The brief still isn't publicly available, but I'll be posting screenshots. Absolutely don't trust me and do check my work when it becomes available.
(1) It needs to get the affidavits - at least Vic's and Slatosch's - in as evidence. (Huber's was basically useless.)
(2) It needs to clearly identify why the court was wrong on each claim.
(5) It needs to deal explicitly with apparent contradictions between Vic's affidavit and deposition testimony.
(6) Ideally, it should try to get the decision on whether the TCPA applies reversed. That's a clearly losing argument.
There are others, but those are the big ones.
Honestly, they could have written "everything Judge Chupp did was wrong" and it would have conveyed exactly the same amount of information.
Except - no, it wouldn't. Because this list omits some things I would have expected.
(1) They don't seem to be arguing that it was error to exclude the withdrawn affidavits, or to refuse to accept substitutes.
(2) They don't seem to be explicitly arguing that Vic isn't a public figure.
Those are, IMO, pretty big omissions.
Ahhh. Ah. erm. Yeah.
I need a second.
(2) The only place that Vic denied the allegations is in the affidavit/unsworn declaration. *Which* *the* *court* *did* *not* *consider.* They do not inform the Court of Appeals of this minor triviality - not even in a footnote.
Given the contents of the deposition, that is blatantly dishonest. And clearly deliberately so.
I thought Beard and Bullock were incompetent. I did not think they would dive to that level of utter shenanigans with the court of appeal.
Do these people think that the law clerks aren't going to spot this? For reals?
Do they know how to think at all?
So naturally they lead by sacrificing 110% of their credibility on the very first argument of the brief.
This is really awful.
So they invested nearly as much effort (more, actually, given the quality of the arguments) on this as the rest combined.
Moving on - conspiracy.
(1) The court's decision to rely on the case from the analogous act and exclude any post-TCPA amendment was in error;
(3) The 7-day rule didn't apply;
(4) It was acceptable to attach the affidavits, despite Rule 59;
(5) The affidavits should not be excluded due to defects in form.
This section of the brief is 2 pages long.
So even if the 2AP comes in, it probably comes in without any of the attachments.
Not even a single cite to Lane v Phares.
I believe my initial view was that everything except a handful of claims were 99% certain to be affirmed, and the rest were in the 90% range.
I'll put everything at 99% now. No hesitation.