Thread by @AkivaMCohen

Hey, #LitigationDisasterTourists, it's time to look at the Ur-text of litigation disaster tourism, the decision on appeal from the place where, in many ways, all of this started:

For those of you who don't know the backstory, that's Vic Mignogna, a relatively famous anime voice actor with a long-whispered unsavory reputation as a sex pest.

Way back in (IIRC) 2019, those allegations exploded into public view at about the same time as the release of the Dragonball Super:Broly movie in which he played the lead character (it apparently involved screaming a lot, don't ask me, I'm not a DB guy)

Anyway, some anonymous twitter users kicked things off, and they then got RTed/backed up by two of Vic's co-stars, Monica Rial and Jamie Marchi, who each tweeted about their own experiences with Vic.

Vic's fans were ... how shall we put this ... not particularly pleased by this, and in a spectacular moment of self-ownership decided to harass people criticizing Vic, and particularly Rial, Marchi, and some other folks with platforms (like MarzGurl)

I say self-ownership because by doing that they kept the conversation about Vic not just ongoing but red hot, which, of course, is EXACTLY what any PR professional would tell you you want when you're in the news in a negative way

Rial's fiance, Ron Toye, got VERY fighty about standing up for his partner on Twitter (good for him, btw), and ended up tweeting in her defense and about Vic several hundred times.

Comicsgaters got involved, anti-me-too people adopted the case as a cultural touchstone, and shit got baaaad. A particular youtube shoutyman, Nick Rekeita (yeah, that's not how he spells his last name. He's wrong, it should be spelled that way) ...

crowdfunded a "litigation fund" for Vic and encouraged him to sue Marchi, Rial, and Toye for defamation.

Oh, and also his ex-employer, Funimation, which had fired him after doing an investigation of some incidents that it heard about

Always a wise choice in this type of situation, definitely good for your career prospects

In Texas.

Which had an antislapp statute.

Anywho, after (it appears) having multiple lawyers say that the case was a loser, Nick recommended that Vic look up his family attorney, Ty Beard - a texas lawyer with a trusts and estates practice who had NEVER touched a defamation case before in his career

What happened after that is Litigation Disaster history, on Disaster Rushmore with the Kraken suits and In re Gondor.

Beard opened by sending retraction demand letters claiming (among other things) that calling Vic a piece of shit was defamatory because he was not literal feces

that saying "WWJD? Light him on fire and send him to hell" was false and defamatory because Jesus spread a message of love and wouldn't send anyone to hell, and all sorts of other just PURE bangers

Those letters somehow went viral in the legal community (we don't need to discuss who helped with that, ok, I'm sure they feel bad enough as it is) and when I say viral, I mean VIRAL.

I literally heard reports from lawyers in Australia and Hong Kong about colleagues bringing it

up to them as an amazing "did you hear about THIS ONE?" joke.

Seriously, these letters were a worldwide laughingstock, and I mean that literally.

That resulted in vic fans and comicsgaters brigading the lawyers tweeting about it with "no, you don't understand, you're cherry picking, there's a real case here!" and pointing us to Nick's commentary on it.

Since Greg Doucette is fightier than even Ron, that launched the Threadnaught (long may she sail)!

Long story short, Vic got beat the fuck out of (@TXantislapplaw conducted a masterful deposition where Vic reenacted some of the abuse for the camera, while Ty performed about what you would expect for a non-defamation attorney if you also expected them to be lobotomized)

Of the 17 claims against the 4 defendants, all 17 were tossed, and the judge awarded attorneys fees to the defendants.

Then Vic appealed. And we have been waiting for the decision for, well, it hasn't been a short wait

Anyway, that's the background, let's get to the decision.

Spoiler: Vic loses again, 17-0 (all dismissals affirmed), plus the case gets sent back to the trial judge for cutting the fees he awarded too arbitrarily.

drive.google.com/drive/folders/…

There's a majority opinion, a concurrence in part and dissent in part (agreed that Vic should have lost, but thought the fee award should be left alone) and a concurrence (to separately say "but you don't have to award the full fee they're requesting). 3 judge panel, 3 opinions

But since all of the litigation disaster work is in the merits portion of it, and all 3 members of the panel agreed on that one, we'll just cover the majority opinion

The panel starts by setting up the legal background: there's an antislapp law, and here's what that means. Defendants have to show they're being sued for something covered by the law, then the Plaintiff needs to show that there's a factual basis for the claims

That's what happened in the trial court - the defendants showed the antislapp law applied, and then Vic, after repeatedly shooting himself in the foot through his own dick, failed to make a prima facie case, and it all got tossed. So now he's appealing

Hold on, wait, you probably want to read that second screenshot again.

The plaintiff in an antislapp case "withdrew the principal evidence supporting" his claim before the antislapp hearing? What kind of insane clown would make that choice?

Yeah. This one's a ride.

The court starts by recapping some of the factual background we talked about earlier. Also note that the court, like me and unlike Nick, correctly spelled his last name

Now we get to the analysis. The court starts with the procedural complaints - that the trial court should have looked at the evidence Vic tried to submit and should not have considered the evidence the defendants submitted - because the court can also END there

Please understand what this means. You're going to hear some people say "the appellate court said the defendants only won because Vic's lawyer screwed up and the court couldn't look at the right evidence!"

No.

What the court is saying is this:

"If we don't reverse the trial court's decisions about what evidence to look at, we affirm. If we do reverse it, we have to consider the evidence and decide whether to affirm or not. Since we're affirming the decision on what evidence to look...

at, we don't need to bother thinking about whether the evidence Vic now wishes the trial court had looked at would have made a difference"

In other words, the court didn't say one way or the other that evidence would have made a difference

And that, btw, is how appellate courts often work: if there's no reason to address a particular issue because it can't change the outcome, they don't bother with it

This is a litigation disaster tour, and it wouldn't be complete without some spectacularly bad procedural mistakes. Why is this on Rushmore?

Here's why.

In Texas, Rule 11 is the rule that says "Parties' agreements about how the litigation is to be conducted are binding and the court MUST enforce them"

Here, Beard and the defense attorneys agreed that Vic's response to the anti-slapp motion was due on August 30

To be clear, in case there's someone slow out there who somehow hasn't grasped this a "response to a motion" is not "your brief in opposition to the motion". It is "all of the arguments and evidence you want the court to consider as a reason to deny the motion"

Beard managed to fuck this up, with a slight side of COMPLETELY UNNECESSARY notary fraud that, well, is going to loom quite large in a minute or two

Just in case you didn't catch what happened: to oppose dismissal and meet his burden of establishing a prima facie case on each of the elements of his client's claims, Beard submitted sworn affidavits from Vic and two other people.
Which he notarized as signed in Tyler on 8/30

This was a slight problem, since public information put those three people in completely different places than Tyler, Texas (and not "a community over", either), which is why defense counsel suddenly went "let me see your records"

ALSO, the signature on Vic's affidavit was pretty clearly forged (to all appearances they took the digital image of his "Vic" signature from one of his album covers and typed in "tor" in a matching font and yes I know but this is a real thing)

None of this, btw, needed to happen at all.

Texas allows unsworn declarations to be submitted into evidence. They didn't need to be notarized. Ty never needed to lie about notarizing them.

Anyway, Beard finally gets the Hellfiling in and onto the docket on September 3. Why do we call it a Hellfiling? Read the footnote

What does the footnote mean by that? I mean, things like "See ex. ____" all over the filing, arguments that just trailed off, etc.

Also, there's no reason at all for the court to mention this on appeal. It has no impact at all on the outcome.

So why do they bring it up?

There's only one reason to mention that, and it's to convey that they think Ty Beard is a fucking liar and they don't believe for a second that the opposition was filed late because of "technical difficulties". That's "you filed late because you were still working on it"

Also, I really enjoy the subtle shade about the Dahlin aff, which was submitted to say "Monica claims I saw something, but I don't remember seeing it"

Here's the thing. An affidavit saying "I remember that night clearly, & the thing you say happened never happened" is meaningful

An affidavit that merely says "you say XYZ happened several years ago, but I don't remember that" ... says nothing meaningful at all. Because it doesn't rule out "yes, that happened, I've just forgotten about it since"

Any competent litigator knows the difference

And now we get to the Second Amended Petition, which Beard filed on 9/3 in a desperate attempt to correct the defects in the Hellfiling: new factual allegations, new evidence, and new versions of the three affidavits, this time as unsworn declarations

And then we have the Custer-at-Little-Bighorn of all strategic blunders. Faced with accusations that he fraudulently notarized the affs, and confident that he's sufficiently replaced them, Beard opts to protect himself rather than his client and WITHDRAWS them

This, btw, is insane. The appropriate thing to do in that situation is to fall on your sword, say you fucked up, and ask the court and the parties to treat those "affidavits" as unsworn declarations.

That probably opens you to discipline for the fraud, but at least it keeps the

evidence you think your client needs in the record. (And btw, withdrawing the affidavits doesn't mean the fraud never happened or you're home free on discipline).

Instead, he said to the court "don't consider these documents".

Defendants, of course, objected to the attempt to end-run the Rule 11 agreement - and Funimation pointed out "hey, there's actually a rule against trying to submit evidence this way"

The trial court basically agreed with the defendants - it let Vic file his response late due to the "technical defect", but it wouldn't allow them to argue based on anything else filed after 8/30, knocking out the Second Amended Petition and its attachments. And that's affirmed

Again, this is obviously the correct result. Beard agreed that Vic's response to the TCPA motion would be complete on 8/30. Any document you're trying to use in opposition to the motion is part of the "response to the TCPA motion".

So all of that was out. And Vic withdrew his own affidavit that HAD been filed by the deadline, along with the Slatosch and Huber affidavits. So there was NOTHING from Vic, Slatosch, and Huber on the record the Court could consider as it decided the motion

What about the evidence the Court DID consider, from the Defendants?

Slight problem - Vic didn't properly preserve his objection to it, so the court couldn't have been wrong to consider it

Again, don't misunderstand what the appellate court did here. It didn't say "the trial court shouldn't have considered this evidence, but Vic's lawyer screwed up so we can't reverse".

It said "we don't need to decide that, because we can't reverse anyway"

Substantively, the objections were nonsense (for the reasons we discussed way back when). And also, here's the court explaining that OF COURSE this was a public figure defamation case to which the TCPA applied

Btw, this was one of the key "you hired a WHAT KIND OF lawyer to handle your DEFAMATION case?" moments of the litigation. Beard's opening pleading for Vic spent ink establishing JUST HOW FAMOUS Vic was, which, of course, is exactly what you don't want for a defamation case.

Why? Because not only had Beard (and Nick) never tried a defamation case before, but it appeared that they misunderstood "actual malice" as "wants to hurt the guy" instead of "knowingly lying or just not caring if it's true despite doubting it" so they thought it didn't matter

Basic legal research could've helped. Either that never happened or these guys were incapable of understanding what they found, and both of those options are entirely plausible.

Anyway, with those evidentiary objections out of the way - the trial court correctly considered the Defendants' evidence and correctly ignored Vic's - the outcome is a foregone conclusion.

Anyway, I've got other stuff to take care of so I'm going to stop this here - you can read the rest of the opinion yourself if you want the claim by claim breakdown. But this is where the rubber met the road - utterly disastrous litigation by a plaintiff already behind the 8-ball

meant that he walked into a heavyweight boxing match with both arms shackled behind his back and his eyes sewn shut.

The outcome of this suit was never in doubt, but hiring Beard made it happen faster.

/fin