Can Expert Witnesses Prove A Smear Campaign? The Lively Judge Will Decide This Week

With the trial getting closer, the Lively case is busy.  This week, the judge will hear testimony from several expert witnesses who want to give opinions about the increase in negative sentiment about Lively during August of 2024.   I'll explain what the judge is looking for, how the opinions were crafted, and how important they are to Lively's case. 

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Transcript

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The information and ideas expressed in the allegedly golden podcast for legal explanation and legal analysis, not legal advice. While I am a lawyer, I am not your lawyer. If you need legal advice, please contact a licensed legal professional in your area. My opinions are my own, for better or for worse. Welcome again to Allegedly Golden. I'm here with my best pal, Dai Coke. And I want to start off by talking about a wonderful experience I had this last week, which is that I got to see my closest friend from law school, who I don't get to see very often because we live pretty far away from each other. And we try to make it happen every couple of years, but you know, it's just hard with work and family and stuff like that. Um she is one of the reasons that I believe that you can have multiple soulmates, right? Like I don't think a soulmate necessarily has to be romantic. I feel like I have a handful of soulmates. One of them is Mr. Nag, but there are others that are women who are platonic relationships, just like fill up my soul. I need them, they understand me and know me in a way that nobody else does. We're connected on a level that I'm not connected with anybody else, that I couldn't be connected with a romantic partner because it's based on different things. The relationship's based on different things. Um, and I do think with this particular friend, also our relationship was forged from trauma, the trauma being law school. And so I think that kind of thing bonds you to trauma bonding, I think, um is a lot of it. And so it was awesome to see her. And she was at a conference and she was with a friend of hers that she's made, you know, out there in the professional world, who I absolutely loved. And I think I think we might all be best friends now. Um, but one of the things about this friend that I love so much is in addition to being like brilliant and awesome, um, before she went to law school, before I met her, she was a social worker. She went to law school a little bit later, like a couple years. I think she was in her late 20s, and I was in my mid-20s when we went to law school. And she was already married. And um because she was a social worker and she has a lot of neurodivergent people in her family. When she tells you a story about anyone, it doesn't matter whether it's somebody at work or somebody in life or somebody she's dating. She's no longer married anymore, by the way. Um, somebody she's dating, somebody her child is dating. She starts off describing that person by giving you which generation they're in and also what their diagnosis is, which is incredibly helpful. You know, she'll be like, you know, I had this colleague at this one place where I worked, and it was like, you know, she was a millennial and had a little bit of the tism. And then she goes on to tell the story. And it's not, she's not insulting people with the diagnosis because every diagnosis she talks about, someone in her family has it. Um, it can either be her or someone else. Um, and so she's saying it lovingly, like, this is how I understand this person. But it is just so unbelievably helpful when someone is talking about people you don't know to be like, yeah, remember that person. Remember, I told you about that one guy I was dating, Gen X, ADHD. Like, okay, that helps. Thanks. Um, it's just so funny. And I just I love her to death. And it really does shortcut having to explain people that the other person not only has never met, but probably never will. But I just had such a good time with her. And we always have, you know, even if it's only a couple hours, we just yuck it up about all the things that we went through back then and all the things we've been through since. You know, she's one of those friends that we bonded in this trauma that is law school, but then I was also there when her mom passed away. You know, like those friends that you're just bonded to for life. She reminded me that one of the reasons we bonded together at the time, in addition to all the parts of our personality that are pretty similar, is that we were the only people in our like kind of study group for law school that thought that constitutional law was the most fascinating. Everyone else was like, oh, evidence or torts or whatever. And we're like, no, but wait, this is fascinating. And we both love it's called con law in law school. We both love con law to this day. So I think we were also bonded by that. But we were talking about how when we got to law school, we really had to learn how to like hunker down and study, like really study. And I had not really studied before. I mean, I I went to a public high school that was like fine. Um, I was in AP and gifted and all that, but honestly, it still wasn't all that challenging. And undergrad was somewhat challenging for me because I went to a very large school. And so I was just kind of lost there. Um, but academically, it was like I got through it, right? Law school is when it really hit me in the face that like I have no idea how to study this hard. I'd never done it before. And she and I figured out together, we had a study group that also had two other women in it, but she and I, more so than them, we needed certain structures to make it work. We needed, there were certain ways that we could get ourselves to remember and get ourselves to learn. And we were just talking about how we still use those things to this day. We made flashcards for everything. And I mean everything, including the bar exam. We realized that flashcards were our jam, and we would we would make them and then we would go and buy these giant rings at like office depot or whatever, and put a hole in the corner and put them on rings, and some of them were four or five inches thick. And we would just carry those things around all the time. And that is how we got through a lot of it. We also made a lot of charts. And you've seen me make charts trying to explain things. I make charts in my everyday life as a lawyer all of the time. I make charts when I teach all of the time. And I guess what I'm getting to here is that I was a visual learner, but I didn't really know it. But that was sort of the time in our lives where we figured out, like, oh, this is how stuff makes sense to me. This is the way that I learn. And she was probably ahead of me in terms of knowing those kinds of things because of the background she had of learning psychology and sociology and all of that, and being a social worker. But that was really brand new information to me. Because when I grew up, being a Gen X person and where I grew up in a sort of waspy atmosphere, was it wasn't like how do you learn? There were people that were smart and people that weren't. There were people that had learning disabilities and people that didn't. That was it. And so no one ever explored like how you learn. They didn't give a fuck how you learned. Just fucking learn it and get an A, please. Thank you. And so it wasn't until I got to that point in my life at age what 24, where I really started figuring out how I learn. And I'm always adding to it or tweaking it or whatever. But one of the great things about having a teenager right now as a parent, and my friend has a teenager too. She also has a child that's out of college. But we were saying, like, we've been able to help our children figure those things out really, really early so that they can learn the best way for them from Go. Right. Like I've been through with my 14-year-old all these different methods and all these different things. And some of them work for him and some of them don't. But when something does, it really hits, right? And it's like, okay, that's your learning style then. Like that's how you learn. And I just, I don't know, I guess it gives me the warm and fuzzies that like society has progressed in that way. I know there are still struggles for students with disabilities. I'm certainly not trying to uh minimize it. I've seen a lot of that in my career and even in my personal life, frankly. But that is a way in which society has really progressed. And if you are younger and from the time you were learning, teachers knew things like that. Like, well, this person learns visually, or this person's an auditory learner, or this person learns with repetition, or this that was not a thing. Um, not to be all, you know, we walk to school in the snow uphill both ways about it. But they would literally just hand you a textbook and be like, learn this shit. There's gonna be a test. There were no study guides. None. There were no, obviously, there were no like online games to help you learn. It was very cut and dry. And I'm I'm so thankful for law school for teaching me that because if I had gone straight out of college into a job, if I had decided to be in business or something like that, I probably I don't know how long it would have been or if I ever would have learned, frankly. So forged in trauma though it may be, it was a good thing. Um, but that's my girl, and I love her, and I loved her friend. I love you too now. And there's just something so special about those friends that you can see every couple of years. When you see each other, it's just like something explodes in your heart in the best possible way. It's like picking up right where you left off three years ago, the conversation, you know. And they know you so well, but not in that way that, you know, sometimes childhood friends can know you so well, but they like use it against you. Like, oh, remember that in high school? You're not like that anymore. Shut the fuck up. I hate that stuff. I hate when people who knew you when you were younger try to use that as a way to like act as if they really know you and that no one who meets you now really knows you. And it's like, no, you knew a version of me I used to be. Right? But not those kind of people. I'm talking about the people that you meet, and when you see each other, it's just like they, it's not even that they know a part of your history, it's that they understand you in a way that no one else can. And I I have friends from sort of like all different phases of my life that way, right? Like she's my friend from law school that's that way. And I have one friend from college that's that way. And then I have a few friends from the beginning of practicing law that are that way. Like, you know, you sort of pick, and then I have some friends from uh jobs that I've picked up that way. And each one of those people I know from going through something that was intense enough that I really know them and they really know me. And that there is mutual respect to a level that we will always listen to each other and we will always be there for each other. And some circumstances are more extreme than others, right? Sometimes it's just like remembering that, you know, it's the anniversary of something hard and texting them and being like, Are you okay? Sometimes it's getting on a plane when you don't want to to go be there for them because they need to be. But it doesn't have to be that. But I love those kinds of friendships. And I love when I get the opportunity to have one of those moments. It just fills me up every single time. And I really needed that this week. So I'm glad I got the chance to have it. So I asked you guys what you wanted to hear for simple disorder this week. And I got mostly people saying we're getting really close to trial with Lively. I just want to hear about Lively, which I totally get because that's what's on my brain. But enough people said, I want to make sure I'm not missing any other cases too, that I wanted to just do a really quick reminder about a couple of other things that we are following that may come up in the middle of all of this, because of course, right? So a couple of things I'm watching. Um, Brad and Angelina are fighting over whether French people can be pulled into court in Los Angeles. Um, Brad is trying to pull in in the Miraval case, the case about their winery in France, is trying to bring some people from France and potentially Luxembourg to have them deposed or have them be parties in this case in California, and they're having a big old kerfuffle about it. Um, it's kind of procedural, but also kind of substantive. But a lot of that stuff is happening behind the scenes, and I'm following it generally. I think it'd be easier to explain once we actually get to where it's been heard by the judge and ruled on than it is to do it beforehand because it's so complicated, and there are like five different tangents that each question goes down, but it is still going on. Uh, there is another Karen Reed case. Now there are three. As if there weren't enough already. So we already had the wrongful death case that was filed by John O'Keefe's family against Karen Reed, that has been going on since, you know, the middle of the criminal trial. So she is being sued by his family for wrongful death, as sometimes uh family will do for people who are not convicted of crimes. They will sue them for the same thing, but in civil court. At the same time, Reed has filed her own case in, she filed it in state court, it got moved to federal court, claiming civil rights violations by Proctor, Buchanan, Tully, and then who have come to be known as the citizen defendants, the house defendants, which is all of the people that were there that night that Karen Reed claims actually killed John O'Keefe. She is claiming that all of those people engaged in a conspiracy to violate her civil rights. And that case is in some pretty hefty motion practice right now, with the defendants trying to get the case dismissed. And I've done several videos on it. Um, but that is, we are basically waiting for the judge to set a hearing in that matter. But in the middle of all that, another case just got filed. And this is a case by those defendants, so the McCabes, the Alberts, and Higgins, the same people Karen Reed is suing, have now turned around and sued her and Turtle Boy, whose real name is Adam Kearney, for defamation, claiming that Karen Reed and her team leaked information to Turtle Boy during the trial and in between the two trials, that caused everyone to turn against these citizens and convince everyone that they are murderers. And they filed this after some uh files were finally opened and available about what Adam Kearney had been up to during the course of these trials. So now Karen Reed is being sued by two groups of people and she has her own lawsuit out. So she's a busy gal. I will keep following all of them. It's an awful lot to handle. But I think the main thing that people ought to know, just to sort of like keep in your head, is that because these are three different civil cases, any information, any discovery that is obtained in one case can be used in the others. It's not like a criminal case where you know you can only use evidence if it is obtained in a certain way according to a certain process. So whatever evidence shows up in one case, anyone can use in any of the other cases. And there's going to be a lot of crossover here because at least in the first two cases, one is against Karen Reed and one is by her, but the issue is pretty much the same, which is who really killed John O'Keefe. This new case is a little bit different, but because the McCaves, the Alberts, and the Higgins are the plaintiffs and they're suing for defamation, truth is a defense to defamation. And so it also goes to who really killed John O'Keefe. So this triad of cases, you know, I'm trying to figure out how best to cover it without making it feel ticky-tacky, right? How do I make it into larger concepts that are easier to follow? Because it's easy to forget which case it's in and who's involved and what the issue is and all that. So I'm working on that. But just know that it's not two now, it's three. Um, in the Howard Stern case, um, where he is being sued by a former employee and so is his wife. Um, the Sterns have accepted service. They've said you don't have to send a process server out to our house. We'll accept service, which people do all the time. And you sign a waiver of service that says, okay, just I'll accept service. And they have agreed to provide a response to the complaint by May the 15th. So by May the 15th, we will know what is going on. Now they could settle the case between now and May 15th and just tell the court we've settled it. They can file an answer that says, okay, here's our response to what she says, what we agree to and what we deny. Let's get on with discovery and start exchanging information. Or they could file a motion to dismiss. My guess is it's going to be the last. My guess is they're going to file a motion to dismiss. I think they have some grounds to do so. But that's coming on May 15th. Um, also, there are videos that should be posted by the time this podcast is released on the Erica Girardi claims um in the bankruptcy that have now been sold, because I've asked Mr. Nag to explain that to folks. And also the latest thing in the Brendan Soresby case, which I've also asked Mr. Nag to help me with. So hopefully you'll have that information by the time that this gets posted. But you know, I was looking at this list and I was kind of thinking to myself, like, what do all these things have in common? Um, why are we interested in all of them? Because some of them are celebrities and some of them aren't. Some of them are, you know, high profile for different reasons. And they have the same thing in common that all civil cases of interest have in common. And that is the theme of power. Who has it? Who wants to have it? How is it used? By whom? Against whom? And that is so front of mind for everybody right now in 2026. I think that's a lot of what our society is thinking about at this moment in time is the use of power. I think that's part of the reason why we all stay interested. But we gotta go to the big dog, which is the lively case. I think it's worth saying at this point that this case is now Blake Lively, the individual, versus three companies. It is Blake Lively versus Wayfarer LLC. Or is it Wayfarer Inc. It'd be Wayfarer Inc., sorry. It ends with us movie LLC and the agency group tag. There are no individual defendants anymore. There are only corporate defendants and an individual plaintiff. So for people who've called it lively Baldone, I mean technically it still is, but Baldone, Heath, Nathan, Abel, all of Sarawitz, all of those individuals are now out as parties. So it is Blake versus Three companies. We are in the red zone here. Like we are getting close. This is, you know, the last couple of weeks before this thing could actually go to trial in front of a jury. Um, and you know, people ask me all the time, like behind the scenes, what's going on behind the scenes. And what I can tell you is that I know for absolute certain is that what's going on behind the scenes right now is that so much money is being spent every day, it would make you sick. Because there are teams of lawyers on both sides of this case from multiple firms, each of each person charging four figures an hour. Not to mention the associates and the paralegals. So so much money is being spent every single day. And that's what you have to do when you're getting ready to go to trial anyway. But in a case like this where there are issues all over the place, it's even more so. But I think it's helpful before I get into talking about the expert witnesses, um, to just remember what's left of the case, right? Because there were 13 claims to begin with on Lively's side. Then there was Wayfarer's whole complaint, which got dismissed in its entirety. So Lively had her 13 claims. Then the summary judgment motion, the summary judgment order cut out 10 of those 13. So there's only three claims left. But with those three claims, there are really only two theories of liability. There's really only two legal liability theories that will be tried if this case goes to trial. And it's essentially retaliation by statute. In other words, you're liable to me for retaliation as defined by California law. And two, retaliation by contract. You're liable to me for breaching a contract that said you wouldn't retaliate by retaliating. Those are the two theories that are left. Now, tag, the theory against tag of aiding and abetting, yes, that's their own claim because they're their own party, but it is inextricably intertwined with the retaliation by statute. Tag isn't implicated until wayfarer, or it ends with us, LLC, is implicated. Right? They can only be held liable for retali for aiding and abetting retaliation if there's retaliation to begin with. So still, there's only two real theories: retaliation by statute, which may or may not include tag if there is one, and retaliation by contract. That's where we are. And in terms of what are the questions that have to be answered, again, I think it's important to name those and call those out. Because when you start looking at the expert witnesses and you start looking at the pretrial motions and the jury instructions and all those things we're going to be looking at in the in the next couple of weeks, you have to know like what questions are out there. Yes, there's the elements of the claims, right? Retaliation requires protected activity, um, adverse action, connection between the two, breach of contract requires that there be a contract, that it be a meeting of the minds, that it be breached, that breach be material, and that material breach cause damages, right? But in terms of what are the things that have to be proven based on what we know about the situation, I think you can define it like this. The main question, regardless of which theory, is did Wayfarer, its companies, andor its public relations company purposely smear Blake Lively on the internet as punishment for her complaining about issues on the set of It Ends With Us. That's sort of the ultimate question that the jury has to answer, right? Did they purposely smear her as punishment for complaining? But of course, I'm sure as soon as you're listening to that, there are many questions baked into that. Because that is a question that has its own sub-questions, right? And those sub-questions are was there a smear campaign? Was there even an intent, intentional actions? Was there actually a smear? Then, if there was, did Wayfarer cause it? Was it their smear? Did they do it? And then if there was a smear campaign and Wayfarer did it, did they do it because she had complained about issues on the set of the movie? So it's a syllogism that has to build on itself, right? And I think that when you are looking at Lively's burden of proof, she's the plaintiff, so she has the burden of proof. The defense has no burden whatsoever. They can choose to assert affirmative defenses that have burdens attached to them. But they don't have to do anything but stop her from meeting her burden. That's the job. So for her to meet her burden of proof, right? It's like, okay, protected activity, which apparently we're not going to have to worry about. I'll talk about that. Adverse action, was she actually harmed? And then a connection between the two. But the connection requires all of those sub-questions to be answered, right? First of all, did anybody actually do this to her on purpose or was it organic? If the answer to that is no, it stops there. It's only if the answer to that is yes that we get to the second question of are the defendants the ones who caused it? And it's only after we answer yes to that that we get to the question of, did they cause it because they wanted to punish her for complaining about issues on set? So even though there's only three elements to her claim, it's actually a lot more than that that she has to prove. She has to create a link. Just think about it as a link and a chain, and you can use whatever chain you want. You can use, you know, a big metal chain that you use outside, or you can use a chain that you wear around your deck. I don't care. I have one in my mind that I tend to use from a necklace I used to have. But she has to prove every single link in the chain. And the job of the defendants is to try to break the chain at the earliest possible point. Now, this week we had some drama because the Wayfarer parties decided to um stipulate to one of the elements of retaliation, the statutory retaliation. And stipulation is just a fancy word for letting her win. Right? We're not going to defend this issue. You win, congratulations. And she's pushing back on that for a lot of reasons that I've talked about on many, many videos that you can go and watch on all of my channels. Um, but for purposes of what's coming up this week, where the judge wants to have a hearing with three of the experts to decide if he's going to let any of these experts testify, that issue doesn't matter. So he's going to keep going having this expert hearing. And that is what I'm going to explain to you now. Judge Lyman has scheduled, asked to have, and has now scheduled a hearing for Friday, May 8th, where he is going to hear from three of the experts that have been put on witness lists by the parties in the case to testify as experts at trial. Two of them are liveliys and one of them is wayfairers. And there are multiple experts on both sides for all kinds of different issues. But this hearing is only going to be the experts who are trying to opine, which means give an opinion, trying to opine on the issue of online activity, which of course is central to both of the retaliation claims. It is important to remember that the reason why there's so much required for an expert to testify, there's so many qualifications and so much testing. And the reason the judge wants to bring these people in, he wants to be able to ask them questions and see them get cross-examined. The reason it's such a big deal is because experts are the only witnesses in a trial who are allowed to give opinions. All other witnesses can only give facts. And lay opinions are generally prohibited. So experts can give opinions, not facts, meaning they are they were not there. They didn't see it, they didn't hear it, they have come in after the fact to provide opinions. And those opinions carry a lot of weight with jurors. Because these people are presented as experts. And because they are giving opinions that jurors can rely on. And because of that, is really important that judges make sure that they should be doing what they're being asked to do. Now, like I said, the three that Lyman wants to hear from two of them are lively and one of them is Wayfair. Wayfair has been very clear that their expert is just, they just have her because Lively has experts. She is a rebuttal expert. So if the plaintiff says, I'm gonna have expert testimony on this issue, the defendant's like, well, I guess I got to get one too, right? Because you don't want it to look as if the only expert is on the other side. So Blake Lively has two witnesses on the online activity, Dina Maslin and Aaron Culata. And Wayfarer has a rebuttal expert for both of those people named Nicole Alexander. It is clear in reading all of the Daubert motions and all of the responses, which I have done, that Wayfair would prefer there not be experts at all. Wayfair would prefer, let's just look at the facts and look at the evidence and let the jurors decide for themselves what they think happened and who they think caused it. Which brings you to the first issue you have to think about when you're talking about experts, which is do you need them? There's no requirement that people have experts. It is something that you bring in because it would assist the jury. It would help them to understand something that isn't obvious just by looking at the facts. Right? So I think that this is probably the easiest to understand when you're looking at a criminal case, right? And you need somebody to come in, you need a pathologist to come in and say, when there's patiki eye in the eyes like that, that means that the person was suffocated. Right? The juror, the jury needs that person and their knowledge and their expertise in this area to say, you've been given this fact. Let me tell you what that fact means. But sometimes it's not clear that experts are needed. It has to balance between being something that can assist the jury, but not something that will confuse them. Right? I mean, I've seen, I'm sure you have too, plenty of criminal cases on YouTube or TV where you're like, I don't know how the jury is going to make heads or tails of that because I can't even remember like who did what to whom. Right? You get the battle of the experts, we call it. But it has to be something that the evidence alone can't tell you. And Wayfair is essentially taking the position, and I wouldn't be surprised if these exact words come out of their mouth on Friday, that we don't need any experts here. That the jurors can look at the evidence and they can decide: do they think there was a smear campaign and do they think that the defendants were responsible for it? They can look at the evidence and decide that. Lively disagrees because, of course, there is no evidence. There is evidence of them intending to maybe do that. And there are parallels that can be drawn between some of the things that were said by the defendants and their PR teams and things that showed up online about Blake Lively. But they do not have a smoking gun that says this post is one that we put up. There aren't any. Now she has this pending motion for spoilation sanctions, trying to get the judge to instruct the jury that the reason there aren't any is because they deleted them. I think that is a losing proposition. I don't think that's going to happen. But regardless, records directly implicating any of the defendants or their representatives, you cannot draw a line from any post, any comment, or anything like that directly from the internet back to one of the defendants. You can't do it. And so she needs these experts to help fill that gap. She needs the experts to help make that part of the case for her because the fact evidence isn't doing it. Isn't doing it. Sorry. And that's why she's fighting so hard. That's why she wants these guys so badly. But Wayfarer doesn't want them because Wayfarer, on just the facts, is able to get up there and say, it's all just innuendo and guesses, but they cannot show you evidence that we were responsible for this because we aren't. So that's a pretty major battle. It's a pretty big turning point in the case, right? About whether the jury is going to be allowed to hear this that could potentially fill the gap. And that is why the judge is having this hearing this week, because he knows that this issue, these three experts and this issue, the entire trial will turn on it. How much he allows and who he allows to do what is going to be central to Blake Lively's case and she has the burden of proof. So first you have to answer this question of do we even need these people? Sometimes, again, sometimes it's obvious and sometimes it's not. Sometimes it's like, you know, you gotta have a soft tissue damage expert come in here and explain to you that when somebody does something like this to their leg, they can't work anymore, right? Sometimes you need those kinds of experts, but sometimes you don't. There are certain types of uh information that a fact witness can testify to. For example, one of the most famous is that the owner of a piece of property can testify as to what their property is worth. You don't have to have a property appraiser come in there and do it. You can be like, I check Zillow, I know what my house is worth, I know how much I owe on it, it's worth X. And that is acceptable testimony. You don't need an expert for that. You might want one because maybe a jury will like it from an expert, but you don't need one. So first you have to decide do you even need these guys? And lively, she needs them. She needs them if she wants to put on the case she wants to put on. Now, I don't know whether she legally needs them, but for purposes of her strategy, she absolutely needs them. She's desperate for them. Because without them, she can't prove causation. But then the second question you have to get to, once you've gotten to is this even necessary, is how reliable is it? Expert opinions are held to an incredibly high standard of reliability. Again, because they're allowed to give opinions that nobody else is allowed to give, and because it carries a lot of weight with a jury. If a jury hears somebody say, I've been doing this work for 50 years and I'm an expert and I know every in and every out, and I'm telling you X, they're gonna believe X. And so this is where the Daubert stuff comes in, the Daubert standard from the Daubert case, which is is this reliable? Is this opinion reliable such that if a jury relies on it to make their decision, that is a sound verdict? And that can go a million different ways. Is the methodology reliable? Is the research reliable? Is the review reliable? And there's all kinds of factors that can go into this of has it ever been done before and has it been replicated before? And has it been challenged and what's the error rate and all those kinds of things? And if you want to know more about that, I have a video on my YouTube that is about Daubert, it's like 40 or 50 minutes long, and it is solely about Daubert and how it works and what all those standards are, and you're welcome to go and look at it. But what stands out to me in this particular case with these three experts is that all three of them admit that they are putting forth an opinion in this case that they have never put forth in a case before, using a methodology that they have never used before. So a lot of times you have things that become common, right? Like everybody knows it's appropriate to have an expert on, you know, this issue of car accidents or whatever. But sometimes it's something new. And a criticism of all three of these experts, livelies and wayfarers, is no one's ever done this before. They engage in three totally different methodologies, which I find fascinating. And all three of them admit I've never done this before, and neither, as far as I can tell, has anybody else. Now they try to get as close as they can to the few studies that are out there on this stuff, but every single one of them is novel. And I know that that makes you feel like, well, why should somebody let it in if it's brand new? Right? Like, and I hear that, and I think Lyman's skeptical of it, and I think that's the reason we're having this hearing. But you got to do everything for the first time first. Somebody was the very first expert witness who testified about the reliability of DNA. Somebody did. It's routine now. Wasn't it the uh the Sunshine State Killer case where that was the first expert who used genetic genealogy? Somebody has to go first, right? So the fact that it's novel and new doesn't mean it's unreliable, but it means it's subject to a lot of testing. And I think that that's pretty much what Lyman is doing. So I've read all of this information, and here's what I've pulled out that I think you ought to know. The first thing is that the lively experts and the Wayfarer expert, remember it's two versus one, are diametrically opposed on their opinions as to whether the negative online sentiment about Blake Lively in August 2024 was authentic. One of them is on one side all the way, and one of them is on the other side all the way. Which is not completely unheard of, but usually there's some crossover with experts. Like, well, we agree on these circumstances, we just don't agree on what those circumstances mean, right? They completely disagree. And making matters even more complicated, they don't even agree on which methodology to use to find that and which data to look at in using the methodology. Three different experts used three different sets of data and three different methodologies to come to answers to that question. And that in and of itself is problematic, right? Because if you're Judge Lyman, it's like they can't all be good because they came to different conclusions. How is the jury gonna know which ones to listen to and which ones not to listen to? And I can't rely on who's done this before because nobody's not. Ever testified as an expert on this issue before. So the fact that the three of them used totally different data sets, totally different methodologies, and came to different opinions, that's why this is such a clusterfuck to begin with. And I do not envy Lyman having to figure this out. Another thing that really stuck out to me is, oh, and let me say this if it's not obvious. If Lyman allows one party's expert to testify on an issue, they're probably going to allow the other party's expert to testify on that same issue, right? So the chances of Lyman saying Lively's experts are in, but Wayfarers rebuttal experts are out is pretty slim. Um, because, you know, again, that would be imbalanced. Um, and I'll talk a little bit at the end about whether this is an all-or-nothing proposition. Spoiler alert, it's not. But one thing that I think people also ought to know, because I think this helps put you in the courtroom, is the parties have chosen completely different types of experts. Um, and it's if you've been following the case for a long time, it's really consistent with the way that they've each litigated the case. I find it fascinating. Um, but it also kind of gives you an indication as to what they want their case to look like. So, for example, both of Lively's experts on um online activity, Maslin and Culata, both of them are full-time, they are professors. Um, one at Tulane, and I think Maslin's at maybe USC or something like that. Um, they are highly educated. I believe they're both PhDs. Um, they both have held really fancy sounding endowed chairs for research and stuff like that. They are both uh professional experts, right? They do this kind of stuff all of the time. And they're very highly credentialed in their areas. Wayfarers expert, Nicole Alexander, has an undergraduate degree, and then she has a like an executive MBA that is combined from oh, God, I can't remember all the schools. One of them is Oxford. Um, and her main credentials, and she teaches as an adjunct at Columbia, and she has taught at NYU as an adjunct in the past, but she is not a career academic. She is a business person. And her sort of biggest credentials, well, her biggest credential is that she was the head, the global head of data analytics for Meta. Um, she also worked for Ipsos, which, if you're a political nerd like me, you know, does a lot of polling. Um, but her expertise are not I study this all day every day. Her expertise is I've done it. And, you know, one of the things that I find so interesting about Alexander is that she's never served as an expert witness before. I don't know how they found her. I mean, they all live in New York. Maybe they knew somebody who knew her. Um, but you know, she is not a professional expert. I'm sure she's getting paid as much as the others are. They get paid a lot, by the way. Experts get paid a thousands of dollars an hour sometimes. And they're all getting paid on Friday. When they show up to this hearing, they're all getting paid by their client, by the party that hired them. So don't worry, they're not doing it for free. Um, but Nicole Alexander, one of the things about her, probably her like biggest claim to fame in this venue, is that when she worked at Meta and she was working in data analytics, she was specifically tasked with finding authentic and inauthentic activity on Meta's platforms. And she said it was, you know, to some degree for the advertisers who spend money on Meta. They want to know how many users are real and which ones aren't. Um, but she was asked in her deposition about a big project she did at Meta, and she wasn't really allowed to talk very much about it. But what she was able to say was that it it concerned um the authenticity of accounts and foreign actors. So this woman has researched Russian campaign interference. So, in terms of the types of experts they are, they're very different. On the one side, you have professional experts and academics who can say, I've been an expert a million times, I've done this a million times, this is what I do all day, this is my whole life. And then on the other hand, you have somebody who says, Look, I'm not a professional expert, but I have done this for my job. I have been on the ground dealing with this. And these are my opinions based not on what it looks like in a book or in a study, but in real life. Which I think is an interesting dichotomy in the courtroom itself. Right? Now, Nicole Alexander has been hired to directly rebut Lively's um experts. Right? She's only there because they have experts. Like, if you're gonna have one, we're gonna have one. And she had a couple of options, or they had a couple of options in the way they asked her to do this, which was you can either take Lively's experts' information and data and come to your own conclusions and say, okay, I'm gonna look at the same data as them and tell you what I think about it, whether I agree or disagree. Or you can do a totally different methodology and totally different study and conclusion all by yourself and come up with your own conclusion. And she did the latter. So we have three totally separate studies, reports that were done here. It's not like there was one report and then everybody opines on what that report means. There are three totally separate explanations for what happened. And they differ in every possible respect. They differ on which platform, which social media platform is the best platform to use when you are measuring this kind of online sentiment. One of them uses TikTok, one of them uses a cross-section of all of them, right? They differ on which is the best platform to use. They differ on the idea of whether the experts should only consider the data or whether they should consider the data in connection with other evidence in the case. Should you just look at the data and come to your conclusion? Or should you look at the data and then also look at the scenario planning documents and the Jed Wallace stuff and figure out whether you think one caused the other? Is that appropriate for an expert, or isn't it? They differ on whether these experts, they could they all agree that they could potentially testify about authentic or inauthentic activity online with regard to Blake Lively in August of 2024. But they differ on whether those experts can go the extra step and say one caused the other, right? One of Lively's experts says, here's why I think it was inauthentic activity, and then goes the next step to say, and I think the defendants did it. Can an expert do that? Is that going too far? Is that invading the province of the jury? Is that speaking to causation? They differ on that. They also disagree, all three of the experts, on what level of AI can be used when putting together these kinds of opinions. Everybody used it in some regard. But what can you use it for? And how much? And how reliable? And does anybody double check it? Right? So again, this is you have people telling three totally separate stories. They don't even agree on the facts, they don't even agree on what the online sentiment was. It is really hard to untangle. Now, I will say this: the one thing they do agree on is they all had data pulled and categorized in some way. So, in some way, whether they used AI or assistance or searches or whatever, they all had data pulled off of the internet, off of social media sites, different sites for different people, and categorized it into good for lively, bad for lively, good for Baldoni, bad for Baldoni, right? Because you kind of have to at some level to figure out like where were the changes, right? You have to have a baseline and then see when it went up and down. But they all pulled different data from different places and categorized it differently. I hope you're getting the picture. This is like they agree on absolutely zilch. Zilch. Um, but here's kind of the main conclusions they've come to. Each of these experts comes to multiple conclusions. Um, Nicole Alexander's the Wayfarers uh expert is the easiest one to read because she literally numbers her um conclusion, says, I've come to 11 opinions, and here they are. One, two, three, four, five, six, seven, eight, nine, ten, eleven. Um, Maslin and Kulata don't really do that, but they have come to multiple conclusions. But the general overview, just so you know, is this Maslin, who is one of Lively's experts, she used terms that she found in posts that were negative about Blake Lively in August of 2024, and she compared them to terms that were in the tag scenario planning documents. So her conclusion that there was inauthentic activity is based in part on the fact that words like you've heard them before, tone deaf, bully, and mean girl showed up to a certain degree in posts about lively, and they also showed up in tag zone communications, and therefore one must have caused the other. That's Maslin. Culata, another one of Lively's experts, he opines, he used this methodology that I am still trying to understand, which is he looked at TikTok, and he looked at TikTok comments that were the top comments. And apparently this has never been done, but none of this shit has ever been done before. He's like, I took top the top comment from the comment sections of TikToks about Blake Lively during this time and about Justin Baldoney during this time, and I categorized those top comments as good or bad. And I then measured those against the baseline of negative comments for Blake Lively or positive for Justin Baldoni. And in August of 2024, the negative comments were unusually high. That was his conclusion. So he is measuring what happened during the key time to the baseline of negative commentary that Blake Lively usually receives. And he did it through this top comment analysis. Nicole Alexander, Wayfarer's expert, did something totally different. They all three did something totally different. Nicole Alexander looked, she did like a cross-section of a whole bunch of different social media sites. And I don't know exactly how that works, don't ask me. Um she looked across all of these social media sites and all of the activity that was happening about Blake Lively during August of 2024. And she looked for patterns. And she said, based on her expertise, when there is a coordinated campaign, it has a very specific look. And this information did not look like that. Right? It happened and then it like went back to baseline. Which, you know, if you're gonna have a sustained campaign, you keep doing it, right? It didn't happen like that. It went really up and then it dropped again. And then it went back up in December when the lawsuit was filed. But she said it just it all happened at the same time across multiple different platforms. People were saying the same things about Blake on Instagram, as on Reddit, as on TikTok, as on YouTube. And it was all happening pretty much simultaneously. And she said that based on her experience, it would be practically impossible for someone to do that as a coordinated campaign to have things dropping on multiple sites in a volume that was inorganic all at the same time. It just looks like something it she said. It has the hallmarks of just a real turn in public sentiment. And I don't care which of these people did the smartest thing or which one is the most reliable. That is Judge Lyman's job and not mine. But I will tell you this when you are dealing with experts of any kind and juries, there is a very fine line between looking smart and showing them how the sausage is made and giving them so much science that you look like you're making shit up. If you show a jury behind the curtain, like, hey, you may not know this, but when head wounds look like this, it means that blah, blah, blah, blah, blah. Jury's like, oh, cool, right? And they feel as if, like, oh, I've learned from this expert. This has really helped my understanding. But when people start telling you science that you can't follow, that's when it gets dangerous that they're just going to ignore it because they don't get it. And that is even more so when you have experts who are testifying about things that people think they already know. One of the hardest things that Lively has to do in this case is convince regular people that what they see on the internet might not always be true, might not always be authentic, right? And earlier on, I remember having a conversation with Stara about this, star attorney Stara, who's on TikTok. She's a criminal defense lawyer and a friend of mine. And she said, juries hate being told that their experiences are not valid. And so any of these experts, well, not Alexander, because she says it was organic, but both of Lively's experts had the additional challenge of telling six or eight or 10 or however many between six and 12 regular people from New York, a bunch of the stuff on the internet isn't true. It's bullshit, it's fake. There's bots. And a lot of people are really resistant to that. Don't tell me what I see with my own eyes. Not to mention the fact that scientifically it's incredibly complex. Now, I was an English major and I didn't take statistics. And when you start getting into percentages and rates and like it confuses the living shit out of me. And I think I'm pretty smart. And sometimes jurors can be like, oh, this is so great. I'm learning so much. And sometimes they shut the fuck down. So I don't think there's any question that Nicole Alexander, Wayfarer's expert, is easier to swallow. It's an easier opinion to understand and metabolize because it is simpler. However, it also might be too simple. Like, really? No one wasn't authentic? No bots, right? So, you know, I think again, the judge has to decide what's reliable and is it gonna help the jury? But if any of these people testify, you have to then have this secondary conversation about what do you want to tell the jury and how much is too much. And this is where we get to the point of what are the judge's options, right? Because he's gonna have this hearing on May 8th, and he's going to, he said, we're gonna do an hour of direct and an hour of cross for each one, which means that, you know, you get to ask your own expert questions for an hour, and then the other party gets to cross-examine them for an hour. And then I'm sure the judge is gonna have a couple questions as well, which he can do. It is not an all or nothing proposition. He has a lot of options here. So he can say uh about a particular expert that they can give some of their opinions, but not all of them. He can say, you can testify as to A and B, but stay the hell away from C. Right? He can limit that to only some things. He can also say that experts are only qualified to give some opinions and not others. I think that you're qualified to give these three opinions, but not qualified to give those five. So you're not gonna do that. So he can split the baby however he wants to in terms of an individual expert. I think one of the places he's likely to do that is uh Dina Maslin giving this opinion on the defendant's cause the smear campaign because the terminology matches up. I think that is invading the province of the jury, and I don't think he's gonna let her do that. But he could say you can't give an opinion about causation, but you can give an opinion about the inauthentic auditivity. That's fine, right? So he can do it however he wants. Um he can also say you can give opinions about the data and about what you did, but don't talk about how that correlates with the other evidence in the case. That is the lawyer's job in closing arguments. Because another thing that gets lost a lot of the time is that, especially when we're watching it on TV, you expect to have these like super curated, clear moments of like, there's a cross-examination question, and then the person gives the answer like that handles that issue, right? Oh, we all know now. But sometimes it doesn't all come together until closings, right? Where you put the pieces of the puzzle together. And that's the brilliance of people who do great closings, is they put them all together. Well, remember when that person said this and you were like, what does that matter? I'm gonna tell you why it matters. So he may limit how far they can go. Um, you know, like I said before, he's probably not gonna let one side have an internet expert and the other side not. If he limits them, he'll probably limit them similarly, right? Um, but he does have another, another option. Even if he leaves all of these experts in, or some of the experts in, or whatever, that doesn't mean it's the end of the story. Because if they testify as experts, they can still be cross-examined. This is that thing that you hear all of the time when it comes to evidence about it goes to its weight, not its admissibility, right? So, what Lively's team is definitely going to argue at this hearing about their own experts is yes, there are criticisms of the way that this was done, but that goes to its weight. And that is something that Wayfarer can cross-examine these experts about in front of the jury when we get there. That's not a reason to keep them out entirely. They have the right to cross-examine them and make them look stupid on the stand, and we should let them try. So you can let them testify and then let the jury decide whether they think they're credible or not. I don't think there's any way to look objectively at this and not recognize that the stakes are much, much higher for lively than they are for Wayfair when it comes to these experts. She desperately needs them. Because, number one, she has the burden of proof. But number two, she has to have these to fill the gaps in the evidence. So I think that she is far more worried about getting her experts in than Wayfair is. Again, I think that if they walked in there on Friday and the judge says, How about there just aren't any experts on internet activity? I think Wafer would be like, great, sounds good to us. I think they only have Nicole Alexander because Lively has experts of her own. Um, if you remember, remember when there was a deposition of an expert and they got into a big fight and they called the judge at like five o'clock in the afternoon, and then they had to get another hour with the expert. Nicole Alexander was that expert. She was also the very first Daubert motion that Lively's people put on the talk. They're scared of her, as they should be, because her opinion directly contradicts their entire theory of the case. Now, whether it's reliable and whether it's needed and whether it's credible are all things that have yet to be decided. But she is a major, major roadblock to them. She's their biggest op, as the kids would say. So the stakes for them are much higher on Friday than they are for Wayfair. Just a couple of things I thought that I learned while reading this that I thought I would share with all of y'all. Frank is licking his foot, and I really hope you can't hear it because it's making me crazy. Frank, stop. Okay, I think it worked. Um, here's just some things that that were fascinating to me. Um, apparently, the data that one can get from these social media sites is very, very limited. And TikTok is the only platform where you can get like complete information or close to complete information. And evidently, Nicole Alexander, when she was testifying, they were asking her about the other experts. And she's like, you know, no one in the world has a hundred percent access to the data that you need to actually answer most of these questions. It's not available. We don't have access to it. Which could be a really interesting twist. They could bring that up in front of lineman and be like, maybe we don't need any of these people because nobody has access to all the information. Or he could say, well, let's tell the jury that and see what they think. But I thought that was fascinating. Um, Kulata, when he was finding which posts to use, right? Like he was collecting his data set about sentiment about lively and and Baldoni in the August of 2020, in the August, in August of 2024. I need Diet Coke. Um, the way he did it was hashtags. And it was hashtags like it ends with us movie, Blake Lively, Justin Baldoni, whatever. And that is fascinating to me because we were just having a conversation on a live on my Patreon a week ago about how nobody uses hashtags anymore. And they aren't really relevant. I haven't put hashtags on a video of mine in a year. Anywhere. Because they don't do anything. They don't get you anywhere. And they sometimes, if they do bring in people, they bring in people you don't want. And the algorithms have all gotten so good that they'll bring you the right people anyway. So I'm kind of fascinated by the fact that this person who is supposed to be like at the top of their game in this field, like a you know, a really well-regarded person in this field, is using hashtags. I just find that strange. Um, Maslin, one of Lively's experts, the biggest criticism that Wayfarer seems to have of her is that she comes to the conclusion that the sentiment against Lively was inauthentic, using, you know, her data sets and her methodology and all of that. But they've got her on record in her deposition saying she didn't identify any other potential causes for that sentiment. So she didn't even consider that maybe people just don't like Blake Lively. And that seems crazy to me. Like, if you're gonna testify and give an opinion about causation, don't you have to look at all the potential causes? But you know, this is that's a good opportunity to think about would you rather have that expert not be able to testify at all? Or would you rather be able to have her go up there and being able to say that to her in front of a jury? Right? Would you rather there be no expert on it if you're Wayfair? Or would you rather be able to get up there and cross-examine her and be like, you didn't consider, you didn't consider this or this or this or this or this or this, right? I don't know. It's hard to tell. Again, I think this is why the stakes are lower for Wayfair, because they can probably live with it either way. Now, one of the problems with Nicole Alexander is there were a couple of errors in her report. Um, they've been downplayed, that they were like a graph had an error, or you know, there was an error in the way that something was said. But I'm sure that Lively is going to bring that up over and over again, right? That she made errors. And, you know, that can seem small, but remember that guy in the Karen Reed case who was an expert who the very first thing they did was say that his LinkedIn page wasn't accurate and nobody believed anything that guy had to say. So they have to figure out what to do about those errors as well. But in the end, whatever Lyman does, the arguments are always available. You can always argue the evidence. Lively has a long exhibit list and witness list, and so does Wayfarer. And you can always argue to the jury at the end what those things mean. I mean, most of us have come to our own decisions or conclusions based on all of the evidence we have seen so far without any expert testimony. Maybe it's not necessary. Maybe it is. Maybe only part of it is necessary. But whether there are experts at the trial or not, the parties can always still argue what the evidence means. The question for experts is: does someone get to come in with a halo over their head and say, let me tell you what you should think? And that is why Lyman is having this special hearing, because he knows how important that is to this case. He knows how critical it is for Lively's burden of proof to know whether she's going to be able to have experts or not. Because I'd be willing to bet that her entire case is based on it. So I hope that answers at least some of the questions. A lot of questions are going around. Um, but I will say that I like the order that Lyman is doing these things in, right? Like jury instructions and verdict forms have been submitted, and we're not really talking about them all that much. Um and he said at the pretrial earlier this week that they would address those in the afternoon, the Tuesday after trial started, which means they're gonna have the charge conference. That's the hearing where you discuss jury instructions in the middle of the trial. And I think that's the better way to do it. A lot of judges do it that way. Um, because you don't have to decide that first. They don't get the instructions till the end. The instructions that you give at the beginning about welcome and here's what's gonna happen, those are all standard, right? So I think he's kicking the can down the road on things that can be kicked down the road. Um, but you know, while we're looking at this expert issue, he's also still got an MJOP out there, and he also needs to rule on all of the motions in Lemony. And every single one of these motions, we are now at this stage where every single one of the motions that happens fundamentally changes the case and whether it goes to trial or how. Which is good news because I'll be here. Because, really for real, right now, the drama never stops. And someone has to make it make sense.