Victor Mignogna v. Funimation Productions, LLC, et al. (2019) - Vic's lawsuit against Funimation, VAs, and others, for over a million dollars.

[Urbanmech]

Oregon lawtwatter lady did a 29 tweet spread on the appeal brief, TLDR its bad.

Cat Whisperer 🐈 on Twitter: "Thread on opening brief filed by appell…

archived 21 Feb 2020 05:28:23 UTC

archive.is

 

[LawTwitter is Dumb]

Oregon lawtwatter lady did a 29 tweet spread on the appeal brief, TLDR its bad.

https://archive.li/YnDCK

I'm pretty sure someone did a TL: DR and it's something like

"Should've gone way past any word limit, and found conclusions it doesn't need as its a brief with things already "concluded"" or something like that, if someone can cross post wherever that is that'd be good. I'll try to find it though.

 

[774]

Apparently he's blind, because In Re Lipsky's opinion on the matter is there on page 20
Ver archivo adjunto 1154688

He didn't even bother to follow up the citation to see what it actually says (though I don't think anyone really expected that to happen in the middle of his stream), but he made a big deal out of "not a heightened evidentiary standard" not being in quote marks.

 

[TherapyMan]

He just said that "clear and specific" is a higher standard than "preponderance". I thought it was lower; at least that's what I've heard. Is he, perhaps, confusing it with "clear and convincing", or am I the one confused?

If you're confused, it's not your fault; it's the fault of the morons who wrote the TCPA and invented this pseudo-evidentiary standard without providing clear guidance as to what it means. Lipksy provides some guidance, but even then it is not exactly clear what clear and specific evidence really means in relation to the ordinary standard to show a prima facie case.

The relevant language from Lipsky:

"The applicable evidentiary standard is generally determined by the nature of the case or particular claim. Criminal cases require proof beyond a reasonable doubt, a near certainty, whereas civil cases typically apply the preponderance-of-the-evidence standard, that is, a fact-finder's determination that the plaintiff's version of the events is more likely than not true . . . . Though the TCPA initially demands more information about the underlying claim, the Act does not impose an elevated evidentiary standard or categorically reject circumstantial evidence.   In short, it does not impose a higher burden of proof than that required of the plaintiff at trial."

The Supreme Court of Texas has stated that circumstantial evidence can be used to satisfy the clear and specific standard, but really hasn't given a lot of contours to what the phrase is intended to mean. As I read the decision, the clear and specific standard falls somewhere between preponderance and plain old prima facie (even though the language of the statute seems to imply otherwise), but what distinguishable characteristics are dispositive, I could not tell you. I don't know why the the court in this instance chose to mix a burden of production (prima facie) with a burden of persuasion (preponderance) in order to illustrate the standard, as to me, it only muddies the issue further.

 

[Urbanmech]

I'm pretty sure someone did a TL: DR and it's something like

"Should've gone way past any word limit, and found conclusions it doesn't need as its a brief with things already "concluded"" or something like that, if someone can cross post wherever that is that'd be good. I'll try to find it though.

It's also a De Novo appeal so I assume the briefs (Plaint/Defend) will be completely different in style. Plaintiff is just trying to state the facts to the case and the defense will use the judges decision to reinforce their brief/win. Big problem is Chupp didn't exactly leave a lot for the defense to use.

 

[PrinceofAllCucks]

I'm pretty sure someone did a TL: DR and it's something like

"Should've gone way past any word limit, and found conclusions it doesn't need as its a brief with things already "concluded"" or something like that, if someone can cross post wherever that is that'd be good. I'll try to find it though.

So, they're more or less insulting them for making the brief clear and concise within the word count and to contest the rulings made in the court, a.k.a what they're fucking supposed to do?

 

[Immortal Technique]

I blame LegalBeagle and Nick for all these faggot YT lawyer channels coming out of the woodwork. At least the Viva Frei(?) guy at leasts put out interesting stuff. Beagle and Nick aren't the first, but the ones that have tapped into "normie" tube and the other tapped into the superchat aspect.

 

[BeHappyForever]

Appellees’ briefs are due on Tuesday, March 10, 2020.

 

[LawTwitter is Dumb]

So, they're more or less insulting them for making the brief clear and concise within the word count and to contest the rulings made in the court, a.k.a what they're fucking supposed to do?

Yea pretty much.

 

[TheClappening]

If you're confused, it's not your fault; it's the fault of the morons who wrote the TCPA and invented this pseudo-evidentiary standard without providing clear guidance as to what it means. Lipksy provides some guidance, but even then it is not exactly clear what clear and specific evidence really means in relation to the ordinary standard to show a prima facie case.

The relevant language from Lipsky:

"The applicable evidentiary standard is generally determined by the nature of the case or particular claim. Criminal cases require proof beyond a reasonable doubt, a near certainty, whereas civil cases typically apply the preponderance-of-the-evidence standard, that is, a fact-finder's determination that the plaintiff's version of the events is more likely than not true . . . . Though the TCPA initially demands more information about the underlying claim, the Act does not impose an elevated evidentiary standard or categorically reject circumstantial evidence.   In short, it does not impose a higher burden of proof than that required of the plaintiff at trial."

The Supreme Court of Texas has stated that circumstantial evidence can be used to satisfy the clear and specific standard, but really hasn't given a lot of contours to what the phrase is intended to mean. As I read the decision, the clear and specific standard falls somewhere between preponderance and plain old prima facie (even though the language of the statute seems to imply otherwise), but what distinguishable characteristics are dispositive, I could not tell you. I don't know why the the court in this instance chose to mix a burden of production (prima facie) with a burden of persuasion (preponderance) in order to illustrate the standard, as to me, it only muddies the issue further.

TLDR the TCPA is fucked.

Been reading the filing a little more closely, and I have to say, the causes of action besides defamation against Jamie seem kind of weak. For example, they make a pretty good case for vicarious liability against Monica, but for Jamie their main argument is "well... she's kind of like Monica, so she's also vicariously liable." I'm surprised they never argued about Jamie's directorial positions and help shore up vicarious liability that way.

There was also TI-PBR, where the argument is "Jamie went to these conventions, so it's likely that she interfered with Vic because of that." Not particularly convinced.

I mean her case has always been the weakest, so I guess it's best to try and possibly not win, than to not try at all and for sure not win.

I do like how the brief cuts past the white noise of the convention rumors and instead focuses on their individual statements, then goes to show how they took something that was maaaaybe a matter of public concern (Vic loves his warm Lasagna hugs), and twisted it into "Vic is a rapist." The argument they make for conspiracy not being shielded by TCPA is actually pretty clever.

 

[Kosher Salt]

From my understanding it is not part of the record right now, which is the reversible error Vic is Appealing.

Chupp initially said he would likely consider it, then later rejected it and said it wasn’t admissible.

The 2AP is "on the record" until or unless the Court of Appeals says that it's not. Chupp didn't strike it... he just didn't consider it. Nobody fucking knows what that means, because he was logically (and legally) required to do one or the other: either consider it, or strike it. He did neither.

Basically, he punted it, because he knew the court of appeals would have to unravel it. Why put the time and work in when they're doing a de novo review? Hmm?

Reading the brief point per point, I'm no lawyer in anyway nor I have any knowledge about law (Ace Attorney is just a nice brand of logic), can't explain why lawtwits are spinning everything as a big failure while it's not and even one as me can understand the points made. Guess they're in for a nasty surprise in the next hearing, then.

That's actually something that was discussed here on the original petition: it clearly presents a story. I realize that we got all in an uproar over the TCPA debacle, but actually the original petition was pretty well received.

 

[Botchy Galoop]

but what distinguishable characteristics are dispositive, I could not tell you. I don't know why the the court in this instance chose to mix a burden of production (prima facie) with a burden of persuasion (preponderance) in order to illustrate the standard, as to me, it only muddies the issue further

Thanks for the great distillation of the issues from which the appellant and appellees(sp) are approaching this TCPA ruling. Beard et al, are arguing from a prima facie interpretation, whereas the defendants will be arguing from a preponderance interpretation. I am interested to see how or if the CoA clarifies this. Or will they punt? Badly written laws are bad.

 

[TherapyMan]

I'm pretty sure someone did a TL: DR and it's something like

"Should've gone way past any word limit, and found conclusions it doesn't need as its a brief with things already "concluded"" or something like that, if someone can cross post wherever that is that'd be good. I'll try to find it though.

As much I'd like to dunk on this lady (I mean, Cat Whisperer, really?), I find that I cannot do so. Having written and read a number of appellate briefs myself, I cannot say that this woman is terribly off-base with a lot of her critiques as to the form of the brief and commentary about the general posture of appellate practice expectations (bear in mind, I have a LIMITED amount of practical experience in this area, so take what I say with a grain of salt when evaluating it next to practicing attorneys). Where her and I tend to differ is the relative weight of a lot of her critiques. Yes, previewing the argument with the issue statement is a good idea, especially when you're trying to CALI in your appellate advocacy class, but it's not a mandatory organizational feature of a brief. Yes, being argumentative in the statement of facts is bad. Yes, some arguments could have been cut, while some should have probably gone through with a more thorough legal analysis. Yes, (this isn't an issue she raised but I observed), there should have been more stylistic consistency within the document itself with regards to how certain phrases and formatting decision were used. These are ultimately minor issues that will likely not affect the outcome of the case, however. They're more just points you'd see doled out to distinguish an A from a B in a legal writing class.

While I would still characterize this appellate brief as the best work product Ty & Co. have put out so far, I still wouldn't characterize it as an exemplary appellate brief. There are many organizational and argumentative decisions that Ty and Co. have done I personally wouldn't do and are not as effective as they could have been (as well as some pretty noticeable tap-dancing around weak spots in the argument), but it's not really immensely important that the brief be the best possible presentation of the argument, only that it do its job to argue relevant points. Compared to the other trash fire filings in this case, this is like a gold nugget in a pile of shit.

I look forward to seeing the Appellees' response brief.

 

[AnOminous]

As much I'd like to dunk on this lady (I mean, Cat Whisperer, really?), I find that I cannot do so.

I can. She spent a lot of words critiquing a brief while apparently being completely unaware of the applicable standard of review, which is de novo. She stated that the plaintiff should have argued about what specific mistakes Chupp made, and while those mistakes and inapplicable standards and bad procedure were bad and people have been fairly obsessed with what he actually did, it's irrelevant.

The appeals court will approach this de novo, as if they were the trial court, and they don't need to conclude Chupp made any specific error, distinguish between prejudicial and harmless error, analyze whether there was an abuse of discretion or anything, really, other than did he reach the proper conclusion.

If the proper conclusion was to deny the TCPA, and Chupp made any other decision, he gets reversed, period. So wasting limited words, when they only have 15,000 for the entire case, would be idiotic. She recommended idiocy.

And she recommended idiocy because, genius appellate lawyer that she is, she is apparently unaware of the applicable standard of review, and yet wasted a lot of time arguing about the wrong standard, and arrogantly insulted the plaintiff for instead actually just applying the proper standard.

 

[Urbanmech]

I can. She spent a lot of words critiquing a brief while apparently being completely unaware of the applicable standard of review, which is de novo. She stated that the plaintiff should have argued about what specific mistakes Chupp made, and while those mistakes and inapplicable standards and bad procedure were bad and people have been fairly obsessed with what he actually did, it's irrelevant.

The appeals court will approach this de novo, as if they were the trial court, and they don't need to conclude Chupp made any specific error, distinguish between prejudicial and harmless error, analyze whether there was an abuse of discretion or anything, really, other than did he reach the proper conclusion.

If the proper conclusion was to deny the TCPA, and Chupp made any other decision, he gets reversed, period. So wasting limited words, when they only have 15,000 for the entire case, would be idiotic. She recommended idiocy.

And she recommended idiocy because, genius appellate lawyer that she is, she is apparently unaware of the applicable standard of review, and yet wasted a lot of time arguing about the wrong standard, and arrogantly insulted the plaintiff for instead actually just applying the proper standard.

Yea that was the feeling I was getting with her rant and the cherry on top is she prefaced it with "I don't know how things work in Texas". Like wtf her RETIRED ass couldn't even be bothered to brush up on it nah why do that when she can use her own standards to dunk on it.

 

[AnOminous]

Yea that was the feeling I was getting with her rant and the cherry on top is she prefaced it with "I don't know how things work in Texas". Like wtf her RETIRED ass couldn't even be bothered to brush up on it nah why do that when she can use her own standards to dunk on it.

Well how it works in Texas is when you file an appeal you actually find out what the relevant standard of review is first.

Maybe that's not how they do it in Crazycatladyland.

 

[TherapyMan]

I can. She spent a lot of words critiquing a brief while apparently being completely unaware of the applicable standard of review, which is de novo. She stated that the plaintiff should have argued about what specific mistakes Chupp made, and while those mistakes and inapplicable standards and bad procedure were bad and people have been fairly obsessed with what he actually did, it's irrelevant.

I'm actually a bit perplexed by what you're getting at here.

I understand that de novo review essentially means that the COA is not looking for an abuse of discretion or determining whether the issue was prejudicial, but the Appellant's brief itself coaches these ideas in terms of how the trial court erred. I also get that it's a fuck up on the Cat Lady's part to say in her examples that she would have used phrases such as "the court abused its discretion." She admits at the beginning she doesn't know Texas law and is relying entirely on the four corners of the brief to inform her opinion, from which it is not apparent what the proper standard of review is.

I don't know if this has something to do with the format that is specific to Texas, but it would seem to me if that the argument being previewed is stating that the trial court erred, then it would be useful to highlight how exactly it erred. I don't disagree with you that it is not necessary to consider whether the trial court erred, but it can be rhetorically useful to do so, especially when it can be used to highlight the applicable analysis or anticipate potential arguments made by the appellees.

So yeah, are you right about her being wrong about the standard of review? Sure. Does it really matter to me in assess her critiques as to the form and organization of the argument? Well no, not really, as she stated upfront that she wouldn't be really providing meaningful legal analysis, so I didn't really expect that much of her.

 

[AnOminous]

So yeah, are you right about her being wrong about the standard of review? Sure. Does it really matter to me in assess her critiques as to the form and organization of the argument?

The standard of review determines the form and organization. It is the single most important thing about it. It determines what you include and what you disregard. She was dumbly insisting the plaintiff should have included material that would have taken thousands of words to include without any indication of what should have been cut to make room for absolute irrelevancies.

Her opinion was, in a word, dumb.

 

[Urbanmech]

The standard of review determines the form and organization. It is the single most important thing about it. It determines what you include and what you disregard. She was dumbly insisting the plaintiff should have included material that would have taken thousands of words to include without any indication of what should have been cut to make room for absolute irrelevancies.

Her opinion was, in a word, dumb.

Yea just seemed like typical lawtwatter shit, be either vague or ignore reality to make yourself seem smart. And they say Chris Hook made lawyers look bad......

 

[Kosher Salt]

I'm actually a bit perplexed by what you're getting at here.

I understand that de novo review essentially means that the COA is not looking for an abuse of discretion or determining whether the issue was prejudicial, but the Appellant's brief itself coaches these ideas in terms of how the trial court erred. I also get that it's a fuck up on the Cat Lady's part to say in her examples that she would have used phrases such as "the court abused its discretion." She admits at the beginning she doesn't know Texas law and is relying entirely on the four corners of the brief to inform her opinion, from which it is not apparent what the proper standard of review is.

I don't know if this has something to do with the format that is specific to Texas, but it would seem to me if that the argument being previewed is stating that the trial court erred, then it would be useful to highlight how exactly it erred. I don't disagree with you that it is not necessary to consider whether the trial court erred, but it can be rhetorically useful to do so, especially when it can be used to highlight the applicable analysis or anticipate potential arguments made by the appellees.

So yeah, are you right about her being wrong about the standard of review? Sure. Does it really matter to me in assess her critiques as to the form and organization of the argument? Well no, not really, as she stated upfront that she wouldn't be really providing meaningful legal analysis, so I didn't really expect that much of her.

I could see how explaining the error in the trial court's ruling would be helpful in finding the correct ruling... if the trial court had maybe explained its ruling. Chupp didn't explain shit. He just dumped a steaming pile and called it final.

I don't know how you deal with that except just starting from scratch and explaining what the correct ruling would've been.