Thread by @questauthority

Good evening - or afternoon - #threadnought

It's time for Part 2 of the TCPA hearing transcript livetweet. Here's how I'll work this tonight:
I'm going to get through at least Rial/Toye and hopefully the whole thing.

https://twitter.com/fsckemall/status/1172649980638556160

There will be at least one interruption, and if things are going well enough to get through the whole thing I might split the thread at the start of the Funi portion.

As with yesterday's effort, I'm going to focus more on the argument than on the merits. Probably.

I'm also probably not going to see questions in time to work them into the thread, but will try to go back later on.

So, without further ado, let's return to the tale of Ty and the Terrible, Horrible, No-Good, Very Bad Hearing.

A couple of things at the start. It will be harder for me to criticize Lemoine than it has been for me to criticize Ty. I'm aware of two things - he is on Twitter, and I've sworn a solemn oath to never piss him off.

(Kidding about the second one.)

Seriously -

He's an experienced litigator. I'm not. And I know just about enough about oral argument to recognize that while his style isn't mine (I'm much more comfortable with Sam's approach), that's a style difference, not a right-wrong thing.

Also, while I'm not a member of the defense's legal team, I'll admit that some of the clips I've been sent where Ty and Nick have insulted me on Nick's show have left me disinclined to provide them with additional free research.

(Not because I was actually insulted or even irritated; just to return the favor.)

There are still unresolved claims with the remaining defendants, so I may not be as open on those as I was with Marchi's, where the next step is appeal.

So - back to the transcript, where Lemoine wins a huge one off the bat. Vic, surprising nobody, is a public figure.

(For those who focus on the "because we don't have many cases" thing: don't. The merits of each issue are being resolved on both the papers and the hearing.)

Also worth noting: sometimes an unexpected win early on can throw someone for a loop - it's not just losses and benchslaps that can have that effect. Anything that challenges your plan is a test of your flexibility.

Lemoine isn't thrown, and shifts to his next argument: this case falls into the policy core of the TCPA - it's exactly the kind of case the statute is there to address. It's a risk - not all judges like policy arguments - but for a case like this it seems like a good one.

From there, he goes right to affirmative defenses, skipping the elements of the TCPA. This is a different approach from Sam's, but I can understand why their approaches differed. For Sam, shifting to the elements makes a huge amount of sense. There was no evidence for anything.

Elements had great arguments for him, so that's where he went. And although I'm sure he was prepared to argue affirmative defenses, it wasn't a surprise that he didn't need to.

Lemoine has a different case. He's got two defendants, and while most of the material presented against his clients isn't exactly evidence, there's a lot more of it than there was for Marchi. Going to elements risks getting bogged down and never getting to affirmative defenses.

So I can see why he goes to affirmative defenses - it also lets him hammer away at how Vic got Vic into the spot that Vic is in. The risk, of course is that the judge might have other plans.

Break time - back in 15-20 min.

Right - Lemoine and affirmative defenses present Ty with a wonderful chance to beclown himself. Which he promptly does.

First of all, there's a certain format to objections. There are phrases that are used, there are reasons given, there's specificity involved.

It should go without saying that "I object to all of this," isn't exactly a typical - or clear, or cogent, or coherent - objection. And while Ty might think that dragging in everything about how bad Vic is was unfair, he should have thought about that before he filed.

Libel-proof is a recognized defense. As long as it remains a recognized defense, defendants can use it. And using it involves dragging the plaintiff through every bit of mud associated with the plaintiff that can be found.

Judge Chupp lets Ty speak his piece and overrules him, but it's clear that he's also ready to move on. Lemoine does this well, shifting to his CDA argument - which is relevant, given that the judge did seem to be considering retweets as a possible defamatory publication.

(1) I'm not sure I'd personally use "blah blah blah" in an oral argument and I don't think I'd be happy if my students did. But that's a style point.
(2) Judge Chupp is sharp, and maybe more online than we've been giving him credit for.

This is a really interesting exchange. Usually, I'd ding any interruption of the judge, but while I wasn't there to see how this played out, it reads like a conversation between two lawyers - and that's exactly how you want to engage the judge.

The other thing that's interesting here is Judge Chupp's discussion of his own personal view of the law - it's interesting that he doesn't like it as policy (at least outside the public figure context) and isn't hesitant about saying so.

Lemoine does a good job sticking to his guns - he's respectful but firm in saying that the literal language of the statute makes it clear that it applies across the board.

Ty, of course, isn't thrilled with Lemoine arguing the point well, so he steps in.

This exchange is also interesting. It looks like Judge Chupp isn't inclined to address any of the material submitted after the TCPA deadline (which I'd consider an unfavorable sign for Ty.)

At the same time, it looks like he's drawing a distinction between introducing new affidavits - and other new facts - and introducing new legal arguments (at least ones that are responsive to plaintiffs). I'm not sure it's a distinction well-grounded in law, but it makes sense.

I'd add that refusing to consider evidence added after the deadline hurts Ty a metric crapton more than it hurts any of the defendants. They added some stuff to bolster libel-proof, and Funi redid (without withdrawing) some earlier affidavits which were sufficient.

Ty, on the other hand, tried to add a ton of stuff, including a whole argument based on a Discord server.

Also, where Lemoine was conversational, Ty simply isn't listening. And reminding Ty that he can bring cases might have been a tiny bit shady - hard to tell for sure.

Lemoine's shift here to dealing with Ty's asinine claim that the defense can't object to anything he submits was a bit abrupt for my taste, since it's disconnected from the prior argument and there's no attempt at a segue - took me a second to realize what was happening.

And it does look like he might have lost Judge Chupp with that jump. So that one probably didn't pay off.

Lemoine doesn't try to explain what he was trying to do; he moves right to the defamation. Good call - that's where Judge Chupp wants to go and he wants to be there now, that's what you do even if it hurts.

Lemoine starts by arguing that insufficient context was provided.

That's important, because it is clear that you do need to have a reasonable amount of context for a discussion before holding that individual parts of it were defamatory. Judge Chupp seems inclined to a pragmatic approach here, too - I don't need all of it, just enough.

Here, Judge Chupp has another good question that's very germane to the question of context: how long was the period when this happened? Lemoine doesn't know, which is fine - it's Ty's job to make that clear.

Of course, it's hard for Ty to make things clear when everyone else is playing chess and he's trying to cheat at solitaire tic-tac-toe.

Also: "Judge, you authenticated all this" "Oh really" is a classic moment. And by classic, I mean "all the cringe."

Lemoine's response - which boils down to "we authenticated the tweets, not the context" - is classic. Basically reinforces that Ty really didn't know what he was doing at that hearing.

Moving on, it seems likely that Judge Chupp is losing patience with the entire show. This is something Lemoine might have caught onto just a tad quicker. I think Judge Chupp wanted a clear element-by-element approach from someone, and he wasn't getting it from anyone.

That "you're not listening" wasn't a great moment for Lemoine. The judge then turns to the stuff about pedophilia, which involves Sabat, and is therefore kind of confusing since Sabat isn't in the case.

This confusion might have been predicted.

https://twitter.com/questauthority/status/1168893804407074817?s=20

Judge Chupp seems aware that the disconnect is an issue, and makes it clear what he's looking for; Lemoine seems to adapt quickly.

Reckless disregard is more than failure to investigate - but given the record I doubt that will matter.

Lemoine does a good, if lengthy, job going through the record (or lack thereof) on actual malice, in pages I'm not going to copy in. He then pivots back to address the Dahlin affidavit, and the deposition testimony on the experience in the room.

There's some more discussion of the situation regarding actual malice, before Lemoine shifts from defamation to TI.

Kameha Con = Comic Con. That's pretty clear from the context.

And with that Lemoine wraps up, there's a break, and Ty comes out swinging by just totally mangling section 230 in ways which would cause me to deduct many many points from a student.

Judge Chupp is clearly not a fan of Lemoine's §230 argument - or, rather, of the policy implications. But he's even less of a fan of the idea that retweet = conspiracy, and Ty is still, despite the earlier beatdown, trying to go there.

Also, I'm glad I'm not playing a drinking game where I drink any time Ty fails to understand "rational inference" or its component words. I'd be dead before the end of this section of the thing.

OK - so the time pressure is now really ramping up. Judge Chupp wants a clear presentation of the elements. This is the time to lead with your strongest case for defamation. And we all know there's one claim that's stronger than the rest. So what does Ty do?

He identifies a statement that probably can't be defamatory, or at least is way, way, way down at the bottom end of the spectrum as far as what would be a strong case is concerned.

No, I don't know why he did it that way.

But at least he's identified a statement that he thinks could be defamatory - so now he'll obviously go through the elements of defamation and show that he's got clear and specific evidence that this statement was made with actual malice and caused damage.

Except, no, he just jumps to identifying another allegedly defamatory statement - and this one isn't his strongest one either, what the hell, Ty??

In fact, this is the statement that the defense showed - in their coherent reply to Ty's hellfiling - is based on a typo.

And still not going to the elements, he's like "this is a really good one" - John 11:35.

I seriously think he's just rifling through and pulling them at random, with no plan and less understanding of the importance of the fucking elements - Ty, did you even go to law school???

And - all this is still just a bloody stream of consciousness ramble at this point - Ty moves on to allegations in Huber's affidavit WHICH HE ISN'T EVEN FUCKING SUING OVER, given that they never were part of the petition, before going to the "devastating" Slatosch thingy.

And, of course, at this point we've got to call them "thingys" (that's a term of art) because thanks to Ty Beard: Accidental Notary, it's not totally clear if the statements are affidavits or unsworn declarations - a point which will cause much mirth amongst the appellate clerks.

Also - "here it is. I've got it. No I don't." -

Actually, that's merely the sort of buffoonery that any unprepared attorney could encounter, taking it down to the realm of normal screw-ups. It's a moment of relief from the clowntacular.

Anyway, having failed to identify and discuss his strongest defamation claim, Ty gets excited by the affidavit he fraudulently notarized, loses sight of the ball, and dives into the rabbit hole of TI. In the process, he immediately contradicts himself in back-to-back sentences.

In other words, a Friday.

Ty is so excited that he dives through TI, comes out the other side, and launches right back into conspiracy, totally heedless of the fact that he's had the everliving shit slapped out of him twice on conspiracy in the preceding two hours.

I think he does it all in one breath.

But wait! There's more.

We're not stopping with just conspiracy, nope. Why would we do that when rational inferences are out there running naked through the hills just waiting for someone to pin them down?

In focusing down to the relevant concept of "do you have a case for breach," Judge Chupp does a remarkable job of cutting through whatever it was Ty had been doing for the preceding couple of minutes.

And now we get to the hard questions - because TI is a business tort. It's tightly tied to contract law, which in turn is a highly pragmatic area of law that assumes that contracts will sometimes go wrong in ways that shouldn't lead to lawsuits - particularly if stuff gets fixed.

I've said this before, I think:
Contract lawsuits aren't "oh, someone didn't live up to the exact letter of the contract, I'll make them give you a big bag of money."

And I know I've said this before, but I'll definitely say this again now: there is no tort of attempted tortious interference.

Also, Ty even calling it that was a major concession of the kind you try not to accidentally make in oral argument.

Seriously - there are a lot of lawyers who won't concede stuff in argument. That's dumb. Letting go of a weak claim can be hugely helpful - when it's done right.

But that requires (1) having a plan; and (2) knowing when to do it. Ty - I don't think Ty even knew he did that.

I'm adding "would have is not a cause of action" to the list of great lines to come out of this hearing.

And Ty is just not getting it - "one swing of a bat" is not clear and specific evidence that the bat was ever swung again - and "clear and specific" is BLOODY WELL THE STATUTORY STANDARD.

Yeah, this is getting a lot like a bad rendition of "Who's On First." I'd say "stop" too.

Oh FFS. Ty, do you ever talk to your client? How on earth did you fail to get Bumblefuck McBotoxface to figure out which damn conventions he had contracts with? Or is none of that available because of his totally-not-sketchy-at-all delete everything immediately fetish?

Ohmygod. There's no bottom. There is no bottom. It just keeps. Going.

I wish I'd been there to see Judge Chupp's body language through this exchange, because if it's this surreal for me to read it must have been at least twice as surreal for him to experience.

Someone please tell me he deadpanned "Oh, I was looking forward to it." Please.

He anticipated that it was five cons he lost; this is *not* speculation?? This is a method? WTF?? No, really, WTF.

Also - Ty - this is a CONTRACT case. The word "contract" is right the fuck there in the fucking name of the bloody tort. And you don't know and all you can talk about is what YOUR CLIENT said in his affidavit?

Ty, how many hours have you met with Vic?

Seriously, Ty, if we exclude the deposition itself, have you spent more than 10 hours talking about this case with your client? If so, how the fuck do you not know what contracts he had? If not, what the fuck are you even doing you idiot?

"There were very definitely contracts" is not, just so we're all on the same page, either clear or specific. It is, in fact, opaque and vague.

With this in mind, all the stuff about dollar amounts is just asinine babbling - because if you don't fucking know which were current contracts and which were prospective, (1) how do you plan on showing that the defendant fucking knew which were current contracts?

Also, with no clear and specific evidence that the defendants contacted a single one, who cares? You're missing so many elements Ty - and I think some of that was just because you're a lazy schmuck who didn't work the case before you filed it.

Wait - you only have circumstantial evidence that cons canc---

Ty, you don't actually know what "circumstantial" means, do you.

ohfuck. Just - I'm just so totally cringing right now.

So what happened there was Ty tried to tell the judge a blatant, obvious, and STUPID lie, and got immediately caught because - unlike Ty - Judge Chupp knows the case pretty well.

You don't want to be the person that does this. Ever.

Seriously. Don't lie to the damn judge at oral argument. And that was clearly a lie. Not a misunderstanding. Not even something you can try to worm out of by (eg) claiming to be so transuranically dense that you think people "appear before you" to swear to things by phone.

(1) It appears that "whatever it was" might be the term of art for the accidental notarization episode.
(2) It appears to me that Judge Chupp isn't really happy about Ty trying to bullshit him.

So the term of art that best describes what Ty is doing here would probably be "going under for the third time," and being a cheerful and helpful guy, Volney tosses Ty a couple of bricks.

Given how much all of the opposing counsel clearly love Ty at this point, I'd like to offer him some advice.

@TyBeard10 - It's maybe time to put down the von Clausewitz and the Sun Tzu, and pick up Dale Carnegie for a bit. Just a thought.

@TyBeard10 And, after slapping Ty around a little more, and letting Ty make a slightly-less-abject-than-it-really-needed-to-be-apology, Judge Chupp moves to wrap up the Rial/Toye part of the hearing.

@TyBeard10 But not before giving Ty a chance to make the same damn mistake he did with vicarious liability with Marchi again, probably (to be honest) partly just to see if there are limits to the stupidity but also because Ty's Petitions have been so imprecise that the check has to be made.

@TyBeard10 Also, even if trying to accept responsibility, don't tell the judge you weren't listening. Say "I'm sorry, I didn't understand." Or "I might have misheard you."

But, in this case, I have to admit that might be incompatible with earlier "don't lie to the judge" advice.

@TyBeard10 Moving to Toye, Judge Chupp's patience is clearly at an end. Seriously at an end.

@TyBeard10 And it looks like Ty has, for all intents and purposes, conceded that Kameha Con was "attempted tortious interference" (aka "not a thing"). And still doesn't know rational.

@TyBeard10 Ty is still trying to claim there were other contracts. Judge Chupp is physically in Texas but spiritually in Missouri.

@TyBeard10 An aside at this point -

Here's the problem with not knowing if you had contracts. One of the problems anyway:
If you don't know if your announced appearance at BasementCon XIII is contracted or not, how can it be clear and specific evidence of either kind of TI?

@TyBeard10 If you don't know if there's a contract, it's not clear and specific evidence of TIC because you can't clearly state there was a contract - but it's also not clear and specific evidence of TIP because you can't clearly state there wasn't a contract.

#oof

@TyBeard10 At this point, I'm not sure Judge Chupp is even really exploring damages so much as "you total vegetable, how can you be SO BAD at this."

@TyBeard10 Also, I'm not going back to look but I'm pretty sure Ty has now given $30,000, $20,000, and now $135,000 as the total estimated damages. Which is clearly very specific testimony.

@TyBeard10 But we're back off of damages and over to "is there really evidence they did anything to contact other cons" again.

@TyBeard10 And, with laserlike precision and an incredible display of deep cultural and technological understanding, Judge Chupp highlights the key problem that the rest of us saw with Ty's case some time ago:
There are more than 3 people talking about Vic.

@TyBeard10 Also, having to ask the judge if you're still talking about the right cause of action? #howembarrassing

@TyBeard10 Moving on, Ty still doesn't get that the standard isn't "reasonable inferences" - it's CLEAR AND SPECIFIC evidence from which inferences can be drawn. And the judge is right - he doesn't have any. But he doesn't understand this because he literally doesn't understand evidence.

@TyBeard10 Yes, Ty. That's why you didn't survive a TCPA motion on your TI claims. You didn't read Van der Linden right (or maybe at all) and you have no clue what your burden was.

@TyBeard10 Lemoine, on the other hand, has read the case and does understand what Ty's burden is.

@TyBeard10 If Ty Beard isn't a smirking example of Dunning-Kruger, I don't know who is. Ty clearly convinced himself, because he's arrogant and stupid, that prima facie means what he wants it to mean, not what the cases all say it means.

@TyBeard10 And since Ty is clearly high on Ty's own supply, he loses TI because he never provided evidence.

@TyBeard10 And with that, we're done with Toye and Rial, and I'm going to wrap here for the night - it's after midnight for me, and I'd rather not be up until 3 again.

We'll pick up with Funimation tomorrow.

@TyBeard10 Overall impression:

@TyBeard10 This transcript is absolutely getting added to my teaching file, and I will be using it in the next several months. A lot of examples of good advocacy, good responses to challenging situations, and what to do when your argument doesn't connect with the judge.

@TyBeard10 And also a lot of Ty moments for the "how not to" stuff.

I genuinely cannot believe how poorly equipped he was to handle any of that.

/fin.