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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.”