Friday, January 1, 2016

Science in the Courts - A Communication Problem

Subtitle: Also a Matter of What is Truth

Update 1: Third and final part of the article is published below. -- end update

A most interesting blog article appeared a few weeks ago at WUWT (see link), written by Dr. Tim Ball and titled "The Recent Senate Climate Hearing Failed Because It Continues To Miss The Point."  

The article was interesting for a few reasons, among them are 1) it is flat wrong on the position that courts will not hear scientific matter, and 2) it raises the issue of failure in communications between elected officials and the learned specialists (in this case, scientists).  

Both of these issues interest me, and with my background as both an attorney-at-law and a chemical engineer, these points deserve some discussion.   This SLB article is the start of that discussion, it may be added to from time to time.  The issues are deep, complex, and at times fairly fuzzy - that is, no sharp lines exist to define what is right or wrong, what is legal and not.   Each issue is discussed at some length, and a better strategy is offered for improving communication of complex issues. 

The climate realist world is fairly small (climate skeptic is another term for climate realist), and I don't pretend to know all the participants; I am certain they don't all know me.   But, for various reasons, I have managed to participate a bit, and meet a few, of the participants.  This is not a name-dropping exercise, though.   As to Dr. Tim Ball, I have not met the man but I have heard and seen him speak on climate matters, in summer of 2014 at a gathering of climate realists in the US.  

The two issues mentioned above are discussed next, in turn. 

Courts and Science

Dr. Ball states, “Courts will not listen to or judge scientific disputes.”   And a bit later, “. . . courts won’t consider scientific disputes.”   Some context on his statements is in order.  It appears that Dr. Ball is referring to his ". . . participat(ion) in appeals to the US Supreme Court over actions of the Environmental Protection Agency (EPA)."  (all quoted matter from the 12/19/2015 WUWT article linked above).  Dr. Ball also references three defamation lawsuits where science was not allowed as an issue, to the best of my knowledge.  

It is not true that courts will not consider scientific disputes; stated more affirmatively: courts will address scientific disputes at some times.  In the US, the court system is divided along several lines, one such line is state courts, and federal courts.  Other divisions also exist, such as criminal versus civil courts, and lower courts versus appellate courts.   In general, the lower courts (both criminal and civil) address matters of fact, and matters of law.  To non-lawyers, those statements seem clear but likely are not fully appreciated as to their meanings.   More on that later.   In the appellate courts, matters of fact are heard on very rare occasions, while matters of law are the primary issue.  

A matter of fact is one in which some item of evidence is presented to a jury (or a judge in a bench trial) for the jury to decide if the fact, as presented, is true or not.  There may be some doubt as to the truth of the matter, which is familiar in the standard of proof that is required to convict an accused person in a criminal matter: he must be found guilty beyond a reasonable doubt.   It should be noted that scientific disputes occur both in criminal and civil cases.  In criminal cases, typical science disputes may occur over things such as ballistics for bullets, toxicology for cause of death, and others.  In civil cases, science disputes may arise over things such as measurement of air or water pollutants, or the causes of a consumer product that malfunctioned and led to personal injury or death.  

A matter of law is different from a matter of fact; a matter of law is concerned with whether or not an issue is something that a court will decide, and if it can decide, what law is to be applied to it.  Typical examples are to determine if a matter concerns the law of contract, or tort, or property, criminal law, Constitutional law, procedural law, evidence law, consumer rights, elder law, family law, and a host of others.  

The US Environmental Protection Agency (EPA) has legions of attorneys that both defend, and prosecute, lawsuits based on science disputes, such as the toxicity of various chemicals on humans, plants, and animals.  One need only perform an internet search on a term such as "lawsuit and EPA" to find literally millions of sites that meet those two criteria. (a recent search returned 6.7 million hits).    Or, one can visit the EPA's own website to see literally hundreds of lawsuits  (click on the link to visit that page).   Note, not all the lawsuits involve science, as some involve procedural matters.    

The US EPA is not alone, as state environmental agencies and local agencies also employ armies of attorneys for similar purposes: prosecuting and defending against lawsuits.  As the head of a local Southern California environmental agency said to me in one of our meetings, "We cannot win.  Some parties sue us because we are doing too much, while others sue us because we are not doing enough."  

Courts also have standards for how to handle scientific testimony, or offered evidence of scientific matters.  While there are hundreds of references on this, one that has a good discussion is from the 160-page Roscoe Pound Foundation 1997 report, ""   see link.  Federal courts are required to use the Daubert standard, while state courts may use something similar.   Essentially, the evidence that is offered must be "good science" and not "junk science."   How to determine what is "good" and what is "junk" is the purpose of the Daubert standard.  

The Daubert standard has 5 parts:  

(1) whether the theory or technique in question can be and has been tested; 
(2) whether it has been subjected to peer review and publication; 
(3) its known or potential error rate; 
(4) the existence and maintenance of standards controlling its operation; and 
(5) whether it has attracted widespread acceptance within a relevant scientific community.

A court requires each of the Daubert 5 parts to be presented and argued before the judge, and accepted, before the evidence is allowed to be presented to a jury.   

State courts, though, are free to use different standards.   Some use the Frye standard, while others use the Daubert standard.  The Frye standard requires the court to determine whether or not the method by which that evidence was obtained was generally accepted by experts in the particular field in which it belongs. 

A final word about science being heard in the courts: appellate courts, as mentioned above, generally do not decide issues of fact.  They typically decide issues of law.  However, on some occasions, an appellate court uses a standard of review known as de novo, and will consider the issues of fact.   At the US Supreme Court, as Dr. Ball mentioned in his article, issues of fact are very rare.  

The fluid nature of science is also a very great concern in a court, as judges and most attorneys know quite well that scientists frequently and sometimes loudly announce that what was formerly considered "settled science" has been refuted or overturned or substantially changed by new findings.  This is especially true in what is generously referred to as health science, where different foods or liquids are found to be bad for humans in one study, then found to be beneficial in later studies.  Interested readers are encouraged to look into the health effects (or harm) from coffee, wine, chocolates, dairy products, eggs, and sugar, to name but a few.  

In the climate science field, it is also a known fact that climate scientists make bold pronouncements from time to time, then change that completely only a few years later.  One specific example of this is the continued, and often-repeated, adjustments to the average global temperature anomaly, such that the past gets colder with each new version, and the warming trend gets greater and greater.   

One of the most laughable of all climate science claims is that "the science is settled."    I had a little fun with that a few years back on SLB, see link to "Climate Science is Not Settled," with a compilation of "settled science" and my commentary on each.  I hope the reader enjoys those.  

This leads to another complaint Dr. Ball makes, “The basic argument is that it is “your paper” against “their paper” and they (the courts) are not qualified to judge.”    It is quite true that a court case boils down, many times, to one expert's testimony against the testimony of the other side's expert.  However, and here is where Dr. Ball is quite wrong, it is not the judge who makes the decision to not hear the case where there are battling experts.  This is an argument that an attorney makes when counseling his client about the prospects of success or failure in litigation.  The attorney knows that a trial will come down to the jury, or in some cases a judge, hearing two expert witnesses testify where one says that his conclusion, “their paper,” is correct, whereas the other expert says that his conclusion, “your paper,” is correct.   A jury or judge is typically not trained or experienced in the science and cannot make sense out of either expert’s argument.   However, as noted above, trials do occur and expert witnesses do testify before juries and judges

Communication Failure Between Elected Officials and Learned Specialists

Dr. Ball writes, “The same problems confront any discussion in a formal hearing about climate science. Politicians are no better equipped or qualified to determine a science confrontation than the Courts.”  

This is partially true.  As described above, the courts routinely hear matters in which science plays a significant role.   However, it is true that most politicians have a poor understanding of science.   Politicians are generally not scientists nor engineers, as many are attorneys with non-science and non-technical backgrounds.   These elected officials generally rely on staffs of experts, or paid consultants, to provide information and summarize arguments for and against an issue.   However, elected officials also hold hearings, usually public hearings, so that interested parties (sometimes known as "stakeholders") can present their views.  

As shown above, science has conflicting claims in many areas, which are well-known to elected officials.  It is difficult for the elected officials to know which claims to believe, which scientists to believe, and how far to believe them if at all.   

Temperature record of Abilene, Texas from 1886 showing very cold winters 1977-78-79
A short digression for some examples of climate science having poor credibility: Forty years ago, in the late 1970s, the public was bombarded with stories of global cooling.  The winters of 1977, 1978, and 1979 were unusually cold and harsh (where the winter is defined as December of the previous year, and January and February of the year shown by the date; that is, Winter of 1977 includes December of '76 through February of '77).   See adjacent graph for the temperature range, by year, for Abilene, Texas.   Note the three small dips at the lower portion of the graph and just above the 1980 mark on the X axis.  These three dips reflect the very cold winters.  Note also that at no other time in the entire record of more than 100 years, did three winters occur with such severity and in succession.  Those three winters were unique in the entire record.     Note also that this was not limited to Abilene; many other areas across the US were similarly impacted.  Interested readers can read more at this link.   (The article is titled: "Illinois Third Consecutive Severe Winter: 1978-1979,"  and has graphic descriptions with measured data on the severity of the three subject winters.) 

Yet, today, the global cooling stories from 40 years ago are pushed aside, and the new alarm is over global warming.   In addition, the climate alarmism is published every few years by the IPCC, the Intergovernmental Panel for Climate Change, yet their conclusions change each year.   Also, the global average temperature anomaly, which climate scientists produce from time to time, has frequent changes that almost always produce a warming trend that becomes greater each time the scientists change it.   Next, the climate scientists have a great many computer models of the global average temperature anomaly, but their models not only do not agree with each other, but do not match the measured temperatures either.  The lack of agreement between the models and measurements has been given a popular name, "The Pause," due to the cessation of increase in measured temperatures.   Finally, and perhaps most ominously, almost every prediction made by the climate scientists has failed to occur: Arctic ice disappearing, continued warming (as just mentioned), more hurricanes or tropical cyclones, a hot spot in the atmosphere, accelerated rise in sea levels, disappearance of snow, droughts and floods of unprecedented length and severity, and many more.   None of these predictions came to pass.  

Therefore, if one is an elected official and climate scientists are summoned to a public hearing to convey their scientific findings, what is one to believe?   How can a climate scientist possibly communicate effectively and persuade the elected official that any scientific finding or conclusion is true?   It matters not, or very little, which side the scientist is on, the global warming alarmism side, or the skeptic side that holds that any warming that may be occurring is not only negligible but is due to man-made, artificial adjustments to the temperature record.  The elected official does not know who to believe, because the track record, the credibility, of climate scientists is indeed dismal.  

The Battle Between the Papers

Next, Dr. Ball states, “They (skeptics) must show how “Their paper” (warmists’) was deliberately falsified in terms the public can understand. The recent US Senate hearings failed because the “Deniers” (skeptics) explained the scientific problems with the science of “Their Paper” (the warmists' paper).  The politicians and public didn’t understand the difference. Even if they entertained the idea that “Their Paper” was wrong they were confronted with the question of whether the errors were from incompetence or corruption, something the presenters of “Your Paper” (skeptics)  were not able or willing to answer.”

The battle between competing experts, or in this case, climate scientists who testify at a Senate hearing, very likely does result in utter confusion by those who listen to the experts.  Dr. Ball raises the interesting question of Why are the Warmists wrong?  He suggests that incompetence or corruption may be the culprits, yet the skeptic scientists were not able or willing to make those charges.   Such charges are indeed serious, as incompetence at one's profession, if false, is grounds for a slander or libel suit in defamation.   A charge of corruption, perhaps deliberately falsifying data to obtain an agenda-driven conclusion, is also very serious.  Such a charge, if true, can carry criminal penalties for fraud, and civil penalties for damages.  

Part of the problem is, of course, that the data - the basic, original data - that underlies much of the controversy is either missing, or hidden from view by claims of contractual obligations, confidentiality, or exemptions of some form from Freedom Of Information laws.   It is indeed difficult to make a valid charge of corruption when one cannot know what actual changes were made to the data.  

Yet, there are effective ways to show politicians, and other interested but non-technical observers, not only that the Warmists' papers (and positions) are wrong, but why.  That subject is addressed in the next section. 

Communicating Complex Issues

Effectively communicating a complex issue is a very common, even ubiquitous problem in the legal setting and in many non-legal settings.  How does one effectively communicate a complex issue, and persuade or convince a person or group (perhaps senators at a hearing, a patient with a serious medical problem, or a jury deciding a trial's outcome, or even a room full of conference attendees) that a particular position is correct, and the other side is wrong?   

First, examined below is what attorneys do in trials to win their case when a jury of ordinary people will decide the outcome.  Second, how experts are chosen and directed by the attorneys.  Yes, the word is directed, just as a movie director directs the actors in a film.  Third, what scientists can do to improve their communication and persuasive skills.   The third part is further anayzed by the concepts of Who, How, and What.  

Can Scientists Learn Anything from Trial Attorneys?

If one were to judge from the harsh treatment afforded those intrepid attorneys who venture into blog discussions on climate change, no one is listening to an attorney.  Attorneys are (almost always) vilified, scorned, and ridiculed as know-nothings or worse.   However, recognizing that at least some attorneys are good fellows (and ladies) who are knowledgeable, bright, experienced, and act ethically while still advocating strongly for their client, there are some good lessons to be learned from attorneys on effective communication of complex issues. 

The first lesson from the attorneys is that juries, as intelligent people but untrained in a technical or complex scientific matter, normally make their decisions on factors other than the complex "stuff."  They tend to decide on things like who was more believable, who was nicer, who was more attractive, and who seemed more trustworthy.   As stated by law Professor Joseph Sanders, 

"As for juries, we have indications that they have trouble with complex cases, and with scientific evidence, and we have reason to believe that better-educated juries do better in these areas. We have indications that juries approach expertise with skepticism. We have indications that juries appraise expert testimony not by grappling with technical issues, but by counting extraneous factors like qualifications, the number of arguments (rather than quality), and personal attractiveness. We understand that jurors give more credence to
messages framed in simple language, less to those framed in complex language, and they pay close attention to demeanor. "

Therefore, winning arguments will include the complex issues, no doubt, but those arguments will also be delivered in a manner designed to maximize the impact on the jury.   The language used, the message, will have an easy-to-understand overview.  

To make a point memorable, or even to summarize the case, attorneys sometimes invent a short phrase to repeat to the jury, something memorable, perhaps a rhyming couplet.  An example follows from the famous OJ Simpson murder trial, pertaining to the gloves.  The attorney said, “If it doesn’t fit, you must acquit.”   That is short, and it rhymes.  This refers to the glove that the murderer supposedly wore, and if it did not fit OJ Simpson, the accused, then the jury was to acquit, find him not guilty.    

Another famous trial had a different rhyming couplet that was stated to the jury multiple times:  “If the lion gets away, Kerr-McGee has to pay.”  This was from the case of plutonium radiation poisoning in the Karen Silkwood case.   The attorney was trying to emphasize the legal point of strict liability, for ultra-hazardous materials such as the plutonium at issue in the case.  In strict liability, no matter what happens that allows the harm to occur, the defendant must pay.   Here, “the lion” refers to an ancient case in which a defendant owned a lion that escaped its cage, then attacked and injured the plaintiff.   Plutonium in the Silkwood case was an analogy of the lion.   The attorneys alleged that improper safeguards by Kerr-McGee allowed plutonium to escape and contaminate Ms. Silkwood.    

A critic might say, this creating a simple rhyme is grandstanding.  This has no place in a serious discussion or debate about something as vital to human survival as global warming.   And perhaps the critic is correct.  Or, perhaps what is needed is a memorable phrase that catches the public's attention and draws more scrutiny of the underlying arguments, both for and against the conclusion.   Perhaps the warmists can chant, "We are all going to die, from CO2 in the sky."  Where CO2 is spelled out C-O-2.   Or another version, "Too much Carbon in the Sky, We are all going to die."    The variations are endless, and can be a bit amusing. 

In addition to creating a catch-phrase, the attorney must select a good expert witness and develop the expert's testimony.  

Choosing Experts and Directing Them 

Ideally, an expert witness has characteristics that the jury finds him (or her) believable, and likeable.   Important characteristics are the expert's appearance such as clothing and shoes, speaking voice, mannerisms, demeanor, authoritative (education, degrees, society memberships, publications, honors, experience, whether a teacher or professor, and how often called to testify as an expert).   The ideal expert is especially cool when cross-examined, when challenged, when shown to be wrong.
Attorneys choose their experts wisely.  They go over and over the testimony, with special attention to word choices, voice inflection, mannerisms, and how to remain cool under duress.  They will rehearse the use of visual and audio aids, posters, charts, exhibits, physical models, and other ways to clearly make a point.    Some types of sentences are difficult to understand, while others are much easier.   The vocabulary may be unfamiliar to the jury, so some time must be allocated to explaining what the various terms mean.  

The attorney not only presents his own side through having the expert testify as answers to various questions, but he will also negate, or undermine, the other side's evidence.   It is helpful to show where the other side is wrong, or to show that there is uncertainty, even substantial doubt or inaccuracy. 

The climate scientists can do similar things to improve their communication. 

Scientists As Communicators and Persuaders  

It is certainly true that not all scientists who want to communicate in hearings, and persuade the panel, are tall, tanned, athletic, good-looking, have a full head of neatly groomed hair, and a pleasant but resonant voice.   Or, if a female, the feminine equivalent.   Yet, there are things that can be done, and must be done to improve communication.  The scientist as testifying expert can wear nice but not gaudy clothes, new and shined shoes, and have hair trimmed neatly.   It is perhaps not proper, but juries notice things like fingernails, so those too must be trimmed and clean.   

A communication specialist, or an experienced trial attorney, can be engaged to listen to the scientist's presentation and offer improvements.   There is an art to public speaking, to making a presentation that is understandable, even to the choice of graphic design and colors.   (SLB has a few instances where poor visual aids were used in public presentations by various scientists.  One word of advice:  yellow in a graph is not a good idea.)    

The speaking voice almost always can be improved with coaching and practice, to one that is easy on the ears, smooth and not harsh or distracting.   It can be humbling for a speaker to go through such coaching and criticism.    Eliminating annoying habits takes more coaching and time, but a good message effectively delivered can be destroyed by a momentary lapse of good etiquette.   One can learn and practice the conventional parts of speech that make for good listening, such as introductions, transitions, and concluding phrases.  

The scientist likely already has an impressive resumé with academic degrees and a publication list, perhaps even a position as a professor.   There may already be society memberships, and perhaps honors from that or other societies.   Such things impress a jury, or a panel of senators.  

Now, with the Who and How having been somewhat discussed, the What of the presentation is given.  

What, exactly, can a climate scientist discuss to make his or her point effectively and memorably?   How is one to win, when both experts are equally believable, calm, cool, collected, well-dressed and groomed, authoritative, well-spoken, and dignified?   

One way is to undermine the other side by showing that if the other side is right, certain outcomes that should be true are actually not true.    Conversely, the scientist can bolster his side by showing that if he is right, certain outcomes that should be true actually are true.   Examples of warmist claims that have not occurred, as discussed earlier, include Arctic ice disappearing, continued warming, more hurricanes or tropical cyclones, a hot spot in the atmosphere, accelerated rise in sea levels, disappearance of snow, droughts and floods of unprecedented length and severity, and many more.  

The skeptics have evidence that is persuasive, such as a general pause or cooling of the atmosphere while the sunspots are in a very weak cycle, fresh-water lakes having more persistent ice, and perhaps the most persuasive argument of all, the adjacent cities problem.   One of the central pillars of science is that science is consistent, it is not arbitrary.  What works in one location also works in all others.   In my speeches on this, I use the example of gravity is very consistent around the world.  Engineers depend on this to build our machines and infrastructure.  Yet, the world of climate science has the same CO2 concentration above adjacent cities, but one city warms while the other does not.  Or, one city cools while the other does not.   This very fact is essentially proof-positive that CO2 in the atmosphere can not be causing a global warming.  

There is also the very persuasive, but complicated, concept of CO2 and warming as a violation of process control principles.   That one takes a fair amount of explaining, as I have done earlier on SLB.  (see link to "Chemical Engineer Takes On Global Warming," which is in the top two most viewed articles on SLB.)

A persuasive argument can also undermine the other side by showing the methodology is flawed.  In climate science's atmospheric temperature data, there is over-inclusion of temperature data from cities and other UHI influences, making adjustments to data, making up data, splicing data, adding in new records of shorter length, and many more.   There also is the model variable problem, or omitted variables.   Models do not account for clouds as albedo increases, nor for sunspots and cloud relationships, nor for windy versus calm days, nor for many other variables.  

Perhaps the most persuasive argument for the skeptic side, though, is one that was made here recently on SLB.   The problem with the warmists' approach and conclusion is the inclusion in their temperature data of any location that has a human influence, such as data from cities.   The fact is, and quoting from the SLB article from November 2015, "even if all the electricity (and other energy) is from a zero-carbon-dioxide source, the cities would still have UHI and would corrupt the climate scientists' data."    The full quote:

". . .cities will have energy consumption and heat rejection issues no matter what type of system produces that energy.  Considering for the moment electricity use, even if a city were all-electric for heating, cooking, and transportation, and even if that electricity were produced by zero-carbon-dioxide power plants (see below), the UHI would exist.  In essence, a building has no idea what produced the electricity that heats the building, runs the lights and elevators, and heats the hot water.  An electric car, or bus, or delivery truck, or train, also has no idea what produced the electricity that each of those consumes.   Therefore, even if all the electricity is from a zero-carbon-dioxide source, the cities would still have UHI and would corrupt the climate scientists' data.   Such zero-carbon-dioxide sources include, but are not limited to, hydroelectric, wind, solar, nuclear, geothermal, wave, tidal, ocean current, ocean temperature-difference, water pressure recapture, river mouth osmosis, and river current.   There are also carbon-neutral sources: landfill methane, cattle operation methane, Municipal solid waste (MSW), human waste sludge, plant-based ethanol, and other bio-fuels.  

It is entirely wrong for climate scientists to include any data that is corrupted by UHI."   see link

Therefore, and again as argued here on SLB, it is critical to use long-term temperature records for trends only from pristine locations, from very low-population areas.   see link

When one considers, as Dr. Ball did, whether to make a charge of deliberately falsifying the "paper," or evidence of warming, or make a charge of incompetence, or even corruption, it is likely only necessary to show that the wrong data was used to establish a warming trend.   It is wrong to use data from populated areas, as those areas would have warmed, and will continue to warm, even if all the power on the planet was from hydroelectric dams.    In fact, it could be shown, if we had the temperature records, that cities were warmer than farms even 200 or 500 years ago.  

J. Goodridge. 
To close, once again the Goodridge chart is shown, where almost 100 years of temperature trends are classified by population in a county.  Warming was absent in the counties with very low populations, yet a pronounced warming trend exists for counties with large populations.   As shown above, CO2 in the atmosphere cannot possibly be that smart, to recognize that a city is below it and zap the city with its heat-increasing rays.  But, to know when a farming area is below and to holster its heat-zapping gun. 

In conclusion, scientists who want to communicate complex issues to non-scientist audiences could benefit from collaboration with trial attorneys.   While a panel of elected officials, perhaps Senators, is not the same as a panel of jurors, and a Senate hearing is much different in rules and duration from a jury trial, there are similar things that can be done to improve communication.   

Roger E. Sowell, Esq.
Marina del Rey, California
copyright (c) 2016 by Roger Sowell, all rights reserved

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