What does this even mean? No, seriously, I'm actually asking what this actually means.
Wait, let's back up. Because It's not like "referendum" is actually a word that describes in what happens in an appeal.
Oh FFS. Nick. Come on. No. How are you *still* messing this up. How is it possible?
It's a thing called 'notice pleading.'
Notice pleading ≠ prima facie.
Do you see the difference?
"Appropriate notice" isn't what you need. Or, I should say, needed - because we're way past the provide evidence point. What you needed was enough evidence to establish the case unless that evidence was subsequently rebutted.
I don't get it. It's like you keep circling around to step on this same exact rake over and over and over. Like you'll run around the corner and this time it won't be there.
It doesn't have to be able to withstand rebuttal to get past TCPA - that comes later.
This is the stage where you have to show a prima facie case by clear and specific evidence. Meaning you have to have something that, if not rebutted later, would establish each element.
I don't even know what Nick's trying to say here.
No. That's wrong. As in "not right." As in so far from right that right is lost to view due to the curvature of the universe.
Including Vic's potential path to victory in a malpractice suit.
Yeah, no. There's no right to be believed. Even if Vic directly told them stuff was false isn't evidence of actual malice, because nobody has to believe Vic.
"what they're going for here in my opinion and that is to make the appeals court issue a decision about what prima facia actually means how high of a bar is it"
Excuse me for a sec while I ....
The Court of Appeals isn't about to issue a decision about what prima facie means because THE TEXAS SUPREME COURT ALREADY DID THAT. See - all together now, in unison and four part harmony and stuff - In re Lipsky.
argument [...] or perhaps in their response brief they're going to lay out that all of the things that are that the defense is likely to raise in their response all of this goes against the idea of prima facie."
Oral argument is not guaranteed, so only a fool would save any argument for oral argument. And the reply is restricted to things actually said in the response brief - you can't introduce new arguments - so waiting for that is a pretty bad idea too.
That's the requirement.
To review: (1) the Texas Supreme Court has already explained this; and (2) Ty's brief is a really bad way to try to set that up, because the courts like to see legal arguments in briefs.
"In case X, this court held that Y is an element. However, the facts in that case were different, and in Case A a different court held...
I mean, that's massively simplified (obviously) but that's how you try to get a clarification on the law.
That's particularly rich given the number of pages that were spent arguing for the exclusion of defense evidence.
There are lots of reasons they shouldn't be included.
Among the real reasons:
(1) Attempts to use falsely notarized affidavits should not be rewarded. This should be a no-brainer, really. If you fake the notarization, the affidavit is history.
You don't reward that kind of thing, and you can't trust it.
Part 2 - the technicalities part - is set up even worse than part 1 was. Because they didn't bother to even admit that the affidavits were withdrawn.
I gotta say - if that's the play, just going ahead and citing to the excluded evidence is a bold approach.
(1) I think Nick meant "if they say it's anything *more* than what it is.
(2) They wont; they've read In re Lipsky.
We have, I would hope, an understanding of what prima facie means. But I still don't think Nick does.
Yeah, Nick. The 2nd CoA is gonna overrule Lipsky.
Nick forgot the part where they contest that the statements were false. And the part where they contest that they were made with actual malice.
13:29 "hope you guys found this informative."
Not so much, but I'm glad it's over.
It's hard to teach someone who is invested in the lessons being wrong.