At this stage of a proceeding, which I take to be a motion for judgment on the pleadings or a motion for summary judgment, the court assumes all of the factual allegations of the respondent party to be true and then asks itself whether the respondent can win (not should win) as a matter of law. This is decided on papers, rarely with any testimony, and it is really to determine whether the respondent has negotiated the hurdle of articulating a legal case.
A plenary hearing occurs with witnesses and evidence such as documents or physical objects and the plaintiff must carry his burden as described to the trier of fact. Such a hearing will occur upon the failure of the motions described here.
So now Marc Steyn and the rest of the defendants will engage in a hearing with experts etc. in which I believe they will have the burden of proof by the preponderance of the evidence to show their affirmative defense which is that the science is false, or, put another way, their statements concerning the falsity of global warming are true. It is my recollection that the burden of proof will shift to the defendants because this is an affirmative defense. Please note that shifting the burden is not same as shifting the test which could be "clear and convincing" or "beyond a reasonable doubt" as well as "preponderance of the evidence."
All of this will be adjusted if the defendants can show that the plaintiff is a public figure in which case there must be a showing of malice on the part of the defendants in uttering a falsehood and it may be that the burden shifts back onto the plaintiff and/or the standard of proof is elevated from preponderance of the evidence to clear and convincing with the burden on the plaintiff. I just don't remember if the plaintiff must show malice by clear and convincing evidence or if he must disprove the truth of the alleged libel and, if so, to what standard.
