The electronic docketing system of the Texas courts is down for maintenance this weekend, so I couldn’t verify this information. But Age of Autism (whose latest post as of this writing calls Jenny McCarthy a “Beauty Queen,” apparently for her career-launching spread in Playboy magazine) said it, so it must be right: the Texas Third Court of Appeals has heard oral arguments in the appeal by Andrew Wakefield from an order of the trial court dismissing his lawsuit against BMJ, Brian Deer, and Fiona Godlee for libel in relation to an article calling him a fraud. I did find the brief of BMJ, Deer, and Godlee, which was filed on March 4, making a May 22 oral argument about right.
What was amazing about Age of Autism’s short post on the topic was how much they got wrong about the court and the case. Here’s the entire post:
Yesterday, the three judges of the Texas High Court heard the appeal over jurisdiction in the case of Andrew Wakefield against the British Medical Journal and journalist Brian Deer. The case was presented by attorney Brendan K McBride, which was felt to be well-conducted. It will now be between 1 and 6 months before the judges return their verdict.
So, how did Age of Autism get it wrong? Let me count the ways:
- “the three”: There are six judicial officers on the Third Court of Appeals. This case was heard by a panel of three of them, but they do not constitute “the three” judicial officers of the court.
- “judges”: The judicial officers on the court are called “justices.”
- “High Court”: The Third Court of Appeals is an intermediate appellate court. That means that it is not the court of last resort in the state, and therefore does not carry the honorific name of “High Court.”
- “British Medical Journal”: The BMJ hasn’t been called this in 25 years; they now go by “BMJ.”
- “against the [BMJ] and journalist Brian Deer”: The case had a third defendant: BMJ editor Fiona Godlee. OK, this is a minor point, but it’s still an error, so I get credit for pointing it out.
- “which was felt to be well-conducted”: Huh? This phrase shows the evils of the passive voice, the use of which every law school professor believes will lead to the extinction of Homo sapiens. Who “felt” it to be “well-conducted”? I assure my dear readers that Age of Autism was not speaking on behalf of the court.
- “It will now be between 1 and 6 months before the [justices] return their [decision]”: Says who? I could find nothing in the Texas Rules of Appellate Procedure or the court’s local rules that indicates any time frame for a decision. This might be an average of the court, but it’s dangerous to predict a time frame for an appellate court’s decision in any particular case except for those cases that have definite terms in which they issue decisions before the end of the term, like the U.S. Supreme Court does. I could find no indication that this was the case for the Third Court of Appeals. I am ready to stand corrected if a Texas attorney has other information.
- “verdict”: An appellate court does not issue a “verdict.” A verdict is a declaration by a trial court that establishes the ultimate facts and some legal conclusions in a case (I know, fellow lawyers, it’s really the judgment resulting from a verdict that does that, but let’s keep it simple for our lay readers, OK?). An appellate court issues a “decision” or “opinion” and, eventually, a “mandate.”
One of the comments to the post, by “AussieMum,” stood out for its fundamental misunderstanding of the law:
If Dr. Wakefield’s appeal is successful, is he still subject to the BMJ’s lawsuit based on the Texas Citizens Participation Act (the “Texas Anti-SLAPP statute”) or is he home free?
Maybe we should give AussieMum a little slack since she is probably from Australia, but if she has read anything about the lawsuit, she would realize that the BMJ’s anti-SLAPP motion is not a “lawsuit” that Wakefield is “subject to.” It’s a defense to Wakefield’s lawsuit against BMJ, Deer, and Godlee. For a good description of Texas’s anti-SLAPP statute, see my favorite legal blog, Popehat.
So, Age of Autism, perhaps you should inform yourself a little better about the law before you comment on legal matters. And, come to think of it, perhaps you should inform yourself a little better about science and medicine before you base an entire website on the safety of vaccines.