- Joined
- Dec 28, 2014
The clear and specific standard is in the explicit language of the statute.
The Texas Supreme Court is actually fairly clear what it means, and if judges still get it wrong, that's their own mistake. They should pay attention to what's going on. While In re Lipsky puts it in multiple chunks, it's very clear that it isn't the "clear and convincing" standard nor a preponderance standard. It includes circumstantial evidence. All the language of the case is couched in language similar to the summary judgment standard, and any remotely experienced judge should be familiar with the summary judgment standard.
It isn't a burden of persuasion but a burden of production, and any fact questions raised by the evidence produced is to be construed in favor of the nonmoving party, while Chupp did exactly the opposite of this, at least according to what we've seen, and again, assuming people haven't vastly misrepresented the proceedings. While I don't trust KV sources much, though, both sides seem at least somewhat on the same page as to what actually happened in the room. So while I'd still wait for a transcript, it still seems Chupp got it wrong.
How much of that was the fault of counsel for the parties and how much was Chupp's, who knows.
I'm not even frankly sure the law is that badly drafted, but it's clearly been badly applied, and possibly in an unconstitutional manner. The summary judgment standard is one generally applied after discovery, and presupposes that some level of due process has occurred before a dispositive hearing.
However, even the threshold issue of whether the TCPA applies strangely uses a preponderance of the evidence standard, which the defendant has to meet, with the pleading itself counting as evidence for the purposes of the motion. This isn't completely unique. The pleadings are also evidence in suits for frivolous litigation, abuse of process, malicious prosecution, and similar actions where the tort being sued over is, specifically, an act of litigation.
This is fairly weird in doing that at the outset.
On the other hand, one could argue, and I suppose you are, that if the law were as clear as I think it is, and the Texas Supreme Court seems to think it is, judges of ordinary competence (and Chupp does not seem to be a particularly terrible judge from his ratings) wouldn't be constantly getting it wrong, and Chupp is far from the first.
