Tex Abuse

As the TCPA hearing drew to a close at 10:28 AM on the morning of Thursday, August 25, 2022, Judge Andrea Bouressa told attorney J. Mitchell Little that he had to submit an affidavit by the end of the following day if he wanted her to order me to pay his attorneys’ fees. Mitch confidently responded, “I can prepare it after this hearing and submit it.”

True to his word, Mitch filed the Affidavit of J. Mitchell Little Regarding Attorneys’ Fees and Costs in Support of Defendants less than two hours later.

He must have written it while he was flying back to his office in his private jet.

(That’s a joke. Scheef & Stone’s office is a 20-minute drive from the courthouse. So Mitch probably left the corporate jet in the hangar and tapped the affidavit into his phone with his thumbs while he was driving home.)

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According to the TCPA: “If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party court costs and reasonable attorney’s fees incurred in defending against the legal action.” Applying the law to the current situation, this meant that, if Judge Bouressa decided in Mitch’s favor, she would have to order me to pay his attorneys’ fees.

So that’s why, toward the end of the hearing, Judge Bouressa told Mitch that she would “allow the evidence of attorney’s fees to be submitted in affidavit form.” I tend to think of “evidence” as something physical like fingerprints or bloodstains, but that’s probably because I watch too much TV.

In its original Latin, affidavit meant “he has stated on oath,” and that’s pretty much what it means today: It’s a written statement of facts that is made by someone with personal knowledge of those facts. The person making the statement swears under penalty of perjury that the statement is true. (“Under penalty of perjury” basically means that if you lie, they’ll lock you up.) An affidavit either has to be notarized or the person submitting the affidavit can submit it as an “unsworn declaration” – which, as far as I can tell, means you’re still going to swear it’s true, but you don’t want to take the time to drive to the bank to get your affidavit notarized (or you’re not in a big law firm with a notary in an office down the hall).

It took me a while to realize that an affidavit was actually considered to be evidence, just like bloodstains and fingerprints (but not as messy). So if an opposing lawyer says: “You don’t have any evidence of that!” You can say: “Sure I do, I wrote it down and signed my name and submitted it as an affidavit!”

So that’s what Mitch did.

The Affidavit

Here are a few of the highlights of Mitch’s affidavit:

• Hourly Rate: Mitch said that he billed his clients at the rate of $650 per hour, and that Tommy billed at a mere $400 per hour. Mitch described his elevated rate as what he charged for “business litigation matters.” This was hardly business litigation, but I didn’t think I would have gotten anywhere by challenging that characterization, so I didn’t.

• Tough Job: In support of his lofty rates, Mitch emphasized how difficult it was to reply to my devastatingly clever filings. “This is a sophisticated, contentious dispute arising from Miskhoff’s [sic] claims against Defendants for defamation and libel, which drove up the effort and attorney’s fees required both to prosecute and defend it.” He added that “the rates are reasonable given the complexity and subject matter of the case.” So the good news was that I was apparently causing a minor panic at a major law firm. And the bad news was that the problems I was causing could end up costing me tens of thousands of dollars.

• Time Report: Mitch attached a detailed breakdown of how he and Tommy had spent 42.5 hours of their time fighting my lawsuit. Among other things, I learned that Mitch and Tommy had billed $2,425 to drive to and attend the hearing, which had adjourned less than two hours before Mitch filed his affidavit. These guys are fast!

• Unappealing Appeals: As he had estimated a couple of hours earlier in the day, Mitch said that his “reasonable and necessary attorney’s fees” amounted to $17,875. BUT… If he won the case and I appealed the decision, he would need an additional $25,000. And if I lost the appeal and filed a petition for the case to be reviewed by the Texas Supreme Court, he would need yet another $25,000. And if the Supreme Court agreed to hear the case, that would set me back… you guessed it, another $25,000. But if the Supreme Court wanted to hear oral arguments, it turned out that Mitch was running a special, and he would charge me only $20,000 for the pleasure of seeing him in court once again. The bottom line: If I lost the case and then lost all my appeals, I’d be out more than a hundred thousand dollars. But this wasn’t a problem for me, because I was going to win the case, so I wouldn’t even have to appeal the decision. Right?

But after all that, it was one deceptively unassuming sentence that ended up causing me massive problems for years:

            “Defendants have agreed to cover the cost of this litigation.”

How did this seemingly innocuous sentence come to be the bane of my existence? And what the hell is a bane? (“Bane: A cause of great distress or annoyance.” – Oxford Dictionary)

You’ll have to read my response to Mitch’s affidavit in the next chapter to find out.

Document Links
Mitch’s affidavit