Academic libel trial takes tragicomic turn: Part 2

Part 1 of this story can be found here


More academic secrets are revealed as a case that spent almost a decade winding its way through courts finally gets to trial

Steve Paulsson launched his libel suit in 2006, just before the two-year filing deadline. He chose Ontario as the venue because he was resident in Toronto at the time of publication of the review; the review was by way of the legal definition, published in Ontario; and it was Paulsson’s contention that his reputation suffered damages in Ontario. In 2009, the defendants, excluding Leo Cooper, successfully sought an order to suspend the suit arguing that Ontario did not meet the criteria that would it allow it to assume jurisdiction. The judge ruled in their favour, finding that there was not sufficient connection to Ontario and that, even if there were, it would not be the most convenient forum to hear the case.

In 2011, however, that decision was overruled by a three-judge appeal panel, which noted that the original motions judge had made errors of fact and failed to ask if Ontario was not a convenient forum to hear the case, was there a better one? “The record is clear that the defendants are from jurisdictions: Australia, New York, Massachusetts and Illinois,” the judgment read. “On the basis on witness availability and convenience alone, there is no other forum that is more convenient.” Paulsson’s case was back in play.

In the four years between that ruling and this trial, there were various discussions and two failed attempts at mediation took place. Now finally, in February 2015, Paulsson — or the Daawkter, as the defendants’ lawyer, Geoffrey Adair, likes to call him — is having his day, or, more accurately, two weeks in court.

Paulsson’s story is that Leo Cooper’s review painted him as anti-semite and an apologist for Poles looking to minimize their role in helping to exterminate European jews during World War II. The publication of Cooper’s review in a leading academic journal made him unhireable, he argues.


“You called her a cut and paste historian (and said) everything she believes is plagiarized from someone,” says lawyer Geoffrey Adair as he cross examines Paulsson. “Is there a more serious charge in academia?”


Adair’s position is that the review in question was legitimate criticism and, besides, Paulsson’s subsequent job-finding difficulties had nothing to do with it. The man is clearly very difficult, he sets out to show the jury time and time again. See for yourselves.

In a cross examination that lasts just a few hours (compared to Paulsson’s almost three-day-long examination in chief about which the plaintiff will later inform you himslef), Adair argues that Paulsson is quick to do unto others as he doesn’t want done unto him. He sets out to accomplish this without doing the kind of deep dive into academic disputes that might send the jury to sleep. He keeps things moving at a brisk pace, reeling off the various nasty comments Paulsson has made about his fellow scholars. Adair asks him about Havi Dreifuss, a young Israeli academic who wrote an unflattering review of Secret City in 2010.

“You called her a cut and paste historian (and said) everything she believes is plagiarized from someone.”

“I happen to believe she is not very competent,” answers Paulsson.

“Plagiarism,” says Adair pausing for effect. “Is there a more serious charge in academia?”

The jury appears unmoved and Adair shifts gears. “With negative reviews,” he says to Paulsson, “I’m going to suggest, you trashed (the reviewers) in the most heartless personal terms. You threatened to sue several of them.”

Even positive reviews never fully satisfied you, says Adair, suggesting that Paulsson always found something to pick a fight over. He quotes from an email the plaintiff sent in 2012 to University of Florida Professor Norman Goda, the organizer of a conference called “Rewriting the Jewish History of the Holocaust.” Paulsson had proposed himself as a speaker but was frustrated when he was politely turned down. “I spent 15 years researching and writing my book, put everything I had into it, and then a clique of rival authors set out to burn it — and largely succeeded,” he wrote. “The spider in the middle of web is Israel Gutman, to whom my book is enormously threatening.”

Adair places the email on his lectern. “Spider in the web,” he repeats “Why didn’t you tell me (Gutman) was at the centre of the problems?” The lawyer emphasizes that this feud began in 2003 before the Leo Cooper review had even been commissioned.

Sheepishly Paulsson confesses that by the time he wrote the 2012 email to Goda, alleging a smear campaign against him, he had grown a little paranoid. Gutman — an Israeli academic considered to be the leading expert on the Polish holocaust — had originally been a mentor of his, but things had changed after Paulsson discovered previously overlooked data and sources at the Ghetto Fighters’ House in the Western Galilee.  Until his dying day, Paulsson tells the court, Gutman was deeply embarrassed by the fact he had overlooked this treasure trove right under his nose

“He stabbed me in the back,” Paulsson says, describing a 2003 conference in Haifa, where Gutman alluded to the statistics used in Secret City, telling the audience: “We have heard some exaggerated estimates here.”

Adair wonders how Paulsson can get so riled up about having his data critiqued when he’s done the exact same thing to others. As he strides across the courtroom, he opens Secret City to page 117 and reads Paulsson’s own words: “Despite the manifest absurdity of Waldemar Schön’s figures…”

Paulsson interrupts: “Waldemar Schön was a Nazi official not a historian.”

“Oops,” I think, but, given that there are no startled gasps, I can’t tell if anyone else in the courtroom has picked up on Adair’s goof. When the defence lawyer quickly changes the subject, I wonder if he himself is even aware of his misstep or if he’s just keeping things moving as the minutes tick by before our Friday afternoon lunch break. I never do find out.

Apart from himself, Paulsson calls just one other witness during the trial, Ivor Gottschalk, a forensic accountant whose specialty is calculating loss of incomes in disputes. For this case, he was requested to project earnings based on Paulsson, who is 68 at the time of the trial, being hired on for a tenured teaching position in 2006. To estimate what his salary would have been, Gottschalk began by looking at other winners of the Orbis prize and where they were employed. He discovered an illustrious group including two Harvard professors, a senior lecturer at King’s College in London, and an associate professor of intellectual history at Yale.

Gottschalk then proposed four scenarios based on these individuals and assuming that Paulsson would have followed a similar career path had it not been for the Slavic Review. The accountant checked university and Statistics Canada research on salaries, factored in pension income based on a retirement age of 69, considered mortality tables and Canada/U.S. foreign exchange rates, and multiplied at some point by a factor of 12.56662 although my notes do not make it clear where exactly this figure came from. In the end it was determined that Paulsson could have lost more than one million dollars of income.

Adair has agreed not to dispute any of the figures in Gottschalk’s report and, as a result, his cross examination lasts mere minutes. “No disrespect to your qualifications,” he says to the accountant and expert witness, “but you have no personal knowledge of whether Dr. Paulsson would have received such a role? You’re not in a position to comment on how Orbis prize winners’ qualifications stack up against his?”

“No,” admits the witness.

“With respect to other winners of the Orbis prize, did you have any knowledge of whether they already had their tenure track positions?”

“No.”

“Thank you sir, those are all my questions.”

With that, he plaintiff’s case has come to an end.

The following day, Adair makes what’s known as a non-suit motion. This is application by a defendant, usually made at the end of the plaintiff’s case, asking the judge to rule that that the plaintiff has not and cannot prove its case. In this trial, that would mean that there is no basis for the jury to rule that Paulsson has been defamed, that the words written about him by Leo Cooper were defamatory.

After hearing arguments on both sides of the issue, Justice Wilson decides that it is not unfeasible that a jury could rule in the plaintiff’s favour. The trial goes ahead as Adair calls his two witnesses – Diane Koenker, whose testimony was discussed in Part 1, and James Grossman, executive Director of the American Historical Association, PhD, University of California, Berkeley (1982). Qualified as an expert witness, he has flown up from Washington, D.C. to discuss the state of the job market for history professors.

“We were told at Berkeley that our prospects were dim at best,” he tells the court. “There are often 50, 60, 70 applicants for every job.” Grossman’s message is that — contrary to Paulsson’s claims that his book, before the bad review, guaranteed that a plum tenured job would be his — this was absolutely not the case.

Grossman puts it in terms he believes the jury will find more relatable. He asks them to consider the NHL and the NFL, noting there’s a cumulative effect. “If you don’t make it the year you’re drafted, you’re facing next year’s draft,” he explains. ‘If it goes on too long, then people tend to become less competitive.” All this is designed to drum home the point that Paulsson was still not in a tenure-track position in 2004, six years after his PhD was awarded. “Once you’ve gone beyond four years, it becomes very difficult to escape Never Never Land.”


“Any search committee is going to recognize (Holocaust studies) is a fraught field,” says expert witness James Grossman. “People argue with each other quite violently —metaphorically.”


Adair steers his witness from the general state of the job market to the specific, asking Grossman if there are “any issues with Dr. Paulsson.”

“Well, we tell students the letter of application should be one page. Anything more than two pages, the eye-rolling begins. Dr. Paulsson’s letter is four pages. The impression you get is this guy can’t speak succinctly. This is someone who goes on and on. That’s going to raise a red flag.”

Adair inquires about Paulsson’s CV, which Grossman describes variously as being “padded” and containing “a little bit of bloat.”

“Excuse me,” Dr. Paulsson says to Justice Wilson, “Can I interrupt for a second?”

No, she replies, that’s what cross examination is for.

At Adair’s request, Grossman continues to detail the flaws in Paulsson’s CV. The Fraenkel Prize, which Paulsson won for his PhD thesis, is “described in excessive detail.” Paulsson named all the conferences he’s attended as opposed to just those he’s spoken at. “Going requires requesting an application and writing a cheque. These are what I would describe as yellow flags, eyebrow raisers. You ask, ‘Is this someone who pumps themselves up, goes on at length?’”

The subject of the Cooper review is raised. Adair wants to know how it might affect Paulsson’s job prospects.

“Any search committee is going to recognize (Holocaust studies) is a fraught field,” says Grossman. “People argue with each other quite violently — metaphorically.” As for the review in question, he believes that it undermined itself, that a smart reader would see that Cooper had an axe to grind and was being unfair.

“How does an editor determine the cutoff line?” asks Adair as he brings his questioning to a close.

“You have to go pretty far to cross the bar of ‘we’re not going to publish this.’ The most important bar is what we call ad hominem,” says Grossman. “That’s the line not to cross.”

Paulsson begins his cross examination by pointing out that his PhD is from Oxford and much of his academic work is European. He wonders aloud how much Grossman knows about the non-US job market and if he is aware of the fact that Timothy Garton Ash, a well known professor of European Studies at St. Antony’s College, Oxford, doesn’t even have his doctorate.

“Your Honour,” objects Adair. “He’s here to ask questions not to give long speeches and buttress his credentials.”

Paulsson shifts tracks, taking up the issue of his cover letter with Grossman, asking if, given his background, he didn’t need to explain more than the average US-minted academic.

“Possibly,” answers Grossman, while stressing that this should have been done succinctly.

“How did you arrive at the conclusion I was combative?” asks Paulsson.

“I read your response to book reviews. One response was longer than the review.”

Paulsson then brings up an email exchange he had about the review, which he considers reasonable and subdued. “Do you stick to your opinion I was being combative?” he asks Grossman

“Yes,” he says, adding that he advises students that in general it’s not in their interest to respond to negative reviews.

Paulsson points out that he was writing in an online journal where space was not an issue. “I suggest your opinion of this matter is a bit old school,” he tells Grossman, adding that the picture he has painted of academic life is far too rosy.

The two tangle some more. Finally, the expert witness says, “What I’m suggesting is that there are many reasons you didn’t get this job. The book review is not one of them.”

Grossman’s testimony finishes just before lunch. Minutes later, as I am carrying my courthouse cafeteria meal to an empty table, Professor Paulsson flags me down and invites me to join him and his friends Amanda and Mike, who have been regular spectators at the trial and who I have met in passing. That is very kind, I say, but they have to understand that I am a journalist and that if I sit with them, I will be able to write about everything they may say. I can’t agree to keep anything off the record. It’s just too tricky in a case like this. I won’t be offended if they say no and leave me to eat alone.

Much to my surprise, everyone agrees to my terms. Amanda explains she saw a video I had recently posted to YouTube of my Scottish Terrier trying to plow through the snow and decided if I love dogs I must be trustworthy. Adorable as Bridget the Scottie is, I don’t want Amanda to be misled. “Have you read The Journalist and the Murderer by Janet Malcolm?” I ask. “It’s a book about how reporters betray their subjects. They can’t help it. It’s the nature of the job.”

Amanda looks vaguely worried as I provide some background. Malcolm tells the story of Joe McGinniss, who was given exclusive access to Jeffrey MacDonald and his defence team during his 1979 trial for murdering his wife and two children. In Fatal Vision, the bestselling true crime book that chronicled that experience, McGinniss concludes that MacDonald, the subject he had befriended and in whom he had professed his faith, was indeed guilty. MacDonald, upset by the betrayal, then sues McGinness and, later on, McGinniss sues Malcolm. The whole thing dragged on for more than a decade and was a complete clusterfuck. Even minus a murder, I have zero desire to play Joe McGinniss to Paulsson’s Jeffrey MacDonald and his affable, aging hippy friends.

Before lifting my fork, I make it crystal clear to the trio I am not overall a fan of libel suits, I worry about the chilling effects, and I especially don’t like the fact that Paulsson’s suing the University of Illinois claiming it’s the de facto publisher of the Slavic Review, because if he wins universities may stop providing infrastructure to academic journals due to fear of lawsuits. That kind of result would not be a good thing for anyone in my opinion.

Paulsson protests that the Slavic Review had no business printing the dozens of reviews it did if it couldn’t edit them properly. It should have been given more staff and more funding, he says as Amanda nods sympathetically and helps clean some spilt beef stew off his tie. A trim pretty woman in her sixties, who favours artisanal jewelry and hangs her brightly patterned woolen socks over the boots she stores in a corner of the courtroom, Amanda is skipping her annual Cuban vacation to support Paulsson at this February trial. But despite her deep loyalty to her friend, she is not blind to some of the faults Professor Grossman has just pointed out. “Less is more,” she counsels Paulsson as he prepares for the afternoon session. It’s an axiom I will hear her repeat several more times over the next few days as she warns her friend not to ramble on.

MIke and Paulsson met back in high school where they were both members of the chess club. An illustrator by profession, he’s seen friends through libel suits before. He’s dressed for court in a black and red tie-dye sweater made by his sister. It goes surprisingly well with the smart houndstooth suit was won in a raffle at the nearby Kensington market.

I ask Paulsson what he makes of Adair. “He’s got a job to do,” he shrugs. Despite everything he’s gone through on the witness stand, Paulsson doesn’t seem to take any of it personally.

Amanda reveals that the friends have been discussing Adair’s hair.

“Oh wow,” I say confessing that for the three days I’ve sat directly behind the defence lawyer I too have been completely enthralled by his silver, white locks. Not quite feathered, not quite layered with an immaculate collar line. It’s hair that has to be seen to be believed. A Google image search does it no justice, which is why I have not included a photo.

“I’m hoping (Adair’s) hair works in my favour,” says Paulsson as he strokes his grey-fringed bald skull. “Have you noticed the men on the jury all have receding hairlines? I think they’ll identify with me.”

Even in the bleakest, most boring moments of this trial — and there have been no shortage of those — the male jurors’ hair was not something I had considered. I’d wondered what the jury made of Paulsson’s long rambling speeches and his unpressed, baggy blazer, which had ceased to fit him after his doctor put him on a strict post-heart-attack fitness regimen. Or whether they might be turned off by Adair’s hail-fellow-well-met manner, if he’d been a little too mean in his cross examination of Paulsson and caused some jurors to see him as a bully. But it had never once crossed my mind that the jury’s male majority might bond with the plaintiff over male pattern baldness.

As the four-men, two women jury file back into the courtroom after lunch, I scrutinize the men’s hairlines and see that Paulsson was right. Although I have been monitoring the jurors’ reactions throughout the trial, the only thing I can definitively say about their attitudes is that one juror seems a little more amused by the proceedings than the others. Apart from that, however, they are discreet as can be and follow the rules of the court, which do not allow for rollicking fits of laughter at unintentionally hilarious testimony. The jurors consult the documentation they are given, they dutifully pay attention and sometimes some of the them take notes. I would have been happy to put my legal fate in these good citizens’ hands but as the evidence part of the trial winds up, Adair announces that he wants to strike the jury, send them home right now, and have the case decided by Justice Wilson alone.

In Part 3, to be published next week, Steve Paulsson will explain why he believes he was defamed

 

 

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