OA518: Terpsichore Tries Her Hand at Frivolous Lawsuits

Transcript

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

0:01:18 Thomas: Hello and welcome to Opening Arguments. This is episode 518. I'm Thomas. That's Andrew. How are doing, sir?

0:01:24 Andrew: I am fantastic, Thomas. How are you?

0:01:26 Thomas: I've been wafting the smoke over to you as hard as I can. I've got a paper fan. How many smoke jokes can a person make? We're covered in it. I took a picture of the moon last night. It was a tiny little orange.

0:01:40 Andrew: There was smoke on the moon?

0:01:42 Thomas: No, it was a little orange orange dot is all you could see of the moon. Yeah, there probably is smoke on the moon with the, yeah, it's, we just got to rake our leaves over here. I don't know. Anyway, got to break our forest. I Uh, just See Afghanistan question mark. I'm not going to touch that. What is, what is that about?

0:01:42 Andrew: Oh, oh, okay. Yeah, I, you know, I mean, I think we ought to acknowledge that, you know, the the on a rapid response Friday that the news has been focused on the withdrawal from Afghanistan. We talked about that a little bit on cleanup on all 45 where I get into the more political stuff. There really isn't, you know, any legal documents that, you know, we can kind of look and break down and give the O.A. treatment to.

0:02:13 Thomas: Yeah. Yeah. And key to how Andrew functions is we feed documents into his document port, and then he outputs good podcasting. And with no documents, what's the man to do? My main thoughts on Afghanistan is I don't have any idea what the right answer ever was or is. I mean there's a couple things that I'm like, yeah, that was the wrong answer for sure.

0:02:35 Andrew: Yes. Yeah yeah no Yeah, right.

0:02:51 Thomas: But man, it's probably just an impossible situation and I'm glad we're out finally, but it's not good. It's good that people are clinging to planes and women won't be able to go to school anymore. Like I'm not happy about that.

0:03:03 Andrew: No, I I share all of that. And I like the way you've highlighted it, because, you know, I well, I don't know if you were at the time. I mean, this was during your conservative phase. But I mean, mean, I was strongly against the wars in Iraq and Afghanistan, um, but that doesn't help, right? Like, you know, I I think you know

0:03:13 Thomas: Oh Yeah. 90% of the country was for the war in Iraq, but the 10% is everybody you talk to somehow.

0:03:26 Andrew: Everyone now, yeah, that's right, but I was, I mean, I have the receipts to Howard Dean's 2004 presidential campaign to prove it, uh, but it still doesn't answer the question, right? Like, if, if Andrew Torrez were president in 2021, right, if you know, insert any, any person you like there, you

0:03:28 Thomas: Yeah. Yeah, no, for sure. Yeah yeah. Not to be handed the war in Afghanistan. It's like, no, sorry, you have to. It could be. I remember that this was the war that Obama ran on as like, this is the actual just war, not that Iraq BS. The war in Afghanistan is where we really should be. Like that was part of that 2008 campaign.

0:03:47 Andrew: Right. Right, right. Yeah.

0:04:02 Andrew: I think that the the criticisms, the McCain criticisms about Obama's lack of experience were and have in history been proven to be valid. They just weren't good reasons to vote for McCain in 2008. So, you Know, I mean, you We're capable of recognizing.

0:04:16 Thomas: Yeah. I'm sure McCain would have done a much. No, no.

0:04:22 Andrew: Recognizing. Oh, the guy, the guy who sang bomb around to the tune of the Barbara Ann by by the Beach Boys. Yeah, that that would have gone great. I'm sure so. Anyway, no, segment. But we do have a lot of listeners who are either active duty or former military. So, you it it I have really enjoyed you folks sharing your experiences and knowledge in our in the Facebook community and with us. And so I would just say, you know, continue to tell those stories. And this is an area where, you Know, I do think having been boots on the ground probably gives you a bit more insight than it does to somebody like me, you So,

0:04:25 Thomas: Yeah, yeah, yeah. Mm hmm. Well, anyway, no documents. Yeah right.

0:05:05 Thomas: That's how

0:05:05 Andrew: Yeah,

0:05:05 Thomas: I felt, too. It's like, What am I going to do? It feels kind of silly for me to spout off my opinion on Afghanistan, which is why I haven't. I've just said I don't know. I mean, I can tell you I don't like any of the outcomes, but that's not a solution to anything. I don't have a solution minimum, that seems awful. So I hope someday that changes, but I don't know how, I don't think us going and like enforcing that was, was going to ever work. I don't know.

0:05:34 Andrew: Yeah.

0:05:44 Andrew: I am with you. And And I would get to. And I love that we are, you know, a podcast with strong opinions that is not afraid to say, you know, we don't know and is not scared to say as sometimes we're wrong about That's where

0:05:45 Thomas: Well, let's get to stuff we do know, huh?

0:05:58 Thomas: Well, I just had a fear right when this happened, when we had the, you know, the really bad video shots that are everywhere, obviously the Vietnam comparisons and and all that. I just hope that something hits the news cycle. You know, something gets us off this news cycle so that the right doesn't like latch onto this, you know, and get all like in jonesing for a war or something. I, I just don't want this to be the thing that like energizes the right again.

And then they run on like, let's get back in Afghanistan. That was my fear. I have no idea what the probability of that is probably I, that was my biggest fear was like, please let something, let, let Biden slip on a banana peel or something, something to, you know, like refocus the media attention on the right So that they could be like, ah, we're pro banana peels. Actually, that's our policy or something. Cause I, I was terrified of like, oh my God, I hope they don't. Cause I think, think I this has been rough for Biden, obviously. And help that. And because the images aren't good, um, but I do, I do really respect that he has stuck to his guns and just said, you, you know, I said I would get us out of there. It's not going to make any difference. Had I stayed two more years, two more, you know, 20 more years, it's, we're not, it's never going to happen if they weren't going to resist the Taliban. Now what was two more months out of 20 years going to do? So

0:06:31 Andrew: We're another tan suit. Yeah.

0:07:06 Andrew: Yep.

0:07:07 Thomas: We're getting out, I do like that he's sticking to it. I just, I hope we move on in our national, you know, two second attention span, so that this doesn't become an issue that like, because you know how everything, I guess what I'm saying is never would I have thought that like health would be polarized, or you know, uh, vaccines. I just don't want this to become a thing that like then the right is like, yeah, we got to go back in there or something. So I hope that doesn't happen.

0:07:31 Andrew: I agree with that 100 percent. And also, I kind of hope Joe Biden slips on a banana peel in the next couple of days. Like, could you imagine it?

0:07:37 Thomas: And Then they Could Just Play that on Fox News over and over

0:07:39 Andrew: It would mean the 2024 RNC convention would be banana themed, right? Right. Like they might they would be a hundred percent. It would be the greatest thing ever. So, yeah.

0:07:45 Thomas: Think People Would be Wearing Banana costumes. Yeah, yeah.

0:07:53 Clip: Down the law, down the law.

0:07:57 Thomas: All right. Let's talk. Let's talk. Terpsichore. That was harder to say than I anticipated. Terpsichore. Talk.

0:08:04 Andrew: It's it's going to get even harder to say because the here's what happened. I'm going to interrupt myself here. Our favorite expert witness, Terpsichore, second favorite maybe to to spider, but way up there. We talked about how Terpsichore Maris Lindeman was one of the completely unqualified anonymous witnesses that was relied upon, cited, gotten to give an expert affidavit attached to the Sidney Powell Kraken lawsuits back in 08452. That's how long we've been dealing with this. We answered such questions as why is her affidavit redacted? And the answer is because it was pretty much entirely fabricated.

0:08:48 Thomas: So it's not that as top secret, Europe, government is only amazing steel info that can't be shared. It's not that.

0:08:49 Andrew: Right. Yeah. Well, well, just like Spider, right. Terpsichore, who I think her preferred name is Tori. Right. Her blog is Tori says T.O.R.E., which is. Yeah, we could. I'm going to call her Terpy for reasons that.

0:09:04 Thomas: Oh, thank, thank God. Okay. Tori Terp, Terpsichore is now Tori or Terpy. Terpy is good. 'Cause that'll will remind you who you were talking. Nobody is named Terpy. Tori, you might think we're talking about somebody else. Okay, Terpy.

0:09:12 Andrew: Yeah. Right. Yeah. So Terpy is another one of these, you know, hoodie wearing conspiracy theorist bloggers who are cosplaying as military experts. So despite the fact that she has created a fake profile for herself on a Web site called Together We Served that is fortunately available via the Wayback Machine, that bio has her as a 12 year military veteran, in the recipient of the Purple Heart in 2007.

0:09:38 Thomas: Wow. Yeah.

0:09:52 Andrew: Where the most dangerous thing she was doing was sitting behind a keyboard that she might, you know, accidentally spill Mountain Dew on. Just no.

0:09:58 Thomas: That's, there aren't that many Purple Hearts given out, right? It's not an easy one. To fact check. That's a bold lie, I think. Oh.

0:10:02 Andrew: Yeah. That's A ball, not as bold a lie as the Distinguished Service Medal, right? I mean, you might as well say like Yeah, it it really is yeah

0:10:08 Thomas: That's Like specifically if you jump in front of a bullet for the president or something like yep, I did it, I did that.

0:10:17 Andrew: And six other rewards that she definitely did not receive. No, uh, Terpy was, um, in the military, uh, for, she served in the Navy, uh, so, so not in the Marines at all, by the way, uh, she served in the Navy for less than a year, more than two decades ago, um

0:10:36 Thomas: Wow, that's hard to earn that many medals in a year, that must have been a good year.

0:10:37 Andrew: Yeah. Uh identifies herself in the affidavit, uh, as a government contractor, part-time interpreter, trained cryptolinguist, okay, and again you know, when I say cosplaying as, as a, as a military expert, I mean, here's how she begins her own bio. I am a diversely educated professional, over 15 years experience, attained CONUS, all capital C-O-N-U-S, and O-CONUS, within military federal and international environments, covering in consumer markets, commodities, cyberspace, financial products, and most recently, health care. I had to look up CONUS and OCOTUS.

0:10:51 Thomas: Huh.

0:11:08 Thomas: What? Oh.

0:11:17 Thomas: Oh. I've heard, no, I've heard that, but I feel like this has come up before this has came up on the show

0:11:20 Andrew: It came up the first time we did Terpy, yeah, because CONUS just means Continental United States, and OCONUS means outside the Continental Unites. So rather than saying, I have been outside the country, right? Yeah, OCONus and OConus and, you know, uh only yeah somebody who received the the

0:11:23 Thomas: Okay. Yeah, yeah. Yeah. Right. No, this sounds fancier. Only a purple heart winner would say Conus and a, okay I said winner I guess it's not really a winner. Ding, ding, ding. Purple heart.

0:11:45 Andrew: Distinguished in that affidavit, uh, Terpy identifies herself as a former private, private contractor with experience gathering and analyzing foreign intelligence, and said that from 1999 to 2014, she had responsibility for delegating tasks to other contractors. So supervising contractors working for the United States and allied nations. Connection with her North Dakota conviction for fraud, she said she'd worked as a contractor since, since 1996, and had been, quote, a vendor with certain programs associated with U.S. SOCOM, all capital. She loves this. I mean, you get, you start reading her affidavit and it is just like all capital letter acronyms every third line.

0:12:29 Thomas: Yes.

0:12:29 Andrew: That is the U. S. Special Operations Command. A spokesperson, The Washington Post looked into that and a spokesperson for the U.'S. Special Operations Commission said in an email that its contracting office could find, quote no record of any contract with her, end of quote. Also claimed that in 2008, she was an intelligence contractor to the State Department to look at passport records on several presidential candidates, said that she received those orders from John O. Brennan, who at that time led a private security firm, was later CIA director. The Washington, oh, Turpey said, quote, I went and got them, she said. He told me to go get them. The Washington Post interviewed John O'Brennan, who said, I have never heard of Terpsichore Maris Lindeman.

0:13:20 Andrew: And when confronted with that, Turpee told the Post that by its nature, her covert work could not be independently verified. Fine people like me don't exist, she said, you just have to trust. So, uh

0:13:32 Thomas: No, I am not going to do that.

0:13:33 Andrew: Okay. So why are we revisiting, uh, Terpy here? We are revisiting Terpy because, um, she's, she's come up, um, obliquely, but, but has come up in the ongoing, uh, both sanctions proceedings against Sidney Powell and in the ongoing Dominion lawsuit against Sidney Powell, um, and so as a result, two days ago, I am not making this up, uh, using the name Terpsahore, I, I'm sorry, it's, that's how it's spelled, t-e-r-p-s-e h-o-r O.R.E. Terpsahor Maris has filed, a one, I'm also not making this up, a one point seven billion dollar lawsuit against Dominion suing them for defamation because that's what we're going to get to.

0:14:28 Thomas: Okay. Right off the bat, when a business, a large business is defamed, you could at least make the argument that like, hey, you've cost us a lot of money in business, and that could add up to billions of dollars. What is Terpsichore up to? What's old Terpy up to that would make her damages one point whatever billion dollars? What could possibly be the reason for that, the

0:14:51 Andrew: Thought that was a great question, too. So let's use our secret powers of reading a complaint backwards. This complaint is eight pages long, so we can read the entire thing in this episode. And of course, I'm to link it in the show notes. Start at the last page. The last page, we always look at the signature block. And again, this is, and I really do want to take a second to go down what seems like it might be a rabbit trail.

This is where I noticed it said, Russell A. Newman, we're to talk about him in a second, attorney for plaintiff Terpsahore And I thought, OK, it would be kind of funny if she's misspelled her own name and her own complaint. And so then I went and looked through and read the entire complaint really quick. No, no, no. It is not only consistently spelled Terpsichore, but it is where it quotes from previous filings referring to her as Terpsicore, Terpsickory, it's listed with an SIC, right, as if the those other folks got it wrong Yeah, so why is that? Well, the answer is, um, and again, I can't prove that, well yes I can, because she was convicted for

0:15:52 Thomas: Plot thickens Yeah.

0:16:04 Andrew: Fraud in North Dakota, um, this is the kind of thing that frauds and con people do, right, they, they change their name ever so slightly all the time. So, for example, that North Dakota judgment against her for, you might recall, setting up a charity to raise money for a Magic Christmas, which she then spent on Cheetos and bikini waxes, to her as Terpsichore Maris, with 14 separate AKAs. Right. So right?

0:16:12 Thomas: Oh. Wow.

0:16:34 Andrew: Also known as Terpsichore Maria Helen Lindemann, Terpsicho Lindemanne, Terpichore with no E Maris Lindemanna, Terpisichore within E Marist Lindemand, Terpiichore with no e Maris Terpisichore P Lindemant. And you're thinking, wait, where did the P come from? That is. And I'm not kidding. Terpsicheor Pete Maris Linden. Maybe she just liked the name Pete. Who knows? Tori Maris Linda man Terpsicha. So and and the 14th one on the list is and Terpsichore Maris Lindemann. So, yeah, this is right within her wheelhouse to change her name all the time in a misguided attempt to stay, you know, one step ahead of the law. Hint, by the way, if your preferred name is Terpsichoore, like it's going to be real hard to do it like Thomas, you could do this really easily. Right. Like just change it over to Tomas Smith. Right. Get rid of the H. And, you know, and you'd be like, that was another Thomas

0:16:34 Thomas: Yeah.

0:16:55 Thomas: Pete. Maris, yeah Homer

0:17:31 Andrew: Smith. I don't know what you're talking about.

0:17:31 Thomas: Who is Homer I am

0:17:34 Andrew: Exactly.

0:17:34 Thomas: Guy, incognito.

0:17:36 Andrew: You might ask, who is Russell A. Newman, the person who has decided to represent Terpey here? Russell A Newman is a crazy person. This probably shouldn't surprise you, but it always surprises me just a little bit. If you go to the Newman law firm, the Newman Law Firm dot com, I'm going to read to you his practice areas, even though this is slightly repetitive. But, Russell Newman practices in personal injury, wrongful death, truck wrecks, severe burns, industrial accidents, car wrecks slip and fall, trip and fall motorcycle wrecks bicycle accidents, dog bites, train accidents, drowning accidents, boating accidents, eye injuries, brain injuries, liability of property owners, punitive damages, claims, bad faith insurance claims, uninsured motorist claims, underinsured motors claims, and pedestrian accidents.

0:18:22 Andrew: Um, may not you may notice that commercial defamation is not among his practice groups. And that's because when you click on his Twitter feed, which, by the way, is Russell A. Newman one and had 111 followers when I decided to follow him the other day and is down to 110 now. So good. Good on you it's just QAnon nonsense from from start to finish. It is, you know, hashtag bare face, hashtag mask, maskless Christian husband, dad, U.S. Marine and lawyer who is fed up with evil, unconstitutional church lockdowns, voter fraud and corruption in the USA. And, you know, and he retweets out Mike Lindell's election fraud symposium as if that was not a giant joke. He retweeds out the 538 graph of precincts reporting and where there's like a giant jump up for Biden.

0:18:27 Thomas: This

0:19:19 Andrew: Right. Because a big precinct came in. He's got a little circle around it that's like, see, that's proof of the fraud. Odd. It's just he's a goddamn lunatic idiot. Right. So hint for you, by the way, if you are looking to find a lawyer to represent you, a employer who and you have beliefs that are, let's put it charitably, well outside the mainstream. Find a lawyer who does not share those beliefs. Right. Like, look, it it.

0:19:48 Thomas: Is Just advice that will never ever be taken. Yeah.

0:19:54 Andrew: But look, that's what Linwood did. I mean, we, we joked about, like, you know, why did the, the kind of totally normal, upstanding lawyer that, that we mentioned agree to represent Linwood in Michigan? I don't know. But, like, give Lin, I've, I've said this before, like, Linwood is not an idiot, right? His foundational beliefs are insane, but he's not dumb, and he realized, like, oh, yeah, I would be much better sued by having somebody who does not inherently believe my implausible claims as my lawyer than by having someone who does inherently believe my implausible claims as my lawyer. So, so we're still working backwards, uh, we haven't got past the signature page, uh, that is Russell A. Newman, paranoid conspiracy dipshit, uh, auto, auto, auto accident, you know, what, what, some folks, my God.

0:20:46 Andrew: I have, I have plenty of friends who are upstanding PI lawyers, uh, so I will not call them ambulance chasers, uh, but I will say none of those friends would agree to take on a 1.7 billion dollar defamation lawsuit. You know why? Because the stuff that makes you good at slip and fall and auto accident cases is not the stuff that makes me good at arguing commercial defamation. But, in any event, so then we continue to read backwards, and typically the next thing you would do is you would see how many counts there are, right, and then what, what's the relief sought, I, right, can tell you the relief sought. You want to take a guess at how many accounts are in this complaint, complaint, enumerated counts, it

0:21:25 Thomas: Oh, that's okay, I always love this. I'm going to say it's good, it's got to be a weird number. It could be zero, or it could be, no, I'm gonna go with zero.

0:21:34 Andrew: It is, in fact, zero. Um, it, it is a complaint for defamation, uh, uh, but, but the only reason you know that is because it repeats some of the elements of a claim of defamation.

Like, there is no, you have read enough complaints just from doing this show to know that typically what you do is you would say count one, defamation, and then after you've set forth all your facts, you are, you would then say, like, you know, paragraph 53 would say, the allegations contained in paragraphs one through 52 are reincorporated as if fully set forth herein by reference. And then you would allege the specific elements of defamation.

And thenyou would say why that leads to your add damn them clause. There is none of that. Um, instead what there is, is, uh, a wherefore clause and add damn them but, but even the wherefore clause says, wherefore plaintiff would respectfully request that proper process be issued and served on defendants, okay, because it's a verified complaint fine, requiring them to answer under oath with a verified answer in the time period allotted by law, uh, you don't specify that in a complaint, like, the, the parties you sue know they have to respond to your complaint, and that this honorable court would award judgment in plaintiff's favor against the defendants as follows: one, awarding plaintiff compensatory damages of not less than 1 billion 700 million dollars, uh, basis for that

0:22:57 Andrew: Good for you Right. Yeah, yeah, GFY, uh Not set forth anywhere in the complaint, punitive damages of no less than 1.7 billion dollars, uh, awarding plaintiffs all expenses and cost, attorneys' fees, pre- and post-judgment interest, granting a narrowly tailored permanent injunction requiring the removal of all the defendant's statements that are determined to be false and defamatory, and enjoining the defendants from repeating such statements in the future, um, a prior restraint injunction, yeah, I did that, is just, I, I lack words, such other relief as the court deems appropriate, and uh, plaintiffs further demand a jury of 12 persons to try all issues joined here. And, okay, there you get a jury demand. So this complaint doesn't set out specifically the elements of defamation. I, I will define them for you, and we can

0:22:57 Thomas: Go after yourself. Yeah.

0:23:45 Andrew: Kind of track them down in the complaint. So defamation requires five elements, and states combine this in different way, but this is basically the rule everywhere. Number one, you have to have a defamatory statement, that is defined as one that tends to expose one to public scorn, hatred, contempt, or ridicule. Two, that statement must be published to a third party who recognizes that the statement as being defamator, and such publication must not be privileged, you might want to put a pin in that. Three, it must be provably false, right, and we've talked about that before. Four, there must be fault attributable to the speaker, right, to the defendant, either by negligence if it's not a public figure, or by actual malice under the New York Times v. Sullivan standard, if it is a public finger.

0:24:32 Andrew: And by the way, Terpsichore, public figure. No question. And then five, there must either be harm, there must be damages resulting from the defamation, or it must be defamation per se. So, for example, a really good example of how you plead defamation is in the Dominion lawsuit, where there are 50 Fifty.

0:24:48 Thomas: Yeah, I was gonna say. Let's look at an actual one. Yeah?

0:24:51 Andrew: Yeah. Where there are 50 plus pages of specific identifiable statements.

0:24:55 Thomas: Mainly Terpsichorete. Yeah!

0:24:57 Andrew: Right. That say, you know, for example, Sidney Powell said that Dominion machines can flip a million votes. No problem at all. No, they can't. Right. And you're lying about us when you say that they can.

0:25:10 Thomas: Listen, Terpy, I feel like you were just on the the other end of a very well done one of these? Like, couldn't you, you know, borrow some of the same techniques?

0:25:19 Andrew: Maybe maybe maybe copy a little. Yeah, that that that would have been interesting. Interesting. But no, she she did not do that. Right. And again, additional additional obvious statements of fact, like Dominion voting machines were used to elect Hugo Chavez in Venezuela, that Dominion paid kickbacks to Georgia public officials. You know, stuff like that. I don't know what surprises anyone anymore. So this may or may not surprise you that I can't find I can infer and I know what the court is going to do, but I cannot find a single example of a statement made by Dominion that is being claimed as being a provably false statement made, made by Dominion about Terpsichore. And if that strikes you as weird, uh, it should. Um, I, I usually like the very first thing you do in a defamation lawsuit is spell it out. Instead, they kind of hint at it a little bit, and, and so now we have to break up our uh fantastically reliable reading in reverse, uh, and we're just gonna have to go back through the complaint in order to try and put this together, because otherwise

0:25:21 Thomas: Yeah. Sure. Yeah. Yeah, let's

0:26:38 Andrew: Um, it's it's yeah, okay, what we have to do is, yeah, so we go to the statement of facts, and it says, um, on uh November 29th, 2020, a plaintiff swore under oath and penalty of perjury, that she was providing a true and correct affidavit in the Boyer versus Ducey, the Arizona Kraken litigation does not mention, by the way, that that includes a screenshot of her affidavit being out, right, completely anonymized. No explanation for that whatsoever.

0:26:39 Thomas: Start with count zero. Oh, normally Andrew tells us to start with Count one. We know there are no counts.

0:27:15 Thomas: Huh?

0:27:16 Andrew: You might you might think you want to say that, but says, look, that was filed in the case. And then it says plaintiff's sworn testimony explained the foundations of her expert opinions and personal knowledge, then addressed the concerns she had regarding foreign interference in our elections through hardware components from companies based in foreign countries with adverse interests, among other concerns. And then the next statement is, according to the court's order entered December 9th, 2020, the United States District Court for the District But by the way, not great pleading to use the pronoun first and then identify the court second. But anyway, because usually when you say the capital court, you mean the court you're in.

0:27:59 Andrew: And this lawsuit is filed in the Middle District of Tennessee. In any event, grammar is going to be by far the least of their of their problems. Yeah. The U.S. District Court for the District of Arizona stated, quote, "But perhaps more concerning to the court is that the," sarcasm quote, "expert reports reach implausible conclusions, often because they are derived from wholly unreliable sources." And then that is order page 25, By versus Ducey. I went, look that up. So, so this was the Kraken lawsuit to overturn the election results in Arizona, and the parties moved to dismiss, the court granted that motion to dismiss, and as part of granting the motion to dismiss on December 9th in fact said that statement, it was like, look, this lawsuit is nonsense, and

0:27:59 Thomas: Yeah, I was gonna say the least of of the concerns in here so

0:28:47 Andrew: Yeah, so oh, we're gonna get there, I'm so, Dead to Terpy says, so this is paragraph 14 quoting from the court's opinion. Paragraph 15, the court sort of never stated that plaintiff's sources were wholly unreliable. Paragraph 16, the court sort of never mentioned Terpsahore Maris's name. Paragraph 17, the court's order never discussed plaintiff's testimony. Paragraph 18, the court's order never stated plaintiff's testimony was false. Paragraph 19, on January 8th, 2021, Dominion filed suit against Sidney Powell for defamation and deceptive trade practices in suing. Paragraph 20, this is the only thing that you can connect up in suing Sidney Powell for defamation, Dominion defamed plaintiff, how? Paragraph 21, on, Dominion falsely stated that, quote, "the wholly unreliable sources put forward by Powell and Wood in that case, whose declarations were posted on Powell's fundraising website, included Terp Sikor," again, listed with an SIC,

0:28:48 Thomas: That's defamation according to Terpy, yeah

0:29:52 Andrew: Maris Lindeman with an SIC, Russell Ramsland, William Briggs, and Josh Merritt, a.k.a. Spider. So let's unpack that. What Terpy is saying is when Dominion sued Sidney Powell and was describing the litigation and mentioned that in that litigation it relied upon unreliable sources, those sources named Terpsichore, and that's what's supposedly defamatory. There's only a couple of problems with this.

0:30:18 Thomas: Oh boy a million problems there's only every single problem with this, yeah

0:30:29 Andrew: Yeah. There's only every problem with this. So

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0:34:50 Andrew: Problem with this. So first, cites to paragraph 82 of the Dominion complaint. Let's read the actual paragraph that they actually pled, which says the United States District Court for the District of Arizona found that the evidence put forward by Powell and Wood was impressive only for its volume and was, quote, quote, largely based on anonymous witnesses, hearsay and irrelevant analysis of unrelated elections and includes, sarcasm quotes, expert reports that reach implausible conclusions, often because they are derived from wholly unreliable sources, quoting the court. That statement is true. That statement ist 100 percent because it is describing what the district court for the District of Arizona found. Then the sentence they quote, reading in context, the wholly unreliable sources in quotation marks, so thus referring to what was it that the Arizona court was commenting on.

0:35:49 Andrew: "The wholly unrebliable sources put forward by Powell and Wood in that case, whose declarations were posted on Powell's fundraising website, included Terpsichore Maris Lindeman, Russell Ramsland, William Briggs, and Josh Merritt, a.k.a. Spider."

So, in what happened in Dominion's complaint was they described a court holding and then said, and by the way, the affidavits that that court found to be wholly unreliable were the same people that are now being put forward in other litigation matters, sorry, and, and are the subject of the various complaints that are going for, right, it's the same group of people, it's Terpsichore, it's Ramsland, it's William Briggs, it's this spider guy, they're, they're nonsense, and this is part of why you should infer malicious defamation against us, because they're just, right, because by any standard, right, willful disregard for the truth or falsity of an act of an accusation, like when you go into court and the court says, boy, your affidavits are as bad as I've ever seen, and I've been a judge for 30 years, and you say, okay, well, I'm going to go into another court and publish this, like, then at some point, um, you ought to say, well, maybe I should learn something from that.

0:36:56 Thomas: Yeah let's pretend I wanted to try to give Terpy the best case scenario here. Let's say everything Terpy said was true, and this was still in a filing, like, would this even still be defamation even if all, like, her, you know, wacko testimony were true, because all that that was in the quote was, this was mostly unreliable, they didn't even name her, you know, like, how could this possibly be defamation?

0:37:36 Andrew: To be clear, right, it is. I didn't read paragraph 24, concludes the defendants libeled and defamed plaintiff in a defamation suit against Sidney Powell. And let me rephrase your question ever so slightly. And that question would be, is it possible to defame somebody in a lawsuit? And the answer to that is no, unequivocally no. It is not possible to define somebody in a lawsuit. And that has been well settled for two centuries.

0:37:55 Thomas: Yeah, really? Because you know, I thought of that too, but, but it almost the first thing I thought, it was well, I could just file a bunch of lawsuits saying, like, you know, Andrew Torrez is a pedophile or something, and then but that's fine, I can just do that.

0:38:15 Andrew: So you've hit on you've hit on the exact right way to parse that from a legal perspective. So this is the Restatement of Torts, Section 587 from 1841. OK, and it says a party to a private litigation is absolutely privileged to publish false and defamatory matters of another in communications preliminary to a proposed judicial proceeding or in the institution or during the course. And as part of a judicial proceeding in which he participates, if the matter had some relation there, too. OK, so the way that's interpreted today is so so long as it's a valid judicial proceeding and it is relevant and pertinent to the issues raised in that proceeding, you may not sue somebody for defamation in connection with what they've said. Now, counterexample, super easy, right? Like you sue me for breach of contract and include 97 pages about how I'm a pedophile.

0:38:26 Thomas: Yeah Yeah.

0:39:14 Andrew: Since I'm not a pedophile, would then move. We've talked about this procedure before. I would move to strike those allegations from the complaint as being scurrilous and irrelevant to the complaint. Very very rare procedure, but this is the perfect example of what you do it right in which a complaint is larded up with you allegations that that yeah, because it doesn't prove either way, like even if I was a pedophile, that would not prove that I breached the contract, right?

Like, um, and so, and then I could absolutely sue you for defamation, but if you say, right, Andrew Torrez took the contract, you know, tore it up, threw it on the ground, urinated on it, you know, spit on it and said, you know, and then attributed some statement to me that is defamatory and I win. Right. So I've now proven at law that I did not say the thing that you said that I said. Right. I can't sue you for defamation over that. And if you stop to think about it for a tenth of a second, it becomes immediately obvious why. Because then every party that loses in litigation would get get sued by the winner for all the claims that they made in litigation, right?

They would say, yeah, I am suing you for defamation. I am Suing you, uh, for, you know, for you perjured yourself, right? Like that's not the way our law system operates, right. Our law system does not say, you know we go back and then revisit complaints and allow the, you know, that would that would essentially transform us into the English system,

0:39:54 Thomas: But

0:40:45 Andrew: Right, it would be an an effective, you know, whoever loses pays because they would now be subject to per se liability for having defamed the other side. Because by definition, right, if a if a court says as a matter of law, Andrew Torrez never said X, right? Well, now super easy for me to sue you for defamation for claiming I said X. Um, only is this rule explicit in the restatement of torts from 1841, um, was settled with specificity in Tennessee in 1962. Tennessee, by the way, being the venue for this lawsuit, you know, being the the jurisdiction in which Russell A. Newman practices. He's bar number 033462.

0:41:33 Andrew: That's case called Jones versus Trice, T-R-I-C-E, Tennessee Supreme Court discussed the absolute privilege applicable to judicial proceedings. And so that was a case in which Jones had attended a trial in which Trice was a defendant. Trice Was the Trace was the executor of an estate after a jury verdict against Trice. She moved for a new trial on the grounds that Jones had improperly influenced the jury. And then Jones sued Trice for libel based on the allegations based on her motion for a new trial. And the court said, get out of here with that. Like you can't. So did you follow the procedural history? You had Trice is the executor of an estate.

0:42:19 Andrew: Jones goes and sits in the gallery. Trice loses. And then Trice moves for a new trial and says, look, this guy Jones came and sat in the gallery and improperly influenced these proceedings. Right. And then Jones said, oh, no, I did not. I'm suing you for defamation. And the court was like, dude, you can't sue her for defamation for that. It's it's the basis of her complaint. You can you can win. Right. But no, that's not defamation makes sense. What?

0:42:44 Thomas: Also, like, that's not defamation. Do we have a case in which like it actually would be? Is it defamation to say you sat in an audience? That's not, you know, you're making faces.

0:42:48 Andrew: Well, No, it was that, um, he improperly influ- yeah, that, that, like,

0:42:58 Thomas: How is that defamation? There's nothing.

0:42:58 Andrew: He, here's, How I, here's how I envision it, okay? And, and I, am I will tell you, particularly these older cases, um, you don't get as much detail, but I, I get it this way. I think of Jones as like the, the mob boss of Greater Knoxville, right? And like I picture him sitting in the audience, right, Right.

0:43:06 Thomas: OK. Right. Right, right.

0:43:20 Andrew: And glowering down at the jurors. Right. And every time there's something, you know, he'll like cough in the back or, you know, like this may just be a movie I'm inventing in my own head.

0:43:28 Thomas: Gotcha. Yeah, I think you invented that, but I like it. We'll go with it because

0:43:32 Andrew: The the motion for new trial that that Trice made the grounds for her new trial was that Jones, quote, improperly influenced the jury in her case. End of quote. Right. And so that would be a crime. Jury Right? Intimidation is a crime that makes that defamation per se. It absolutely would be a defamatory statement if it were not being made in a pleading. But the problem is that we allow people to make, we want to incentivize people who have a legitimate cause of action to bring that cause of reaction. And so, therefore, the privilege is absolute. It is broadly construed. There is zero in this complaint that illustrates that Russell Newman is aware that there is such a thing as a privilege for statements made in litigation. And you know why?

It would not surprise me that Russell Newman is not aware that there is a privilege for statements made litigation is Russell Neumann is not a First Amendment attorney, he's not a defamation attorney, he is not even a private civil torts attorney, he's a slip and fall auto accident attorney, and and I I'm sure he is competent at litigating over whether the driver went left on red or not.

0:43:51 Thomas: Okay.

0:44:47 Andrew: But that's not this case. Right. Stay in your lane, Russ. But but Russ is here because he is a QAnon true believing idiot and that leads people. So I am just saying I could I could delve so much more into how bad this lawsuit is. But it does not identify a statement that is actionable to the extent that it implies one. It is absolutely protected from suit by a case that is 60, 59 years old and by a doctrine that is 150 years old, 180 years old. Um, this is I look forward to not only Dominion's motion to dismiss this case, which should be like chef's kiss levels of awesome, but these sanctions motion against Mr. Newman, which we will then happily, delightfully go. If we can watch them, we'll watch them. But this has to stop.

0:44:57 Thomas: Yeah. Yeah. Yeah.

0:45:45 Andrew: You know, I had a little bit about this on on our Twitter feed, know, about how licensing can serve a gatekeeping function. And, you Know, that that historically it's been used to exclude minority. And I totally agree with all of that. Case against licensing for in a broad way is inextricably linked to racism in this country. But that does not invalidate the idea that we ought to have, you know, this is not a libertarian free for all where anybody can just go to court and say they're your lawyer, right? Right. We have professional qualifications. We have codes of ethics that require you not to be this guy. I am pleased. Of One the only things that I'm pleased with coming out of the Trump administration is the backlash among professionals that says, hey, you know, yeah, I don't I don't want to have to say that, like, I'm in the same line of to work as Sidney Powell, like get her out of here and get him out of here.

0:46:43 Thomas: Well We're What I, so what consequences are you thinking, is this lawyer done, or you know, like, how, we need more, I know you're just talking about how there have been some consequences, I really wish it was even harsher, like, you get, you get zero of these, you know, I don't even think you get one of these, you should get zero of these, the first horrible, uh, obviously, uh, scurrilous, to use the word that comes up here, lawsuit like this, that doesn't even have a count in it, that doesn't understand the law, you should just be done lawyering, sorry, you're done, you're not a lawyer, what's, but what's actually going to happen, a slight slap on the wrist, you know.

0:47:23 Thomas: And then this Guy Gets to keep, okay.

0:47:23 Andrew: It it depends. So I think right. If I were Dominion's lawyers, they are an out of state defendant. I would have called Mr. Newman yesterday and served him with my rule 11 papers. Right. And remember, you have a 21 day safe harbor. So you've got to give it to him and go. If you don't pull this within 21 days. We will move to dismiss and for sanctions for this nonsense of a pleading that you have filed. Assuming that that happened, we will find out in, I guess, 22 days time. Actually, I mean, the will have time an out-of-state defendant. So, you know, We're probably looking at five to eight weeks. We will then discover if if they have, in fact, withdrawn.

0:48:11 Andrew: I should say it this way. We will know within the next month if this lawsuit gets voluntarily withdrawn. Drawn, um, that's

0:48:19 Thomas: So you're allowed to Voluntarily withdraw. And then, yeah.

0:48:21 Andrew: Yeah That's The safe harbor period, right, that's, remember, we Talked About this, Rule 11 Attorneys Can make A bad attorney thing, um,

0:48:24 Thomas: All right. I know we're of time. Yeah. Is that but is there anything to prevent you, you know, just doing this and withdrawing a bunch of times? I mean, can eventually there be consequences for that, too?

0:48:36 Andrew: Absolutely Like there is a, uh, the the court, in addition to having inherent powers to sanction, uh, the case law is pretty strong on Rule 11, uh, you know, that prevents you from uh responding, saying, "Okay, we're going to withdraw that pleading. Then we're going to file another one where two words are different," that sort of thing. Not the least of which is you only get one amendment to your complaint as of right in federal court. So even if they played that game, right, and they said, oh, yeah, we'll absolutely withdraw that. And they withdrew it and they replaced it with the same complaint. But, you know, with a line different somewhere, might give that might buy them another 21 days, but would would guarantee that they get sanctions at that point, because then you would sanction both pleadings and the conduct and the attorney's conduct under the court's inherent powers. You would say, your honor, use use a rule of reason here. We brought this to their attention. They took advantage of the safe harbor provision. They changed an irrelevant sentence and they forced us to do this all over again.

0:48:59 Thomas: Mm hmm. Yeah,

0:49:38 Andrew: Again, throw the book at them. And I think a court would.

0:49:38 Thomas: Throw the book at them. I haven't heard that in a while. We got it. Yeah more throwing the book it the right people.

0:49:42 Andrew: There you go. More book throwing

0:49:46 Thomas: There's been too much book throwing at the wrong people throughout our American justice system history. Let's start throwing the book at Terpsichore and Sidney Powell and the people who need it thrown at them. All right.

0:49:56 Andrew: Here, here.

0:49:57 Clip: Andrew Torrez is wrong, wrong sir, wrong sir, Andrew Torrez is wrong, wrong, wrong.

0:50:11 Thomas: All right, things we were wrong about. You know, I hate this because I almost mentioned this one, but I, I often don't, I have to pick my times to interrupt your flow, Andrew, and it's, there's no good answers, that's a, it's like a real Afghanistan scenario over here, like, when do I interrupt Andrew? It's not, and I, who knows, everybody's a critic and they, I, they all could could do it better, uh, taxing of gifts, yeah.

0:50:33 Andrew: Yeah, I there's no nothing to say other than I completely biffed this one. I could I could walk you through the thought process in my head, but that would would just be crafting an excuse for getting it exactly backwards, which is that gifts are taxable, they are taxible to the donor, not the donee, not the recipient. That is 26 U.S.C. Section 102. And I'm going to include in the show notes a little IRS guide to when gifts incur taxes. It was such a minor point, you know, couched in Yeah.

0:51:07 Thomas: Well, Well, Yeah, while we're on it, is it, I thought you can give gifts up to a certain amount.

0:51:12 Andrew: Yeah. And there are some gifts that incur tax liability. Right.

0:51:14 Thomas: Oh, Really? Oh, you have to pay a tax while you're giving someone money? Oh, Wow, brutal.

0:51:17 Andrew: Yeah, while you're giving someone the gift, right, particularly over certain amounts. That's why I'm going to include the IRS circular 59 because I am not a tax lawyer. I should not have opined on that. It in no way changes our analysis of that particular subject matter. But I biffed it and and I was wrong. And I'm going to own up to that,

0:51:23 Thomas: Right.

0:51:34 Thomas: All moving on. Yeah, no, I, the reason I didn't cut in was I thought that was wrong, but I also wasn't terribly sure, so I was like, well, Andrew probably knows, so I just, I kept quiet. Sorry, but I am the accountant of us and I do vaguely remember that from my tax accounting school.

0:51:48 Andrew: You know. Yeah. Be more be more confident

0:51:54 Thomas: Yeah, it

0:51:54 Andrew: That I screw stuff up because I screw stuff up all the time,

0:51:58 Thomas: Sorry about that. All right. Item number two,

0:52:00 Andrew: Yeah. This comes to us from Kate Brown, who was an assistant professor of history at Western Kentucky University. And she says, love the show. You mentioned a number of times in the latest OA episode that you found it, quote, bizarre. That does sound like my language, that under New York's 1777 Constitution, the highest appellate court in the state would have senators and judges on it. From an 18th century perspective, this wasn't so bizarre because the New York Court of Errors was modeled after the British Parliament, specifically the House of Lords. The House of Lords was composed of all of the lord's spiritual and temporal of the realm. Uh, you can, you know what, you can see why I had to read this comment on the air, this is so great.

0:52:42 Thomas: Beings of pure energy, like the, the timekeepers from Loki and

0:52:44 Andrew: Yeah, like in that Star Trek episode, right, which meant not only the upper house of a lawmaking body, but also the judges of the highest English courts in the early modern period, the House of Lords was therefore a body that contributed to lawmaking, and it served as the highest appellate court of England. While I'm just gonna let you keep coming up with references, this is great, while oh, while I am not totally sure why New York chose the House of Lords as their model for a high court in 1777, as opposed to another model, as states, as other states selected, but the design was intentional and based on a workable historical model, too. Uh, New York also kept a separate chancellor and chancery court, another English throwback in their 1777 constitutional design. And, uh, with some insight on why New York chose the House, House of, of Lords, top patron Jennifer Tchaikovsky wrote in to say, um, actually, that the New York upper house, is this, actually a copy of how it was done in the United Kingdom until 2009, 12

0:53:02 Thomas: Guardians of our dimensional key. I'm just making it up. I don'T know. It's vaguely a bunch of things. Yeah, sorry.

0:53:48 Thomas: Wow.

0:53:49 Andrew: Years ago. And I believe that this was standard practice in many of the colonies up until 1775. Virginia is a good example, since tours of the restored chambers of the Governor's Council, the upper house of the colonial legislature, are available through Colonial Williamsburg. Also, those chambers were directly above the general court. Court. So the highest court was literally and figuratively above the trial court. I absolutely love that. So thank you, Jennifer. And thank you. Professor Brown. Really, really appreciate it. Super fascinating. And I got to say, Lord's spiritual and temporal of the realm. So.

0:54:12 Thomas: Yeah.

0:54:28 Thomas: Flash. Yeah. I just pictured, like Flash Gordon, you know, the beginning of it with all the things and then the queen-like soundtrack. So cool.

0:54:29 Andrew: Yeah. That's excellent.

0:54:37 Thomas: Flash. All right. Right, one more thing. That, yeah, yeah, uh, one more thing you were maybe wrong about, yeah.

0:54:37 Andrew: Yeah. Yeah. Wrong that I said I was not going to take any more comments about Telegram, the messaging service. But then our buddy Michael Marshall, skeptic of the year for the last 12 years in a row, president of the Good Thinking Society, high grand poobah of skepticism

0:55:06 Thomas: What are we gonna do, ignore an email from him.

0:55:07 Andrew: And new atheism. Yeah. No. Michael Marshall wrote in and said, "Sorry to join the flood of people messaging about Telegram, but I think I have a useful angle. Telegram can be one to one messaging, but it also allows for encrypted group messaging and for people to set up a group where they can only, they can push out messages and other people can follow and comment. That's how Lin Wood can have tens of thousands of, quote, followers.

0:55:30 Thomas: Gotcha. Oh.

0:55:32 Andrew: He's using it to set to push, essentially. This broadcast function can presumably be used for normal reasons, but I've been using Telegram to monitor how people get taken from lockdowns, an infringement of your rights, to it's all the fault of the Jews and we should kick black people out of the country because the great white replacement is coming. I talked about it on some Skeptic with a K episodes and I'm midway through writing it up for the Skeptic magazine. I'd say it's definitely the case that Telegram is the go-to encrypted messaging app for right-wing extremists, white supremacists and anti-vaxxers, which is increasingly the same group, though, fun fact, if anyone uses it to share porn, Telegram shuts them down quickly."

0:56:11 Thomas: Yeah.

0:56:11 Andrew: And then he, he sent some screenshots of how Telegram is being used to push out, uh, anti-Semitic memes, um, know, and one of of them features two, you, very pretty young white girls with a thing above it that says, "What is Loxism? Loxism is the Jews' hatred, not merely of Gentiles, but specifically of white people. Loxismo is the most powerful form of racial hatred on the planet. And yet it is never mentioned by the mainstream news media. There's other stuff.

0:56:12 Thomas: Can't, can't have that, geez. What The my God.

0:56:46 Andrew: You know, I might upload the pictures, But it's it's bad stuff. Know, Jews commented the Holocaust on their own with Holocaust spelled H-O-L-L I-C-O S-T. So, you know, racists abroad are no better at grammar in English than they are here in the United States. But no, I thought that was really valuable to understand. And now I have a better picture of how Lin Wood is using his platform for better or for worse. So so thanks, Marsh.

0:57:00 Thomas: Well, Yeah. It's Always a challenge whenever you come across that horribly ridiculous property, because, 'cause, like, that's so stupid that I can't take it seriously, except that I know there are people in the world who take that seriously. And so it's like, I, but I can, so I cannot wrap my mind around it. I'm glad Marsh is there on the ground doing, you know, documenting this stuff or whatever. 'Cause, like, I, how could anybody possibly take that serious? And yet here we are. Apparently people do.

0:57:45 Thomas: All right, well, those were all the things you were, yeah, Yeah. And I'm taking no credit. You were wrong about all those things. No, I'm just kidding. I was also wrong about those things we were wrong.

0:57:43 Andrew: And yet, yeah, that What is that? Failure has, you know, success has a million fathers and failure is an orphan.

0:57:56 Thomas: Yep. Yeah. I like to do the opposite. Whenever we do something well, it's Andrew. Whenever we're wrong about something, even if it was Andrew, it was also me. I'm going the opposite of that.

0:57:59 Andrew: Yeah. You are all hard.

0:58:10 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:58:16 Thomas: And now it's time for T3BE. I think I'm doing well lately. I haven't gotten a score update in a while, but yeah, let's see how it goes. I Think the coin and I might both won last time, if I remember correctly. So the coin, I talked to the coin. Coin feels good as well.

0:58:31 Andrew: So a quick scoring update. That's good idea. You are 240 questions in. You are 127 for 240. That is 53 percent. The coin is seven for 15. That is.

0:58:37 Thomas: Wow. Really? Really? God, I guess I went on. Hold on. Did we get those 20 stricken from the record? Because those were BS. I think we I think at this point we have enough information to note to like note that that was a BS 20 question. How many was it? Twenty twenty five. There's 20 that were real rough. And I feel like those should be stricken. But that's OK. I'll work. I will appeal that later.

0:59:07 Andrew: OK, yeah, that will be appealed. I will say if every lawyer got to exclude the 20 worst questions they did on the bar.

0:59:14 Thomas: Is every lawyer when they're taking the bar, someone sneaks in a set of 20 questions that are, like, super hard that they also have to take, but they do way better on the normal bar, but they're worse on those 20 questions? Does that happen? Let's make it analogous, Andrew.

0:59:27 Andrew: Well, the bar is really hard. I'll tell you that. That was it. I'm done.

0:59:30 Thomas: Sure. I think I've made my... I rest my case.

0:59:33 Andrew: All right, Thomas. Oh, apropos of today's subject matter. A motorcyclist was involved in a collision with a truck. Look, the motorcyclist sued the truck driver in state court for damage to the motorcycle. The jury returned a verdict for the truck drive. And the court entered judgment. The motorcyclists then sued the company that employed the driver and owned the truck in federal court for personal injury damages.

0:59:52 Thomas: Hmm. Oh, we are in federal court. I told you. Oh, interesting.

0:59:57 Andrew: And the company moved to dismiss based on the state court judgment.

1:00:04 Andrew: If the court grants the company's motion, what is the likely explanation? So I like these kinds of questions, too. So a claim preclusion, res judicata, bars the motorcyclist's action against the company.

1:00:06 Thomas: Oh. Okay. Yeah. Interesting.

1:00:20 Andrew: B, issue preclusion. Collateral estoppel establishes the company's lack of negligence. C, the motor cyclist violated the doctrine of election of remedies or D, the state court judgment is the law of the case.

1:00:36 Thomas: God, this is hard. Okay, wow. Wow. Right. So, motorcyclist sounds like must have been at fault or something because the truck driver. Maybe a motorcyclists just runs into a truck and then tries to sue the truck driver and then the state court had none of that, was like, no. No. And so then the motorcyclist is like, fine, I'm going to take my legal issues to federal court, which I don't think you can do. And but but the motor cyclist is suing the company that employed the truck driver and own the truck for personal injury related damages. So that, I mean, maybe that makes it a different enough thingy. You know, I know you can't just keep suing the same person for the same thing, even if you're moving to federal court, I think, but this is suing, this is a different person.

1:01:22 Thomas: It's a slightly different lawsuit. So I wonder if it matters, but you sued the company for employed the driver and on the truck for personal injury damages, personal injury. The first suit, by the way, sued the truck driver for damage to the motorcycle. I don't know if that matters. The motorcyclist then sued the company that employed the truck driver and owned the truck in federal court for personal injury damages.

So, I mean, I guess I'm just establishing that this could be kind of two different suits, you know, maybe. Like, one is like, oh, the truck diver damaged my motorcycle. The other is like, hey, company that employ the driver, you got to pay for, I guess personal injury could include the motorcycle, but I guess it could also be like actual injuries, I think. I don't know. And the company moved to dismiss based on the state court judgment.

Okay, so this, if the court grants the company's motion, says, yeah, just case dismissed, what's the best or most likely explanation? Claim for A is rest judica claim preclusion bar is the motorcyclist action against the company. That feels like you're trying to sue the same person for the same thing again, and I, I feel like this is different enough that maybe it's not claim, the same claim. You know, you're suing the company for personal injury damage. I mean, A is possible, but I'm thinking maybe no on A. B, issue preclusion. Collateral estoppel establishes the company's lack of of negligence.

That's interesting, cause if you think logically, like if the truck driver isn't even liable for damaging the motorcycle, then like, what's the company going to be liable for? But you, I, I think I like B weirdly. I think I like Be better than A, but I don't, I have no idea. This is a hard one. I, oh, I think I Be better in A, cause I think wait, issue preclude.

1:03:09 Thomas: It's like establishes the the company's lack of negligence. I don't know, or that's nonsense because that issue, collateral estoppel. Put a pin in B. I'm not sure. C, the motorcyclist violated the doctrine of election of remedies. I don't, I just, I just don't know. My gut says no on C, but I don't know. D, the state court judgment is the law of the case. That's kind simple to the point. I think it's between B and D. I think, is a fiendishly difficult question for a non-lawyer, I think, because it just A? Am I overthinking this? Is it res judicata? I just don't, I feel like he's hit, I feel like the motorcyclist has hit the technical, like it's a different claim slightly.

1:03:55 Thomas: Maybe. But is it? I don't know. Maybe it's not. Look, I don't know, this isn't possible. I think it could be basically any of the answers, and this is one you gotta be a lawyer. Something about B is calling out out to me because I do think logically speaking, if the truck driver wasn't even liable for damaging the motorcycle, while yes, you're doing a slightly different claim to be like, well, I'm suing the company for personal injury damages, it might be different, like if you're not even liible for the damage to the motorcycle, how could you anybody be liable för the injury damages or whatever. So I, I think I'm going, but I'm gonna go between B, I'm gunna do. I'm gunna go between A and B because I think there's a chance that it's, well, all I, right. I'm between B and D, and I think I'm guna go with B.

1:04:41 Thomas: Let's see what the coin goes with. So the coin agrees with me. The coin also picks B. That's nice. I can be as wrong as a coin. I have no idea. This is tough. I just think B is the one that makes sort of a weird amount of sense, but it also could be honestly totally nonsense. This is an impossible lawyer question. I'm going with B. My other choice was D, and final answer.

1:05:01 Andrew: All right, and if you want to play along with Thomas in the coin, you know how to do that. Just share out this episode on social media, include the hashtag T3BE, include your guests and your reasons therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortunate not guaranteed.

1:05:15 Clip: And thank you, Let's go!

1:05:16 Andrew: Yeah.

1:05:17 Thomas: Now it's time to thank our new patrons at patreon.com/law. I bet you they, uh, might have pledged to enjoy the puzzle takes the bar exam, if you you haven't checked that out on Patreon. Gosh, it's so funny, it's great stuff. Eli, I died when, when Eli did his bit, it was the funniest thing in the world. Check that out. But let's thank our new patrons. Andrew, start us off.

1:05:35 Andrew: Thank you to Christy, to Andrew Klozenbucher, Wendy, to Ray S., to Justin Bryant, to Rick Talbot, to Ryan OKeefe, to the founding member number nine of the official Stacy Q fan club. All right. To Roseletemps. To show us the pitch deck, Andy.

1:05:59 Andrew: Oh, thank you so much. To Dan Downey, to Kitsunelaine, to Non-binary Astronaut. Well, thank you. And to Play Tecmo Super Bowl Online, www.sblueman.com.

1:06:15 Andrew: Ooh, well, I mean, you have to have a No Bo Jackson rule, but still.

1:06:16 Thomas: Cool. Or. I could play it right on my uh NES uh on my stream if I wanted to, but Say, but also. That. Shout out. Yeah. And thank

1:06:27 Andrew: Now,

1:06:27 Thomas: You to Jess Hall, Amy Stephens, Christopher Jansen, Steven Lardizabal. Vortexes (plural) was a thrilling read-WOW! Jason Canterbury, Daniel Kerr, Amber H., Karin Parker. Dismissing the root cause mitigation guy without studying his position is something a Republican would do. What? I don't think We Just

1:06:50 Andrew: Is that the root cause of gun control? I don't think we're dismissing him. We're expressing disagreement in a short segment. So.

1:06:51 Thomas: No It's Very weird. Yeah. No, I recognize, also I think you flat out like agreed with him or whatever, and I, I just said that I don't like guns, so I don't care. That's not, that's studying, all right. My opening arguments, my opening argument in this knowledge fight is to clean up aisle 45, but I'm tuckered out, as a reference to other shows. Michael Rauser, Nancy Reese, and Lara Hopkins, thank you so much. And that's our show. Thanks so much for joining us. Can' wait for, by the way, Morgan, coming back to the show. So, Pop Law, Britney Part 2 on Tuesday. You don't want to miss it. We'll see you then.

1:07:36 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.

1:08:09 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.