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Oct. 5, 2022 - Depositions & Trials

03:56:21

Watch Live: Alex Jones Defamation Trial: Sandy Hook 'Hoax' Lawsuit - Connecticut Trial Day Thirteen

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	That the court, it's not necessary for the court to do that, that Mr. Jones made his own decisions, asked the court originally to say something to the jury.
	However, if the court is inclined, we did reach an agreement on language.
	We did.
	And, which is?
	I don't, may I check my book?
	Absolutely.
	I don't have it printed out until I arrived on the court this morning.
	Again, if I hadn't mentioned to them at your, both your I guess it was an agreement that he was going to testify.
	I wouldn't feel the need to say anything, but that's what I promised them, and so I think it perhaps should be addressed.
	I'm more or less of Attorney Maddie's mind, but I defer to you on the grounds that it's your courtroom.
	If you both agree, it's not something that you're going to address You're self-attorney caddis when you rest.
	So if we're just going to remain silent upon it, and whatever you're going to do in closing arguments is a different story.
	The only reason that I can see Because almost anything I say would be inappropriate.
	And so I think it might be helpful for the court to say something.
	So Your Honor, I think I have it.
	Listen, if you both prefer that I not say anything, I'm okay, I suppose, doing that.
	I just wish I hadn't said anything in the first place, that's all.
	I made a little bit of a bond.
	It's fine, Your Honor.
	I think the language that we agreed to is based on information provided to the court by the defense.
	I previously informed you that Mr. Jones intended to testify in the defense case.
	Mr. Jones is now elected not to do so, as is his right.
	How about if I just say the last sentence?
	Mr. Jones has elected not to testify, as is his right.
	He's instructed me, he'd like me to say to the jury, I know I can't, that he's boycotting these proceedings because he feels that he's on the horns of a trilemma.
	If he testifies in accord with the court's orders, he'll be committing perjury.
	If he violates the court orders, it's criminal contempt.
	If he takes the fifth, he gets an I can't address what his thought process is.
	I'm not going there.
	So I'm happy to say Mr. Jones has elected not to testify as of his right because what I don't want is you to address it when you rest.
	I think that that makes the most sense because...
	Okay.
	So I'm going to...
	I can...
	Tell them that we're going to have a shorter day today.
	I'll tell them that, and then you'll finish up with whatever you have.
	All right, what else do we have by way of housekeeping?
	Anything?
	In terms of jury management, Judge, you may want to send them home before I make my motion, and without waiving, I can rest in their presence and reserve the right to take my moment thereafter.
	You're agreeable to that, so we don't have to have them leave, come back in.
	That's perfect.
	Your Honor, on the ascertainable loss issue, Attorney Patis indicated we might have an agreement.
	We have some exhibits that we're planning on putting in, which we would probably use as court exhibits if we had a ruling on that issue.
	And I don't know that, I mean, I wasn't willing to...
	You certainly can.
	Thank you.
	Okay.
	We're still setting up here.
	I'm going to just stay on the bench because I have my own things to do here.
	here, so we'll just go off the record and stand on recess, I suppose.
	Mr. President Obama.
	For reasons that will become apparent in my directed verdict motion, we can't reach an agreement on unacertainable loss.
	And so I believe the plaintiffs would like to have that resolved because it has an impact on the exhibits they'll offer.
	and we should probably do that now if we can, for economy's sake.
	Okay.
	Right?
	Yeah.
	Okay.
	And so we need to do it before.
	We've got to do it before.
	Yeah, and the issue is just the default resolve ascertaining the laws.
	So it's the brief that we submitted yesterday.
	Right.
	And Attorney Pellis is not brief.
	No, I have a brief oral argument.
	all right so we are back on the record and i will hear argument on the ascertainable loss issue and just give me um now i'll need a minute or two All right, so we are now on the record, so I'm just going to ask that we are quiet in the gallery.
	All right, who's up first?
	Okay.
	Doesn't matter to me.
	Attorney Padish, do you want to lead?
	Attorney Sterling?
	No, I've got to respond to Attorney Sterling.
	Okay.
	Your Honor, I'll be brief because we have already submitted a brief on this issue.
	The default resolves ascertainable loss.
	Ascertainable loss is clearly, under the case law, an element of cutback.
	It's a liability element.
	It needs to be established before damages can be recovered or before equitable It is a very, very expansive element.
	The Supreme Court has actually said about ascertainable loss, that it's a formless requirement which they then bound with approximate cause determination.
	That's the vaco case, Your Honor.
	So ascertainable loss is established It all resolves liability in the plaintiff's favor.
	Then the other thing we briefed, Your Honor, is that ascertainable loss has also effectively Decided by the court's ruling in the motion to strike, which addressed almost every element of kutva specifically.
	The defendants didn't move on ascertainable loss, but they moved on proximate cause, on rescission of damages, on whether kutva covers this count.
	So the court's ruling on the motion to strike already resolves this issue in our favor as well.
	And for those reasons, We have tried the case on the belief that ascertainable loss is resolved in the plaintiff's favor as a part of cut the liability.
	So if I stop there, Your Honor, what we would propose to do if the court rules in our favor on this issue, though, is simply to protect the record, submit some additional affidavits that go to ascertainable laws.
	We've reached an agreement that those affidavits can come in regardless of the ruling.
	And I don't want to tip my hand too much because this will reflect the directed verdict motion I made.
	It's our contention that ascertainable laws, as pled in this case, given the pleadings and given the presentation, is vulnerable on appeal, on de novo review, and is susceptible to a directed verdict motion, as I will argue, at the closing of the and is susceptible to a directed verdict motion, as I will argue, So while I agree that there is a uniformity of the court, I think,
	In the universe in which ascertainable loss might be regarded as the functional equivalent of nominal damages in the common law counts, I don't think it makes any sense in the facts in this case as pled and as argued.
	And so I can't agree with the plaintiffs I don't think it's necessary.
	So my ruling on the motion on the cup account is the law of the case.
	But I would say even more importantly, I agree with the plaintiffs that the ascertainable loss is established by the default.
	All right, so that is my ruling on that.
	All right, so are we ready for your jury who was again conscientious and on time, or do you need another couple minutes?
	Just one second on that issue.
	Sure.
	We will want to mark in the affidavits as court exhibits.
	Are they going to be e-filed by your office?
	The only thing that's going to hold us up tomorrow for giving the jury the case is if these exhibits aren't.
	The jury doesn't need these?
	No, but I'm not going to.
	I'm going to have every exhibit e-filed in the case.
	ID, court exhibits, jury exhibits.
	We've got to stay on top of it, so I understand that, but I'm not going to send it to them in total.
	Ron says to me, we're done because he is in charge of the exhibits.
	So we have that issue which we're taking care of this morning.
	Okay.
	And then, where are we?
	Yeah, one moment.
	Sure.
	I'll wait.
	Almost said the statement.
	I guess I'd betray my business.
	I don't know.
	Your Honor.
	Sorry, we're just making sure all the.
	No, that's right.
	Let's make sure that you're all set so that we iron this out before we bring them out.
	We're fine.
	The attorney Pat is actually looking to address the question.
	Oh, I'm sorry.
	There's a question of the affidavits.
	I believe there will be three.
	I've seen two and agreed to them.
	We discussed a third, and I'm assuming, and I thought we reached an agreement on that.
	I've not yet seen that third.
	I've now seen the third, so we have an agreement on it.
	Great.
	Attorney Koscoff?
	Yes, just to move to a different issue before the jury gets out, which is life expectancy tables.
	So typically, in my experience, we've stipulated that We have 14 plaintiffs here, and so what we would like to do is to have a mechanism by which the jury simply, given the, what the tables show.
	You're talking to Tony Pattis?
	We did, and according to my sources, Attorney Pattis is not in agreement to stipulate to what the tables show.
	So that's, I've never had that, but I'm not disparaging Attorney Patis that's his right.
	But typically what council does is stipulate that that's what the tables show, but don't say that that's how long.
	That's not the same thing.
	I have to say I've never encountered it not as a stipulation, so I'm going to have to figure this out.
	The reason for it, yesterday I was shown a list of their birth dates every once in the day.
	And I agree that those could go in because if we're going to have a life expectancy table, we need to know how old they are.
	No one testified as to their age.
	This morning I saw a different exhibit which tabulated this and then had conclusions reached as to the life expectancy under the table.
	My view of that is having put no evidence on as to their medical condition or health, they can argue that they're going to live as long as the table presumes.
	But I don't want to be in a position of having agreed to that because they waived any right to take I have no idea.
	I mean, a table might say I'm going to live another 25 years.
	I could drop dead tomorrow because of the way I eat.
	And if I'm going to claim to live another 20-some years, I think I've got to sing for my supper.
	And there was no tuning in song in this case, Jim.
	So I can't agree.
	Well, I think that's just Well, then we need a charge on the life expectancy, which talks about the vagaries and such.
	So I suppose I'm admitting it over objection, but I would deal with it in the standard life expectancy charge.
	That explains exactly what you're talking about, attorney.
	And we do have a proposed charge to that effect along with the...
	Why can't I just use the nice standard charge?
	I think that does it for the boilerplate or the foundational, but the court does need to plug in the numbers.
	Because...
	Why don't you run past, now that I've ruled, run past with attorney Pattis what your proposal is?
	It's the standard charge and you just plug numbers in?
	Yeah, except it has to be done through all the plans.
	Okay, so why don't you touch base on that and let me know.
	Right now or after?
	Well, not right now.
	Okay.
	As soon as we can get started with the jury, the better.
	Unless we need more time and then you can do it now.
	You're looking for a couple more minutes or?
	Well, I think we're ready, but a couple more minutes never hurts.
	Do you want to do the life expectancy now?
	Do you have something to show Attorney Patis?
	Your Honor, this was filed on the 30th of September.
	This is the proposed length inspectors in charge.
	Well, but it doesn't address that this is an estimate independent of any
	It simply says this is the average normal expectancy without addressing the fact that it really takes no account of the vagaries of experience.
	I thought the standard charge did.
	Your Honor, let me pull up the standard charge.
	I'm doing it right now.
	Thank you.
	Here it is.
	Do you want to come up?
	I can read it.
	Would you like me to...
	If you can see the screen it might be a little better.
	I'm happy to turn it.
	Can you see that?
	Yes.
	May I? Thank you.
	Can you see that one?
	Yes.
	The standard charge addresses my concerns.
	I'm just a slow reader.
	I have a word that's just a good time.
	No.
	Damn it.
	Did I miss that?
	No.
	Oh good.
	The old charge.
	The sissitudes of what?
	- Okay, we don't have a problem with that, that's fine. - But do you just plug in? - We still have to plug in the plaintiff's numbers, the different plaintiffs. - So something to provide us to the age and the birth, a couple of things.
	Yeah, and we have a stipulation as to their dates of birth without the date because...
	I suppose the mental condition was an evidence.
	It seems to me that because of the range of things that are already considered, if the court instructs them on all these factors and they didn't produce evidence on that, that would give me some argument about why life expectancy could be discounted.
	And that was the thrust of my objection to...
	I understand that.
	I do.
	You do.
	But there's no requirement that all this There are some factors that they can consider, and if they've chosen not to put those in, that's on that.
	I'm not sure about that.
	I mean...
	And permanency.
	So there's enough, but I agree that...
	We can argue later, but just imagine like a grand collision case where someone has a bad back, and it's permanent, it goes in, and you don't have cardiologists come in, or oncologists.
	The only evidence in the case is the fact.
	Nobody talks about cancer.
	Right.
	Okay.
	Hopefully this morning.
	Well, we didn't have time for the final arguments for sure, but we can.
	No, but hopefully we can wrap up the charge.
	Okay.
	I'm hoping to put them back down.
	Mr. Farron will call me and say, you might have been quiet.
	You have all these words in the charge show.
	Judge, do you want me to print this out or not?
	Yes.
	You're good.
	Come on, this is when it says complex width, one floor.
	Where does that go?
	That's my office.
	It is?
	Yes.
	Fourth?
	Oh, no.
	Third floor.
	Just make sure you go down before you sit.
	Okay.
	Okay.
	Bring it on both sides.
	That's what it's set for.
	Got the bottom there?
	We don't need this now, so we're going to get the jury.
	Then we have time.
	Yeah, there's no rush.
	Thank you very much.
	All right, so Mr. Farrer's going to get the jury, and we'll get ready to go.
	All right.
	- Good morning.
	Oh, yes, I was going to be sitting here.
	During the second.
	Thank you.
	Thank you.
	Thank you.
	Good morning, good morning.
	Good morning everyone on another Yet another rainy day.
	Good morning.
	Please be seated.
	Council will stipulate that the entire panel is present.
	Yes, Your Honor.
	Please be seated.
	So I am so grateful you were all able to make it on time, given the very heavy traffic that we had.
	And the wet roads.
	And I know we ended up keeping you up waiting a little bit, even though you managed to get here on time, but I can tell you we have been very busy.
	We already argued a substance of motion.
	We went through the scheduling for the rest of the trial, and so I can actually share a little of that with you.
	So we are going to finish the evidence this morning, alright?
	And then you are going to have the rest of the day off.
	I can tell you that Mr. Jones has elected not to testify, as is his right.
	So we will finish the evidence today.
	We are going to work on your jury charge when you leave today.
	So we will continue to be putting our noses to the grindstone.
	And then tomorrow we will go into Council's closing arguments.
	I will then charge you on what the law is, and you will begin your deliberations tomorrow.
	So tomorrow is going to be a busy day for you, all right?
	So just for your planning purposes, you will have the afternoon off, or maybe even part of the morning.
	We'll see how it goes, okay?
	They have their new folks, Mr. Fuller?
	Thank you, sir.
	Attorney Maddie, whenever you're ready.
	Thank you.
	Thank you, Your Honor.
	Good morning, good morning everybody.
	So, Your Honor, what we're gonna do this morning is Just present some exhibits, some remaining exhibits.
	The first thing I wanted to do, Your Honor, is offer the transcripts of the deposition testimony that we played here.
	We decided to do that for all of the depositions, not just the ones that might have had some audio problems.
	Thank you for that.
	And Attorney Pattis has seen them?
	Yes, Attorney Pattis has seen them.
	And these will be exhibit 336A, the transcript of David Jones' testimony.
	354A, the transcript of Robert Jacobson's testimony.
	355A, the transcript of Nico Acosta's testimony.
	356A, the transcript of Joshua Owen's testimony.
	63A the transcript of Timothy Fruget's testimony and 349A the testimony of Michael Zimmerman. Sorry and I just want to mention to the jury that when you begin your deliberations you will have all the full exhibits with you at that time.
	All right, just a few more housekeeping matters, Your Honor.
	I would also just present to the court, which I understand are going to be court exhibits, the affidavit of Ian Hockley, which is 597, the affidavit of William Aldenburg, which is 598, and the affidavit of Jennifer Hensel, which is 599. Agreed, good.
	I have those original.
	we may approach a drink for all.
	All right.
	The next thing we have, Your Honor, is the actuarial table, which is identified as Plaintiff's Exhibit 800 along with Exhibit number 588, which lists the birth years of each of which is identified as Plaintiff's Exhibit 800 along with Exhibit number and we'd offer those in favor.
	All right, and that is admitted over objection.
	Thank you, Your Honor.
	Okay.
	All right.
	So what I'd like to do now, Your Honor, is present some exhibits for the jury.
	The first is Exhibit 137. This is agreed to and is an email dated October 29, 2014, from Nico Acosta to Robert DeWitt.
	That isn't formally offered, but it's agreed to, and so I'd offer it and I'd ask to publish it.
	So ordered.
	Yes?
	Agreed.
	137.
	Okay.
	So this is an email from Nico at InfoWars to Rob Dew, and the subject is Ebola, Sandy Hook, Crisis Actor Clips Attached.
	Okay.
	You can just scroll through it.
	Thank you.
	I'd also offer, Your Honor, Exhibit 221.
	This is agreed to, dated March 31, 2016.
	a list of radio affiliates carrying the Alex Jones show.
	Agreed, good.
	So ordered.
	And we'll just scroll through this one as well.
	well.
	Thank you.
	The jury will have this entire list for them in terms of deliberations.
	Your Honor, also by agreement, this is, the jury has already seen, but we prepared it as an exhibit, Exhibit 278A, relating to sales totals, daily sales over one online retail platform from September 23rd,
	2014 to September 29th, 2014. We also have Exhibit 397A. This is the cover sheet of the final state's attorney's report concerning
	the Sandy Hook shooting.
	we're offering the cover sheet with the date of the report.
	And that's a full exhibit by your name?
	Yes, Your Honor.
	Yes.
	Thank you.
	And I will start with Exhibit 3. This
	is deposition testimony of Alex Jones.
	B. Question.
	And part of the way that you, well, the message that you convey to your audience and have conveyed for the last 20 years is that there is a group of international media, financial, and political elites that are conspiring to establish a global tyrannical government to enslave and ultimately kill people.
	Answer, yes.
	What I'd like to do now is go to...
	In case I didn't do that, I offer that.
	No objection.
	I'd also offer 370, and we're not going to show this now, I'd also offer 372D, which is testimony of Alex Jones on the same day.
	And what was that date?
	April 5th, 2022, Your Honor.
	Is there an objection to 372D? Assuming that this was part of Yes, Your Honor.
	Now moving to Mr. Jones's deposition from April 6, 2022. This is 373A, which I'm offering and I'd like to publish.
	No objection, Attorney Paterson.
	You're making part of the designation, Judge.
	Yes, it is.
	You agree with me?
	Okay.
	I noticed in your video yesterday that you posted about this deposition that you told, and which you later published on your website, that you told your audience that you are a common man, right?
	Yes.
	Question.
	You said that Connecticut is really a bedroom community for all the richest people in New York.
	Billionaires and people like Larry Fink and folks who have robbed the country for trillions.
	Yeah.
	But you are a common man, right?
	Yes, I am a common man.
	Where did you fly into from Texas?
	I forget the airport.
	It wasn't Kennedy or LaGuardia or Bradley?
	No.
	Question.
	Did you fly commercial?
	Answer.
	No.
	I flew in a private plane.
	373B, Your Honor, which I had offered also from the same day of Mr. Jones's deposition.
	373B, Your Honor, which I had offered also from the same day of Mr. Jones's deposition.
	This was part of the designated testimony.
	Mr. Jones, would it be fair to say that you expect that among the millions of your listeners, many will believe that you are telling them the truth, right?
	Answer, yes.
	Question, and sometimes that truth that you tell them is pretty horrifying, correct?
	Answer, yes.
	373 C, Your Honor.
	Yes.
	Also from the same deposition, also designated and not offered.
	Question, one of the reasons that you were concerned about your address becoming public is because you were concerned about the potential that people who mean you harm may be able to locate you or your family, correct?
	Answer, yes.
	Let's go to the next page, thanks.
	So you're fearful that people who have that personal information against you could use it to harass you or your family, correct?
	Answer, yes.
	People may have a very distorted view of who you are as a result of the way in which you've been portrayed in the media, correct?
	Answer, yes.
	If they believe that distorted view, they very well mean you harm, correct?
	Answer, that could happen.
	And it's reasonable for you to be concerned about that, both for yourself and your family, correct?
	Objection?
	Answer?
	I think it is reasonable.
	Thank you.
	373D, Your Honor.
	Same deposition, also designated.
	This order.
	Question.
	You had millions of listeners by the time you were 24, right?
	Answer, yes.
	And you were the beginnings of a media empire, right?
	Answer, yes.
	Okay.
	Your Honor, what I intend to do now is play a series of videos, all but one of which were broadcast by Alex Jones during the course of this trial.
	Thank you.
	Thank you.
	And I'd like to begin with Exhibit 505, which is a clip from a broadcast of the Alex Jones Show on September 14th, 2022, the second day of trial in this case.
	I am so sick of the new oral order.
	I am so sick of this cult of psychopaths.
	I am so sick of their lies and their fraud.
	I don't believe anything they say.
	And I apologize for nothing I've ever done because I did it all from a place of purity and I've been 98% accurate.
	Your Honor, I'd now like to play what have been marked as Exhibit 552A and 552B.
	These are clips from a video published by Alex Jones on September 23rd, 2022.
	titled Abomination of Justice.
	This will be Exhibit 552A. And now,
	Your Honor, from the same video, Abomination of Justice, I'd like to play Exhibit 552b.
	One of the ways that you encourage your audience to give you money is in cryptocurrency donations, right?
	Yes.
	InfoWars.com forward slash crypto.
	That whole stuff is in clip on your show tonight.
	Do you have to advertise this brand cryptocurrency page?
	And in the cryptocurrency page, Get Crypto Fun Info Works.
	Sponsor us with Bitcoin and other cryptocurrencies.
	Thanks to your donations and your support at Infowarsstore.com.
	Infowars is able to broadcast free worldwide, combating the lives of the Great Reset.
	Get crypto fun Infowars.
	Donate now.
	Infowars.com forward slash crypto.
	Your Honor, I'd now like to play Exhibit 593.
	This is a clip from the Alex Jones Show broadcast just last week, September 29th, 2022.
	This is Exhibit 593. - Thank you.
	they're going to ring the jury.
	Now, Your Honor, on our I'd like to play Exhibit 595.
	Video published by Alex Jones, a part of the Alex Jones Show on September 30th, 2022.
	Also last week. - I mean, you go to Yahoo, you go to Google, you go to Instagram, you go to Facebook, it's Alex Jones at the top, sitting against 10 kids.
	Families for weeks on, never said their names, never even talked about it.
	All made up.
	And it's like, oh, my kid died, oh, and Alex Jones caused it, and it's just, it's all laughing.
	You're like, oh my god, Jones, you're in some attack?
	We better not be like you.
	I'm under attack because I expose these people.
	I'm just going to be completely honest.
	I totally enjoy it.
	I mean, I've reached that point of real peace where I don't just have peace with this.
	I enjoy it now.
	Before I get to the last video I want to play that Mr. Jones broadcast last week, I'd like to play what is already in evidence as exhibit 23A.
	This is a video that the jury has already seen.
	It is a video that was published by Alex Jones as part of the Alex Jones Show on January 13, 2015. Yeah, when you're trying to decipher cloak and dagger dirty tricks, it's pretty hard to do.
	It's just that when you, then you learn that they were funded by Western funding, then you learn that it was So
	that was 2015. Here is Alex Jones last week on September 29th, 2022. This is Exhibit 594. Take the same thing.
	I never really covered that.
	I covered what people were saying.
	And then later I said, okay, it happened.
	But now that I've seen the So I think the public's original instinct about it was right.
	I don't know what really happened there, but it is synthetic as hell.
	One more time.
	Take your time.
	Your Honor, the plan is for us.
	Attorney Patis?
	We'll have a motion, Judge, but we intend to produce no evidence.
	Alright, so the defense rests.
	And with that, I can send you home for the rest of the day while we get to work on a motion and the jury charge.
	So, Ron will collect your notebooks, but I have to say I know that you have obediently followed the rules and that you're a conscientious jury.
	You're always on time and so attentive to a fault, but we We are so close to the finish line now that it becomes more important than ever that you insulate yourselves from any media coverage, that you continue not to do any research,
	that you not have any discussions with each other or anyone else about anything that's happened in the courtroom, even though the evidence is done, that doesn't mean that even Any of you can speak to each other.
	You will know because I will tell you clear as a bell when you can begin discussing anything that happened in this courtroom.
	And even then, you will only be able to discuss the case when you are all together and only when you are in the jury deliberated room.
	Alright?
	So even then, it's very strict.
	So with that, I'm going to thank you very much for your traveling here for a short day of evidence in the bad weather.
	Take your time going home because I know the roads are wet.
	It might be a little slippery.
	We will start tomorrow at 10. As I said, it will be a full day.
	And we thank you as always for your patience and for your attention.
	All right, so you'll follow Ron out, and I will stay on the bench.
	Whenever you're ready, Attorney Attorney Pettis.
	I'm making a motion in the alternative for a directed verdict, or a motion to dismiss, and I guess I'll start with the directed verdict.
	There are three grounds, Judge, for these motions.
	First is a lack of standing.
	Second, because of the misapplication of cut-up, in this case, our intent to evoke cut-up, or cut-up does apply.
	Second, the failure to plead a necessary element in the complaint of ascertainable loss.
	And third, the presentation of the failure to present evidence that would support the verdict.
	And I make these motions in the face of an acknowledging the power of the default.
	And with knowledge of the prior motion to strike, because our appellate courts have held that with respect to standing that can be raised at any time, even in the presence of a default, that the appellate standard for review of a verdict in a cut of a claim, even in the presence of a default, is de novo.
	And that suggests to me the trial court has the responsibility to evaluate Purely legal claims at the close of the plaintiff's evidence.
	The evidence that's presented in the representations of counsel thus far have been that they are seeking, with respect to the common law claims, only emotional distress.
	And that's all they're seeking.
	If you look at the manner in which the complaint was pledged, Judge, the Kutba claim is the fourth of the viable counts.
	The negligible infliction count was withdrawn at some point.
	And that incorporates, by reference, the various pleadings that preceded it.
	In the complaint.
	So, for example, in the common law complaints of paragraph 419, 432, and 446, the plaintiffs pled actual and substantial damages.
	And that's what they've reincorporated into the cutback count.
	Our Supreme Court is clear that emotional distress alone is insufficient to support a cut-book claim.
	And I rely on Parnoff v.
	Aquarian Water Company at 188, CONAP 153, a 2019 decision, as well as DiTerresi v.
	Stanford Health, 149, CONAP 502, 2014. So the first motion is that, as presented, There simply is insufficient evidence for- Can I ask you a question, Attorney Patis?
	Yes, yes.
	So, the cup account incorporates the prior paragraphs which claim the emotional distress, but then the last paragraph adds the claim of damage.
	It's not limited to emotional distress.
	What say you about that?
	The representations of counsel is they're seeking solely emotional distress here.
	There is no claim for economic damages, and thus the case as presented is going to be presented to the jury as a pure emotional distress claim, and that's insufficient as a matter of law or katva.
	That's my claim.
	The ascertainable economic loss, the second claim is as pleaded, And again, the appellate court takes a look at the pleadings to determine, even in the case of the default, whether it's adequately pled.
	Under Ritchie v.
	Main Street at 110, Con Act 209, we conduct a plenary review of the pleadings to determine whether they are sufficient to establish a cause of action upon default.
	It is our contention that they are not, because what the plaintiffs claimed was actual and Emotional loss without ever claiming actual and substantial damages without ever pleading ascertainable loss.
	And I'm not trying to impose a magic word test on the pleadings.
	I understand that the plaintiffs are entitled to every reasonable inference, especially in the context of a motion for a direct verdict.
	But it's our contention that they've abandoned their responsibility to show ascertainable economic loss.
	Most substantially, though, we claim that this is a novel application and, frankly, a terrifying application of katba.
	Because this is an instance in which there is no representation whatsoever that the plaintiffs were harmed in any respect by Mr. Jones's commercial activities with respect to the sale of dietary supplements.
	So, with respect to Soto v.
	Bushmaster, which the plaintiffs may claim opens the door, in Soto, unscrupulous advertising was used to sell military-grade weapons to a civilian.
	And the courts ultimately concluded that that was sufficient to support a cut book claim, even in the absence of a commercial relationship, because those unscrupulous ads placed into the hands of Adam Lanza a weapon that he used to slaughter people.
	There's nothing analogous to that in this case.
	Mr. Jones didn't oversell hair growth or follicle material or iodine to anyone.
	There's no evidence that anyone was harmed by his commercial activity.
	The court and the jury may conclude that Mr. Jones's speech acts were odious, and that's what defamation and defamation per se addresses.
	They may conclude that his speech inspired others to harass and intimidate these people, and I presume that falls under the intentional infliction of emotional distress.
	They may conclude that his verbal and written activities placed these plaintiffs in false light to their economic harm and detriment.
	But nothing in that speech or the consequences of that speech addresses what katba is intended to address or what Soto v.
	Bushmaster addressed.
	And that is whether consumers were harmed by the commercial activity affecting trade or commerce.
	If someone had gone out and bought a gross of these pills and thrown them at someone and hurt them, that might be an argument, assuming the ad encouraged people to do that.
	But what we have here is a novel attempt to use katva to silence unpopular speech.
	And the purpose is plain.
	The purpose was announced in opening statements, Which I realize is not evidence, but this is legal argument.
	The purpose of this litigation is to silence Alex Jones, and the only way they're going to be able to do that is with an enormous punitive damage award, which this court has discretion to award under cut by.
	The punitive damages will be limited in the common law claims to attorney's fees, and I'm sure they'll be significant, but they won't be significant enough to cripple Mr. Jones.
	So we think that kutpa is being used for inappropriate grounds and that the plaintiffs lack standing to bring the action because they cannot establish that they were harmed by Mr. Jones's commercial activity.
	As I understand the plaintiff's case, there's a strong and a weak kutpa claim implicit within it.
	The strong claim is that they pay attention by way of Google Analytics and other analytics to spikes within their web traffic.
	Thus, when Mr. Jones speaks about Sandy Hook at Spikes, let's talk more about it because it will drive people to our site.
	The weaker claim is that by peddling fear, Mr. Jones is able to capitalize on that fear and inspire people to buy products.
	That might be an unscrupulous ad if a person affected by those products could come forward and say, I would never have bought it had I not been inspired by his fear.
	But that's not the claim here.
	What we have are three torts that will go to the jury, and my motion is not directed to those torts, Judge.
	I will concede that the evidence, if credited, is sufficient to warrant a judgment against Jones.
	But as to the cut claim, there's no case None.
	That supports what the plaintiffs intend to do in this case, and that is use a statute that is designed to protect consumers against unscrupulous trade and commercial practices to attack speech.
	And that makes this case terrifying from a free speech perspective.
	And we urge the court to strike this claim or to grant our motion because nothing in our law supports an application of cut behind the facts as pledged and proven in this case.
	Thank you.
	Ms. Sterling.
	Ms. Sterling.
	And one last thing.
	May I submit a typographically written motion that I'd like to tidy up and submit as part of this record later in the day.
	How do you want me to handle it and just wait for that before I roll?
	No, I can give it to you now, but I'd like to submit it.
	I'd like to submit it.
	Has plaintiff seen it yet?
	I'm giving it to you now.
	I have not seen it yet.
	I wanted to wait until the close of the case as his custody.
	No, I understand, but I don't...
	If you're going to file it after she's argued, how does she respond?
	If she wants to take a moment to read it, she maybe won't say anything that I... I'm not...
	Do you want to...
	Why don't we try to do that and see if we're able to read?
	Do you mind, Attorney Sterling?
	We can try and see if you want.
	Your Honor, if we're going to do that, what I would ask is that I have an opportunity to read it, make some notes, and then I'll respond.
	Not unreasonable.
	Do you have a bench copy?
	I do.
	Would you mind giving it to me?
	I sent Attorney, um, Mayor Koch?
	You may.
	Attorney Ferraro to start working on the exhibit so that we can hopefully Delay tomorrow, I think.
	And is your office also going to e-file it?
	Yes.
	Thank you.
	All right, so then why don't we hold off on the rest of the argument.
	Can we start to get to work on the jury charge?
	We can do that, Your Honor.
	The only thing is I... So, yeah, we want to defer argument for a little while in this and turn to the jury charge and then take a break.
	So do you want to take the morning recess now?
	We'll pick it up at 1130, finish the argument, and then can we get to work on the jury charge?
	Yes.
	Okay.
	Your Honor, I understand Attorney Furrow is not here.
	He raised with our team, I think, yesterday that one of the videos that we offered and played last week, it wasn't clear in the record what the number was.
	It's Exhibit 508. He asked me to confer with Attorney Patis.
	We have.
	Attorney Patis agrees that that's what it was.
	So I just wanted to make that clear for the record and we can let him know later.
	Maybe you can go get a cup of coffee during our recess and let him know that it's 508. Yep, thank you.
	All right, so then why don't we plan on Coming back at 11.30, we'll pick up the argument, and then we'll turn to the jury charge, okay?
	Yes.
	All right, thanks.
	All rise.
	We're going to have to get a movement.
	Morning success.
	The video is positive.
	No.
	You're off the record, correct?
	Yes.
	Did you see the...
	Alright, so I had, I spoke with Ron and the game plan is that we need, we will get the exhibits done today by 5:00, so we're gonna stay and work on the exhibits even we will get the exhibits done today by 5:00, so we're gonna stay and work on the exhibits even if we're done okay?
	Okay.
	Is Your Honor ready?
	I am.
	I was able to read it.
	Did you have enough time to read it?
	I did, Your Honor.
	Thank you.
	Okay.
	Thank you.
	So, over three weeks in this trial, we have heard a description of massive damages, massive injuries to these plaintiffs, massive injuries to these plaintiffs, which is exactly what the allegations of the complaint foretold.
	And to hear that evidence described as merely emotional distress is both par for the course in this case and par for Alex Jones's approach But it ignores the evidence, it ignores the truth, and it ignores the law.
	And so, as I understand, the motion for directed verdict is attacking the Kutba count alone.
	Our Kutba law says that this is exactly, exactly the kind of case that comes under Kutba.
	If these plaintiffs don't have the right to bring a Katwa case against Alex Jones after everything he has done to them, then who does?
	And that, so they have Katwa standing under Soda versus Bushmaster, but also under the plain language of the statute.
	Any person who suffers any ascertainable loss is entitled to bring a lawsuit.
	The court has already found proximate cause in the context of the default.
	That is the sine qua non of cut the standing.
	So that's resolved.
	The court has resolved ascertainable loss.
	These issues have been decided.
	In terms of the notion that this case is only about emotional distress, again, that profoundly misunderstands and misstates the evidence.
	The evidence is that there are 550 million impressions of lies by Alex Jones, and that is reputational injury in addition to causing emotional distress.
	Not only that, that's measurable in the sense of ascertainable loss, and it is catastrophic.
	And so to hear that minimized, again, it is understandable that what Mr. Jones would like is for these families not to have standing to hold him accountable, but it cannot be under our law.
	With regard to the reference to the DiTeresi and Parnoff cases, I think counsel misspoke and indicated that those are Supreme Court cases.
	Those are not.
	Those are appellate court cases and they're pre-Soto cases.
	It's our position in this case that the reputational harm It gives rise to the cutback claim as an encompassed within the cutback claim.
	And also that emotional distress damages are encompassed within the cutback claim under the circumstances of the case.
	So that to the extent that, you know, that, and I don't actually think, Your Honor, That that is in conflict with Di Teresi because Di Teresi's approach on emotional distress says, well, it's not measurable.
	And that's the rationale for not including emotional distress as a predicate for Kedpa.
	Here, we have both the determination That severe emotional distress already exists as a result of intentional infliction.
	And also, there is the measurability of the reputational harm which goes to emotional distress, although also independently damages the plaintiff's reputation.
	So, and Your Honor, I am putting that on the record because I want our higher courts to be aware that that is our position.
	Let's see.
	With regard to the idea that the COPPA claim is only about statements, It's not.
	What it describes is a commercial course of conduct that is built on targeting and victimizing these families by lying about them.
	So certainly lies are in the mix, but what the court heard was not just The occasional lie.
	It's the use of lies to sell products, to fuel a business.
	That is what Mr. Watt's testimony was about.
	That's what the testimony about social media analytics and Google analytics is about.
	There is a business plan to hurt these families and to sell things by hurting them.
	And that has to be remedial, remediable under katpa.
	It has to be.
	There were some references to the complaint, Your Honor.
	The katpa count is pleaded last.
	And it incorporates all the prior allegations.
	And there were some representations by counsel that my clients are only claiming emotional distress.
	That is inaccurate.
	My clients are claiming reputational damages and emotional distress.
	And, excuse me?
	Sorry, invasion of privacy.
	Yes, and invasion of privacy.
	So I just don't understand the source of those representations.
	The reputational harm includes all the evidence that the court has heard, which has included evidence of economic loss.
	We're not seeking to recover those damages, but that is all in the case.
	And certainly evidence of ascertainable loss has come in repeatedly in the case, even though it's already established by the default.
	One of the grounds for the motion, Your Honor, was that the complaint fails to state a claim for ascertainable loss.
	We've already covered that this morning, so I won't address that.
	So I think where I conclude, Your Honor, is there is absolutely a cup of claim that will be – needs to be presented to the jury and will be also for a decision by the court.
	and the motion for directed verdict must be denied.
	MS. I guess I should get used to even polite ad hominem attacks there.
	Of course, in this case, I won't respond in kind other than to say that counsel's argument is long in emotion, short on analysis, facts, and vacant as to law.
	There is no katpa place that says a person who engages in speech, even in extreme speech, can be held liable under katpa.
	We don't concede, we don't contest We don't contest intentional infliction.
	We don't contest breach of privacy.
	Those cases will go to the jury.
	We're not arguing that it's statements alone.
	I conceded in my opening statements as I do now.
	The harassment and intimidation by unnamed and unknown persons are attributable to Alex.
	That's fine.
	I get that.
	But what Kutpa sounds in it, it's not enough to come in here and say it can, it must, it has to be.
	The argument has to conform to the requirements of law, and there is nothing in Soto v.
	Bushmaster that says that if a person engages in extreme comments and relies on the sale of products to produce that platform, there's nothing that says absent the plaintiffs being affected by those products that is applicable.
	The reason we have a broad medley of torts in this country is to permit people choices of remedy so that they can recover for the harm they've experienced.
	The harm that these folks have experienced in terms of defamation, intentional infliction, and breach of privacy is compensable and they can get what the jury will award them.
	What they can't do is transform Cutaway into an attack on speech.
	All right, so the lack of standing raises subject matter jurisdiction, and I must rule on that now.
	So the motion to dismiss on the standing issue is denied.
	The motion as it relates to ascertainable loss is also denied as I ruled on that earlier and I will reserve decision on the remaining issue.
	Ron, can you give the Council copies of the life expectancy table that I was able to print out?
	Thank you.
	All right, so can we turn?
	May I inquire on one issue?
	So the Court is reserving decision on the whether...
	I just routinely reserve decisions on all motions for a directed verdict, and I would have entirely reserved here and just dealt with it later.
	But because it raises standing, which is subject matter jurisdiction, I need to rule on that.
	The ascertainable loss I already ruled on, so I'm denying the motion as it relates.
	For that, I'm kicking the can as I always do on the rest of the directed murder because that's...
	So, Your Honor, in that event, I think maybe we'd like to submit a brief on the non-standing issues?
	Sure, I don't see why not.
	Okay, thank you.
	Okay.
	I should say we may want to.
	All right, so we're ready to go on the charge?
	Yes.
	I just need one second to clear away these papers.
	Oh, yeah.
	Attorney Kostakoff's going to start with life expectancy, if that's all right, Your Honor.
	Well, I wanted you to talk to Attorney Pattis about it first, if you don't mind.
	Okay.
	Can we do that at the break, Judge, or do you want to do that right now?
	Whatever you want.
	It doesn't matter to me.
	I would I want to talk about how long we're going to have for closing.
	I know Attorney Patis has requested an hour.
	We've requested two, which would be inclusive of summation and rebuttal, 15 plans, four weeks of trial.
	I understand that Attorney Patis would have consent to that, and so we just wanted to Yes, I think in opening, the position was better at forced concision, although it's been a 12-day trial, maybe we've had 12 days for partial evidence, and 15 plaintiffs, the plaintiffs are all similarly situated, and there's nothing that distinguishes them one from another.
	And my view, you know, Mr. Richmond and Ms. Hensel may have claims that are different in time, but everyone else more or less looks the same.
	And I don't see the need for more than an hour, and so I would request a few hours.
	I disagree, so both sides can have two hours.
	Okay.
	Do you want to do you want to do?
	Well, I didn't want to get.
	Why don't you want to.
	I can look at this.
	Actually, excuse me.
	Sorry.
	No, that's right.
	Do you want to do it together now or do you want to wait?
	Why don't I look at the.
	There's some things I just need to correct.
	This is for a case where there is a liability issue.
	So let me just make some corrections while you guys are.
	And you'll.
	And I'll show it to attorney.
	Okay.
	Give me one moment to get situated.
	One thing that we left off on yesterday, and I've got a list here
	that I'd like to start crossing off, was the plaintiffs were considering proposing new language about Alex Jones and free speech systems.
	Yes, Your Honor.
	Good news.
	In the new charge that Your Honor has a copy of, We did propose new language and that was acceptable to the defendants.
	What page is that on?
	That is on page 7 in red.
	May I have a moment, Judge?
	Please.
	Betsy McNeil, there is an agreement on that language, Judge.
	Okay, so I can cross that over.
	Yes.
	Your Honor, on that charge though, I just think that we should look at the top part of the charge then and make sure that it's not confusing in relation to that instruction.
	I don't understand what attorneys are referring to as top part of the charge.
	So the top part of the charge, corporation or other entity as party, Which is on page 6. Your Honor,
	I think that's quite confusing given the instruction that Mr. Jones and free speech systems are each legally responsible for the other's conduct.
	Well, except that one of the parties nonetheless is an LLC, so there's nothing wrong with saying you must treat all parties in an equal and unbiased fashion, right?
	No, I think that's fine.
	So why don't we take out the sentence under corporation or other entity as party that's Take out the verbiage, rather, you must assess the claims and defenses of all parties without regard to there and just put in, you must treat all parties in an equal and unbiased fashion.
	So that would be, you have heard that one of the parties in this lawsuit is the Defendant Free Speech Systems LLC, which is an entity created by the law, All parties are equal before the law.
	The mere fact that one of the parties is, I don't know if you want to say one of the defendants, but one of the parties is a natural person and one is a creation of the law, should not play any part in your deliberations.
	You must treat all parties in an equal and unbiased fashion.
	That's not objectionable.
	That's neutral.
	I take no position on this.
	I think it's fine as it is, and the Court's suggestion is fine.
	I don't think there's anything confusing about it.
	Your Honor, I think that's a significant improvement.
	I appreciate it.
	Thank you.
	You'll delete.
	Rather, you must assess the claims and defenses of all parties without regard to there, and insert you must.
	You must.
	Okay.
	Got it.
	What about the implicit bias charge?
	The basis is that somehow using cool reflects some sort of bias or is a microaggression against some unnamed group.
	I mean, the language is all we have left.
	And to start making claims like that about language, to talk about cool and dispassionate, I don't want to go down that route.
	We're urged to use the implicit bias charge in all our cases.
	Civil, criminal.
	With respect to the claim that Kohl was somehow culturally...
	But Attorney Sterling wasn't even sure she was going to want it anyway, so before you start arguing against it, let's see what her position was.
	So my position, Your Honor, is as I am delinquent, I need an opportunity to look at it.
	And this is the time.
	Okay, then we're not claiming it.
	There we go.
	Okay, we're moving along.
	All right, where are we next?
	what's the next issue so we should I go back to what I had to do my homework from yesterday or Yes, that would be most helpful.
	Okay.
	So correct me if I'm wrong.
	The first thing that I was supposed to look at was on page, well, I don't know if there's a new page number now, so let me look.
	Under causes of action.
	Yes, that's what I have, Your Honor, the nominal damages.
	Right, and I think that I have, I'm going to delete the only if the plaintiffs can prove damages are they entitled to more than a nominal sum because it's covered plenty of times in other places.
	I'm not sure that exact language is covered anywhere.
	I think it's important for this jury to know that that's the starting point.
	Well, so let me see.
	Just bear with me.
	So, Well, under damages compensatory, we have...
	In order to recover more than nominal damages, the plaintiffs have the burden of proving their entitlement to recover damages by a fair preponderance of the evidence.
	Then we also have nominal damages.
	Let me see where it is.
	I marked a couple other places but just bear with me.
	Paid under damages for libel and slander per se.
	So it is going to be what it is going to be.
	Yeah, I understand you.
	I just wanted to note my objective.
	all right so then I have under defamation is that exactly we I'm looking at yesterday's document, honestly, because that's where I made all my notes, so I thought there was something for me to do under defamation.
	No, we actually, we resolved that yesterday, Your Honor.
	Okay.
	I think that's what I have, Judge, that we did.
	Okay.
	Then proximate clause?
	That was the place where the court was going to make a decision?
	I did.
	And just bear with me for one second.
	May I speak to Attorney May for a moment?
	Please. Please. Please. Please. Please. Please. Please. Please. Please. Please. Please. Please. Please. Please. Please. Please. Please. Please.
	I wish I had somebody to do that.
	All right.
	I had no problem with any of the plaintiff's proposed changes under approximate clause.
	I thought it was helpful language, actually.
	Okay, so for my work as a Scrivener, Your Honor, I will accept those changes.
	And I'll just recite my objection on the grounds that it comes perilously close to transforming Okay, so the next area I believe I have is standard of proof damages?
	Yes, Your Honor.
	The continuing objection on our part as to nominal.
	All right, so just bear with me.
	So I am going to delete the first sentence, then I'm going to change it.
	The sentence that says because, the first two sentences, I'm going to delete.
	And what I intend on saying is the following.
	Although the court has already determined that the defendants are liable to the plaintiffs, I must still instruct you as to the burden of proof in a civil case such as this.
	And then go on to, you may have heard in criminal cases that proof must be beyond a reasonable doubt.
	I can't see how that's objectionable.
	They need to know what the burden of proof is.
	Are you deleting in order for you to award more than nominal damages?
	Yes.
	I object.
	Okay.
	Second deletion of that concept.
	Well, this is the standard of proof.
	Anything from the plaintiff?
	Your Honor, could the court just recite that language again?
	Just want to make sure I have it.
	Although the court has already determined that the defendants are liable to the plaintiffs, I must still instruct you as to the burden of proof in a civil case such as this, period.
	And then it goes on, you may have heard, in criminal cases.
	Thank you.
	All right, the next thing I had is under -- and if I'm skipping something, you have to let Damage is compensatory?
	Yes.
	Okay.
	there we have the nominal issue again so let me first let me address the did we the list of So I think we all agreed that wrongdoing instead of negligence already, right?
	Correct.
	Yes.
	And injury, we're going to use harm.
	Correct.
	Yes.
	Okay.
	And Your Honor, I intended to make those changes globally.
	Oops, on this one.
	All right.
	So I think we've talked about the whole issue of...
	Nominal damages, whether they're appropriate, given some of the claims.
	And I've looked at the case law as best as I can, and I just...
	I think what the plaintiffs are arguing is that in a defamation per se case, nominal damages are precluded.
	That's what I hear.
	Am I understanding that right?
	And that there's some kind of...
	I don't know, default or assumption.
	You know, Your Honor, the first argument actually goes to the emotional distress damages.
	Well, it's the same sort of argument, though, isn't it?
	Well, I think it's actually even clearer and stronger as to emotional distress, because the court is charging...
	I mean, the court heard my argument yesterday.
	I did.
	I mean, I... So, you know, it's inconsistent to say that there's severe emotional distress.
	The Court understands the argument.
	I do, and I'm going to not rule in your favor on that.
	I don't think that nominal damages are precluded in this situation.
	So, what do we need to do here under damages compensatory?
	So, Your Honor, we will stand on our objection there, of course?
	Yes, absolutely.
	I'm not sure there's anything more to do.
	I'm just triple checking to make sure.
	Are we otherwise set on this section?
	I have red lines and I agree with the red lines.
	I don't recall talking about those yesterday.
	Eliminating pain and suffering, for example.
	Yes, we did agree to that.
	Yes.
	Yes, we did.
	Your Honor, I'm sorry.
	Was there, is the court just accepting that in order to recover more than nominal damages, the plaintiffs have the burden?
	Or was the court I'm not sure.
	So we can try to work on different language to make sure we're stating it right.
	So I have...
	So what about this language?
	The plaintiff's burden.
	We're under damage is compensatory and I think Plaintiffs had an issue, if I'm not getting it wrong, second paragraph that says, in order to recover more than nominal damages, the plaintiffs have the burden of proving their entitlement to recover damages by a fair preponderance of the evidence.
	Am I on the right sentence?
	Yes, Your Honor.
	All right, so if I lift the language exactly from an appellate court from the Murray versus Taylor case, we can, I'll read a sentence from it and tell me if we can So
	that's, you want me to read it again?
	Yes, thank you.
	The liability of a defaulted defendant is established and the plaintiff's burden at a hearing and damages is limited to proving that the amount of damages claimed is derived from the injuries suffered and is properly supported by the evidence.
	That's the language Murray v.
	Taylor lifted from Ratner v.
	Willamette.
	So, and Your Honor, the idea would be to take out that.
	Well, I think it's probably, I think we're safer if we lift the language and quote it directly.
	I'm not seeing what we're lifting.
	I'm just, I'm not following.
	I think the issue of what do the plaintiffs need.
	No, I mean, I'm not seeing it in the, in, I'm on.
	Under damages compensatory, there's the first paragraph that starts the rule of damages as follows, and then Oh, I guess it is still the first paragraph.
	I'm sorry.
	That's what threw me.
	I don't see it.
	I'm sorry.
	Yep, it's the first paragraph.
	That's a long paragraph.
	Maybe around five sentences down.
	And it starts with, in order to recover more than nominal damages.
	No, I think if you want to add the Murray language, fine, but I believe that this is the third instance where we're just diluting the import of the nominal damage.
	So I wouldn't object to adding Murray after that sentence.
	Well, it is, you're right, Attorney Pettis, it does not use the word nominal damages, and I think this would be the appropriate pace to put it in, so I agree with you on that.
	So let me, let's, let me look at it and Your Honor, if I may, this had also implicated defamation per se, and the court had a question there.
	I'm sorry?
	Sure, sure, sure.
	So, with regard to the nominal damages to this issue, the court began with a question about our position on defamation per se.
	And I'll repeat that position from yesterday, which is that nominal damages in that instance could only be appropriate in the way that's described by the charge, which is that the Plaintiff gets set back by all of these aspects of the evidence like that.
	I understand your position.
	I just don't...
	Thank you for hearing me, Doug.
	Yeah, okay.
	So...
	Certainly.
	So how about this language?
	In order to recover more than nominal damages, The plaintiffs have the burden of proving that the amount of damages claimed is derived from the harm suffered and is properly supported by the evidence.
	No objection.
	I mean, that is...
	I mean, we can't get any more accurate under the law.
	So...
	I apologize, Your Honor, but would you mind giving it to me one more time so I can...
	I'm so happy that you're going to be doing it that I'll repeat it ten times for you if you want.
	Well, I hope I, so then we really need to make sure that I've got it right.
	So if we started, our laws impose certain rules to govern the award of damages in any case where liability is proven.
	In order to recover more than nominal damages, the plaintiffs have the burden of proving that the amount of damages claimed is derived from the, we're going to say harm instead of injuries, right?
	Harm suffered and is properly supported by the evidence.
	Because that language, the amount of damages claimed is derived from the injury suffered and is properly supported by the evidence is long established case law.
	Could we include is derived from the harm suffered as I have described it to you and is properly supported by the evidence?
	I don't think so.
	I mean, unless you're agreeable to that, Attorney Pallis.
	I'll do it.
	I thought the charges stated was fine.
	I thought the next one was fine.
	No, I don't.
	I think it's clear and it's an accurate recitation of the law.
	So I think that's where we'll leave it.
	Okay, we'll stand on our exception, Your Honor.
	Okay.
	So I think, and again, you have to tell me if I missed something.
	In damages for invasion of privacy and emotional distress, I made a mistake, Judge.
	I did not take out the non-testifying plaintiff, so I'll take that out in the next round.
	So my next item, I think, was under damages for libel and slander per se.
	Correct.
	And I think the only issue that was left was...
	Near the end, if I'm not mistaken, and tell me if I'm wrong, near the end that says, if, on the other hand, you find that the defamatory material is of significant character, that language?
	Yes.
	All right.
	Where did that language, very substantial damages, come from?
	That was interesting.
	I was very interested by that.
	I couldn't find it in a case law anywhere, but...
	I think the Koscoff brief bank.
	Well, in case of Koscoff v. Sterling.
	Yeah, I'm going to attribute that to Attorney Koscoff, Your Honor. - Okay.
	The very, but not the substantial.
	All right.
	So, obviously the very...
	No, actually, the substantial is in the case law.
	Oh, I know that, but I'm familiar with that.
	But the very, the very is...
	The very...
	It doesn't exist.
	You know, he's going to blame me for that.
	Give you an A for effort, though.
	So, Attorney Pettis, what is your...
	Taking out the very, what is your...
	I don't see an issue, but I could be missing an issue.
	I didn't see the need to depart from the standard charge.
	It struck me that this was reflecting the argument that wanted to be made at closing, which is fine, but I didn't see any deficiency in the standard charge.
	Okay, so I actually I try to look at it from the perspective of the juror giving them guidance.
	I liked it.
	I thought it actually clarified things, so I will include it.
	You note our objection.
	Absolutely.
	Okay, so I think that gets us up to new ground, correct?
	No?
	There's a tail end of that charge, Your Honor.
	So, what am I looking at?
	On page, well, let's see.
	After the new language about, you may award substantial damages.
	Okay.
	The language we just added.
	There's a sentence, nominal damages are also awarded when they are the only damages claimed and the action is brought for the purpose of vindicating the plaintiff's character by a jury verdict.
	That establishes the defamatory material as false.
	That just doesn't fit this case.
	No, it does not.
	It does not fit it.
	Okay.
	So that comes out.
	And then...
	The summary language...
	I thought it was confusing.
	I think it is because we're not claiming specials.
	So can you and Attorney Pattis maybe put your heads together if you even want summary language?
	Because I do...
	You know, Your Honor, I don't think we need it at all.
	I'll certainly discuss with Attorney Pat if he feels that we do.
	If we want to leave in, at a minimum, each plaintiff should receive a small amount, at least $1.
	I'll agree to eliminate these two preceding sentences if that sentence remains.
	No.
	We can't agree to that.
	Then you probably should decide, Judge, if they say if they give up.
	I actually think, Your Honor, I think we should keep the language Your Honor, I think we should keep the language about you may award punitive damages as a matter of discretion.
	I think that needs to be in there.
	All right, so I thought the summary was just a little confusing, but do we want to put some less confusing summary in?
	I'm okay with leaving You may award punitive damages as a matter of discretion, and at a minimum, each plaintiff should receive a small amount of nominal damages.
	You can eliminate the summary sentence in my view, Judge.
	We don't need it?
	Correct.
	Okay.
	But we do have an issue with...
	I understand.
	...should receive a small amount of nominal damages of at least $1.
	I... I'm not wed to that exact language, but I think that we need to include the nominal damages somewhere here.
	I think this states it precisely.
	Well, we do have earlier in the charge nominal damages of $1 may be awarded.
	Then we talk about substantial damage.
	So we do earlier in the charge talk about nominal damages.
	You know, Your Honor, I'm just looking back up that this is the nominal...
	Well, we've eliminated several, so don't say a lot, Jeff.
	Well, look at the earlier part of the charge, we talk about nominal damages.
	But we revisit compensatory damages because there are special considerations with respect to defamation, and if we're going to revisit compensatory damages, I think we need to revisit the anchor, and the anchor is nominal damages.
	No, I mean, Your Honor, if it just ended with you may award punitive damages as a matter of discretion, that would be great.
	Yeah, wouldn't it be?
	And it wouldn't be long-winded.
	We say, just bear with me, at the beginning of the charge, right, damages for libel and slander per se, Just bear with me.
	So we talk about, we have the sentence, if you find the plaintiff has suffered blah, blah, blah, he or she is entitled to at least nominal damages.
	Then we say nominal damages may be a word because you find the defamatory material is insignificant, blah, blah, blah.
	Then we also say nominal damages are also a word when they are the only damages claim.
	No, we took that out.
	Oh, am I looking at the wrong version?
	No, we just discussed.
	I think I have the same page twice.
	Well, it is confusing here.
	So, I'm going to leave the last two sentences in for now, and as soon as you can get me a clean copy and I can eyeball it, I'll leave the door open to address it again on both those sentences.
	Thank you.
	There's so many strikeouts now, and I'm working off a different version.
	I don't want to say it eight times, but I sure don't want to miss it and not say it.
	All right, so now we're up to Cutback, correct?
	Yes.
	Okay, and that's where we left off, no?
	I don't recall.
	I don't know that we...
	I think you've decided the ascertainable economic loss thing.
	Yes, but I mean, we haven't talked about the charge specifically, so tell me what we need to do under...
	What's the first thing I need to decide?
	Well, we had asked that the court extend its charge to charge on ascertainable lusts, given the defendant's argument.
	And so I would ask that the court do that.
	So that is – we're just – no, we're asking that the court charge on it as an element of liability, that it's been found.
	I don't think it's necessary.
	No, I don't think it's necessary either at this point.
	The court's rule, I've got it preserved.
	Yep, that's fine.
	Okay, so is there anything I have to address under COPPA? Your Honor, Just for the record, I'm not thinking that this – because we're not asking, at least in my conception of the way the verdict form would go, and this could be affected by the verdict form.
	In our approach, we would not be asking for the jury to allocate specific cut the damages.
	We would simply ask them to allocate emotional distress and refutational damages.
	So what I want to make clear for the record here, and I understand the defendant's dispute this, is that in our view, all of those damages are cut-put damages.
	Reputational harm and emotional distress.
	I don't think that has to be addressed in the charge here.
	I just want to make it clear on the record.
	All right.
	So what is the next thing I need to address on the charge?
	Tell me what page.
	I'm now working off the same version you're working off.
	Let's see.
	I think that would bring us to suggested amount of damages.
	OK.
	And I think we did talk about this briefly.
	You know, I prefer the standard charge.
	I don't know what...
	I do too, so I don't see any reason to deviate from it.
	Your Honor, we just feel that it's important that the jury know that all counsel can make those arguments, and that's the basis for the...
	I don't think it's necessary.
	Then, Your Honor, on the punitive damages charge, if you on the punitive damages charge, if you look at the plaintiff's-- 35.
	Yes, ma'am.
	35, yeah, is where it begins.
	I'm just not saying page numbers because I'm not sure which version everyone is looking at.
	Okay.
	If the court goes on to the plaintiff's proposed version, we had added the definition of willful, wanton, and malicious.
	Well, that we needed to do.
	Yes, that needed to be done.
	We agreed to that.
	And the defendants agreed, so we're done with that.
	I have one objection, Judge, and that is because of the way this case lies, that is three common law counts in a statute, In the statutory count, I object to the language that talking about punitive damages being limited to attorney's fees and expenses,
	Because I expect the plaintiffs to argue that Jones' conduct has caused such longstanding and ongoing harm that into the future these books will need compensation.
	And thus we need an enormous sum of money.
	I'll argue otherwise.
	But I think telling the jury that punitive damages are limited leads them to believe that this is the only bite at the apple that any fact finder will get as to Jones and might incline them to pack more damages into the compensatory than are warranted.
	And thus I think they will be told that punitive damages are decided by the court.
	It's misleading to tell them that punitive damages are limited to attorney's fees and expenses in this case because they're not.
	And so I would recommend, you know, plaintiffs seek an award of punitive damages and then These may be awarded if you find.
	And I would request that the limitation of the language saying limited to attorney's fees and expenses be excluded.
	I understand it's part of the standard charge, but the standard charge contemplates this count perhaps being charged in isolation.
	Given the law of the case as a whole, I think this misleads the jury about what they're going to be doing tomorrow or the next day.
	First of all, it is the standard charge.
	Second of all, the jury should be entitled to know what the truth is and what their award here will mean.
	I agree.
	Well, if juries are entitled to know what the truth is, are they going to be told the court will have the ability to assess punitive damages in an amount it finds in its discretion?
	Because that's the truth and the whole truth.
	Well, Your Honor, what I meant was...
	I didn't mean the whole truth.
	No, what I meant was the truth about the work that they are doing.
	They are being charged to do this.
	They're entitled to know what it is.
	And they also, I mean, it is the standard charge.
	I think one of the reasons why it's the standard charge, and Attorney Pattis' argument, you know, if it were viable...
	Would be in so many cases.
	I mean, it would be in any case where there's a cup account and any case where there is an intentional tort.
	So I just, I don't think that...
	What would be the harm in that?
	What would be the harm in letting the jury know the truth?
	I mean, we're here on a default where the, the, the, where, and with extreme limitations as a result of sanctions on what, on what could be told.
	My client has frankly elected not to testify because he doesn't, he thinks that telling the truth exposes him to harm you.
	So are you suggesting, Attorney Patis, that the language after limited to attorney's fees and expenses, that the words at the court's discretion be included?
	I'm suggesting they be eliminated, or in the alternative, the jury be informed that the court may award punitive damages in an untethered amount or in its own discretion under the cut account in addition.
	Because what I'm concerned about is the jury thinking this is the only bite at the apple that a fact finder is going to get.
	Therefore, we better load it up where we can in the soft money that is in future economic armor.
	Your Honor, the Court pointed out how important it is to charge fair, just, and reasonable over and over again, and it has.
	I agree.
	So I'm going to leave that language in.
	I understand Attorney Pettis will take an exception.
	All right, next.
	I think that's it.
	That brings us to the end of this charge.
	Then we have your filings.
	We do.
	Have you had any discussions with each other about them?
	Briefly we have.
	Very briefly, yes.
	Just give me one moment, please.
	And at some point, Judge, I need to take an exception.
	Thank you.
	Let me do that.
	A charge that was requested?
	Yes, yes, Judge.
	I suppose it'd be after a charge, right?
	I can't remember.
	It's been a long time since I've tried a civil face.
	I usually just do criminal.
	I'm sorry.
	I usually take the exceptions after the charge and then you know if I missed a word or something which I'm old.
	Well no it's the jury notification charge.
	I think you take that after the charge is given.
	All right so let me pull up the case and tell me which one but do you have agreements on any of them or no?
	Okay so tell me which one you'd like to do first please.
	I think we could take them in order.
	This is Docket Number 1001, Your Honor.
	So, Attorney Pettis, I don't yet see your office having filed your motion for directive verdict.
	Just please make sure that they get it in today so I don't worry.
	Yes.
	Okay, thank you.
	101. I'll take care of that at the lunch break, Judge.
	Yep, 1001, correct?
	1001. So we're taking up number one first?
	Yes.
	Defendants are responsible for worse damages due to plaintiff's vulnerability as grieving parents.
	Just one second if you don't mind.
	This is like the eggshell plaintiff?
	Yeah.
	Yes, it is.
	What we try to do is adapt a shell plaintiff to this circumstance.
	Is there an actual plan of standard charge?
	There is.
	It's 3.4-1.
	It's a paragraph in 3.4-1, which is damages general.
	All right, so just give me one second to get to 3.40.
	All right.
	Well, Tom, I'm just trying to find it.
	It's a long church.
	Do you remember where it is?
	In the standard church?
	Oh, I see.
	The last...
	Yeah, I can get there, Judge, in one moment and I'll pull up the standard as well.
	Do you want me to just read the last two paragraphs?
	Attorney Patis?
	Yeah, I object on the following grounds.
	The plaintiffs, what the court is unaware of, you know, the discovery was done.
	The plaintiffs, in some cases, had extensive counseling and psychological We used none of that, to offer no testimony about their psychological state.
	And we, to avoid enraging the jury given the court's rulings on causation, didn't address it either.
	We even reached certain accommodations as to one witness to cover this claim where the plaintiffs agreed to ask a question so that we wouldn't be in the awkward Your
	Honor.
	Our clients' medical records were produced extensively to Attorney Patis.
	And we're not claiming that.
	They weren't.
	Well, but the thing is, so Attorney Patis had the ability to cross-examine on them if he chose.
	Our clients testified at length about their emotional state in relation to the Deaths of their loved ones at Sandy Hook.
	Well, the nice thing about the Ed Shaw plaintiff charge is that it makes clear that you can't compensate plaintiffs for pre-existing.
	I mean, you could ward it in a way to make it...
	Our claim, Judge, is that notwithstanding the fact that many of these folks sought However, the plaintiffs chose not to put any of that evidence on, and now they seek the benefit of not having...
	Yeah, I don't agree with that.
	I mean, there was extensive evidence about their emotional and mental health after...
	But if our treatment saw it.
	And other sources of harm.
	In fact, the court's causation movement made it quite clear that I was limited in what I could do.
	But there was abundance of evidence.
	There was some evidence about counseling.
	There was, Your Honor.
	Yes.
	All of you were 12 visits to an AEP person.
	No, and then I could look through my notes.
	One of the recent witnesses also, there was one witness that talked about counseling that they went to with their spouse, and then I thought there was another witness, but it's not even...
	So, for instance, here's the Soto Girls, Bill Aldenberg.
	There's extensive evidence, if it turned on counseling, which it doesn't.
	Just give me one second, please.
	This is the standard.
	Well, you know, this is a one-way street, the way that it's drafted.
	It doesn't make clear that they can't be compensated for their original emotional distress that predated the wrongful conduct.
	Oh, okay.
	So I'm looking at the standard here.
	Okay.
	I mean, the standard says you may not compensate the plana for the, I mean, it says pre-existing injury itself.
	Right.
	So, Your Honor, may we have a moment, because there's a lot of whispering in my ear for me to concentrate.
	This is the standard.
	Thank you.
	- One of the most out of the show.
	So, Your Honor, we think the standard would substitute appropriately here.
	The only thing is we'd have, we'd just want to adjust it the way we have been One moment.
	So, for example, you may not compensate the plaintiffs for the loss of their suicide of Mr. Richmond, the suffering of their children, you know, you go on and on, the loss of their, you know, the loss of their, the loss of the decedents.
	I mean, I think that they're free to argue that.
	We're both free to argue.
	I just don't think, I think it's difficult to wade into here.
	Thank you.
	I think that's the approximate cause language in here.
	And the way that it is, how we resolve that when causation is already addressed by the default.
	Just give me one second, please.
	You said it was a pretty good floor, but it's not.
	Thank you.
	If I can suggest that the charges were due in this case September 19th, this is a supplemental charge, untimely filed foreseeable from the beginning of the case, and it's not beginning to take on a life of its own.
	And we're revisiting issues we've already addressed multiple times.
	I would say, Your Honor, if I may, sorry.
	I think that the truth here is that this issue has been resolved by the default much the same as its approximate cause issue.
	I agree with Mr. Pattis' first comment on this actually.
	I didn't realize approximate cause was in here.
	This issue was resolved by the default.
	These plaintiffs' damages that they presented in The misconduct by the default of Mr. Jones.
	And so what this is, is an attempt, Mr. Patis wants to attempt to bring in an alternate cause.
	Excuse me, Mr. Patis.
	Mr. Patis is trying to attempt to bring in an alternate cause of the plaintiff's emotional distress, which is It's an alternate cause of damages.
	That has already been decided.
	So, in other words, it would be improper for him to argue that the emotional distress that they're suffering isn't related to all of the evidence that we put on their, on the, you know, what the Jones has done through misconduct, but is related to the other things in their lives.
	And that's just, that's just not allowed, that ought not to be allowed in the default.
	That's bringing back in causation.
	Now granted, the emotional distress has to start after Mr. Jones gets into the picture.
	Everybody agrees with that.
	So, in other words, it would be equally wrong to say that he's responsible for the emotional distress before he gets into the picture, which was about three hours after the shooting.
	I'm objecting to their request to charge I understand what the law of the case is here.
	I don't think the charge is necessary.
	I think it's an effort to relitigate issues that have raised judicata, not just with respect to the law of the case, but in the charges as a whole.
	What about language along the lines?
	I think this actually helps both sides and makes it clear.
	Something along the lines of you may not compensate the plaintiffs for emotional distress, whatever you want to call it, suffered prior to the defendant's wrongful acts.
	However, If you find that a plaintiff was more susceptible to harm, the defendants are responsible for damages to an especially sensitive plaintiff.
	Something along those lines.
	So that we're making clear to them, you can't compensate the plaintiffs for their emotional distress related to the shooting, but I think it's parsing a line that doesn't need to be parsed.
	I don't think the charge is necessary.
	Well, I know that you've made that clear, but I... I object to the proposed proposal as well.
	I think the court's proposal covers it appropriately.
	I'll give it some thought.
	Your Honor, I didn't get exactly what the court said there.
	It's not perfect.
	Understood.
	I just wanted to...
	Listen, the truth of the matter is that they can't compensate the plaintiffs for their unrelated emotional distress that they suffered as a result of losing their children prior to the defendant's wrongful acts or their emotional distress related to losing their children prior That is not...
	This is where it gets a little tricky.
	And I would just say that that's the...
	We're getting back to the resonda etra of the eggshell skull in the first place, that at some point these things join, and they join three hours after the shooting.
	I hear you, but I just decided I'm not going to give the charge.
	You're going to deal with an argument, and if there is...
	Something occurs during the argument that's not copacetic, that's not accurate under the law, then I'll reconsider that because there's something to be said for making it clear to them.
	All right, so if somebody crosses the line or it needs clarification, then I'm going to have to go there.
	Can I speak to Attorney Koskoff for a moment?
	Sure.
	Thank you, Judge. Judge.
	You're welcome.
	So number two, I did say earlier that I was going to address this and I do think this is appropriate.
	I don't know that it needs to be so long.
	Can you remind me what number two is?
	About all the evidence that was elicited that Mr. Jones, I didn't say their names or I didn't say a name.
	That seemed to be a little confusing, I think.
	So I think that, and I did say earlier that I would address it in the final charge, but this is way too long.
	We would object to it at all.
	The plaintiffs never referred to him as the sole cause, but as the primary cause.
	And that leaves open some brief wiggle room, and we believe that supplemental charge charges out that wiggle room and makes It appears as though Mr. Jones started it all for the world as a whole.
	And that's just not even what was pled.
	But that's how the case ended up being tried.
	So I understand that, and your exception will be noted, but I like just the one sentence, the defendants are liable to the plaintiffs in this case, and it does not matter whether or not he singled them out by their individual names.
	And that's all that- I think that's correct, as given the law of the case.
	So that is, say again?
	Without agreeing with the law of the case, I think that's consistent with the law of the case.
	So I like that one sentence somewhere.
	Where would you propose that it go?
	In the thank you note to the juror after they've returned the verdict.
	I don't take the position on that.
	Attorney Sterling, what we just heard you said.
	Maybe in the evidence section, you know, where you tell them about their duty to find the evidence and follow the law.
	It seems to me it should go in the defamation charge.
	Not the defamation damages charge, but the defamation charge.
	Tell us, give us the proposal now so that we can see if Attorney Pettis can live with it.
	Thank you.
	I want to just make it the second sentence.
	The second sentence in the defamation charge?
	Yeah, the court has determined that the defendants are liable for defamation.
	The defendants are liable for defamation, and it does not matter to their liability whether they were singled out by their individual names.
	That's elegant.
	We agree.
	Okay.
	I mean, that makes sense.
	That's fine, Judge.
	Okay, next.
	Thank you.
	Okay.
	Just bear with me.
	Okay.
	Okay.
	I don't see this.
	I don't know which one, Your Honor.
	First Amendment, Second Amendment, politics, when the lawsuit was filed.
	Your Honor, I think we can pare this down significantly.
	So what we would ask is simply a line that says the first...
	Nothing?
	Second.
	Can we have a moment, Your Honor?
	Sure.
	Thank you.
	So, Your Honor, thank you for your patience.
	We -- the committee over here has decided that the only aspect of the charge that we want to stand on here is the piece regarding when the lawsuit was filed.
	It's at the very bottom of the page.
	The date, when the plaintiffs filed the lawsuit, Attorney Patis.
	I don't recall the language, but my sense is it's, I think it's an inappropriate charge.
	The claim is that from three hours after the shooting, Jones caused them extensive harm.
	I think this jury is entitled to wonder, and may well wonder, why it took them five years to file the suit.
	Well, I think that's where the objective politics- Exactly, that's why we need the charge, Judge.
	that it merits some clarification.
	So maybe just one sentence.
	May I just point one thing out, Judge?
	Based on what Attorney Pat just said, his argument, he said he, that Jones had made the statements within three hours correct.
	He wants the jury to draw an inappropriate inference from that, and that's why it's, that's why...
	Well, I'm going with the sentence, so you don't need, what do you want me to change my mind?
	Should I just sit down, then?
	Yeah.
	The date on which the plaintiff's filed the case is irrelevant to your considerations, and you should not consider that in any way in determining the damages on this case.
	I don't see how it is relevant or how they should consider it, so there's nothing wrong with that sentence.
	We take an exception.
	I understand.
	So then the only question, Your Honor, is where does that go?
	It strikes me that that ought to just be its own standalone action.
	I'm not sure where it would go.
	Maybe after clauses of action and before intentional enforcement of a motion of distress?
	That makes sense.
	Oh, Ron, can I see you for a second?
	So I'm going to finish this.
	I don't think it's going to be more than ever.
	Maybe 1:15.
	Do you have somebody else who can come in for a little while?
	Uh-oh.
	I can check out the call.
	I don't think she'd have a problem.
	I'm not asking.
	I want to go after one, but I don't want you to stay because it's been a long day.
	So I think we're probably going to go after another 1.15 or so because I want to get done for the day.
	She's saying it's fine to stay.
	I don't want, I'm not asking, I don't want.
	Thank you anyway.
	It's too much.
	Alright, so missing videos, what's this?
	Number four?
	Yeah.
	And Your Honor, on this one, there's also, you know, we thought that this needed some support from the record so that there's a motion in support of this charge and a revised proposed charge in that motion.
	That stock at number?
	So can we skip this and then get- Let's skip this.
	Okay.
	And then the very last one in here- Is a charge on playback and videotape depositions, which the Court's already given and does not need to give again.
	Okay.
	So that takes us to the end of this.
	Sure.
	So what's the next document we're looking at?
	And my plan here, I'm making, I want to finish and then adjourn for the day.
	Just so you know.
	So we're going to...
	So I think...
	You agree with that decision, Attorney Patis?
	I agree, Judge.
	Yeah.
	All right.
	So the next one?
	Taking them in order, the next one would be life expectancy.
	That's docket number 1005. And we...
	Yes.
	So I might, I think, as a sidebar, I suggested all the factors in 3.410 be charged.
	Having had a chance to read through it, I would agree to only that the first, second, Oh, the list?
	Yeah.
	Yeah, that's what I was trying to put the lead in here under the facts of this case.
	Why don't you want to just talk to each other real quick and see if you can do it that way.
	Thank you.
	In your award damages, you should consider.
	Okay.
	I'm proposing that.
	I'm proposing that.
	You're not offended that I didn't ask you to stay.
	But, you know, here's the thing.
	I don't like to do that.
	There's no one ever says that.
	And I'm going to say no.
	I'm avoiding saying, if anything.
	Say no.
	And that's why you like that.
	Thank you.
	I just want to do that.
	I just want to do that.
	Be pushy or impose, do you know what I mean?
	Because how hard would it be?
	I understand how long of the time people have lives, they have lunch plans.
	Maybe you would, but, like, some people would never, even if it was a problem.
	So that's why I always, like, hug the policy.
	So what are your things?
	Thank you.
	Okay.
	All right, did you work it out?
	We're just trying to line this up, Judge, with the part of the charge where the court instructs on future damages.
	Okay.
	So once we find that part, I think we can bridge it.
	I wanted to point out, just because we have not yet addressed verdict forms, and I think that that is an area where we're not very far.
	Okay, let's finish the charge first and then figure out when we're going to do that.
	I just wanted to alert the court because I was concerned about lunch and staff.
	All right, well, we're going to get through the charge before we take our lunch break.
	Or start.
	I just need to see if it lines up because I need some new branch.
	Okay.
	So.
	You need to work with future.
	We should say.
	If you will work with future.
	No, she's.
	So it's going to go.
	I think it would go after.
	After.
	Before suggested.
	Where is.
	I just want to.
	What is the.
	Charge.
	It will have charged.
	In a couple of different.
	Places.
	So.
	Let me see.
	In terms of future.
	How about this one?
	Which time is it works with the language?
	In terms of future.
	Ms. Ellis can come in, but she'll have to shut down and she'll have to restart.
	That might take 5-10 minutes.
	We have a different court reporter starting at 2.
	That's why she knows it might stay in the 15 minutes.
	In your consideration of damages, in my view, I think I just have to say the future, you should consider...
	I may do the afternoon, like 3 o'clock or something, and do it remotely.
	And do the...
	Yes, of course.
	If you're going to...
	It might be a week's old.
	It's not...
	I'm going to give you some written...
	I'm going to give you fellow Squiffiners, highest respect, adopted into your language.
	So how does it work?
	Well, that's what we're...
	We just have to see if it works.
	Okay.
	So, so, this is the damages compensatory.
	No, because there may not be much left.
	You may just end and then do the...
	Declanation damages.
	...verdict form.
	And...
	Let me see.
	Let me...
	Can I interrupt you for a second?
	I'm just trying to figure out what to do with the court reporters, if I'm having someone sub in or not.
	After this, putting aside the verdict forms, how many more issues do we have?
	We have the missing evidence charge.
	We have the verdict form.
	Attorney Pat has said proposed interogatories.
	And I think that's it for charge and motion issues.
	All right, so once we do the, the interrogator is inverted form, we'll do after lunch.
	So you'll talk about this, then we have one more issue on the charge?
	Yes.
	Okay, so that's good.
	Good, so we don't have to switch on because it'll be, we might end on time at the rate we're going.
	I think the bridge is going to happen.
	Because it's going to come out on a stone right now.
	Is she going to pop this right now?
	Is that what we're going to happen?
	So.
	I think if it goes here, it could go there.
	Or, you just have to look at the world's future because there's no bearing on what it is or it is.
	So if you have a read, let me just look at how it reads.
	It just needs, I think, any considerations.
	It's not even my good.
	Yeah, okay.
	Because of that, because of the use of the bird future there.
	So my...
	In your consideration of future damages, you should consider the probable length.
	Yeah.
	And then I do agree with this.
	Eliminate all five of the factors.
	Okay, that's fine.
	All right, so you worked that out, and then we came to Kleenex appliance.
	Oh, right, right, right.
	Right, then we do according to the standardized tables.
	Right, right.
	Name, Kleenex, and the life expectancy, and then all this standard...
	Yes, stuff.
	We have an agreement, Judge, but it's going to take a little bit of housekeeping on our part, but we can do that out of the courts.
	Okay.
	All right, so then we have the last item.
	Should we put the agreement on the record, Judge?
	Beg your pardon?
	Should we put the agreement on the record or not?
	Well, when we come back on the record after lunch to work on the interoperatories and jury form, we can do that then.
	You know, put it on the record.
	I just wanted to get to the last item.
	No, I'm on the issue.
	I just don't know what entry number it is.
	Okay.
	All right.
	And I just want to make sure I know about where that goes.
	Okay.
	Your Honor, the last issue for the charge is the motion regarding missing videos, website analytics, and social media analytics.
	And we had proposed a charge on that with regard to...
	Is that entry number 1006?
	It is, Your Honor.
	So we felt like it was important for the jury to be alerted to the fact that the defendants did have an obligation to produce some of the materials that they heard about because we're prejudiced by the absence of those materials and our ability to prove damages.
	And of course the court's familiar with the You said testimony of Mr. Watts?
	The testimony of Mr. Watts, the testimony of the witnesses, Ms. Paz, right, the missing videos, the missing social media analytics information,
	the incomplete Google Analytics information, which isn't just established, obviously, by the testimony of Mr. Watts, but, you know, the court had recently reviewed the Roddy affidavit, which Uh, established that there were some abilities that the defendants had with regard to Google Analytics.
	We obviously never received that production.
	So, there is...
	So, here's what I'm gonna say.
	I, I hear what you're saying, and I, and a normal person who's not in the profession, you know, a normal juror is not gonna understand where the obligations lie and might fault the plaintiffs and think that you didn't do a good job.
	However, you gotta book.
	This is a sentence or two.
	You have literally five paragraphs.
	like it's a sentence my my contention is that the plaintiffs have reaped abundant benefit in terms of both the default and limitations on what we could say including the extent of videos including arguing you know non-profiting from these things and we've adhered to those rulings and i think this is lily gilding at this point i i understand your position now
	Nonetheless, it's very confusing to a jury and they may fault the plaintiffs for not doing a good job or feel like they didn't meet their burden of proof somehow.
	So I think one or two sentences and probably one is all you need and there's no need to overemphasize it.
	Your Honor, would the court like us to work on a sentence?
	let's do it right okay so Chris just in terms of morbid science
	There was another race.
	So can you just describe for me in a couple words what we're talking about here exactly?
	Is it the analytics?
	Is it the videos?
	What is it?
	Not without argument, just the words.
	Just the words.
	Videos.
	Uh, InfoWare videos?
	Yes.
	Okay, go ahead.
	Uh, social media and marketing analytics.
	Google Analytics is different.
	financial debt.
	So can we, what if something along the lines of evidence was presented?
	I don't know.
	Of info, words, videos, blah, blah, blah, based on what was produced by the defendants?
	Well, it wasn't all produced by the defendants.
	We did a lot of this on our own.
	They didn't give us stuff.
	we ended up finding it from other sources in certain cases, but in other cases we weren't able to.
	Right there.
	Well.
	Well.
	Right there.
	So are you essentially saying the plaintiffs had no ability to present all the InfoWars video, social media, and marketing analytics, and financial materials?
	Essentially you're saying because they were not all provided by the defendants?
	That's correct.
	But, but, and, sorry, I ran out to, um, but, but also that the fact that we couldn't present that I mean, one way, it shouldn't be held against us, but since we bear the burden of proof, that's where the request for the inference comes from.
	There's no evidence to suggest the defendants could have produced it themselves either, given the state's disorganization there.
	But that's not the case at all.
	Listen, Attorney Pattis is right, you've already had the benefit of the default, but I can see where you might want to How about the following, Judge?
	The plaintiffs should not be penalized for their inability to produce a complete record.
	In other words, you should not draw an inference against the plaintiffs for their inability to produce complete records as to this, that, and the other thing.
	Or you should not hold it against the plaintiffs?
	But it's more than that, Your Honor, because the problem is that we bear the burden of proof on damages, and this impacts our ability to bear that burden.
	And I think that was perfectly clear in the testimony of Mr. Watts, who did extensive...
	Well, they'll have that testimony, and they'll be able to argue that.
	So if we can't come up with something in a sentence that's appropriate, and you clearly don't want the jury to hold it against you for not producing...
	The missing information that was referenced by Ms. Paz or by Mr. Watts.
	And it wasn't produced and it was missing not because you didn't do the job.
	It was missing because it wasn't produced by the defendants.
	So we could do something like we requested this information and they withheld it.
	Well, I disagree.
	I was involved in this.
	they didn't withhold.
	They couldn't find, they don't have all this.
	This is not CBS.
	They didn't keep a catalog of videos.
	They never come, they don't believe.
	I don't understand the way I'm just going to be.
	How about something along the lines, you know, however you want to say it.
	You heard testimony from Ms. Paz or Mr. Watts about Whatever we're talking about.
	Missing information related to analytics or whatever.
	Right?
	That that's true.
	And then say something along the lines, just give me one second because I just lost my sentence.
	The plaintiffs had no ability to present that missing information to you.
	And you should not hold it against them.
	Something like that.
	Neutral.
	That's the truth.
	They did hear evidence about a lot of missing information, they did, from Ms. Paz and Mr. Watts.
	The plaintiffs had no ability to present that missing information, and you should not hold it against the plaintiffs.
	So that if they're left to wonder, well gee, all this stuff is missing, why didn't the plaintiffs do their job?
	Why didn't they meet their burden of proof?
	You want to say why they had no ability to produce it?
	No, no.
	The issue is, Your Honor, that we've spent a lot of time working on how it's our burden to prove, our burden to prove.
	And so don't hold it against us.
	I mean, it's only, it doesn't solve the problem.
	I understand.
	So say it neutrally.
	That, you know, the defendants did not produce that information.
	It's neutral.
	That's the truth.
	The defendants did not produce it.
	And so the plaintiffs could not present it to you and don't hold it against the plaintiffs.
	That's the truth of the matter.
	The defendants did not produce it.
	We're not taking it any further.
	They've already been defaulted.
	So that's the language I like.
	Okay.
	I certainly understand the court's preference.
	I think we would need to accept there because...
	Well, you're both going to accept this, so I've managed the impossible, haven't I, on one sentence.
	So I think, Your Honor...
	Well done.
	So I think I have what the court's preference was.
	Do you want to read it so that I can...
	I think we have to fill in some information, but it was...
	Well, I need to do the...
	I need to know that the charge is done.
	Yeah, no, I understand.
	Well, we may not...
	Excuse me, sorry.
	It's getting towards lunch.
	Everybody here is hangry.
	I don't know if that's either.
	But...
	Not wanting to be penalized for their failures, their almost historic failures that have gotten to us to this point.
	And so it's not just a matter of deprivation of the material that led to the default, it's adding to that a burden here in court To prove things, and we're handicapped from that through no fault of our own.
	In fact, through a fault that led to a default.
	So it's not enough, in our view, Dispute that.
	It's just that we need a little, we need it to be known that, you know, this is adverse inference territory we're in.
	We just need it because otherwise we're being punished for the wrongdoing in the discovery of the defendants.
	And so if we can just, and more to the point, We've shared the court's preference on this.
	We need to talk about whether that does more harm than good.
	Judge Mike, this is filibustering.
	I can understand the need for a strong adverse inference charge if the jury was going to decide the issue of liability.
	But we were defaulted.
	There were additional sanctions awarded even on the cusp of evidence based on late disclosure limiting what we could and couldn't say.
	The combination, with respect to those recent limitations, they had a material bearing on my client's willingness to testify.
	It seems to me that the plaintiffs have reaped ample benefits from these failures and that this is overreaching.
	But we are trying to...
	I understand, but here's the thing.
	I could have told them the reason for the default all along, and I did not.
	So they are here not knowing any reason why it's a hearing of damages and why they're just addressing liability.
	Which we think prejudiced us.
	We requested that they know the reason for the default.
	You requested that they know that they were defaulted for- We wanted to produce your ruling on the default as it Yeah, that's it.
	Go ahead.
	You wanted the transcript, and I did not want that transcript.
	That's what you asked for.
	You did not ask ever for the reason for the default.
	Well, I think there is a reason for the default.
	Well, then maybe this is the point where we...
	We could address that.
	At this point, because now the case has been tried.
	There were things I could have done with that information, which was the point of asking.
	Right, but you never, you asked for the transcript, not...
	Well, I mean, that's a distinction without difference, you know.
	No, I disagree, Chairman Patterson.
	I want the Word of God.
	I'm a Christian.
	I asked for a Bible.
	Well, you know, I mean, you know.
	All right.
	So, something along the lines of Mr. You heard evidence from Mr. Watts.
	And Ms. Paz regarding missing whatever.
	The defendants did not produce these materials to the plaintiff and therefore the plaintiffs could not present this evidence to you.
	And then some neutral language.
	Another sentence maybe after that.
	So we could write that out for ourselves, Your Honor, but then I think we would need to talk about whether we would ask the court to charge it or not.
	Sure.
	Alright, so what time do you want to pick up on this issue?
	You're going to work on the life expectancy.
	We'll put that on the record.
	The interrogatories and the verdict forms.
	What time would you like to meet again?
	Three?
	Yeah, I'm at the court's disposal.
	Three o'clock is fine.
	Okay, sounds like a plan.
	Okay, and just for tomorrow...
	What's, how do you want to break things up?
	You mean in terms of lunch, before lunch, after lunch?
	Lunch, recesses.
	It seems to me that we, that may be a little bit of a play by our situation depending on how long things go.
	I just wanted to alert the car, Mr. Matty's going to be doing the summation and I'm going to be doing the rebuttal.
	So we know how much time we have to work with How about we leave it like this?
	Whenever you want your recess, you can ask.
	So if you would like a recess, say they go and you're up and you feel like you need a recess, just ask for it.
	Or talk to each other and let me know.
	I'll be flexible.
	I'm not...
	however it works out for you.
	Okay.
	I mean, I don't know how...
	Morning recess rather than lunch break or something like that.
	Actually, we should be done.
	Well, I don't know.
	Well, we start at 10. I won't take two hours.
	How long are you going to go, Attorney Metty?
	Any idea?
	An hour or an hour and a half.
	So let's say that takes us...
	Mine could go to the morning break.
	Okay.
	I don't think it could go longer, I doubt it.
	Okay.
	Probably a little shorter.
	So if I had a little shorter, sorry, if I had a little shorter, is what you're suggesting that if Attorney Papps wanted to, we could take the morning break?
	Sure.
	And then, you know, I think we can sort of play it by year two because I don't want to break up his clothes with lunch, for sure.
	So maybe I can work something out with the court reporters.
	I don't know.
	I hate to do that.
	I don't think I'm going to be more than an hour.
	I mean, I haven't heard the closing of it.
	I heard the case.
	So you think that it, let's put it this way.
	We'll make sure that we work out in a way that your closing isn't interrupted by lunch.
	I mean, it sounds like it'll work.
	And if we have to take lunch a little bit late, you know, say something happens, say you go longer.
	Or we'll short in the morning, recess if the staff doesn't mind, so that we'll get you done by lunch.
	Thank you, Judge.
	And then, so that sounds like a plan.
	Alright, so I'll see you folks then, 3 o'clock.
	I'm going to do it remotely.
	Okay.
	So we're going to do it on the computer, so you can go back to your offices or wherever you are.
	So don't we have to stay for purposes of the exhibit?
	Oh, you do.
	Indeed you do.
	It's a good point.
	Let me figure that out with Ron and I'll let you know in our coffee break room in two minutes, okay?
	Yes, Judge.
	All right, take a recess.
	Sorry about that.
	I thought we were going to be done later on.
	And what I did was just...
	Thank you.
	Okay.
	Where do you want to start? - Good afternoon, Your Honor.
	Eleanor Sterling with me again are Josh Kaskoff and Matthew Blumenthal.
	With regard to the charge regarding the missing information, we have a proposal for the court.
	Go ahead.
	I'm going to try moving it first because it's a little messy.
	You have heard that plaintiffs requested all Sandy Hook videos broadcast by the defendants and all analytics regarding InfoWars, social media, website and marketing materials, and financial data.
	The defendants did not produce complete information in response, and as a result, the plaintiffs had no ability to present the missing information to you.
	I think that's close to what the court indicated was its preference.
	Can you do it one more time?
	Of course.
	And so we, so without me checking my notes, there has been evidence along the lines of those first two sentences for sure?
	Yes.
	From.
	But, yeah.
	Yeah.
	I thought it was that, well, why don't you read it again?
	I just didn't think the evidence was that they Didn't produce it, like, during discovery.
	I thought the evidence was that, I don't know, read it again.
	Well, so it's different with regard to different information, right?
	It certainly was all requested.
	Oh, that wasn't, I'm not sure, was that the evidence that we requested it?
	So there was examination of Brittany Paz about what was requested.
	But I don't think the evidence suggested that that was all requested that that came in through Ms. Paz.
	What if we said since we're a little bit uncertain uh we could say hold on one second I mean it wasn't it wasn't made available to you and therefore you could not utilize it that's what the punch line is here okay that's a sentence But it has to be established what the – what it was that we – I mean,
	I think we – I think putting aside the – What if it wasn't – what if it doesn't say you have heard?
	It just says the plaintiffs requested all Sandy Hook videos broadcast by the defendants and all analytics regarding Infowars, social media, website, marketing materials, and financial data.
	The defendants did not produce complete information in response, and as a result, the plaintiffs had no ability to present the missing information to you.
	Because I just don't know if the evidence is that all of that was requested.
	I think the plaintiffs point in there, without agreeing to this and waiving my prior objections, I think that last iteration avoids reference to the evidence and incorporates the activity of the case as a whole.
	discovery included.
	So if the defendant, if the plaintiff's fear is that the jury will hold the lack of information against them, what this tells them is wherever, whether here or in their trial or in discovery, the plaintiffs requested completed The defendants did not produce it.
	As a result, the plaintiffs could not do Y, whatever that is.
	I object to the charge at all, but I think if you're going to give it, that's a neutral form, and it avoids the problem of what the evidence was in the case, and is true to the record of the case as a whole.
	There's also some spoliation case law, Your Honor, that says that the court can charge in a way that takes into account the history of discovery, if not, not every...
	Right, but what was proposed was you have heard that we requested and I'm just not sure I heard that.
	You're backing off of that.
	Right, we are.
	So let's go to the hopefully final version.
	Okay, okay.
	It says, the plaintiffs have requested all Sandy Hook videos broadcast by the defendant and all analytics regarding Infowars social media, website and marketing materials and financial data.
	The defendants did not produce complete information in response and as a result, the plaintiffs had no ability to present the missing information to you.
	It's pretty neutral.
	Anything to add to that?
	I know you're objecting to it, but...
	If you're going to give it, that's the way to give it.
	All right.
	Objection.
	Can you start it off while the plaintiffs request it and make it, like, one sentence?
	All right.
	So what's the next issue?
	Did you work out your life expectancy issues or no?
	Yes.
	Oh, good.
	Okay.
	You just want to submit four decades.
	Your Honor, we plan to submit life tables as exhibits as well as an accounting of the plaintiff's birth dates and their expected lifespans from today with a charge that's been agreed we plan to submit life tables as exhibits as well as an accounting We need to agree with the charge.
	Oh, okay.
	Let's see what's that, Your Honor.
	Take your time.
	Your Honor, there's one thing we want to double-check there's one thing we want to double-check on the missing information chart.
	If we come back to the court, it will only be with a deletion.
	So we won't.
	And these last words.
	Yeah.
	And six supplemental charges.
	I have a feeling those were the last words.
	I can give you this one.
	This is the agreed upon charge for life expectancy.
	It reads, In your consideration of future damages, you should consider the probable length of the plaintiff's lives.
	This may be proven through standardized mortality tables and evidence of the plaintiff's age According to standardized mortality tables, the plaintiff's life expectancy is the following number of years from today, and then it lists each plaintiff's Tables to the nearest whole number.
	And then reads, bear in mind, this figure is only an estimate of a plaintiff's length of life based upon statistical data, and it is just one element to consider in determining a plaintiff's life expectancy.
	You may find that a plaintiff will live a longer or shorter period of time based upon your assessment of all the evidence regarding the plaintiff's condition and the circumstances of their life.
	That's great.
	Okay, that sounds good to me.
	Your Honor, we also have an agreement about where that goes in the charge, and the plan is to credit in the compensatory damages charge.
	There's a sentence that says, It talks about future damages, and it closes, likely to suffer in the future as a proximate result of the defendant's wrongful conduct, and then that life expectancy charge will get inserted right there.
	And, Your Honor, I'm planning on making these changes and circulating them to you and Attorney Patis tonight, if the court would like me to do so.
	Oh, like I needed them today, as soon as they're done, before you leave.
	And that was, I could do that too.
	Absolutely.
	Because we could easily pick up on a stray mistake or word or something.
	Absolutely.
	I'm not going to look at it tomorrow for the first time.
	Oh, no, no, no, no.
	I'm sorry, Irina.
	That's fine.
	Okay.
	So, verdict forms and interrogatories, is that where we are now?
	Yeah, and my sense is that we...
	We could use some guidance from the court on this.
	We're not...
	We're coming at this from two different places.
	I could see that.
	Although we have had some discussions.
	The rulings this morning have simplified my requests.
	With the ascertainable laws?
	Yes.
	Yes.
	And we've had some preliminary discussions.
	I'm intrigued by Attorney Sterling's suggestion that guidance for the court might help us because we are still far apart.
	Do I defer to Attorney Sterling on the guidance that might help?
	I'm not sure what guidance I can give you.
	I have never, I have only seen and used verdict warnings that simply breaks it down by cause of action, which, you know, so I understand that the issue I think with that here would be that it's just confusing and potentially duplicative.
	You know, the emotional distress charge that we looked at would be applicable for I-I-E-D for false light and for emotional distress as it results from damages, sir, excuse me, from defamation per se and for cutva.
	So I imagine you share that concern that you don't want duplicative damages, right?
	Well, here's the concern I have, Judge.
	I mean, attorneys, the Costco's, the Costco's firm's verdict form has the virtue of elegance, but it might obscure things that are necessary to protect my client's interest.
	I don't know if the court has my Right in front of me.
	Okay, so my view is obviously I don't need economic harm given your rulings and the ascertainable loss question.
	But here's what I was after in this as drafted.
	By making a finding as to each of the claims, each of the counts, and then I'm able to,
	as to both compensatory damages and then punitive damages, as to both compensatory damages and then punitive damages, I'm able to correlate whether the defendants are in fact entitled to punitive damages because there's a unanimity requirement.
	And so this is almost a specific unanimity argument, and I know that the State Supreme Court Just had a series of decisions on specific unanimity in a variety of contexts just two weeks ago.
	But here's what I'm concerned about.
	If you do what the plaintiffs propose, You can have the jury conclude that plaintiff A had a breach of privacy, but nothing else.
	Plaintiff B had defamation, but nothing else.
	Plaintiff C had intentional infliction, but nothing else.
	And that's all allocated.
	And then you go right down to the punitive damages question, but they weren't unanimous.
	And so by aggregating the claims, you're obscuring the unanimity requirement as to punitive damages.
	The virtue of what I've proposed, if there is one, is that by making a finding as to each claim, we're assuring unanimity as to the necessary predicate to get the punitive damages and preserving any sort of BMW v.
	Gore claim that I might have later, depending on the size of the compensatory award.
	So I would propose that the court, if it were so inclined, can give my charge As to each claim on emotional distress, if they've not proven it, then they're directed to give it a dollar.
	And then in what some fairly just and reasonably compensation, it's either a dollar or the sum.
	And then as to each claim, they have to decide yes or no as to punitive damages, as to the common law claims, and then as to the cut of a claim.
	I understand it's the court's discretion to give it, but I'm requesting that they be given a yes or no question there.
	And that way, my client is assured that the jury made a unanimous finding as to each count, for which compensation is We're worried whether unanimity was found as to any claim, because you could have people mixing and matching.
	I'll give you defamation, but I won't give you intentional infliction.
	Well, I'll give you intentional infliction, but I won't give you privacy.
	And the result is we get six people deciding different things to the derogation of the unanimity requirement.
	We're in a default posture.
	So there is, I mean, if the jury were determining that, you know, intentional infliction hadn't been established, that would be error.
	No, I'm talking about damages as to be counted.
	So, and the charge that we have just worked through has two categories of damages.
	It has emotional distress damages, which in our view, although we understand the defendant's disagree, are available under all four causes of action, and it has reputational harm, which is available under defamation per se and CUPA. I find both of these confusing and I'm having a hard time finding my way to something that's not confusing.
	I just find them both confusing and I'm just trying to figure out how.
	Maybe we should give the court a moment without I don't think.
	Can I take a crack at it, Judge?
	Anybody can take a crack at it.
	The reason why we settled on these two, if you look at our verdict form, you'll see that under each plaintiff there are two lines.
	Now, possibly to our disadvantage, you could argue that you could have six lines for each Or reputation, future.
	You could have past privacy, future privacy.
	You could have past, emotional distress, future.
	But to simplify it, We felt that really when it comes down to it, there are two very distinct categories of damages here.
	One are the defamation per se damages.
	And those are the damages that we went over earlier that are what the law might call general damages, right?
	Those are self-effectuating damages.
	You don't have to put on evidence for those.
	There's a legal inference that is drawn that they are of harm depending on the nature of the, for lack of a word, the nature of the slang.
	And the reach from nominal, somebody tells one person a lie about a person of bad character, that's nominal, versus substantial, which we think we have here.
	But in any event, those are one category that do not turn on emotional distress.
	The second category, which is another sort of bucket, is the emotional distress damages.
	And those damages are occasioned here by the default, for sure, by the infliction of emotional distress claim, as reflected in the name itself.
	And as Attorney Sterling has pointed out, under CUTPA. Now, invasion of privacy, which could arguably be another line here, is actually considered in the case law one I understand this.
	I've not seen anything like this before, so I'm sort of reticent.
	Right.
	None of us have.
	I'm just going to default to the old-fashioned way of doing it and I think it's going to be a lot longer and it's not going to please either of you, but can we talk about the possibility of doing it count by count?
	May I inquire, Your Honor?
	I'm just trying to find what the court's concern is about...
	My concern is that that's what I've always used and I've never seen it done like this and I'm not sure this is the case that I want to start doing it with.
	So since the way that everyone has always done it is count by count and I've never...
	I haven't heard or seen anybody not do it like that, unless you want to give me some appellate court case where it's been affirmed on appeal, and I'm not aware of any.
	So if we were to do it count by count, which is the only way that I know...
	It becomes more lines for us.
	I mean personally, I think doing it count by count, there's more possibility of I'm sorry to keep referring to that, but I've had a lot of experience in those.
	The court would list, and again, this is not a default posture, but let me translate it.
	We're out of default posture.
	The defendants have to prove, they're entitled to the damages they prove.
	And so, what damages have you proven in A? What damages have you proven in B? What damages have you proven in C? And then there's a cautionary instruction, if those damages overlap and are duplicative, that they can't award them duplicatively.
	We charge on that already.
	So I'm not seeing the need for interrogatories, but I think we can do it the old-fashioned way, count by count, without interrogatories and figure out...
	Your Honor, I think the reason why I propose the verdict form this way is that the measure of emotional distress damages is one measure.
	I understood it the first time we said it.
	I still understand it.
	Yes, so what I'm imagining in the scenario the court is describing is a lot of instructions that this number should be the same.
	What my concern would be is that we would end up with an emotional distress number for IIED that's different from the emotional distress number For false light, even though the charge tells them it's the same measure.
	So that's my hesitation.
	Well, I think everybody shares that concern.
	So how do we avoid that problem?
	I don't think we do.
	I think on appeal, there's a well-developed body of case law on what to do with inconsistent verdicts.
	And so I'm less concerned about that than I am assuring that as What happens if we went along?
	Again, this is unfamiliar territory to me because I've never done it this way.
	Is there any way of putting in descriptors or something underneath the two categories of damages so that it links up to the causes of action?
	Yes.
	So if we were to...
	I'm just thinking out loud.
	I just...
	So if we did defamation and slander, damages, and under that we listed these are damages for intentional infliction, false light, emotional distress...
	I mean, here's the thing.
	I try to think of my mother on this jury, God forbid.
	And...
	She's gonna hear this charge on these causes of action, and then she's gonna get this form.
	She's not gonna, she's gonna be so confused.
	I know, Your Honor, that's actually why this charge is that way, because...
	I know, but it doesn't list the causes of action that I just charged them on, and I just think it's confusing.
	I don't know how else to say it.
	Maybe it's not confusing to you because you drafted it, and this is what you do for a living, but I think to...
	Is it your mother or your mother's name?
	My mother.
	Your mother.
	I think your mother might be a little confused by this simple two-line form, but I think your mother would probably be driven crazy by this suggestion that So what about the proposal of adding some explanatory language under the categories?
	I think we can try that.
	I disagree.
	I think the locution count by count describes what I'm trying to capture with the interrogatories that I submitted because my fear is that unless it's count by count I'm not assured of unanimity and I'm entitled to that.
	The reason why we sometimes do count by count, Judge, is because we have a liability issue so you have to establish count by count.
	Did the plaintiffs prove right?
	Did they prove that?
	Yeah, put some language in there that makes it that you go down to the lowest common denominator You know, the plaintiff claims emotional distress damages related to their, you know, this, this, and this.
	Only four find a sum for IED and two don't.
	They're not entitled to anything because they haven't proven- I'm not understanding that.
	Say it again.
	Even though, I disagree with Attorney Koskoff about count by count being applicable only in a liability case.
	In this case, my understanding is that obviously as a hearing As to IED, for example.
	And all six jurors must agree as to the sum as to IED. Let's say it's a million dollars.
	All six jurors must agree as They're going to be charged on unanimity and they're going to understand they can't make any awards unless they're unanimous so can you give me a breakdown if we did it along the lines of what I'm saying so under defamation slash slander damages past and future and
	then under emotional distress damages do you think one Do you want us to repeat it for each plaintiff?
	For each plaintiff.
	I don't think we need to give them the count numbers because they're not getting the complaint.
	I mean, normally, in a simple case, we give, you know, count one, you know, negligent infliction of emotional distress.
	Count two, intentional affliction of emotional distress.
	Count three, you know, breach of contract.
	You want us to have the...
	If we're going to go along the way that you have it, which I think avoids...
	Overcompensation, actually.
	I think this actually benefits the defendants.
	I disagree.
	Right.
	I understand you disagree.
	For specific unanimity reasons.
	Right.
	But I think that would sort of...
	We can do that.
	So lay it out for me now and let me see what it looks like.
	No.
	We can do that, and I'm not understanding what he means.
	Well, I think I'm following the court.
	The court wants us to, under the proposed plaintiff's form, we have defamation slander slash slander damages, for example, for Robbie Parker, right?
	Right.
	Okay.
	So what I think Your Honor is saying is that it would be helpful...
	With your mother in mind, to have us reference the infliction of emotional distress.
	This applies to this, this, this, this.
	If I'm charging the jury on all these clauses of action and now they see this, it's confusing.
	- I don't want to get hung up on appeal on a general verdict.
	And I think interoperatories are necessary because they pled multiple counts.
	If they want to withdraw two or three counts 'cause they're not necessary, fine.
	But I'm not gonna go down, this is a hill I'm choosing to dial.
	I am not going to I think that Mr. Patis, respectfully, is really referring to issues related to liability.
	No, I'm not.
	Hang on one second.
	Patis, I'm not finished.
	And not to damages.
	And secondly, you know, I can't, probably can't, I can't even remember how many times I've submitted special interrogatories only to be told no.
	And that protects your, that protects, the submissions of interrogatories Whether they're right or wrong protects your record on general verdict.
	You don't have to worry about that because you cover yourself.
	It's not a reason to have this jury completely confused and scratching their heads for and turning a deliberations that ought not to be that long.
	I'm just, I literally found both sets confusing and so if I'm confused I'm thinking they're going to be confused so let's try to figure out how we can be accurate on the law And not confuse them.
	I think we're going to have that to you momentarily.
	So as I'm understanding it, Judge, under the defamation, so keying off the plaintiff's verdict form, under the line to plaintiff Robbie Parker,
	it would say defamation slash slander damages past and future, and then there would be A parenthesis that says, this applies to defamation per se and cut book counts.
	And then under emotional distress damages, there would be something that says, this applies to intentional infliction of emotional distress, false light, defamation per se, and cup accounts.
	And that avoids the question of requiring unanimity.
	It's not enough unanimity to be unanimous as to some.
	It's necessary to be unanimous as to count.
	That's just inaccurate.
	It's not inaccurate.
	And of course you would like to break down defending a case to something so fine and so detailed that it just breaks down.
	They need to be unanimous in their verdict on damages.
	That's all that's required.
	And this form, this verdict form, is in service of that.
	It also has the advantage of being clear and concise.
	So I don't care for the interrogatories.
	If we didn't do it this way, which I think might be the best way, then the only other way I could see doing it is just the old-fashioned way No interrogatories and which you know you'll have you've got your record protected and then have it By count.
	Imagine being, I think the court had the perspective that I think is appropriate.
	Imagine sitting as a juror, whether you're, I'll speak for myself, whether it's me or my mom, who is smarter than me, so it's probably not a good example, but you know, somebody, just anybody sitting out there and trying to figure out why we're being asked for motions All right, so how could they, so if it was that, if it was that way, what direction could you give them to?
	I can't even imagine.
	No, no, let me just ask Attorney Koska first, what direction could I, could we give them on a verdict form that avoids conflicting results?
	This, what we just hammered out.
	No, if, listen, if we did it the old-fashioned way, I can't think of one.
	When the court says the old-fashioned way, I think it's the way in many, if not most cases, but this is not most cases.
	And that way is very much intertwined with liability.
	But I'm asking if it had to be done that way.
	I can't think of one.
	Honestly, I think it invites major error in the case.
	There's no reason to do that.
	It doesn't invite any error.
	it would be as to count one intentional infliction what some have you found as to Robbie Parker but what some has you found as to William Sherlock unanimously as to count two what some have you found as to each of these individuals and then we would at least know that all six agreed on one and each some will count and then how does that avoid the conflicting verdicts I don't know what you mean by a conflict.
	Here, let me tell you how it might work.
	If the court were to find that five of the six agreed on a sum as to defamation, and that four of the six agreed on a sum as to breach of privacy, the court And if they involve themselves in horse trading at that point, behind closed doors to come up with unanimous sum per count, at least I know I got...
	Well, there's always that possibility, and we assume that they're going to follow the charge.
	That's what we assume.
	The reason we don't do that is we want to make sure that they're following the law and give them appropriate counsel.
	Well, first of all, that is done.
	And second of all, the counts don't matter when it comes to taking a dollar for emotional distress from this count versus that count.
	They're the same.
	So that doesn't...
	It doesn't matter in the dollar context, but it matters in the tens, if not hundreds of millions, which is what will be argued tomorrow.
	The measure...
	Unless they're unanimous as to a sum per count, they get nothing other than a dollar.
	They don't get to mix and match.
	I don't want the court...
	I don't want us to thought ourselves into an error here.
	Now you do.
	The error...
	I appreciate the comments, but...
	And, you know, this is where maybe being 100% a civil lawyer and not involving damages cases is an advantage.
	But, you know, the measure of emotional distress damages is the same for all causes of action.
	The measure of reputational harm is really defamation per se.
	You know, it's very, we are, that is as clear as we can get in this case.
	It is not, you know, the de rigueur way of doing things, which, by the way, I have had many cases, and I'm sure the court has What about some some language this applies to definition per se and cup accounts and your award must be unanimous for both counts that deals with your issue
	right there that's a good instruction that's what you want you want to be unanimous for both let's just tell them the truth Just tell them the truth, that's it.
	But it's not unanimous for both, because unless it's unanimous for each, you can't be unanimous for both.
	So give me some proposed language.
	Tract the interrogatory.
	And I just want to, once again, request that we avoid ad hominem stuff.
	I've tried as many civil cases as I suspected, and I'm just getting sick of it.
	Okay, all right.
	Come on, let's get through this.
	I think the interrogatory addresses...
	I understand that, but I don't like them.
	I'm sorry.
	I don't like the interrogatories.
	I don't like their averted form, and I'm trying to make it work.
	So just bear with me.
	No, just give me the language that you didn't like my language, which I'm not offended.
	That's fine.
	So this applies to defamation per se and cup accounts and your...
	You must be unanimous.
	Give me some language that deals with your issue.
	As to each plaintiff, there should be a separate line for comment.
	That's crazy.
	Again, there we go again.
	Okay, well, that was not.
	That wasn't.
	Sorry.
	Sorry, I apologize.
	It's not crazy.
	It's wrong, but it's irrelevant.
	It's not either.
	I mean, you know.
	So this applies to defamation per se and cup accounts, and your verdict must be unanimous for both counts.
	As to each count.
	Your decision must be unanimous as to each count.
	I'm not sure what that means.
	Well that's the problem.
	Well no let me just think about it.
	So what does that mean?
	It means that they can't swap.
	They can't keep going.
	In other words, count A, whatever it is, if six people give $100, that's $100.
	Count B, whatever it is, if six people give $500, that's $500.
	What I'm proposing avoids is a situation in which under A, three people give $100, in B, three people give $500 and they can't swap.
	Well, okay.
	So I like sort of the language.
	Why don't we add a paragraph into our charge and go over the verdict forms with them?
	And you can give me some language to tell them.
	I've had to do that before.
	I don't usually enjoy it, but we could do it.
	We could give them the verdict forms and discuss it and take care of Attorney Pattis' concerns and your concerns.
	But I like, I'm sort of now liking the The breakdown by plaintiff with the explanations.
	I think you got them.
	Here's the thing, Judge.
	We will, of course, do what the court constructs, but I don't want to snatch problems from the jaws of this court's solution.
	I believe the court has just addressed the concern.
	All right, so this is what we have so far.
	Defamation slash slander damages, past and future, parens.
	This applies to defamation per se and cup accounts, and your verdict must be unanimous as to each count.
	That's perfect.
	That's-- well, that was Attorney Pattis' language, and I think you-- No, we agree as far as we go.
	But I don't think we have to talk about this anymore.
	I think that that's a solution to a-- All right, so you're on board with it.
	What do you need, Attorney Patis?
	I need to be sure that they are unanimous as to each count.
	Tell me, do you want me to go over the verdict forms with them?
	Yes.
	And so give me something that you want me to say and let's talk about it.
	The plaintiffs have sued, each plaintiff has sued the defendants under four counts.
	You must be unanimous in your verdict as to any count in which you award, you must be unanimous in your verdict as to each count.
	As to the count of defamation, do you award, are you unanimous?
	Yes.
	If so, what sum do you give as to the breach of privacy?
	Are you unanimous?
	Yes.
	If so, what sum do you give?
	I'm not going to do interrogatories, but can you give me something that I can say to them?
	You can say that?
	Your Honor, but the thing is, It does.
	I agree.
	That's the real hearing.
	The question here, we all agree.
	We keep coming back to this.
	Unless and until they prove more than a dollar is all they get.
	And they have to prove that as to each count or they get nothing.
	They have to be unanimous as to each count.
	or at least as to one count to get anything.
	And the way that this is proposed is we'll never know that they did that.
	If our goal was a mistrial, then that's a great way to get it.
	But that's not our goal here.
	The courts found a middle ground here.
	It's not our ideal, but we understand the concern of unanimity of the damages verdict.
	If you put it on the form, that's about as much as you can do in addition to instructing them, right?
	That's as much assurance as you can, and there'd be no reason to think that the jury's not going to follow that.
	So is there any reason we can't just put something about the verdict form with them with language that you give me or just add something to the charge about the unanimity and the verdict form?
	I think what we...
	You typically would say something about the verdict form, right?
	So whatever we end up here, I assume is going to be in the charge.
	None of us at this table, with all due respect, are understanding this argument other than it is inviting, again, a solution to a problem that doesn't exist.
	No, I'm here to defend my client's rights and my client's To get it done.
	I mean, I could characterize my adversary's motives Just keep the jury from deciding the actual issues.
	But I'm not going to do that.
	I am going to insist, however, that we know that this juror unanimously agreed on the dollar amount per count.
	Otherwise, I don't know what I'm looking at when I get a verdict.
	That's not a thing.
	I'm sorry.
	So why don't we, before this goes totally off the rails, I think that Your Honor has given us guidance, and I think we've informed itself Right, so I think that we've made some headway.
	I usually have a line that says something, you know, total, fair, just, and reasonable damages, and it tallies it up.
	You don't do that here.
	Is there any reason why not?
	We just, I mean, we're going to rewrite this form for Your Honor's order.
	Well, I'm just asking you, it's not there, and I'm wondering why not.
	Is it something that you would agree that is a good idea?
	Attorney Patis, not a good idea, just not there.
	Usually you see something that says total, fair, just, and reasonable damages.
	I think it should be there, but we've heard once before argument that we shouldn't include that in the charge.
	Shouldn't include what?
	I'm sorry.
	Fair, just, and reasonable.
	Presumably that's as culturally inappropriate as asking that they use cool deliberation.
	I lost my temper in this with what I think to be disingenuous argument and I've had my motives attached to day one in this case and I'm sick.
	Heavens.
	Why don't we just both take a deep breath because I'm going to finish this up now.
	I'd like it tallied up.
	Total, fair, just, and reasonable damages.
	And they add the number up.
	I've never not done that in a verdict form.
	Ever.
	Right.
	Total, fair, and then they add them up and then they add it wrong.
	I've got to send them back.
	To re-add it right.
	All right, so what I have is the breakdown that since, and I feel strongly about this because I don't see how we explain to them in the charge these different causes of action and then they never hear about these causes.
	We have a solution for that.
	All right, so I think that we'll do that.
	We'll add Attorney Pattis' language, which I like.
	About unit M&A. Your verdict must be unanimous as to each count.
	Yeah.
	As to each, right.
	I think the...
	Or each cause of action.
	I don't know.
	Attorney Pat, as you said, count.
	Do you want cause of action?
	I think cause of action is better.
	It doesn't make more sense.
	Than count, because they don't even, yes.
	As to each...
	No, that, I don't...
	Sorry, Judge.
	That's not...
	The counts, they come into this case having unanimous verdict on all counts because of the default, right?
	No.
	So they just have to be unanimous on the damages.
	That's all.
	It's not as to count.
	Damages as to count, then.
	No, it's not the law.
	It's just not true, and that is manifest error.
	It's not manifest error.
	And there's absolutely no reason to do it in this case.
	Judge, there's every reason to do it, and the reason is that this is a hearing in damages, and they've been told that the plaintiffs are entitled to damage for what they prove.
	How about if we just say, and your verdict must be unanimous as to your award for defamation, per se, and cut up?
	And then we're not calling it a count, we're not calling it a cause of action.
	You mean, excuse me, Your Honor, I think, just to be clear, I think you may have meant defamation, slander, or sorry, defamation damages and emotional distress damages.
	No.
	No.
	I meant what I said.
	So for example, defamation and slander damages, past and future, then parenthesis.
	This applies to defamation per se and cup accounts and your verdict must be unanimous as to, now I forgot what I said.
	As to period.
	No.
	As to both defamation per se and cup accounts.
	I think that's where the problem is because what does that mean to the jury?
	We're not talking about liability.
	Listen, I understand that, but we said this applies to the definition per se and CUPA counts.
	So we say counts and your verdict must be unanimous as to each count.
	That's what we originally had.
	That's what we originally had from Attorney Paddis that I liked.
	No, I think we understood the court to be saying that the verdict must be unanimous, not as to the count, but as to the damages.
	That's what it has to be unanimous on.
	The count...
	As to the damages for each count?
	Just for the damages.
	No, I disagree strenuously.
	I think that...
	I can't...
	We will...
	Nobody wants to retry this case.
	It will be retried if...
	Okay, all right.
	Let's not get...
	Let's back up.
	I'm absolutely certain.
	I don't, I just think that if the goal is to make this understandable by the jury, which is the goal, the first, second, and third How about as to these counts?
	That's what I'm going to say.
	I say each count, Judge.
	Otherwise, I don't know.
	They gave $400,000 as to one, $300,000 as to another.
	Listen, Attorney Patis, listen to what I'm going to say, because it's exactly what you needed.
	This applies to defamation per se and cup of counts, and your verdict must be unanimous as to these counts.
	That's exactly what you wanted me to say.
	You wanted a unanimous verdict as to those counts.
	As to each count, correct.
	As to the defamation per se count and the cup account.
	What's the problem with that?
	How though?
	Explain.
	Because it's not required by the law A, and B, it invites them into a different universe.
	So if we broke it up separately...
	Which is how we normally do it.
	They would have to be unanimous in their verdict as to the defamation per se damage.
	Here's what would happen.
	If we broke it up separately, you would have In a typical case, which is what the court is contemplating, you would have the plaintiffs prove negligence, have they prove that negligence was a causation, right?
	Then they would go to count two, negligence, causation.
	Then they would go to count three, negligence, causation.
	Four, negligence, causation.
	And then they would get to damages.
	It's not, damages are not broken up by count.
	Liability is broken up by count.
	And that's the manifest misunderstanding here.
	I have this plaintiff's verdict, or defendant's verdict, broken up by count, economic damages, non-economic damages, lying.
	Not by count.
	You don't break down damages by count.
	I disagree, that's the whole...
	I've only, I've only done it broken, plaintiff's verdict form, defendant's verdict form, which doesn't apply here.
	First count.
	You know, breach of contract.
	This line, this line, total, fair, just, then the second count, then you break up.
	We're not going to do that here.
	I've sort of adopted your suggestion, but...
	So, Your Honor, may I? In the charge that we spent so long working on, some of this is already addressed.
	And, for example, in the emotional distress damages charge, we specifically said You know, there is damages for invasion of privacy, and there's damages for emotional distress.
	And you will handle both of those in your emotional distress.
	Those will be included both in your emotional distress damages.
	So we actually included that language in the emotional distress damages calculation.
	We already did that.
	In the CUTPA damages charge, the end of the CUTPA damages charge Is damages due to the violation of the Connecticut Unfair Trade Practices Act are included in the other damages measures I am describing to you and you will not assess them separately.
	So we actually addressed this as we did the charge, which I think is one of the reasons why I've been confused.
	I thought we were more on the same page than we were.
	So I do think that we have structured the charge so that there's two measures of damages.
	There's an emotional distress damages measure, and I'm sorry, I'm going to stop right here.
	Well, I've just heard the same thing so many times, I understand that.
	Yes, exactly, so I'm not going to say it again.
	I think we all understand it, but I don't want to backtrack now.
	No, and I don't need to do that, but I do think that we had, in the charge, we have gone a ways down this road in a helpful way.
	So I think this applies to defamation per se and cup accounts and your verdict must be unanimous as to each.
	And I think that's pretty neutral.
	Your Honor, we have to accept that as to each.
	I understand.
	I understand.
	All right, what else?
	I think that similar language needs to be included in the other counts, that their verdicts need to be unanimous as to each count.
	What does it say on the chart?
	I mean, it's inconsistent with the chart.
	It's not -- come in.
	It's not -- I'm not understanding what you're saying.
	So now we've got the emotional distress damages.
	This applies to IED, false light, defamation for say and cup accounts, same language.
	Right.
	Okay.
	And your request must be unanimous as to each count.
	As to each.
	Right.
	Each.
	Right.
	Okay.
	All right.
	Then what?
	Your Honor, I think if we're going to proceed that way, the Court's going to need to make a ruling about whether emotional distress damages are available under Cutlass.
	And they aren't, in our view.
	In our view, they are.
	Well, that's a good point.
	That's not a reason not to do it.
	Look, I'm not the one who sued on behalf of 15 people under four different theories.
	But I am here to defend two entities who are entitled in this hearing in damages to pay no more than the jury unanimously finds them to be liable for.
	And the plaintiff's burden of proof is restricted There's no legal support for what Mr. Pattis has said, and before we take a step, I mean, the verdict form is an important document, and it needs to reflect the charge, obviously.
	They can't be inconsistent, number one.
	Number two, it is going to be the one thing that we submit to the jury in Friday that we are asking them to sign at the end.
	They are going to look at this form, and they're going to be guided by it.
	So, with respect, We've proposed here, not simply some, a statement, however earnest, by either of us.
	And there's no legal support, we submit, for the argument that Mr. Pattis is making.
	And that isn't, and you know, that's, again, not a, not a, I don't mean any disrespect by that, but we, what we, this, an issue this important that has this much material effect on the verdict and the integrity of the verdict, I just am reluctant.
	Can this be the one thing that we hold over so that Mr. Pattis can supply us with whatever he's talking about because we have dealt with verdict forms in civil cases for a long time, do not understand The concern, and we don't think there's legal support for it, despite the assertion that it is, quote, black letter law.
	We do not want to invite error.
	We got so far here, in this case, over years.
	So what are you saying, Attorney Cosco?
	I've just been saying, I don't want to have this hammered out under the, because we're all, you know.
	Well, so far, there's nothing that we've said in the proposal that is contrary to the law, right?
	We're telling them what the damage is, what Counts it applies to, and their verdict must be unanimous.
	They have to be unanimous in their verdict.
	Okay, but then you get into this idea where the unanimous as per count, and I believe...
	Right.
	Right.
	Yeah, so I think, yeah, their unanimity has to be on damages total, but not by count.
	And Mr. Pattis says that's not true, and we say, well, show us the authority that says that's not true.
	Well, I'd say the contrary to them.
	Show me where you...
	Excuse me.
	Show me the authority that says you're relieved of your burden of unanimity simply by pleading multiplicity.
	That is not the law, and I'd like to see the case in the sense it is.
	You know, I don't come from a long firm with parents and grandparents involved in it.
	All right, now we're getting personal here.
	No, it is.
	I don't want any more questions.
	I don't want any more.
	So let's just end it there with the personal attacks.
	and got let's not engage in anything like that tomorrow so judge um it's I just did because of the importance of this um and because it's the end of it feels like the end of a long day I It's only 3 o'clock.
	I know, but we're all feeling, I think, a little bit of cognitive, you know, we need a cognitive break, I think.
	And can this be the only thing that we hold over so that we can, I mean, first of all, what we'd like to do is submit a proposal based on what the court has said so far.
	I think we all agree to a certain point.
	What do we agree on?
	I'm not sure we agree on anything.
	I think we are agreeing to put the direction in that these damages emanate from these cows, right?
	That's what the court wanted.
	And you agree they must be unanimous.
	The unanimous is okay, too.
	And you just agree as to each.
	You disagree as to each.
	Right, I think that's where it goes.
	All right, so why don't you prepare it and put the as to each in brackets and we'll pick it up.
	Okay.
	All right, so what else, where else, where else am I looking on here?
	So now I'm on page six.
	Attorney's award of attorney's fees and costs.
	Yes.
	What do you say, Attorney Pauvis?
	I stand on my interrogatory and ask if that be submitted as a jury question.
	Yes, no, for count.
	Otherwise, they'll be compromised, potentially.
	So you want it broken down for each plaintiff?
	By count, yes.
	As to punitive damages as to defamation, three may decide as to IED, and in that case they'll say, well, we've got six.
	That's unanimous, but that's relieving them.
	I don't understand.
	I'm not following.
	Do it slower, if you don't mind.
	So, your concern...
	On the question of punitive damages, my understanding of the law is that in order to obtain relief that they're requesting, the damages they're requesting, the jury must return a unanimous verdict.
	The jury must return a unanimous verdict on a theory of liability, in my view, that the plaintiffs have alleged.
	They've alleged three common law counts.
	In order to obtain an award of punitive damages, it is my contention that the plaintiffs must prove to the jury's satisfaction unanimously as to at least one count that they're entitled to punitive damages.
	And therefore, I'm requesting that the court consider a jury form that requires them In the absence of doing so, two may decide that it was proven as to breach of privacy.
	Two different ones may prove that it was as to defamation.
	Okay, now I understand what you're saying.
	I understand what he's saying.
	I didn't understand it the first time, but now I get it.
	That was very helpful.
	So if you reach a unanimous verdict on whatever, then Yes.
	If you reach an unanimous verdict on this, this, or this, or this, check yes.
	That's it.
	That's it.
	There is a unanimous liability verdict in favor of the plaintiffs on every count and on punitives.
	Yes.
	How, I mean, I truly, and I'm trying to understand.
	I suppose it would be if you reach a unanimous verdict that more than nominal damages should be awarded?
	Yes.
	That should be awarded?
	Yes.
	But I am not understanding.
	No, I understand that there could be an argument that For example, your false light claim fails.
	And so, if your false light claim failed as a matter of law, right, then you would not be entitled to punitives under your false light claim, right?
	I'm trying to understand Attorney Powell's position.
	But in this case, where we're entitled to punitives, Already, based on every single cause of action, right?
	It doesn't matter.
	It doesn't matter which cause of action.
	Every single one entitles us to punitive.
	So the idea of saying to the jury, you have to think cause of action by cause of action, it doesn't make any sense.
	And that's actually the issue that I'm having with the request for unanimity.
	There's already liability findings on every single cause of action.
	So the idea that they...
	Right, but I understood that prior argument to be, well, they could believe that only nominal damages should be awarded on the defamation per se, but then, you know, more than nominal damages on the intentional infliction.
	I get that too, Judge.
	So this is different.
	So how can we make it clearer?
	Okay, let me try to address the prior point first.
	I get that distinction between...
	I don't want to go back.
	I want to deal right now with the cumulative damages.
	Okay.
	Because that's going to be easier.
	Well, Judge, I don't think that it can be broken down count by count.
	I just don't think you can do it after post default.
	Okay, but so what we have here is, you know, very basic.
	So let's try to...
	give them a little more guidance uh does the court mean by inserting the reckless willful standard or I
	suppose we could.
	I just think it's getting very confusing for them.
	So...
	Somebody make a suggestion.
	I think the suggestion would be, as to punitive damages, Do you find more than a dollar or whatever that locution is going to be as to breach of privacy, your unanimous verdict is.
	As to defamation, your unanimous verdict is.
	As to IED, your unanimous verdict is.
	And then at least we know, and that is the sole concern I have, is that they've reached unanimous sums as to the count they awarded on.
	So that we don't have a mix and match problem.
	So you are basically going to say if you have reached a unanimous verdict on either IED or false light or defamation or CUTPA? Yes.
	Then?
	So, Your Honor, that would be error.
	And the reason why is because they're not being asked to reach a verdict on CUTPA. I couldn't hear you.
	They're not being asked to reach a verdict on CUTPA. The CUTPA is decided.
	All that remains is the measure of CUTPA damages.
	And so it would absolutely be error.
	Right.
	So let me use a different example.
	Sorry, I can't say it again.
	Can somebody else say it?
	Sure, but what did I say before?
	Yeah.
	No.
	I mean, the idea that they're not reaching a verdict on intentional infliction of emotional distress.
	They're not.
	What they're reaching a verdict on is the amount of intentional infliction of emotional distress damages.
	And the measure of those damages is described in the charge.
	As the emotional distress damages, right?
	So as to punitives, what they're deciding is whether the willful, wanton, malicious standard is met as charged by the court.
	They're not deciding whether that standard applies based on IT. Right, so if you find that the malicious, blah, blah, blah standard has been met, then check yes.
	If you find it has not, check no.
	But as to what?
	See, my claim is it has to be if you found that it was met as to IED, as to breach of privacy, as to not.
	Because if the answer, if there's no unanimity as to any of them, then the answer is no.
	But if it's two, two, and two, then all six of them have found it and their burden of proof has been diluted.
	So And I think what it has to actually be is if you find that the standard...
	Has been met on any...
	As charged.
	As charged.
	Because the charge, basically, the entitlement to punitive damages is already decided, and that's what the charge says.
	And then it describes the elements, and it says, so then in your discretion, you may award...
	But the truth is that the predicate for punitive is already established by the default.
	However, there has to be unanimity as to the amount per count.
	But there always has to be unanimity.
	See, see, see.
	The court says yes, they say no.
	No, no.
	I think you're...
	May I finish?
	There needs to be unanimity as to the...
	Decision to award it.
	In other words, to the amount.
	But that doesn't mean that there needs to be by count because that's not what they're deciding.
	What they're deciding is whether to award or not.
	It's got nothing to do with the count.
	The reason why the count instructions are in Judge is because those actually establish The factual predicates that define the parameters of the hearing in damages.
	They're not being asked to decide anything under the liability, you know, the descriptions of the causes of action that are in.
	And that's the disconnect we're having.
	There's no question put to the jury regarding whether they find IIED or whether they find false claims.
	I sort of like the language, if you find...
	That the malicious willful bond standard has been met as charged then in your discretion and then have the checks.
	I think that's the best I'm gonna do on that.
	Alright, what else?
	I think that's it.
	Yeah, I think we're back to just the unresolved.
	Furtick, we're going to make a proposal.
	You're going to, you don't mind, you're going to draft it and circulate it with what we just did, put the bracketed language that Attorney Pettis wanted and you didn't want.
	And that'll be the only thing we have to discuss tomorrow?
	Well, I... Oh, God.
	I know, I'm running.
	My concern is, depending on how that goes, then there may be, you know, as I described, there's parts of the charge that are set up in a particular way that we've already been over, and that would...
	I don't think there's anything inconsistent with this and the charge.
	It just isn't.
	Well, there is.
	I mean, there's the aspect of the CUPA charge that says, you know, you won't assess CUPA damages separately.
	And I believe there's severe emotional distress charges.
	So Attorney Patta suggests removing CUPA from taking it away?
	No, removing it from the description.
	Oh, I mean, that actually goes to the No, I had a separate interrogatory on the punitive.
	The court decided apparently not to give it because it's within the court's discretion that it can be dealt with by a separate jury question.
	Here's my concern, Judge.
	It's 3 o'clock.
	We're apparently going to argue this until one of us drops and it won't be me.
	And I've got closing arguments to prepare for tomorrow.
	If we're going to have further briefing, I don't know.
	I'd ask that closing arguments be put off for a day.
	I don't have anyone else in the office working on this file and I'd rather spend the next seven hours preparing for closing arguments.
	We're dealing with an issue that has no foundation.
	Respect again, so this is a waste, this is taking up all of our time collectively at a time when we all have other things to do.
	We are, and I fully believe, excuse me, I think that the court has indulged this argument way further than it needed to.
	The only thing that I have to think about is the bracketed language as to each.
	So what time do you need to know by?
	And don't say in the next five minutes, because it's not going to happen.
	No, by tomorrow morning.
	I mean, I think we're going to have to put it together.
	We have to go back, put it together, submit it to the court, because we don't have our ability to do that right here.
	I just want to repeat to the court, if the court were to do count by count, then we would need a ruling on whether.
	The only thing that is left at this point, I'm with you, Attorney Patis, mentally my bag is packed.
	Mentally my bag is packed and I've started my car in the parking lot.
	Didn't start.
	So the only thing that is left is the bracketed language as to each.
	That's it.
	So that's the only thing that I'm going to think about.
	Otherwise, we've laid it out over and over again.
	Do you want me to read it one more time?
	No, no, I have a judge at this book, but if the court is going to charge...
	If you're saying if the as to each language is included, Because that's the only thing.
	As to each is either in or out.
	It's three words.
	I think if the court is going to...
	I think that we have a contested issue about whether emotional distress, damage is undercut, will go to the jury.
	Okay.
	And so I think we also need a ruling from the court on that.
	Okay.
	And I will rule that they do go to the jury.
	You will rule that they do.
	Yes.
	In your favor.
	Okay.
	So now what?
	So now we have as to each.
	So that's it.
	Okay.
	Yeah, I mean, what remains is the court's decision as to each.
	Right.
	Okay, so it's not going to hold anything up.

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