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Good evening, #threadnought -

I hit my goals earlier than I expected today, and I've had a couple of people ask me what @RekietaMedia was talking about in this video. I'm not going to do a full Whipplecast, but let's see if we can figure it out.

@RekietaMedia I'm going to run this at 2x, and I'm not stopping for everything because I'd be here all night, but let's see if we can at least hit the low points. I'll try to remember to give timestamps, but no promises.
@RekietaMedia 0:37 - apparently, this is a "quick hit legal infusion" which is an interesting term, since it seems to suggest that legal knowledge can flow into someone like some sort of (presumably non-recreational) IV pharmaceutical.
@RekietaMedia 2:05 - A lawyer working on a case needs to read every stinking word of the legal filings. And I think it's important that lawyers who are going to explain filings to the public read filings with reasonable care. But I've never understood the "read it all out loud" thing.
@RekietaMedia I've always thought that part of the benefit of having a lawyer to explain it to the public comes from the lawyer's ability to summarize things, and explain what is critical, what is inside baseball kind of technical arguments, and, in the case of Ty's work, what makes no sense.
@RekietaMedia Nick does say that this is a summary, so I'm not going to expect a great deal of depth of analysis, or comprehensive coverage. (Not that I would anyway.) And I won't pick (much) on gaps in that area. But I will - not expect, exactly, let's say critique -deviations from accuracy.
@RekietaMedia 2:40 Nick does set out the standard that Ty has to meet correctly - "to by clear and specific evidence make a prima facie case for each essential element of a particular claim." That's something that, in fairness, Nick consistently gets right.
@RekietaMedia The difficulty tends to come when Nick gets to the part where the meaning of the component parts of that standard becomes important. So with that in mind, let's move on.
@RekietaMedia 3:20 - "what they're going to do is try to make Judge Chupp's hearing and his handling of the documents a referendum on what is exactly a prima facie case."

What does this even mean? No, seriously, I'm actually asking what this actually means.
@RekietaMedia First of all, how do you make the "handling of the documents a referendum on what is exactly a pima facie case"?

Wait, let's back up. Because It's not like "referendum" is actually a word that describes in what happens in an appeal.
@RekietaMedia I think Nick's trying to say they're going to try to get the court to clarify what "prima facie" means, but that's just a guess. It's also dumb. It's dumb because this has already been clarified by the Texas Supreme Court (see In re Lipsky 460 S.W.3d 579 (Tex 2015).
@RekietaMedia It's also dumb because if that's what you are going to do, you sure as god made little green apples don't do that with the kind of brief Ty filed.
@RekietaMedia 3:33. Yes, Nick. Prima facie is indeed a low bar to overcome. If it was any lower a bar it would be subterranean. Vic's entire team collectively stubbed their toes on it and spectacularly faceplanted.
@RekietaMedia 3:38 "it [prima facie] typically means that you just have to provide enough enough allegations so that the defense is aware what your what you're actually suing over what the lawsuit is about."

Oh FFS. Nick. Come on. No. How are you *still* messing this up. How is it possible?
@RekietaMedia It's true that "provide enough enough allegations so that the defense is aware what your what you're actually suing over" is a thing in law. In fact, it's even a thing in Texas law. But it's not a thing called 'prima facie.'

It's a thing called 'notice pleading.'
@RekietaMedia Seriously, we've been trying to explain this to you since, what? June? "Be aware of what you are being sued over" is like the definition of notice pleading. See, eg, Low v Henry, 221 S.W.3d 609, 612 (Tex 2007).

Notice pleading ≠ prima facie.
@RekietaMedia 4:20 - doubling down, apparently: "for a prima facie analysis they have to go ahead and decide whether or not there are sufficient facts present to give appropriate notice to the defense and to tell the court and the defendants what actually we're gonna be talking about"
@RekietaMedia I mean, this ISN'T HARD, Nick. See In re Lipsky. Again. "a "prima facie case" has a traditional legal meaning. It refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted." 460 SW 3d at 390.

Do you see the difference?
@RekietaMedia Apparently not, so let me set it out:
"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.
@RekietaMedia It's right there, plain as day, in the language of the leading Texas Supreme Court case on this topic.

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.
@RekietaMedia 5:04 So "it doesn't need to lay out an entire case" isn't quite true. You can have more stuff that you show later, but you do have to show enough to show that, in fact, yes, you do HAVE a whole case. Enough that you would win unless the other side contested that evidence.
@RekietaMedia Again, you could have more in your pocket for later - there's no need to show everything you have, but it's got to be the minimum evidence that, if it isn't rebutted, would prove your case.

It doesn't have to be able to withstand rebuttal to get past TCPA - that comes later.
@RekietaMedia 5:10 - So, yes, for the purposes of prima facie analysis, the claims are taken as true (although there is a caveat there regarding sham affidavits). In other words, the defense doesn't get a chance to rebut at this stage.
@RekietaMedia 5:22 - "this is not the stage where you have to prove out the elements of the case."

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.
@RekietaMedia How? This is not news to anyone who has paid any amount of attention to this case, and it should not be news to anyone who has done a minimal amount of research on the TCPA in a minimally competent fashion.
@RekietaMedia 5:30ish - "you're gonna be defending against this type of thing, or this specific thing, and they have enough facts to say that yeah we think that what you did cause the damage right that's it, that's a basic prima facie case."

I don't even know what Nick's trying to say here.
@RekietaMedia What's "enough facts"? If it's enough facts that, if they're not rebutted, Vic would win the case, then yes. If it's literally anything else in the universe except that, then no.
@RekietaMedia 6:05 - "a basic prima facie case is just kind of enough facts to make the allegations known and understood by the court and the defendants, right..."

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.
@RekietaMedia Seriously, though, if that's what Nick and Ty think 'prima facie' means, than a whole lot of stuff just became a lot more clear.

Including Vic's potential path to victory in a malpractice suit.
@RekietaMedia Nick's discussion of evidence isn't exactly on the mark. (Pointing to things you think are hypocritical in how the defendants acted is unlikely to be circumstantial evidence sufficient to defeat a TCPA motion.) But it's not far enough off to make me spend more time on it.
@RekietaMedia 7:30 - "how they should have known they were lies because Vic said this is all false."

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.
@RekietaMedia And, no, "failing to retract" is also not evidence of either falsity or actual malice. Again, there is no requirement that the defendants believe Vic, and unless you can show that they *did* believe Vic but still refused, it's not actual malice.
@RekietaMedia How an actual lawyer could actually believe that "Vic said it was false but they said it anyway" is proof of actual malice is beyond me. FFS - they test actual malice on the bar exam.
@RekietaMedia 7:48 - "the strategy behind this is to really hammer home the idea of what is a prima facie showing that's what they're going for..."
@RekietaMedia Now, it is true that I am, as Nick so often points out at great length, fat. It is also true that, for most intents and purposes, I do not practice. But if I was going to really hammer home the idea of what is a prima facie showing, I don't think I'd do it the way Ty did.
@RekietaMedia For one thing, I think I'd start by setting out, in, y'know, *words*, the meaning of prima facie. And when I say that, I don't mean Nick's version, I mean the Texas Supreme Court's one. And then I'd explain how the evidence shows that, unless it is rebutted, Vic would prevail.
@RekietaMedia But I'm a fat academic who wears bad sweaters, so my views on this are clearly invalid.
@RekietaMedia 8:00 -
"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 ....
@RekietaMedia Ok. Nick, come on. *READ* *THE* CASES.*

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.
@RekietaMedia 8:15 "what they're going to do here especially if they get oral
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."
@RekietaMedia How it works? Not that way.

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.
@RekietaMedia 8:33 - Nick, it's literally not close to a preponderance of the evidence standard. What it is, is a *presence* of the evidence standard. As in, you need to show clear and specific evidence that, if not rebutted, would be sufficient to prove the claim.

That's the requirement.
@RekietaMedia 8:50 - Nick talking about district courts misunderstanding what prima facie means is kind of really funny by this point, given how little Nick understands about what prima facie means.
@RekietaMedia 9:20 - and now we're back to making this a "referendum" about what prima facie means.

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.
@RekietaMedia I mean maybe that last bit was harsh, but it's true. The brief makes no effort to state the rule for prima facie (which is in In re Lipsky), and it makes no effort to show how the evidence presented meets that standard. It just asserts that it does.
@RekietaMedia If you want to set up a legal argument - which they could have (but didn't) do on a different issue (TI) - what you do is more this:
"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...
@RekietaMedia ...that it is not necessary to prove Y if you can prove Z. This is a better standard because reasons, and coincidentally we can prove Z."

I mean, that's massively simplified (obviously) but that's how you try to get a clarification on the law.
@RekietaMedia When you just go "We have to prove Y. We have facts A, B, and C. We proved Y," courts tend to not view that as an attempt to get clarification on a legal point. Instead, they tend to view that as a reason to dispose of the case in an unpublished, brief, per curiam order.
@RekietaMedia And now there will be a brief delay because I accidentally closed the tab and now I have to click through a bunch of skip ads.
@RekietaMedia 9:30 - Actually, Nick, this is neither a double-edged sword nor a two-pronged attack. It's an opportunity for the appeals court not so much to remind the district court of anything as it is a chance for them to ask Ty if he bothered to read, among many other things, In re Lipsky.
@RekietaMedia 9:50 - And now we're onto whining about how the defense is going to go with procedural issues instead of dealing with the nonexistent merits of the case.

That's particularly rich given the number of pages that were spent arguing for the exclusion of defense evidence.
@RekietaMedia 10:03 - "the second amended petition shouldn't be included and these unsworn declarations shouldn't be included well why shouldn't they well because they're devastating to our case so they shouldn't be included"

There are lots of reasons they shouldn't be included.
@RekietaMedia Being devastating to the defense's case isn't one of them.

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.
@RekietaMedia Why? Because if you - and your witlesses - are willing to lie about the little things, like who was where when what was signed, what else are they willing to lie about? It's clear that the whole 'oath' thing wasn't much of a deterrent, so how do you trust any of it?
@RekietaMedia That goes double for Vic's affidavit, which contradicts without acknowledgment or explanation things that Vic said in the deposition. That's called a sham affidavit, and you can't trust those.
@RekietaMedia And double it again for that time when Vic later testified under oath that he, Vic, did not in fact read the things that he, Vic, had previously sworn under penalty of perjury that he, Vic, had read.

You don't reward that kind of thing, and you can't trust it.
@RekietaMedia You also don't - particularly in a case that allegedly involves the plaintiff attempting to use the costs of litigation to punish the defendants - reward the plaintiff for deliberately attempting to work a surprise on the defense.
@RekietaMedia And when you say at the hearing that you always intended the 2nd AP to be the TCPA response, not the one that you filed days earlier and the defense spent the weekend responding to, that's what you've just admitted to doing.
@RekietaMedia All of those things are about fundamental fairness and justice in litigation. All of those things are about an attorneys ethical duties. None of those things are technicalities.
@RekietaMedia But let's assume that Ty is actually trying this stupid-as-hell "2-prong" attack Nick is making up out of the clear blue sky.

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.
@RekietaMedia 10:30 - "to question whether or not a perceived procedural defect or a defect inform on some of the evidence is sufficient to is sufficient sufficiently deficient to prejudice a plaintiff out of his own claims."
@RekietaMedia Seriously, if you're going to try that at all, it really helps to admit to the defects (in this case, the defect would be Ty Beard). And to argue that point clearly, cogently, explicitly, or, indeed, at all.
@RekietaMedia 10:52 - "the argument would be he brought the stuff the defense just objected to how it was being entered therefore it didn't exist but it's right there looking at you"

I gotta say - if that's the play, just going ahead and citing to the excluded evidence is a bold approach.
@RekietaMedia 11:00 "if the appeals court says that prima facie is anything less than what prima facie is it sets up a potential further appeal to the Supreme Court."

(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.
@RekietaMedia (3) By all means, appeal to the Texas Supreme Court. It's a bunch more fees, and another year or two of the judgment accruing interest at 5% per annum.
@RekietaMedia 11:19 - "because prima facie we have an understanding of what it means"

We have, I would hope, an understanding of what prima facie means. But I still don't think Nick does.
@RekietaMedia Next 45 seconds or so is Nick whining and complaining about a standard that Nick still doesn't understand, but which Nick really should have tried to understand before referring Vic to his family friend - and Nick maybe was kind of negligent in not ensuring that Ty understood it.
@RekietaMedia 12:04 - "it sets up the appeals court to render a decision that says yeah I mean all he has to do is show us what they said why it hurt him that it was wrong and that it caused him damage like that's that's all he has to do."

Yeah, Nick. The 2nd CoA is gonna overrule Lipsky.
@RekietaMedia 12:53 - "they don't even really contest that it that he suffered damages they only contest that the damages were caused by them"

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.
@RekietaMedia And probably more, but I can't be bothered to dive deeper.

13:29 "hope you guys found this informative."

Not so much, but I'm glad it's over.
@RekietaMedia Final opinion:
@RekietaMedia Nick makes - and will make, and can make - no coherent argument for why the thread isn't on the mark. As for teaching, I gave it a solid, good faith effort in June, when (among other things) I tried to explain why notice pleading wasn't enough.

@RekietaMedia Nick, to put it mildly, didn't grasp the issues at that point. Nick failed, as he did in that video, to grasp the basics of In re Lipsky. Nick missed the hint that Van der Linden was a case worth reading.

It's hard to teach someone who is invested in the lessons being wrong.
@RekietaMedia And, unfortunately for everyone, by the time June rolled around Nick was substantially and deeply invested in being right about Vic having a strong case.
@RekietaMedia You could always, I don't know, read the filing ahead of time, do research on key points of law, and have prepared to explain what's in key citations and so on. Just spitballing here.

@RekietaMedia Thought about it. I'm not great with tech, my available space half the year is basically an echo chamber with train noises in the background, and, to be totally honest, it's just never appealed that much to me.

@RekietaMedia I do occasionally regret running the blockchain, and I've been unblocking people in threads as I run across them. But the constant chorus of "heh, dumbfart's fat" got a bit too monotonous and boring.
@RekietaMedia In fairness, it is depressingly easy to treat everything like a law review article. Plenty of examples of that, some of them from me. That said, the definition of "prima facie" isn't exactly the kind of topic that meets law review originality standards.

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