Karl versus Billy: Day 7

by ersatz_cats

Hello again! We’ve finally made it to our final leg of trial-day coverage of the nearly finished legal battle between disgraced gaming hack job Billy Mitchell and absolute legend Karl Jobst. With the partial exception of “Day 1”, “Day 7” isn’t like anything that came before it. The witnesses have all been called. The evidence has all been entered. Today, we’re left with only closing arguments. It was basically as if the barristers themselves are testifying directly to the judge, making their cases, while calling back to particular bits of testimony and evidence that were presented in the course of days one through six. In other words, the trial becomes a theater of just three characters.

I would like to thank you all for your patience with this update, and apologize for the delay; going in, I thought this would be the easiest day to summarize, and instead it became the most complicated! Things got very repetitive at times, because you know lawyers love to make their points again, and again, and again, and then for really real the fifth time. And of course, I felt the need to track down a number of case law citations, and also check with my previous reporting of events which were now being referenced. (Thankfully, almost all my previous reporting reflected the salient points the attorneys referred to in their closing arguments.)

As the events of day seven unfolded, and as I unpackaged all the arguments, I got the sense that Karl’s case as it was presented has some flaws. Karl’s defense should be ironclad based on the known facts of the matter, but as you’ll see, a lack of due diligence on the part of Karl’s lawyers may have impacted his chances of victory. Meanwhile, while I hate to say it, our protagonist KB made an astonishingly bad mistake, right in the middle of his closing arguments. If Karl’s case were any weaker, this one blunder honestly could have single-handedly torpedoed his entire defense. Thankfully, as you’ll see, I don’t think this particular gaffe will matter in the end. But it did nearly give me a stroke as I watched it live.

Meanwhile, my viewing experience was enhanced once again. During the off-time, a number of us who had signed up for remote viewing had identified each other. For one thing, we figured out that the link information being sent out was the same for everyone. There was a single link for “Day 6”, and a single link for “Day 7”, although those two links were different from each other. Whether this enabled additional folks to watch as well, I don’t know. Either way, the peanut gallery now had a live chat going as the closing arguments unfolded – something which was impossible in the electronics-free courtroom.

As usual, if you have no idea what’s going on, check out the previous updates here:

https://perfectpacman.com/2024/09/15/karl-day-0/

https://perfectpacman.com/2024/09/16/karl-day-1/

https://perfectpacman.com/2024/09/17/karl-day-2/

https://perfectpacman.com/2024/09/18/karl-day-3/

https://perfectpacman.com/2024/09/19/karl-day-3-4/

https://perfectpacman.com/2024/09/20/karl-day-4/

https://perfectpacman.com/2024/09/24/karl-day-5/

https://perfectpacman.com/2024/10/11/karl-day-6/

And all my regular caveats on these updates: This’ll be a bit quick and raw compared to my usual fare. I am NOT going to reintroduce stuff from my previous “Karl vs Billy” posts, linked above, so I will assume you’ve read them. As a reminder though, “BB” refers to “Billy’s barrister”, and “KB” refers to “Karl’s barrister”. I’m normally very careful with quotes to make sure they’re accurate, but I can usually relisten to media to confirm. Since these are all one-and-done, there’ll be plenty of times where I capture what I think is the essence of what was said. “Anything in regular quotes should be considered word-for-word.” [“Anything with brackets means ‘Not word-for-word, but conveys the meaning of what was said.'”] (And even then, I’m human and can make mistakes.) Also, I’m just reporting what was said, without additional fact-checking; nothing should necessarily be taken as fact just because someone said it here.

YOU MAY BE WONDERING HOW I GOT HERE

So there I was, sitting at my computer, typing and screencapping and linking furiously to get the “Day 6” write-up out before the start of the day seven hearing. I was pounding that keyboard harder than I had this entire time, except maybe when trying to keep up with Elliott Watkins’ testimony. I had three hours to go. Then I had two hours to go. Then it was one hour. Then it was a half hour. Getting frequent DMs and tags, “When’s Day 6 coming?” Just needed more work, more time, a little more work, a little more time, just a little more. I was doing final layout when I saw Judge appeared on the stream in the other window. But there was no audio? I checked, and everything was fine on my end. No audio means, no notes. So I kept firing away. The camera was fixed on the judge, who appeared to be just sitting there. I didn’t know, had the proceeding even started? Were they just waiting for someone? I went through my final proofreading pass on “Day 6” (which ended up being a bit shoddy, lol), and I finally hit that “Publish” button. And it was literally less than one whole second of margin between doing that, and the audio of the proceeding coming up. It was that narrowly under the wire. So I immediately swapped over to my notepad, and got to work. I learned later that the proceeding had started on time, but that the first few minutes were on mute, as indicated by a crossed red microphone others saw but I didn’t. For this reason, I missed whatever remarks began the day. (And thankfully, the clerk caught this before allowing hours of remarks to go inaudible.)

Afterward, I did check with someone who had attended in person, to get an idea what I had missed. Apparently, KB entered a submission the court explaining why Jace Hall was unable to testify. This sort of thing can be important, because otherwise, a “negative inference” could be drawn from his absence. (In other words, without KB’s explanation, Judge could assume there was a reason Jace did not testify, and that this reason could reflect poorly on the defense.) Reportedly, BB accepted this and didn’t intend to suggest any negative inference from Jace’s absence, and so the judge did not intend to either. It was noted that “MoistCr1tiKaL” Charlie was called in Jace’s place.

Reportedly, the fact that Billy’s wife Evelyn did not testify was brought up as well. (You may recall Evelyn as the inflatable flotation buoy seen way back in “King of Kong”.) KB noted that a negative inference could be drawn from that, given that she’d be a key witness to a number of circumstances and events. This topic gets brought up again later, and each time this “negative inference” was given some legalese name, possibly Latin or possibly based on Australian precedent, which I as the note-taker was unfamiliar with.

Following that, KB got into his closing presentation. I’m not sure exactly what preceded this, but the first audible comment on stream was from the judge, remarking that Billy could testify about whether he felt anxious, or depressed, and that he did give such testimony. Judge added that this testimony would be most relevant toward the perceived harm Billy had incurred. KB countered that, while that’s true, in this case that’s Billy’s entire claim of damages, adding that defamation cases generally involve economic losses as a much more significant factor. Judge noted [“There’s no economic loss claimed in this proceeding.”] Hey, so far, so good.

KB continued that, while some testimony flirted with the idea of economic loss, and that the pleadings do refer to economic loss, there is ultimately no claim for economic loss. KB called this “significant”, indicating his intention to circle back around to the bits that he said “flirt” with that line. KB suggested Billy was “stuck with” his feelings as the basis for his claim, to which Judge countered that damage to Billy’s reputation is on the table as well, adding [“As I understand it, the loss of work offered to him, jobs being withdrawn was given as evidence of damage to his reputation,”] and that he suffered economic damages as a result. KB offered that is indeed the way Billy’s evidence has to be applied, because there is no economic loss claimed, with the judge offering he didn’t understand Billy to be using it any other way, given the pleading and the plaintiff’s “written submission” claims no economic loss.

As an aside, I wish I could’ve heard what led up to this exchange. I take it “written submission” refers to the written version of Billy’s closing arguments, which had to be turned in the day before this hearing. Yes, Billy did claim all sorts of losses from cancelled convention appearances and such, but if it’s not outlined in his pleading and his closing arguments, and if other necessary foundation for these claims had not been established (such as properly connecting those cancellations to Karl’s video), then the connection can’t be argued to the court. Meanwhile, as the proceeding went on, it seemed as though KB may have been in the midst of his closing arguments, and not some interjection interrupting BB’s presentation. I was curious why Karl’s side seemed to be conducting their closing arguments first, as I’m accustomed to the defense typically going last.

KB continued noting that no financial documentation had been produced or disclosed. Judge remarked this was probably because he’s not claiming financial loss. KB noted additionally that no paperwork was provided demonstrating any paid celebrity appearances by Billy. Judge asked KB if he questioned Billy about the extent of his paid appearances before and after Karl’s video, to which KB said he did, adding that the final exchange of his cross-examination dealt with a particular appearance which happened after Jobst’s video. KB recalled that Billy claimed over and over that he was not paid for an appearance at that particular show, and that he [“just dropped by to see some friends”]. KB noted he cross-examined Billy “at length” about this, before producing an invoice contradicting Billy’s entire story, noting that this goes toward the issue of “credit” (credibility) as noted in KB’s written arguments. Judge circled back, asking if KB had cross-examined Billy as to whether he appeared as a paid celebrity guest at fifteen to twenty-five events before Karl’s video. KB said he did not focus on that point as much as Billy’s appearances after that video. Judge remarked this meant there was “uncontested” testimony from Billy regarding those earlier appearances, which Judge added, [“if I were to accept it, would be the evidence before me.”] Judge added that this depended on whether or not he found that Billy’s evidence was so lacking in “credit” that it couldn’t be accepted unless it’s corroborated, while acknowledging that KB is arguing that’s the case.

KB then drew the judge’s attention to a certain paragraph referring to a video (identified a moment later as the “Guinness” video), noting that this video was not entered into evidence and was not pleaded. It was at this point that I gathered that KB may not have been into his own closing arguments exactly, but was in the process of nitpicking and objecting to BB’s written submission, but again, without the introductory framing of the hearing, it was hard to be sure. Judge advised that, if there was no objection raised when this media was first referenced, then it’s too late to render a pleading objection. Judge did note that the video seemed to be implicated only by way of a reference in a concerns notice. KB responded that this notice introduces claims about the content of that video, including that Karl’s statements in the video are “grossly defamatory”, which KB argued is different than a mere reference. Judge continued by reading that notice’s characterizations of Karl’s video, including that Guinness World Records is a scam and that their decision to reinstate the scores of a proven cheater, adding that the imputation of the video (according to this notice) was that Guinness had been paid off to reinstate Billy’s scores. Judge went on to clarify that this is “evidence of an assertion” that those things were said in the video, and not actual proof of such. Thus, if BB worded it a particular way, this assertion couldn’t be objected to. Judge continued that this, and a lot of the evidence presented, goes to the backstory on Billy’s reputation and relationship with Jobst and others, adding that the concerns notice could be considered direct evidence by someone who watched the video. KB countered that this actually supports one of his client’s contentions, that Billy uses litigation to get his way.

It was around this time the clerk remembered there are multiple cameras in the room, and that we can see the barristers bench and don’t have to stay locked on judge-cam.

KB moved on to a paragraph referring to Apollo Legend’s “goodbye” video, and the assertion that Apollo attributed no blame to Billy for his decision. After emphasizing, [“This is an important point”], KB directed the judge’s attention to an exhibit in their trial bundle, which turned out to be the settlement between Apollo and Billy. KB continued that, on page 3 of 14, there was a “non-disparagement” clause, where Apollo agreed to “permanently cease” making content that in any way involve or reference Billy or members of his family or his score claims. KB noted that Judge asked about this very point during the proceedings, before pointing to another clause on the next page, establishing that if Apollo made any such content, he would be in breach of the agreement, and would have to pay “liquidated damages” of $25,000 per violation. KB added that, in Apollo’s goodbye video, he spoke at length about how worried he was that his tax debt would burden his family and/or estate. Thus, KB argued, [“Of course he didn’t mention Mr. Smith in that video,”] because Apollo knew this would trigger damages that would add to that burden. (I’m pretty sure KB did say “Mr. Smith” when he obviously meant “Mr. Mitchell”.) Judge asked KB to clarify his assertion, that one should not infer from the absence of such a reference to Billy as evidence the legal battle and settlement did not affect Apollo’s decision. KB continued that, even though the clause is labeled “non-disparagement”, it goes well beyond “non-disparagement”, forbidding Apollo from even mentioning Billy’s name. Judge noted that an exception could be made with Billy’s consent, and that Billy did give such consent to the initial statement Apollo published.

THE OWN-GOAL

And here’s where we get to KB’s gargantuan mistake. See if you can spot it as it unfolds.

Continuing with his apparent dissection of BB’s submission, KB pointed to a paragraph relating to “aggravated damages”. The paragraph refers to a tweet by Karl to the effect that, if Billy provides evidence to the contrary of the statements in Karl’s video, Karl would make a public statement about it. KB noted that this goes to Karl’s willingness to change his publication. KB added that he intends to come back to the subject of aggravated damages later, but that he’s attempting to follow the written submissions as he goes.

Okay, so far so good, right?

The judge, confused for a moment, then asked for a clarification on the timeline. Judge noted that Karl had taken the words down, then put them back up, then taken them back down again, adding that he didn’t off-hand recall the days each of these happened. KB noted this gets made more confusing by the date difference, and how that affects the timestamps on some of the documents.

Judge then tried to nail down the timeline, based on some paperwork in front of him. Karl put the words up on the 26th of May, then took them down on the 4th of June, and told Keemstar that day he had done so, based on Keemstar’s word. KB then notes Karl’s claim to Keemstar that he would make a statement if the words are proven wrong.

Judge then cites Karl as saying, if nothing concrete comes up, he would just leave the video as is. But then, Judge notes, Karl did get a note from Apollo’s brother that Apollo didn’t give Billy any money…

[“… and he put the words back up anyway, didn’t he?”]

Obviously, the timeline is a bit mixed up here. But that’s fine. No problem. Judge was a little confused on the sequence of events. It’s understandable, there’s a lot to go over. But it’s all there. Just politely correct his honor, before it gets out of hand.

Instead, KB agrees with the incorrect timeline. He agrees that Karl put the words back up “for a few days”, before taking them down again. (Which is true, but which happened before Karl spoke to Apollo’s brother.)

Judge said these actions were inconsistent with what Karl said to Keemstar.

KB said “To a degree.”

Judge countered, with emphasis, “Completely.”

KB replied that it’s not completely incongruent, because Karl said he would make a statement about it, and he ultimately did.

Judge responded, [“But he didn’t leave the version with the words edited out. To the contrary, having been told the video was wrong, he put it back up again.”]

KB awkwardly answered, “For a number of days, I accept that.” KB then adds that Karl did ultimately go on to make a statement about it.

Some of us in the chat started to get concerned. Surely KB knows the most important sequence of events in this case, doesn’t he? Is he going to come around and get this corrected?

After some silence, Judge asked KB if it’s his submission that Karl’s message to Keemstar is proof of Karl’s “bona fides” and his willingness to either correct the video upon demonstration that the claim was mistaken, or at least leave the words out if it was unclear whether they were correct. In the same breath, Judge suggested this question of Karl’s good faith could affect claims of aggravated damages.

KB then pointed out that much was made during Karl’s cross-examination about whether Billy’s concerns notice constituted contact from Billy directly, adding that the judge also asked Karl questions about this point directly. KB said, within the legal sphere, they all understand that an attorney making contact on someone’s behalf is direct contact, noting that Karl’s explanation was simply that it was not Billy personally contacting him. KB continued that while there may not be a difference to “us lawyers”, there is a difference, including in circumstances where there’s another third party like Keemstar mediating between the parties.

After another silence, Judge remarked that, if he understands Karl’s stance correctly, he wasn’t prepared to accept whatever Billy’s lawyers said, on Billy’s instructions, because Billy didn’t directly contact him to say it himself. Judge remarked this was a “very fine distinction” that most people would not make.

KB recalled again to the fact there was an additional third party who was trusted by both sides, who was “negotiating”. Judge disputed the characterization that Keemstar was “negotiating”, rather than was simply a “conduit” for messages.

Judge then reiterated – and you can hear Judge’s volume raise a little as he spelled this out – [“An agent for Mr. Mitchell told him what he said was wrong. Mr. Mitchell didn’t get paid anything. And in reliance on that, Mr. Jobst took down the offending words, and said he would check with Apollo Legend’s brother. Having checked with Apollo’s brother, he then put back up the offending words, which were inconsistent with what he had been told by the brother, and inconsistent with what he had been told by Keemstar, and inconsistent with what he was told by Mr. Mitchell’s lawyers, on Mr. Mitchell’s direct instructions. So he had three sources saying the words were wrong, but he put the material back up again anyway. That’s relevant to his bona fides and whether there would be aggravated damages, if there are damages at all.”]

At this point, I started to panic. This was completely wrong!! And this incorrect timeline paints Karl as some malicious actor who intended to tell lies. Obviously, there’s the worry that the judge himself was so badly misinformed, but I’m sure he was always planning to carefully go over the evidence before rendering a verdict. More urgently, I thought, KB has to correct this. It’s his job to advocate for his client. The judge is, in a way, relying on KB to make that case, so Judge doesn’t have to do it all himself.

Instead, KB just sorta moves on. He said [“It is relevant, along with other things, like the apology video,”] drawing a bit of an eyeroll from the judge. Then KB went back to talking about the concerns notice again.

I wanted to fucking scream at my computer. How do you, as Karl’s barrister, possibly mess up this timeline that badly? These are basic, essential facts about this case. It would be like a defense counsel at a bank robbery trial remarking “Well, you know, my client probably did rob that bank, but I’d rather talk about something else.” What? The? Fuck? It’s probably a good thing I wasn’t physically in the courtroom. During that sequence, I would have been emphatically shaking my head whispering “THAT’S NOT TRUE, THAT’S NOT TRUE, THAT’S NOT TRUE”. And when KB just accepted it and moved on? I probably would’ve gotten up and ran over to Karl’s solicitor and grabbed his shoulder and whispered “WHAT THE HELL? NONE OF THAT’S TRUE! YOU GOTTA GET IN THERE AND GET HIM TO CORRECT THAT! WHAT IS HE PAYING YOU FOR!?” Granted, I don’t understand what powers an Australian solicitor has to insert corrections such as these in the middle of a hearing, nor do I know what ability the barrister has to pause his arguments and take instructions from his colleagues. But in that moment, knowing Karl absolutely cannot make a scene himself, I would have happily sacrificed my ability to attend the rest of the hearing to make sure this colossal error was corrected before it went any further. However, as a distant bystander thousands of miles away, all I could do was watch the train wreck unfold.

Meanwhile, I checked our chat during the moments of silence, and things weren’t going any better there. I was getting DMs from people who were equally astonished, freaking out and asking how this could be happening. Oh, and while I can’t speak for Karl, who was sitting in that courtroom, you know he couldn’t be happy about this either, since he knows the actual timeline as well as anyone. Granted, on the whole, Karl’s case was so robust, and Billy had failed to establish pretty much anything he needed to, that there was still a good deal of confidence in the belief that justice will eventually win out in the end. But for the first time, I began to feel actual tension and doubt as to the possibility that, if such errors compounded, this could all go completely off the rails.

After pointing back to the concerns notice, Judge again cited its claim that Apollo didn’t have to pay Billy any money in damages or costs, which Karl was told by Keemstar and subsequently by Apollo’s brother. KB said the notice also referred to Karl’s claim that Billy’s lawsuit against Apollo was meritless, which Judge noted was an opinion.

KB continued to another paragraph, dealing with three bits of legal opinion on whether a publication is defamatory. One of those defined defamation as anything that causes one to be “shunned or avoided” without any “moral discredit” on their part. KB noted that the evidence going to whether Billy was “shunned and avoided” would be important to the judge’s decision.

At this point, I saw Karl’s solicitor Sam Barber appear in frame, sitting down to talk to KB’s assistant. (I don’t think I ever did catch her name.) I was hoping this exchange was about concern over the incorrect timeline, perhaps prompted by Karl himself, and that it would lead to an impending correction on the record. But as Sam and the assistant had their little sidebar, KB continued.

KB referred to Billy’s testimony that people still approached him at events after Karl’s video. (Note that in Australian court, they refer to personal testimony as “evidence”, but I’m calling it “testimony” to differentiate it from documentary evidence.) KB then asked Judge to recall Billy’s specific word, that these people were “inquisitive”, emphasizing that these people were not shunning him. KB then noted that his cross-examination of Billy focused on these interactions after the video, saying that while COVID has to be considered as a factor, Billy still appeared at many events. Judge then asked whether the characterization was “many” or “several”, noting Billy’s claim that he was invited to 20-25 per year prior to the video and fewer after that. KB could not recall whether in his submission he used the word “many” or “several”, which drew a stern rebuke from the judge to the effect that there’s a big difference between the two. Judge then remarked, [“I expect you to make submissions that are accurate based on the evidence.”] Admittedly, in that moment, I couldn’t have told you whether “many” or “several” was the greater quantity. But Judge then clarified that, in his opinion, the 20-25 figure would constitute “many”, and a lower number would be closer to “several”, adding that he considers it a “clear distinction”.

KB continued, recalling having asked Billy about a total of fifteen appearances between July 2021 and August 2024. KB noted he asked Billy about social media advertising for some of these, but that Billy could not recall specifics, citing his wife and son as operating his social media accounts. KB then noted that Junior was asked similar questions, and that Junior referred to his mother as having conducted most of that work. KB also recalled asking Billy about whether these appearances were paid or included booths. Judge asked if KB was submitting this as proof Billy was not shunned and avoided. KB noted that it was still within at least some definition of the word “many”, particularly given COVID. Judge advised caution in regard to any effects of COVID, given Karl’s video was in May 2021, and that the U.S. was not known for the kind of extended lockdowns seen in Australia. KB noted that Billy’s testimony also related to international events, as does the total of event appearances by Billy after Karl’s video, noting in particular an appearance by Billy in the United Kingdom. KB then circled back to the point that people were still attending Billy’s events and being “inquisitive”, and that invitations were still being sent to him, is not “being shunned”.

KB then pointed out, the difficulty with Billy’s testimony about his event appearances, such as that he attended twenty events a year before Karl’s video, was that Billy often didn’t have a clear recollection of these events until KB asked about them, and that even then Billy would often not have a clear recollection of what occurred. KB then suggested this raised questions about the credibility of those answers. Judge asked if this argument was based on the fact Billy could remember some but not others, but KB clarified the issue that Billy had a good memory of events before the video, but not of the events afterward. Judge summarized KB’s position that the court should not consider Billy to be forthright about what happened at events after the video. KB agreed, asking Judge to also consider doing a comparison between the transcripts of the different days of Billy’s testimony.

KB moved on to more of BB’s written submission, asking the judge to read a certain paragraph to himself. One of the issues with “Day 7” was, some bits like this relied on silent readings or references to paragraphs which I have no access to. However, according to KB, Billy’s side appeared to be arguing that an imputation of a publication can be assisted by comments others make on that publication, and yet KB said this could contradict some of BB’s earlier testimony objections. KB then noted that some of the comments included as an exhibit were never demonstrated to have come from people who actually watched the video. Judge asked how this was made an exhibit, and KB was unsure, but asserted that these comments can’t be used as evidence in this way. Judge then asked if any of these comments came from the 10,000 comments KB himself tendered, but KB noted those batches were from one of the witnesses’ videos. (That would be Charlie.) KB understood these contested comments to be replies to Karl’s video, while noting a similar objection that BB was cherry-picking the few comments which relate to this or that without submitting the entirety of those comments. Judge then summarized KB’s position, that the court shouldn’t consider the contested paragraph to be proven by these comments.

Judge did note that, insofar as any value could be derived from these comments, they should be considered from the perspective of an “ordinary and reasonable” viewer, but that there’s a possible absence of evidence that these are “ordinary and reasonable” viewers. Judge then remarked [“Some of the people who make these comments may be reasonable, but that depends on the community where the comments are made,”] adding [“It seems people in the gaming community, or the broader online community, consider what’s reasonable to be something very different to people standing on the train.”] KB noted that witnesses on both sides referred to the “gaming community” as taking certain things more seriously than the general population would, adding that this community views certain allegations such as cheating very differently to how [“your honor and I as non-gamers”] would. KB then made another cryptic response to another paragraph and exhibit, saying he would lodge a similar objection to that.

KB then pointed to a paragraph where BB argued that Karl’s video lowered Billy’s reputation in society generally. To that point, KB declared “I’m unaware of any evidence to that effect… either for or against my client’s position.”

Judge countered that many people in society are interested in gaming, and that members of this subset could be said to simply be members of society in general. KB agreeably laughed and acknowledged he of course wouldn’t argue that gamers weren’t members of society generally, adding that they belong to a “subculture”. However, KB argued, the pleading did not refer to the viewpoint of this subculture in that way, but rather to Billy’s reputation in society generally. KB asserted that most or all of the evidence focused on Billy’s reputation within that subculture.

Judge responded by asking about Guinness World Records, characterizing it as a publication referred to by many people across society. However, Judge did interrupt himself to say that’s probably irrelevant, since the matter deals with Karl’s video, which would have only been viewed within the given gaming subculture.

KB then said he would take it a step further, citing some case law regarding social media posts. As KB argued, they’re dealing with a twenty-minute video, where the offending words were near the end, rhetorically asking if society generally watches a twenty-minute video of this type all the way through. Judge retorted that anyone interested in Billy Mitchell or arcade Donkey Kong and allegations of cheating would watch it all the way through because they’re interested in the subject matter, adding that twenty minutes is not that long. Judge noted they may skip through if they’re not interested in “the first gentleman”, whose name he could not recall, to which KB pointed out some others may only be interested in “the first gentleman” and not Billy. At that point, Judge mused that it’s probably unlikely that anyone interested in one would not be interested in the other, but that it’s possible given the different games involved. Regardless, Judge held the perspective that anyone interested in Billy would watch the whole thing, unless the video was so long and repetitive they would get bored, but didn’t consider that true of Karl’s video. KB respectfully maintained his submission that twenty minutes is a long time, adding that there was no expert testimony to the ability of YouTube viewers to maintain attention for that long. Judge did note there was evidence that a lot of people did see that part of the video, from the comments if nothing else. KB then noted this ties into his objection, that the types of things said in the beginning of the video are all about cheating, and thus if the totality of the comments demonstrated a focus on cheating, then the court could infer that those people didn’t watch the video all the way through or that viewers were primarily interested in the cheating, adding that the absence of these comments in evidence creates some difficulty.

At this point, we on the remote stream heard from Billy’s barrister for the first time that day. BB asked to correct an error in his written submission, directing Judge to a certain paragraph. BB clarified that a witness speaking to a plaintiff’s reputation “need not know the plaintiff”, with the emphasis being that the word “not” had been missing. BB noted this was a pretty critical error, lol. BB and KB had a quick huddle, and KB accepted this obvious correction. As to why this random correction was lodged at this time, KB then remarked that BB had seen the red highlighting on KB’s copy and thus knew this question would be raised soon. (Hey, at least someone knew how to make a timely correction.)

KB still raised a dispute with the latter part of the given paragraph, making the point that Billy’s witnesses all still had high respect for Billy following the video. KB argued some of those witnesses didn’t believe the claim, while quoting one witness as saying “haters will hate”, and explaining to the judge what the expression means. These witnesses all still liked Billy and wanted to go with him to exhibitions and to be seen with him, adding that one witness in particular had “no qualms” about recommending Billy to other event organizers. Judge asked if it was also their testimony that people come to events specifically to see Billy, while pondering the distinction between these event organizers’ opinions of Billy remaining unchanged and the opinion of the gaming community at large remaining unchanged. KB remarked that even one of Karl’s witnesses, Jimmy Nails, said all publicity is good publicity, and that people come whether they hate Billy or love him, reiterating that this is not “being shunned”. Judge then summarized KB’s argument, which was that Billy’s reputation was not meaningfully damaged by Karl’s video, to which KB added that Billy’s reputation from prior to Karl’s video has remained unchanged. KB also noted that he asked each of his witnesses about Billy’s reputation at various points in time.

KB then brought up Billy’s previous litigations over the cheating scandal and such, and the suggestion from Billy and his son that those had little to no impact on Billy’s feelings or reputation. KB asserted, [“In my respectful submission, this cannot be accepted. It cannot be accepted.”] KB then requested Judge pay attention to the pleadings in those other cases, and the way in which they allege damage from those publications. Judge recalled KB elicited testimony to this end with regard to the Twin Galaxies lawsuit. KB said his submission addresses that point, calling it “extremely important”. Judge noted those pleadings are just allegations, and not evidence of the harm caused to Billy. KB started to illustrate a hypothetical scenario of offering contradictory claims of damages to different courts, before Judge interrupted to say, these claims may affect Billy’s credibility, but they’re still just allegations, and thus are not proof that Billy’s reputation had been affected by those earlier controversies. KB noted that the court still should not accept Billy’s position on this because of the issue of credibility, to which Judge said he understood.

I was still a bit unclear of the structure of what was going on, whether KB would be making proactive oral arguments, or whether he already had, or whether these “closing arguments” consisted entirely of tearing apart the other party’s written submission. But it was around this point I accepted that KB’s earlier pledge of keeping his closing short would likely not result in a shorter “Day 7”. Note that while it may feel the judge was nitpicking and scrutinizing Karl’s side during KB’s arguments, that sort of thing is standard procedure. His job is to keep his cards close, and to be a bit of a hardass on each side, and pick apart what they’re trying to slip into the record. I told folks in our chat, this is to be expected and isn’t a cause for concern, unless Judge didn’t have the same sort of scrutiny when it came time for BB’s arguments later.

KB moved onto another passage, noting that it also conflicted with Billy maintaining a position that the earlier scandals and litigations had no impact on him. (Again, the passage in question was identified by paragraph number, but was not elaborated on vocally.) KB recalled putting to Junior that one does not engage a public relations firm to proactively mend someone’s reputation if they don’t believe that reputation was damaged at that point in time. KB noted that his proposition was not accepted, adding that [“This does go to credit, in my respectful submission.”] (In plain English, if Junior can’t admit the contradiction, then how can his testimony be believed?) After a lengthy silence, KB appeared to accept the judge’s lack of rebuttal, and moved on to his next topic.

With regard to the previous proceedings, KB said the alleged defamations in those cases were published in places like Variety and the Washington Post. Thus, as KB pointed out, those legal claims argued that the statements were spread by way of large media publications. Judge asked KB to confirm his point was that Billy’s reputation must have been affected in society generally by those widely distributed media outlets. KB concurred, continuing with his illustration of Billy coming to Australia and arguing those things did not affect his reputation, despite Billy’s earlier pleadings in other lawsuits that those publications caused him “significant harm”, with Billy now arguing that any effects to his reputation result strictly from Jobst’s videos. Judge noted that, relevant to this proceeding, Karl’s video made a different sort of allegation, not that he was a cheater but that he had contributed toward someone committing suicide, adding that these could be considered separate damage and that one could be considered greater than the other. At this time, Judge asked if KB was making this point primarily toward Billy’s credibility, and KB indicated he was. But Judge added that the argument was also being made that Billy’s reputation was so poor from the cheating allegations that something like this wouldn’t have harmed him significantly if at all either way. KB agreed, and also agreed with Judge that those were different points being made.

KB said the submission from his “learned friend” then goes through each witness, adding that he’d first like to address testimony from Walter Day. KB noted that Walter offered no testimony that Billy’s popularity has declined. Judge asked if BB claimed otherwise, to which KB said BB did not, but that it’s an important point.

KB moved on to testimony from Preston Burt, noting that Preston also testified that Billy still has a good reputation, and that Preston himself still likes Billy. KB added that Mr. Burt said he hasn’t even heard of Karl’s video. (Note that this was not reflected in my “Day 4” notes.) KB continued to say Burt testified that he wouldn’t hesitate to have Billy back to another exhibition, and would recommend him to other organizers. Judge concurred with another “Yes”, followed by more affirmative silence. KB then read the relevant passages from the transcripts to both of those points. KB continued to say, the witness was shown a YouTube podcast during cross-examination, wherein he talks about actively promoting Billy in connection to his event. At this point, Judge remarked that these are actually references to Mr. McNutt and not Preston Burt, to which KB acknowledged his error. (Note that I also don’t have a reference to Mr. McNutt saying he was unaware of Karl’s video. So, apologies, I guess I missed it either way!) KB continued describing McNutt’s testimony, where he described Billy as, in KB’s words, “the greatest antagonist”, which McNutt accepted under cross-examination was a reference to the controversy. Per KB, McNutt also accepted that Billy was portrayed as the villain of King of Kong, and that his scores had been “wiped out” by Twin Galaxies, adding that McNutt accepted the characterization that “any publicity is good publicity”.

KB then moved on to the testimony from Billy’s friend Steve Grunberger. Grunberger and his wife still enjoy spending time with Billy, and aren’t shunning him. Judge remarked this may be the case, but asked if Steve gave any testimony about Billy’s general reputation, remarking that what Steve felt personally is not that relevant. KB countered that it is relevant to the point of whether Billy was being “shunned”. Judge said it is relevant that some who liked Billy beforehand still do, but that it’s Billy’s general reputation that’s most important. KB noted that, if it gets to the question of damages, what one’s friends and loved ones think is quite important.

KB then pointed to further testimony from Grunberger, which was not specified. Judge remarked, as if a response to this passage, that there are many comments in evidence from both sides that indicate that many people do believe what they read or hear on the Internet. KB then directed right toward testimony from Isaiah “Triforce” Johnson, who KB said testified from somewhere “remote”. Judge joked that Triforce may dispute that he was somewhere “remote”, that it may have been “remote” from Australia, but everything’s “remote” from Australia. KB reiterated Isaiah’s remark that [“Haters gonna hate”], adding that there’s been other testimony to the same effect, and that Billy has had people in his corner and not in his corner throughout these controversies. KB noted that Isaiah’s testimony seems to contradict Billy’s in how the TG dispute did or did not affect Billy, and that this goes to “credit” once again. KB did make sure to note that Billy’s statements from his Twin Galaxies deposition (January 2023) were made well after Karl’s video (May 2021).

KB also pointed out that Triforce testified he only saw Karl’s video because Billy showed it to him, saying this is consistent with KB’s own point regarding Billy’s treatment of Karl’s video. KB asks rhetorically, if Karl’s words caused Billy such harm and disgrace, why would Billy republish those words, framing them with “For those of you who haven’t seen it, here’s the clip”? KB continues to paraphrase Billy, [“These words are so bad, I want more people to see them,”] adding that this should not sit well with the judge. KB noted Triforce described the same dynamic himself. [“You haven’t seen it, but I’ll show it to you.”] KB then recalled asking Triforce about attending events with Billy, noting that Triforce also thus acknowledged Billy was still being invited to events.

KB went into a rhetorical bit here, arguing [“Just because someone doesn’t like you doesn’t mean you’re going to be shunned, especially someone with fame.”] KB analogized to Tom Cruise, and the fact people who don’t like him will still go to see his movies, or would still get a selfie with him on the street. Thus, KB argued, the relevant imputation isn’t whether the publication caused people not to like Billy. Judge replied that it is party so, if a publication causes people’s estimation of somebody to go down, referring to BB’s submitted definition of defamation. KB countered that that is his point, that just because someone doesn’t like a celebrity doesn’t mean they’ll shun and avoid him. Judge responded, again, that what has been said of someone could cause people to think less of them, which is part of whether a statement is defamatory. Judge continued, hypothetically, [“I could think, based on what Mr. Jobst said, that Mr. Mitchell is a terrible person who hounds a young man to death. But if Mr. Mitchell’s going to a show near me, I may actually go and see him, despite the fact I think he’s an awful person.”] Judge said, as a hypothetical, he may not shun and avoid Billy, but his previous view of Billy as a wonderful person could be changed, and none of that would mean the statements weren’t defamatory. KB noted that part of Billy’s case is that he’s no longer being invited to events, and that when he does attend he’s being shunned and avoided by people. Judge said he was unsure Billy had presented evidence or arguments to that exact effect, except that his invitations to events became fewer in general, while noting testimony to the effect that Billy’s still a “draw card” at the events he does attend due to the controversy. Judge concluded by acknowledging KB’s point, but asserted he still has to consider the other aspect as well.

KB then pointed toward BB’s “sector of reputation” arguments, suggesting that it’s the first time the “sector” argument has been particularized. KB then suggested the relevant sector is the video gaming sector, and that the alleged imputations relate to Billy’s conduct in protecting his reputation as a video gamer. KB continued that Billy’s lawsuit against Apollo was again about Billy protecting his reputation as a video gamer, and thus as KB argues, Apollo’s death has a “causal connection” to Billy protecting that reputation as a gamer. KB added that the “contextual truth” imputations also relate to Billy protecting his reputation as a video gamer. Thus, KB argues, the alleged imputation is that Billy does harm as a way of protecting his reputation as a video gamer. KB continued, [“There’s no suggestion in any of these imputations that Billy randomly shot someone. It’s the propensity to do harm in an attempt to protect his reputation as a video gamer.”] KB thus asserted that video gaming is the relevant sector. KB continued to say the contested words from Karl include the statement that Apollo had to remove his videos on Billy’s cheating, Thus, KB says, there’s a causal connection within that sector. KB proceeded to cite another paragraph which refers to an imputation that Billy hounded someone into taking their own life. KB suggested this misrepresented the entirety of it, because Billy’s actions were about protecting his video game reputation. KB continued to say, therein lies the entirety of the importance of not only the contested words, but also the video as a whole, because the video goes into detail on the lengths Billy will go to, and the stresses Billy will inflict on others, to protect his reputation as a gamer.

You probably noticed by now that no correction to the earlier blunder had arrived. Regardless, KB hadn’t lost any of his swagger. I noticed how, through all these arguments, as he stood there orating and taking brief notes with his left hand, he had his right hand partially down some sort of… pouch? I’m not sure how these silly barrister robes work, but this pouch or crease seemed to be only slightly askew of his direct front, lol. It definitely brought back memories of watching Married With Children as a little kid.

“NEXT LEVEL”

Moving on, KB said that with regard to “contextual truth” arguments, he would limit his to what he called the “fourth alternative imputation”. In plainer English, KB then described this as the imputation that Billy had callously expressed joy at rumors of Apollo’s death, noting that this imputation was “substantially true”. KB explained, the reason he’s limiting this argument in this way is because [“That is the most damning.”] Judge first identified the relevant paragraph from the pleading as 17B for “Bravo”, before correcting it to 17D for “Donkey Kong”. KB flatteringly laughed before pointing out where BB’s written submission addresses this point. KB noted that it’s accepted that Billy sent the offending text messages about Apollo, however Billy’s side disputes that Billy “callously expressed joy” at reports of Apollo’s death. BB’s filing, according to KB, said Billy was being facetious, and making an attempt at humor. KB then drew Judge’s attention to a couple exhibits in the trial bundle, which were soon identified as those text exchanges between Billy and Carlos, and Billy and Jace. (On stream, you could actually see the judge flipping through Carlos’ copies thanks to the green background.) KB thus argued this wasn’t a one-time facetious comment from Billy, nor was it isolated to a single day. KB then directed attention toward the bit from Billy claiming his wife found this Apollo rumor in two places, while pointing out that Billy’s testimony was that Reddit is not credible. However, KB posits that this report was apparently found in two different locations online, and thus was not exclusive to Reddit. KB then read from Billy’s message to Jace:

If it is true I will not shed a tear
I will try not to smile or giggle
No promises

KB contended that, in his respectful submission, that is not someone being facetious or attempting to be funny. At this point, Judge asked KB if he intended to make an inference on the absence of Billy’s wife from the trial, remarking that she could have testified to a number of relevant things. KB agrees, remarking that there are two important such topics, one of which is this exchange about Apollo where she’s cited. Judge interrupted to say he wasn’t inviting KB to make this inference, but was asking because very little mention of Billy’s wife had otherwise been made, and that Evelyn was not referenced in KB’s written submission. KB indicated he was indeed inviting the court to infer that her testimony would have been relevant, both to this point, and to a lesser extent, Billy’s event appearances, since she was reportedly in charge of the family’s social media. KB noted Judge will also have to contend with conflicting testimony about the veracity of Reddit, to which Judge said he can’t reasonably conclude any such view.

After Judge took a moment to recount the days of these text exchanges, KB offered that the beginning of the Carlos exchange could be argued to be facetious, the way someone may say [“I haven’t heard from him for a while, hope he’s not dead,”] but that exchange does not end that way. KB claimed that “days later” they were still making references to specific though unidentified sources. (FWIW, “days later” is inaccurate, as the actual exchange lasts just a little over one hour, from 11pm to just past midnight.) KB also pointed to where Billy said “No joke”, positing that one does not say “No joke” as a joke.

KB read the further exchange, clarifying that “OMG” is an acronym, before Judge smirkingly explained he is aware that “OMG” is short for “Oh my God”, adding that sometimes other letters are added for emphasis. After more flattering laughter, KB emphasized again that Billy was not joking, adding that Carlos testified to that as well during cross-examination.

KB read again from Billy’s texts that Billy would not shed a tear, and would try his hardest not to smile or giggle. (Note that the phrasing sent to Carlos was different to that sent to Jace.) KB noted again this is not being facetious.

KB then referred to their search for evidence, and how this search also does not indicate facetiousness. KB then read Billy’s further remarks:

I certainly hope you find something solid…
Oops…
Was I not supposed to say that…

And as KB said, Billy said he’d task his wife with finding it again, reiterating that this is not facetiousness, or in Billy’s words, “dark humor”. KB then pointed to Carlos’ remark that he’d “keep [an] eye open”, indicating they would continue looking for evidence, and Billy’s next remark “You are probably correct”, arguing again that this exchange is wholly inconsistent with being a joke.

KB offered a contrast to someone saying “You know we’re kidding about this, right? Of course you won’t find anything solid.” Judge noted that Billy did say Carlos was probably correct about it being a troll post, to which KB said that still does not suggest they were joking.

KB then referred to the conclusion of the exchange, remarking [“The inference is they’re going to buy someone a pizza, because they may have been responsible for the death.”]

Judge asked if that last remark could be a joke, given the context of a “death by spider” troll post. KB acknowledged that portion could be considered a joke on the basis that they could not find any direct evidence, so it was probably not true. KB continued to say, however, that the messages prior to that are problematic, adding that one can joke about it when it’s not true, but cannot when they think it is true.

KB said Billy tried to explain this as “dark humor”, contrary to Carlos’ testimony. However, KB argued that whatever Billy meant by that is probably not relevant, given this text exchange is in Karl’s video. Therefore, it’s not about what Billy meant by it, but rather what a reasonable viewer would infer, noting that these are the same sorts of imputations being pleaded by the plaintiff. [“What would a reasonable person think when they see that up on the screen?”] Judge did ask which portions of these were shown in Karl’s video, to which KB noted it was not the whole exchange. Judge countered that Billy is not complaining about Karl’s publication of those messages, but rather what Karl said about them, saying that a viewer seeing and hearing those bits together would be likely to take the view that Billy is the type of person to express joy at a young man’s death.

KB replied [“Yes, and it’s true.”]

KB then argued that, even if the judge was opposed to all the other defense arguments about the imputations of the video, with the worst imputation would be that Billy contributed to the suicide of Apollo, if Judge does arrive at this “positive defense of contextual truth”, KB submits that it would “undoubtedly” be seen as far more vile and disgusting and evil for Billy to callously take joy in the death of this person. As KB argued, [“One could contribute to the stress of someone who ultimately takes their own life, but one would not assume that that action was intentional,”] before reiterating [“It is far worse to be accused of taking joy in a young fellow’s death,”] adding that such an act would be intentional.

After some silence, Judge offered a “Yes”.

KB then reiterated that this constitutes a defense to Billy’s lawsuit.

Judge gave it some thought, then remarked that KB is characterizing this as the worst imputation by way of comparison to the other worst imputation. Thus, as Judge summarizes KB’s argument, this imputation outweighs all the others, and thus the problem for Billy would be that it could be seen as a true imputation, that he did callously express joy at Apollo’s death. Therefore, as Judge continues summarizing KB’s argument, it would be a defense to all of Billy’s claims of defamation.

KB then refers to some case law decision cited in his closing briefs, wherein a plaintiff attempted to argue certain statements were damaging, while ignoring other statements in the same publication which were so much worse, noting the plaintiff could not complain about those worse statements because they were true. KB then reiterated, yet again, that the worse imputation outweighs all the others, and that he can’t think of anything worse than suggesting someone takes joy in a young fellow’s death. KB continued that, while this analogy is not in his submission, the only imputation he could think of that would compare would be to call a teacher a pedophile. Judge offered that one worse imputation would be if someone consciously and deliberately hounded someone to commit suicide. KB begged to differ, believing that not to be worse, characterizing the taking of joy in someone’s death as “downright evil” and calling it “next level”. KB reiterated that, while being called a pedophile would be serious and awful, his submission is that the characterization of someone as taking joy in a person’s death is still worse. (Note that obviously both are horrific, and that I’ve only captured summaries of KB’s words and not the totality of his presentation.) To Judge’s point, KB noted there is nothing in Billy’s pleading to the effect that Karl accused Billy of any deliberate attempt to push Apollo to suicide. KB added, even if that were the imputation, he submits that taking joy in that [“would be even next level worse than that, because that is true evil.”]

KB then reiterated that, if the judge did arrive at this point, this would be [“the end of it.”] KB then raised the question that, if the judge were still against Karl on each of these points, this matter would still come into play with the question of damages. KB remarked he doesn’t understand how Billy’s damages could come near what’s pleaded. Based on subsequent remarks by the Judge, there seems to be codified law regarding the maximum damages in cases like these, which change over time. Judge remarked that, while nobody mentioned it in their submissions, those maximum general damages are in the $430,000 range, but Judge could not recall if this legal maximum is based on the date when the proceedings started, or on the date of trial. Judge did note that this maximum was [“only available in the very worst of cases.”] KB offered his opinion that, even if Judge found Karl at fault, this wouldn’t come close to that threshold.

KB then offered a recent decision from this court from a 2023 case titled “Harrington v Shoard”. According to KB, Harrington did involve an accusation of pedophilia, and the ruling discussed comparisons to other cases which also involved accusations of pedophilia. In those other cases, the publications were far more widespread, and their impact on the plaintiff was much more significant. According to KB, that case also dealt with the “grapevine effect” as well as diagnosed conditions such as depression. KB noted the plaintiff was no longer invited to social functions and family gatherings, contrasting with Billy’s situation where his friends and family seem to want him around just as much.

KB also noted the decision referenced the health of the plaintiff, acknowledging there is testimony from Billy himself to that end, but that that testimony is affected by “difficulties with his credit”. To that point, KB recalled the moment in Billy’s deposition testimony, which was given after this lawsuit started, where Billy was asked about alleged defamation by Karl Jobst, to which Billy said words to the effect that it was nothing in comparison to the defamation by Twin Galaxies, which was almost word-for-word the opposite of what he testified here. KB noted that Judge can find those citations in his written submission, and he didn’t want to try his honor’s patience by reiterating them all orally. KB thus posited, Billy’s self-serving testimony should not be accepted without corroboration.

KB returned to the Harrington decision, where a plaintiff had to move to a new house because of the rumors, reiterating that that’s not the case here, where Billy is still attending events, and still maintaining a presence online. The decision also referred to another plaintiff where an engagement broke down, noting there is no such break of relationships in this proceeding. KB continued, [“I simply do not understand how those cases, which won relatively small amounts of money, could compare to this matter.”] KB reiterated that there’s no claim for economic loss here. KB then noted that Harrington awarded someone $15,000 for being accused of being a pedophile, to which the judge asked if that included aggravated damages, which KB believed it did not. Judge eventually tracked down in the decision where that judge awarded a “small component” for aggravated damages due to the extreme allegation, but did not identify what that “small component” was. KB returned to his argument, noting that the publication in Harrington was obviously more widespread, and that the seriousness of the allegation and impact were far worse. Judge countered that the allegation in this case was more widespread, which KB accepted was true at the beginning. (I think this meant, in Harrington, an allegation was transmitted privately, and eventually crossed into larger publications, whereas Karl’s contested words began with his publication.) Judge noted this meant potential damages could be higher than if it were only sent to half a dozen people, which appeared to be the case in the Harrington examples. KB accepted this, but noted that a small number of people in those cases could still have a significant impact, calling back to the example of a teacher whose allegation was conveyed to their employer or colleagues.

ONE MORE THING

At this point, KB declared that, unless Judge had any further questions, that was his submissions. However, we weren’t at halftime of closing arguments quite yet. Judge reminded KB he was going to address the question of mitigation, to which KB said that’s dealt with in his written submission. However, KB began to discuss the topic anyway, noting that there are two important points. KB first made a reference to the limited amount of time the contested words were online, but said more important than that was the apology video. KB noted his impression that Judge appeared troubled by that argument, to which Judge said [“I am troubled by the apology video.”] Judge pointed to KB’s written argument, which used Billy’s methodology of views equating to people who have watched the totality of the video, and pointed out that Karl’s retraction video was seen by twice as many viewers. However, Judge countered, it was not brought to the attention of people who might have an interest in Billy or Apollo or cheating that this video contains information about those subjects. Judge compared this to every other Karl video discussing Billy, which had his face in the thumbnail, while this one focused on a completely different topic. Thus, Judge asked, how could this be seen as an intended apology, aimed at those who saw the original video? Judge continued, people who have interest in Billy and Donkey Kong and the controversy and Apollo Legend may have absolutely no interest in the topic of that video.

KB answered that, first, that argument assumes people looking for the video would go searching for it. However, Judge disputed this, saying that unless they had an interest in speedrunning, or unless they were on Karl’s notification list, they might have seen this video existed, but they may not watch it if it didn’t interest them, adding that Karl took a video on a completely different topic and put a minute or so at the very end. Judge opined that, at first blush, that’s not a bona fide attempt to correct something said in the past.

KB said he can’t change the name of the video at this point, to which Judge replied he’s giving KB the opportunity to submit something to change his first blush impression. KB answered that testimony had been given to how many subscribers Karl has, noting that those who saw the first video still remain subscribers. Thus, whether the video has Billy’s name in it wouldn’t affect the video going to those millions of subscribers. Judge countered that it would affect who saw the video and the retraction, illustrating that people primarily interested in speedrunning may see the bit at the end, ask what it’s about, and search for the previous video, or may ignore it if it has no interest to them, whereas those who are interested in the Billy story, or in cheating at arcade games generally, would have an interest in this video if they knew it was about Billy, except it does not convey that fact.

KB accepted that the video doesn’t name Billy, or include a picture of him, and that there’s little else he could say that he hasn’t said already. Judge added his impression that one can add a comment to a YouTube video that appears along with it, a written introductory comment that one sees when clicking on the video, and that one would expect Karl to use one saying the video deals with Billy. KB added [“Assuming people read that,”] to which Judge said it could give people an idea of what’s coming. Judge then reiterated that, at first blush, it didn’t appear to be a bona fide attempt at a correction.

KB attempted to dispute the plaintiff making this argument, to which Judge responded that he’s not talking about Billy’s complaint but rather KB’s assertion that this is a good faith correction to be taken into consideration as mitigating damages. KB replied, his submission is that millions of people watched that correction video, meaning if they watched all the way through, millions watched that correction. KB noted there’s a difference between an apology and a correction, saying it’s an issue of substance versus form, adding [“At its lowest it’s a correction, at its highest, it’s an apology.”] Judge noted that it was not an apology to Billy, recalling Karl’s answer to his own question to that end. KB recalled Karl’s answer to that question being “not specifically”. Judge asked, [“But it’s not an apology to Mr. Mitchell, is it? It’s an apology to his viewers for giving false information.”] KB noted it’s safe to say Billy was among those who watched it.

KB, knowing this could be a weak point in his client’s case, drew the attention away and toward a flaw in the opposition’s. He pointed out that Billy didn’t himself put out a video based on this correction on his own platform. [“The thing I’m grappling with is that Mr. Mitchell brings this proceeding about how bad these words are, and reproduces them in their entirety, and only the offending words, and leaves it online forever.”] Judge summarized KB’s position that any harm caused to Billy would’ve stopped long ago had Billy not put those words up on his own YouTube channel, and so the argument goes, the harm was exacerbated in that way. KB agreed, emphasizing that portions of Karl’s video, such as that Karl is specifically not calling Billy a murderer are “untouched”, whereas only the offending words are left for the world to see, adding that this makes no sense. KB added that this can’t be blamed on the grapevine effect, noting also that the only place the word “murder” ever appears is in Billy’s own video, and not in Karl’s.

After a lengthy silence, Judge said he wanted to go through some questions on KB’s written filing before he sits down.

Judge noted the claim in the written submission that YouTube analytics don’t show how many people actually watched and comprehended the contested words. However, Judge remarked, he can infer based on testimony that many if not most who watched it did those things. KB noted this inference would gain strength depending on the number of replies the video received relating to aspects discussed toward the end. (While I don’t think KB made this point explicitly, basically the argument is that Billy’s side could have demonstrated this by submitting the entirety of that video’s replies, but they did not.) KB also noted that this argument “cuts both ways”, because it applies to Karl’s apology video as well. Judge pondered, had the comments been entered into evidence, if they would demonstrate that many people had seen that part of the video, to which KB said he wouldn’t say it was “many”. Judge remarked that, in absence of those direct replies, the only such comments in evidence are from the 10,000 KB successfully submitted. (I was unclear if Judge thought those were replies to Karl’s video as opposed to two videos by Charlie. I’m not sure if that was corrected.)

Judge moved on to another passage from KB’s filing, noting that he must consider the perspective of the “ordinary reasonable reader”. Judge remarked that, ordinarily, the “ordinary reasonable reader” is someone from society in general, pondering whether he should limit that perspective to an ordinary YouTube viewer, or to a YouTube viewer whose interest is limited to gaming or cheating, [“who may not be reasonable in many respects, as indicated by many of the comments on YouTube.”] Judge then asked rhetorically whether he should limit that scope in that way, even if he doesn’t find that subset of people to be reasonable, or whether he should consider it from the perspective of an ordinary person on the “Omnibus” or Gold Coast train. KB referred to a decision in “Rhodes”(?), which dealt with such matters on social media (Facebook in particular), arguing that the context of the forum is that important. Judge then offered that he should thus consider this from the perspective of someone who would view the video. KB noted also that YouTube is a “conversational” forum, where people make comments and replies and replies to replies, adding also that the ordinary viewer accepts that YouTube is a sensational forum where people say crazy things. KB added, [“The example of that, which I’m loathe to bring up, was when one of my client’s witnesses saw a YouTube clip of him doing things I don’t have to repeat here.”] (At first I was like “WTF is he talking about?” before I remembered “Oh yeah, the fart, lmao.”) KB then emphasized that while that content may not be “our cup of tea”, that is the type of forum YouTube is, adding that it’s very different to reading something on the front page of the New York Times.

Judge asked about another passage dealing with the words “and” and “but” in relation to Karl’s statement. For reference, here’s the statement in question:

He was forced to remove all of his videos about Mitchell’s cheating, and paid him a large sum of money. This left him deeply in debt, which required him to find extra work. But with his ongoing health issues, this was all too much of a burden, and he ultimately took his own life.

Judge argued that a viewer would not parse a sentence in the way KB is arguing in his written submission, that they would instead just hear the whole thing. KB argued there’s no black and white answer for Judge to consider, adding that he was making a point about the meaning of the literal construction of the words. Judge countered again that the viewer isn’t going to hear them in the way KB is arguing before forming an opinion on them. KB maintained his submission, that a viewer will hear what the words mean, adding [“When one hears the offending words, in my submission, people understand them to mean not the imputations being pleaded, but what I’ve put in those paragraphs.”] Judge then took issue with a certain paragraph, where KB says the word “and” connects Apollo’s health issues and his decision to take his own life, and doesn’t connect the start of the sentence about “this” leaving Apollo deeply in debt. Judge argued that “and” in his view connects the end clause with “This was all too much of a burden”, adding that “this” would refer to the health issues and the financial troubles, thus that each contributed to Apollo’s decision. Judge asked if this was the only way that sentence could be construed, to which KB argued that is one way in which it could be construed, adding that at the end of the words there is a further reference to Apollo’s health issues, which KB then read from:

…he was extremely ill and couldn’t handle the ongoing stress.

KB submitted that this clause brings the focus back to Apollo’s illness. Judge parsed it to say that, because of Apollo’s illness, he couldn’t handle the stress from owing lots of money, being deeply in debt, and being unable to work. KB acknowledged that’s one way the statement could be viewed, adding that all of these factors are relevant, and can be interpreted in different ways with slight variations.

Judge noted another passage from KB arguing that, given where the context of the contested words in the video, an ordinary reasonable viewer would likely not assign any importance to them, asking why this would be. KB argued that, in addition to the “Biggest Conmen” title making no reference to the claim, the most important aspects of a video in that forum would be at the beginning. Judge asked why that would be, to which KB said people don’t necessarily watch until the end, while readily admitting the same could be said of the apology video.

Judge discussed another passage dealing with YouTube comments blaming Billy for Apollo’s death, asking if he should interpret those commenters as “unreasonable” viewers. KB mused it would be helpful to KB’s case if Judge did that, before putting forth the argument that it depends on the words being used. KB continued to say that if the comment were “extraordinary”, Judge should not infer they were a reasonable viewer. Judge remarked that comments saying [“He killed Apollo”] and [“Apollo’s life was taken from him by this despicable liar”] would be straight-forward. KB interjected that that is an unreasonable comment to any interpretation of Karl’s words, adding [“Those words can’t be construed such that my client is saying that Mr. Mitchell killed Mr. Smith. They just can’t.”] Judge asked about a comment such as [“Mr. Mitchell sued this man into oblivion and caused him to take his own life,”] adding that the chosen commenters have construed Karl’s words such that Billy’s actions were a contributing cause for Apollo’s decision, noting that these commenters are ignoring the other stated factors. KB added that there is evidence that many watching these videos are attached to the story and are watching all the videos, citing testimony from witnesses that they’ll research the topic further to form their opinions, and wouldn’t form an opinion from what one person says in one video. Thus, KB argues, there is a basis for believing these commenters are basing their views on multiple sources. Therefore, a commenter saying something that aligns with one of the alleged imputations does not necessarily imply a connection to Karl’s video, as opposed to a view they formed independently.

Judge noted KB omitted a paragraph citation. KB audibly groaned at his mistake, attempted briefly to look it up, and then asked if he could come back to it. Meanwhile, BB and Billy’s solicitor Francis could be seen shifting around in their seats, appearing eager for their turn to start.

Judge moved to another paragraph arguing that Billy’s reputation was that he would ostracize anyone he considered a threat to his Donkey Kong records. Judge asked if this settled reputation was based only on the movie “King of Kong”. KB noted that’s the way it’s pleaded and that he is held to his pleading.

Judge referred to a passage dealing with the replies to Charlie’s videos, asking if they were pleaded and if pleading was necessary. KB replied that it’s evidence and not “material fact”, and that it came out in the course of the trial and therefore did not need to be pleaded. Judge noted some citations to particular comments, including those few tendered by BB, arguing that damage from those comments isn’t consistent with the grapevine effect. Judge countered by asking why they wouldn’t be illustrative of the grapevine effect, noting that people were still attributing Apollo’s death to Billy years after Karl’s video. KB posited that those impressions may come from Billy’s video, which remains online, pointing out that Karl’s video which remains no longer contains the offending words. Thus, KB argues, such comments arise from the imputations of words presently in Karl’s video, not from words which were originally there. Judge pointed out these were not replies to Karl’s video, but to Charlie’s video which, Judge summarized, characterized Billy as a cheater and someone who bullies those he perceives as weaker.

Judge then discussed the video’s imputation that Billy planned to create a video as fraudulent evidence of a Donkey Kong score, adding that KB simply asserts this imputation was true. Judge then asked what, in the presented evidence, substantiates this as true. KB cited the transcript of the recorded phone call discussed in the video. KB did note that this isn’t a key point for his client, but that he’s not abandoning it either.

Judge asked about a claim that Twin Galaxies published a statement accusing Billy of cheating, asking if such a statement was in evidence. KB took a long moment to look through his notes, identifying an article entered as an exhibit before correcting himself that the given article deals with Apollo. Judge remarked that there’s been a lot of hearsay testimony about documents, such as references to this Twin Galaxies statement, noting that these are just opinions of what the statement said. KB noted it may be correct that the statement is not in evidence, but that it was acknowledged during Billy’s examination. Finally, KB’s assistant was able to identify the statement’s position in the trial bundle. Judge expressed his doubts that the statement actually accuses Billy of cheating, but notes KB’s position that that’s the conclusion to be drawn from it.

At that point, Judge said he had no further questions for KB. At this point, it was just past 1pm in Brisbane (or 8pm for me), so Judge suggested it would be a good time to adjourn. KB laughed that he only went two and a half hours over his estimate. Judge offered BB a short lunch until 2pm instead of 2:30, to which BB requested they meet in the middle at 2:15.

If I may say, having not been granted a break in hours, I was very eager to take a piss. Following that, once again, I could catch up on all my DMs, and the immediate responses to the “Day 6” write-up. As I did this, the sound of two young ladies chatting and giggling throughout the courtroom came through on the feed I still had running.

THE TABLES TURN

During the lunch intermission, chat and I were still freaking out a bit about KB’s blunder. Was there any way to get a correction on the record? Was that even allowed if KB’s closing arguments were considered finished?

Then I remembered that, in my wallet, I still had the business card Mr. Barber (Karl’s solicitor) gave me the morning of “Day 3”, when he asked me to contact the person who wrote the note about Billy texting his son:

Aside from Karl directly, this was the only way I had to contact someone in the defense party directly. And so I took a shot at sending a message his way:

I never heard back from Mr. Barber, and honestly I was not really expecting to. But it was all I could do.

Following lunch, the clerk called for all to rise for the judge’s entrance. KB remained standing, clarifying the missing citation mentioned earlier. KB then said he had another thing to raise, saying he did not want to misstate the evidence. [“Your honor asked me, in relation to aggravated damages, it was put to me the timing of when the video was taken down, put back up, and taken down again. Your honor put to me that the video was taken down, then my client received text message from Keemstar and a concerns notice and contact with Apollo’s brother, and then put the video back up. That’s not right. I can give you the transcript reference.”] KB clarified that the original video went back up after Karl received the concerns notice, then cited the day four transcript to show the contact with Apollo’s brother was the same day the contested words came back down. KB added he wanted to get that corrected given the judge’s interest, reiterating that the brother’s contact was the catalyst for bringing the video back down.

Judge muttered little in response. But cheers and high fives came through in our chat. It’s super-doubtful my outreach played any part in this. Again, Karl knows the timeline, and was likely on his own attorneys’ asses for such a basic blunder already. Either way, at least this was corrected on the record.

At this point, KB finally took a seat, and BB began his presentation. Before I continue, note again that I’m just going to relay what BB claimed and argued, and that I won’t be fact-checking each of his claims the way I would in a proper publication. In other words, I’m not asserting that BB’s claims are true, just that he did make those claims.

BB said he was proposing a similar course to KB, intending to discuss general matters, addressing KB’s written submission, and going through his own written submission as well. KB then apologized for his earlier noted error, before referencing his own chronology of events. KB referred to a tweet by Karl to the effect that he removed the contested words, not because they were wrong, but because he would rather Billy sue him over something else, noting that this tweet was made on June 5th. (I was not sure if this was a correction to what BB had written, or otherwise the relevance.) BB noted also that the replies to Karl’s video are in fact entered into evidence as an Excel spreadsheet, including a column denoting timestamps. In the moment, I was curious how those were entered, given I didn’t recall any testimony authenticating them, before BB clarified they were entered “by agreement”. (I take this to mean, Karl’s side agreed out of court that these represented the replies to his video.)

BB then sought to address the absence of testimony from Evelyn Mitchell, asking Judge if he could refer to Billy the father as “Mr. Mitchell” and Billy Junior as “William”. BB noted that it was never asked of either “Mr. Mitchell” or “William” as to whether Evelyn could have appeared in the trial, or whether she would’ve been available, arguing that any negative inference would thus be unavailable. Judge countered that it’s not necessarily a matter for Karl’s side to put to BB’s witnesses, but rather for Billy’s side to explain her absence. Judge continued, [“If a person is a witness who one might expect would be called for their side, then the failure to call them, when unexplained, could lead to a negative inference.”] Judge added this was why he raised the question, given she could have testified to numerous matters, including Billy’s social media and financials. When Judge noted that a negative inference could thus arise, BB replied by emphasizing the word “could”. Judge then chuckled and remarked that, when he raised the question, KB jumped on the suggestion. BB asked to make the point that this didn’t seem to be an issue with the defense prior to the Judge raising it. Judge asked [“Are you saying I shouldn’t make such an inference?”] BB paused a moment, before saying [“Well… Yes, ultimately.”] BB continued by asserting that what her testimony would have gone to was instead addressed by others, adding that his side was cautious not to duplicate witnesses on issues that aren’t central to the matter.

Judge replied that the issue of whether Billy was paid for his appearances or not is a central issue, noting that Billy testified his later appearances were “never” paid, adding that per his recollection it was Junior’s testimony that she controlled the finances. BB replied that it was Billy’s testimony that he was paid for some of those later appearances, and that they’re not arguing otherwise. Judge laughed and remarked that he may have exaggerated when he used the word “never”, and that he should “never” exaggerate. BB continued that there was a particular event where Billy was asked if he was paid or not, adding that the issue may be limited to whether that one appearance was paid.

At this point, BB brought the judge’s attention to KB’s submission, starting with a section dealing with credibility. BB began addressing KB’s attempts to question Billy’s credibility by noting that Billy’s testimony stretched across three days. In particular, BB noted, Billy’s cross-examination was extensive, lasting from late on day one to lunchtime on day three. BB then claimed Billy was generally “respectful” and gave “compelling” evidence. (I promise, I will try not to insert my own commentary too much in between BB’s remarks, but right away, as someone who personally witnessed almost all of this testimony unfold, I would not characterize Billy’s repeated emotional outbursts or glib retorts as “respectful”.) BB claimed this was particularly true of the effect Karl’s video had on him, adding that much of that testimony was consistent with the testimony of others. BB recalled that Junior testified that he’d heard his father vomiting, and that Triforce and Walter Day remembered Billy being angry over the video. BB noted Billy could generally recall facts without the assistance of documents, including dates of events and high scores going back to 1982, adding that this testimony was consistent with the documentary record of those scores. BB also asked Judge to recall that Billy could remember the wording of various tweets without assistance. BB then cited the portion of the transcript reflecting Billy’s high score recollections.

BB then characterized one of KB’s written arguments against Billy’s credibility as “an unfair criticism”. BB asserted there was evidence about the effect of Karl’s video on Billy’s appearances, adding that there was consistent evidence from Junior about the number of appearances before and after Karl’s video. BB added there was no requirement to provide financial documents, since they’re not arguing a case of financial losses. Thus, BB disputed a criticism from KB to that effect, adding that he (BB) himself was interrupted for making that mistake as well during questioning.

BB argued that it was never put to Billy whether there were events he could not or did not attend, or whether his testimony about events prior to the video were not correct, asserting that most of the questioning was about Billy’s appearances after Karl’s video. After a moment, BB then remarked he was attempting to read his own handwriting from that morning, before having a quick sidebar with solicitor Francis. BB added that, during questioning about post-publication events, Billy listed from memory six or seven events at which he appeared following Karl’s video, noting that the fact of these appearances was volunteered freely.

BB remarked that, earlier this day, KB claimed there was an inconsistency in Billy’s testimony due to an invoice. BB then directed Judge to a portion of the testimony transcript, where Billy testified he was paid at that event one year and was not paid the second year. BB thus claimed that all Billy did was confuse 2021 with 2022.

BB then referred to the Twin Galaxies proceedings in California, asking to make a couple points about the impact of that on Billy. Regarding the discrepancy in claims of damages, BB argued that there are differences in the defamation laws between the different jurisdictions, especially in the United States where defamation claims have to deal with “Article One” free speech issues. (I’d assume this was a reference to what we in the U.S. call the “First Amendment” and not actual “Article One” which outlines the structure of Congress.) BB noted that [“much was made”] of Billy’s deposition testimony in the California proceedings, before asking the judge to refer to the transcript of Billy’s testimony. BB cited Billy’s testimony to the effect that he did not understand the question in the TG matter as referring to the Karl Jobst video about Apollo Legend at the center of these proceedings. BB then recalled his question, asking Billy if his answer would have been the same had he understood the question as referring to that video, to which Billy answered [“No, not at all.”]

Judge then asked what this is relating to, to which BB replied this was about Billy’s deposition answers in the TG proceeding. Judge immediately recalled Billy said similar words there to what he said here about the TG comments, that their effect was minimal in comparison.

BB spun it as follows: [“As I understood, it, he believed he was being asked about the impact it had on the cheating allegations. So as I understood his evidence, the Twin Galaxies proceeding was about defamation through cheating allegations. And he thought, when he was being asked about the impact of other videos and publications, he understood that to refer to their impact on the cheating allegations. Because Mr. Jobst also published videos about Mr. Mitchell allegedly cheating. And so I understood his evidence to be that when he was asked about Jobst’s videos, he thought he was being asked about the ones where he claimed Mr. Mitchell cheated.”]

Judge asked whether this illustration referred to this case or the Twin Galaxies case. BB noted it was in reference to the TG deposition, adding that everything he summarized was Billy’s answer to why he gave the answer he did during the TG deposition. Judge remarked [“That may be Mr. Mitchell’s explanation here”] (which I heard an emphasis on the word “here”), before asking if that full deposition includes testimony from Billy about Karl’s other videos. BB replied the whole deposition is not in evidence. Judge clarified his issue, illustrating that Billy gave an explanation here, for what he thought he was responding to there, but all the other questions leading up to that point which might have led him to believe that framing at that time, those questions have not been entered into evidence in this case. Judge then also noted that, since Billy was not cross-examined on this point and shown those earlier questions, there is no evidence contradicting Billy’s narrative. (More on this later.)

BB pointed Judge toward Billy’s testimony regarding his texts with Carlos, and Billy’s assertion that he did not believe Apollo was dead when he sent those messages, and would not have sent the messages if he believed Apollo was dead. BB noted Billy’s testimony that he regrets sending those messages, and Billy’s and Junior’s testimony to their reaction when they later learned of Apollo’s suicide, including their attempts to reach out to Apollo.

BB noted a claim from KB that Triforce’s testimony was “unhelpful” to Billy’s case, to which BB disagreed. BB cited, from his own submission, Triforce’s testimony that Billy was held in high esteem in the community, and that Triforce referred to him as the “Michael Jordan” of video gaming. (I was waiting for BB to make a subsequent assertion about Billy’s reputation after Karl’s video, given that was the whole point of that subject. Instead, BB moved on.)

BB referred to KB’s characterization of McNutt’s testimony, that Billy was a great guest. However, as BB pointed out, McNutt testified he’d never seen Karl’s video, so he can’t know the impact it had. Therefore, as BB suggested, any argument regarding the impact on Billy’s reputation based on McNutt’s testimony [“can’t go very far”]. BB continued to argue, as a point of law, that they don’t need to show that every person who saw Karl’s video thought less of Billy, adding that if the court finds the accused imputations arise and are defamatory, that there is a presumption of damage. BB also noted Billy’s witnesses were lifelong friends who would not have believed the allegations.

BB then addressed KB’s submissions about Karl’s credibility, noting KB’s position that Karl made reasonable concessions and was never untruthful. BB then referred Judge to his cross-examination of Karl regarding the correction video, and attempts by Billy either through his attorney or through Keemstar or through his own video to correct Karl’s claims. BB then pointed out Karl’s refusal to accept that Billy’s concerns notice was him reaching out to correct information, citing that as just one example that contradicts KB’s claims of Karl’s credibility.

BB added that he dealt with credibility of Karl’s witnesses in some detail in his written submission, pointing Judge to his conclusionary paragraph. BB proposed a comparison of both sides’ witnesses, positing that Billy’s side called witnesses who actually knew Billy, who actually saw how he interacted with people, and who could speak more knowledgeably to Billy’s reputation. Comparatively, BB said many of Karl’s witnesses had “axes to grind” with Billy, or in some cases faced lawsuits from Billy themselves. BB noted Charlie White makes a living out of publishing videos some of which attack Billy. BB suggested this led to the disparity in the types of testimony given about Billy’s reputation. BB also argued that most defense witnesses understood Billy’s reputation from what they’d seen online, but didn’t identify specific sources for that information, which BB argued opened the door to suspicion and rumor. Therefore, even if Karl’s witnesses did have the impression of Billy’s reputation they claimed to, it could still have just been based on rumor.

Regarding the effect of Karl’s video on the number of Billy’s appearances, BB recalled testimony that Billy had 20-25 paid appearances per year prior to the video, compared to around fifteen appearances in the three years afterward. BB added that those post-video appearances were a mixture of paid and unpaid, and that this equates to about five appearances per year, arguing that even based on this Karl’s video has had a significant impact on Billy’s reputation.

BB then addressed the issue of publication, noting that the video was “published” in requisite legal terms, including in their jurisdiction, pointing to Grunberger’s testimony that he downloaded and watched the video while in nearby Gold Coast. Judge then interjected to ask about the word “downloaded”, remarking his impression that when watching a YouTube video, one does not “download” it onto your computer, and that the video itself stays on whatever server it was watched from. BB noted he uses that language because that’s the language used by the high court in a previous case. Judge agreed that is indeed the language they used, but pondered whether or not that’s accurate, noting that if videos like these were not “downloaded” then by their definition they could not be “publications”, noting that would not seem right. BB opined [“I think the intent is that it’s ‘downloaded’ to the extent that, digitally, the code comes through the Interweb, onto your computer, from where you can observe it.”] (And yes, I swear to you, BB said the word “Interweb” lmao. Our chat had a good laugh with that.) BB posited that’s what makes it consistent with buying a newspaper, or turning on a television, that you are receiving the media and then watching or reading it.

BB returned to the topic of Grunberger watching the video while in Queensland, and Billy Junior’s testimony of watching the video, as well as Karl’s witnesses that they had watched the video. Judge then noted, apparently based on the written pleadings, that BB was relying on three different venues of publication – in Queensland, in Australia, and throughout the world – before asking BB if he’s relying on publication outside of Australia. BB indicated he is doing so, as it relates to assessing damages and the extent of the publication beyond just this jurisdiction. Judge asked for the legal authority for that proposition, to which BB indicated it should be in one of his other cited cases, adding that one can infer publication in relevant circumstances.

IT’S A-ME!!

At this point, BB invoked a 2022 Australian case BB identified as “Barilaro v Google”, although it seems the actual case name is “Barilaro v Shanks-Markovina & Google”. The impression I got from our live chat is that those of you reading this are either thinking “Literally who?” (as I was) or are going “NO FUCKING WAY!” Out of nowhere, I got a DM from my pho friend from day five, who was following our chat, and who explained to me the relevance of this case. In short, a YouTuber named “friendlyjordies” published a series of videos criticizing politician John Barilaro, the Deputy Premier of New South Wales, accusing him of corruption. This was a huge ongoing thing, where at one point friendlyjordies showed up to a live event taunting Barilaro while wearing a Luigi costume – yes, a Luigi costume. All of this led to a defamation lawsuit from Barilaro, as well as allegations Barilaro lied in a police report and weaponized government counterterrorism forces to harass friendlyjordies’ producer. Oh, and Barilaro also sued Google for refusing to take down friendlyjordies’ videos. This is apparently a highly notorious case in Australia, and despite it never having come up on my personal radar half a world away, it honestly does sound fascinating. However, I will leave it to you, my intellectually curious readers, to explore the matter further as you wish.

BB explained the citation, noting that the Barilaro case was also over a video on YouTube. BB added that this case discussed the number of views on friendlyjordies’ video, and the fact Google failed to produce certain analytics of the video as required. BB noted that, while Google was not present in this case, there was discussion of the absence of analytics information. BB then pointed to portions of the testimony transcript dealing with analytics, and specifically viewer retention data, arguing that Karl’s side failed to provide such viewer retention analytics in disclosure. BB continued recounting Karl’s testimony, where Karl was asked about these analytics, and about his decision to place his correction at the end of another video. Karl had answered that it was because of the way retention works on YouTube, noting that more people watch longer videos, which boosts how much YouTube will promote the video. Karl also cited watch time and click-through rate as important metrics, but admitted he had not disclosed that information.

BB then asked to move on to matters of imputations and defamation, pointing to where KB’s written submission broke down the semantics of the contested words from Karl’s video. While I obviously don’t have the written submission, BB suggested that KB at times flipped between a summary view of Karl’s words as one would hear them, and a careful analytical view breaking down each word by itself. BB then cited a case called Favell v Queensland Newspapers, involving a newspaper report on an arson which was alleged to imply fault for the arson. From that case, BB cited a quote from a judge in a previous case, which I was able to track down:

[I]t is the broad impression conveyed by the libel that has to be considered and not
the meaning of each word under analysis.

BB posited that the problem with KB’s approach of dissecting Karl’s words is that it delves into this sort of analysis which a higher court has already forbidden.

At this point, Judge remarked on the difference between YouTube and a television program, which is broadcast at a particular time. Judge remarked that, absent modern capabilities to rewatch such shows, you’d typically see a television show once and thus gain a single impression upon which an imputation could be drawn. Judge then pondered what approach he should take with a YouTube video and what kind of imputation could be drawn, whether it would be the impression of someone who watches it once, or someone who watches it multiple times. BB proposed it ultimately doesn’t matter, that it comes down to how one interprets it when one watches it, not when one hypothetically pauses it to ask whether a given word is being used as a conjunction or disjunction or whether the first part of this sentence refers exclusively to the first part of the other sentence. Judge remarked that, with a newspaper article, one may read it more than once, before wondering if the standard should be the impression one would get upon first reading and not when one analyzes in greater depth. BB acknowledged there are cases where one could hear a statement, go [“Wait, what was that?”] and backtrack to hear it again, but suggested that even in those cases a viewer would not pull a sentence apart in the sort of analytical detail KB is attempting.

BB brought up the question of whether the alleged imputation arises from Karl’s video, acknowledging that it’s a question exclusively up to his honor and not to the YouTube commenters, although BB also suggested the task is made easier because of those comments. BB said he would rely on his written arguments to that end, before addressing KB’s written arguments over whether the alleged imputation is defamatory. BB cited some other case law named “Brose”, which I believe to be “Brose v Baluskas” from 2020. (Given the later context, I gather it was a case initially cited in KB’s written arguments, which BB is now attempting to address.) BB suggested that, contrary to KB’s written arguments, the “Brose” case establishes the matter should still be considered from the perspective of “the reasonable, ordinary viewer”. The judge in that case noted the media must be acknowledged in its context, before examining a post on Facebook in the social media context. From that case judgment, BB pointed Judge to several of these considerations, including again that context is relevant when considering whether a publication conveys a defamatory meaning. BB continued that the plaintiff in that case ultimately succeeded, arguing thusly that just because a post was made on Facebook does not mean it can’t be defamatory. BB then argued this cited case was from four years ago, and that things have “moved on” since then. BB cited another more recent case alleging Facebook of disseminating a defamatory publication, dealing with the obligations of social media websites. BB then noted that, although the judge in “Brose” ruled that social media comments are an unregulated “Wild West”, BB argues courts have since moved on from that position, and that sites like Facebook and YouTube are now regulating material more closely. Thus, BB argued, these later judgments lessen the impact of the “Brose” ruling.

Judge dryly remarked, [“That’s a difficult submission to accept, Mr. Somers, given that when I look at the videos in evidence in this proceeding, and the comments that were made in this proceeding, there seems to be no regulation of either.”]

BB acknowledged Judge’s point, but submitted that should not prohibit his client’s success. Judge agreed it wouldn’t necessarily do so, just that it wouldn’t appear social media has “moved on” in the way BB is describing. BB countered that he’s not saying there aren’t untoward things happening online, and was not trying to compare it to traditional media with industry regulations, but is saying that things are changing in the social media sphere.

BB then pointed back to the Barilaro case again, explaining that Google was sued by Barilaro over certain videos, while asserting those videos bear some similarity to Karl’s video in this case. BB directed to Judge to a certain portion of the Barilaro decision to argue that courts are now looking at guidelines in these unregulated matters, suggesting again that things are changing contrary to the “Brose” ruling.

BB then discussed what he considered the similarities between friendlyjordies’ “Bruz” video and Karl’s. Of these alleged similarities, BB listed only “parodies” and Mario Bros. characters. (I couldn’t say if a longer list was reflected in BB’s written arguments.) BB argued that the defense that videos like these should be taken with a grain of salt because they’re for entertainment and not serious shouldn’t hold up in light of the Barilaro decision. BB then reiterated that, even in the context of the YouTube community, these videos can carry a great sting to a person’s well-being and reputation.

HE DOES GIVE A DAMN ABOUT HIS BAD REPUTATION

BB asked to move on to the topic of reputation, asking if Judge had any further questions about the prior matter. Judge indicated he was doing the same as with KB, writing down his own questions to save them for the end.

BB pointed to point in KB’s submission arguing that Billy’s reputation was not further harmed by Karl’s video, with BB positing that submission is not consistent with the evidence. BB then suggested there’s been no pleaded case against them that, absent the allegations of Billy having a pre-existing bad reputation, that there was no damage to Billy’s reputation either way. BB expressed his concern that KB’s submission was arguing in that direction, noting such an argument without a pleading should not be considered. BB reiterated that the only reason Karl’s side argues that the video didn’t affect Billy is because they allege Billy already had a bad reputation. BB then said his own written submission covers the harm they allege Billy did suffer to his reputation, citing particularly Billy’s event appearances. BB then pointed to various citations in his written submission, reminding the judge that much of the trial testimony was focused on this issue. BB then noted this narrative is consistent with testimony from Billy Junior, adding that contrary to KB’s submission Junior’s testimony was honest, compelling, and direct.

BB then noted that much was made of Billy’s reputation from the movie “King of Kong”. BB made a point to say, the only time King of Kong was specifically relied upon was to cast Billy as a person who ostracizes he considers a threat to his high score records. Thus, BB argued, “King of Kong” should be seen as having only a limited effect on Billy’s bad reputation. BB also noted that, in his belief, none of the defense witnesses used the word “ostracize”, arguing that that characterization of Billy’s reputation is also not substantiated. Judge then asked, aside from the word “ostracize”, whether BB is arguing that no witnesses said words to the effect of [“If you challenge his records, either by saying they’re false or by beating them, he’ll have nothing to do with you.”] BB agreed, admitting that Billy was called plenty of other things in testimony instead, such as a “narcissist” and a “joke”, but that he was not accused of ostracizing people or acting in the way Judge described.

BB also argued there was testimony from witnesses acknowledging that Billy was playing a character in “King of Kong”, comparable to a [“wrestling heel”]. BB noted the terminology may not be appreciated in Australia, but that one of the witnesses used that term, adding that either Mr. Burt or Mr. McNutt recalled Billy playing such a character at conventions. Judge recalled the testimony that Billy would either smile or scowl for photos depending on whether he was asked to be the good guy or the bad guy. BB argued that people understood this to be part of the Billy Mitchell character. BB then posited that there’s uncontested evidence that “King of Kong” was ultimately good for Billy, citing Billy’s own testimony that all his benefits have flowed from that movie. BB recalled a moment from McNutt’s testimony where KB suggested that “any publicity is good publicity”, to which McNutt agreed. Judge asked if he should infer the movie didn’t lead to a poor reputation, to which BB agreed.

BB then argued that, per Billy’s witnesses, the Twin Galaxies allegations did not significantly alter Billy’s reputation or popularity. BB noted that he stresses the word “significantly”, because Billy accepted it did have some impact, but that according to Billy it was only for a short time. Before continuing, BB clarified that when he speaks of the Twin Galaxies “dispute”, he’s referring both to the score dispute of 2018 and the later litigation commenced in 2020. BB noted Billy’s testimony that he attended up to 25 events per year during that time, and that he couldn’t even accept all his invitations. BB said there was also testimony that many people understood the TG dispute as a “dispute” between two figures in the arcade gaming world, and that it was TG’s findings on one side and Billy’s claims on the other. BB suggested there’s testimony from Burt, McNutt, and Triforce to that effect, as well as from Mr. Young for the defense. Judge immediately remarked that Mr. Young was the person who did the initial investigation and uploaded the evidence, launching the allegations of cheating. BB then called back to the Donkey Kong Forum poll, citing Jeremy’s acknowledgment that Billy had a mixed reputation in the community, that those who were against Billy’s side thought he cheated and those who were on Billy’s side thought he was good, adding that this characterization was consistent with the poll.

Judge then asked what the court is supposed to do with reputation, noting that in almost all cases, there are people who support the plaintiff, and those who do not. Unless you can show that people who once supported a plaintiff went against him because of the defamatory comment, how do you show that a reputation has been damaged? BB then posited that what the court must find, and will not find, is that it was a “settled reputation” by the community. BB continued, [“There will always be someone in the world who doesn’t like you.”] Judge countered that if half the world thinks you’re a bad person, and half thinks you’re wonderful, and then someone makes a defamatory comment about you, and half the world thinks you’re bad and half thinks you’re wonderful still, would that not indicate your reputation was not damaged by the defamatory comments? BB replied that it’s a bit different here, where you can’t find that it was a settled bad reputation held by the majority of the community. Judge remarked that this argument would counter the defense position that Billy had a settled bad reputation, and thus the video did not harm Billy further. BB agreed, adding that judge should not find that because it was a mixed reputation, not a settled one held by the majority of the community. BB then returned to Judge’s analogy, suggesting this wasn’t a case where half the community liked Billy both before and after, arguing the video still had an effect. BB argued that the testimony showed that, if it was a split reputation, Karl’s video moved more people from one camp to the other.

BB then suggested, when considering Billy’s reputation immediately prior to Karl’s video, Judge should consider the testimony about Billy’s reinstatement by Guinness World Records in 2020. BB also remarked this had a lasting impact on the TG dispute, noting Billy’s testimony that the TG dispute hurt him for a short time, as some people stopped communicating and some events cancelled him. BB also recalled Billy’s testimony that he began playing on Twitch and at events to counter the cheating allegations, before suggesting this tied into Billy’s testimony about the effect of Karl’s video. BB recalled Billy’s characterization that he knew how to defend himself against TG’s cheating allegations, but felt frustration over Karl’s video because there was little he could do to defend himself from the imputation that he’d driven Apollo to suicide, with BB adding that frustration was a big part of the impact Karl’s video had on Billy. BB then circled back to his point about Guinness, recalling Guinness’ reinstatement announcement and the attention it received. BB thus argued, the court should assess Billy’s reputation immediately before Karl’s video, adding that any effects of the TG dispute were corrected by 2020 with Guinness’ reinstatement and related media. BB then began to suggest none of the witnesses were asked about “that part of…” something, before retracting the claim mid-sentence. (At this point, I saw KB dramatically swiveling his head around, as if to performatively give puzzled looks to his colleagues.)

BB continued the discussion of reputation by citing three alleged bad reputations. First, BB acknowledged Billy was accused of cheating to gain recognition, adding that most of the defense witnesses did not identify sources for their impression of Billy’s bad reputation. BB then addressed Billy’s second bad reputation as someone who uses litigation to coerce others into recognizing him as a world record holder, noting that there were only two “prosecuted proceedings” with any connection to cheating. BB added [“Now, they weren’t proceedings to coerce others into recognizing him. They were two defamation proceedings.”] BB cited one of these as the lawsuit against Apollo Legend, which was resolved when Apollo contacted Billy, with BB recalling Junior’s testimony about Apollo reaching out through an intermediary and resolving the matter over Discord. BB suggested [“It’s certainly not evidence of coercing others into recognizing him.”] BB cited the other such case as the Twin Galaxies proceedings, adding that the David Race lawsuit was about telephone calls and that two other cases were not served. BB said this speaks to the point of bad reputation, and relying on rumors and gossip, in that some defense witnesses spoke of those other cases as if they were “prosecuted proceedings”, referring to five proceedings and such. BB suggested these witnesses obviously heard about these from someone else talking about it because some of those were never served.

Judge countered that, while the cases may not have been served, they could still have become public knowledge, noting that Jobst’s video discusses some of them, adding that even if they’re not served people could still view them as “litigious processes”. BB argued this would not still not reach to establish Billy’s reputation as one who coerces others into recognizing his world records. Judge remarked that it could be seen as coercing others into not making further statements that he’s cheated, which is part of the relevant proposition. Judge added, perhaps a bit sarcastically, that defamation cases against people who alleged him of cheating could lead to him having a reputation as a litigious person who sues people who call him a cheat. Judge further remarked that these cases could also lead to Billy attempting to coerce people into retracting their comments and acknowledging him as having not cheated. Judge added that this is what Guinness World Records ultimately did, and that even though proceedings were not commenced in that case, they were threatened, which is a pre-litigious process which in that case led to exactly the circumstance described. (Recall this is all still discussing Billy’s reputation as someone who uses litigation to coerce others into recognizing his scores.) Judge then concluded, he’s unsure it’s right to say the evidence doesn’t show some basis for some people to consider that to be Billy’s reputation.

BB acknowledged those proceedings were entered into evidence “by agreement”, but added that [“When one knows the true fact of the proceedings, based on fact and not rumor and suspicion, that wouldn’t give rise, when there’s only those two proceedings, to a reputation of the effect alleged.”] BB continued to argue, even if a reputation was based on those two proceedings, it shouldn’t lead to a bad reputation, adding “People are perfectly entitled to avail themselves of the court process. We’d have nothing to do otherwise.” Judge continued BB’s joke, saying “It keeps many other people employed”, to which BB mused “God bless them.” BB continued to ask, rhetorically, [“How does that create a bad reputation, when one knows the actual facts?”]

BB then circled back to “settled reputation” as this third point. BB cited a ruling he called “Peros”, which I’m guessing relates to an Australian defamation case brought by John Peros against a true crime podcast. BB did advise caution when referencing Peros, noting the ruling was under what he called the “new regime” of “serious harm”, which reversed some earlier precedent regarding causation. BB suggested he didn’t need to elaborate any further, to which Judge agreed. (Yeah, obviously, fucking everyone knows about the new Peros regime of Australian serious harm causation law. What, have you been living under a rock?) BB cited a specific element of the case regarding settled reputations based on reports and rumors, where the judge in that case observed the need for a person’s “settled reputation” to be considered. BB then pointed back to his earlier arguments to this point, about the competing testimony in this case and the nature of the witnesses who were called, and how this affects an assessment of Billy’s settled reputation.

BB transitioned, [“I’d like to turn to the issue that was raised about my plaintiff’s contribution to his alleged situation by way of his own video.”] First, BB argued that most of the impact of Karl’s video had been done by the time Billy released his on the 4th of June. BB pointed to one of the available analytics documents, showing that between the initial release of Karl’s video and June 4th, there were over 500,000 unique views, while specifying that these were “unique views” and not “total views”, adding that a large majority of the total views of the video occurred during that time. Second, as BB said, [“Much was made of the fact that my client put the offending words in his own video, and he did, but one must look at his video as a whole.”] BB notes that, both before and after Billy inserted the words, Billy strenuously denied everything Jobst said, and thus no reasonable viewer watching that video could miss Billy’s emphatic denials. Thus, as BB argued, any argument that Billy’s reputation was damaged because people watched his video “has some difficulties”, adding that no reasonable person could conclude that Billy’s reputation was damaged when the video is watched as a whole. BB reiterates his recollection that Billy brackets his denials both before and after the segment pulled from Karl’s video.

BB then turns back to KB’s written submission, where it was said Billy’s witnesses characterized the allegations against Billy using the word “murderer”. However, BB argued that the testimony from Billy’s witnesses regarding Jobst’s claims “did not rise to the level of a murderer”. BB then clarified, none of these witnesses spoke of the allegation as involving intent. BB then pointed to a reference by KB to comments to Charlie’s video, saying again that those comments go to the grapevine effect, which BB intends to discuss later. BB then reminded the judge those replies to Charlie’s video were almost three years after Karl’s video, and that Charlie’s video was relatively unrelated in that it discussed the cheating allegations and was not about the events between Billy and Apollo.

BB then addressed the issue of “sectoring”, referring back to Peros and another case called “McBride”, while walking through various citations in his written submission. BB characterized the sector of Karl’s claim as [“a propensity to harm or cause harm to another person’s health or well-being”], contrasting it with KB’s characterization of the alleged imputation as [“a propensity to do harm to protect his reputation as a video gamer”]. BB noted the similarities in these characterizations, in that they both involve a propensity to do harm to others. However, BB added, the plaintiff’s side frames it more broadly, whereas the defense frames it as an attempt by Billy to protect his reputation as a video gamer, which BB argues is too narrow. (This bit may be confusing, but basically it seems KB is arguing that Billy’s side has to prove Karl’s allegations involved Billy harming others to achieve certain goals, whereas BB is arguing that, no, they just have to show Karl painted Billy as someone who harms others regardless of objective.)

Judge responded that it all still arises from the context of Billy being a video gamer, and wishing to protect his reputation as a world record holder against allegations he got those records by cheating, adding that this all relates back to Apollo’s prior allegations that Billy cheated. BB noted that was the genesis of the conflict between Billy and Apollo, to which Judge remarked this means the issue between Billy and Apollo was indeed about Billy’s reputation as an arcade gamer. Thus, Judge continued, that was the subject of this video by Karl, that Billy was an arcade gamer who Karl alleged was cheating. Judge continued to say, Billy sued Apollo over the allegation, and so the subsequent allegation from Karl was that Apollo was required to pay Billy a lot of money, which caused him problems, which led ultimately to Apollo’s suicide. Thus, Judge posited, that’s all in the sector of being an arcade gamer, and protecting that reputation. BB replied that it’s all within the sector of video gaming, to which Judge remarked that’s where Billy’s reputation is.

BB posited they take a different analysis, and start by looking at the nature of the imputations. Some of BB’s argument was confusing, but it seemed BB’s written submission was citing authority to suggest the court must look at the effect of the imputation and what sector of a person’s reputation is affected by that imputation. BB then cited a 2001 defamation case called “O’Hagan v Nationwide News”, which BB suggested relates to Judge’s proposition of a reputation limited to video gaming. BB verbally summarized the case, where O’Hagan, a police officer, sued over an imputation that he paid to have someone killed. The defense argued contextual truth, in that O’Hagan already had a reputation from having pled guilty to misconduct charges as a police officer. BB noted the ruling in that case may appear at first blush to go against what BB is arguing, given the court ruled against O’Hagan. However, BB argues, what’s important was the reason the court found it important that O’Hagan had the reputation of a police officer, and that the matter must be considered in a more broader sense. Per BB, that court found the sting of the imputation of paying to have someone killed was greater because that person was a police officer. Thus, BB argued, the difference in this case is that Billy’s profession as a video gamer is not to the essence of what they’re suing on. Rather, they’re simply suing on the broader imputation that Billy essentially caused someone to be in a position where they had to pay so much money that it was a reason for them taking their own life. (Note that KB’s oral arguments on this point were very hard to follow at times, but I believe this faithfully represents what he was getting at.)

Around this time, I noticed the other displayed viewer panels in the stream start to fluctuate. I checked the participants list and it seemed a total of six of us were watching the live hearing, not counting the court feed itself as the seventh “participant”. I began to suspect that every one of those viewers not named “William Mitchell, IV” was in our ongoing chat. (And who knows, maybe he was there, too.)

Judge appended BB’s characterization of the imputation, being that Apollo allegedly had to pay Billy so much money [“for having called him a cheat as a video gamer”]. Thus, Judge said, it’s still directly within that sector of Billy’s life, [“which is obviously the principal sector of his life”]. Judge added, [“He’s being called a cheat, which must be one of the worst things to call a gamer, perhaps.”] BB remarked that pushing someone to suicide might be worse.

BB then argued, if one looks at the imputations as they were framed in the pleading, the essence of the imputation is that, because Apollo was required to pay so much money, that was a factor in taking his life. BB argued [“It’s not, to use the O’Hagan analysis, because Mr. Mitchell is a gamer, and he settled a gaming proceeding, causing Apollo to pay so much money,”] while admitting that he was using what he called “children’s language” by using the term “gamer” instead of “video game player”. (Yes, Judge did say “gamer” first, lol.) BB suggested, it wouldn’t matter if Billy was a doctor, in a medical negligence case, arguing that the sting of the imputation is no greater for the fact Billy is a “video game player”, saying this is an important distinction to draw from the O’Hagan outcome. BB reiterated that O’Hagan appears at first blush to rule the other way, before having a quick sidebar with Francis to clarify some citations. BB then refers back to McBride and another case called Fitzgerald, which weighed whether or not the sting of the imputation is greater because of the profession. BB expressed recognition for Judge’s thought process, before arguing again that, in this case, that should be the distinguishing factor. (For what it’s worth, during the subsequent silence, I could see KB in frame, giving a slight expression I interpreted as “WTF is this guy talking about?”)

BB noted that, in his submission, they accept that the second alleged bad reputation, that Billy uses litigation, would be within this sector of Billy being a video game player. BB continued by rhetorically asking, [“How do you get to the point that, because someone thinks you’re a cheater as a video game player, that has a greater sting than that you caused someone to take their own life?”] BB then noted that the later point could be an aspect in anyone’s life, which is why BB argues the third and first alleged bad reputations are of a separate sector.

Moving into remarks on contextual truth sectoring, BB posits that the first and second alternative imputations are along those cheating lines, being banned and such, and thus BB declares he would make the same point. At first, reviewing all of this days after the hearing, I was confused by this reference out of the blue to “first and second alternative imputations”, until I realized it relates to an older filing, which I showcased back in “Day 0”:

(And yes, for the folks who wondered why this “Day 7” write-up took so long to complete, stuff like this was why, lol.)

BB then referred to the third alternative imputation, relating to Billy’s wacky phone plot to fabricate evidence, arguing that this also does not fall in the same sector or have a greater sting than the other imputations. Judge interjected, [“That’s clearly in the same sector, isn’t it?”] BB reiterated the imputation as being that Billy planned to use a video to fraudulently use as evidence to justify a record. Judge noted again, this was to justify Billy’s video gaming records, and thus was within the sector of his occupation as a gamer. BB countered [“If that’s the sector. If we look at it our way, then the sector is within the imputation that he acted as a factor in someone taking their own life.”] After some quick back-and-forth with the judge, BB continued, [“When you look at the imputation, which is that he was a contributing factor in Mr. Smith taking his own life, one’s honesty or ability to act honestly, we say, is within a different sector of his reputation.”]

So… If I may paraphrase, the argument Billy’s barrister seems to be reduced to making is (in my words) “Just because my client may be a habitual liar doesn’t mean he would wish anyone harm.” Which I guess is accurate enough, but it’s quite an argument to hear being made.

After another quick clarifying question, Judge expressed that he did understand BB’s argument about the phone plot and the Apollo imputation as involving different sectors, clarifying that he thought BB was trying to make a different argument about contextual truth. (At this point, I couldn’t tell you what that argument would have been.) BB clarified he’s not comparing each of these alternative imputations to each other, but rather comparing each to the sector of the main alleged imputation. (For simplicity, from here on I’ll refer to the matter at the heart of this lawsuit – that being the idea that Karl’s words attributed responsibility on Billy for Apollo’s suicide – as “the main alleged imputation”.)

BB then returned to his argument, reiterating that this third alternative imputation relates to the sector of Billy’s honesty, which is separate from the sector of the main alleged imputation. BB posited this was also the same of the fourth alternative – the one that says Billy expressed joy upon hearing news of Apollo’s death – which BB mused is now the defense’s primary case. BB continued, [“We’d make a similar submission, that expressing joy at someone’s death is a very different sector of how people perceive you compared to whether you caused that person to take their own life.”]

At this point, I was feeling like Billy’s case was not going well.

BB doubled down on this position, reiterating that this sector of propensity do harm is “a very different sector” from callousness. Judge did not interrupt or reply to this. BB then moved on to the fifth alternative contextual truth, the use of litigation, which BB accepts would be within the same contextual sector as the main alleged imputation.

BB continued discussing contextual truth, disputing whether one of KB’s legal citations relates to this case as KB applied it. BB read from KB’s written submission the argument, [“The defendant doesn’t necessarily need to establish the substantial truth of all contextual implications in order to succeed.”] BB added that, while it’s true the defense need only rely on one of these contextual implications in order to succeed, for any one that they do rely on, they must show that it’s true. BB then remarked that a case ruling titled “Hutley” (possibly Hutley v Cosco) discussed a plaintiff’s imputation that was found not to be true, not a defendant’s contextual truth imputation. (I guess the latter must be the way KB cited the case in his written filing.) BB cited Hutley as looking at a situation where the defense uses another truthful imputation to balance out the sting of competing contextual imputations, which BB posited is different from the argument put forth in writing by KB. Judge noted that the proposition in KB’s sentence prior to the Hutley citation is from another case I couldn’t identify, and not from Hutley. BB seemed to acknowledge this error and apologized for misunderstanding the linking of those passages. BB then added that Hutley still wouldn’t help the defense in this case, since there’s no “truth defense” issues with any of Billy’s pleaded imputations.

BB noted that KB focused on one of the contextual truths, while proposing he could focus his oral arguments on that one while leaving his written submission to deal with the others. Perhaps this was an acknowledgment that the day had been running long, and they didn’t want to be there arguing this case into the evening? Judge chuckled and mused it was up to BB how to proceed, to which BB offered that he would briefly address the others as well for the sake of completeness. (Note that BB did just cover each of these alternative imputations already, but that was in discussion of whether they were in the same “sector” of defamation Billy’s complaining about. This time, BB’s going to discuss whether these alternative imputations are established as true or not.)

BB pointed toward a passage dealing with the first alternative contextual truth regarding cheating, arguing that much of the material presented is not pleaded as matters going toward the support of that imputation. Judge then asked what that material is relevant to and why they’re in evidence. BB noted a couple items as being pleaded toward the grapevine effect, acknowledging that they are thus in evidence, but arguing they should not be able to be used to prove the cheating allegation because they were not pleaded against Billy’s side as matters going to that imputation. Judge observed that if those comments are in evidence, they’re in, and thus could be relied on. BB replied that he just wanted to note they weren’t properly pleaded in that way.

BB noted that, with these documents in this context, he would repeat his earlier arguments about the nature of competing evidence and reputation. BB continued to say that many of his other submissions could be repeated as well, regarding the cheating allegations, as they go to the same point disputing whether Billy was publicly exposed as cheating. BB then posited he shouldn’t have to say much about Billy submitting scores (the second alternative imputation), as it’s directly related to the first.

BB addressed the third imputation, of Billy creating a video to fraudulently use as evidence. BB posited that imputation doesn’t arise from an objective viewing of the video, pointing to more detail in his written submission. BB continued, [“More importantly, it’s just not true. They can’t establish the substantial truth of that imputation.”] BB added that KB’s filing also lacks a detailed analysis to establish its truth. BB argued one need only listen to David Race’s phone call recording, and the testimony Billy gave explaining his intentions, to know that Billy’s plan doesn’t rise to the level of fraud.

BB then moved on to what he called [“the pointed end of the spear being used against Mr. Mitchell”], which would be the imputation that Billy callously expressed joy at news of Apollo Legend’s death. BB accepted the imputation arises from the publication, citing testimony from Billy that Karl’s video did carry that imputation. However, when tracking through KB’s citations of testimony, BB disputed KB’s characterization that Billy accepted that he actually did express joy at Apollo’s death. BB posited, what Billy accepted is that the video said those words, not that he was actually expressing joy.

BB then pointed Judge toward various text messages in the trial bundle, while reminding Judge of Billy’s testimony that his remarks about Apollo were (according to him) facetious. BB then follows through Billy’s text exchanges with Jace Hall, noting that in his reply to Billy Jace used the word “clowntastic”, with BB arguing that this emphasizes the facetiousness of the exchange. BB notes that Billy offered details about Apollo’s appearance in Florida, with BB adding that Karl’s video shows Apollo dressed up as Billy from that event. BB then reads the text “Jack asses have coming” (while apparently failing to specify this was Billy’s remark), before referencing Jace’s suggestion that Twin Galaxies publish an editorial on it.

BB lightly referenced the totality of Billy’s text conversations with Jace, noting Billy’s testimony that the score dispute had gotten tense and that Billy saw this as a way of engaging with Jace. BB added that Billy was clear in his testimony in this case that he did not think Apollo was actually dead at the time. BB continued, [“It’s certainly not an expression of joy, it doesn’t rise to the level of joyfulness or celebrating of it. It’s certainly not my client’s finest hour, saying these things. But we certainly say it doesn’t prove the truth of an imputation that he expressed joy at a legitimate thought of Mr. Smith’s death.”] BB posited that it’s a difficult road to establish truth on that point, because the defense would have to show Billy believed the rumor of Apollo’s death was true, which BB argued the defense was not able to do. BB added that the judge would also have to find that these comments rise to the level of expressing joy about it, while reiterating his own position that they don’t rise to the level of joy or celebration.

During this sequence, you could see the slanted daylight coming in heavily through the windows behind the judge. The original five days of trial were all conducted in courtroom 38, which I believe faced to the east. However, these two online days were held in nearby courtroom 39, which from this limited vantage point appeared to suffer from the afternoon sun. I also realized around this time, these mofos didn’t seem to care for breaks, with no rest taken in the three hours prior to lunch, and no apparent impetus to pause the action after.

BB then argued the position is even more difficult when looking at Billy’s exchange with Carlos. BB suggested that Carlos’ own texts confirms the two were engaging in humor, or at least banter, adding this becomes clearer during the end of the exchange. BB reiterated his position that the defense has to show that Billy believed Apollo was dead in order to show that Billy expressed joy at the thought of it. BB noted their references in conversation to Reddit, while calling back to Billy’s testimony of what he thought of Reddit. BB continued by pointing to Carlos in the texts identifying the reports as trolls, to which Billy agreed before they continued with, as BB put it, “the banter”. BB thus argued, [“If we get to the point that your honor accepts that they believed the Reddit posts were a troll post, then your honor accepts that Mr. Mitchell didn’t believe at any time that Mr. Smith was dead here.”] BB put forward that this would be consistent with Billy’s testimony about Reddit in general, and that if they didn’t believe Apollo was dead then the exchange that followed would indeed be humor or banter. BB reiterated that it’s “not their finest hours”, but that it would not rise to being proof that Billy expressed joy at the thought of Apollo’s death. (FWIW, BB seemed to be getting tired, and kept mixing up his references to “Mr. Smith” and “Mr. Mitchell”.)

At this point, Judge spoke up to note that Billy did originally say “No joke”, “Apollo Legend is dead”, “My wife found online”, and “If it is true I will not shed a tear, I will try my very hardest not to smile or giggle”. Judge noted those remarks were shortly after 11pm, and that it wasn’t until after 11:30pm that he was told it looked like a troll post. (As an appreciator of language, I loved that, unlike the terms “gamer” and “clowntastic”, the judge and barristers each threw around the term “troll post” with no reservation.) Therefore, as Judge put it, when Billy made the comment about not shedding a tear, it was at a stage where he didn’t know whether it was a troll post. Judge continued that it couldn’t also be said Billy believed it to be true, given the word “if”, before remarking [“It’s maybe that he didn’t think Apollo was dead, but if he is dead, hip hip hooray.”] Judge concluded his impression that that would be the sting of the alleged imputation.

BB noted that, with regard to the remark of “no joke”, Billy was cross-examined about the meaning of it. BB cited Billy’s testimony that “no joke” was not a reference to the claim Apollo was dead, but that his wife had found the claim online. Judge agreed that’s how it reads, and BB remarked that’s consistent with other testimony. However, Judge interjected that if that was correct, Billy’s remark that he’d try not to smile or giggle would suggest not that Billy believed Apollo was dead, but that Billy was expressing joy at the thought he might have died.

Judge then turned to the language of the fourth alternative imputation, noting that KB’s written submission highlights this part as establishing that Billy had “callously expressed joy at the thought of Mr. Smith’s death”. Judge mulled through the paperwork before observing that this imputation doesn’t require Billy to believe Apollo was dead, just that he had a thought Apollo might be dead, and if so, expressed that he would be pleased.

BB then focused on the language “the thought of Mr. Smith’s death”, reiterating his position that the evidence does not show that Billy at any time thought Apollo was dead. Judge countered that it’s more about the thought of the proposition that Apollo may be dead.

BB proposed, if Judge chooses to look at it that way, two responses would follow from that. First, BB rhetorically asked if Billy was simply being facetious and engaging in “bad humor” about it, which may be the case if it was merely a thought that Apollo could be dead, which BB argued would line up more with the banter part of the exchange. Secondly, BB argued, that would be very different in terms of the sting of the two competing imputations. Judge recalled KB’s earlier submission to this point was made in the context of Billy believing that the report of Apollo’s death was true, which KB used as the basis for arguing that this imputation is much worse than calling someone a pedophile. BB continued, if the court relies on that interpretation, then that sting does not do greater harm that the main alleged imputation Billy’s case is arguing. BB then argued that, if the court agrees that the given imputation has no greater sting than the main alleged imputation, then given the way the defense presented their case, none of the others would as well.

BB then rounded out the segment by addressing the fifth alternative imputation, that Billy uses litigation to force third parties to recognize his achievements, reiterating that his other points would apply here as well.

BB continued pointing out what appeared to be a copy-and-paste of two passages in KB’s filings, to which the Judge remarked he meant to ask about that, with BB arguing the passage doesn’t apply toward the fifth imputation as it was pasted. (Of course, I don’t have the passage to show you all.)

THE HOME STRETCH

At long last, BB addressed the question of damages. BB began by calling back to KB’s citation of the Harrington case, claiming that a number of details from that case paint a stark contrast to this one. First, reading from that case’s synopsis, no evidence was presented in that case that Mr. Harrington suffered any distress, which BB claimed was very different from this matter. Second, according to BB, the Harrington evidence showed the defamatory statements had no effect on Harrington’s wife, or that anyone else in their community were aware of the statements, saying the damage was limited to two people who read a sign. Thus, BB argued, there was no need to award damages to vindicate Harrington in the eyes of the community, which BB posited would also be a distinguishing factor here. BB characterized the harm done in Harrington as “modest” and the injury as “short-lived”, arguing that that also distinguishes that case in the context of aggravated damages. Judge agreed that did offer some distinction, however he also noted the previous judge relied on many other cases which had broader publication and clear evidence of adverse effects, where aggravated damages were still limited to the $100,000 range, whereas Billy is seeking $450,000. BB noted he didn’t have those decisions on hand to discuss those details, but Judge remarked the Harrington judge’s summaries would probably suffice here. BB noted that one of those cases, “Bertwhistle”, relied on statements made to a member of the plaintiff’s family, which would have been a limited publication. BB added that “Gratton” also seemed to be a narrower publication than in this matter, while “Atholwood” was a bit broader. (BB may have been reading from this very summary of Harrington here.)

BB remarked that, between those three rulings, as the publication broadened the damages increased significantly, arguing that in this case the extent of the publication is broader still. BB also noted, in his estimation, that those related to reputation, where in this case reputation is coupled with the harm to the plaintiff and his – and I quote – “hurt feelings”. BB called back to “very compelling evidence” from Billy about how Karl’s video affected him, to the extent that Billy was vomiting, not sleeping, and was worried he would lose his marriage. (Note that, as I finish this write-up, I’m not sure if that last point was adequately reflected in my on-location write-ups.) BB also proposed a general damages award as a means of vindication, adding that the question of malice could further distinguish this case from the others. BB posited that, of the cited cases, “Atholwood” with its $100,000 award would be the closest, and that it’s still significantly different than the circumstances here.

Judge asked BB to recall what the relevant cap would be on damages for non-economic loss. BB believed it to be $478,500, for non-economic and non-aggravated damages. Judge then asked if the legal limit is imposed based on the law as of the date of trial or the day proceedings were commenced. BB admitted he was unsure, and Judge conceded it was not clear to him either. BB proposed it could be based on the date of judgment, suggesting the harm could continue, and that the conduct up to and including “the matter” could be relevant. (I can’t say for sure what was meant by “the matter”, but it sounded like that could refer to the trial and related publicity itself.) BB thus suggested his impression that it would be a later time, but admitted he couldn’t cite authority to that point. Judge asked, with a laugh, if that meant that if he was slow to render a judgment, and if the legal limit was increased in the meantime, if that would increase the amount of damages he could award. Judge concluded this was an open question to be addressed as needed.

Judge continued to say, the more important concern for this case is that the authorities say that given maximum is for the absolute worst cases, asking BB how this case could be anywhere near the worst of cases. BB declined to assert that this was among the worst of cases, but countered that [“It’s certainly very serious.”] Judge remarked, [“But if the maximum is $478,500 for the worst of cases, this wouldn’t even approach $400,000, would it?”] BB reiterated once again, [“It’s certainly very serious,”] adding that the figure would also include aggravated damages as well.

BB argued that a publication suggesting that one, through their conduct, was a contributing factor to someone taking their own life is a very serious matter, adding [“It’s not calling him a murderer or anything like that, but it is very serious.”] BB argued that it would then be couple with the extent of the publication, and the very large numbers of people who saw it. BB reiterated, [“We’re talking about a situation that had a very serious impact to the plaintiff personally, the hurt feelings, and the physical impact it had on him.”] BB argued that the impact of the video was on the worse end of things, describing again Billy’s testimony about his physical reaction, his vomiting, and his lack of sleep, his loss of weight, and his seeking out of counseling, calling these “serious matters”. BB added there was no contest from the other side that these wouldn’t be genuine responses to a publication of this nature. Judge replied that there was some contest, that it was effectively alleged that Billy didn’t have these responses he described, given that Billy made identical statements during the Twin Galaxies deposition. BB moves on by suggesting that, if the court accepts Billy’s testimony, then the harm described would be to a serious extent.

BB continued to say, in terms of reputation, the court has seen the serious impact the video has had. BB did wish to be clear again that his side is not suing for economic loss, but that the alleged drop in appearances demonstrates the effect of Billy’s reputation being damaged, and the impact on Billy himself. BB referred back again to Billy’s testimony to the effect he could lose his wife, calling that the “fear” Billy spoke of.

BB then referred again to the possibility of an award to vindicate Billy, saying it ties into the issue of malice. BB suggested to the judge, [“You’ve heard what Mr. Jobst has said, and you’ve seen what Mr. Jobst has done since then in terms of the number of videos he’s posted about Mr. Mitchell, and you’ve seen Mr. Jobst’s attitude toward this litigation by way of his tweets.”] BB argued that, while it may not be the worst kind of imputation that one could have made against someone, all of the circumstances require a serious amount in the judgment. BB then called back to the other case law comparisons, adding that the judgment in “Sierochi” was around $200,000, while arguing that this case is worse.

BB then lodged an objection to certain passages from KB’s written submission, arguing that the case cited was not pleaded. That “case”, as BB elaborated, was the Twin Galaxies proceeding in California. BB argued that, looking at the standalone facts alleged, they aren’t facts that this court ought to find have an impact on damages claimed from Karl’s video. BB continued that KB’s written submission is attempting to argue that the damages were caused by the Twin Galaxies dispute, adding that this argument also was not pleaded. (Note that, if this suggestion from BB is true, per my understanding, this would not discount the use of Billy’s deposition in assailing Billy’s credibility. It would just mean that Karl’s side may not be able to formally argue that Billy’s ill effects are the result of the prior TG statements and not Karl’s video.) BB then pointed to another passage which referenced the Cartoon Network proceedings, which BB claimed were nowhere in the pleadings. Judge then asked if this related to an interlocutory (provisional) application heard by a previous judge, to which BB reminded the judge about KB’s motion to amend their pleadings during the trial on day three. BB recalled this was an attempt by KB to contend that one cause for Billy’s ill effects was the Twin Galaxies proceeding, noting that this argument was not properly included in their trial pleading. BB continued to say, a lot of these passages go to that point, but are framed as if they’re speaking to reputation, suggesting that KB is attempting to bring this denied line of argument “in through the back door”.

By this point, the sun bleeding into the room had passed, with the room appearing a little darker than before. For me, it was a half hour until midnight, but locally it was 4:30pm, which did feel a bit early for a sunset, given it was springtime in Australia. BB took a moment to flip through his voluminous paperwork, before challenging an aforementioned passage from KB’s written submission, which claimed Billy accepted he had a settled reputation for cheating. BB suggested the evidence doesn’t go that far, noting that Billy accepted the video said those things but did not accept he had that reputation. BB added that many of KB’s submission points are the same points relating to reputation, repeated in other contexts.

BB brought up the grapevine effect, pointing to a portion of KB’s submissions. BB referred to the inclusion of the full suite of replies to Charlie’s videos, and to arguments from KB that the overwhelming majority of relevant comments refer to variations of “cheating”. BB countered by claiming to have done an analysis, which found only 86 comments on the “He’s a Cheater” video referencing both “cheat” and “Billy Mitchell” in the same reply, which would total 1.4% of the total 5,840 comments. (I don’t think I need to explain to you the flaws in this methodology.) BB then cited 82 such references among the 4,483 replies to “He’s so desperate now” totaling 1.8% of those replies. BB summarized, [“We would submit that on no basis is that an overwhelming majority.”] Upon a Judge clarification, BB suggested there may be “a handful” more that refer to just “cheat” without a direct reference to Billy by name.

BB summarized, [“Our submission is essentially that two and a half to three years later, in a different video by a different author about Mr. Mitchell, these same comments are coming up.”] BB called this “extraordinary”, suggesting normally cases like this have to deal with inference and understanding, adding that this case gets actual evidence, to which Judge acknowledged BB was referring to the comments he tendered.

BB added that Junior testified to other people reposting Karl’s original video, and that he may have seen it earlier that same day. BB clarified this was [“Not from Mr. Jobst, I wish to be very clear about that, but from someone else who had taken it somehow with technology and put it up.”] BB recalled testimony from Charlie, to the effect that Charlie streamed the video with commentary, which someone else then copied and reposted. BB added that “Mr. Mitchell” is still seeing versions of it from others as well, before stressing that the grapevine effect is “real and significant here”.

BB asserted that, in KB’s submission, nothing was said about the impact on plaintiff’s hurt feelings. (Always Billy with the “hurt feelings”.) BB continued to attest that KB’s submission said nothing about damages to vindicate Billy’s reputation, and offered “nothing really” to counter BB’s written submissions toward malice.

BB said his only remaining disputes with KB’s submission related to Karl’s retraction video, but suggested his written submission made their points to that, noting that Judge already addressed many of these points in his questions to KB.

KB then noted the hour, and suggested they could move on to Judge’s questions, remarking that he’s pretty much delved into their case already. Judge added he probably already asked all the questions he intended to, before going over a technical citation correction in BB’s submission, and asking for a refresher on the nature of Billy’s “Cameo” referred to in Charlie’s testimony.

Judge pointed to one passage from BB, which read to the effect that Twin Galaxies’ dispute statement did not explicitly accuse Billy of submitting scores to trick TG into recognizing them. Judge then asked [“Isn’t the statement, as a whole, to the effect that he achieved two of the scores by breaking the rules, by using MAME or not using an unmodified Donkey Kong PCB?”] Judge then asked, would that not be the same as trying to trick or deceive TG into recognizing those scores? BB suggested there’s a fine distinction between the TG allegation and cheating with an intent to deceive, characterizing TG’s conclusion as finding that Billy played on a different PCB. BB continued that this could have happened without Billy’s knowledge or intent, offering that as a subtle distinction. As BB put it, the TG statement did not assert that Billy knew it was an illegitimate PCB, adding that TG seemed to be very careful in their statement to say they found it was achieved on certain equipment without elaborating further.

After a lengthy silence, Judge spoke up again, referring to another passage asserting Billy did not hound Apollo to death, and that Billy’s conduct did not cause or contribute to Apollo taking his own life. Judge noted this was listed under “deemed admissions”, while pointing out BB also acknowledges the defense hasn’t admitted the latter of those. In response, BB walked through various items in the written “statement of claim”, while apologizing if it was made confusing. Judge reiterated that the noted claim was listed under “deemed admissions”, adding that will depend on what is said about those alleged imputations. BB clarified that he’s asserting the imputation is false, whereas Judge gathered the defense is refusing to acknowledge the imputation arose at all, adding that if those imputations do arise, the defense is not denying they’re false. Both BB and Judge then agree that the defense has “deemed to admit” or “deemed to have admitted” they were false, whatever that term means exactly.

Judge then declared those were the end of his questions for BB, remarking that the “injury time” was about the same. (I was very confused by this remark, until I realized it’s probably a metaphorical reference to extra time in non-American sports like soccer.)

Judge asked KB for any reply, to which KB offered his intention to be brief. KB referred to discussions around reputation and the decision in Peros. As KB argued, one of the submissions that was made was that Mr. McNutt’s testimony was unhelpful because he had never seen the video. KB suggested this reflects a misunderstanding of the law from Peros, arguing that whether or not a witness has seen a publication has no influence at all on what they say a given person’s reputation was at a particular moment in time. KB recalled asking each of the witnesses about particular points in time, and asking each of them basically the same set of questions about their understanding of Billy’s reputation at those points in time. KB suggested the whole point of that process was to satisfy the test in Peros, which was to establish a settled reputation at different points in time, including their understanding of Billy’s reputation after Karl’s video. KB asked Judge to recall that all of the defense witnesses said that, between the point in time immediately before Karl’s video to immediately afterward, Billy’s settled reputation had not changed. According to KB, the whole point of that exercise was to satisfy this question of settled reputation at various points in time. KB continued to say, whether Mr. McNutt saw the publication at any time “matters nil”, because all that could do is affect his own view of Billy, not what his understanding of Billy’s reputation was at that moment in time.

KB referred to the decisions in “Favell” and “Brose”, asking the judge to look at “Brose” section 3.2.2. (I believe this to be available as page 26 here.) KB suggested “Brose” goes through all of the considerations on what the imputations are. KB noted there seemed to be misunderstanding that the defense argument was that the Judge should just look at the strict structure of the words being used in Karl’s video, clarifying that was not the point of his submission, saying that it was just one consideration.

As KB then remarked, it was asserted that even if Billy did have a particular reputation, it was corrected in 2020 by the Guinness reinstatement. KB pointed out this argument was not pleaded, citing the relevant pleading as saying something else.

KB, hand back in his pouch/pocket, noted there were submissions made relating to the topic of sectoring, and the decision in “O’Hagan”. KB recalled that case involved a police officer accused of paying to have someone killed. KB suggested, if we draw an analogy to the current situation using the facts from “O’Hagan”, it would be a hypothetical where an officer paid to kill someone who intended to complain to “the Triple-C”. KB continued, the reason he added that additional part is because that’s what drives it back to the profession. Judge remarked he doesn’t understand the analogy between that and this case. KB offered that, per his earlier submissions, the imputations in this case all relate to Billy protecting his video gaming scores. Thus, the analogy would be if O’Hagan did what he did to protect his job.

The final point KB wished to make was that, [“right at the beginning of my learned friend’s submissions,”] arguments were given relating to Billy’s deposition testimony. KB could not recall the exact words, but the effect was that BB was attempting to explain what Billy meant when he gave that deposition testimony. KB pointed out that Judge put forth that Billy was not cross-examined on that point. KB astutely pointed out that Billy’s explanation for his deposition discrepancy was given during “re-examination”, and that KB didn’t challenge it because of that. (In other words, Billy’s story where he attempted to patch up the obvious lie he was caught in was introduced after KB’s only opportunity to question Billy had ended.)

Judge thanked both barristers and their instructors for their handling of “this very difficult case”. Judge continued, [“I will reserve my decision. I can’t at present give any indication of when I’ll be able to hand down my decision.”] Judge noted he has “a number” other outstanding judgments that take priority, before adding [“I will do so as soon as I can.”] Judge then confirmed he has all exhibits from both parties, before promptly adjourning the trial for the last time.

AND ON THE SEVENTH DAY, HE RESTED

We’re almost there, folks! But unfortunately for you jokers, I do have a few closing remarks of my own I feel compelled to add to this discussion. I’d like to frame those by way of addressing a very important question:

Is it possible Karl Jobst could lose this case?

Let’s get three important truths out of the way, first. Billy Mitchell should not win this case. Not if justice is served. He wasn’t meaningfully defamed, Karl didn’t say what Billy claimed he said, the offending statement did not affect Billy’s reputation, I don’t believe for a second that this lawsuit is about anything other than chasing money and seeking revenge, and I also don’t believe Billy’s bullshit about being personally affected by anything other than his childish ego. Billy’s YouTube “response” was also less about informing the public (given his wild mischaracterizations) as it was a transparent attempt to inflame any alleged defamation and reputational harm in order to prime his impending lawsuit. As I’ve illustrated previously, Billy Mitchell purposefully seeks to restrict information, fills that vacuum with lies, and then in this case has the audacity to seek legal action against those who report on either his or his son’s lies as fact. This is just another in a long line of predatory litigations from a narcissist seeking to weaponize the public courts against his critics.

Second, as I’m sure you all are aware, the “right” side doesn’t always win these legal cases. Granted, this one will be decided by an astute and educated Judge involved, and not a jury of randos who may think the Earth is flat or that Voyager was better than Deep Space Nine. But that doesn’t necessarily guarantee victory, either. To this point, while some of BB’s arguments may sound preposterous to you and I (especially when we know the circumstances behind the case which Billy is misrepresenting), it could be that within these lawyer circles BB’s arguments are the most legally sound, and that it’s actually KB who’s grasping at judicial straws.

And there’s a third thing those of us on the side of truth must reckon with as well: Karl Jobst should not have made the claim about the Apollo settlement in the way that he did. I say that with some big caveats, of course. When I personally first heard Karl’s words, I believed Karl to be in the clear, given his phrasing did not specifically attribute Apollo’s decision to Billy, but rather simply described a sequence of events, each of which were believed to be factual. And as I’ve discussed in “Day 0” and “Day 5”, we really did believe the claim of a financial payout to be true at the time. But we did not have conclusive proof, and so it was a mistake for Karl to report the claim as settled fact. Granted, if Karl had qualified the claim with terms like “almost surely” or “reasonably certain”, as I was doing at the time, there would’ve been nothing to stop Billy from suing anyway, claiming that the “imputation arises” regardless. Again, as demonstrated by Billy’s long litany of threats to Karl and others, this was more about Billy seeking revenge than it was about the specifics of the claim.

With that said, we did have reasonable basis for believing the claim was true. And this basis was hardly fazed by Billy’s YouTube posturing, where he waved a piece of paper around and angrily asserted it would prove everything he was saying while refusing to show it to you. And, as we saw during the course of the trial, with the revelation of a lasting non-disparagement clause binding Apollo with pre-defined penalties, Billy still couldn’t help but sprinkle lies into that video as well:

The agreement had no long-lasting impact on [Apollo’s] life, and did not exert any impact afterwards.

Somehow, Billy waving around a stack of papers claiming it’s his secret proof just doesn’t have a lot of impact with some of us.

And this is where we get to the first of a few key screw-ups by Karl’s legal team from Mills Oakley. First, the lawyers should have included in their pleadings the evidence we had indicating a financial payment from Apollo to Billy, and should have arrived to trial with the intention of proving that line of defense. Granted, I’m not going to stand here and tell you I’m an expert on Australian defamation law, or whether “I had evidence” is a quality defense against a defamation claim there. But I do know this was a mistake by Karl’s attorneys, because on “Day 4”, KB himself attempted to argue this line of evidence, and was promptly and astutely shot down by the judge pursuant to an objection by BB. As I wrote in that day’s summary:

Basically, if the defense failed to argue in its pleadings that Karl took sufficient steps to confirm this information prior to publication, then the prosecution’s allegation that Karl did not do so stands effectively undenied. The defense, therefore, cannot start entering evidence and arguments supporting a contention they never made in the pleadings.

The reason this was more than a mere technicality is because those pleadings are what inform the opposition of what evidence and testimony they need to be prepared for, ensuring a fair and thorough trial. I still recall the awkward silence, where KB stood there speechless, unsure of how to proceed. And even aside from strict legal matters, if Judge were to see this effective admission not as a technical snafu but as a literal admission by Karl that he had no basis for the claim, this plays right into Billy’s attempts to paint Karl as an unreasonable agent looking to provoke Billy into a fight. Karl’s lawyers hamstrung him from the get-go by failing to engage this line of defense properly.

Late in “Day 7” above, we got a glimpse of another failure by Karl’s lawyers to properly plead their case. If I’m to believe BB’s presentation (which it doesn’t seem KB contested), the Mills Oakley crew also didn’t include the argument that any deleterious symptoms of Billy’s were the result of lasting effects from the Twin Galaxies litigation. I mean, did they not research this guy at all? Did they not know he would just come to court and tell a bunch of lies that would have to be challenged?

I would say KB’s day seven gaffe was the biggest in-trial blunder by either barrister, just because of how basic the timeline of events is to his client’s case, but I believe the effects of that snafu will be minimal. The same obviously can’t be said about these pleading errors, which ultimately handicapped their own ability to argue their case as the events of the trial unfolded. However, there was an even worse omission from their pleadings, which could ultimately hurt Karl’s chances even more, and it relates to something I don’t believe I’ve discussed yet this entire series:

People were already blaming Billy Mitchell for Apollo’s death months before Karl’s video.

The above tweet, posted three days after Apollo’s suicide, references this phenomenon in real time. After this situation became a full blown legal battle, I went back and collected numerous examples of people on social media outright blaming Billy for Apollo’s suicide during the timeframe prior to Karl’s video. I’m not going to highlight those more direct examples here, which could unfairly put those individuals on blast, but suffice to say, they’re not that hard to find. Granted, the way courts work, you can’t just show stuff and let it speak for itself, and obviously Karl wasn’t going to call these individual tweet authors to testify to this point. But as we saw, there are other ways to get key material like this entered into evidence. I would have happily testified to having researched the matter and would have supplied that research, even if it meant foregoing my opportunity to report on the trial as a non-party.

Let’s make no mistake on this one: This failure by Karl’s legal team allowed Billy’s side to run with the false, unchallenged narrative that any and all instances of people blaming Billy for Apollo’s suicide after May 26th of 2021 are solely attributable to this one video from Karl Jobst. And that simply is not true. In the real world, those of us following the case know this proposition was preposterous. But in the limited sphere of the court, an unchallenged narrative remains unchallenged.

Based on these failures, I have to conclude that Karl’s legal team was too cocky, and thought they could show up to court with one or two defenses, before haphazardly realizing at trial they needed to attempt to sneak in a few more. (I would say perhaps Karl was over-confident as well, but it’s his lawyers who are supposed to know how to evaluate this evidence and assess their needs.) If Karl Jobst does lose this case, these mistakes will be why.

With that said, I’m not looking to be a doomer here. If I were in Billy’s camp, I would still be worried shitless. Billy’s conflicting testimony between his deposition and this Australia case is exceptionally damning, and should cause the Judge to scuttle everything he claims. And without Billy’s testimony, his case basically evaporates. And that’s before you get to Billy’s other blatant attempts to bullshit the process, including his indignant reaction to being caught in a lie regarding the Music City Multi Con. Even those emails from John Weeks and Ryan Burger would get banished, since they relied on Billy’s authentication and not on direct testimony from either Weeks or Burger. (BB’s attempts to question Junior about the Weeks cancellation drew a hearsay objection.) And of course you had the parade of witnesses on both sides who basically said “Yeah, Billy’s reputation remained unchanged”. Then you have Elliott Watkins’ superb testimony to the effect that, sure, Karl’s video showed a repulsive side to Billy’s nature, but it was Billy’s texts joking about Apollo’s reported death which made the impression. How exactly could one expect Judge to determine that any damages were due to one specific, untrue claim, when it cannot be separated from a video filled with so much other truthful reporting of Billy’s repugnant behavior?

Some judges consider themselves to be merely cogs in the wheel, allowed only to observe strict matters of written law. In a world of appeals and precedent and judicial oversight, this perspective can be understandable. It tends to be the personally safer and more conservative approach. But that methodology also allows malignant actors like Billy Mitchell free reign to manipulate the process. Billy knows he can lie under oath, and that at least some of those lies will go unchallenged. True justice requires judges (and juries) to see the totality of what’s going on before them. It obliges finders of fact to differentiate bad faith actors from honest individuals who make mistakes, and to recognize patterns of dishonesty and act accordingly. Judge Ken Barlow strikes me as an astute adjudicator, often asking exactly the sorts of clarifying questions I was hoping he would. I just hope, now that the case is out of the attorneys’ control, that he sees the totality of what’s going on here.

Thank you as always for reading! And I want to give a tremendous thank you to everyone who has donated to my GoFundMe, helping to recover the costs associated with my trip to Brisbane to cover this trial in person. As I finish this, the total raised is exactly $2,000. Given the length of this update, I’m trying to be concise here, but I really cannot thank you all enough. If you appreciate this coverage, and haven’t yet donated, please consider doing so here:

https://www.gofundme.com/f/support-the-australia-trial-coverage-by-ersatzcats

Also, super quickly, our recent promotion with ThecePlay just got extended through November 11th. If you love classic Street Fighter II, and want to win sweet shoes FOR FREE, consider dropping a high score here:

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I’ll be applying the same stricter comment moderation standard as with “Day 6” here. Don’t worry, other posts are still available for a looser comment atmosphere.

Let’s all hope justice wins out.