OA519: No, Britney Spears' Dad Is NOT Stepping Down as Conservator

Transcript

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

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 519. I'm Thomas, not a lawyer. That's Andrew, lawyer. How you doing lawyer Andrew?

0:01:25 Andrew: I, as good as any lawyer can do, Thomas, how are you?

0:01:29 Thomas: I just figured, I'm good, so, you know, maybe maybe someone just tuned into our show for the first time, just wanted to clarify. Like, you know, I mean, it's pretty obvious the minute I start talking, but you never know, I don't want someone to think I'm the lawyer, but,

0:01:34 Andrew: Yeah, I wouldn't want anyone to think that yet, so.

0:01:45 Thomas: We have, we have a bevy of lawyers on today's show, not only do we, We have Andrew Torrez. We've got ACE Associate Morgan Stringer coming on for Britney Part 2. Can't wait to hear the update on that. I hope little bit better news. We'll see. The reporting has been interesting. We'll se how that all shakes up.

0:02:02 Andrew: Yeah, the reporting is that that's done, right? That's, you know.

0:02:05 Thomas: We'll have to see what Morgan says. She's the expert. Let's go ahead and bring Morgan on for Pop Law, Britney Part Two.

0:02:11 Clip: Of course, the Bob Loblaw Law Blog.

0:02:14 Thomas: And we are joined once again by Ace Associate Morgan Stringer, because there is a Britney update and I'm sure our listeners will recall our first Britney episode. How are you doing Ace Associate, Morgan Stinger?

0:02:29 Morgan: I'm doing well, and thanks for, thank y'all for having me back. Lot of legal news in pop culture, but I thought the listeners would really like an update on beloved icon Britney Spears and her conservatorship battle. Otherwise, as we know, the hashtag Free Britney campaign. So let's, I guess, talk about what happened since we last spoke. So she testified in court a few months ago, and it was absolutely heartbreaking. She was forced to get an IUD. Um, she said that the conservatorship made her feel trapped. It was really awful what, you know, happened to her. And bottom line of that testimony, though, is that she wants the conservatorsship to end. So I know I asked last time the question why she did not petition for that, and it turns out Britney said she did not know that she could petition to end the conservatorship at any time.

0:02:43 Thomas: Yeah.

0:03:14 Andrew: Oh, wow. Yeah, I would

0:03:16 Thomas: How is that the explanation for all this? Wow. Okay. But what about her lawyer? I mean, shouldn't somebody have known this?

0:03:27 Morgan: Yes, that's what, and I'm not sure how that happened because her lawyer also seemed stunned. So her lawyer, that was Samuel Ingram III, he was court appointed. He withdrew after that testimony. And so did actually Bessemer Trust.

0:03:40 Thomas: Yeah.

0:03:40 Andrew: Imagine. Yeah, what was the relationship with Bessemer Trust there?

0:03:45 Morgan: So Bessemer Trust was supposed to become a co-conservator of the finance aspect of a conservatorsship. But after that that testimony, they wanted out completely. And they actually had not taken, formally taken over the assets yet at that point. So they, you know, it was an easy transition to just get them out of the picture completely.

0:04:05 Andrew: Yeah, can't imagine why they would want out after that kind of thing. So, does Britney have a lawyer now, or what's the status?

0:04:13 Morgan: Yes. So Matthew Rosengart, he is one of these rockstar attorneys. He's an entertainment lawyer and a former federal prosecutor. His clients actually include Steven Spielberg, Keanu Reeves, and Julia Louis-Dreyfus and others. He also has been named one of Hollywood Reporter's power lawyers repeatedly, including this year. So apparently the Hollywood Reporter power lawyers is a thing you can be on. So there's a list for us to get on.

0:04:37 Thomas: So Andrew you haven't Uh, you haven't gotten that, not on that list

0:04:41 Andrew: I could use, you know, some new editorial glamour shots, right? Right. But Morgan.

0:04:44 Thomas: Let's get you a publicist, yeah.

0:04:47 Andrew: Yeah. Morgan, I think, has a great chance of getting in. So. All right. So you've got Rosengart. What what has what is the new lawyer done on the case?

0:04:48 Thomas: Oh, Yeah, Well,

0:04:57 Morgan: Yes, on July 26, he petitioned the court to remove Jamie Spears, Brittany's dad, as a conservator and instead have an interim fiduciary, Jason Rubin, from Certified Strategies act as a conservator. Because remember, Jamie remains the sole conservator now since Bessemer dropped out, which it was a good thing Bessemer dropped out. But again, that leaves, you know, the person that Brittany wants the least involved with her conservatorship. So again, I'm going to note that Britney can petition to end the conservatorsship at any time. And her lawyer actually has indicated that he will. But I think they're trying this path of least resistance strategy where if they get rid of Jamie Spears, then it's going to be a lot less of an uphill battle.

0:05:40 Andrew: I have a couple of questions. First is what information is really getting out to us? Right. Because last time we talked about this, you know, you mentioned that like virtually all the records are sealed. So, you Know, did did we learn anything from the new petition or, you Now, where where are you getting your information from?

0:05:59 Morgan: Yeah, there was actually some really good articles that did come out about this. But there was a lot of bad articles that came out about that. So I'm going to get to that. So we did actually learn some information this time. Like, as you said, you know, some of those records have been sealed. So last time I pointed out that we know Jamie gets paid $16,000 a month for being conservator, which, you have a documentary made a big deal about, but I pointed out that's not a ton of money. Thomas was in California can tell you in the grand scheme of things.

0:06:06 Andrew: You're

0:06:21 Thomas: Well, I was gonna say not, not a ton relative to how much she's probably pulling in as well.

0:06:32 Morgan: Exactly. But hold on to your seats. Now, that is $2,000 a month more than what Brittany actually gets from her own estate.

0:06:41 Thomas: Okay, it's like he gets paid more to kind of be in charge of her than she gets paid out from her estate, which she is the person, the only reason there is that money. Is that do I have that right? Oh.

0:06:56 Morgan: That is exactly right. And it gets so much worse. So yeah, Jamie also gets an extra $2,000 per month on top of that for quote, office expenses. I don't know what that means. So I guess, just to, you know, I don't know, because he's already being paid $16,000 a month. I don't know what, if he needs like an uptown LA office or what, but he also got one and a half percent of the gross revenues and merch earnings from Britney's Vegas tour that came out to $2.1 million, and 2.95% commission on her femme fatale tour. That was $500,000.

0:06:59 Thomas: Wow, wow.

0:07:28 Thomas: Logic

0:07:35 Andrew: And, and trying to parse out the arguments, right? I know that part of the argument for the increased fees for the father's attorney, who was a co-conservator, was that the attorney was getting cuts because the conservatorship was able to make money and get into these deals that otherwise Britney wouldn't be able to get into on her own, um, so, so, you know, was there any kind of evidence that Jamie Spears was was helping with those? I mean, I'm trying to steal bot, you know, getting paid those kind of, large you lump sums up front.

0:08:07 Morgan: Absolutely not. He was not part of those deals. As you'll recall, another thing that's a big red flag of him being a a conservator in the first place, is that he has no financial experience. He's just some dude from, you know, he's just from Kentwood, Louisiana, you know, just hanging out. And according to the petition, yeah, he had nothing to do with these deals. He is not her agent. He is night, you know, wheeling and dealing out there, or at least not on her behalf. Now, I don't know what he's doing on his own, but yeah, no, he is not her agent and has not been a part of her obtaining those deals whatsoever.

0:08:39 Thomas: Of it, that, just, as you say, from the other side, or at least the logic of the, the way it's set up, is the logic of it that she could not manage on her own, so therefore the person who is in charge of helping her even manage is entitled to some cut of this stuff, because without this person she wouldn't even be able to do any of this. Is that the logic of it?

0:09:00 Morgan: Yeah. No, that's, that doesn't make any sense either because actually, if a parent is a conservator of a conservatorship, it usually is not practiced that they get paid to manage it at all. Now, the justification could be this is a large estate, but again, he's getting compensated for that. He should not be getting compensating for these extra, you know, these extra percentages and cuts on revenue and things of that nature.

0:09:02 Thomas: Oh, Okay. Yeah, So anyway you work it out, it's, you know, someone trying to make more money. This pure and simple.

0:09:35 Morgan: There were these headlines that said Britney was almost free, basically, because Jamie petitioned last week to step down from the conservatorship. And So there were all these headlines saying, oh, she's there, you know, hashtag Free Britney, yay, pop the champagne, let's have a parade and hang the banners. But it's more like hang the Mission Accomplished banner, um, reference for Listeners, because Jamie actually did not petition to step down from a conservatorship. It's the opposite of what a lot of people reported. Yes, so if you recall, I mentioned that Brittany's attorney filed to remove him from that conservatorsship.

What Jamie filed was actually an objection to that, but he did this in a very sneaky way. So Jamie's lawyer, who is Vivian Thoreen, she says in the petition there are no actual grounds for suspending or removing him from a conservatorship, and that it is highly debatable whether a change in a conservator at this time would be in Miss Spears' best interests. Nevertheless, even as Mr. Spears is the unremitting target of unjustified attacks, does not believe that a public battle with his daughter over his continuing service as her conservator would be in her best interests.

0:09:44 Andrew: Right. Really?

0:10:48 Thomas: Guy, you

0:10:49 Morgan: Yeah, poor him.

0:10:50 Thomas: Know, we've been too hard on this guy, making 20 zillions of dollars for doing nothing. You're right, who's the real victim here? So

0:10:58 Morgan: Yeah, and they're telling the court, you know, it's not in her Best Interest to have Jamie removed, but they are also trying to make it look like that is also in her BEST INTEREST to have him removed, but that's only because of a public attention. So if we're trying to have it both ways here, by saying that, you know, this is not in her best interest as a conservatee. And remember that what is in the conservatees actual best interest is the standard. So this is a really sneaky way of saying it actually is not in Britney's best interest to remove Jamie. I'm only saying I'm going to step aside because I love my daughter so much. And he actually says that he should stay on to finish up the 12th account. And that is the 2019 financials. But then he says, I need to stay on until all the financials are done up to the date that he steps down.

0:11:47 Thomas: The reason everybody reported this badly was because he threw in some, like, you know, essentially dicta about, like, oh yeah, step aside, but really he wasn't actually even stepping aside. How did everybody get this exactly backwards?

0:12:01 Morgan: Yeah, so I think that they did because of that language, right? And I think he put that in to have this sort of PR spin on it, right, to be like, exactly, which is why I'm doing this segment, because there seems to be this real gap of, you know, there's pop culture reporters, and then there's legal reporters, And then there's some that do a good job of in between, you Know, the L.A.

0:12:07 Thomas: He He listens To Oa He's Like, I know how badly the law is reported in the media. Yeah.

0:12:24 Morgan: Times actually did a great article about this. And, you know, they also noticed, as I did, that it's not as simple as it seems. So, yeah, you

0:12:18 Thomas: Mm-hmm. Oh, He Didn't Count on Ace Associate Morgan Stringer on OA, everybody, we got him. Well,

0:12:39 Morgan: Can't get past me. You can try.

0:12:41 Andrew: So I want to I want to go back to to what you said before that, which is apparently as conservator Right. And again, making sixteen thousand dollars a month plus an extra two thousand for his office expenses, which admittedly doesn't go that far in L.A.

0:12:54 Thomas: That's All nothing compared to the percentages of the shows too, where he's getting millions of dollars Well,

0:12:59 Andrew: Oh, yeah. Yeah. But presumably he gets those regardless. Right. Or is that that's also tied to the conservatorship?

0:13:08 Morgan: Yeah, that was part of my understanding of it is that because, you know, obviously they have not let me see those contracts. But my understanding is that was, was part of the deal with the Vegas residency is that he would get these percentages and the excuses, you know, that I'm managing the conservatorship,

0:13:16 Andrew: Yeah. Got it. Got IT. So he was in a position to negotiate that deal because of his role as conservator to

0:13:35 Morgan: He did not actually do the negotiation of it, but He did enough to like, I guess, get the cut, but it was not the one like calling up these different casinos, you Know, saying, hey, I can get Brittany there and everything. Yeah, no, he was not involved in any actual like work to get this done.

0:13:40 Andrew: Get yet again. Got

0:13:52 Thomas: I have to imagine that it's it's essentially the kind of thing where it's like he has the power he would probably have veto power right because he's in charge of her so it's it's almost like paying a cut to a mobster or something. Don't you think? Yeah.

0:14:04 Andrew: It Yeah.

0:14:06 Morgan: Yeah, I think that's a very good point. I do think that because, as you'll recall, I noted that the conservatorship is not just her finances, it's her personhood.

0:14:17 Andrew: But I don't want to lose track of this. He he's only accounted for the finances up to 2019. Oh.

0:14:24 Morgan: Yes. So, and there is a reason for that. So these accountings take years and, they can even in a regular conservatorsship. So because They're just not a very big priority of the courts, as you can imagine, you know, judicial resources, you know, we need to fund our courts better. That's different rant for a different time, but yeah, the 2019 financials also were not filed until August of 2020, and they still are not finalized, and this is the 12th account that I was referring to earlier, and obviously we're in 2021 now, so Jamie is very sneaky about this, or his attorney is, rather, by saying not only until he is up to date completely, will he then resign. So, well, gee, gee, sure, it's you, a shame that that date just won't come because it's so hard for him to stay up on those darn financial statements, you know? So he's saying basically, oh, not only to the 12th account, but then, oh no, well, I just got to the 2020 account.

0:14:26 Andrew: Okay. So

0:15:21 Morgan: So now, you know, I'm still behind. I'm always going to be constantly behind. And this magical date just is never going to come.

0:15:30 Andrew: Essentially he can stay on as conservator indefinitely, right? Like it's sort of, you know, Achilles and the tortoise, right? Like the financials will always take up so much time that you'll never catch up to them. And by the time you do, there's a fresh new batch of financials that have come in that. Am I understanding that properly?

0:15:50 Morgan: You are exactly right. That is exactly the plan here. That's why I said It is kind of a one weird trick by saying, you know, oh, I love my daughter so much. I'm going to step aside. But, you oh no, this magical date hasn't come. What are you going to do? Oh, shucks. You

0:16:05 Andrew: And I mean, my understanding from a legal perspective, that as a conservator, like even after you have petitioned to withdraw, you there's still a period in which you have to answer to the court, right, for the the areas over which you were responsible during the period of your conservatorship, right, and

0:16:23 Morgan: Is correct. So Jamie can actually petition to resign at any time. The end. You're no longer conservator, but he still would have to turn in those financial reports and tie up other loose ends. And he can actually tie up all those loose ends without having to be the named conservator, conservator. So basically the court would say, okay, you're out of here, go home. But while you're at home, finish up what you were doing and basically find a good stopping place. And he would still have to answer to the court for the work that he did and for the finances while he was the conservator, the court maintains jurisdiction over him, but we have a new conservator now that has come in, just basically find it. Yeah.

0:17:04 Andrew: And he'd be able to run expenses through, I mean, not not at the same level, but but, you know, wind up expenses, he'd still be able to petition the court for the estate to pay those, right? Yeah.

0:17:17 Morgan: So he wouldn't be paid for that because he would not be be acting as a conservator, and he would be having to do that anyway. But I'm sure he if he ran into out of pocket expenses or something of that nature, then yes, he could petition for that.

0:17:27 Andrew: Yeah. That's what I meant. Yeah. And, you know, this two thousand dollar a month office, and, you know, it seems like he's got other expenses that he's been running through this gravy train for a while.

0:17:40 Morgan: Yeah, it seems quite a bit, as we see, apparently millions of dollars, which is something I mentioned last time I was on, you know, that I don't know what the motive is. Because again, as you know, Thomas can attest to, California is very expensive. You know, about 100 grand a year isn't, you know, oh, I'm making it out here in LA. So yeah, that is what's happening. But yeah, no, if if, if the conservator was not allowed to basically tie up loose ends while not after they petitioned to end the conservatory, their conservatorship status, then transferring conservatorships would be an absolute nightmare, because then you would be stuck over the conservatorship forever.

0:18:18 Andrew: Sure. Sure. That makes sense.

0:18:20 Thomas: As we're running out of time, I I we we skipped right over the IUD, um, thing, uh, did you have thoughts on like what was, what was that, what was happening? Yeah.

0:18:29 Morgan: God, I had, I mean, anger that That was the thought, the thought just pure rage, um, so yeah, she, because again, Jamie Spears is the conservator over her personhood, so he arranges all of her medical care, he arrangesall of her doctor's appointments, and she was told to get an IUD, she was forced to get one, and she mentioned that she, you know, she has a boyfriend friend now and she wanted to have another child and she couldn't because she was being forced to get an IUD against her will.

0:18:33 Thomas: Is That really how this work? I was just hoping this was more bad reporting. So in a, okay, maybe topic for another show, but in a conservatorship, you're saying that like he is able to make medical decisions, so she's in a doctor's appointment and what, he's there, like, saying, you have to get this, and the doctor's like, well, he's the conservative, like, I'm just, I don't know how this would even work, I guess, my mind is blown, here, what?

0:19:23 Morgan: He is her agent for all purposes of that, she basically is, it's like she's incompetent to make medical decisions for herself, so he makes the medical decisions for her, even if she objects to them.

0:19:34 Thomas: Kind of doctor would do that though, like, I would, you know, like, wouldn't you just be Like, uh, I'm not going to do something against a person's will who I obviously can talk to right here in front of me, that's crazy, that's

0:19:38 Morgan: Yeah. Los Angeles is full of all kinds of dark characters, so Um. But, um, yeah, that that was something that I thought about as well, you know, what kind of Doctor would clearly see that this person did not want this to be happening and do it against somebody's will. It's, yeah, it's unconscionable, but, you know, there's people out there that are willing to do it.

0:19:49 Thomas: True. Yeah. Wow. Yeah.

0:20:06 Andrew: Well, what's next? Right. What are we looking for is the next development.

0:20:10 Morgan: So there actually is going to be another hearing. It'll be on September 29th. Brittany's lawyer did file a petition to expedite a hearing on the issue of removing Jamie, and that was actually denied. September 29th is the date. They are not going to to be moving it up. And it's expected that the judge is going to address Jamie's objection and Brittany's removal petition. But there's some other smaller filings that the Judge needs to address as well. So we're going to see what happens with that. She may address it. She may not. We'll just see what happened September 29th.

0:20:43 Andrew: All Right. Well, we'll have to check back in with you after that. I cannot believe how wrong everybody has gotten this story. So I'm I'm looking forward to to you covering the next developments.

0:20:57 Morgan: For sure. And also, yeah, there's a lot of legal issues in pop culture to delve into. There's another conservatorship battle actually happening involving Nichelle Nichols. She was on Star Trek. Yeah. So listeners may be familiar with her. She is having a conservatorship battle happening right now. Also Scarlett Johansson, obviously. She sued Disney. So yeah, there's legal issues always in Hollywood. And they just a lot of times do not get reported on or talked about well. But another time.

0:21:07 Thomas: Yeah. I Saw That

0:21:25 Andrew: Yeah.

0:21:25 Thomas: Thanks So much, Ace Associate Morgan Stringer, for the pop law, blah, blah, blah's pop law segment on, there's Always pop law On the banana stand. Yeah, all right, thanks so mucho.

0:21:26 Andrew: Yeah.

0:21:33 Morgan: Workshopping Vinay.

0:21:36 Andrew: Thanks, Morgan. All

0:21:37 Morgan: Thanks for having me on again. Until next time, y'all.

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0:25:27 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

0:25:37 Thomas: Right, Andrew, enough time here for a more law for everybody. What's the good? Hold on, I'm seeing the spreadsheet. Good news, that's a rare, if I do a control F for good news in our spreadsheet in the lifetime of the show, there's like

0:25:48 Andrew: Yeah, you will not get a lot of hits.

0:25:50 Thomas: Yeah like Seven. So what's the good news? I knew it can't just be good news.

0:25:53 Andrew: Yeah, well, there's I'm going to combine this is going to be a good news, bad news segment because it is. Look, look. No,

0:26:02 Thomas: Well,

0:26:03 Andrew: No, no. There's an unequivocal good news opinion. OK, that opinion is an intermediate Illinois appellate court in a case called Hobby Lobby versus Somerville. So that tells you Hobby Lobby lost. Those are not hard to figure out. And that has to do with trans rights under the Illinois Human Rights Act. I want to contrast that with an opinion issued the same day on Bonk Fifth Circuit interpreting Texas SB eight that is being grossly misdescribed as like the, you butchering babies inside the womb bill. It I shouldn't have been facetious there.

0:26:50 Andrew: The bill refers to the D&E procedure, Dilation right? And extraction. The most common second term, second trimester abortion procedure as, quote, dismemberment abortion. And I want to hit that opinion because it the contrast between these two fits into a thesis statement. I've been advocating for a while now that until we can, you know, manage to to un-F the courts, you know, however we do that, the idea that you should be looking to not just activism at the state level, but but even where state of action, state statutes, state constitutional provisions are exactly the same as their federal counterparts, that you should be arguing in state courts on those state statutes where you have a chance of winning.

0:27:49 Andrew: So let's start with the Illinois case. This is a really, really good way to illustrate that. So this case is Hobby Lobby versus Somerville and it involves a long-standing employee of Hobby Lobby a a transwoman by the name of Megan Somerville um this is exactly the kind of behavior you might imagine um Ms. Somerville began transitioning in 2007, not disclose her female gender identity to anyone at Hobby Lobby until 2009. And that's when she began receiving medical treatment that resulted in female secondary sex characteristics, such as enlarged breasts, the absence of facial hair, etc.

0:28:40 Andrew: So 2010 is when she began to use that name, Megan Somerville, and appear at work in what the court describes as feminine dress and makeup without objection from Hobby Lobby. In July 2010, she obtained a court order legally changing her name to Megan Renee Somerville, got a new driver's license, a new Social Security card, both of which showed her new name and identified her as female. Um, so right, everything seems to be coming up roses, uh, but this is Hobby Lobby, so that couldn't last.

0:29:14 Thomas: And it's 2010, that's like an eternity ago in trans rights years, uh.

0:29:16 Andrew: Yeah. Yeah. Yeah. It really is. Um, so on July 9th, 2010, uh, Somerville formally informed Hobby Lobby of her transition and her intent to begin, say it with me, using the women's bathroom bathroom at the store. So Hobby Lobby changed her personnel records, benefits information, updated her as a woman, but refused to allow her to use the bathroom. Faced with an initial demand that she produce, quote, legal authority requiring it to allow her to used the bathroom, Somerville provided Hobby Lobby with a variety of documentation, including her driver's license, her Social Security card, her name change, her court order, letter from her medical providers identifying her as female, describing the transition process. I mean, the kinds of things nobody should have

0:29:31 Thomas: I

0:30:03 Andrew: To show their employer.

0:30:03 Thomas: Was gonna say if Someone asked

0:30:04 Andrew: So, yeah.

0:30:04 Thomas: Me, Like, can you legally justify the using the bathroom, I'd be like, do you, do you want a urine sample, do you, I mean, I need to go to the bathroom, and this is the bathroom, that's all, end of discussion. What is, that's that, what are we doing here?

0:30:12 Andrew: Yeah. As it turns out, Hobby, uh, Lobby is not just the court describes it as, they, they, quote, assertively enforced its policy, and mentions that Somerville occasionally used the women's restroom even after being instructed not to, for reason that I'm about to explain. So on February 23rd of 2011, she was giving given a written warning for entering the women's restroom at the store. She testified that she was emotionally devastated by receiving that written write up, which I can imagine, and broke down crying. February 2013, she filed complaints with the Illinois Commission on Human Rights, alleging that she had been discriminated against on the basis of her gender identity in violation of the Illinois Human Rights Act, Articles 2 and 5, which cover employment and public accommodations.

Patients. Throughout the course of the litigation, Hobby Lobby changed its position as to what it was requiring for her to use the women's restroom. So at one point, it said that she must undergo surgery. Well, she did that. Then it required she produce a birth certificate reflecting her sex as female, which she did. In December of 2013, Hobby lobby installed a unisex bathroom at the The store store employees and customers were permitted to use either the bathroom, quote, corresponding to their sex or the unisex bathroom. But Hobby Lobby did not permit Ms. Somerville to use the store's women's bathroom. She was allowed to use The Unisex Bathroom. We're going to talk about that in a second.

0:31:53 Andrew: Second. She also testified that the availability of the unisex bathroom did not ameliorate her feeling singled out for different treatment because she was trans, right? She, quote, "Felt like in some ways they were recognizing me as female, but yet they were segregating me. I felt as though there were the guys, the gals, and then me," end of quote, which I find incredibly, incredibly easy to believe. So we talk about, "Why did she continue to use the women's bathroom?" Well, it turned out that based on where she worked, the women's bathroom was close nearby by and everything else was a 10 minute walk, and she later uh had um medical difficulty with it. I'm just going to read

0:32:04 Thomas: Bet that Sounds

0:32:41 Andrew: From paragraph 11.

0:32:42 Thomas: Like a problem beyond, forget everything else, that sounds kind of like a weird problem, where did the just cis men go to bathroom then, you know, they had had to walk to, it's

0:32:42 Andrew: Yeah. No. Um, here's how she put it. This is paragraph 11 of the complaint. Um, "As a result of Hobby Lobby Lobby's ban on her using the women's bathroom at work, Somerville was driven to try various ways of coping with her need to use the bathroom. For a couple of years, she was able to hold it and refrain from using the bathroom until her lunch break. But in 2012, she was diagnosed with a medical condition that led to her needing to use the bathroom three or four times a day. She then began limiting her fluid intake.

0:33:16 Thomas: Called being a human, did

0:33:18 Andrew: Yeah, well, yeah, yeah.

0:33:18 Thomas: Somebody get, sorry, are you guys not drinking enough water, everybody drink more water, I, there's one thing I do well in life, it's actually drink enough water, it's like one of the few things I do, you should be going to the three to four times a day, that's just normal, what, hi.

0:33:33 Andrew: I agree. I agree with that. But

0:33:34 Thomas: I have a medical, here's my doctor's note, it says this person is a human being, this is a condition I have, oh.

0:33:35 Andrew: Yeah. Yeah. And remember, during this time, I mean, you asked the question about cis men, Hobby, this Lobby didn't install the, the unisex bathroom until 2013. Right. So there was no other option at this point. There was, she could use the men's room or nothing, which she tried to do, or walk out to another store, store. Right. So the court then notes, if she left the store to use the bathroom at nearby businesses, she had to punch out from her work shift, walk about 10 minutes each way, a walk that occurred in in fair or foul weather.

Okay, um, so, uh, I'm not going to go further into all of the ways in which this was terrible, uh, because it's obvious all the ways in which this is terrible, I'm going to to go into the fact that this, uh, like the Fourth Circuit's ruling in the Gavin Grim case, um, is an unconditional victory, um, and that, what makes it interesting, right, that, that so the, this is the Illinois state intermediate appellate court, okay, and it says, look, uh, our state, uh, anti-discrimination statute sets out its goals, uh, which is to secure for all individuals within Illinois the freedom from discrimination against any individual because of his or her sex or sexual orientation. And then it says, there is no dispute that in this case, Hobby Lobby is barring Somerville from using the women's bathroom because she's a trans woman.

0:34:11 Thomas: Love it god gotcha nice

0:35:04 Andrew: That is, a woman whose designated sex at birth, and again, I'm quoting from the opinion here, was male, instead of a woman who was designated as a female at birth. Hobby Lobbies conduct thus squarely falls within in the definition of unlawful discrimination under the act, as it treats Somerville differently from other women who work or shop at its store solely on the basis that their gender identity is not, quote, traditionally associated with her designated sex at birth. Commission found in her favor, trial court found in their favor, this is affirming that award of $220,000 in damages. So that is compensatory damages and damages for four years worth of intentional infliction of emotional distress, stress um, uh,

0:35:48 Thomas: At the end of it, or can we get some, like, you know, penalty, whatever, to, like, don't do this to other people.

0:35:53 Andrew: That, is the end of it with, uh, respect to Hobby Lobby. So, yeah, like, it sounds

0:35:57 Thomas: Sounds like not enough money but at least it's something

0:35:59 Andrew: Like Not enough money to be too, uh, Hobby Lobby is almost certainly going to appeal to the uh, Illinois State Supreme Court, and I don't think they will take this case, um. That's, that's there's That I

0:35:59 Thomas: Hmm.

0:36:08 Thomas: But I mean, I'm gonna Say That's not enough, but Hobby Lobby would gladly pay $200,000 to be mean to a trans person. Like, they don't, you know, like that's enough money, we We need A McDonald's Coffee lawsuit amount of money

0:36:19 Andrew: Agree With You, but yeah That'll, that'll be great, and then, you know, people can completely misunderstand that one For the For the rest Of their lives, but

0:36:27 Thomas: Yep More More Show topics for us, and

0:36:31 Andrew: Fair enough, um, what, I really really like is, um, a couple of things here. Right, so the first is, uh, as I alluded to at the beginning of the segment, um, Illinois law does not differ greatly from Title Seven, it is a standard anti-discrimination law. But more and more we are finding, as uh, Trump has kind of put a capper on the politicization of the federal courts, state courts saying, uh, we will not read our state statutes in pari materia, right, that is as if they were equal to, uh, their federal counterparts, even if they use similar or the exact same language. Um, and I want to tell you, that this is, an this is a modern development. And by modern, I mean last 10 years.

0:37:18 Andrew: Right. I mean, in response to George W. Bush's judicial appointees and Donald Trump's judicial appointments. Right, looking at Justin's and Corey's on the court with no background, no history, just imposing right wing political outcomes on cases. And I can tell you that because of an area in which I have done and continue to do a fair amount of work, and that is employment practices cases. Virtually every state has a state fair employment statute, wage and hour law that requires you to pay overtime. Time. Those state statutes are virtual replicas, right, of the federal, the corresponding federal acts.

0:38:08 Andrew: Right. And again, virtually every jurisdiction says we read our state's requirements in pari materia with the corresponding Federal cases. So what that means is that when a federal federal court says, oh, you don't get overtime in X case if you're Y profession, while that wouldn't necessarily be binding on a state statute, you say as a court we're reading federal interpretations into it, now all of a sudden that becomes, again, it's still technically a persuasive opinion. And it's still technically dicta, but it's basically a holding that applies in your state. Right. So when federal courts decide things, even very, very conservative federal courts, they get read into how states interpret their own statutes.

0:38:58 Andrew: Um, and this is a good example of how a state is moving away from that and, uh, is specifically analyzing right in language that applies only to the Illinois statute. Um, how, yeah, yep, that's exactly

0:39:13 Thomas: That's a good Thing To try to keep it out of the Justin's and Cory's hands, you're saying, okay, Good That's Gotcha Well, that's double good news. So far, what Is the bad of part It This

0:39:18 Andrew: Right. Yeah, yeah. Yeah. Yeah. It really is. And no, and let me, let me give a little bit more, because this really is an excellent opinion, it kind of cuts through, you some of the nonsense claims that, you, you may see findings success in, know, in other areas. And, and let me give you two of those, because these arguments come up again and again. The first is, right, Hobby Lobby argued here that they qualified for an exemption in paragraph five in Section five of the Illinois Act that permits men's and women's bathrooms in the first place.

Right, so I want you to think about, like, sort of the deviousness of that, that argument, um, in a great many cases where lawyers are asked to defend open Bigotry against, uh, trans people, the source for that bigotery is, well, come on, we just, like, in the law, you have to make decisions sometimes, uh, and uh, you can, um, draw a line, and I'm real sorry if drawing the lines makes some people sad. But, you know, that's, that's what you have to do. It's no different than saying you can't drink to your 21, you can't vote to your 18, driving 66 miles an hour gets you a ticket, driving 65 doesn't.

Right, that's, that's the best kind of steel botting I can do of that argument. And it says, look, and we have to be careful, we have to preserve, you know, the right to have separate men's and women's bathrooms, um, I want to tell you the way this decision, um, unpacked that argument, looking at, uh, that Section 5103, which says nothing in this article shall apply to any facility, and I just think about, about how this is written.

0:41:11 Andrew: Any facility as to discrimination based on sex, which is distinctly private in nature, such as restrooms, shower rooms, bath houses, health clubs, and other similar facilities for which the department and its rules and regulations may grant exemptions based on bona fide consideration of public policy. So that's a lot of legal words kind of crammed in there, but basically it says, yeah, we are grandfathering and you don't get to sue the fact that, you know, a business has a separate men's and women's room. And here's how the Illinois appellate court tackled that distinction and said, OK, fine, but that doesn't have anything to do with whether a woman can use the woman's bathroom. Right. It says this does not excuse Hobby Lobby's conduct here.

0:41:58 Andrew: As we've noted, Somerville is a trans woman. She is classified as female by the state and in Hobby Lobby's own personnel records. Nevertheless, yeah, nevertheless, Hobby Lobbie denies her the ability to use the women's bathroom, thereby treating her differently than its other female employees and customers. This differential treatment cannot be discrimination based on sex. Somerville is female, just like the women who are permitted to use The Women's Bathroom. The only reason she's barred from using the women's bathroom is that she's a transgender woman, unlike the other women, at least as far as Hobby Lobby knows. Thus, the commission correctly found that Hobby Lobby unlawfully discriminated against Somerville based on her gender identity. That

0:42:06 Thomas: Is just stopping someone from using the bathroom Yeah Interesting Hmm Worried

0:42:46 Andrew: Is because she's trans. Even as Article 5, the bathroom exemption does not excuse discrimination based on gender identity, it therefore cannot aid Hobby Lobby here. And I just thought that was incredibly clever and and sort of cut right to the heart of it.

0:43:02 Thomas: Though Doesn't that seem like it would cut both ways? Because, because in the past, we've talked about the Flounder Ripple concurrence and stuff like that, where it's like, we want to get this stuff counted in, you know? Like, we wanna get trans rights counted in to certain things, and this sounds like a technicality to get it not counted in the thing, even though this is a good result. Is this gonna come back to haunt us later?

0:43:24 Andrew: That's a fantastic question. And I think the distinction here is, what this does is not rule out trans rights, but rather says that discrimination on the basis of being trans comes from under the Illinois statute gender identity, rather than just from gender, rather than, than just on the basis of sex, since gender identity is equally protected under the law, but does not form the basis for these bathroom type exceptions, that in my view gives you all of the upside with none of the downside. I am sure the Alliance Defending Freedom will try and come up with some sort of evil way to use this against us. But, but that seems like a hard argument to overcome. They also do the obvious job, but it's good job in saying that installing the unisex bathroom is not good enough.

0:44:18 Andrew: And the commission, the commission below characterized this as separate but equal, which, you know, I'll go pro commission. Right. And the appellate The court said, yeah, the existence of the unisex bathroom is irrelevant to the main issue in this case, which is whether Hobby Lobby violated Somerville's civil rights by denying her, but not other women, access to the women's bathroom. Providing a unisex bathroom available to all employees cannot cure that unequal treatment, because if every employee and customer except Somerville may use either the unisex bathroom or the bathroom corresponding to their sex, but not her, then Hobby Lobby is still discriminating unlawfully. And that is totally straightforward.

This And is, I think, a really straightforward but fantastic example of where courts are saying, OK, well, we've got to do the heavy lifting ourselves because the federal courts are a disaster. And we will break down in another episode the bad news, the whole women's health versus Paxton. I'll summarize it here. Senate Bill eight passed in 2017 has been litigated consistently since then. And that outlaws the dilation and extraction procedure, which, again, as I said, is the most common procedure in the second trimester, refers to it as dismemberment abortion. And the bill requires a doctor performing a DNA abortion to first cause fetal demise by injecting a chemical compound into the woman.

0:45:59 Andrew: And then delaying for at least a day. So you can say, oh, we've now proven that the fetus is dead and now you can extract it. Because the idea is if you try and extract it while it's still alive, you're, you know, you're dismembering it and that is causing the fetus untold pain. Medical. Yeah. Undisputed medical evidence is no, it isn't right the fetus does not have a complex corpus callosum at that age. And there are a ton of procedure, right? Like if you applied that test, for example, to, I don't know, performing circumcision on a on a a newborn male, you know, then that would not pass. Right. Like they're just in no way has there ever been a compelling state interest in, know, minimizing pain to a fetus.

0:46:53 Andrew: And that now is what, and so, so that was challenged, the, the district court, the district court held a five-day trial in November of 2017 and enjoined Senate Bill eight from going into effect. That was appealed to the Fifth Circuit, and last October, we covered this as a brief one line good news item, to, one panel of the Fifth Circuit upheld that trial court ruling, said, uh, absolutely, um, we're going to enjoin this, this abortion provision from going into effect, um, the Fifth Circuit later, uh, suesponte right, on its own motion, decided to vacate that judgment, rehear the case en banc, uh, with the full 17 member 5th Circuit, 14 justices participated, three sat out due to conflicts, reversed.

0:47:40 Andrew: The panel said that there was no medical consensus and, quote, little merit to the state of Texas's argument that the D&E procedure causes pain to a second trimester fetus, and noted that that major medical organizations, including the American Medical Association, the American College of Obstetricians and Gynecologists, and the Royal College of Obstetricians, a Gynecologist, have all concluded that fetal pain is not even possible before at least 24 weeks. And this is, we're talking 18 weeks and earlier. So, you know, a month and a half before there's pain. OK, instead, the new en banc decision says that it gives four different grounds for the state having an interest in this policy.

But I mean, three of them are so pretextual as to I'm not even going to repeat them here. The one that is the linchpin is the state argues that by requiring doctors to choose alternatives to a brutal abortion procedure. By the way, that kind of language is rife throughout this opinion, right? I mean, you know, it says, you know, we wouldn't let you chop up a puppy, so why could you do that? I mean, it's just, you crazy. That evinces the state's, quote, profound respect for the life within the woman, end of quote.

0:48:13 Thomas: Yeah, it's nothing.

0:48:56 Andrew: Dismemberment D&Es, I told you this case used ridiculous language, are self-evidently gruesome. It has long been illegal to kill capital prisoners by dismemberment. It is also illegal to dismember living animals. The state urges that SB8 would simply extend the same protection to fetuses. That's page 15 of the opinion, um, and I'm not gonna bother to debunk those self-evidently stupid arguments, uh, other than to say that, you know, where it comes to, um, an obviously blatantly unconstitutional effort to make it impossible for women to undergo the most common form of abortion procedure in state of Texas in the second trimester, this is one of those where I would have said, I don't care how pro-life the Fifth Circuit is.

0:49:44 Andrew: Right. There's not a you can't get to the legal answer they want to get to. Well, I guess you can if you're motivated hard enough. And and apparently they are. So this is this is a terrible result for for pregnant people, for for women and for those who can become pregnant. And don't want to end with the downer. I want to I want to end by by by saying I don't, we know the federal courts are are are F'd. We do not know what the status is of your state courts and and continue right to to be active. Take solace in the fact that we've gotten fantastic decisions from states that I never would have expected. And and and let's You know, we may be moving towards, you know, that kind of more local democracy. I'd rather have a robust, even federal protection, but I will take a state by state over nothing. So congratulations, state of Illinois. Yep.

0:49:50 Thomas: Yikes.

0:50:39 Thomas: All right, well, true to your word, I mean, we... we got a little good news, we got a little bad news, but sort of a good news sandwich, I'll take it, or I guess you would call it a bad news sandwich. Again, you call the sandwich what's in the middle of the thing. Anyway, that's okay.

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0:53:07 Clip: And thank you, Let's go!

0:53:09 Thomas: And Now it's time to thank our Hall of Famers, our all-time greats. And update on this, we are doing it the right way. We're taking our time. It looks like the polling is overwhelming that we are going to reduce this segment in some way. But I want to give enough time for everybody. We also want to, we need to choose a method. So next poll on Patreon. And by the way, I did the polling so that it's just for the people in the top tier. So if you haven't seen this poll on Patreon, that's why, um, but anyway, if you are in this top tier of shout-outs, make sure to go answer the questions on the Patreon poll. If you, uh, if you can give us your opinion, we want to make sure we are listening to, uh, to everybody. But anyway, it looks like this segment will be shortened, but we haven't decided how yet, so we're still doing it for now. We're going to thank all of our Hall of

0:53:09 Andrew: See?

0:53:54 Thomas: Famers, our all-time greats, and we have just hit 200, 200, Andrew. This is gonna It's Good every

0:53:59 Andrew: That's See That's The thing all we're trying to do is we're trying to balance out, we want you to share the show far and wide, but every other week when you're sharing it, you're sharing probably, you know, 15 minutes of content that, um, yeah.

0:54:16 Thomas: Other episode, not just every Every week, yeah

0:54:17 Andrew: Yeah Every week, every other episode, you got a 50 50 shot that somebody's going to be like, well, I like that show, you know, for for the first 45 minutes, and then, you know, there was something about, uh, two lesbians, and I don't, you know.

0:54:31 Thomas: Yeah The contract, the new contract Has not, it's not been amended yet, so your Turn First

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0:56:57 Thomas: I Know We're not getting rid of all of it one way or the other, we're, are not getting rid of everything.

0:57:28 Andrew: Right, yep Perpetually exhausted East Coast Mary. New, new book, The Greatest Gift of All, A Logical Path from Religion to Humanism, by Mark McLean, out now. Objection, USCF rule 13 C1 states that a director must never initiate a time forfeit claim for NF3. Well, I'll let you rule on that. One, Thomas, sorry for making you all try to say my friend's cat's name. I was proving to her that I'm a patron to WW. Enchantment: if this is in your opening hand, you may begin the game with this on your battlefield.

0:57:51 Thomas: Ley

0:58:03 Andrew: Field And you didn't even need To know you have hex Proof, wow

0:58:02 Thomas: Line of sanctity, I Already got it Nope Because I know, it's White, white, there's each, there's a ley line cycle sync So each color, uh, ley line of sanctity, so it starts in your hand, you pop it on the thingy and no one can target you, super cool. Annoying, actually I hate the card, but it's, it's A good sideboard card

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1:01:34 Thomas: Thank you to Christopher Brown, Sam Cedar. I can't, is that the Sam Ceder? I don't I Don' think we ever talked about that, but I, I think it could be, I don't, stranger things have happened on our show, uh, but anyway, if it is, hi Sam, thank, thank you so much, that's awesome. Well, I mean it is, uh, the The Sam Cedar.

1:01:42 Andrew: I sure hope so.

1:02:00 Thomas: Thanks for the live show. 2022, I bring the cheese steaks and fully stocked basement bar. Platinum night. Yep. Lawfulcopter says, Andrew and Thomas, from the bottom of my heart, thank you for everything you do. MR. OA live show in Sydney, Australia, please. I won't be vaccinated till October at the earliest, thank you, government. That's somehow coming up, we've been reading that one for a long time, and yet October is not that far away. Really, the coin is rigging T3BE with a Chinese thermostat controlled by an Italian satellite, that's, yeah, my new lawsuit owns bar exam pro tip, do not flip a coin unless it's an approved accommodation. Go to milesformigrants.org to donate your sky miles and credit card rewards to help refugees get out of danger. Wow, that's interesting. Milesformigrants.org, miles number, number four, and then migrants.org.

1:02:50 Thomas: I'm going to check that out. That's very interesting. I don't know how that would work exactly, but I would totally do it. Robert M. Lou, hold up in Japan, hiding from Delta. Get my vax next month. If I die, mix my ashes with glitter and mail them to the IOC. Brevity. Nick Komakoska, famed soldier of fortune at your service. Now that Andrew has mentioned scrums and rugby, always my favorite rugby analysis podcast. Black Canyon of the Gunnison Live Show. Pauly Hernandez. Fernandez, these are just simple farmers, people of the land, the common clay of the New West. You know, morons. Emily Rambeau Spence, in times when freedom seems lost, great souls arise to reclaim it. Legendary human barbarian answer at thedeckboxhalifax.com. Another Minneapolis waiting for our live show in Minneapolis. Jason Kopas, oh no, I am a third connection on Annie Schoonover.

1:03:40 Thomas: Metacon 7 has a pot for pins and a pot of beans. Jeans. Ian Hamilton. Hey Arizona, support Aaron Lieberman for governor. I spent my charity budget for the year. Help. Need everyone to roast the coin on Vulgarity for Charity. Stop calling him Uncle Frank. Nate Drex has to call him dad. Annie Schoonover, because we all hate health insurance, I decided to make something worse.

1:04:03 Thomas: Definitely not an MSNBC spy. Buy My Fully Stocked Basement Bar is your fully stock basement bar, for affiliate live show platinum event, you pick what's on tap. Listening for years, we just got the buttery males patron name, wow, that's, it took you a while. Jennifer Cratch Butts, three different ones. Civil politics radio dot com Fridays at 7 p.m. Eastern on Valley Free Radio. My stepdaughter is a fabulous lesbian, and and all I got was this Patreon name. John Bilderbeck. Mixed my coke with cop rocks and he died. Steven Balticate Sandoval. The reading of Hall of Fame patron names will continue until the filibuster is abolished. Give to Modest Needs.org. to ModestNeeds.com. Philip Kizer. Andrew the Arbitrarian Capricious. Not that Chris Wallace. COVID showed me I am the kind of guy who wants a little prick.

1:04:50 Thomas: Why would anyone jump on a grenade when you could just put a pin in it? Absion. Sorry for making you guys use the last one for so long. It was dumb anyway. Pains Trumpet. Dude. Jonathan. Lord Kimbote. No, Your Honor, I am not a cat, nor am I a potted plant, but I am a karaoke legend, if that helps. Edit Wikipedia. Yes, you too can contribute to the world's foremost source of free knowledge and maybe get sued by a quack. Milo Meadsong wishes all Stephen Breyers a happy retire now. Join your labor union. Together we bargain. Alone we beg. Alfred Wallace. Thomas, Peter Piper bequeathed pickled peppers producing pickled pepper perpetuities. The swordfish has no natural enemies, except for the even mightier penfish. Andrew is always fantastic because Thomas' theme music holds the rights to fabulous.

1:05:38 Thomas: 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 R.B.G. Nerd Gnostic sells art on Society6. They said I could be anything, so I became two fabulous lesbians. Derek, former undisclosed red state senior executive branch official, now figuring out next gig. Big Easy Blasphemy. It's kinda nice having a competent federal government again. Summitshuffleboard.com. Please be kind to your veterinarian, we are overwhelmed and doing the best we can. A string of unpronounceable characters. RhondaTheDork.com. Malaika Chandler, they said I could be anything, so I became two princes who adore you.

Soggy Pants, support bikeable cities to save America from the scourge of Eli Bosnick in a car. Hey Mr. Taliban, tally me bazooka, NATO gone and I want to go home. Adopt a homeless pet and oppose declawing and ear docking. Day Jury Belly at Patchy's at last. Baby Heather L. Matthew Vernon. Jeremiah's Fancy Microwave Emporium. Either Ian and Ally. Daniel Zari. Adam Costa. Eli Bosnick will have to reduce patronage amount for a while, but that we love and appreciate everything you do, happy to have you for as long as we had you. That's no problem, we love you back. Happy five-year OA anniversary. Wait, when was that? Did that just happen? Geez.

1:07:05 Thomas: I thought that we were already at like six.

1:07:05 Andrew: That will happen by the time you read this. Yeah.

1:07:08 Thomas: Wow, really? Happy five year, Andrew. Happy 5-year, everybody. Well, that's a good amount of time for this patron hall of fame policy, you know.

1:07:09 Andrew: Yeah. Yeah. And And also, uh, happy impending nuptials to Heather L. So, yeah, yeah, she's Yeah, so

1:07:19 Thomas: Wow Congrats. That wasn't in the shout outs, but okay. David in Brooklyn, Sam Donnell, Mitchell, I'm sympathetic to this patron name, does anyone else smell Indian food, oh hi Anoa, I agree with that 100, Natasha, Crunch Rap wants you to support the Justice Policy Institute, Sam Buck, and Conrad Michaels.

1:07:30 Andrew: So Until

1:07:45 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:07:51 Thomas: And now it's time for T3BE answer time. Boy, a very tough question for a non-lawyer. Was I even close? Let's find out. Well,

1:08:02 Andrew: So this was a question about efforts at litigation. So motorcyclist involved in a collision with a truck decides to sue the truck driver in state court. And again, the state federal court here is all red herrings for damage to his motorcycle. Jury jury it

1:08:22 Thomas: Is it I mean, there's already, there's the question of whether or not you could sue in federal court for something thing that's already decided in state court.

1:08:28 Andrew: It, with the exception of a thing I'm about to, I'm about to point out, so fair enough, not in a it Is, relevant? It, that the two courts are different, it is, uh, not relevant as to which one is state and which one is federal. So Um, jury returned a verdict for the truck driver, court entered judgment, motorcyclist, uh, then goes to sue the company that employed the driver and owned the truck in federal court for his injuries. And the company moved to dismiss based on the earlier state court judgment. And then the question is, if the court grants the company's motion, what is the likely explanation? And you and the coin went with issue preclusion, collateral estoppel, as establishing the accompanies lack of negligence. Um, you also, you were not at all tempted by C, uh, which is, uh, violated the doctrine of election of remedies. That's good, because election of remedies hasn't been a thing for over a century. Um, so good.

1:08:32 Thomas: It's not it is not irrelevant? Okay. Interesting.

1:09:27 Thomas: Yeah.

1:09:28 Andrew: Good job on that. One. Um,

1:09:29 Thomas: At least I have an instinct for, like, nah, I, I apparently I have that instinct, at least.

1:09:34 Andrew: Election of remedies was a 13th century Saxony common law thing that said you could not, you had to choose in your complaint which remedy you wanted, and you couldn't change that thesis between filing the complaint and going to trial. In other words, you can't plead in the alternative. You couldn't seek inconsistent alternative remedies. And as you and I have discussed, addressed, uh, the, rule today everywhere, uh, but particularly in federal court, is you can plead inconsistent remedies. Um, and the classic example of that is breach of contract. Right, you, you say, suppose you have, you and I have a contract, but it's an oral contract, right, uh, and you breach it, use, right, our, same five hundred dollars to paint my house, uh, you, you come by, you paint my house.

1:10:20 Andrew: I don't give you the five hundred dollars. You would sue me for a couple of things. First, you would sue me for breach of contract. And you would say, yeah, we did. We had a contract. You agreed to it. I came by, painted your house. Now give me the five hundred bucks. But you would also sue me in the alternative for unjust enrichment. And he would say you know what? Even if for some reason this crazy cockamamie court, who knows what courts are going to do, decides besides there isn't a contract, I have still conveyed a benefit to you. Namely, I've painted your fence and you owe me compensation for the fair market value of that. And by the way, I can prove through our emails, the same emails that I'm going to use to prove the existence of a contract, will show that you value having your house painted at $500. And so that simple, simple kind of method of pleading in the alternative, you know, because you never know.

1:10:55 Thomas: Interesting.

1:11:13 Thomas: Yeah.

1:11:13 Andrew: Yeah. And and and the existence of an oral contract is a really good example where, you know, you might have a he said, she said, you might have, you know, very little documentation, and lots of business deals get done that way, get done, you know, by the proverbial handshake that they shouldn't, part of what my practice does, but but they do. So so you plead in the alternative, nothing wrong with that. Election of remedies required you to choose, uh, and it's an archaic doctrine, it's gone now, and good, so you weren't befuddled at all by c, uh, you also used in the alternative d, uh, the state court judgment is law of the case, um, this is where the the fact that it's two different cases makes it law of thee case, right, um, means that when you litigate an issue. You can't relitigate that issue in that same court, in that same case. Right. And so the fact that.

1:11:14 Thomas: That's Why, I was very close between A and B, rather than B and D, I went back and forth.

1:12:06 Andrew: Yep. Yep, you were. And and you should have been you. You and the coin both went with issue preclusion. This is an area that trips up a lot of lawyers, not just on taking the bar, but as somebody who has litigated collateral estoppel versus rest judicata on multiple occasions, contributed to one of the foremost decisions in in Maryland on this issue, I can tell you courts get this wrong all the time. Right.

1:12:08 Thomas: Uh-oh. Even

1:12:38 Andrew: They they will say, yeah, and this is yeah, They will say, well, this is res judicata as to the party, and what they really mean is, you that the party is collaterally is stopped. Here's the difference. OK. OK, to Dakota, claim preclusion prevents you from splitting your claims. That is trying to take several bites at the apple until you hopefully get it right and then piling on with respect to that one. So claim precusion applies to anything that arises out of the same transaction, the same common nucleus of operative facts, and basically says, if you could bring it, you have to bring it. There's a mandatory joinder requirement. OK, issue preclusion says that as against the same parties, when a prior court has actually litigated the same issue and decided it on the merits, that you are precluded from relitigating that issue in a subsequent case.

1:12:38 Thomas: Courts get this wrong, okay, courts take the bar exam, CTB.

1:12:57 Thomas: Hmm. Let

1:13:49 Andrew: So you can see how these overlap a lot. The easiest way to kind of remember and keep them straight is that the issue being litigated has to be identical, and it must have been raised in the prior case in order to stop, to prevent you from doing it again. Yeah, res judicata means, yeah, we already decided that, you know, in a more sort of generalized way. And again, there are various criteria for whether something can. It also has to be a court of competent jurisdiction. It also hasn't been a final decision on the merits. But res judicada is meant to stop you from taking multiple bites at the same apple. And when you read this hypothetical, that's what the motorcyclist is trying to do.

1:14:38 Andrew: Right. He's trying to relitigate, hey, who's responsible for this accident? And the court is going to say, no, no. No, no no. If you thought you had personal injury claims as a result of the accident, even if they were against, a you different party, that you should have brought all of these in the same lawsuit from the beginning because. And I thought you came actually really, really close, not just when you came close to picking A, but in evaluating it because you were like, well, the courts already decided that the driver wasn't negligent, right? But the court decided the driver's lack of negligence in connection with damage to the vehicle, right, well think of all the, and not with respect to injuries to the person, right. And think of All the Different Ways, yeah, go ahead.

1:15:28 Thomas: Me put it a different way. I think this is what threw me off. I was imagining, what if the original thing had been successful, and and then the person is like, the motorcycle is like, oh, you know what, not only did this truck driver injure me, the, the company that, like, hires him is responsible. Let's say, they let's say it's Amazon, and they've got the delivery trucks going too fast and all, all that, would, does that not change the answer? You would you would have had so okay, so you have to raise that in the original claim. Okay see Interesting.

1:15:52 Andrew: Same same result. Yeah, that's exactly right. Yeah. And you think about it, like the, the reason why claim splitting is kind of rolling the dice, is that way, lawyers will try and do it, is they'll bring part of the claim and then, like, kind of see how the case is going, and then you get a free, you know, in federal court, you get a free amendment as of right, in different states have different rules about, you know, their cases, and you would want that, right? Like, so, for example, standard auto accident, Thomas sues Andrew. You don't discover until discovery that Andrew was working, you know, I was on the job at the time, and I was working for somebody else, you know, but I, but they just had me use my own car. Right. So you might want to bring in my employer as a co-defendant at that time. Right, and we would want you to be able to amend your complaint in good faith at that.

1:16:53 Thomas: You Can: still Amend it that late, okay?

1:16:55 Andrew: Yeah, you can absolutely still amend during discovery, discovery.

1:16:56 Thomas: After discovery just during discovery

1:17:00 Andrew: Right yeah um so you know it, so so differentiating

1:17:00 Thomas: Okay gotcha okay yeah that threw me off a little, I yeah, okay So you would need to, how I was close, I wish I had gone with A and B, for the, the sake of my second chance, it's rare that my second chance loses, but it did. I gotta say, this is one of those cases, dang it.

1:17:04 Andrew: Yeah a Tough question, parsed well, and, you know, at least the coin went down with you.

1:17:21 Thomas: Yeah, we'll have to see if the judges say we can count this as a usually I don't count the coins lost unless it had the choice the other choice, you know, but it chose head so you either way it would have lost so I don's, it's an interesting philosophical question for Dan Dennett or somebody, but anyway let's find out who the big winner is, who beat beat me and the coin and got the right answer. Who won? Turn to do the T3BE winner so I am instructed to tell you that at pope internet underscore looks like capital I, which I guess is the first, but anyway, that person on Twitter said answer is A, rest judicata applies to claims that have been brought and claims that should have been bought.

It's so hard to listen to Thomas talk himself out of the right answer, the Thomas Smith story, the T3b story. Yeah, I bet. I I bet it was so hard. Andrew said not many people got this right, so that makes me feel a little bit better. That was a tough question. I got it wrong, but thanks to the Pope of the Internet, at PopeInternet underscore I.

1:17:37 Andrew: And

1:18:26 Thomas: Yeah, well done. You got it right. I don't know if the Pope needs any more fame and fortune. I think he could give some of that fame and fortunate to the kids, you know, to the starving children in the world. That way, here's a little more fame and fortune for you. Fame and fortune, definitely guaranteed. Because it's me, it's not Andrew. Congratulations, Pope Internet I. that's our show Thanks so much for listening. Thanks to Ace Associate Morgan Stringer for the Brittany update. That was great stuff. And we'll see you for Rapid Response Friday.

1:18:52 Andrew: Then

1:18:53 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.

1:19:26 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.