On Friday, the jury in Alex Jones’ defamation trial heard evidence about his net worth. At the close of the trial, the jury awarded the two parents $45.2 million as punitive damages. That is much less than the $150 million they had sought. But, after the trial, the parents, Neil Heslin and Scarlett Lewis were satisfied. Ms. Lewis said she believed Alex Jones had been held accountable. She said that when she confronted Mr. Jones from the witness stand, she thought of the courage of her son Jesse, who told his classmates to run. Her son stood up to a bully and so did his mother, added Ms. Lewis. The mother said love is a choice. She hopes Mr. Jones has learned some values.

Mr. Jones’ attorney, Andino Reynal, said they would appeal. He said he believes the court will reduce the amount of punitive damages. He pointed to a state law that caps damages to $750,000 per plaintiff. It actually caps punitive damages at twice the amount of compensatory damages times two, plus $750,000. In any event, there is still one more defamation case pending in Travis County and one more in Connecticut.

One expert testified Friday that Mr. Jones withdrew $67 million in 2021. That means he likely has that amount or more stashed somewhere. An economist testified that Jones and his companies were worth $270 million. One estimate outside of court has said he started taking in $50 million per year starting with his lies about Sandy Hook and then moving on to other conspiracies, such as the supposedly stolen election. During his testimony, Jones was asked about an internal memo which showed he had grossed $800,000 in selling vitamin supplements and other products in one day. That amount would result in gross revenue of $300 million per year.

Mr. Reynal again asked the judge to order the plaintiffs to return the contents of Jones’ phone. Mr. Reynal told the judge they only became aware of the inadvertent disclosure while Mr. Jones was on the stand. No, replied, the judge, you showed me the email about that erroneous disclosure 12 days before Jones testified. Reynal responded it was Judge Gamble’s “prerogative” to disagree with their “position.” The judge laughed, and said, yes, it is her prerogative to disagree with the written word in front of her. That means the defense lawyer was taking a “position” with which he did not necessarily agree. The judge then laughed at him taking a position that disagrees with the written email. It seems apparent. Mr. Reynal was forced to take a “position” by his client regarding the erroneous disclosure. 

See San Antonio Express News report here for more information.

 

On Thursday, the jury in the Alex Jones trial awarded $4 million to the two parents, Neil Heslin and Scarlett Lewis as compensatory damages. Compensatory damages are intended to compensate the plaintiffs for their emotional suffering. On Friday, the trial will enter a new phase in which the court will address punitive damages. That probably means witnesses will testify about the worth of Alex Jones and how much money will be needed to serve as punishment.

Andino Reyna had asked the jury to award no more than $8, or one dollar for each harm the court has already found. See Texas Tribune report here.

Alex Jones is really having a tough time in court. He has had some bad days during his defamation trial, but Wednesday was probably the worst. He finally took the stand himself. He testified that he had never texted about the Sandy Hook shooting. Mr., Jones told the jury that he did not use email and that he had searched his phone for any text messages that might have addressed the Sandy Hook Elementary shooting.

But, it turns out his lawyer had inadvertently produced all of Jone’ text messages for years. Andino Reynal just produced those phone records 12 days ago. Among those years of messages was one in which one of his producers warned him that his coverage of the COVID-19 pandemic contained falsehoods similar to those regarding the Sandy Hook shooting. The parents’ attorney told Jones sitting there on the stand that his attorney inadvertently sent him Jones’ entire phone. Bankston showed Mr. Jones and the jury the text messages to which he was referring. Mr. Reynal objected. The Judge then cautioned the jury that no evidence had been shown that the text messages were provided inadvertently. She also mentioned that any such text messages should have been produced months ago.

Does this count as a gotcha moment? Yes, pretty much. They are exceedingly rare, but this is one.

Later, Mark Bankston, the parents’ attorney, explained to reporters that Reynal’s firm provided the documents on a file-sharing platform. In accordance with ethical rules, Bankston notified Reynal’s firm that they produced erroneous documents. That started a ten day period in which Reynal’s firm could have notified Bankston’s firm that some improper documents were provided and need to be returned. But, Reynal’s firm did not request that any documents be returned. At that point, the documents then belonged to Bankston’s firm. Mr. Bankston and his firm started reviewing all the records. Mr. Bankston said they were still reviewing those thousands of pages of documents.

Mr. Bankston said he would not disclose any personal messages or information. But, if the Jan. 6 committee desired any text messages, he would cooperate. See San Antonio Express News report here for more information. This oversight appears to amount to a major error by Mr. Jones’ attorney. But, the horse is out of the barn, now.

So, Alex Jones finally took the stand in the defamation case against him. I have written about that ongoing trial here and here. Perhaps, it is not surprising that he was not honest during his testimony. Mr. Jones claimed he was bankrupt and he claimed that he cooperated with discovery requirements during the lawsuit. The latter statement is flat false. And, whether he is bankrupt or not is far from decided. He only filed for bankruptcy last Friday. The judge fussed at Mr. Jones for his flat lying – while the jury was out of the court room. Judge Gamble told him this was not his show.

It is certain that there was an order in place that the bankruptcy should not be discussed during trial. Something like that is very prejudicial. Alex Jones had to know he could not mention that.

The two parents, Neil Heslin and Scarlett Lewis also testified. One of the allegations in the lawsuit is that Mr. Jones said it was not true that Mr. Heslin held his dead son, Jesse, in his hands. Mr. Heslin said he did indeed hold his son in his arms. He described the six year old Jesse’s injuries.

Scarlett Lewis, Jesse’s mom, also testified. She said she was a real mom. Jesse was real. She asked Jones if he really believed she was an actor. He said no, before the judge told him he should not answer questions. Both parents described the hell they have endured. Mr. Heslin’s car and home have been shot at. Both parents are regularly confronted by strangers at home and on the street. They receive frequent death threats.

See San Antonio Express News report here for more information.

The Infowars defamation trial resumed on Friday. A former Infowars employee testified via a taped deposition. The employee testified that he warned staff writers several times that they were speculating, not engaging in true journalism in regard to Sandy Hook. He said his warnings were met with laughter and jokes.

Jury Questions

The jury has been allowed to submit questions. The judge screens the questions before presenting them. One question posed by a juror was whether Mr. Jones or Mr. Shroyer felt guilty about the things they said. Shroyer said if they make mistakes, they apologize. That is a very bad question for the defendant. That question indicates the jury is leaning toward the plaintiffs.

The plaintiffs called a journalism expert to the witness stand. Fred Zipp of the Freedom of Information Foundation of Texas testified that Alex Jones carries himself as a journalist, but engages in activities which are contrary to journalism. He opined that Alex Jones defamed Neil Heslin, one of the plaintiffs. The lawyer for Jones suggested in his question that Alex Jones was similar to Rush Limbaugh. Can’t news hosts “free associate” on the news? asked Mr. Reynal. Not if it hurts someone, answered the journalism expert.

Jones’ lawyers again tried to use evidence which had not previously been disclosed to the plaintiffs. Again, the judge prevented them from using that video. The plaintiffs presented another video-taped deposition of an Infowars employee. Kit Daniels said he did not recall using any journalistic standards when fact-checking claims. When he was asked about context, he said several times that he did not understand the question. When asked what determines his journalistic methods, he said the questioner was speaking in riddles.

The plaintiffs will testify next week. As the trial concluded on Friday, the attorneys learned that Alex Jones had filed a counter-suit against his company, Free Speech Systems in Connecticut – in the other defamation lawsuit in Connecticut. Trial in that other lawsuit was set to start next week. A cross-claim this late in the lawsuit may not even be accepted. But, Mr. Jones will apparently do anything to delay that trial. See San Antonio Express News here for more information about the trial.

Bankruptcy

And, even later in the day on Friday, Alex Jones’ larger company, Free Speech Systems filed for bankruptcy protection. Bankruptcy typically imposes an automatic stay on all legal actions. Plaintiffs in a lawsuit would then need to seek permission from the bankruptcy court for permission to conclude a lawsuit. Filing for bankruptcy mid-trial is very rare. Alex Jones is embarking upon uncharted waters. The Travis County trial is likely almost done. When the jury learns about the bankruptcy filing, they will not like it. Jones apparently prefers the risk of annoying the jury to reaching a result in this Travis County trial. If so, he may have made the right strategic decision. The trial was not going well for him. This move appears to be a hail-Mary pass. 

Well perhaps it is not surprising that Alex Jones disregarded the Judge’s instructions to not discuss the case with anyone. Of course, Alex Jones and Infowars host Owen Shroyer discussed the current Travis County trial on his show. The Judge pressed Mr. Jones’ lawyer, Andino Reynal on that issue. The lawyer assured the judge no one discussed the evidence or witness testimony from the trial. Judge Gamble said she would watch the episode, suggesting she may take some action depending on what she sees.

Litigation 101: do not annoy the judge without a very good reason. Do not ignore her instructions without a super good reason.

Later, outside the courtroom, Mr. Andino said Alex Jone is who he is. It’s a free country. Yes, it is. And, the judge is free to find parties in contempt. 

On the third day of the trial, Judge Gamble refused to allow the video to which the parents objected. This video appears to have been evidence which was produced long after the discovery deadline. Mr. Jones’ lawyer, Andino Reynal apologized in court, apparently regarding his outburst the day before. When testimony resumes, they start with the producer Daria Karpova. The defense, Mr. Reynal, asks her about other people who believed the Sandy Hook shooting was not real.

Infowars host Owen Shroyer then took the stand. The plaintiffs, the two parents, played video clips showing Mr. Shroyer casting doubt on the veracity of Neil Heslin, the father of one of the slain children and a plaintiff in this suit. But, on the stand, Mr. Shroyer refused to admit he had called Mr. Heslin a liar or that he ever suggested the Sandy Hook Elementary shooting was not real. Heslin, looking at Mr. Heslin and the mother of the child, Scarlett Lewis, said they did deserve better coverage than what he gave.

See San Antonio Express News update here.

Well, as we might imagine, the Alex Jones Infowars trial is not going well for Infowars. A producer, Daria Karpov testified and she evaded many questions. She evaded questions about Infowars’ audience size. The questioning then addressed the “crisis actors” issue. Alex Jones had claimed many times that the Sandy Hook Elementary children were not actually killed. There were crisis actors from a nearby school who pretended to be killed. Mr. Jones relied on a “truther” named Wolfgang Halbig for this claim.

When asked about Mr. Halbig, Ms. Karpova dodged questions about what steps were taken to vet Mr. Halbig’s claims or credentials. Karpova insisted they did not have time to “go through” every email it receives. Ms. Karpova insisted Mr. Jones might have mis-remembered things Halbig said, but he believed what he was saying. Even though Mr. Halbig was a guest on Alex Jones’ show, the producer testified that Jones relied on what Halbig was saying – while admitting they conducted no fact-checking of their own.

Rebuked

When shown videos in which Jones alleged New York Mayor Michael Bloomberg sent emails to gun control groups saying the shooting would be staged within 24 hours, Ms. Karpova said she did not recall the video. When asked if she recalled her prior testimony in her own deposition, Ms. Karpova said the did recall. The judge rebuked her for not remembering. He did not accept Ms. Karpova’s apology. It is unusual for a witness to not recall what s/he said at a prior deposition. Typically, the lawyer shows the prior testimony to the witness and then asks if the witness recalls what she said earlier.

Evasion

When asked if Jones showed maps on his show which showed the physical location of the Sandy Hook parents’ homes, Ms. Karpova again evaded. The judge fussed at her again. Judge Gamble agreed Karpova was not responding to the question.

Ms. Karpova refused to answer questions about an email sent from Mr. Halbig to one of the parents saying “the scam is up.” She refused to answer questions about a letter sent by the nearby school, St. Rose of Lima to Halbig warning him to stay away from their property. Even though the letter was displayed on-screen in the court room, she would not answer questions about the letter.

Ms. Karpova was apparently not employed by Free Speech Systems during the Sandy Hook shooting. Jones’ attorney argued that Ms. Karpova, therefore, could not testify as a corporate representative. The judge, however, sided with the parents’ lawyer on that issue. The families’ lawyer asked Karpova if Alex Jones comments about the Sandy Hook shooting were false. She looked at Mr. Jones in the court room and answered, “yes.”

The Finger

Later in the day, the lawyers fussed about a video. The families’ lawyer objected to using the video in court, apparently on the basis they had not seen it before. The judge told the lawyers to confer about they could agree on about the video. The judge left the court room, which means the jury also left. During the discussion, Jones’ attorney raised his voice and called the families’ lawyer a liar and shot him the finger. See San Antonio Express-News report here for more information.

Getting fussed at by the judge resonates with the jury in a major way. The Sandy Hook families have reason to believe the trial is going well for them, so far.

A jury has been selected in the defamation trial of Alex Jones. That is, a jury has been seated which will address the damages phase of his trial. This is surely one of the strangest lawsuits in modern times. Mr. Jones defaulted on the liability portion of the trial. This trial will be in Austin, Travis County. There are two separate defamation actions against him. One is in Travis County and the other is in Connecticut. I previously wrote about his default in Travis County here. The odd thing is he not only refused to respond to legitimate discovery requests, he persisted in that refusal for years. The judge really was left with only one choice, the nuclear option, to find him guilty of what he had been accused. Why would any party default in a lawsuit? We may never know. The odd thing is he is still paying his lawyers. That suggests he has financial resources. For unfathomable reasons, he prefers simply to resist or delay the action.

Jury selection appears to have gone well for the plaintiffs. When asked who had negative views of Mr. Jones, nearly two dozen potential jurors raised their hands. Even if these persons were struck from the jury, such views that early in the process tend to migrate to the remaining jurors.

See AP news report here.

Much of litigation has become about dispositive motions- motions that dispose of the case. Typically, that means motions for summary judgments. The employer submits a motion for summary, or quick judgment, saying the employee lacks evidence for the lawsuit. Both sides may offer affidavits. What happens when a plaintiff’s affidavit contradicts – or appears to contradict – his deposition testimony. Some judges would find the affidavit to be a sham and not worth considering. This reasoning is known as the “sham affidavit doctrine.” in Seigler v. Wal-Mart Stores Texas, LLC, No. 20-11080 (5th Cir. 4/5/2022), the Fifth Circuit found the lower court appleid the sham affidavit doctrine incorrectly.

The sham affidavit doctrine, said the Fifth Circuit, does not rule out an affidavit for minor or supplementary information. Ms. Siegler said her affidavit did not contradict her deposition testimony. It simply supplemented her prior testimony and added nuance. The higher court agreed. The court noted that yes, the plaintiff’s testimony did provide new details on matters that were asked about at the deposition. But, an explanation is not necessary if the affidavit only supplements prior testimony, instead of actually contradicting that prior testimony.

Ms. Siegler slipped at a Wal-Mart. Her affidavit added new details about the substance on which she allegedly slipped. Two of the new details involved the smell and color of the substance. The Fifth Circuit panel found that these details were not asked about at her deposition. The other details were her new testimony that described the substance on the floor as congealed, cold and “thickened up.” Wal-Mart objected that at her deposition, she testified that she did not know how long the substance had been on the floor. But, noted the court, Siegler was not asked at her deposition about the temperature or consistency. She did say at her deposition that the substance was “some sort of greasy liquid.” That description does not contradict her new testimony that it was congealed or cold.

The court did allow that the new details might call her credibility into question. But, the new details do not require that her new information be disregarded. The court then reversed the grant of summary judgment. See the decision here.

 

Ken Paxton cannot stay out of the news. He also does not hesitate to advance novel, even tenuous legal theories. I previously wrote here about the State Bar of Texas filing suit regarding AG Paxton’s law license. Now, AG Paxton has  responded by filing a motion to dismiss the lawsuit. In his motion to dismiss, he claims the lawsuit is politically motivated. He also claims the State Bar’s Commission for Lawyer Discipline has no authority to police decisions made by officers of the executive branch. <eye roll> Yes, he really said that. See Texas Tribune report here.

I expect the judge will spend little time with this motion. The Commission may lack authority over decisions by executive branch officers. But, it possesses ample authority over law licenses had by those same executive branch officers. Of course, it is very likely AG Paxton knows his motion is frivolous. He has become the expert at delaying legal actions.