Mark Steyn

As a fan for years of Steyn’s writing (he’s clearly the best currently out there when it comes to seeing the tragic forest despite the petty hilarity of the trees, although his erstwhile National Review colleague Kevin D. Williamson is one to watch here), my initial reaction to his decision to fire his counsel was probably similar to most observers with some degree of legal training: understandable but ill-considered.

But  I’ve since come to believe that Steyn’s decision was probably the right choice and certainly no worse than the alternative. The reasons for this reversal:

1. Mann can’t win on the merits; there’s no way he can show malice. Somehow I doubt that discovery will turn up an email Steyn wrote where he admits to being convinced that Mann’s work was completely above board. This would put him in the extreme minority of conservatives, and indeed of reasonable people wondering why a scientist has refused for years to publicize data purportedly demonstrating the falsity of fraud accusations.

2. However much the judge resents Steyn’s behavior, he really cannot do anything about it. Steyn is a public intellectual of some renown (more renown, certainty, than any DC trial judge). Judges have learned from the mistakes some of their colleagues made while under the microscope.

3. This isn’t an extraordinarily complicated area of the law. Any legal advice Steyn requires will be readily available.

4. Whatever defendants’ trial counsel was up to last year was a clownshow. When they drew the judge they drew, counsel should have adjusted their strategy. Instead they burned half a million dollars on procedural nonsense almost all legal observers predicted would be unavailing irrespective of the legal merits.

Here’s a thought exercise: would Randy Mastro or Ted Olson have allowed this to drag on for a year, or would they have plied every extrajudicial option available to them in order to recapture momentum and shift the balance in their client’s favor?

Ask Messrs Donziger and Gore.

But then there’s a reason their rates approach $2000 an hour. We can’t all hire Gibson Dunn’s top litigators.

Steyn is among the very best in the country at what he does, and he’s among the very few people recently to have dismantled a kangaroo speech-suppression court in a common law jurisdiction.

Who really thinks at this point that doubling down on last year’s legal quackery is a better bet?

(That said, if this indeed goes to trial, I think it would be a mistake not to have an experienced trial attorney there to ensure preservation of error.)

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