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Good evening, Threadnought -

The hearing transcript from the last hearing is out. I got a chance to read it on the Tube, so this won't be a cold-read livetweet.

I'm also a little pressed for time - been a busy few days in the middle of a busy few weeks. But let's dig in.
First impressions:
(1) Sometimes the biggest value in a hearing doesn't involve the matter being dealt with in that hearing. Sometimes the real value is in what that hearing shows about the judge's thinking on other things.
(2) This was that kind of hearing.
Let's jump in.
As I mentioned earlier, I've read this and I'm short on time, so I'm going to skip more than I usually do. If I jump past anything that you have questions about, ask - I should have time to look at comments when I'm done, and I'll try to go back over any of those.
Judge Chupp starts in the no-nonsense manner we're used to. Short version is that there are a ton of lawyers in the courtroom to represent Vic; two in the courtroom for Monica and Ron; and everyone else is on the phone so they don't have to drive to the wilderness of Fort Worth.
One of the two lawyers for Monica and Ron is Mr. Martin; Martin is not someone we're familiar with and is only there to handle the request for sanctions against Lemoine. As we'll see, although this was nominally the point of the hearing, it occupied almost none of it.
The first matter that the court moves to is the question of the deposition, and specifically whether the court's permission is needed to resume discovery. Judge Chupp is inclined to think that his permission is required.
I think Lemoine's interpretation is the one more in line w/ the statute, but (at least in retrospect) I'm not surprised that it's not the one Judge Chupp prefers. His thinking here, as is the case with his view that amending proceedings should not be allowed after TCPA filing...
...gives the judge more of an ability to keep proceedings focused and on track. I doubt Judge Chupp is the only judge to have a similar view.
The next bit tends to back that up, I think. Judge Chupp isn't hostile to more discovery per se; but wants to have say on if and when that discovery takes place - if Judge Chupp is convinced that it's relevant to the issue, it might be allowed.
I think Lemoine could have answered Judge Chupp's question better here, but that's something that's more apparent in retrospect than it was at the time. That's the problem with questions like "why do you need this guy." There are lots of answers; figuring out the right one...
...sometimes requires making the right guess about the judge's view of the case. Here, Judge Chupp is very narrowly focused on the deterrence aspect of the lawsuit - but not as focused on the factors that Lemoine is looking at.
So we see that Judge Chupp is tightly focused on the deterrence aspect of sanctions, and that it's deterrence from filing additional suits, not deterrence from misconduct during the litigation.
This is similar to discussions that I've had on Twitter with another lawyer recently; Judge Chupp seems to be where that lawyer was.

(I'm not tagging as a courtesy because the original poster of a thread can't untag in the thread for some reason.)
Skipping ahead a few pages, we see part of the reason that this might be the case - Judge Chupp hasn't yet read everything filed. Specifically, he hasn't read the fees and sanctions motions, so he hasn't seen all the arguments yet.
I should note that I've been at quite a few talks with judges, and some make it a practice to wait until the reply is in to read a motion, so that they can read both motion and reply together.
But before we get to that bit, there's this exchange, which received some attention from the NMC and their feckless leader, involving whether or not Lemoine is confident about what the court of appeals will do.

As it turns out, Lemoine isn't confident.
But the thing that Lemoine isn't confident about isn't the substantive ruling. That was a no-brainer and everyone who isn't Vic, Ty, Nick or their assorted hangers-on knows as much.

The issue here is that there's an issue of first impression to deal with.
Specifically, the issue is that there's no clear guidance from either the Fort Worth CoA or the Texas Supreme Court as to what factors are important when considering sanctions under the TCPA. Lemoine wants sanctions, and doesn't want the sanctions to get sent back.
Now this part might seem like good news for Vic, if "we can save your life, and you'll only lose a leg" is good news. It looks like Judge Chupp is leaning toward "the attorneys fees are going to be a big chunk of change so sanctions might not be needed."
But the very next part of the exchange might not be as good news. At all.

Because, at least to me, this looks like a really strong hint.
Lemoine still has concerns about the other factors, and we're far from done with the hearing, but this particular exchange strikes me as being as much of an opportunity for the defense as the referral to mediation was an opportunity for the plaintiff.
Skipping ahead slightly, we have this little exchange, which seems to have excited Mr. Martinez a bit.

But it's also worth noting that Mr. Martinez is doing the objecting, not Ty. And Ty is keeping his mouth shut. This may be the smartest thing Ty has done in this case.
Judge Chupp's question here strikes me as reasonable. And Lemoine is able to answer it fairly quickly - he wants to make sure there's a good record for the court of appeal.
And it looks like Judge Chupp is a bit more understanding of the situation once it's clear that Lemoine's not looking for an unlimited fishing expedition, just for an opportunity to get testimony for the hearing that's not possible due to where Slatosch lives.
(Be back in a bit - 15 minutes or so.)

So Judge Chupp moves over to the plaintiff's side of the argument. Which it looks like Mr. Martinez will be taking, giving us all (not to mention the defense team) a chance to see how he performs.
First impression: Martinez does not suck.

First two paragraphs could - and given Judge Chupp's all-business approach maybe should - be dropped. But it's a solid argument, at least on its face, and it's not being presented poorly.
Martinez goes a bit long - maybe more than a bit - but covers the bases.

(Sorry - misthreaded this the first time.)
But I'm not going to quibble much about Martinez's style when he gets what he was asking for - no deposition.

This seems to, in part, be based on Judge Chupp leaning in the direction that the attorneys fees bill is going to be pretty big, so more sanctions might not be needed.
That said, and as I mentioned already, Judge Chupp indicated that the argument about the GFM meaning that Vic hasn't felt the normal level of litigation pain might be relevant.
Moving on -
There's some additional back and forth in which the matter of having the attorney testify is raised, and in which there's then additional discussion of Slatosch.
Ultimately, Judge Chupp continues to lean toward simplicity, but in a flexible way. It looks like the approach that he's leaning toward is, "let's have the hearing, and then I'll decide based on that if I think I need to hear more."
I'm going to skip past - because it's almost midnight - the next couple of pages and summarize them instead. For those who want to read along, it's pages 27-31.

Long story short, it's complicated.
Without the deposition, the only way for Lemoine to get the information would be to put Beard on the stand - which could implicate work product if Beard testified but wouldn't if Slatosch did. But then there's more "is it necessary?" discussion.
Ultimately, Judge Chupp elects a relatively efficient solution:

Let's have the hearing first, and if he decides at that point that he needs to hear more, then it's worth revisiting this. But for now, let's go with just Vic testifying, not Beard or Slatosch.
Based on my impression of Judge Chupp so far, I think he means that - he's leaning toward thinking he's got enough information to resolve the sanctions without that, but is open to changing his mind based on what happens then.
I'll come back to this exchange at the end (if I'm still awake). For now, I'll say this: I like the use of the first person in this exchange.
It sounds from this exchange that Judge Chupp has little doubt about what's going to happen with the premature appeal. I think there's good reason for that.

Also, Ty did better at keeping his mouth shut this time but still needs more practice.
Most of the next bit with the appeal was pretty well covered already. I'm not seeing anything to change my mind about what was going on. Martinez does a decent job of arguing while radiating subtle reminders that he hadn't entered an appearance when the mistake was made.
Essentially, it's a case of being sure that Judge Chupp still can rule on the fees and sanctions without that harming the plaintiff's ability to appeal the substantive ruling, since that could seriously harm the plaintiff.
But it does appear that I owe Martinez Hsu a bit of an apology for some of my earlier laughter about them paying the appeal. It looks like the reason they did this was so that the appeal would be dismissed substantively rather than procedurally.
So the payment of the fees instead of allowing the case to be dismissed was deliberate and a choice made based on discussion at the hearing. The need to pay the fees at all, however, was still a screw-up.
And the next few pages are a continuation of the discussion of appeals. I don't really have anything to add here that I didn't say when this was covered based on the observer report. Appellate jurisdiction is easy to mess up. That can be bad for everyone.
Mr. Martin gets to do the thing he was there to do, which was to confirm that Mr. Lemoine is not being sanctioned.
This exchange is one I almost skipped over, but thought it was important to highlight. Because it shows just how stupid the fight over the wording of the order really was.

The judge says - without prompting - that the defense can reurge the deposition at the hearing.
Why on earth would you then fight about including that wording in the order? Fighting that point would have been dumb no matter what, but they found a way to turn that knob up a couple more notches anyway.
So there's an additional indication that Judge Chupp isn't inclined to put Ty on the stand. And that's about it for the hearing.
(1) On paper, Martinez looks better equipped to handle things than Ty. He was able to stay reasonably on script, and generally appears to have avoided making a mess on the floor.

That said, I wasn't there and a lot of advocacy is in the presentation.
(2) The defense didn't get a lot of what they wanted out of this hearing, but they did (I think) get a read on Judge Chupp's thinking about the sanctions. To my inexperienced eye, there was a clear signal to focus on the Go Fund Me, and (potentially) the stuff about "Round 2."
(3) Recognizing that this is based only on transcripts and might change if I was in the room, I'm still favorably impressed with Judge Chupp. Not overly formal, distinctly pragmatic in approach, but seems to have a "we" attitude toward litigation issues.
(4) Judge Chupp essentially told the plaintiffs to file a motion to quash the Ty subpoena. But that was still no excuse for the piss-poor job that was done with that motion.
It's late enough to be early - that's all I've got for tonight.
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