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Good evening - or night - #threadnought

It's been a while, but it looks like it's time for a livetweet. My understanding is that the full document will be released to the public very soon, and I'll link it at the end of the thread instead of waiting to start.
A quick overview:
I'm in England and it's pushing midnight, so I'm not going to sink too deep into the substantive law, but I will try to hit all the high points from the hearing. I'll also talk about oral advocacy a fair amount.
I coach a moot court team, so I'll be reading this transcript with the question of whether it should be assigned reading in mind.

I should note in this context that I've got hopes for Hsu (Vic's newest lawyer.) His bio said he did Jessup, which is a big deal moot court.
So - let's get started.

Judge Chupp's opening is consistent with what we saw in the other hearings. He doesn't seem focused on formalities, he does seem well-prepared, and he also seems inclined to be fairly flexible in how things are approached.

Those are all good traits.
Since Judge Chupp started by asking about the motions to dismiss, Lemoine starts by bringing up the questions regarding the filings. This is an important starting point, since it does dictate what is in front of the court.
With the possibility of new motions being added, timekeeping becomes a concern - Judge Chupp seems to be happy to stay flexible, while also being aware of the needs of others, including "Tina" (who I believe is the court reporter).
(I'm having some issues attaching screenshots, which is why I sent the last tweet without one. Going to try to attach it here.)
OK - "Let's just try and get through what we can get through" signals something which I think needs to be made clear for the folks who are upset that Judge Chupp "didn't listen" to Ty or whatever. The hearing is secondary to the papers.
To the extent Ty has stuff that he absolutely needs to get into the record at the hearing, this is his signal that he needs to be aware of the clock, and he doesn't have unlimited time available.
If a lawyer needs to sit, it's good practice for the judge to let everyone sit to argue - that way the person who needs to sit isn't at a disadvantage by being the only one. Thing is, if you're not used to arguing from a seated position, that can actually be unsettling.
Of course, that does presuppose that you normally stand when addressing the court.
Looking at the handling of the DMN request, Judge Chupp again indicates a preference for substance over formality.
Judge Chupp also indicates that he's read all the filings, but wants to have whatever is being talked about up in front of him while it's being argued. (All judges should always read everything before the hearing, but it doesn't always work out that way.)
Tyler isn't exactly close to Fort Worth, but it's not that far either, so the need for "local counsel" - especially brought in that late - isn't...how should I put it... it's not exactly the most believable line I've ever heard.
Seriously - "a little bit more speedy responses"? They don't bring filings to the court on a pack mule. But I guess they had better things to do than find a coherent explanation for the new lawyer's presence.
Anyway, Hsu thinks it might somehow "speed things up" to address the defenses late filings before his own team's shenanigans, but Judge Chupp is basically "LOL, no, we're doing the 2nd Amended Petition first."

(It's after midnight here, I might be less formal than usual.)
So Volney (counsel for Funimation) argues the motion to strike the 2nd Amended Petition. He does it professionally and well, making his points clearly and in sequence, and makes it clear where he will be leaving certain things to co-counsel.
Key point: the 2nd Amended Petition is the document that the plaintiffs want the court to consider as their response to the TCPA motion. This has the benefits of being (1) true; (2) clear; and (3) easy to argue against. As we're about to see.
The arguments against all basically boil down to a simple point "Judge, this is some messed-up unfair clownfuckery that these nimrods are attempting here." (I'm paraphrasing.)

First, as seen above, it violates the Rule 11 Agreement. (Which is a contract.)
Second, Tex R Civ P 59 doesn't allow you to attach a lot of stuff they attached to the pleading. And, to save time, Volney has a bench brief. Bench briefs (sometimes called "pocket briefs") are short, single-issue briefs which you have ready for use if needed. Standard practice.
And, of course, "It's crazy what you can find in the Texas Rules of Civil Procedure if you look carefully enough" is some beautiful shade from Volney.
Key point here is that the rule has been interpreted by the Fort Worth CoA in a way that's pretty bad for the defendants - especially when it comes to all the stuff attached that wasn't in their response.
And now we get to the part where Hsu kind of... the part where things don't go quite the way that Hsu was hoping they would. He says the 2nd Amended isn't a response to the TCPA, and Judge Chupp is - hey, great, cool, so we'll ignore it and just go with the other stuff.
Also, it's late, I'm tired. Yes, I meant that the Fort Worth CoA interpreted R 59 in ways bad for defendant, not plaintiff. Sorry.
Anyway, having succeeded in convincing the judge to ignore the document that the plaintiff absolutely needs the judge to consider, it's time for Hsu to start backpedaling. Rapidly. Unfortunately, "we couldn't litigate it if we wanted to" was maybe unwise.
Because Judge Chupp certainly isn't having any.
And now Ty, having hired at what I'm sure was some expense, a last minute substitute to get in the game and take the hospital pass, decides to run the ball up the middle himself instead.
As an aside:
Seriously, Ty. Did you really want to let everyone know that your research for this case apparently leans heavily on CLE materials?
This is a line that was guaranteed to *royally* piss off the judge. "We got our response done, and then we amended the pleading." Wow. We all - Judge Chupp included - saw your response, Ty. It was dogshit from start to finish. (See Ex ___.)
So what Ty is basically saying is "we dumped a pile on the court and the defense, and then set out to work on the real thing." That's bad faith litigation, and sanctionable in its own right.
Ty continues to pile on the manure, but it's not really convincing. And Judge Chupp still isn't having any.

My read is that, had Ty done what literally everyone here said he should have, and just replaced the affidavits in the response, he'd have been fine.
The highlighted line, where Ty says he didn't know the affidavits were defective, may reappear in one of the sanctions motions - even if Ty really is that stupid, it's going to be hard to find a judge or lawyer capable of believing he is that stupid.
For those of you who are into the audio side of productions, the correct sound effect when the words "Okay. I'll be clear" come out of a judge's mouth is a rattlesnake rattle.
Anyway, Judge Chupp takes poor Ty by the hand and walks him through the question of how did that brown mess get into those once-clean pants.

Seriously, it's now very clear that had Ty submitted a corrected response at any time Saturday, it probably would have been accepted.
Ty's "because they're devastating" line serves, here, to reinforce the magnitude of his failure to properly submit them. It also provides evidence of his motive to deliberately falsify the notarization when he realized the mistake.
Mr. Volney goes on, in material I'm skipping (I've got to pick up the pace if I'm going to sleep at all tonight), to outline the full set of objections to the 2nd Amended Petition - conflict with the Rule 11, improper material under Rule 59, surprise under Rule 70, etc.
Hsu, credit where due, has recognized the issue with Rule 59. No idea if he was prepped or is trying to save this on the fly, but I'll assume it's on the fly because it's a great on the fly attempt but a godawful stupid one if it's prepped.
Anyway, he's going to try to argue that the affidavits and all that stuff are OK under the Rule. Which is a valiant attempt but he's going to get flattened shortly.

He also does a good job steering from that back to the "no surprise" argument. Well, an OKish job anyway.
That's an argument skill - sometimes the judge will lock onto a point that's really bad for you, and you need to try and redirect the judge back to something better. Hsu's problem is that the other thing really isn't any better - surprise is a problem, too.
The Judge now wants to look at the question of the affidavits. This is more, I think, to get a sense of what the defendants want than anything else. Volney uses the word "fraudulent" and plows right over Hsu's attempt to interject - and Judge Chupp lets him.
Judge Chupp then turns back to the defense, and - there's really no other way to put this - benchslaps Hsu silly.
Seeing this, Ty tries to jump back in, and apparently Hsu is more than happy to let Ty take the beating from here on out. Meanwhile, while the plaintiffs are comparing red noses and shoe sizes, Volney steps in with something professional and relevant.
Judge Chupp goes on to prod Volney a bit on the outer limits of the argument, revealing in the process that he has a good command (as one would expect) of the rules.
Judge Chupp is clearly done with the argument on this - and looking at this, I'm not sure there was a clear decision on whether the 2nd Amended Petition is in or out. (That said, it's pretty clear which direction - out - virtually all of it is going.)
Moving on to the MTDs, Sam is up first for Marchi. He makes it clear that he's basing his argument on the filings that were originally filed.

I'm going to skip areas where there aren't questions, and just give overall impressions.
Good opening. Humanizes his client while explaining what she does and how she's involved, before moving to the area where he has the burden. Good choice by defendants having him go first, since he has the easiest on prima facie case, and therefore more time available for that.
The cases are similar enough that if Sam establishes that he's met the TCPA applies burden, the others will be fine on that point as well.
Judge Chupp's interruption signals, at least to me, that he's not at all concerned with this part - he's focused on what the accusation against Marchi is, not whether the TCPA applies.
A couple of things on this - 1st, Sam handles the question the way questions are supposed to be handled. Direct answer, in the process highlighting again what a crapfest the response really was. 2nd, he then returns to his original argument.
I was going to ding him for that a little bit, because he could have stayed with the Judge's interest and shifted right to defamation, but there's no immediate follow-up and I remembered that he's really arguing on behalf of everyone on these points.
There are several more pages of clear, cogent argument from Sam making the case that the TCPA applies, during which time Judge Chupp asks no questions. My hat's off to Sam - I struggle, and I mean really struggle, when confronted with a "cold bench" like that.
It's hard to read most judges, so when you're talking and there are no questions or reactions, it's easy to get thrown off stride. Sam clearly wasn't.

He then moves to prima facie case, and starts with causation and damages - which are common to everything.
The questions that Sam gets here are softballs. They also illustrate that Judge Chupp is aware of Ty's lack of effort in acquiring evidence, and is unimpressed with same.
Sam makes it clear that none of his client's statements were identified as defamatory in the response. It's hard to overstate what a spectacular omission that was. But, being a pro, he's going to handle all of them.
He's also clearly doing a good job reading the judge, because he stops to let the judge do some reading, and then goes on to hammer his key points.
And he does a really great job with the other non-claims brought against his client. Sam's "the only thing clear and specific" ending was well-done.
So here we see the issue that Judge Chupp is wrestling with on defamation, and likely the reason that he reserved ruling on the other ones. Essentially, he seems reluctant to approach fact questions, because those go to juries.
Probably, anyway - but it's late, and my brain is failing at this point. Could be that was a softball that Sam didn't quite take as intended. Dunno.
But this does suggest that I should probably take a break after we're done with Marchi - fair warning - and pick up with the others tomorrow, when I've had some sleep.
So I guess Ty had a binder of his own, but didn't bother sending it ahead of time? Anyway, Judge Chupp doesn't need a new one.
It's also clear that Judge Chupp is the kind of judge who doesn't bother asking questions if he doesn't have any for you, but if he does, don't plan on sticking to your prepped speech.

Also, yeah, looks like the 2nd Amended is out.
To the extent that Ty was only prepared to argue the 2nd Amended Petition, that was both arrogant and stupid. Never assume you're going to win that kind of motion. Yes, that means you have to prep two different ways - choices have consequences.
Stupid choices have stupid consequences. I don't even know what to call the kind of consequences that flow from Ty's choices, but they ain't on the "smart" end of the spectrum.
Here, it's clear that Ty seems to be resting a lot of his case, maybe all of it, on conspiracy, because, why not, sure, it's the single weakest part of his case against everyone. Judge Chupp, however, wants Ty to talk about other things.
When the judge wants you to talk about other things, guess what you talk about?
Memories:
(1) Remember when Hsu said that there wasn't really anything different in the 2nd Amended Petition? Ty's response here suggests otherwise?
(2) Remember the simple question Judge Chupp asked like last Thursday that Ty still hasn't answered? Judge Chupp does.
Judge Chupp asked "how many tweets." This is Ty's answer. It's an answer to a question, I guess.
It's just not the answer to Judge Chupp's question. And, no, Ty, the definition of a Discord server also isn't the answer to the question "how many tweets."

"Answer the question" is literally rule one of oral advocacy.
It seems that instead of opening his mouth and interrupting Ty while Ty was making mistakes, Sam stood and waited for the teacher to call on him. Good call.

Also, Ty, when the judge asks opposing counsel to give you something to save time? #howembarrassing
Sam's apology was good - although having paper copies of everything would have been better - if only because it starkly highlights the amount of apologizing Ty has done as compared with the amount he really should be doing.
Also, Judge Chupp is clearly right thoroughly pissed off about the Second Amended Complaint thing, and the hellfiling is clearly part of the reason for that - it wasn't a proper response and everyone now knows that.
Ty now does something relatively smart and asks to at least substitute the unsworn declarations for the affidavits. Lemoine is opposed, for obvious reasons, but the request was a good move by Ty.

(Not needing to make the request would have been a better one.)
Beard's explanation is unconvincing. Also, I'm not sure I would have jumped in that early if I was Lemoine. On the other hand, I might not have been able to resist either.
OK - so here's the part that Ty's few remaining fans have been spinning as the judge saying he wasn't worried about Ty's phone notary thing. Looks to me like he wasn't worried about whether the email was accurate.
In any event, Judge Chupp is handling the matter by considering the affidavits at least provisionally, which is a fairly reasonable approach given that he did read them. (This is also why the evidentiary motions were kind of a waste of time.)
All that said, I don't think Judge Chupp was at all impressed by either the affidavits or the attempt to get around that mistake.
And so we go right on back to the question of "what part of 'what tweets' do you not understand you nuclear powered time consumption sink?" (I paraphrased that a bit.)

And Ty can't provide a straight answer.
Instead, he starts rambling about the Discord server, which he hasn't ever mentioned before and doesn't have actual content from (is that right?) and conspiracy and at this point I'm genuinely fearing for him and Hsu is probably looking to see if he can hide under the desk.
So Judge Chupp reels him in but by this time it's crystal clear that Ty's little choo-choo is well and truly off the tracks, because Ty doesn't know his own client's case. Which is fucking unforgivable.
Ohmydeargod - y'all, I knew from the livetweet that the hearing was a train wreck, but I didn't think it was this damn bad. Just --

The Discord is already out, and Ty's just babbling at this point. This isn't argument, it's incoherence.
Judge Chupp shifts back to talking about the delays and confusion with the filings, and I swear I don't think Ty even realizes how much digging he's doing when he says stuff like that because it's basically "we totally planned to screw the defense by giving them a fake filing."
I mean that's literally Ty's explanation - "we always planned to file an amended petition with everything attached." What he's saying is that he intended to make the defense waste their labor day weekend working on a reply to a response he never intended to be the real pleading.
That's trying to excuse catastrophic incompetence by admitting that you're a disingenuous little ratfucker.
Also, it looks like Judge Chupp read the Second Amended and knows there's stuff in there that wasn't in the First Amended.
And "you'll have to ask them" is never, ever, ever, ever an answer to a judge's question. Ever.
Whoo - I hope there's a recess soon, because I think Judge Chupp needs one. This is into "visibly angry" territory, and from everything we've seen in this and the other hearings, I don't think that happens much in that courtroom.
It also looks like Judge Chupp really isn't buying the stuff about the reasons for the Second Amended Petition, and has noticed the issues with the dates on the unsworn declarations, and is otherwise unhappy with the plaintiff and his company of clowns.
I can see how those completely ignorant of the functioning of court systems might mistake what follows for the court "ignoring the pleadings." But that's not what's happening at all. It's clear to me that Judge Chupp is now at the "not playing" stage.
He's clearly read and digested everything to the point where he knows the details - right down to when the unsworn declarations were signed. He's got specific weak points he's identified. Ty has one last chance to address those - and only one - and he just blew it for defamation.
I lack experience, so it's possible that others have seen a judge refuse permission to approach the bench at a hearing before. I haven't.
I think the "anti-Vic support group" is something that was new in the Second Amended Complaint. But there are so many clippings and strings and so much tinfoil it's hard to be sure.
Ow.

That's all I have to say about that.
The hell with inference - Ty clearly doesn't know what *rational* means.

Meanwhile, An Lee is looking for the exit. I doubt we see much more of him in this case.
I'm going to skip a couple of more pages of just off the rails badness here, and get to the cat pictures. Because cat pictures make everything better --

not this time.
And again with them negative Discords, Ty - where was that in the Response?
This bit here is as close to the little-league mercy rule as you're ever likely to see in a court hearing.
But apparently that was because they finally found something where a statement was about Vic - but a defamation one, not something relevant to conspiracy.
At this point, it's very, very clear that the well of patience hath runneth dry.

But Ty does at least know enough to apologize here.
The judge now continues his exploration of how stupid the Ty Beard theory of conspiracy is by pointing out that conspiracy to conspire ain't a fucking thing y'all, so where's the tort? And also the definition of TI you're using for her claims is goofy but we'll come back to that.
Forgot one of the pictures for that last tweet:

Also, no, Ty, that's not mouse-trapping you. It's a basic damn question you gibbering incompetent little shit.
Wow - this is just totally awful. I just can't even begin to give you a sense of how surreal this must have been for the real lawyers present. (Nick and Ty, of course, might have thought things were still salvageable at this point.)
This is one of those rare times where you see a judge give that kind of reply to counsel - but it's clear that he's more concerned with trying to figure out what Ty is even trying to say at this point.
I'm starting to suspect that Judge Chupp, like us, was simply unable to fully grasp that everything Ty filed was really as bad as it looked; there was nothing deep or secret or special about it.
I'm going to show Ty some mercy and skip ahead a bit - but I'll say this: I can see his misunderstanding. And it's not as stupid as you might think it is - it's actually a lot more stupid than that.
Here's the thing about a prima facie case. You need to present evidence that can lead to a reasonable inference that the defendant did something. That doesn't mean, however, that the evidence itself can be an inference.

I don't think Ty (or Nick) get that.
And Ty doesn't even try to present a case for TI against Marchi - because he never fucking well had one in the first place; the whole thing was obviously a SLAPP from the start.
Vicarious liability next - which at this point is almost just screwing with Ty because vicarious liability would only apply to her employees' actions, not her own but my dear lord does Ty know that - it does seem like he figures it out eventually.
And with that Marchi is done - and so am I for the night. I've got stuff to do tomorrow, but I'll probably pick up again by midafternoonish US time.

Night all.
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