, who is now incarcerated for covering up for the university’s star coach and serial child-molester Jerry Sandusky. Both defendants stated, in effect, that Mann’s hockey stick was fraudulent.

The jury hit Steyn with punitive damages 1,000 times that of Simberg’s at $1 million.

I had predicted that Mann would lose. Simberg and Steyn did not commit defamation. For that, the jury needed to find that the defendants’ statements against Mann, a public figure, were not only false but were knowingly or recklessly false. So when Prof. Abraham Wyner gave his expert statistical opinion about the provocative way that Mann chose to represent his data, opining that Mann’s graph was “misleading,” I thought it was game over for Mann’s case.

I still predict Mann will lose. Simberg and Steyn’s sincere criticisms, corroborated by an expert, were not reckless. There was no defamation.

And I doubt the judge would be happy to learn Mann is already taking to social media making statements like this: "I hope this verdict sends a message that falsely attacking climate scientists is not protected speech." Mann’s characterization suggests that the D.C. court has weighed the merits of Dr. Mann’s and Prof. Wyner’s scientific claims, found Mann’s to be true and Wyner’s to be false, and has set a precedent that all Wyner-ites are now exposed to liability. That is deeply chilling.

And what about the punitives multiplier? There is a presumptive single-digit multiplier. This is relaxed in cases involving nominal damages. But punitives more than tens of thousands typically are struck down.

So I maintain my prediction that Mann will lose. Criticism of scientists who are public figures is not legally actionable defamation where the criticism is both sincere and supported by an expert.

This is a summary. Read the full article at the?KowalLawGroup.com?blog here.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://kowallawgroup.com/not-to-be-published/.

CEB has my article, “State wins a writ excusing it from disclosing whether its private research firm engaged in animal cruelty”

CEB DailyNews has published my article, “State wins a writ excusing it from disclosing whether its private research firm engaged in animal cruelty.” It is about how the Court of Appeal has recently issued two writs on discovery issues—which appellate courts typically loathe. There are two things in common between the discovery writ in Regents of the Univ. of Cal. v. Superior Court (D3 Dec. 29, 2023 No. C099588) [nonpub. opn.] and in another recent case. Both occurred in a Public Records Act case. And the state won both disputes and did not have to produce information.

In this case, an Elon Musk company working on embedding chips into brains partnered with UC Davis for some of its research. So several sources submitted Public Records Act requests about possible harm to primates. The trial court compelled production, but the Court of Appeal granted the Regents’ writ. Discovery in PRA cases is more limited than the broad standard for relevance. Instead, the discovery must be directed to “whether [the] public agency has an obligation to disclose the records . . . requested.”

What was the irreparable harm that persuaded the court to intervene here on a writ basis? To avoid the court getting “bogged down by additional protracted discovery disputes.” Pretty generic stuff. If you attempt this justification in your next writ petition, expect it to get you precisely nowhere.

This is a summary. Read the full article at the?KowalLawGroup.com?blog here.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://kowallawgroup.com/not-to-be-published/.

Attorney who ignored appellate rules hit with $50k in sanctions

Failing to request a statement of decision. Misunderstanding what “substantial evidence” means. Preparing an incomplete appellate record. Yes, these mistakes will lose you your appeal. But they can also get you sanctioned. The appellant’s counsel in Mandir, Inc. v. Tiwari (D4d3 Mar. 27, 2023 No. G060437) (nonpub. opn.) got sanctioned nearly $50,000 for pursuing a frivolous appeal. (Disclosure: the author was primary counsel on this appeal.)

Here’s a rundown of the appellate-procedure mistakes:

Mistake #1: Plaintiff did not request a statement of decision to include findings….

Mistake #2: …but faulted the trial court for omitting findings anyway.

Mistake #3: The plaintiff argued it should have won on its claims based on substantial evidence in its favor. But that’s not how substantial evidence works.

Mistake #4: The plaintiff used a Clerk's Transcript, but it had custody of the trial exhibits and failed to send them to the court.

Mistake #5: The plaintiff argued there was a lack of substantial evidence but failed to cite the evidence supporting the judgment.

Putting all these errors of appellate procedure together, the court concluded they made the “degree of objective frivolousness … very high.” And the plaintiff was made actually aware of these defects by the respondent’s brief and motion for sanctions.

One of the reasons the court awarded sanctions was “to deter conduct of this nature in the future,” noting that “If counsel is not aware of those principles and rules [of appellate review and procedure], they should be learned before an appeal is taken.”

Takeaway: While the number and severity of appellate-procedure missteps here are uncommon, finding one, two, or even several material defects in an appeal is very common. Consider consulting with an appellate specialist on your next appeal.

This is a summary. Read the full article at the?KowalLawGroup.com?blog here.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://kowallawgroup.com/not-to-be-published/.

So You Think You Understand the Snitch Rule?

Next time your opposing counsel takes issue with something you say, don’t be surprised to find a complaint in their next filing, complete with citation to rule 8.3 of the Rules of Professional Conduct—the new “snitch rule.”

There are about a dozen terms of legal art in the snitch rule, so we asked Judge Meredith Jury (Ret.) and Certified Bankruptcy Specialist Stella Havkin what they mean:

• If you arguably misstate fact or law—even accidentally—is that a reportable event? Answer: Assume it is.
• What will this do to collegiality in the profession? Answer: Nothing good.
• If a partner committed indiscretions with the trust account, does it matter that you didn’t know about it? Answer: Don’t count on it.
• Every other state already has a snitch rule. How much guidance do they provide on its application? Answer: Very little.
• Will the snitch rule drive in reports to prevent Girardi-type scandals? Answer: The Bar had received some 200 reports about Girardi, so it’s unclear what more reports would have done.
• But the snitch rule is a good idea, right? Answer: Check back in after a few years.

And something you probably didn’t know: The reason California doesn’t follow the ABA Model Rules is because they are rules of ethics, where California’s Rules are rules of discipline. We discuss the difference in theory (interesting!) and the difference in application (not much, actually).

Listen to the podcast here.

Video clips from the podcast are available here.

You can also subscribe to the California Appellate Law Podcast on your favorite podcast player.

_______________________

I am always happy to talk with you about these kinds of issues in your cases.

-Tim

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and posts regular updates of appellate news and tips for trial attorneys at KowalLawGroup.com. Contact Tim at [email protected] or (949) 676-9989.

Click here to have future appellate tips emailed to you.