OA509: Kraken Lawyers Get Full Dressing Down; the Cosby Release is EVEN MORE Worse

Transcript

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

0:01:20 Thomas: I'm Thomas, that's Andrew, how are doing?

0:01:23 Andrew: I am fantastic, Thomas. How are you?

0:01:25 Thomas: Doing great, just at long last, is there going to be something that takes away your ability to do the Cosby Breakdown in this episode, because I've been waiting for this friggin' thing for a week and a half, Andrew, I think, But

0:01:37 Andrew: I am confident we are going to get there, and it's going to be worth the wait.

0:01:40 Thomas: First, 80 minutes on the Kraken sanctions.

0:01:47 Andrew: I'll be creaking sanctions.

0:01:48 Thomas: Yeah, now I can't pronounce either of those words. Now that I made that joke, crack, crack, and Kraken sanctions is how humans do it, but Andrew might say crock, crocken, no, Kraken, Kraken sanctions. All

0:01:55 Andrew: Yes,

0:02:01 Clip: Down the law, down the law.

0:02:05 Andrew: So, I like to think thanks to us, but the nation's eyes were riveted to five hours and 42 minutes of a district court hearing in the U.S. District Court for the Eastern District of Michigan last week, and um, was amazing. It was amazing in every conceivable way, and I want to help those, our listeners who, who watched it, understand what it is that they watched. And again, this is going to be just about, uh, coterminous with our, uh, Law'd Awful Movies, breaking down, making fun of, and going really like point by point on, on some of the more absurd things that out in that hearing. So I thought I would explain kind what's going on here and what's gonna happen next, what the city of Detroit is asking for, what's likely to happen, right?

0:03:00 Andrew: All of this stuff. So, the main argument, what this hearing is about is Rule 11 of the Federal Rules of Civil Procedure. And that governs how lawyers conduct themselves in federal court. And that's why this hearing is really, really important, right? Like, there are lots of other sort of potential sanctions. And sometimes, you know, I've talked about infrequently the number of times that I've had to move for sanctions where it has been unclear where the involvement is with the position the client wants to take, whether the lawyer is facilitating that, right? So, for example, I have a pending lawsuit right now in federal court in Maryland in which we have an ongoing sanctions order.

0:03:46 Andrew: And that sanctions order is pursuant to the court's inherent authority. And I've talked a little bit about that. And this is a public case, I'm not talking out of school here. But it had to do with repeated email conversations that were were sent by the other side to my client and to my clients, employees, donors, volunteer. My client is a nonprofit, right? To their donors, to their volunteers. And on a half dozen occasions, I called up the other site and said, hey, man, can you stop doing that? You've sued us in federal court. If you have something you want to communicate to my Client, they've hired a lawyer, one of the benefits of hiring a lawyer is you don't have to deal with a barrage of stupid emails. And, um, right, exactly. No, seriously. Like this is a real benefit I bring to my clients. Right. And so the other side rather shockingly to me said, no, we think he has a first amendment right to continue to, you know, say stuff. And I was like, well, I disagree.

0:04:34 Thomas: That's what Andrew does for a living.

0:04:52 Andrew: And the court did disagree.

0:04:45 Thomas: Wow. I don't think that's how the law works. Yeah, why

0:04:54 Andrew: Yeah. And the court did disagree, right? So I don't bring that up to like pat myself on the back, although, you know, look, I'm a good lawyer, right. But to contrast with how narrow, so those sanctions were, I moved for sanctions pursuant to the court's inherent authority because they would not have fit under rule 11, which I'm going to read to you now. Now, so Rule 11 governs things said by lawyers. It is called subsection B, representations to the court. And it says, by presenting to the Court a pleading, written motion, or other paper, whether by signing, filing, submitting, or later advocating it, an attorney or unrepresented party that is for when you represent yourself, certifies that to the best of that person's knowledge, information, and belief formed after an inquiry reasonable under the circumstances.

0:05:00 Thomas: Not?

0:05:45 Andrew: Four things. And those four things are, one, it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation. Two, the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or establishing new law, Three, right? The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentuary support after a reasonable opportunity for further investigation or discovery. And four, the denials is just the converse. The denials of factual contentious are warranted on the evidence or, if specifically identified, are reasonably based on a belief or lack of information, So this right.

Is the minimum standard for me signing a paper in federal court. I'm saying, hey, I put my name on this, and I am certifying when I put my name that this paper that I am filing, to the best of my knowledge, information, and belief, formed after a reasonable inquiry under the circumstances, does not do any one of these four things. And these are conjunctive. This is an and. So I cannot do any of them, right? That is, use the court improperly to harass or annoy or cause unnecessary delay, that am either arguing under the law or for a good faith extension or new interpretation of the law, and that my contentions either have evidentiary support or I think I will uncover that during discovery.

0:07:21 Andrew: And the reverse is true regarding my answers to to your contentions, to the other side's contentions. This should not sound like a particularly high bar to clear. It is not. And in fact, lawyers use the phrase "Rule 11 sanctions" to describe when they think opposing conduct is below and beneath the call of duty, as you can imagine, right? So if I were to say to somebody, "Counsel, you are treading awfully close to Rule 11 sanctions here," right? That is as stern a warning as I can give to opposing counsel.

0:07:29 Thomas: Yeah.

0:07:56 Thomas: Short of, like, my, my dad could beat up your dad kind off

0:07:56 Andrew: Yes, well, that, that is, I mean, that's just factual. So, since and my dad is a proud listener of the show, he's going to enjoy that. So you may also recognize, right, like it applies only to things that the lawyer has submitted, right. Or the operative verb is presenting to the court. I guess it's a gerund, right? Whether by signing, filing, submitting, or later advocating it. So whenever I say something to the Court, as an officer of the Court I have to meet these minimum requirements. The city of Detroit has argued, I think persuasively, that nobody involved in this nutso crackin' lawsuit that was dismissed missed after seven days, met that bare minimum under Rule 11. And that's what this hearing was set to resolve.

0:08:48 Andrew: And I need to add, we talked about this last week when we first discussed and flagged for everybody that in Episode 506 that this hearing was going to be available for viewing doing over the internet yeah, 13,000 views on the Court's website that which

0:08:58 Thomas: The hook yeah which is a lot for a boring law thingy, I imagine what

0:09:08 Andrew: Is a super lot for a boring law thing

0:09:11 Thomas: Would an equivalent like thing, like this, have if it weren't this, like, you know, seven views just be you watching it five times and then who had like their families watching it twice, no

0:09:11 Andrew: Yeah right right that yeah no that, that is exactly. It would be only the parties involved, yeah. And, uh, critically, the judge in this case, um, Judge Parker, said, "We're going to do this over Zoom, right? So it's going to be a virtual hearing, but I want all of the, I want everybody who has appeared on any of the plaintiff's pleadings to be there in person, virtually in person." All of the lawyers hired Douglas Campbell to represent them, pro tip from this, passed over from cleanup on all 45, if you are a plaintiff and your lawyer hires a lawyer in the middle of your lawsuit, that's not real good sign for you as the plaintiff.

0:10:02 Thomas: It's the, it's the scene, I think it's probably both the Simpsons and Futurama where they're talking to the bird lawyer and it just shows the bars, you know, and then, like, at the end of the scene they're like, "Well, good luck with that," and they walk away, and it's actually the lawyer was behind bars the whole time. It's one of those shows, I can't remember which it is, but it's a fantastic joke.

0:10:02 Andrew: Yeah right yes and that may well be the case here, so it, all of the lawyers involved, involved, and we can run down the list, Sidney Powell, Lin Wood, Greg Roll, Emily Newman, Julia Holler, Brandon Johnson, Scott Hagerstrom, who, Scott Hakerstrom has successfully managed to keep the lowest profile during this hearing, I think, and Howard Kleinhandler. Now now all of them have retained Doug Campbell. Doug Campbell, I need to tell you, I have done the due diligence, is a respected attorney in Michigan who handles attorney grievance cases, right? So they went to the best and they said, hey, we have this thing. We need you to represent us. And then they moved the court. They said, Hey, can we not appear in person? Can we appear through counsel. And the court issued the ruling like 12 minutes later with the legalese equivalent of, did I stutter?

0:10:23 Thomas: Yeah I don't recognize that name, even, yeah yeah

0:11:20 Andrew: Which was, no, the court specifically ruled that all of you appear in person. That means in person, and then, parenthesis, virtually. So did the court want them there in person? Because, as went through on Rule 11, the question is, when you've submitted a paper to the court, you are certifying that to the best of your information, knowledge, and belief formed after an inquiry reasonable under the circumstances, that none of those four things were true. And what the judge wanted to do, in a cross-ex as stunningly effective as I have ever seen, is ask each and every one of the lawyers to start off with a wild, preposterous, and stupid allegation in the complaint, and then say to the lawyers, so, anybody want to tell us what inquiry you did to verify that this is true? And then there would be stunned silence.

0:12:18 Thomas: Not all at once uh, you know take turns, yeah yeah

0:12:18 Andrew: Right. Yeah the court frequently said, yeah, don't everybody jump in all at once, um, and then, and Doug Campbell would say, "Well, I think," and then would proceed to give the arguments for why they didn't have to do an independent inquiry. And those arguments were typically in the form of, well, this was putting forth an expert witness. And, like, you expect the expert witness to do the inquiry. But the court was prepared for that argument. And the court's response was, "Well, what did you do to inquire whether your expert witness was, you know, an expert witnessed or not?"

0:12:57 Thomas: That seems like it would be a get out of jail free card. If you're, like like, as long as someone says they're an expert, you can put on anything, a Holocaust denier, if they say they're an expert, and you don't have to do any due diligence on that?

0:13:10 Andrew: No, that is the logical extension of the argument. And I need to tell you, I thought that lawyers on behalf of the city of Detroit did really an amazing job at sort of sticking to the argument and saying, "Look, what they're trying to do is essentially, you know, launder their bad arguments." Right, like they're saying, "Oh, if we raise this in 50 different lawsuits, right, then we can quote another lawsuit, or we can, quote, you know, the expert witness we put up in Pennsylvania," and say, "Look, all we're doing is quoting from pleadings." How could that not be the case? And said over and over again, "Look, let them do this," right?

0:13:56 Andrew: Don't let them essentially give you the runaround by saying, "Well, it's person A who told person B who told person C," right, your eye on the ball of the fundamental question of, was the appropriate due diligence done under Rule 11. I think my favorite portion came very late in the day when Julia Holler, who, let's be honest, had the worst day on this, cried on camera several times, was very close on on other occasions, it was not a good showing. Holler was asked, uh, with respect to, uh, the allegations involving, um, Dominion voting machines, uh, the broad question, right, so again and again, this was like number seven of, so, you know, did anybody on behalf of any of the plaintiffs do any work to validate whether this was an appropriate opinion or not.

0:14:55 Andrew: And this time, Julia Hauer said, "Yes, your honor, I can tell you that I personally read through the Dominion voting manual, and we had conversations with the expert regarding the procedures, and we reviewed this, and we did this," and you could see her thinking, like a not particularly bright child, going, "I've answered the question." And that's where the judge sprung the second trap, which was, "Good, Miss Haller, when you uncovered that the evidence was to the contrary of your witness's opinion, what" did you tell the witness?" And there was just, you could see, like, literally the color drain out of her face and go, "Oh, I hadn't thought about, you" you mean I have to not only do due diligence, but I also have to act on it. And it was, it was truly a wonderful moment.

0:15:27 Thomas: Yeah. Yeah. Yeah. Like, they thought they could just kind of sort of cross the T, you know, in a little bit dot the I, and they're like, no, you actually have to be with things. You can't just do what looks like you did those things,

0:15:52 Andrew: Yeah. Exactly. So, did not go well for, for any of the lawyers. And I thought then I would let you know kind of where things stand, but also the three different categories of arguments that are being raised here and my view of, of each of the three of them. Um, and let's start with Emily Newman. Okay, Emily Knewman came to court prepared with the "it's my first day" defense. Um, she was represented by Thomas M. Buchanan from Winston and Strawn, who is an impeccable two thousand dollar an hour lawyer. Okay. Weirdly, as we record this, this morning, she has hired another lawyer, Timothy Galligan. I'm going to give the link in the show notes to his LinkedIn page.

0:16:45 Andrew: Timothy Gallegan is basically the me of Michigan, right? Again, you could...

0:16:52 Thomas: So, good deal. A great lawyer at a, at an affordable price. Yeah.

0:16:57 Andrew: But In terms of his background, he says, right, "For more than 20 years, I've represented clients of all sizes in a wide variety of litigation and transactional matters across many industries. My focus is on providing timely and practical legal advice geared to the business matter at hand and a cost-effective and proactive approach to achieving a prompt and successful conclusion to litigation." Could say that about myself. "I have extensive litigation experience in the automotive, construction, real estate, insurance, and information technology industries." Well, not the automotive part, but the rest, rest of those, right? "Particular matters include contract, UCC, business tort, shareholder and partnership disputes, non-competition and trade secrets, intellectual property litigation, including copyright, trademark, and unfair competition, tried numerous cases to verdict, and in arbitration, including $3.8 million jury verdict in Wayne County in a commercial fraud case."

0:17:44 Andrew: My transactional experience, that means non-litigation drafting documents, includes negotiating and drafting of agreements for business acquisitions, financing, real estate, state, blah, blah. You were about to be disbarred, I would not recommend hiring my law firm. I'm real good at a whole lot of things, but that's not my area of expertise.

0:17:58 Thomas: Geez. You're killing your business. Andrew, you're killing your biz. Yeah. Well,

0:18:06 Andrew: It's not Galligan's area of experience. It is a super weird position to take and to spend an awful lot of money.

0:18:17 Thomas: Whose expertise is it? I mean, it seems, I'm sure there's every, just like there's, you know, every different medical sub practice that you're like, who would get into specifically, anal, uh, something, you know, like, who gets into that? But who gets in to the, like, like, I want to get into law to protect really terrible lawyers from consequences. That's what I am here to do. Who is that person?

0:18:20 Andrew: Donald Campbell, it's his expertise. The answer to that is Donald Campbell who represents Sidney Powell in there.

0:18:43 Thomas: I guess that's just what, maybe that's the answer is that, oh, nobody else is doing it. So I can be the super expensive, like niche lawyer for this thing. Okay.

0:18:50 Andrew: Yeah, yeah. And look, he's good at what he does. Okay. So like I said, her defense is it's my first day. They've said repeatedly throughout the hearing, she worked a total of five hours on the case, was a contract attorney working from home during COVID. In case you're tempted to feel the tiniest bit of empathy or sympathy for Ms. Newman, I'm going to link you to the Un-American Bar's voter suppression attorney database. Emily Newman has appeared in four of these Kraken lawsuits. So, you know, it's my my first day only goes so far when you are a serial offender.

0:19:28 Thomas: So she did an hour and 15 of work on each of them. Is that?

0:19:32 Andrew: No, no, no. She worked five on this one and I don't know how long on the others. Right. Yeah. Good, good, good point. And and did not disclose, was not asked, but but did not disclose that she has been involved in other cases. She also had a six figure job in the Trump administration. So don't you have a whole lot of sympathy for Emily Newman. She knew the kind of people she was getting into bed with when and she decided to sign off on a lawsuit that says that the election was stolen. I think is, if anybody escapes here, it will be Emily Newman, and I don't think she will. I think the court is sufficiently unamused at this lawsuit that they're going to grant the city of Detroit all of the relief that it's requested. I'm going to get to what that is in a minute. But that's the first sort of bucket of arguments. The people who say, yeah, I don't know why I'm here.

0:19:34 Thomas: Oh, okay.

0:20:23 Andrew: The next set of arguments were brought by Lin Wood. And his argument is, I never signed anything. I'm not really in this case. Ask anybody, they will tell you I didn't do anything to help them. Is a weird kind of position for an attorney to take. Even my co-counsel will tell you I'm not helpful. But I will point out that Linwood tried this exact same trick in Delaware when his pro hoc vice was removed in the Carter Page litigation. We talked about this on OA. And the judge's opinion revoking his pro quo vice in footnote one says, Mr. Wood, in his response, that was the show cause order, tells me he is not responsible for appearing in the Wisconsin litigation, as he is listed as counsel for notice.

0:21:14 Andrew: My reading of the docket is that he was one of the counsel of record for the plaintiffs and thus fully responsible. And he is trying the same trick here in Michigan. He says, look, I don't have a little slash S. I never signed any of the pleadings. My name shows up on the signature block. Like I told Sidney Powell she could call me late at night when she's bored and bounce ideas off of me. But I didn't do do this. That argument is not responsive to Rule 11. It's why I read it super slowly. And it says that if you submit anything to the court, the key is not necessarily signing, but signing, filing, submitting, or later advocating it. And Linwood has public statements too numerous to to mention, including telling the same court in Delaware that he was counsel for plaintiffs in the Michigan litigation when he was attempting to establish his bona fides when he applied pro hoc vice, right?

0:22:11 Andrew: So I think the court is going to have no problems seeing through that. But Lin Wood has made a very specific argument to which this court has laid a delightful trap, and I'm going to get to that trap in a minute. I will also point out Linwood led to, I have never ever seen this before, the of a subsequent motion the same day of the hearing that says request for a show cause order to require Linwood to show cause as to why he should not be sanctioned for his conduct, conduct in and after the sanctions motion, right?

0:22:57 Andrew: Which if you've seen that meme with the like, you know, yo dog, I heard you like, you know. And somebody posted the like yo dog I heard you like sanctions in your sanctions. So I committed sanctions violation during the sanction hearing. But true. Robert Davis on behalf of the city of Detroit filed a motion for order to show cause why attorney Lynn Wood should not be held in criminal contempt for for violating Local Rule 83.32D3 and E2, that is, here I'm going to quote from it, during the six-hour hearing, Plaintiff's Counsel Lin Wood was repeatedly disrespectful to the court and defiant of the court's directives during the hearing, which is true, and you would not file a motion just based on him behaving like an asshole during the meeting. Which he did.

0:23:42 Andrew: Then, quote, "Surprising, Mr. Wood's total disrespect of the court's orders and directives continued after the conclusion of yesterday's hearings." So what happened was when the hearing ended, the parties asked if the court was going to make the live stream public, and the court said no, and Local Rule 83.32 e2 uh says, "The recording or broadcasting of judicial proceedings by radio or television or other means is prohibited. Taking photographs, making video or other audio recordings of any type are strictly prohibited." And um immediately after the hearing, Linwood uh went on his, have you heard of Telegram? I don't know, it's some kind of crazy right-wing thing?

0:24:28 Thomas: Oh, Telegram. Yeah, is that another one of the like right-wing version of X app that they had to get off of?

0:24:35 Andrew: I think so, because it says he has an 840,000 followers on Telegram and posted Sidney Powell's closing argument, closing statement, closing deranged ramblings, which, by the way, were, when Sidney Powell made them, we will talk about this, were made to be broadcast out to the kind of lunatics that think Donald Trump is secretly still president, right? So in other words, despite being told by the court not to, Linwood took a portion of the hearing and rebroadcast it out on the internet. That led Detroit to say, should sanction him for that too. It also led Donald Douglas Campbell, Linwood's ostensible attorney, although my favorite moment came came in the hearing. I shared this on Cleanup on All 45, but it's too good not to share here, when the judge said, Mr. Campbell, you represent Lin Wood as well.

0:24:35 Thomas: Okay. Yeah. Yeah. That's what it is, yeah.

0:25:27 Andrew: And Doug Campbell said, well, in as far as anyone can, I guess. Which, you know, also not a great sign. And then Lin Wood said, I might have to get new counsel. So anyway, it led Campbell, who again, has been by by far the most competent lawyer in this parade of nonsense to move the court to release the whole video, right. And to say, look, there's a first amendment, right? We're all interested in this. People were out there with it already. We, we think that you should should release this because then the entire video will be out there and, and everybody can view it and, you know, and sort of make appropriate decisions. The court, again, within 20 minutes or so said, yeah, no, not, not going to do that.

0:26:19 Andrew: And, and the reason that I'm not going going to do that is because you do not need the the un-edited video in order to file your supplemental motions, which is the only thing remaining to do here. There's nothing, uh there's nothing for me to do. Um a pretty clear smackdown. Um The court, in fact, threw the virtual doors to the July 12th proceeding wide open, far wider than could have been accommodated had the hearing been conducted in portion in person. As you guys note in your own motion, more than 13 000 people watched, live viewing the proceedings just as they were were conducted. As to counsel's suggestion that video is needed to prepare a supplement brief, attorneys routinely prepare such briefs following a hearing without video or audio recordings of the proceedings, and often without a transcript. It is these reasons ordered that your emergency motion is denied.

0:27:08 Andrew: And the reason for doing that, the only reason for doing that... I actually predicted that she would release the full audio and visual. Um, The only reason for doing that is to come back and hit Linwood with sanctions for how he conducted himself during and subsequent to the sanctions hearing. Um, but it, It, it is. And then there's this delightful trap, and I, I need to make this as, as clear as possible. So Linwood's argument is I don't have anything to do with this case. We've already said said it doesn't matter, like it's it's probably enough for him to get under Rule 11 in this case because he has appeared in the signature block, he has never discounted, he's represented in other jurisdictions that he represents the plaintiffs, he's subsequently ratified the stuff that he said. But Judge Parker is super smart here, and what she did was, uh, Lynnwood said, uh, repeatedly throughout out the hearing, "Ask anybody, ask all the plaintiff's counsel on this call whether I had anything to do with anything, and they'll tell

0:27:27 Thomas: A Sanctioned sandwich, as you say.

0:28:10 Thomas: Yeah.

0:28:10 Andrew: You no," right? And Sidney Powell, in her closing monologue, said Linwood had nothing to do with this, right. The judge said, "I'm not going to do that. What I am going to do is I'm going to give you the opportunity to file a supplemental brief." It's due within 14 days. So July 26. So about a week from when this, from when you're listening into the show. Here's the thing: Lin Wood will have to, either on his own behalf or through counsel, sign that brief.

So the court will say, right, you are absolutely responsible for the plaintiff's brief, blah, blah. Moreover, when given the opportunity to speak to this court, under your signature, as represented by and through counsel, you submitted ex pleading, uh, which, you know, failed to uh, you distance yourself, which ratified the earlier work that you had done, um, and look, Linwood knows this, right? Like we've talked about, like, Sydney Powell is idiot, um, Linwood had a promising legal career until he went insane, um, that's why he kept saying, "Your Honor, I want you to just do an evidence you're hearing right now and decide." Just talk to the lawyers, because then he could stay silent and he can continue to play this little shell game of, oh, well, you know, I was just available, but I didn't really say anything. I didn't affirm, blah, blah, bla.

And here they're requiring him to put his name to a piece of paper and take a position. And that will be used as the basis of Rule 11 sanctions. I don't want to spend a lot of time on the last argument, which was the only thing left raised on behalf of the primary lawyers involved here, right?

0:29:05 Thomas: Oh,

0:29:51 Andrew: Sidney Powell, Howard Kleinhandler. And the argument is a very technical one involving service of process. And it basically says you have to follow Federal Rule 5 in order to serve the papers under Federal Rule 11. And I've talked about that process before. You've got to give them 21 days. You send it via first class mail and also give them an actual copy via via email. The judge made it very, very clear, said, you're not contesting that you never saw the pleadings, right? You're just contesting the form of the service, the very technical argument. And Campbell said, yes. So they're going to brief that. I feel very confident that city of Detroit's argument is going to attach an affidavit that says, yes, we sent this in accordance with with Rule 5.

0:30:44 Andrew: And the court's going to say, yeah, that's good enough for us. They are not claiming they didn't know what the motion was about. They're just claiming a technical defect. And, you it goes all the way back to OA1. When the court hates you, a technical defect is not a great, you to put all your eggs. So what the sanctions are asking. And I think they're going to get everything, okay? One, they want the taxpayers reimbursed for the expense paid to defend this litigation. Again, remember, right, this is the state of Michigan and the city of Detroit. And the DNC also moved to intervene. But basically, like, taxpayers have funded this litigation.

0:31:21 Andrew: And they said, yeah, we shouldn't have to. This was a nonsense We want every dime we've spent from the beginning of this lawsuit repaid to us. They're going going to get that. Number two, the request was that the lawyer should be punished. And this dovetails with number three, that that punishment should be strong enough to deter future misconduct. In other words, that there be some kind of punitive sanctions on the lawyers above and beyond just defending, you know, just reimbursing the cost of litigation.

0:31:21 Thomas: My god, so What's within the jurisdiction here, because this is still like a lawyer-lawyer thing, right, or is this actual, like, you can have criminal anything on you?

0:31:54 Andrew: Yeah. So these are all civil penalties, but they are within the discretion of the court. So yeah, the court can say, and it is typical, it's not typical in a Rule 11 case, let me contradict my contradiction of myself. I have never been involved in a Rule 11 case in which the prevailing party got all of the costs of all of the litigation. But the caveat is I have ever been involved in a case in which I filed Rule 11 sanctions in response to the complaint, right, in which my position was, you have no business being in court, this is nonsense. That is essentially the argument here, is we shouldn't have had to do any of this. And it strikes me as plausible that they're going to get everything from day one.

0:32:48 Andrew: And then the court will have to say whether it thinks that is a sufficient punitive deterrent against all of these crackin' lawyers to prevent them from continuing to behave this way. And then the fourth request, and we've talked about this, this is an A and a B, that the court, the way Doug Fink put it in closing arguments, was that they never be allowed to appear again in this or any other court, which I love. So refer, refer them to their own state bar associations, and also refer them to the state Supreme Court so that they are, quote, permanently barred from appearing in the Eastern District of Michigan. I think he will get that order. And so, you have a lot of fronts, you know's, multi-front fight here. I feel good, you can hear it in my voice, to watch, you know, my, my profession, which was so debased during the Trump years, uh, to see people fighting back, and it, it's, um, not just funny,

0:33:14 Thomas: Wow. So

0:33:49 Andrew: Makes me proud, that's

0:33:50 Thomas: Can they Just never be lawyers again, is that where we're getting to? Because that's what needs to happen, yeah.

0:33:55 Andrew: What I, that's, that's what happens in an ideal world. It is why Emily Newman is spending tens of thousands of dollars, um, Because she's looking at this going, like, holy crap, like, I was just right, because she truly is, is a junior partner on all of this.

0:34:03 Thomas: I Bet, Yeah. Yeah.

0:34:11 Andrew: And Emily Newman is not Sidney Powell, right? Like she does not have a career on Fox News ahead of her. She has a career of being disbarred ahead of her. And, out, you know, when you lie down with dogs, right. So

0:34:15 Thomas: Wow. Yeah. Yeah, well, we're all that time, so, uh, we'll have to leave the Cosby thing for next week. You're trying to kill me with this editing. All right, let's Do The Cosby Thing All

0:34:31 Andrew: I'm trying to kill you with this edit. We got to do it. We've to at least do some of it.

0:34:40 Thomas: This show is brought to you by WordTune. This is a super cool thing I can't wait to tell you about. Folks, you know how Andrew will say, "I'll put this in the show notes" from time to time? What he means by that is, Thomas will put this in the show's notes. I'm the person who writes the show notes, but I hate writing. I'm not naturally a writer. Maybe you're like me. Maybe you are not naturally just a gifted writer. Maybe you need a little help from time to time, and this could apply to anyone. I mean, maybe you have to write an email, especially we're all working from home these days. You got to do a lot of emailing, maybe more than ever. Maybe meeting recaps, maybe you're writing a blog or a resume. These can be some tough, high-pressure situations where you want to make sure you have your wording just right. Well, imagine how much easier that would be if you had an expert on call to take a look at drafts whenever you needed them and to help you out.

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0:36:58 Andrew: Hey everybody, this is an ad for Blue Blocks. So, y'all know how much I love reading 800-page Supreme Court decisions and breaking them down for you on the show, but let's be realistic, what that means is I'm sitting at my computer for sometimes 16 to 20 hours a day. And, like, I get eye strain, I got headaches, it sucks. So you may have seen blue light glasses. These can be prescription if you're like me and you need prescription glasses. Or they can be clear lenses. Right. And basically what it does is filters out the blue light. Now, there are a bunch of knockoff, super cheap products. I got to tell you, I really, really I wear I use I like the blue blocks, blue light computer glasses.

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0:39:11 Thomas: At long last, what is this Cosby dish, this Cosbi, uh, intel that you have? I've been dying To Hear, yeah.

0:39:18 Andrew: Yep. Yep. Two, two things. Okay. The first, um, and this is listener Natalie on Twitter, uh, asked this via question and it's an excellent question. And it is, I um. Think a really, really important aspect of the ongoing argument over the Cosby decision, which by the way, like that was our episode 504. I think it was well-received. Think, you know, respected kind of where we came up, um, you know, like there was some disagreement over, like, I think it's okay broadly to want to, you know, extend your fifth amendment right against self incrimination. And so asking the question of reasonable reliance is sufficient. Um, I don't agree with that argument, but, but I can understand it and I, and I can see a really good good faith basis for making that point. Remember that the second point upon which the Pennsylvania Supreme Court had before it, and upon which The Only Judge, Judge Saylor, in dissent on the main, on the press release, said, oh, but by the way, I would reverse on the question of introducing the victim testimony from prior cases.

0:39:42 Thomas: Wait, Who Disagreed With us, Why, Huh?

0:40:35 Andrew: Kind of talked about that as an aspect of Pennsylvania law. Natalie points out correctly that Rule 413 of the Federal Rules of Evidence would have decisively answered this question. So in other words, Cosby had been prosecuted in federal court instead of state court, there is no question that the prior victim testimony would have come in. And I'm to read that rule in a minute. But wanted to kind of side by, in fact, why don't I read it now, right? So in 1994, the federal rules of evidence were amended to say 413A permitted uses. And it says this, in any criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault.

0:41:25 Andrew: The evidence may be considered on any matter to which it is relevant. Okay? So that whole balancing unduly prejudicial stuff that we talked about, 403, 404, would not have been an issue if this were in federal court, right? The testimony of the prior victims would have been admitted, period. Take that argument off the table. Now you might ask, how do you get into federal court for sex crimes, right, and the answer is it's pretty narrow, right. There are a handful of statutory offenses, right? 18 U.S.C. 2241, if it is within the maritime or territorial jurisdiction of the United States, right, that is the District of Columbia, right. Or, right other territories or in a federal prison. And obviously prison rape is its own subject.

0:42:07 Thomas: Yeah. Right. Yeah.

0:42:17 Andrew: Yeah.

0:42:17 Thomas: Gotcha.

0:42:17 Andrew: So then you get into federal court. You get into a federal court under 18 U.S.C. 2251. If you cross state lines to exploit a minor, that's the Jeffrey Epstein case, on which Acosta, the Trump-appointed prosecutor, declined indict. Or you get in under 18 U.S.C. 2252A, which is, and I recognize the discussion over the archaicness of this term, but it's how it's referred to in the federal statutes, which are the child pornography statutes. And I want to bracket and say that not, I think the arguments that it should not be referred to as child pornography, which suggests agency on the behalf of victims, I agree with 100%. That's what they're called on the statute.

0:43:02 Andrew: So it looks like, it's really, really hard for me to to figure out, um, how many sex crimes wind up being, uh, federal as opposed to state, it looks like a... about 20%, right? So about four to one or five to one... kind of hard to figure out. So in other words, most of your sex crimes are state crimes. The... the over... the overwhelming supermajority. But, um.. if your state follows the federal rules of evidence, 413, then Cosby-type evidence of any other sexual assault is relevant, the court may admit that evidence in your subsequent criminal prosecution. With Okay. That as background, now here's the deep dive archaeological findings.

0:43:47 Thomas: What is the thing that we're trying to explain? Like, what is the, because that episode seemed, uh, complete to, to me, seem to make sense. What's the, what's the kind of the missing link that, that all this is about?

0:43:58 Andrew: Well, I wanted to nail down the victim testimony stuff, stuff, which we just did with 413. But the other thing that you asked me and I couldn't answer was why did Bill Cosby sit for four depositions, Right? And to what extent, if we're talking about, you know, reliance, right, to what extend did that show up in his depositions? And I think I finally figured it out. And it is nothing like what anybody reporting on this story is talking about, okay.

0:44:09 Thomas: Hmm.

0:44:27 Thomas: Interesting.

0:44:28 Andrew: I cannot find that that Cosby sat for four depositions. I can find that he had two full days worth of deposition, so they may be, that may be four volumes, right, a morning, an evening, morning and evening. I, back to the full docket, I read every pleading in the Constant civil suit. And here's what I was able to figure out. OK, on November 21st of 2005, Constant, that, that's the plaintiff. And again, we're naming her because she has publicly named herself in a civil suit. She filed a motion for sanctions based on Bill Cosby and his lawyer's conduct during those depositions.

0:45:15 Andrew: That's a pretty serious charge. Okay. This is docket number 48 and it is linked on the opening arguments page. Okay? That motion is extensive. And when I say extensive, I mean 50 plus pages of quotations from the Various deposition, from those two depositions. Um, spoiler alert, this motion for sanctions was never adjudicated, uh, by the court, and the reason that it was never adjudicated is because the day before the hearing was set, right, to be heard on this particular motion, was when the case was settled.

0:45:36 Thomas: Jeez.

0:46:00 Thomas: So is this part of the bargaining and settling stuff?

0:46:03 Andrew: Is speculation on my part, but as somebody who's been practicing law for a quarter of a century, when you see there's about to be a hearing and the parties have settled all claims against each other with finality the day before that hearing is scheduled to begin, that tells, and you, that one party really, really, really, really did not want to go to that hearing.

0:46:31 Thomas: Did that prevent us from knowing some stuff like that? Did that keep some of this information private?

0:46:38 Andrew: And so great question. So this pleading was filed under seal because the depositions were taken under seal. And court then immediately was faced with a motion to intervene. By the Associated Press that said, hey, was a 65-page motion for sanctions and you've sealed that. Like to see that. We think that there is probably a public interest in knowing what's going on in that sanctions motion. And the court at that time said, yeah, we're going to continue to keep this sealed. We are holding on abeyance the AP's motion to intervene and their motion to unseal.

0:47:25 Andrew: And then there was about six months worth of debate back and forth whether that document and other documents that referred to it would be unsealed. Um, eventually, right, that was, uh, denied, but denied without prejudice, right? So in other words, saying, "You know what, I'm not going to unseal this at this time, but I'm going to leave open the opportunity for you to come back and move to unsell at a later point in time." By the way, at the same time that the Associated Press is arguing, hey, we want to see this document, Bill Cosby's lawyer's response to this document is as bad a response as anything I have seen, up until the sanctions hearings we just talked about in the A segment, right?

Never responded. So in other words, this was a, as I told you, this, that 65-page motion for sanctions included 50 pages of objections by Bill Cosby's counsel. And when I say speaking objections, what I mean is that, we've talked about this before, but during a deposition, you do not have the judge in the room. You just have the parties, their lawyers, and a court reporter, and you can ask hearsay in a deposition, right? I can say, "Okay, Thomas, like, uh, what did, uh, Jane tell you on X and Y date?" And if your

0:48:54 Thomas: Objection.

0:48:54 Andrew: Lawyer, yeah, Your lawyer says objection, hearsay. I say fine, uh, make that argument at court, Mr. Smith, you may answer.

0:48:54 Thomas: Oh, objection. I don't want to answer.

0:49:02 Andrew: And So, what lawyers... and, and really, there are, broadly speaking, only two grounds upon which you can object as a defense counsel during a deposition. You can object to the form of the question, that is, it will not be clear on the record what this witness's answer means because you've asked a compound question. I'll give you a great example that bad lawyers will say, "Mr. Smith, is it true? Have you ever been arrested? It, Have you ever been subject to any disciplinary proceeding in any court, arbitration, or other proceeding against you?" Right? Well, you could see immediately that the other side might say objection as to form, because, right, I might go back and cherry pick and go, asked Mr. Smith, has he ever been arrested, and then he said yes, right. And I'd asked a question like that, look, we all do that, right? I'll sometimes joke on the record and be like, yeah, to a valid objection to form, I'll be like yeah, you're right, that was a bad question. Mr. Smith, have you ever been arrested?

0:49:53 Thomas: Yeah. Yeah, let Let me try again. Does your mom know you like Nickelback? It's about separating it out, not getting that combined answer. Okay. They

0:50:09 Andrew: Yeah. Yeah, I'll Ask them seriatim. Or. Those are all the reasons why you object as to form. Objecting for something that is beyond the scope I'm not going to go through the full list of it. But again, it basically says, this witness is here to testify broadly about X. You can ask him about that, but don't ask irrelevant stuff. And the standard is relevance is likely to lead to the discovery of potentially admissible evidence, or to make a potentially relevant fact more or less likely. So I have very, very broad latitude for what I can ask. A speaking objection, when instead of saying objection is to form or objection beyond the scope, defense counsel will say, "Objection, he doesn't have to answer that because," and will try and coach the witness in his explanation.

0:51:03 Andrew: Nation, right? So, going to read a little bit of an example here. This was the first time, far as I can tell, that the questions about quaaludes came up, right. So plaintiff's counsel, representing Constance, says, "Question: did you ever obtain quaalades again from any, any other source after the ones you had been given in the prescription that were no longer available to you?" And then Cosby's counsel, this is O'Connor: "What time frame? Don't answer the question." So Troiani tries again: "Have you ever gotten any prescriptions from any other doctor which drugs would have a similar effect to Quaaludes?" O'CONNOR: "During what time frame," Troiani again. Yeah. The time frame we have here is from 1976 when we have the first Jane Doe we've been discussing through the year 2004. And then O'Connell. I think that's incorrect.

The only Jane Doe that talks about quaaludes is T. If you have other Jane Does, Mr. Rani, I'm not talking about quaaloids, Mr O'Connor. If there are other Jane Does that talk about any other drugs, I will allow that, but there is none. And you're suggesting there is from 76 to 2005. And then Constance lawyer says, Mr o'Conner, you're deliberately disrupting this deposition. You have made that position clear. I believe that you're wrong. We do not agree that the drug that was given to our client was Benadryl. We have the right to explore, especially now that your client has admitted at illegally obtaining another drug, which could have a similar effect. We have the right to explore whether or not he has done that, if that is a pattern in his life. And then I'm not going to continue, but it is, you know, here's what you have a right to explorer.

0:51:39 Thomas: Said ever.

0:52:27 Andrew: You have a Right to Explore what he gave your client. And she says, you've made that position clear, and now let's move on. And I will tell you when you read this, it is textbook, right? Coaching the witness, speaking objections. And it's 50 pages of, and then you will see, right, Cosby is a, quote, good witness in that when he is coached to give a particular answer, he will then give that answer, whether it makes sense to him or not, right? That's this document. Cosby's lawyers never responded to the substance of it. They moved to strike to say that the allegations were scurrilous. Constance Lawyer's response back to that was, again, kind of like the Lin Wood. That's why he's great lead-in. The response was, your motion to strike is full of Rule 11 violations and supports the reasons we want sanctions against you. I'm going to upload that to the site and include it in the show notes as well. It is the Cosby response on motion for sanctions.

0:52:32 Thomas: Yeah. Yeah, hold

0:53:25 Andrew: And it's hilarious. Hilarious, it really is, like, yeah, all the reasons why you should be sanctioned are the reasons why you're not responding to our motion for sanctions, um, that's where we are as of December 2005, and so the court untangles the motion to seal and then then sets a hearing and says, hey, we're going to do is hold a hearing that will begin on the 9th, 8:30 a.m., that order was entered on June 6th. June the ninth, 9th, the next entry in the docket is order that plaintiff's motion for sanctions is denied as moot, order that defendant's motion to strike is denied is moot.

0:54:11 Andrew: Plaintiff's motion to consolidate is denied his moot et cetera. And the reason why that's in there is because over that weekend, right? That's a Friday to a Monday is when the parties settled the a lawsuit. So that happens on June 9th, 2006. There's some additional stuff. The case is dismissed with prejudice. There is response another to a motion to compel by the National Inquirer. But this is forgotten for 10 years. Yeah, it just sits there and nothing happens. And then the court, kind of looking at its own docket, 10 years later, January 12, 2015, sends out a notice.

0:54:58 Andrew: And I'm going to include this notice in the show notes. It's uploaded on our website. And the notice says, hey, pursuant to our local rules of civil procedure, Rule 5.1.5, documents filed under seal have a two-year period in which they remain under seal unless there's a reason not to, right? Like it's sunshine. People deserve to know what's going on in court. So, in accordance with Rule 5.15c, this is to notify you that these documents are going to be unsealed unless you advise us in writing within 60 days that you object and tell us why, right? And the documents that were set to be unsealed included the sanctions motion. And all of a sudden, the Associated Press was like, oh, that's right.

0:55:47 Andrew: We wanted to see those, didn't we? Um, and so they filed yet another brief, uh, they renewed its request, and this time it was granted, and the court said, yep, we're going to let you take a look at these documents that were filed under seal, um, super straightforward, right, the the ruling I'm going to read from it says, now nearly 10 years later the Associated Press has requested that the documents be unsealed and made available to the public. Defendant, Bill Cosby, opposes the request. Plaintiff has not asserted objections to the request, that's smart. The issue before the court is whether the defendant has shown good cause under Federal Rule of Procedure 26C to keep the documents under seal. And without going through that, didn't, were not good reasons to keep it under seal.

0:56:32 Andrew: And so that sanctions motion is what came out. The quotations from it regarding the extensive use of Quaaludes was what caused all of the women to come out of the woodwork against Bill Cosby in 2016. So all of the stories that are saying, like, we have, you know, the full depositions? No, you don't. I've been everywhere. You cannot get those depositions. But what you can get is 50 pages of quotations, which are real, real bad.

0:57:05 Thomas: On. So you're saying 2015, because the Hannibal Burris thing was in 2014, I think. So, I mean, I feel like that also could very easily.

0:57:06 Andrew: Yeah, I do not mean to suggest that there is linear causation. But I mean, at this point, this was when now the Associated Press had this sanctions motion in their hands and was able to go back and reconstruct and go, oh, they proved an ongoing pattern that there were lots of these women. And by the way, Cosby was as unhelpful as anybody can get as a defendant in the deposition. So I thought that was really important in contrast to the way in which he was portrayed in the Pennsylvania Supreme Court opinion as, oh, well, he had the letter, so he sat down and was truly helpful and cooperative. No, he definitely was not. He was obfuscatory to the point of necessitating the filing of a 65-page motion for sanctions, and his lawyers took that so seriously that they made him settle the lawsuit so as to not go to that hearing.

0:57:18 Thomas: Okay, Okay.

0:58:19 Andrew: The

0:58:20 Thomas: So I guess for everybody out there, this is a complex lawyer thingy that you're describing. I'm having a hard time grappling with it. I guess I just, let me ask the kind of the terminal question. You've kind of described some, for a couple of weeks now, something that really illuminates what's going on. If someone wants to share this show and they want to say, here's this revelation about the Cosby thing, what is the summary of that? What do you think this really illuminate that people aren't getting elsewhere?

0:58:51 Andrew: Takeaway is, when I read the Pennsylvania Supreme Court opinion, it led me to believe that thousands of pages of Cosby's deposition transcripts were released to the public and that that provided a roadmap to all of the other victims, which then led to the second trial, right?

0:59:12 Thomas: Right. Oh, and crucially, it's that then the argument was, well, these depositions were only done under the, you know, mindset that he was cooperating for another thingy, right? Is that what they're trying to say? Okay.

0:59:25 Andrew: Exactly right. On reliance on the press release that said he would not be prosecuted. The reality is that what was released was about 50 pages of quotations from his depositions. And far from being a roadmap, they were the exact opposite. They were designed, yeah, yeah.

0:59:32 Thomas: Okay.

0:59:43 Thomas: Well, it sounds like they're just his lawyer. Did he even say anything? It sounds like his lawyer just saying, ah, objection. He doesn't have to answer.

0:59:49 Andrew: Well, there are some quotes of what Cosby said as well, that's exactly right.

0:59:52 Thomas: Okay. But it's specifically designed to show that it wasn't helpful. Okay, so,

0:59:58 Andrew: So what that means is there was a tremendous amount of independent investigative work that was done once this motion for sanctions became public, right? That's what I mean to say, right? In addition to, as you point out, uh, some other victims had come out as early as 2014, the idea that you can draw a direct line, A to B to C, is, I think, further refuted by what actually got released, yes.

0:59:59 Thomas: Hmm. Yeah.

1:00:28 Thomas: So this makes it even worse. Okay, great, cool, that's what we're here to do, everybody, make this awful Cosby story get even worse. How was he, how did this decision happen, this is so egregious, Andrew, why, why in the world did this happen, did, we already did an episode on it. Oh gosh. This episode is brought to you by Hello Fresh, folks. You know what Hello Fresh is, but if you didn't, you're in for a treat. I keep talking about it, and it's because I still really love it for all the same reasons. Let me tell you why. With Hello Fresh you get fresh, pre-measured ingredients and mouth-watering seasonal recipes delivered right to your door. Skip those trips to the grocery store and count on Hello Fresh to make home cooking easy, fun, and affordable, and that's why it's America's number one meal kit. It. Seriously, I don't know what we do without HelloFresh. It is so much easier to have someone send you the full ingredients, everything you need in the quantities you need it each week for delicious meals. And it gives you that variability.

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1:02:58 Clip: And thank you, Let's go!

1:03:00 Thomas: Now it's time to thank our Hall of Famers, our all-time greats, at patreon.com/law, and I'll start us off. Thank you! Too! Now here's something we hope you'll really like: a hotel of crime. Comedian Aaron Trahan, aka Game Jumper, HyperX. KellyWovit.com. I make stuff on a loom with my hands. Come buy it. Choo-choo. Steam engines may not technically be better than diesel, but they are much more fun to look at. That thing in the attic. Market report. Hiking equipment was trailing.

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Tell Morgan, Gattam's son, Bloom, Zach Ray, Pizza School the Corgi says, hi, Thomas, yes, this is my real name, it doesn't make sense to me either, follow me on Instagram anyway. Pizza School the Corgi is as confused about their own name as I am. Live baseball scorecards.com. Legal Eagle is so handsome.

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All right, that's the official move, everybody, knight to C2, C3, sorry for making you all try to say my friend's cat's name, I was proving to her that I'm a patron. Land, this enters tapped, tapped, tap for black or red, one BR, until end of turn this becomes a two-two elemental creature with X, this gains

1:06:12 Thomas: Plus X plus zero until end-of-turn uh, Lava Claw Reaches, I think is the name of that card, Lava Claw Riches, I believe, another one of those man lands those are, those are good ones. Adam Borchoff, legal services for this podcast are provided by the law offices of Smith and Coin. Brian K, I like my pork streak paired with at Casagria and at Emperor's Brewery beer. 75% of Talair Counties DA's have less than two years experience and they're doing felonies, some are only provisionally licensed. Starting to question Legal Eagle seeing as he agrees with the Pennsylvania Supreme Court about the cause, about Cosby being tricked, I know you clarified that last time but uh yeah, more on that maybe later. Lee Sharp, GDT says, said they released the a Kraken, but it turns out, they, they're Kraken lacking. Yep, Thomas.

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1:09:26 Thomas: And with the galaxy, Christopher Brown, Philly live show 2022, I'll bring the scotch and cheesesteaks, who's bringing Gritty, stirring Wildwood, oh my god, it just hit me, sorry, I haven't, seven days, oh, it is Stirring Wild, but I knew that, gosh, I couldn't think of it, yeah, nice job, Stirring Wild, with that's the one, so Lawful Copter says, Andrew and Thomas, from the bottom of my heart, thank you for everything you do, objection, strangling Uncle Frank, I'm going to allow it, Mr. OA live show in Sydney, Australia, please, I won't be vaccinated till October at the earliest, thanks government, your turn Andrew.

1:09:56 Andrew: Thank you to Odin's Bar Exam Pro Tip, don't have a baby five months before the exam, and that, that seems like a really good, uh, pro tip there. Robert Em. Judge, I didn't get served with proper papers, and Spider Is Too An Expert, and I want my juice in the yellow cup, Lou, shout out to 5D Chess with Multi-Verse Time Travel, it's a great game on Steam, we can all hope that Joe Mansion is a fan, our council advises that nobody gets to put the Eli in Feline, another Minneapolitan waiting for our live show in Minneapolis, not quite, but uh, good enough, close enough for non-lawyer work, Marble Colorado live live show, is that really a city, Marble Colorado, Nicomo Casca, famed soldier of fortune at your service, Polly Hernandez, Christ, seven years of college down the drain, Medicon Seven has a pot for pins and a pot for beans.

1:10:01 Thomas: Yeah

1:10:48 Andrew: Emily Rainbow Spence, the best cardboard crack dealer in the Maritimes, the Deck Box Halifax.com, Jason Copas, I was in Towson last month and I wanted to visit Andrew's office but didn't want to make it weird, well yeah, you know, you have business, feel free to come by, uh, I'm not there that often though, Strict Mutiny, this profile name is hilarious in the context of some other podcast, oh god, the court has become sovereign citizen crazy, strong opinions with no legal basis or accurate citation, Nate Drex, sanctions are a kraken, take burger restaurant naming advice from a podcast, my my fully stacked basement bar is your fully stocked basement bar, for a Philly live show platinum event, you pick what's on tap, that's a great offer.

1:11:34 Andrew: Jeff Gelbach, Jennifer Kratch, accepting suggestions for verbally writing down questions mid-month for Q&A using HeyGorgle. No idea what that means, but that's great. CivilPoliticsRadio.com, Fridays at 7 p.m. Eastern on Valley Free Radio, laughing my ass off because Thomas knows more about the law than a coin does. John Bilderbach, GiveToModestNeeds.org, GiveToDemodestNeeds.org. My Caprax and he died. Interesting that the Texas GOP thinks using procedural tactics to block votes is wrong. Not that Chris Wallace. Philip Kizer, Andrea the Arbitrarian Capricious. COVID showed me I am the kind of guy that wants a little prick. Don't miss this fall's zany new comedy, Uncle Frank and Aunt Tifa. That's good. Abseon, dude. Payne Strumpet, sorry for making you use that last one for so long. It was dumb anyway. Jonathan, Lord Kinbote, no, your honor, I am not a cat, nor am I a potted plant, but I am a karaoke legend, if that helps.

1:11:44 Thomas: Well

1:12:33 Andrew: Uncle Frank is just pissed because Auntie Pha left him. What are the odds that two people would independently? Milo Mead Song, wishes all Stephen Breyers a happy retire now. Alfred Wallace, join your labor union. Together we bargain alone, we beg. Parsh Lives Matter, Navani and Raboniel are two fabulous lesbians. I don't want to believe, I want to know. I feel targeted because my fellow patron keeps rejecting my Patreon names out of hand. False. Anonymous. WordOrigins.org, your source for word and phrase origins. My witty names aren't original and my original names aren'T witty.

A series of bar suspensions, Each more suspendy than the last R.I.P. Notorious RBG Nerdgnostic sells art on Society6 They said I could be anything So I became two fabulous lesbians Derek, I don't pray But when I do, it's for evangelicals to get vaccinated Our kitchen is your kitchen For an eventual Seattle live show platinum dinner The offer stands Big easy blasphemy It's kinda nice having a competent federal government again SummitShuffleboard.com A string of unpronounceable characters RondaTheDork.com If Opening Arguments is joining the MSW network, does that make Allison Andrews boss? Mullica Chandler, they said it could be anything, so I became Two Princes Who Adore You, which apparently is some grunge song reference. Anyway. Soggy Pants. The 1929 Apportionment Act is unconstitutional, preventing states getting reps relative to population. Ape Priory.

1:13:57 Andrew: Adopt a homeless pet and oppose declawing and ear docking, date jury belly at Packy's at last, baby, Heather L, Matthew Vernon, Adam Costa, to Jeremiah's fancy microwave emporium in an alley, Jay Alden, Walt, Danny Rosari, Eli Bosnick, why does Andrew drink so much scotch, mostly because of, just throw it on the stoop and see if the cat licks it up, David in Brooklyn, Sam Donnell, Mitchell, I'm sympathetic to this patron name, true story, apparently fraud doesn't vitiate sanctions in federal court, I agree with that a hundred percent, Natasha Crunch Rap wants you to support the Justice Policy Institute, Sam Buck, and of course our all-time great, he who shall never be dethroned, Conrad Michaels.

1:14:37 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:14:43 Thomas: Now it's time for T3BE. I, the only thing that could cap off this uh depressing Cosby episode is to see if I pork my streak or not. Oh.

1:14:51 Andrew: All right, this is a question within an assumption of diversity. So truck driver from State A, bus driver from State B, were involved in the collision in State B that injured the truck driver. The truck driver filed a federal diversity action in State B based on negligence, seeking a hundred thousand dollars in damages. Um, parenthetically, you seemed to question at first whether this would be diversity, this is textbook diversity, right? As You, yeah. As you point out

1:15:16 Thomas: It is Okay, so it doesn't matter that it happened in State B.

1:15:18 Andrew: No Because think about it, this is the original, like, you don't want to get homered, right, like State A is visiting state B, truck driver from State A is visiting State B, hit somebody, you don't want him to have to go to the local courts and have to deal with, oh yeah, Judge Rufus, everybody knows him. You want him to be able to get into federal court.

1:15:26 Thomas: Right uh I guess okay I guess What threw me off is the whole like, yeah, but also you're, you're obeying the traffic laws of State B, isn't that relevant? I don't know

1:15:40 Andrew: Yeah, but the question is, who do you want to adjudicate those laws? Do you want some, yep.

1:15:50 Thomas: Okay so this is a diversity thing I got threw off by, I got thrown off by like where it happened, but anyway, I don't think that totally mattered

1:15:58 Andrew: Well, Yeah, what you're going after is a really narrow exception, it's got and to be a case where the defendant is in the same jurisdiction and then tries to remove to federal court. You can then remand it back to state court because the plaintiff is master of her complaint. Plaintiff can bring in state or federal court as they see fit. The defendant can remove on diversity grounds, but not if you've been sued in state court for which that is your were home state, because again, that gets rid of the Homer influence, right? So I think maybe, because we've talked about that precise situation in respect to one of the other questions. So I think maybe you might've been thinking of that narrow exception that gets around federal diversity jurisdiction, but it doesn't matter because you weren't distracted by, you were like, okay, not sure this is jurisdiction, But the question assumes that there's jurisdiction.

1:16:02 Thomas: Yeah yeah doesn't matter yeah yeah okay

1:16:48 Andrew: So then it is what law of negligence should the court apply? You eliminated, B, the court should apply the negligence law of state A, the truck driver's state of citizenship. That's a great elimination.

1:17:00 Thomas: I might have gotten lucky, but uh yeah, I mean, we're in court, we're in federal court in State B and it happened in State Be, that was my reasoning, but it sounds like, does that capture at all, or is there something else that I should have been

1:17:06 Andrew: Yeah. Well, we're about to get there.

1:17:13 Thomas: Okay okay, no, I meant just for eliminating B but that's

1:17:16 Andrew: For eliminating B, yeah, that's plenty to eliminate B, right? The fact that it was his state of citizenship, that doesn't mean anything, right, Okay. You also eliminated C, the court should consider the negligence law of both State A and State B and apply the law that the court believes most appropriately governs negligence in this action. You said that seems like an attractive distractor and I'm going to get rid of it, I will explain in a minute, but that's also a good elimination.

1:17:16 Thomas: Okay yeah okay okay oh that was a little out on a limb on that

1:17:42 Andrew: So yeah. So it comes down to A or D. The coin picked A, the courts should apply the federal common law of negligence. You picked D, the court should determine which state's negligence law a state court in state B would apply and then apply that law in this action. It may help you to know there is no federal common law of negligence, so A cannot be correct. Remember, federal courts are courts of limited jurisdiction.

1:18:12 Andrew: Don't write in, right? There is an area of federal common law where Congress gives the courts power to develop substantive law for things like antitrust, okay? So there is this really narrow area of general common law, but by and large, and the bar will, we'll test those exceptions. But by and large, there's no such thing as federal common law, and there certainly is no substantive federal commonlaw for things like negligence, because federal courts are not courts of general jurisdiction. They're courts of limited jurisdiction. They can only take the cases that are properly before them. They can't build a body of common law. So Coyne is 100% wrong. Why were you correct? Correct? You were correct because the state looks to the choice of law rules of the state in which it sits in order to determine which law to choose.

1:18:03 Thomas: Oh yeah well okay what happens in DC, yeah

1:19:10 Andrew: Now, as you pointed out, the state will absolutely choose state B's laws here because the accident occurred there, right? And that is going to be be the most important decision. But the way to think about this is, suppose both parties were from State B, okay? And suppose they both get involved, they're going to the same vacation site in State A, right? So both parties are from West Virginia. They're driving through Maryland to get to the Eastern Shore for a beach vacation. Both of them have an accident in Maryland.

Maryland, then when they get home, the plaintiff living in West Virginia decides to sue the defendant living in West Virginia, and because there would be no diversity there, they would be in state court in West Virginia, and so as we've talked about before, West Virginia, that West Virginia state court would have to figure out which state's law to apply, and West virgin ia would then say, oh, okay, given our choice of law rules, which says, first, you pick the state that has the most, the state law that has themost substantive connection to the incidents giving rise to the lawsuit. So accident occurred in Maryland, we're going to look to Maryland law, and you would have a West Virginia state court applying Maryland state law,

1:19:16 Thomas: Yeah right right

1:20:33 Andrew: Right, to two West Virginia citizens.

1:20:33 Thomas: So This happens even just in state court, ignoring the federal thingy okay interesting

1:20:38 Andrew: Yep, that's exactly right. And those are called choice of law rules. And it means exactly what it says. How does a state choose which law to apply? Because it can apply laws that are not its own. A lot of people are confused by that concept, and we've talked about that before. But yeah, state can apply out-of-state laws all the time. So a federal court does the same thing. A federal court sitting in West Virginia would say, what would a West Virginia state court do to pick the law here, and I'm going to do whatever that court would do. Does that make sense?

1:20:42 Thomas: Hmm yeah yeah Yeah, we have.

1:21:06 Thomas: Yeah. Yeah, no, think that's what I was getting at. I think it sounds like another one where I got it right, but I wouldn't say I understood all of it. I think that probably A is not the second best answer. It sounds like if you're a lawyer, you'd just be like, well, A is stupid. You're dummy, coin, for picking that. What would you think would be like the second-best answer? Is it maybe just C?

1:21:31 Andrew: I think C is probably the second best answer, which you called out as an attractive distractor. So question would be, so C says that the court makes its own determination as to choice of law. And D says it applies the state choice of law rules.

1:21:35 Thomas: Yeah. Fair enough. I.

1:21:48 Andrew: And in the absence of anything to the contrary, the answer is you apply the state choose of law rules, the broader principle is that a federal court sitting in diversity applies the procedural rules of the state court in which it resides.

1:21:48 Thomas: Oh, I nailed it. Probably didn't. You know, I gave the coin a bad check, but the coin could have just agreed with me, you know, like why it always had that option.

1:22:09 Andrew: Yeah, I think it's all on the coin. Yeah.

1:22:11 Thomas: We're going to have to really talk about some metaphysics to discuss how it had that auction, but you know it did apparently. We've got to who our big winner is this week

1:22:12 Andrew: Absolutely. All right, Thomas, this week's winner is Matthew Cravat on Twitter, who writes, Today's T3BE answer D must be right because it feels like it's from Labyrinth when Sarah faces the truth lie door guards. Ask the state which law it would apply and apply that. Wait a minute. Is that right? I don't know. I never understood it. Fantastic reference to Labyrinth. David Bowie at his best question mark. Anyway, you got it right. You threw in an early 80s reference. You know how to pander to us. Everyone give Matthew a follow. That is at M-A-T-T-H-E-W-K-R-E-V-A-T at Matthew Cravat on Twitter. And congratulations, Matthew, for being this week's winner.

1:23:04 Thomas: Thanks so much for listening and we'll see you on Friday.

1:23:07 Andrew: Until then

1:23:08 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:23:41 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.