Musk jury should be warned ahead of his testimony, lawyers tell judge

Lawyers who’ve taken Elon Musk to trial for securities fraud are worried he’ll go rogue when he takes the witness stand, by straying from court orders finding that his 2018 tweets about taking Tesla Inc. private were false.

The Tesla CEO is scheduled to testify as early as Friday at the trial in San Francisco. In a pretrial ruling the judge handling the case determined Musk’s tweets were false and reckless – and instructed jurors to “assume” the same.

But lawyers representing investors are urging the judge to go further, by issuing a “cautionary instruction” before Musk takes the stand. They said that in an earlier interview with the attorneys and at a TED Talk, Musk has said he was “quite excited” to “clear the record” about his intentions to take Tesla private.

In a court filing Thursday, they asked US District Judge Edward Chen to tell jurors to disregard any of his testimony suggesting that the tweets were true. They also want the judge to remind jurors that Musk “acted at least with deliberate recklessness” when he posted his tweets.

“You must also reject and disregard any fact, testimony, or argument that he acted innocently, in good faith, or anything less than recklessly,” the plaintiffs lawyers suggested Chen tell jurors, referring to Musk.

In opening arguments Wednesday, Musk’s lawyer said, “His mind was pure. His intentions were sincere. He was operating in good faith” — and “there was no fraud.”

Lawyers for both sides have argued for months over the instructions, and how forcefully they should be conveyed to jurors. They’re important because the claims that Musk’s tweets were false and reckless would ordinarily be decided by jurors — and having the issue already decided by the judge puts investors much closer to holding the CEO liable for potentially billions of dollars.