OA44: All About Arbitration

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:16 Thomas: Hello and welcome to Opening Arguments. This is episode number 44. I'm one of your hosts, Thomas Smith. That over there is another one of you hosts, Andrew Torrez. How you doin' today, Andrew?

0:01:27 Andrew: I'm great, Thomas. How are you?

0:01:29 Thomas: Doin' great. Hey, little reminder, Andrew was on the David Pakman Show, and that was on this Wednesday, so it's already up on the YouTubes, so check that out, look it up, Andrew, David Pakman Show. Alright, hey, let's get to our listener question, shall we?

0:01:43 Clip: He who questions training, only trains himself at asking questions. What?

0:01:52 Thomas: Repas asks, should I be worried that the First Amendment Defense Act will supersede state and local protections for LGBT people? I have to say, the stupidest thing I've ever seen is something called the First Amendment Defense Act. Why? Why do we have a First Amendment defense? Why not a Second Amendment? Third Amendment? You know what? We need to defend all these amendments. Why don't we?

0:02:09 Andrew: Anyway. Don't do Not Do Not propose even Jokingly, because we will see a Second Amendment Defense Act, like, I I promise you, uh,

0:02:18 Thomas: Yeah. You don't need an act to defend amendments. You have an amendment. There's nothing. God, it is so stupid. But anyway.

0:02:24 Andrew: Yeah. Look, the First Amendment Defense Act is an anti-gay act, right? It is. You you ought to own up and say, uh, what we mean by First Amendment is there are religious institutions that believe that gay marriage is icky, and they are very, very sad that the overwhelming majority of this country, and in particular the beyond overwhelming majority, of people under the age of 45 think that that belief is bigoted and stupid, and they feel sad about that. But the like not having people with strongly held religious beliefs that discriminate against people feel less icky act is sort of less likely to pass. So so it's called the First Amendment Defense Act.

0:02:37 Thomas: Yeah, well, I'll tell tell you what, Andrew, I love the First Amendment, so naturally I would love this act. It must be, it's just be an amazing act, so that's a good, yeah, I'm

0:03:17 Andrew: Yep. Me, too. Yeah, it it prohibits government action that that shall not take any discriminatory action against a person wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman. Or that sexual relations are properly reserved to such a marriage. So it really is about the feelings of bigots.

0:03:52 Thomas: Amazed they were that explicit. I I thought it was going to stay in generalities, like, well, any sort of religious, uh, belief, but they actually came out and said a religious belief that a man and a woman marriage, whatever, I'm kind of surprised by that.

0:03:53 Andrew: Yep. Yep. And that is Section 3A. However, so the First Amendment Defense Act is terrible. It is bigoted. It is that, yep, yep.

0:04:18 Thomas: Well, hold on. Basic question. Stupid question. Is this something that's proposed? Is this in Congress right now? What is the status of this?

0:04:20 Andrew: Yes, this is a bill that has been introduced in the House of Representatives by Congressman Raul Labrador of Idaho, and it has, I don't know, 30 or so co-sponsors. Uh, these are a lot of your usual suspects, excuse Uh, yeah, you know, uh, Trey Gowdy and Jason Chaffetz and you know the the people you would expect who would sign on to a bill like this. Um so it is HR 2802. Uh it has been introduced uh and has been referred to the House Ways and Means Committee. So a long way from coming to a floor vote. You would have to have a Senate co-sponsor, but I think there is already a Senate co-sponsor lined up in Mike Lee. And all you need to know about Mike Lee is that's Ted Cruz's only friend in the Senate and possibly on Earth.

0:04:43 Thomas: Kaiser Soze? Yeah, I get it.

0:05:03 Thomas: Okay. Yeah.

0:05:20 Andrew: But so so It's a ways off. It is terrible legislation, uh, so it defines discriminatory action as applying to the category of individuals that that I discussed, and then it says, uh, discriminatory action means any action taken by the federal government, and that is the the key to answering this question. Two, number one, alter the federal tax treatment. Number two, disallow a deduction. Number three, withhold, reduce, exclude, terminate or otherwise deny any federal grant or subcontract. Number four, withhold, reduce, exclude, terminate, or otherwise deny any benefit under any federal benefit program, or number five, otherwise discriminate against such a person. So that's a catch-all provision. Who act.

0:05:22 Thomas: That's amazing.

0:06:09 Andrew: But we've been a lot of bad news lately. Faye, the good news is the act is defined and applies specifically only to the federal government. And so if you happen, correct.

0:06:20 Thomas: I was going to ask when you were reading that I thought oh okay that sounds like just what the federal government can do. Guess I'm wondering, would it possibly not even really have any effect? Because I don't know how often the federal government is doing the things that it's trying to protect against. Is there an example you can think of?

0:06:39 Andrew: I can't because this is all imaginary. But look, I am concerned about the potential for mischief when you pass a bill that declares that there is discrimination and then defines that discrimination as against the privileged class of Christian bigots and then gives you the right. It's why I read through all five, you know, says we can't discriminate against them in the areas where no one is discriminating against them, but then says, you know, otherwise discriminate against. And, you know, remember that, this is the group that, tends uh, to read anti-discrimination statutes, uh absurdly broadly, right? So they think that this anti-discrimination statutes apply, you know, to, uh when you're using pronouns on the street, right. To,

0:06:42 Thomas: Yeah. Oh, good

0:07:28 Andrew: To take an example. And so if they believe that, then they would say, aha, we are now equally armed with an anti-discrimination statute. So if you walk down the street and you're wearing a shirt that says, you know, love Trump's hate, that makes me feel sad. And under my warped and non-legal view, that counts as discrimination against me. I, that's not likely to stand up, but that's likely to be the kinds of cases that I would see, you know, coming forward in a situation like this. Um, but the answer to the question is, uh, it applies only to federal government action. Uh, it does have that catch all provision, uh. Federal government provisions can, we've talked about this in previous episodes, they can preempt state law in circumstances, right, particularly if they affect interstate commerce.

0:07:28 Thomas: Point.

0:08:17 Andrew: So it would be possible to write anti-gay, anti-LGBTQ legislation that partially preempts some state laws. And, and if, and when that happens, uh, we will, you know, be, yeah, we'll be out there, you know, telling you what those laws are. Um, this law only applies to, to federal government action. So if you happen to live in one of the 20 States that are, uh. Somewhat progressive to very progressive on LGBTQ rights, um. You're safe under those state provisions for now. But, Um. Uh, uh. But that's, that's not to suggest that there's nothing that an overarching federal government can't do, because uh? There is.

0:08:31 Thomas: Make noise.

0:08:56 Thomas: Yeah, it's just a matter of time, really. So you heard it here here first. Andrew is against the First Amendment. So, no, he would never defend it.

0:08:58 Andrew: Yep. Yeah, right. I do not want to defend the First Amendment. I, you know.

0:09:10 Thomas: It is time for our main segment of the day, Andrew. So for today's main topic, what is arbitration and can you be forced to do it?

0:09:20 Andrew: So on the one hand, I could give you a three second answer and we could close the show early, right? The answer is you can never be forced to arbitrate. Right. Arbitration is, by definition, alternative dispute resolution. And it is when you have a legal right that could otherwise be settled by going to court. And instead, you decide to resolve that outside of a court. There are lots of different ways that we can do that, right? Like we can doing that through mediation. You can do through negotiating a settlement. But a very, very, an increasingly common method of resolution is arbitration. And in arbitration, the parties agree to go before a third party, often a retired judge, and present their cases in a streamlined way to resolve that dispute. Issues that sort of come up with respect to arbitration, right?

0:09:31 Thomas: Yeah,

0:10:18 Andrew: And people are sometimes surprised to find out that they feel like they've been forced into arbitration because many, many employment agreements will have as a component a clause that says, OK, hey, we agree to hire you. And then, you know, you sign the contract and you haven't read paragraph 13 and paragraph 13 says if you have any dispute under this employment agreement, the parties agree to submit their disputes to binding arbitration pursuant. And this is the typical language of the clause would be pursuant to the commercial arbitration rules of the American Arbitration Association. And so, you know, you then find out you have an issue with respect to your employment and you go to a lawyer and you say, hey, I want to sue my employer.

0:11:07 Andrew: And your employer says, OK, great, let's take a look at your employment agreement. And you produce it. And he says, oh, sorry, you can't bring a lawsuit here. You've got to bring in arbitration. And the immediate implication, sort of the first thing to think about with respect to this kind of deep dive into arbitration, is lawyers who work on a contingent fee basis, right, who take your case for no money down. Uh, but

0:11:33 Thomas: You reference them all the time. They've got ads and Super Bowls and stuff, depending on, yeah.

0:11:34 Andrew: Yeah. Right. Well, look, like it's so good. But This is well. This is a good, this is a good opportunity for me to, for me to walk that back a little bit, um, because, uh, I am typically on the defense side, but I have, uh, I have brought plaintiff cases before, uh, but I, um, I charge by the hour. I do not take cases on contingency for a lot of reasons, and we could talk about that in a, in a later, later episode.

Um, uh, even though I'm typically a more defense oriented lawyer, um, I, you know, I have friends who are plaintiffs lawyers. I have great respect for a lot of what, uh, plaintiffs, lawyers do. Um. And, uh. And in particular, contingency fee based plaintiffs lawyers are the, the last line, uh, to, to whom you can go, uh, when you have a claim, uh, but you don't have, you don't presently have any money, right? And so they, they serve a really important function in the legal system.

Um, it, you can immediately see the potential for abuse, and I don't, this is not an episode on plaintiff's lawyers or contingent fee cases, so, you know, we, we don't have to talk about it.

0:12:36 Andrew: Uh, they are demonized by one of the two major political parties in this country. Um, so the the first thing that that arbitration does kind of bringing it all together is, uh it will prevent you, uh in virtually every case from being able to to find a contingent fee plaintiff's lawyer. Like you're you're just not going to find somebody who's willing to do that. And the reason is because filing a lawsuit is not particularly expensive. Even things like taking depositions does not have to be super expensive. You don't have to videotape your depositions. A court stenographer, you can often and get to handle a deposition for $800 or $900 for an all-day deposition, you can go and reserve conference rooms at the courthouse.

0:13:26 Andrew: So if you don't have your own big fancy conference room, then you can get the space. So in other words, as a plaintiff's lawyer, you an keep your costs pretty minimal to bring a lawsuit and to go pretty far in the lawsuit, right? It's a challenge in cases where there are experts, right? Because experts are expensive. And I don't mean to suggest that they don't face a disadvantage, but you can do it, And right. The risk is you work it up and, you know, you have to go to trial and You expend an awful lot of time and resources. And then at the end of the day, you know, you get you either lose a trial or, you know, there's just not enough money to to to pay the work that the lawyer has done.

0:14:16 Andrew: The flip side is, you know, if you win a big verdict at trial, you know, if you're, if you have a 33% contingency fee and your client wins $10 million, that's, you know, $3.3 million, which is an awful lot more than you would get on an hourly basis. Right? So there's a rational calculation. What makes that rational calculation possible is that the costs are low and then ramp up. In arbitration, the costs are high. And the reason, the primary reason the costs are highest, because when you file a lawsuit, you don't have to pay the judge's salary, right? The The judge's salary is paid out of our tax dollars. Arbitrator, yep,

0:14:53 Thomas: Man, I wouldn't have thought that. I thought arbitration was like, kind of cheap alternative to a trial. I, wow, this has blown my mind. Okay.

0:15:01 Andrew: Yeah, it has higher startup costs and lower in litigation costs, right? So number one, because you've got to pay the judge, you then, you typically have higher filing fees and you got to play the judge every time you file something, right, so you you file a complaint, the judge, and I'm saying the judge most triple a arbitrators are retired judges. So it, you get a trial like experience. And I had, for example I to represent a runoff entity for Lloyd's of London And we had a commercial arbitration with $300 million at stake. And arbitration took two years, right? Like it was, all intents and purposes, it was a trial. It was just a trial where you had to pay the judge privately. And some of the procedures were streamlined, but not that many, right.

0:15:07 Thomas: Uh, okay.

0:15:54 Andrew: Right. Like we still went through. We produced things in discovery. There were, you know, hundreds of thousands of documents exchanged between the parties. We had motions to compel, which is when the other party doesn't give you what you want in discovery, you have to go to the court. Discovery is mutually agreed upon between the bodies. And so, you say, produce all your business records and then they give you three pieces of paper and you say you haven't given us your corporate notes. Like this is a corporation. You meet weekly, right? Like there should be thousands of pages and they say, no, we're not giving you anything else.

And you've got to go to the judge to say a motion to compel, which, yeah, which is exactly what it sounds like. Judge, force them to do this. And we had to do that in arbitration. We had to move to compel the production of certain documents. We had preliminary motions. We Had experts who prepared expert reports, we had a dozen witnesses on each side who testified. So you know, it was a trial. The only difference was it was a trial held in a conference room, which by the way, the parties were paying for the conference room instead

0:16:31 Thomas: This is nonsense. Yeah.

0:17:00 Andrew: Of in the courtroom. So

0:17:00 Thomas: How good were the snacks? Is that a benefit? Better food, catering, anything like that?

0:17:03 Andrew: Yeah, you can have snacks in the room. I actually had, it was one of the most bizarre experiences of my life. I was cross-examining the other side's witness who was a plaintiff's attorney in Boston. And he was kind of one of your typical, uh, I should say stereotypical, like, TV style, uh, trial lawyers, right? Like, he was, he had that, that like thick, uh, New England Boston accent. He was super brash and combative, and every answer he was giving me was, uh, yeah, well, you know, some people could say it that way, but I, right, and he was súper aggressive.

And I asked a question and, and he stopped, and he said, well, I think your co-counsel, referring to another lawyer that was sitting on the other side of the table with me that represented London market companies, um, he said, yeah, I think you're co-counsel knows all about that, and then stopped and looked at him and said, yeah, don't you, Rob, what are you gonna do, you want to make something of it? And, like, it was the strangest, not like literally, I thought he was going to stand up and, you know, it offered

0:18:14 Andrew: A offer to fight him

0:18:13 Thomas: That, there you go. Do you have a bailiff in the, uh, in arbitration? I mean, you get hire your own version of that.

0:18:16 Andrew: No no, you had no no bailiff, no, no contempt of court, no, nothing. It was bizarre, it was behavior that was just, uh, called it bizarre, there was nothing else I could say. It was a fun story

0:18:30 Thomas: Yeah, but so what, But does nothing stop that? I means, can you just be able to threaten the judge, can you, know, like, what okay

0:18:31 Andrew: Yeah well you know, if you, if you had to, I mean, eventually, you know, you would, you, you could, um, an appeal for sanctions under the triple A's, uh, rules regarding conduct of the parties, uh, during arbitration, but at the time, right, like if he'd have turned on the judge, uh, you know, sitting as the arbitrator, and, you know, started strangling him, like, we would have, we would've had to pull him off. You know, uh, which again, not something I went to law school to figure out, um, so so that's

0:18:57 Thomas: Yeah yeah you would have been there like, objection, uh, I don't know what to do here, okay

0:19:05 Andrew: Yeah well and we had, I mean, that's, that's a, that's an excellent, uh, point that the, the hearing itself, uh, was conducted like a trial pursuant to the rules of evidence, and we had objections, and, uh, uh, we had motions in limine to exclude, piece, certain pieces of evidence, and, and it was exactly like a bench trial. So that all of that covers kind of the, the startup. It's a massive deterrent, that for the bulk of your employees, you do want to have an arbitration clause in your employment agreements because it protects you against lawsuits. It makes it harder for people to sue you. Um, from a, from, a social perspective, if there are areas where you think it shouldn't be harder for people to sue their employers, um, you know, you might, you may come to a different conclusion, you knows, sort of about, uh, their utility.

0:19:58 Andrew: But I do want to flag, I gave that recommendation in a reserved sort of way. There is another aspect in, in which you might not want to include arbitration clauses in your employment agreements. Um, and that has to do with, um, we talked about in, in the last episode, and, you know, sort of a recurring theme here, uh, but the notion of being able to appeal, right. And, and, um, every time you, uh, have, you take a, a federal, you know, U.S. district court, to verdict, uh, or a state trial court to a verdict, um, you get at least one appeal as of right, um, and so, you know, we've talked about how in the federal system, your appeals from the, uh, U.S. district court for X go to the circuit that sits over the geographical area in which that district court is located. Um, your state courts have something similar.

0:20:50 Andrew: Uh, and so you automatically get another opportunity to have usually a panel of judges look at that original trial court judge's decision and say, yeah, no, this is where that judge went off the rails. Right. And there you're reviewing the law, not the facts. So, you know, you're limited in what you can do. But if there is an error, if there is a mistake, you have the opportunity to correct it. In arbitration, you don't have that. And in fact, there is significant case law that says error. So what you do is in arbitration you get a verdict from the arbitrator. What kind of verdict that arbitrator can hand down, uh, is a function of the powers that have been delegated to the arbitrator in the first place.

0:21:38 Andrew: Okay. So sometimes you have, uh. What is called baseball arbitration, right? Which, uh., which stems from the fact that it's used in major league baseball, right. And I, I know you're not a big baseball guy. Uh, I am. I've actually had baseball clients. I've represented them in this process. Um, when a player goes to arbitration with his team, uh, the player will submit one salary, right? I think I should be paid $2 million. His team will submit a competing salary. I think that player should be paid $1.3 million. And pursuant to the terms of the arbitration, the arbitrator can only pick between those two results. The arbitrator cannot say, no, you know what? It is going to be 1.65. Or, no, it is going be $8 million, right. The the arbitrator can only either pick A or B. And you can imagine kind of as a games theory, right, how that leads you to pick your number, you know, you look at it like if, so imagine Imagine, if you will, that you have a case where you think it's valued at one point five million dollars.

0:21:44 Thomas: Hey

0:22:40 Andrew: Right. And it's also your estimate that the plaintiffs are going to ask for two million dollars. Right, now, that obviously that assumes a lot of knowledge that you don't have. But in a baseball arbitration scenario, you might look at that and say, well, assuming that I think the arbitrator, after reviewing all the information, is going to come up with a million and a half, where do I set my demand, right?

0:22:50 Thomas: Sure

0:23:08 Andrew: Right. Do I set it at him?

0:23:08 Thomas: There's some game theory going

0:23:10 Andrew: Yeah. Do I set at a million and a half? Do I set it a million for is he going to is the arbitrator? You know, is she going to say I'm going to follow prices right rules in her head and say, you know, I'm going to go.

0:23:22 Andrew: I'm not going to go under. Yeah. You know. So there is, right, exactly. So, there's some game theory going on, can constrain the potential outcome in ways that you can't from a judge. Right, like, you take a civil case to a judge, party A asks for two million dollars, party B asks that they pay one million dollars. The judge can say, no, you know what, you're paying ten million dollars, right? It doesn't, it doesn't happen often, but it does happen. In any event, what you get is you get the arbitration award, and then you can go, the statute is 9 U.S.C. 1 at SEC, and you can go, that judgment approved and entered by any court of competent jurisdiction. And the law says, and this is to what I was alluding earlier, even plain errors

0:23:22 Thomas: On there one dollar so

0:24:10 Andrew: Of fact or law are insufficient reasons to fail to confirm the arbitration award. OK, so, yes, that

0:24:18 Thomas: Essentially, does that mean, like, the arbitration is pretty much final, it's like, there's no one's going to check the work and be like, "Wow, wow, you had a monkey as a judge. You were totally, everything was wrong here." At one point, the guy threatened the lawyer and got into fisticuffs with him. But it doesn't matter because arbitration was final.

0:24:38 Andrew: Is exactly right. And in fact, the judge can say, the arbitrator can say, the law requires me to pay, you know, the, the law requires me to pay out to the plaintiff triple damages. So, therefore, get, $10 million. And let me explain. You could have a situation where the law could say you get double damages, right?

Not triple damages, and the judge could commit a basic error of math, right, like you'd be like, okay, other words, the order could say this, plaintiff proved that they are entitled to two million dollars, the law requires me to award treble damages, so I'm giving them 10 million dollars. Okay, you a hundred percent serious about this, while you would move the arbitrator to reconsider the 10 million dollars and point out, um, two times three is six, not ten. If the arbitrator says, no, yeah, you know what, like, doesn't matter, I'm sticking with my 10, right, you would not have grounds, by and large, right? This is an extreme example, and I, we could make arguments, I know we, we have lawyers listening to the show.

I don't mean to suggest that I might not take a case and try and argue this, but you would have a very difficult time winning that case in court to vacate the arbitration award, even with a basic error of fact and a basic air of law and a basic error of math, right? In fact, the law, this is 9 U.S.C. 10, it provides four grounds for vacating an arbitration award, okay? And that is, number one, where the award was procured by corruption, fraud, or undue means, right, that's pretty simple.

0:24:39 Thomas: Wow.

0:26:18 Andrew: I have evidence that the plaintiff paid off the arbitrator. Number two, where there was evident partiality or corruption in the the arbitrators or either of them. And you can have multiple arbitrators on a panel. So that's the point of that. So I can prove one of the arbitrator's was the plaintiff's sister. Number three, where the arbitrater's were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing, to hear evidence pertinent and material to the controversy or any other misbehavior by which the rights of any party have been prejudiced. OK, now that's pretty expansive sounding, right? Any other rights? But remember that everything we've done so far is a procedural question rather than a substantive question. Right. So, again, you know, consider my two times three is 10 example.

0:27:06 Andrew: As long as the arbitrators heard all the evidence and treated the parties fairly, that wouldn't fit into that category. And then number four, where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual final and definite award upon the subject matter submitted was not made. So exceeded their powers would be an example, because remember, arbitration, the arbitrator is not a judge. They have no inherent power over the parties. They have the power that the parties give them through the arbitration contract. So you can do things like the baseball arbitration and say, no, judge arbitrator, you will only pick between A and B. You can't meet in the middle. The arbitrator issues an award that meets in the middle.

0:27:54 Thomas: They didn't follow the rules that you agreed upon. Okay.

0:28:06 Andrew: You that I've set forth about arbitration, suppose there is a dispute prior to arbitration about whether an arbitration clause is meant to cover a certain kind of injury, right? So, in other words, uh, you have an arbitvation clause with your employer, uh, Opening Arguments Media LLC, uh, it says, uh, Thomas, if you have any dispute, uh, regarding the scope of your employment, you've got to submit. And then you and I get into a fight at a bar in off hours where I've egged you on by saying, you know, I really thought your answer to the last bar exam question was nonsense. And we're fighting about the episode. Right. Now, you could say, that arising under your employment agreement?

0:28:55 Andrew: Well, the argument no would be we were in a bar together. And by the way, this is a ridiculous hypothetical to our listeners.

0:29:01 Thomas: Yeah, because I would gladly agree that my answer to the bar question was terrible.

0:29:01 Andrew: Yeah. No, because You and I would never get in a fight like that, would just be preposterous. Um, so, uh, you know, the argument that it's not, uh, part of the arbitration clause would be, we're in a bar, off hours, not recording the show. The argument that it is, is, well, we were talking about the subject matter of the show, right, and that seems, that's even a, you know, I've set it up so it's not the best argument, um.

0:29:23 Thomas: So where do you go to figure that out?

0:29:23 Andrew: Yeah. You.

0:29:25 Thomas: Is that what you're Asking? Asking.

0:29:25 Andrew: Sue. Me. In court, right. You sue. Opening arguments, it's Media LLC in court. I motion the court to, uh, uh, either dismiss or suspend, uh, stay proceedings pending arbitration, and I say, look, he's got an arbitration clause. You answer and say, yeah, yeah, but this is outside the scope of that arbitration cause. Uh, who gets to decide?

0:29:44 Thomas: Well. I figure you would have to solve that in court, right, because it seems like it would be begging the question to say the arbitration clause that you don't know whether or not applies here needs to be adjudicated by the arbitrator or whatever, and

0:29:58 Andrew: You'd think, uh, other way around, uh, arbit- You.

0:30:00 Thomas: You'd be wrong. Wow.

0:30:01 Andrew: Get, you, you, you can arbitrate the arbitrability of the clause, uh.

0:30:08 Thomas: Well. You're. Saying you.

0:30:08 Andrew: And. That's. Well.

0:30:08 Thomas: Can, but you, you have to. That.

0:30:10 Andrew: You. You have to, under the, uh, application of, uh, the, so my motion to stay judicial proceedings pending the determination of whether the clause applies will be granted. The case will not be dismissed, uh, but the case will be suspended, and we will have to go to the arbitrator, and the arbitrator gets to decide if the arbitrater has the authority to arbitrate.

0:30:33 Thomas: Makes. No.

0:30:33 Andrew: The. Case.

0:30:33 Thomas: Sense.

0:30:33 Andrew: Yeah, I agree, I agree with that, um. The.

0:30:35 Thomas: I feel like It should at least be a different arbitrator.

0:30:37 Andrew: The, the reason is, right, you've heard, um, and we've talked about this, we've made references in some of our lawed awful movies, uh, which are fabulous.

0:30:46 Thomas: Amazing.

0:30:46 Andrew: And. Hilarious.

0:30:47 Thomas: Check him out on patreon.com slash law.

0:30:47 Andrew: Yep. Uh. That, you know, 99 of criminal cases are pled out, uh, 99 of civil cases. The court dockets are ridiculously overcrowded and judges are ridiculously overworked, and so, is seen regardless of the political implications, as there's a tremendous push, if there is any potential to take a case off a court's docket and hand it to an arbitrator, the direction that things are going.

0:31:19 Thomas: So it's more of a practical matter than a...

0:31:19 Andrew: Um, yeah. And so the rules that have come up about it are like, we're not going to let you get around arbitration. Um, and so you, you even arbitrate the arbitrability of a clause, um, we sort of went through, uh. You know, you can have virtually any kind of substantive disagreement so long as there wasn't a procedural violation of the four kinds that we talked about. The award is going to be upheld. And so, you know, that's the flip side.

So we've talked about how arbitration can be valuable to an employer as, you know, sort of a gatekeeping function, right, to make sure that you're not being dragged into court over small disputes or in situations where you have a barrier to entry. But the downside is when you arbitrate something, you get one bite at the apple. And if the arbitrator gets it wrong or doesn't like you, then as an employer, for example, you would think you would have the superior resources and you'd be like, Like, oh, yeah, well, look, like this trial judge was a was a nut. He got it wrong. But I'm going to appeal to the Ninth Circuit. They've got, you know, brilliant judges on the NinTH Circuit and they're going to get it right. When the arbitrator gets it wrong, you're stuck with that. And

0:31:22 Thomas: Okay. Yeah.

0:32:31 Andrew: So so That's that's sort of the flip side of the risk on arbitration is you only get one bite at the apple. Um, the notions of, of streamlining the process of arbitration being more, uh, efficient and leaner, uh, are not, they're really not the case these days. It's essentially trauma. And the reason why it's not the case is that 9 U.S.C. 10 a three that I read you. Right. Like, one of the few grounds upon which you can overturn an arbitration decision is, or if, if you, you can show that the arbitrator, quote, "refused to hear evidence pertinent and material to the controversy," right? So think about that in the context of, I told you, I had a huge arbitration battle where we had motions to compel. We felt pretty good that the arbitrator was going to rule that that evidence was going to come in because excluding that evidence would have given us grounds.

0:32:32 Thomas: But

0:33:27 Andrew: We won, which was good. But had we lost, we would have had grounds to challenge the arbitration award as refusing to hear evidence material to the controversy. So the upshot of that is huge commercial cases, you wind up having just as much discovery, just as many documents, and just as Much work and expense as you would in a trial and takes just as long. So, yeah, yeah.

0:33:51 Thomas: Is it just from the perspective of the overcrowded court dockets that they're seen as, like, more efficient?

0:33:57 Andrew: Yeah. And they're look, they're a little bit more efficient, you you are going directly to somebody that you're paying. So they, you know, they, like, I can't, if I have a case in which the judge hasn't acted on a pending motion in a couple of weeks, sometimes I will send a polite letter over that says, you know, your honor, defendant submitted this motion on November 13th, 2016, and, you know, respectfully request that the court update the parties as to the status of the defendant's motion. I've sent those letters, you send them very cautiously and lightly because that's your judge, um, in an arbitrator, you know, in an arbitration situation, uh, you can email the arbitrator, right, you can say, yeah, just, uh, checking in, I noticed I notice on my calendar that, we briefed this motion two months ago. By the way, you charged me for, you know, on your bill last month, uh, you, would, would put that a little diplomatically. But you have more. So there's that. That's an example of a kind of some streamlining that goes through.

0:33:58 Thomas: Yeah. Yeah. Yeah.

0:34:47 Thomas: Get on it! Hurry up! Oh.

0:35:06 Thomas: Yeah.

0:35:06 Andrew: But initially, it was the case that you used to have sort of streamlined discovery. And that's no longer the case in large-scale AAA commercial arbitrations. There is another kind of very popular arbitration that is non-binding. So I've I've been talking about binding arbitration this entire time. You can have non-binding arbitration. And a really good example of that is ICANN, which is the – I forget that acronym. We talked about this in the Save the Internet.

0:35:33 Thomas: Oh, the website thingy? The...

0:35:35 Andrew: Right, exactly. And so when you have a dispute over a domain name or content that's gone on, you can that dispute to ICAN and demand arbitration, and that is a very, very streamlined process. And what happens is at the end of that arbitration, which is generally a couple of months, uh, and the parties get, you know, sort of one submission each. Uh, there's not a lot of discovery. You just sort of put in your evidence. Uh. The other side gets to see it because you've submitted it to the arbitrator and then respond. I think there's a right to reply. It's been a couple of years since I've done an ICANN arbitration. And then what ICANN does is they hand down – the arbitrator hands down a ruling that your website provider will – this is part of the terms of service of your website host – will follow unless a party files a lawsuit in – and usually it's in 10 days after the issuance of the ruling.

0:35:36 Thomas: Yeah. Yeah. Oh,

0:36:31 Andrew: Right. So it's a non-binding arbitration. And if you follow, if the party that loses the arbitration files a lawsuit, then that arbitration is just, has no legal effect in that subsequent lawsuit. Now, you know, you Would certainly introduce it and you would say, you, you know, this matter has been arbitrated, but the judge looks at it de novo. They don't have to assign it any precedential value. So that's Another area in which people may be familiar with arbitration that comes up sometimes over, like, DMCA copyright notices and also in cyber squatting, which is where I've litigated those cases. So yeah,

0:36:45 Thomas: In the lawsuit. Uh, interesting.

0:36:58 Thomas: Interesting.

0:37:13 Thomas: Well, there you have it. I mean, that's interesting. That definitely went against my conception of it. I guess just my, uh, naive conception of it. I thought it was a simpler thing that just kind of, you know, Oh, we'll just bang this out. This'll be easy. This will be cheaper, but it sounds like no interesting.

0:37:28 Andrew: And the ICANN is like that, But the ICANN is non-binding. Where it's binding and you go through the Federal Arbitration Act to confirm the award at the end, gone far afield. And it's going far afeld, I think, for the reason we discussed, which is to say that arbitrators, as they're handling these increasingly large commercial arbitration cases, do not want to have their awards overturned for lack of hearing. The evidence. So they let everything in. And I should say, we've talked about a kind of a survey of a couple of kinds of arbitration, right? Like there are, there are lots of other ways to do this,

0:37:31 Thomas: Hmm. Right. Yeah. Well

0:38:06 Andrew: But those are two of the most common ways in which people interact with the arbitration process. So, you know, we say it at the beginning of the show, it's on the back of our t-shirts. Don't take legal advice from a podcast. If you, you know, have an arbitration agreement, if you are party to an arbitration, it may be it may not be pursuant to the commercial arbitration rules of the American Arbitration Association, which is the background for what we're talking about. So, you know, don't don't take this as legal advice, please. You know, contact me, contact a lawyer who can who can speak to your specific circumstance. But, you know, I thought it would be interesting to kind of talk about the general principles underlying the way in which our audiences is likely to interact with the arbitration process.

0:38:51 Thomas: Thanks for taking us through that. Let's go to a second listener question for the day. Eric Walls asks, since the courts have established corporate personhood, what about registering their company or companies to vote and then voting on behalf of the company? This sounds like one of those straightforward answers.

0:38:55 Clip: The law breaking down

0:39:22 Andrew: Why don't you take a crack at it then? Since, since we have heard that you are the legal expert on the show, uh why don'T you take a track at it?

0:39:28 Thomas: Yeah. Only if you make a joke about it first. No. So I would say, well, do you really Want me to take a crack at that? No, let me, letme do it. So, so I would say corporate personhood, I mean, corporate person hood is a very specific thing. It means a specific thing. Means you can be sued. Your company can be sued. It means your company, your corporation can, you know, be a part of a contract of certain things like that. But I would suspect that, you know, the election laws like the, the electoral laws that we've talked about all through this, this election process, probably somewhere in there have a definition of who can vote, and it wouldn't be a company.

0:39:33 Andrew: Do you do you really? Because I will, uh, I've got it. I've gotta Yeah.

0:40:10 Andrew: Yeah.

0:40:10 Thomas: Just like someone under a certain age can't vote, but anyway, go on.

0:40:11 Andrew: No, that, that's yeah, No, that's Exactly right. And, and it, it, I, I took the question because I actually have, have seen this question, uh, with a couple of, um, you know, hypotheticals attached to it, right? This one was voting, but another one was about a different sort of aspect of individual rights. And I think that there are kind of a couple of principles that are worth talking about there. So the first is, again, on our sort of core message, right, people read summaries of the 2010 Citizens United decision, right. And they remember Mitt Romney in the 2012 presidential campaign on the trail looking out and going, corporations are people, my friend.

That grossly oversummarizes the holding of that case, right? So in the law, we have differing definitions of what a person is, right, what a human person is what a legal person is. This is a callback to the question on abortion from Sage that I took a couple of weeks ago as well, right? That the law recognizes differing kinds of rights and differing kinds of persons who are entitled to assert those rights. So one of the things I liked about your answer is you mentioned, you know, the rights that extend with age, right. So, for example, you know, a 19-year-old person has a lot of rights under the law. A 13-year-old person has some rights under law.

Neither of them have the right to, you know, do what I could do right now, which is take my lovely holiday gift from you, Thomas, which is this bottle of scotch on my desk and pour myself a nice tasty glass of scotch, right? Like no, the fact that those two are undeniably legal persons in some sense does not mean that they have the full panoply of rights that adult citizens who are over the age of 21 have.

0:40:58 Thomas: Yeah. Yeah. Yeah.

0:42:04 Andrew: So, so, you know, so that's sort of the first thing is that the holding of Citizens United said corporate persons have certain rights under the First Amendment with respect to political expression. Same thing about the Hobby Lobby decision, Hobby Lobby versus Burwell. That said, those corporate persons also have First Amendment rights of religious expression. And now, again, in both of those cases, I think there is sort of significant overreach taking place. I would not be surprised at some point in the far future, certainly not in the next couple of years, to see that sort of scaled back and defined a little differently. The notion of corporate personhood is separate from legal personhood.

0:42:47 Andrew: And obviously, certainly for purposes of voting, we think of lots of persons who nevertheless do get the right to vote. You know, you can, you can take that personhood away from convicted felons, but that doesn't mean that, you know, you can just kill anybody who's a convicted felon who's been released, right? Like they, they have other rights. I used to do work for a runoff entity for Lloyd's of London. And I think I've mentioned this, the insurance company, and the way in which Lloyd's used to work prior to 1987 was that the insurance policy is basically like, the reason why Lloyd's can ensure and exotic risks that other insurance companies won't touch is that it kind of operates as like a mutual fund for insurance.

0:42:47 Thomas: Because

0:43:33 Andrew: And you take a policy, they would divide up the potential risk and sell percentages of the policy premiums and put them in rich people's insurance portfolios, right, as kind of a hedge against inflation, right? Right. So they would take on, you famously Tina Turner's legs.

0:43:52 Thomas: I think they insured like Tiger Woods's hands or something like that, yeah.

0:43:55 Andrew: Yeah, exactly. Right. Things like that that are you can see why you would want insurance on them. But if you went to just your company and said, so, you Know, what does Prudential think about like the going rate for insuring hands? Right. Like they don't have an actuarial table for that. So what Lloyd's would do is say, OK, give us we'll insure you for one hundred million dollars. Uh, we're going to take that and we're going to divide that up into thousands of pieces, uh, and then sell off that risk to thousands of individuals who were called names, capital N names, uh who would then severally subscribe to the risk. Uh, and what they would get is they would get one, one thousandth of the insurance policy premiums. And then at the end of the year, policy expires.

0:44:10 Thomas: Huh.

0:44:38 Thomas: Interesting.

0:44:39 Andrew: If they don't have to pay out, they didn't pay out, and they got their, uh, they got there. They got their money. And if they did, well, they probably were pretty mad at whatever broker put that in their insurance portfolio. The whole reason for that digression is it used to be a rule at British law that the names that severally subscribe to these policies had to be real persons in interest. They could not be corporate persons. So there's just an example where it's an economic transaction.

It's pretty easy to come up with things the other way, but this is an economic transition where they decided, no, no, no, no, we really, really want to maintain, uh, the notion that, um, you know, that this is, these are human beings who are evaluating this risk and taking it on. Um, that's been changed for about 30 years now. So, you know, recently. And, and I would point out that, uh... we mentioned the, uh.. the First Amendment Defense Act.... in our opening segment and the First Amendment Defense Act, tell me if you're shocked by this, uh So the First Amendment Defense Act specifically defines person as including corporate persons. That probably won't surprise you.

0:44:52 Thomas: Yeah.

0:45:31 Thomas: Hold Yeah. Yeah, no, I, I've always wondered about this Citizens United thing because this has been one of those things that I thought that liberals kind of went a little crazy about, the corporate personhood thing, and and this may be a little bit of an example of that. Like I think a, a lot of liberals have interpreted that and taken it to an extent that isn't really warranted. Like it doesn't really, Republicans don't literally think corporations are people, um, I think that's been a little bit of a straw man. What do you think about that? Are there other instances that you can think of, or, or, and and how much did that case hinge upon that distinction? Hold

0:46:29 Andrew: Yeah, I think that's an excellent point, right? I think Citizens United is held up as a boogeyman on the left. I certainly think it overreached, but there is a defensible underlying argument that stems from the aggregation of individual rights to speak, right?

0:47:07 Andrew: I can't get together and fund an anti-Hillary movie, uh, which was the subject of the Citizens United lawsuit. Those are tough lines. I would add also that, I think the Citizens United decision sort of bears the brunt of, correct, liberal frustration with the failure of, uh, our elected officials to pass kind of meaningful campaign finance reform and oversight of elections, right? Right. Like that system is broken. And to say that it's entirely the fault of Citizens United is misplaced. Right. It was broken before Citizens United and it's broken afterwards. Citizens United didn't help. But I thought, to kind of go back to the 2016 Democratic primary, I felt like both sides, it was a tremendous activism on, getting a constitutional amendment to overrule Citizens United. I think Hillary Clinton made that promise kind of late in the campaign.

0:48:01 Thomas: Yeah.

0:48:01 Andrew: Obviously, Bernie Sanders made it sort of very, very early. And we criticize that on opening arguments as, you Know, sort of pandering and ridiculous, and it's not going to happen.

0:48:11 Thomas: Just because of overwhelming Republican control of the states, and they just it wouldn't, you know, it's unrealistic.

0:48:15 Andrew: It's beyond unrealistic to think that it could happen, right? They think that it could pass 38 state legislatures. But also, I mean, we criticized it on substance as not being the solution to, you Know, the campaign finance problem. So we've we've been pretty hard on the far right in this episode. Hopefully, those of us who are policing our Our political content will appreciate us coming down on the left on that as well.

0:48:22 Thomas: Yeah.

0:48:43 Thomas: Well, we definitely are due for probably a Citizens United episode at some point. But I guess just since we're on the topic, though, if you were able to, Andrew Torrez, you know, Senator Torrez. No, not that one. Well, if just Andrew Torrez citizen, if you are able to overturn that decision. I mean is that something you would do, though?

0:48:48 Andrew: Yeah, I would. There are certainly, I mean, kind of without delving into the body of the opinion, there are certainly areas in which I would want to scale that back. But we've talked about this connection with other cases. So, for example, if I were on the Supreme Court, I would be lobbying my colleagues every day to overrule D.C. versus Heller to say this is an activist decision that has no basis in law. It's bad law. And to the extent that it is inconsistent with any of our subsequent, it is overruled. Right. That is an extreme step. But I think Heller deserves that extreme step for the reasons that are well established on this podcast. Uh, go back and listen to our second amendment episodes for, if you haven't, uh, for, for my arguments on that. Um, there's a lesser step when the law has been trending in the wrong direction, right?

You can, as a Supreme court kind of draw a line around that decision and say, okay, like we recognize there's this case here. It extends to here. We're going to continue to deal with it. But to the extent that the implication is X, you know, that should not that case should not be read in that way.

0:49:26 Thomas: Right.

0:50:12 Andrew: And that's the approach that I would take, United. If I were on the Supreme Court, I would say nothing in Citizens United should be construed as saying that, and then I would want to kind of describe them, but as saying that it is unconstitutional to place spending limits on corporate persons during an election season, right? Like, that is something that is permissible, or that our elections could be publicly financed and that, all outside, outside contributions would be, would be prohibited. Now, I don't know that we'll ever have, I mean, ever is a big word. I don't know know that in um the short term we are likely to have uh consensus around something like public financing of elections and I think that that argument actually sort of took a step backwards in this past election because um for all of of Trump's wealth uh he was way outspent by Hillary Clinton uh and he won on the basis of, you capturing media attention and getting, and I think the estimates were that he got two billion dollars worth of free media coverage by being wacky.

Um, now I, again, I, you know, whether constitutionally you want to say, you know, the way to be a successful candidate is to be wacky, um, I don't think you want to say that, but, but it makes, it makes the argument that dollars equals victory, uh, you know, which is always an overly, which is almost an overly simplistic analysis to to begin with, a harder argument to maintain, because that wasn't the case in the 2016 election.

And it was, you know, sort of manifestly not the case in the Republican primaries where, you know, Jeb Bush spent $100 million to get 2% of the vote. So, you know, you're going to be dealing with that argument from a strategic campaign management perspective, where I have focused my energies,

0:51:11 Thomas: Yeah?

0:52:06 Andrew: And I think we've talked about this in a previous episode, um, would go around the uh Citizens United decision and and go around the issue of funding, which is critical, I don't mean to downplay that, uh, but I think, uh, if you had a system that could deal with the gerrymandering of districts, um, that that that I am persuaded, given the current political climate, at least, uh, that that's, it's a more fruitful avenue for pursuing campaign reform that, you know, is getting rid of these districts where you take a state that is essentially 50-50 and divide it up such that the congressional districts are overwhelmingly belong to one party or the other. And my state, look, I'm in Maryland. My state is is plenty guilty of this.

0:52:52 Andrew: Maryland is a 60-40 Democrat. It's an hard blue state. But of our eight congressional districts, six are hard blue districts and a seventh is a strong blue district. We literally have one. We've kind of put all the Republicans on the eastern shore into one congressional district. And as

0:53:14 Thomas: Yeah, that's gerrymandering. Yeah. The other way. Yeah, yeah,

0:53:17 Andrew: The States where we complain about a lot of plus five districts and one D plus 30 district in the city, it's a little easier to do it. But I want us to get bogged down in the partisan thing. Gerrymandering is is wrong. It's bad because it means that the House of Representatives, which our founding fathers intended to be the branch most responsive to the people, uh, is not responsive to the right. You look at the uh, at the, at the 2016 election, and the generic congressional ballot was Democrat plus three, uh, and the Democrats only picked up a handful of seats, as opposed to the 30 or 40 seats you would expect them to have picked up if every congressional district had been drawn fairly. Again, same thing happens the other way, right? Like during the Tea Party wave in 2010, the Republicans should have picked up even more seats in Congress, right, like, but, but that changing back and forth, as opposed to having an entrenched, you know, once you're an incumbent, you have a 99% reelection rate, right? Right. Like, I think that's part of what getting at campaign reform is all about.

0:53:33 Thomas: Yeah.

0:54:24 Thomas: Well, speaking of topics for another show, I think gerryandering certainly could be a topic for another Show. But interesting. So that would be your priority to fix that over maybe a fool's errand to try to get a amendment passed to repeal Citizens United.

0:54:27 Andrew: Yes. Yes. Yeah.

0:54:39 Andrew: Yeah, that's not I mean, that'S not going to happen.

0:54:41 Thomas: Yeah Yeah. All right. Well, thanks for that question, Eric Walls and Andrew. I know we branched off a little bit, but but thanks for the answer. So now's the time. Speaking of thanking people where we've got to thank our amazing top patrons, our Hall of Fame, our all time greats. And they begin with Roger Metcalf, Dan Irizarry, Eli Bosnick, David Nichols of Positively Doubtful Podcast, Steve Sigmund, Jim Grove, Desecrator, Patrick Fussell, Amanda Lipnack, La Bibliotecatrice, Heather Loveridge, Geeker41, Sean Pitti, Ian and Allie, Matthew Vernon, Violet Pagehall, Heath Enwright, Jeffrey Maynor, and The Wayward Willis. Why don't you take the rest, Andrew?

0:55:26 Andrew: Thank you, as always, to Detective Matthew Maxson, to Zena, to Dave Lovely. Thank you to Danny Baker at Combat Nonsense. And we will continue to combat nonsense for as long as you stay a supporting patron for the Netsack Heathen. Thank you to Charone Frankel. Thank you. To Squick Thinger to Ian Ryan, Matthew Hillier, Aaron Grady. Thank you too. You are here. Thank you two. John Bodley, Esquire to Hunter Ash, Kylie Riser, Jeff S. Sakashita, Fukasumi, Philip Stromberg, Michael Schaefer, Michaela. Thank you for joining us. Thank you also to the Electronic Frontier Foundation at EFF.org. Uh, that's a new uh patron and a new Hall of Fame patron, uh, thank you to Marissa Alexa McCool and her fabulous snarky publishy stuff which we will say every week despite the fact that it took me two takes to say that, uh, thank you to the Inciting Incident Incident podcast to Frederick Alstromer, Sammy, Michael, Conrad Michaels, and to Zabby.

0:56:20 Thomas: Thank you guys so much for being our top patrons over at patreon.com/law. I hope you enjoy all that extra bonus content over there.

0:56:37 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:56:43 Thomas: Okay, Andrew, you know, unlike all the other questions, this bar question number 11, I think is critical. Certainly a critical question. Question. It's going to determine whether I go six for 10 or let's see six for 11 or seven for 11. I'd rather be seven for 11. So we'll see.

0:57:01 Andrew: I agree. I would rather that too. And I am looking forward to the Thomas Smith law firm in Vermont. So I've got, I've Got My Fingers Crossed for you. Are you ready? Okay. A patient who had surgery to repair a rupture in her spleen followed up with a full body MRI due to the excruciating pain that had developed. During the MRI, the technicians saw at least two identifiable sponges that had been left in her body. This actually happens. This happens all the time.

0:57:12 Thomas: Yes. Oh gosh.

0:57:33 Andrew: She had to be hospitalized for additional surgery. The patient, as you might expect, sued the hospital and the doctor for medical malpractice. She did not produce the printouts of the MRI. Instead, she attempted to testify as to what she observed on the MRI scan. The defense objected and insisted that she must produce the actual MRI printouts. What is the most likely ruling of the trial judge with respect to the objection? Okay, so pretty straightforward question, if kind of a complicated twist on It. Here are your answers. A, she does not have to produce the MRI scan because a layperson can testify to things of common knowledge, such as what a sponge looks like. B, she does have to produce the MRI scan because a lay person cannot testify as to personal observations. C, she does not have to reduce the MRI's scan because she can testify as the content of her own medical records, or D, she must produce the MRI records because it represents the best evidence under the best evidences rule.

0:58:08 Thomas: Yeah.

0:58:43 Thomas: Best evidence rule. That sounds a little weird. Uh, one's a little tough cause I'm not totally sure. Like Like C sounded like if it's in her medical records that it's like says, oh, two sponges were found. And then she's testifying to that. That might be different than if it saying that, you know, like I don't it's just a little unclear to me. So I like that it'S trying to throw me off with the alternate alternating thing.

0:59:09 Andrew: Yeah.

0:59:09 Thomas: So it's Like instead of the A, B and then the C, D, we got the A and C are together and B and D are together. So, okay. I, too, touche. Yeah.

0:59:16 Andrew: Right. On The on the one hand. Yeah.

0:59:20 Thomas: Um, I am leaning toward B because this is tough. So my intuition, which is all I have to go on because I snoozed through a Harvard law. I have to admit, I don't remember much of my Harvard law education. I would say that I don't think you can just testify as to what you saw on an MRI because that doesn't, I mean, how would you know what that means? Like you could see a blotch and it could just be nothing because you're not an expert on that. Um, so I'm kind of leading, leaning toward B for that reason. Can you read B one more time?

0:59:56 Andrew: B is, she does have to produce the MRI scan because a lay person cannot testify to personal observations. All

1:00:05 Thomas: Yeah, I'm going to go with that. I hope it's right. It's the one that makes the most sense to me. Um but boy, I've missed a few in a row here So I'm not feeling too confident anymore, but, uh, but I'm going to go with that. Cause I, I just don't, I don't think that that, I, I don'T think you can just testify. Yeah. I saw this and, uh. It's, it's what I think, you

1:00:25 Andrew: Right, well, we will find out, uh, next week. If you want to play along with Thomas, and you've been keeping track, this is Thomas Takes the Bar Exam question number 11, and what, what you need to do is, uh, I'm going to explain Twitter, Thomas will explain Facebook. You get on Twitter, we have an announcement tweet that sends out this episode, episode number 44. You need to quote that tweet and then include with it your answer and any reason or reasons, therefore, it can be short, uh, sometimes short and pithy wins, uh, you can include a little picture, uh, sometimes people have taken screenshots of lengthy and complicated analysis, us, but basically quote out our tweet, include with it your answer to Thomas Takes the Bar Exam number 11, and we will pick a winner every week.

1:01:14 Thomas: Yeah, and if you want to play on Facebook, same thing goes. If you follow us on Facebook or if you like the page on Facebook, which, which is facebook.com/openargs. Uh, when we send out the post for the episode each week, if you hit the share dot, dot, dot on that, that'll allow you to write a post in addition to sharing. And that's where you can put your answer for Thomas takes the bar exam and get a shout out, get a credit for it and, uh, yeah, play along. So thanks for everyone who has, and it's really fun. I, I, despite the fact that I'm, I'm about to go, oh, for my next 200, it feels like, it's been fun to play. And that's all we have for you today. Uh, thanks, thanks for listening. Thanks to our fine patrons over at patreon.com/law. Thanks to Our Fine Andrew over at wherever he is right now.

1:02:01 Thomas: And we will see you guys for another rousing couple episodes of Opening Arguments next week.

1:02:08 Andrew: Thanks, Thomas.

1:02:16 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time. This podcast is a production of Opening Arguments Media, LLC. All rights reserved.