OA539: Pablo Escobar's Cocaine Hippos Are People, My Friend (?)

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 539. I'm Thomas, and that's the lawyer, Andrew Torrez.

0:01:25 Andrew: Is that, I'm just the lawyer now? That's, that's fine. All right, cool. Well, it's only happened, you know, fairly often recently, so.

0:01:27 Thomas: Yep. Just want to make sure no one ever confuses me for a lawyer. Just making sure. It has happened A couple times. Yeah, we've had write-ups of the show where they're like, "Lawyer Thomas Smith and Comic Relief Andrew Torrez," and it's like, oh my god, you could not be more wrong. It's like saying musician Andrew Torrez, and no, I'm kidding.

0:01:50 Andrew: Impeccable taste in music.

0:01:52 Thomas: How are you doing today, Mr. Torres? I'm

0:01:52 Andrew: Uh, well, Other than my impeccable taste in music, I'm doing fantastic. How are you?

0:02:00 Thomas: Doing great. I cannot wait to talk. I'm sure people have seen the title of this episode, Pablo Escobar's Cocaine Hippos, my friend, or something, I don't know, um, I cannot weight to get to the bottom of this. I don't even know, know what to think. Would, quick reminder though, our Q&A is Tuesday night. That is November 2nd at 4 p.m. Pacific, 7 Eastern. Look for the links. We'll go out on social media. It'll go out on Patreon. If, if your normie might be just in time, you know, that's today, so uh, get on that, hop on over to the YouTube, ever again, everybody's invited to come watch and join in the chat, and we participate in that as well, uh, but only the patrons get to ask the questions, so looking forward to that. All right, onto our first segment, that is definitely wrong. This

0:02:28 Andrew: So. This Yeah.

0:02:46 Thomas: Is named incorrectly. I see that you've typed some nonsense words that say "Thomas was wrong about Duck, Duck, Gray Duck." How do you justify this word salad you've put in in our spreadsheet?

0:02:59 Andrew: We Got, we got multiple folks wrote in,, uh, I'm going to read first Jonathan, and you're like, all right, well, you know, whatever, uh, patron Jonathan, uh, but, but then we, we got some duck Duck, Duck, Gray Duck insight from multiple appearing guest Randall Eliason that you will not want to miss. So Jonathan writes, I mentioned the Duck, Duck, Gray Duck bit from the podcast to my wife, who I met while in Minnesota, and she is a native. Her face got dead serious.

"I will throw down over Duck, Buck, Gray, Duck." She then explained how goose really makes no sense. I was puzzled. Aren't gray ducks a subset of ducks? Then I found out something I didn't know. Maybe there's a reason Minnesota public schools are so highly rated. She told me that apparently there exists an advanced version of Duck, Duck, Gray Duck. In her school, they had to say Yellow Duck, Magenta Duck, etc., until they picked the Gray Duck, making it imperative for them to learn more and more colors so they were learning while keeping their game options alive. Live, she, she turned away and left the room, clearly satisfied in her upbringing in this. This, I had to share, and uh, echoing that is our buddy Randall Eliason, who writes

0:03:50 Thomas: Oh yeah.

0:04:09 Thomas: Well, okay. Hold on. So far I agree with all that. That's all fine. What is the, I didn't say duck, duck. Look, if you're, if your game is different colors of duck and then gray duck is the thing, that's fine. But duck, buck, gray duck, is silly. And the only thing, you know, the only claim I made is that this is a purely Minnesota thing.

0:04:09 Andrew: Okay. Yeah. Well, Interesting that you say that. Randall Eliason writes to say, I am writing with important information about Thomas's claim that although the rest of the country plays Duck, Duck, Goose, only in Minnesota, they play a version of this game called Duck, Duck, Gray Duck. Fake news! I grew up in North Dakota, and we also played this game. Admittedly, Fargo, North Dakota is right on the Minnesota border, and I grew up only a mile or two from Minnesota as the duck flies, but still.

Also, contrary to Thomas' claim, in the Minnesota and North Dakota version, the tagger does not say Duck, Duck, Duck, Gray Duck. In truth, when the taggers walk behind each seeded kid, she names it different colors. So she will say Blue Duck, Green Duck, Yellow Duck, Gray Duck, and then the chasing commences. This allows for a lot of fun variations like Plaid Duck, Polka dot duck, striped duck, etc., which leads to much hilarity. Other than that, the game is the same as Duck, Duck, Goose. So you can see that in this version of the game, contrary to Thomas's slanderous implication, is actually more interesting and calls for more creativity than simply droning Duck, Buck, Goos as does the rest of the country. It's a better version, which is in line with the general superiority of most things Midwestern. Happy that I could clear this up. I expect this to be the subject of a lengthy Thomas was wrong segment, if not indeed a

0:05:12 Thomas: Okay. Oh my gosh.

0:05:41 Andrew: Full episode of the podcast. And of course, I am available as a guest if needed.

0:05:42 Thomas: Well. I need you to write a Washington Post column, uh, Randall, for me to react to about this.

0:05:51 Andrew: There you go. Well, we will. He volunteers to come on as a guest to to fully explain it. I think that's right. If he writes a Washington Post column, we'll we'll have him on as guests to debate.

0:05:56 Thomas: Okay. Yeah. Okay. I I, I believe I need to respond to these allegations, uh, Okay, again, the thingy that I was told exists is Duck, Duck, Gray Duck. And I was sworn up and down by multiple Minnesota residents that it is Duck, Duck, Gray Duck. Now, know, and maybe that's the only way you can describe this game, which is like colors, ducks colors, you know, different colors, unless you came up with a standard, like yellow duck, green duck, gray duck, or something. So, so that's a, uh, a fault of the description that, that you can't capture all that in Duck, Duck, Great Duck. That does sound like a delightful game, and I will revise my opinion. I will admit Thomas was wrong on that. As regards the first point, though, this is a Minnesota thing. Just because you happen to live five centimeters from Minnesota in a technically different place, and you also play Duck, Duck, Grey Duck, that doesn't count. Come on. I mean, if I say this Duck, Duck, Grey Duck epidemic is confined almost entirely to Minnesota,

0:06:05 Andrew: Oh, yes. Yes, please do.

0:06:53 Thomas: And someone's like, no, I also play it, and they live a minute from Minnesota, you know, I think I'm going to go ahead and say, okay, yeah, all right. I'm not revising that statement. It's wrong on the Duck, Duck, Gray Duck. I didn't know that that all that was how the game went, so that sounds pretty cool.

0:07:10 Andrew: I'm just, I'm just glad we live in an age in which this level of reconciliation is possible. So there's up, there you go, that's and and for those of you who are still rubbed raw over her say Weird Al Yankovic, or just all

0:07:15 Thomas: Let the healing begin, everybody. Not wrong about any of that, I'm still right about all of that, but did you know he gets permission? Anyway, okay, go one, uh, this is now, as you're the victim here, uh, Andrew was wrong, uh, this is sort of an Andrew's wrong. You were musing about jury questions, one of recent episodes. So we got an update here.

0:07:29 Andrew: Right yeah So in episode 537, I, I gave what I think was a good explanation of why jurors cannot ask questions of the witnesses. And a bunch of folks wrote in to point out that in some courts in Colorado, and there are some other pilot programs across the country, that jurors can ask questions of the witnesses, and that these programs will have differing levels of standards to, you know, ensure that they get vetted by the lawyers, and that, you know, you're not asking a question about, you, you know, in limine, or, you know, because of the exclusionary rule or something like that. Did not know about that. I still think I'm a hidebound traditionalist, and I prefer for jurors to, you know, take the presentation that the lawyers give you and like it.

0:08:34 Andrew: Can understand the appeal of wanting, particularly if you're an OA listener and you're just dying to get in and show off your cross-examination skills, I get that. Yeah, Colorado and a couple other trial programs, there are indeed juror questions of witnesses. Neat. And thank you for writing in. Little bit wrong on that.

0:08:45 Thomas: Interesting.

0:08:54 Thomas: I'd be the one in the jury. Your Honor, permission to treat this witness as hostile. You're in the jury. Sit down. Shut up.

0:08:59 Andrew: That would be amazing. That, oh my gosh, if, if, if you're an OA listener in Colorado and you get called for jury duty, will you please, uh, face the judge and say, "your honor, permission to treat the witnesses hostile"?

0:09:07 Thomas: Yeah. Use that one. It'll go over great. Write us a letter from jail for

0:09:15 Andrew: All the worst that happens as you get kicked off the jury. Do not take legal advice from this podcast.

0:09:16 Thomas: Contempt. Contempt. Can you hold a juror in contempt?

0:09:23 Andrew: You can hold a jury in contempt. Anybody in the courtroom is subject to the judge's inherent contempt powers. So there you go.

0:09:23 Thomas: Oh, So wow interesting there you go. What, if what a fun start to this episode, and I think it's only going to get more fun. Let's go to our main segment.

0:09:52 Thomas: And your question, "What in the world," is how I will lead this off.

0:09:56 Andrew: All Right, so, uh, are there are two ways to interpret the question, what in the world, and let me start with, what the world are Pablo Escobar's cocaine hippos. I'm going to read to you from the incredible, from the wrongly titled, uh, Gizmodo article. So we'll get to the legal question in a minute, but but the first three paragraphs of the article are dead on in explaining what this issue is, at least, right? So, so they get the background correct, we love Gizmoto, uh, but they, uh, get the law 100% wrong. So, decades ago, drug kingpin and narco-terrorist Pablo Escobar smuggled dozens of animals, including elephants, ostriches, zebras, camels, giraffes, and hippopotamuses, into a zoo in his private ranch.

0:10:44 Andrew: When Colombia's cops killed Escobar in 1993, they seized the ginormous estate, including the zoo. When they did, they shipped all of Escobar's other creatures off to live in other zoos, save for his four hippos.

0:10:56 Thomas: Really changes the Simon and Garfunkel song that I'm a big fan of, orangutans, hippos are doing cocaine at the, yeah, the best So good.

0:11:02 Andrew: It's all happening at the zoo. That's such, a that's an a plus reference, that's fantastic, that's, uh, you and I share Simon and Garfunkel in common. That is Yeah, so good. So all, uh, yeah, the four hippos were difficult to capture and, quote, "presumed to not be an issue," so they merely let them stay on the land. And then Gizmodo says, all was well until the hippos started copulating. They do not use the word copulating. Now there are up to 120 hippos roaming around Colombia, and they are considered one of the top invasive species in the world.

0:11:12 Thomas: Oh, Ha, ha, ha, ha.

0:11:38 Andrew: Yeah authorities have weighed a plan to kill the hippos off, uh, and and uh, they've been checking that out since 2009, and it has recently gained steam. If you're

0:11:38 Thomas: My god, really, a little factoid, I remember randomly, I think hippos were like the most dangerous animal in the world, like there's more hippo-related accidents because than any other, you know, sharks than anything. I thought, there's a factoid I have heard and I pass it on not knowing if it's 100 true, but I'm pretty confident. Let

0:12:09 Andrew: A hippo expert or other, uh, dangerous animal expert, I would love to run a Thomas was wrong for two weeks in a row, so, right, right in to let us know if that claim is correct. No, no, I, I, I have heard something similar, so we'll, I do a, both of us, I'll I will join you

0:12:21 Thomas: Alone coke coked up hippos. I don't know how that goes. Even worse gave

0:12:23 Andrew: Yeah right Right. Yeah, exactly. So. So, OK, so there's this plan to to kill the hippos. And instead, animal rights groups came up with a plan to sterilize the hippos rather than euthanize. Right. Yeah. Right. So in July of 2020, Colombian attorney Luis Domingo Gomez Maldonado filed a lawsuit in Colombia on behalf of the hippos, and that challenged this regulation and said you should use this chemical contraceptive instead of the hippos. That's the background. So, so what's going on from a legal perspective? Um, you have an attorney filing a lawsuit in Colombia, um, that was filed on July 31st, 2020, on behalf of his clients, the community of hippopotamuses. It is cause number two five five zero zero zero two three four one zero zero zero two zero two two zero zero four four four zero zero. Apparently, there are a lot of cases in Colombia before the

0:12:39 Thomas: Him some ivermectin, but

0:13:30 Andrew: Cundinamarca Administrative Court, which is in Bogota, D.C., which is the capital district. OK. What's the subject of the suit? Well, as it turns out, we have, as a result of the story that I'm about to, that I have been quoting from and that I am now about to indict, we have the U.S. based declaration of Luis Maldonado. It explains the Colombian lawsuit, suit, uh, but before we get there, now it's time to read the hype headlines, which is, uh, Gizmodo says, "Pablo Escobar's cocaine hippos are legally people."

0:14:07 Thomas: Mitt Romney coked hippos are people, my friend, I

0:14:07 Andrew: Right right uh or The Animal Legal Defense Fund, uh, aldf.org, go right to their website, it's up right now, which, which says, "Today, the Animal Legal Defense Fund announced that the U.S. District Court for the Southern District of Ohio has recognized animals as legal persons for the first time in the United States."

0:14:31 Thomas: Wait, why are we in the United States? Are the hippos is coming? Have they made it?

0:14:35 Andrew: We will get there through that. But I want to tell you, oh, my gosh, the hippos are coming. The hippos are coming one if by land, two if by sea.

0:14:42 Thomas: Yeah, yeah, that's what maybe the hippos are what's gonna save us from all this, I, I'm wondering, already, why do they even need to be people? I feel like it makes sense just from a purely, I don't know, compassionate standpoint to be like, hey, instead of killing these hippos, let's just sterilize them, regardless of whether or not they're people.

0:14:46 Andrew: Yeah, that is a fantastic question. They do not need to be people. And in fact, right, what you have is the Animal Legal Defense Fund mischaracterizing using is as kind as I can get that the ALDF right is working in collaboration with Luis Maldonado. Right. So they are well aware of this lawsuit. I'm going to explain how what it has to do with the United States and everything else. But it is factually incorrect. It is At every level, every word of that sentence, the Southern District of Ohio has not recognized animals as legal persons for the first time in the United States. It would be for the I guess that part is is correct that like if that were if that Were to happen, that would indeed be revolutionary.

0:15:52 Andrew: It has not happened. And the importance of it is, again, because of animal rights and environmental groups that would like for animals to have standing. Now, you're saying to yourself, is recognizing animals as persons capable of raising their own rights claims in court, is that a good idea? You might look to paragraphs eight onward of Luis Maldonado's declaration, which I'm going to read a little bit from right here, because I am not well qualified to evaluate his statements regarding Colombian law. They seem to me to be an accurate statement of the law. And he goes through an awful lot of detail. So, you he he very well could be right. But I want to put a slightly bigger error bar on this than, you the usual stuff you get on the show.

0:16:41 Andrew: But anyway, here's what his declaration says. In Colombia, the Constitutional Court has recognized that animals have standing to file a lawsuit. The Constitutional court is the highest constitutional authority in the country, the guardian of the supremacy of the Constitution, and thereby the equivalent of the Supreme Court of the United States. In its ruling C-666 of 2010, the Constitutional Court wrote, the elements that make up the concept of the environment may be protected per se, not simply because they may be useful or necessary for human life. And then it goes on to talk about subsequent rulings after that Supreme Court decision that basically say, if if Maldonado's of the law is correct, that animals are legal persons capable of asserting their rights in court. And here he quotes from ruling C-041 of 2017.

0:18:04 Andrew: Of certain rights. So so there you go. We're starting off with the idea that in Colombia, hippos are, in fact, recognized as persons for purposes of raising fundamental rights claims. That's pretty neat. Right. I would love to do a deep dive on on how Colombia came to that.

0:18:25 Thomas: It seems interesting, because my next question would be, like, okay, so no one can eat meat in Colombia then?

0:18:32 Andrew: It would be an interesting question, right? Like, I'd love to see how that interacts with, you know, the rest of Colombian law for for for that and and other reasons. So I certainly, I certainly agree with you that it's, it would, challenging to come up with personhood with precision. And I'd love to delve a little deeper into that. But what we do know is they have standing as part of the environment to then sue on behalf of themselves as a result of claims relating to that environment. So now we go back to Maldonado's declaration, this beginning in paragraph 18, an animal rights group called Animal Balance, based in Portland, Oregon, in May of 2021, contacted Maldonado to to let him know that it had been in contact with the Regional Autonomous Corporation of the Negro and Nare River Basins.

0:19:30 Andrew: That's Cornare, which has jurisdiction over the area where the hippos lives, and so what Animal Balance came up with was what they called a quote, low-cost, humane strategy, a proposal that was developed after it was discussed in the meetings that the hippo population would be reduced through controlled animal killing as the only viable solution. And Animal Balance instead said that that its board of directors and wildlife experts recommended beginning with the use of PZP, porcine zona pellucida, in the females, which is an immunocontraceptive administered via dart gun. Right. So you fire

0:20:09 Thomas: The hippo patriarchy, why not the males, Andrew? Scientists haven't developed male hippo birth control, it would be amazing if they're like, you have to put a condom on each, that would be a little harder, yeah

0:20:12 Andrew: I don't know. I think because of how PZB works. They that would Be amazing. Oh gosh, so okay, so Animal Balance comes up with this plan that says, um, we've talked to experts and, uh, if you really want to effectively reduce the population of the hippos, um, we could just sterilize the female hippos. Right?

PZP, I think this is important to know as part of the story, um, pzpsterilizes the females for up to eight months before another dose is needed, so, you know, there's a lot of of of hippo darting that will go on, but that would be certainly kinder than just, know, murdering, you, all of the hippos.

So, uh, then, um, happened was Maldonado went to the court and said, uh, a group of wildlife experts had developed a plan to use, uh, this, uh, contraceptive, um, to control the hippo population, and, you know, that seemed relevant to his complaint to block, uh, uh, the killing of the hippos, um, uh, and then it says Despite the efforts made by Animal Balance to inform the Colombian government of its proposal, it has been ignored, and my clients, and by that Maldonado means the hippots,

0:21:29 Andrew: Are. Therefore, I just, I wanted to say that phrase, are therefore. Therefore, being deprived of a solution that protects their interest, including their interest in remaining alive.

0:21:29 Thomas: They're an unruly bunch my clients

0:21:43 Andrew: All Right. So who are these experts? OK, the team of volunteers disclosed to me by Animal Balance includes the megafauna experts, Dr. Elizabeth Berkley and Dr. Richard Berlinski, who reside in the state of Ohio in the United States. States, their testimony will help explain to the court the true possibilities of resolving the conflict without the need to kill the hippos, since they are experts in immunocontraception and exotic animal medicine. Since these individuals are not citizens of Columbia and do not reside in the country, they are not under the jurisdiction of our judicial authorities for purposes of attaining our goals. However, their contribution would be very significant in helping find a humane solution to this conflict. So the attorney looks at the situation and says, I can't subpoena Berkeley and Berlinski, the hippo experts, to come down to Colombia

0:21:42 Thomas: Yeah I

0:22:34 Andrew: Because they're American citizens and there's no procedure in Colombian law for subpoening a foreign citizens. So he asked himself, is there a way to get testimony from parties U.S. law? I learned something in this. I learned something legal in this TIPO case. And and I want to kind of put it into context. If Right. I sue you in the United States, if two companies sue each other, right. Torres LLC, Sue Smith Inc. You know, we can exchange discovery between the parties. Right. That's provided for in the federal rules of civil procedure. We can also get testimony. We can get the court to compel testimony from interested third parties. Right. So, you if I allege that you have interfered with my contracts Um, I can then of the ways, one of that, one of the evidence of that would be contracts you've signed with other vendors, even if I haven't sued those other vendors.

0:23:32 Andrew: Right. That is XXX Corp down the line. Right. I can under federal rule 45 service, subpoena on XXX Corp, and assuming that it's properly tailored, that it's relevant to our dispute, uh, and that I compensate the folks involved, I can say, hey, XXX Corp, give me all the documents that you have, all the contracts that you've signed between yourself and Smith Inc, right, um, and in fact, uh, this is a tool I use all the time, right? It's fairly common where, um, you're in discovery, the parties are exchanging documents and you're like, like, well, I wonder what, you know, this outside party would think. So that's totally normal. But what if you're a U.S. party and you're not part of the litigation and it's a non-U.S.-trial in a foreign country like Colombia?

0:24:21 Andrew: What can you do? And the answer is not in the Federal Rules of Civil Procedure, but a separate statute, 28 U.S.C. 1782. And it says the district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal upon the application of any interested person. That's the same language, or very, it closely tracks the language of Rule 45. It says you can go to U.S. district court where somebody lives or or where they're found. Found. Let's focus on the lives part first. Right. And found is just, you know, I live in, like, Randall Eliason.

Right? Like, you know, you could serve him in North Dakota, and it would just depend on which court you wanted to go, make this application. Application. And it says if you're an interested person, you can then go to that district court and request an order to either give testimony or a statement or to produce a document or other tangible thing. Thing. That's the, that's the gamut of discovery. Right. Like, that's everything you can get in civil discovery. Testify, to make a statement, or to produce documents or other tangible stuff. And so that kind of closes the loophole and says, yeah, if, if you have a U.S. based party, you can come into the United States and

0:25:59 Andrew: Request third party to aid in a foreign case. And the key line there is upon the application of any interested person, because the argument. Yeah, the argument that's being made is exactly Right. Night, uh, are you saying the hippos are interested persons, um, because if, if that's what you were saying, then that headline might be true. Right, but, but it, spoiler alert, it isn't. We're gonna get there. Um, addition to all of that, um, I, I want to point out it's really crucial to understand that, um, this section 28 USC 1782 is an ex parte section, right? So what happened is, that means that you just go to the court and you'd say, I'd like an order requiring the testimony of these two people. Well, as it turns out, Berkeley and Berlinski both reside in Ohio, so he went to the Southern District of Ohio on October 15th, just about two weeks ago, and said, hey, pursuant to 28 U.S.C.

0:26:05 Thomas: Okay inquiring hippos want to know, right

0:27:06 Andrew: 1782, I represent the hippos. We'd like to take discovery of these two hippo experts and and I want you to issue two subpoenas. And the court said, OK, we'll do that. It was ex parte.

0:27:22 Andrew: There Now, once you get the subpoena, you can then move to quash. Right. We have no idea. It's only been two weeks. The testimony is due in two more weeks by mid-November. So I'm going to believe me, I'm following the hippo case very closely. Um, but we, we have, you know, one of the reasons in which you might object is, you know, if, uh, you have only a tangential connection, uh. And it would be unduly burdensome. Um, Right. So, you Know, for example, if you've got a third party subpoena that said, uh I want every email Thomas that you've sent between, you, know, over the last 13 years. Right. You would be like, no, man, like that would take forever and I've got got a day job and I'm not a part of this. And, you back with, come back with a narrowly tailored request.

0:28:08 Andrew: That's why the, the, classic example I gave is just, oh, hey, do you have a contract with this other person? Well, that's a, that'S a discrete issue, right? You got to look at one thing. Is there a contract? Yes or no. And then produce it.

0:28:18 Thomas: Do you or any hippo, you know, have a keep

0:28:23 Andrew: That's exactly right. Now, would say, so we actually have a list of of what is requested. And this is as an exhibit to another declaration from a different lawyer. This is Ariel Flint in the same case. And the, says this. Dr. Berlinski, the subpoena is in regard to your knowledge and impressions about managing the fertility of the community of hippopotamuses living in the Magdalena River using the non-lethal immunocontraceptive porcine zona pellucida, PZP. Pursuant to the subpoena, the deposition is currently scheduled for Tuesday, November 15th at 9 a.m. at our offices. Because of the coronavirus, we can take that remotely using video conference or telephone.

0:29:11 Andrew: And, you know, we will compensate you by law, which is the princely sum of forty dollars a day for that deposition. Just says we want to ask you what you know, know about the hippos, um, and so he might very well respond, hey, this would be a whole day, uh, out of my schedule, um, I choose not to do that, uh, I'm not related to this litigation and that would be unduly burdensome, um, I don't know that that would be a great argument, right, because it's just, it's just the one day, there's no requirement to produce documents, um, and I think the idea is that, and by the way, the Berkeley subpoena reads exactly the same, your right, knowledge and impressions about managing the fertility of the community of hippos. So, you know, I think they're thinking that it's just sort of a breakdown in communication and it's likely to be friendly. But again, But we will be watching to see if these if these witnesses move to quash.

0:30:03 Thomas: Your eye on these hippos

0:30:05 Andrew: Keep your eye on these hippos,

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0:33:41 Andrew: But this still leaves an open question, right, Right. Which is the court granted the subpoenas. Doesn't that mean that they have ruled that the hippos were an interested person? And if they're an interested person, that means they must be a person. Well, not quite. So the problem is that and here case law is is pretty clear. Here, the baseline case is a case called Intel Corporation versus Advanced Micro Devices, which used to be a rival chip maker to Intel. But let me read a little bit get discovery under Section 1782. The order must one be issued by the district court of the district in which the witness resides or is found. But that's satisfied here. It's Ohio to the discovery must be for use in a proceeding in a foreign or international tribunal.

0:34:29 Andrew: Well, that's certainly satisfied because you have the ongoing Colombian case about whether to sterilize the hippos. And three, in the context of this case, the order must be made upon the application of any interested person. So in the motion, this question is direct, is is squarely addressed. Right. Which says, third, the community are plaint. The community of hippos are plaintiffs in the Colombian litigation and therefore qualify as interested persons under the statute, citing to the Intel Corp decision with a parenthetical that says, stating that there is no doubt that a party to foreign litigation qualifies as an interested person who may invoke 1782, to. Since that's a little bit of legalese, let me unpack that a little bit. What Maldonado argued in court in Ohio was, "Your Honor, I understand I represent hippos."

0:35:24 Andrew: That probably seems strange to you. It's not strange in Columbia. I'm allowed to represent the hippos, and even though hippos are not people. They're definitely not persons under U.S. law. The question is, are they an interested person under the construction of 1782, which includes anybody that is a party to a foreign litigation? Right. So even if something is not a person for U. S. law, it can be an interested person for purposes of compelling discovery. And just to be clear, page six to eight makes it abundantly obvious that Maldonado is aware that hippos are not persons under U.S. law. It ends with courts have recognized foreign litigants as interested persons for the purpose of obtaining Section 1782 discovery, even if they would not be recognized as persons in our domestic legal system For other purposes, as is the case of foreign sovereigns and estates. And here it cites to two particular cases. One is an in re Republic of Ecuador, in which, the case might suggest, the.

0:36:36 Thomas: What, do they have tigers?

0:36:36 Andrew: The.

0:36:37 Thomas: What problem do they, they have, my?

0:36:38 Andrew: Well, no, what happened was in that that instance, a U.S. litigant wanted on behalf of the Republic of Ecuador, right, of the country itself to compel testimony in the United States. And a country isn't a person for purposes of U.S. right, law, because of sovereignty, right?

0:36:55 Thomas: Friend. Right. Okay.

0:36:57 Andrew: So it said, yeah, we get it. Ecuador isn't the person, but it's an interested person for the purposes of 1782. And then if that wasn't clear enough, a couple of years ago in a case called In Re Application for Discovery, 2019 Westlaw 4410442, you had a forged will in an estate, right? Right. Like and that was proven in a foreign court. And then as part of adjudicating where the money went, the estate moved for U.S. testimony from some of the alleged forgers. Right. The person had had died. Right. Well, we know an estate is also not a human being, is not a person.

But nevertheless, it was an interested person for purposes of 1782. So I think it is very, very clear. And both of those cases, as well as the Intel Corp decision, go through the history of 17 82, in particular, an amendment in 1964. The legislative history just makes it clear that the idea was for this statute to be as expansive as possible, to to right, bring in as as as full of grounds as could be imagined for compelling testimony. How it should be read and interpreted. And so even if something is not a person under U.S. law, it could be a person.

0:37:40 Thomas: Yeah.

0:38:27 Andrew: It could be it could nevertheless be an interested person for for the narrow purposes of compelling discovery. So put that all together. Number one, this was an ex parte discovery proceeding. Right. There was no opposition. It was just Maldonado went into court and got an order and nobody said anything to the contrary to the court. So even if this court had ruled hippos are people, my friend, that would have basically no precedential value. You don't Right. Establish binding precedent in a case where there isn't the other side. But number two, the application explicitly alleges that hippopotamuses are persons in Columbia and strongly implies, yeah, we get it that that not in the United States. And then the case law makes it very, very clear that interested persons under 1782 do not have to be U.S. persons.

0:39:02 Thomas: That'd

0:39:22 Andrew: So, yeah, we

0:39:22 Thomas: Be a Weird to be a hippo and travel from there to to here and then you lose your personhood, you're, and all of a sudden you're not a person anymore, uh,

0:39:30 Andrew: You've crossed the jurisdiction and and you've lost your humanity. You know, we we have talked about people have asked us to address it and we might there are cases like the tree that owns itself. There is. Yeah, there is the William O. Douglas concurrence that suggests that animals and natural resources ought to be granted legal standing. And and I don't have a problem with those arguments. Right. And I don'T think it necessitates the same move that you questioned in the Colombian law. Right? Like because we have like we covered the you know the in rem proceedings right United States versus 8374 pounds of rotting paddlefish meat. Right the courts are well equipped to deal with, okay, there is a party before the court, defined rather loosely, and it's going to have a guardian or legal representative or guardian ad litem or whatever.

0:39:33 Thomas: Oh god. Yes.

0:40:30 Thomas: We've got some hungry hungry hippos here.

0:40:33 Andrew: I for that reference, I'm and glad you busted it out. Now we can actually wrap up the segment, right? It was

0:40:38 Thomas: You Just This was pure stalling until I made That very Mediocre joke, okay. And

0:40:42 Andrew: 100 did I Did I ever tell you it was one of the very first times I I cheated as a child? My parents would tell the story, uh, but we had Hungry Hungry Hippos, not a not a big strategic game, um, and you know, you just kind of bang on your hippo until it captures enough marbles, uh, and what I had, what

0:41:01 Thomas: You slipped your hippo some coke.

0:41:02 Andrew: I had done was lifted up all the other hippo, I always played the red hippo, um, uh, and I had lifted up all the other hippos and placed a slightly larger marble inside the necks of all the other hippos, and so it would reach out and like grab the marbles, but then none of the marples would go down the throat, uh, into into the victory conditions, and so, uh, and so I was able to to win Hungry Hungry Hippos, and not my proudest moment, but there you go, cheated at Hungry Hungry Hippots. Anyway, uh, to back to the law here, um, think U.S. law could recognize, um, animals, uh, ecological features as having legal standing, which would then be argued on their behalf by someone appointed by the court, right? Who would be sort of truly neutral to the process. Or, you know, you might have an application, right, like here from, know, an animal rights group or an environmental rights group.

0:41:15 Thomas: So

0:42:01 Andrew: And so I think that concept would fit nicely without triggering the question that you asked. Right. Which is, well, if they're person, right, like if they are persons under the 14th Amendment, then absolutely. Right, you know, you saw the argument being made by Maldonado in Columbia was that the hippos have a right not to be killed. And I do not know, again, not an expert in Colombian law, but you asked the very, very good question of, well, wait a minute, if animals have a right not to be killed that can be asserted on their behalf in court, pretty sure all of Columbia is not vegetarian. And where do we draw the line and why haven't those claims been made?

0:42:48 Andrew: Now, there may be an obvious answer in Colombian law. It was very, very difficult for me to try and look up and corroborate. Trust that folks will not want me to rely on my high school level of Donde Esta La Biblioteca Spanish to try to translate these decisions. I think it gives you, you know, that that sort of intermediate ground where you're saying, I want to move forward and be thinking about how can we protect these kinds of interests, you know, without going all the way to hippos or people, my friend. So there you go.

0:43:21 Thomas: Long story short.

0:43:22 Andrew: Hippo story.

0:43:22 Thomas: Hippos are not people, Andrew's the fun police, they were just considered to be interested persons for the sake of a subpoena in Ohio regarding a case in another country. Okay. So Yep, so fun police, uh, you've ruined the, you've killed some hippo people, they're no longer people, you've personified them so they are not people, my friend, sorry, all.

0:43:37 Andrew: Exactly right. But fun.

0:43:52 Thomas: Show is brought to you by Green Chef, and I know what you might be thinking. You've heard us advertise with HelloFresh before, and here's the thing. Green Chef is now owned by HelloFresh and there's something for everyone. I myself switch between them sometimes, depending on what the recipes are for the week, things, because I'm always trying to find the best vegetarian option. So here's why I love Green Chef. Green Chef has a meal plan for every healthy lifestyle. That means keto, paleo, plant-powered, or even if you want to just have delicious but balanced dishes. And as always, they curate every recipe with over 30 meal choices per week and the flexibility to switch plans, so you'll never have to sacrifice taste for nutrition. You can enjoy restaurant-quality dishes in the comfort of your home. I'll tell you, I, with you, I cannot live without Green Chef.

0:44:38 Thomas: This is the kind of thing where I can't imagine before we had it, because it just takes away that added burden of having to meal plan and not only plan out what you're going to make, try to vary it up, you know, so it's not the same thing every night. And then also, after you've done that, you got to buy all the ingredients in the right proportion so that stuff doesn't go bad in the fridge, which is like my biggest pet peeve. I like, I hate when stuff goes bad in the fridge. Never have to worry about that again with Green Chef, because they give you nutritious and new recipes each week that are perfect for you and the whole family. And they are pre-portioned with easy to follow recipes delivered right to your door, so you never have to worry about meal planning or shopping for dinner again. So go to greenchef.com/OA125 and use code OA125 to get $125 off, including free shipping.

0:45:28 Thomas: Wow, $125. That's a ton. If you want to get that, once again, go to greenchef.com/OA125 and use code OA125 to get $125 off, including free shipping. Go find out why Green Chef is the number one meal kit for eating well. Right, and uh, now I think we have enough time for a quick wild card segment: Dan Tana's versus Dantanas.

0:45:46 Clip: WOAH-

0:45:59 Andrew: Oh, this segment was inspired by, but does not answer, a question posed to us by a serial questioner, always a great source, uh General Contact Unit Problem Child, uh, during the last uh q a and, um, and by the way, General Contact, you know, Problem Child, if you're not in on uh this q a which takes place this evening, and maybe get over there, anyway, um, GCU PC says, uh, there's a pizza place in Gibraltar called Papa Luigi's, and there's an Italian guy on the sign with a mustache and a green outfit, could Nintendo sue them if they cared to? So, uh, not gonna answer that question because, um, I'm not gonna get into, you know, British versus, right, like I, I internationally write all sorts of confounding questions. But but but the the general question of what do you do when you have a trademark and how can you enforce it is one that is a little bit counterintuitive and really, really interesting. And one of the go-to cases that I use all the time in talking about your trademark rights is this case called Dan Tana versus Dantanas.

0:46:35 Thomas: Oh Right, yeah.

0:47:12 Andrew: And it illustrates the difference between a copyright and a trademark. So copyrights are really, really simple. We copyright this show. If you reproduce this show anywhere, you have violated our copyright. And, yeah, well, believe me. Does not matter. Right. Particularly when a copyright is formally registered. It really does not matter, you know, to even show damages. Right. You can get statutory damages for infringement of your copyright anywhere in the world, anywhere sort of downstream as long as You prove copying. Yeah. Trademarks are different. So let's walk through the case of Dan Tana versus Dantanas. We'll do it pretty quickly. So Dan Tana is a self-described former Yugoslav soccer star. Yugoslavia being a country that no longer and should never have existed. It uh, an amalgamation of of Serbia, Croatia, Montenegro, uh, basically post-World War Two, we were like, stick all the Slavs in one country and call

0:47:24 Thomas: And You're Under arrest, right? Now, oh.

0:47:44 Thomas: Wow. Uh.

0:48:12 Thomas: Don't

0:48:12 Andrew: It Yugoslavia. Yeah, um, it broke up in the late 80s. Anyway, uh, Dan Tana was a Yugoslav soccer star, uh, who then opened a restaurant, uh, he was a film producer and actor. His Italian themed restaurant Dan Tana's, uh, was was opened in West Hollywood, California, in 1964. And then now I'm to just read from his own description. Since that time, the restaurant has enjoyed a storied history, attracting Hollywood celebrities and insiders to the restaurant's intimate and romantic setting. Dan Tana's serves traditional Italian fare, and it resembles an old-world Italian trattoria with red and white checkered tablecloths and straw-colored wine flasks hanging from the ceiling, like every, you know, bad red sauce Italian place in this country. But anyway, any of it plaintiff who's been the sole owner of the restaurant since its inception figures prominently into its ambience, personally greeting and welcoming his patrons.

0:49:06 Andrew: The press has referred to Dan Tana's as a legendary Hollywood hotspot and the ultimate L.A. hangout. And the restaurant has been featured in numerous newspapers, magazines and books. The name Dan Tana received significant publicity in the 1970s when producer Aaron Spelling asked the plaintiff, asked Dan Tana for the use of his name for the lead character in his television series Vegas. OK, so that's Dan Tana. Despite the notoriety of his restaurant, however, plaintiff did not attempt to register the name Dan Tana's with the U.S. Patent and Trademark Office until June of 2005, 41 years after his restaurant's opening. Now, that's not fatal. You have in the same way that we have not filed for a trademark on opening arguments. Right. Yeah.

0:49:51 Andrew: All right. You can nevertheless have common law rights in trademark. And that's part of what we're going to talk about. So the PTO denied his application in December 2005 on the basis of the existing registration of the trademark Dantanas, D-A-N-T-A-N-N-A, apostrophe S, in the same category of restaurant services sought by plaintiff. Defendants had opened the first of two Dan Tana's locations in Atlanta in 2003, applied for registered federal registration in June of 2003 and obtained federal registration of that name in March of 2005, claiming a date of first use of September 30th, 2003.

0:49:51 Thomas: Tell Everybody So Wait, is this actually related? I don't know what Dantanas is actually, I know the name, but I, I don't know this intimately, what was this actually related to that guy though, no?

0:50:32 Andrew: No

0:50:42 Thomas: Relation, okay. Just

0:50:41 Andrew: Relation whatsoever, entirely separate restaurant with two locations in Georgia.

0:50:48 Thomas: Happened to be the same name. Without the space, yeah.

0:50:50 Andrew: Well, without. So, right. Yeah. Without the space. So Mr. Tana versus Dantanas. Right. I love doing. I didn't think when I was writing this up that I was going to have to explain it on an in an audio medium. But so Mr. Tana then moved to cancel the defendant's mark with the U.S. patent and trademark trial and appeal board and said, look, you are trying to mislead the public into thinking that this is the East Coast branch of Dan Tana's Hollywood. Right.

0:50:57 Thomas: Yeah.

0:51:25 Andrew: And this case, which went all the way up to the 11th Circuit, is the resolution of that. The resolution looks like this. It says in evaluating that the primary question is likelihood of confusion. Right. How much would people going to Dantanas in Georgia think they were going to Mr. Tana's restaurant in Hollywood?

0:51:24 Thomas: Quite

0:51:47 Andrew: So here's

0:51:47 Thomas: A bit, it seems like. I don't know.

0:51:50 Andrew: What the court says. Our court applies a multifactor test evaluating the following seven factors. One, strength of the mark alleged to have been infringed. Two, similarity of the infringed and infringing marks. Three, similarity between the goods and services offered under the two marks. Four, similarity to the actual sales methods used by the holders of the marks, such as their sales outlets and customer base. Five, similarity with advertising method. Six, intent of the alleged infringer to misappropriate the proprietor's goodwill. And seven, the existence of act and extent of actual confusion in the consuming public. And if you're looking at that, you're probably thinking, well, gosh, um, almost all of those probably seems to say, yeah, there, there is some likelihood of confusion, right? That the Dantana well known, right? It's very similar between Dan Tana's and Dantana's. Um, the the services and goods are the same, right? They're both restaurants. They they advertise in the same way.

0:52:43 Andrew: But might suspect, as I'm leading you down the primrose path, that the court came out the other way. The court said, you're not thinking about geographic considerations here. When the plaintiff has a common law trademark, right, it is well established, quote, "that the scope of protection accorded the mark is coextensive only with the territory throughout which it is known and from with from which it has drawn its trade." Um, so uh, because Dan Tana's operates in Hollywood, uh, and Dantanas operates in Atlanta, the court is like, this really isn't likely to give rise to any kind of confusion.

You're gonna go to a restaurant in Atlanta, um, you're going to know what Dan Tana is, uh, and there's... there's no reason to think that you are diverting folks from eating in Los Angeles. Um, So let's do kind of a couple quick, uh, compare and contrast, right? I use this example all the time, uh, if your name were Thomas McDonald, you could not decide to open up a McDonald's hamburger hut, right? And and yeah, the more, the more closely you come to the McDonald's logo, you definitely couldn't do a red hut with yellow, yellow lettering. But, but I have to say, I think a court, if you just bought, you know, a white house and hand lettered and said McDonald's hamburgers on the front, a court would have no problem saying, come on, you

0:53:31 Thomas: Yeah. Really?

0:54:09 Andrew: Are. Yeah, because because think about it. Likelihood of consumer confusion. Think about the injury that that that's meant to protect. Right. It is meant to say we don't want somebody later down the line to come by and hijack the goodwill, the advertising, everything that the first person has spent and built up. Right? Right. And so if you're driving down the street and you see McDonald's hamburgers in, you know, some whack ghetto like hut, you you might stop and go, this is this like the first McDonald's ever? Right. What's the story of how this McDonald's came to be? But but but Right. Some portion of the public would go, well, obviously, they couldn't call this McDonald's hamburgers if it wasn't associated with the McDonald's Corporation.

0:54:10 Thomas: Oh.

0:54:56 Thomas: Oh, I think I misunderstood you. So, yeah, you're saying I can't do that, right? Okay. Sorry. I wrong.

0:55:01 Andrew: Right. Right? Maybe I wasn't clear.

0:55:04 Thomas: That's why I was surprised. Yeah, I thought you couldn't do that. Okay. Understood.

0:55:04 Andrew: Yeah. But I'm saying even if you use none of the logo, right, none of of the lettering, none of the colors. It's

0:55:10 Thomas: Uh-huh. Yeah. And I think one thing that's unfortunate though is the way this is structured, it sounds like it always is going to favor the bigger corporation, because, like, well, we have presents everywhere, you know, like, we're so, it's not, it's one thing when it's like a small company, well, yeah, no, I just have a presence in whatever, this one state, but it seems to kind of favor a giant corporation like McDonald's because they could be anywhere. Yeah.

0:55:14 Andrew: Yeah, Think I, that's right. And I don't know that there is a consistent with the underlying philosophy to not have your thumb on the scale for the big guy. And, agree with you that that sort of seems a little jarring. Let me throw one more thing into the mix here, right? Because, historically, one of the examples I would give is, you know, there's an A1 Painting in every city in every town in America, right? Um, now nobody confuses that with the A1 sauce people, right? Um, but, but also the geographic rule is what comes into play here, right? A1 Printing in Sacramento, California is unlikely to be confused with A1 Painting in Atlanta, Georgia. Um, how does the internet play into that, right?

If you go searching for A1 paint, if I just type A1 Painting into Google, um, mean, I, and in fact, I have like, you know, uh, you have to put the city afterwards, uh, because you will get who knows what. And I wonder if the ancient, you know, Saxony, 13th century Saxony rule of actual geographic presence is subject to some kind of modification down the line when we're thinking about likelihood of of of consumer confusion based on some of those other factors. Right. Which is, how do you advertise? Well, I advertise on the Internet all the time. And, know, you along comes, you know, this upstart that has a great SEO and a really, know, sweet, you

0:55:59 Thomas: Right. Yeah, yeah. Right.

0:57:07 Andrew: Internet practice. And now, you, they're stealing away my potential online customers, even though we're geographically, you you know, not not close at all. I think that would be a very good argument to make in court, but it would be an awful one, sort right? Of illustrates, you know, where a lot of our laws, the fundamental assumptions don't necessarily reflect the actual technology extant today. So there's the punchline, though, as of right now, you have a common law trademark, your trademark extends ends only as far as your geographic presence, so you might be the biggest person on the block in Los Angeles, but uh, you can't shut down the restaurant or force them to change their name uh all the way across the country, and um, and that's again very different than if you'd held a copyright. So there you go.

0:57:56 Thomas: I feel like you've explained it many times, I still don't fully understand the, like, distinctions between those two things, but I think we'll have to leave that for another time.

0:58:04 Andrew: All Right, gotta have reason, people, for people to come back. Yeah.

0:58:07 Clip: And thank you, Let's go!

0:58:09 Thomas: Now, it's time to thank our top patrons, our Hall of Famers, our all-time greats. And this is the final, I have to say it right, quintile, I don't know why I always mix those up, the final quintile. Um, we are on our last shout outs of the month for October, so that'll be the uh the top Hall of Framers. And, and looking ahead, November, we'll have four shout outs, so it'll be a little bit different, we'll divide you into quartiles, that'll be easier, I'll say quartz quartiles yeah, see, I just mix it up, I can't, I can, no matter what it is, I think it's the other one, we'll divide you into fourths, how about that? So next month of November, be ready, uh, Hall of Famers, to uh, roughly, roughly, it's hard to know exactly where you are, I'm sure, as a, as a listener, as a patron, but uh, it'll be fourth instead of fifth, so that'll be interesting. But anyway, let's thank our Hall of Famers, our final quintile, off.

Thank you to WordOrigins.org, your source for word and phrase origins. False. Anonymous. My witty names aren't original, and my original names aren't witty. RIP Notorious RBG. Malcolm the Dragon. Precious variant. Liz Weeks. Derek, reigning champion of Yodel Mountain Fantasy Football League. Big Easy Blasphemy. Me, please don't read this on the pod, we don't need a call out, thanks for what you

0:58:09 Andrew: Quartiles.

0:58:34 Andrew: Love it

0:59:23 Thomas: Do. A string of unpronounceable characters. RhondaTheDork.com. Malika Chandler. Terese Chan. They said I could be anything, so I became two princes who adore you. Soggy pants. And I ordered public transit on the Freedom menu, but got cars instead, I demand a refund. Oh, your turn, Andrew. Yeah.

0:59:38 Andrew: And Thank you to Adopt a Homeless Pet in a Post Declawing into Your Docking Man. I've missed reading all of these, Day Jury Belly at Packy's, That Last Baby, Heather L the Amazing, Heather L. Matthew Vernon, Jeremiah's Fancy Microwave Emporium, Ian and Allie, Danny Rosari. Eli Bosnick gets to change his Patreon name because Patreon gave up on his blog, too. Oh, poor Eli.

0:59:46 Thomas: Oh,

1:00:04 Andrew: I loved I loved all four entries of Eli's blog.

1:00:02 Thomas: I'd love his I wish he brought it Back. Yeah.

1:00:09 Andrew: Adam Costa, Eat the Patriarchy, David in Brooklyn, Sam Donnell, Mitchell. The Foundation books are better than the Dune books. Come at me. Well, I have to tell you, I need to get Apple TV because I am super excited about watching the Foundation series.

1:00:23 Thomas: Yeah, I've watched two of the episodes. We're covering it over on Philosophers in Space. It's interesting.

1:00:27 Andrew: Oh, I don't want spoilers. I don't want spoilers, but did you enjoy it?

1:00:31 Thomas: It's, you know, only two episodes. I need to see more, I think. But yeah, it'S interesting. I'm interested.

1:00:36 Andrew: Right. All right, well, we'll chat offline.

1:00:39 Thomas: I also want to see Dune in IMAX.

1:00:41 Andrew: I can't... We have to talk about this offline, too. I have not seen Dune yet, either. So Samuel Alito's burner account password. One, two, three, four, five. Same as my luggage. I hate the 2021 Alex Jones, but the super fake 2003 radio voice is unbelievably worse. Yeah, that is that is from our friends over at Knowledge Fight. And they are doing retrospectives. And it's it's entertaining, but ridiculous. Anyway.

1:00:52 Thomas: Oh, like he had a really... Okay, I got to hear that.

1:01:08 Andrew: Oh. Oh. My God, you have to tune in and listen. Here, they're like, he sounds like me doing a bad Rush Limbaugh impersonation. It's like, well, ladies and gentlemen, coming at you from the voice of, it's amazing, anyway, Sam Buck, uh, and of course our all-time, I can't believe I got the honor of saying, Conrad Michaels, whoo.

1:01:31 Thomas: Thank you so much, top patrons. We love you. You and uh yeah, next month, fourths, I'm just gonna go with fourths.

1:01:38 Andrew: Fourths.

1:01:38 Thomas: And fifths way easier.

1:01:39 Andrew: Yep.

1:01:40 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

1:01:46 Thomas: Now it's time for T3B, Thomas Takes the Bar Exam. Results time. Was this one as straightforward as I thought it was? Damn.

1:01:54 Andrew: So this was Driving Miss Daisy. Woman hired a driver to drive her across town. Driver negligently failed to pay attention, went the wrong direction. And by the time he noticed his error, it was too late. I guess he's, you know, union, can't drive past a certain time. So pays for the woman to stay in a hotel room. And while at the hotel room, the woman gets pickpocketed and loses an expensive pair of glasses out of her purse. She sues the driver for the value of the glasses. Should she prevail? You went with no. You narrowed it down to C and D. I love it when you do that. And I have to tell you, good elimination. Going to, I'm going to cut ahead to the punch line. You picked C. Larceny is not a foreseeable result of the breach by the driver. You even mentioned the Paul's graph versus Long Island Railroad decision.

1:02:46 Thomas: Right, I did. Oh.

1:02:47 Andrew: You got this 100 percent correct in exactly the way that a lawyer would. I'm very, very very proud of you. And I have nothing to add on that. To, I'm not going to go for any mystery here. I will tell you, this is a little trickier even for some lawyers than you might otherwise suspect. Right. Because there are other good answers. But the question is, what's the best answer? Right. So so, for example, you right, say you preferred, larceny is not a a foreseeable result of the breach by the driver, to D, no, since the act of larceny was committed by a third person, not the driver. An intervening cause by an independent agent, grounds for breaking the chain of causation. But nevertheless, there, right, are scenarios where things are foreseeable, where the negligence of one party, um, extends to acts performed by another, an example that comes to mind, it's not given here, uh, in the test literature, is, I'm the ambulance driver and I'm driving you to the hospital, um, and I negligently go the wrong direction, right, or, you know, I drive terribly or what have you.

1:02:54 Thomas: Yeah.

1:03:57 Thomas: I'm gonna pay for you to stay a night at a different hospital. No, that wouldn't work. Yeah.

1:03:58 Andrew: I and I get you to the hospital late such that the doctor uses her best efforts and testifies, hey, if I'd this patient here 10 minutes ago, I could have saved his life. And and that doesn't happen because of my negligence. I am still approximately approximately responsible, that's a foreseeable cause, right? My job Is to drive you to the hospital. We know I'm going to turn you over to a doctor. I don't get you there in time because of my negligence. I am responsible for the ordinary chain of foreseeable events afterwards. Thought, so that was good. Also, the basic yes answer of yes, it's negligence, uh, again, sometimes that's The case, right.

1:04:22 Thomas: Yeah. Yeah. I almost was gonna leave that as my other option just in case, but then I realized I couldn't quite differentiate between A and B. just because of the, is there like a contributory, is B going for a contributtory thingy?

1:04:51 Andrew: That Is exactly what B is going for, um, contributory negligence, which is, which, look, it, it is true that if the woman was negligent in failing to notice that the driver was going the wrong way, and it is a contributary negligence jurisdiction, um, that would bar her claim if it were otherwise valid, um, except that, right, the, as pled, it's invalid because of The lack of foreseeability, right? Foreseeability is the element. But yeah, so I thought this had a higher, I'm not going to lie and say that it's the hardest question in the deck.

1:05:17 Thomas: Right, yeah.

1:05:26 Thomas: I still don't know what case you're making for another answer that someone could have picked.

1:05:31 Andrew: Well, I'm saying that as you're going through it, yeah,

1:05:33 Thomas: You started this with, oh, it's a little bit harder than you think, and then what was the other answer someone would have picked?

1:05:37 Andrew: I think that you could make a case, you could certainly make a place for D as an answer. Um answer but c is a much better answer

1:05:44 Thomas: Okay. But me and all the other brilliant lawyers listening the show saw through that and the coin by the way, so I feel like this was a bit of a freebie, but you know what, this test is so hard sometimes you need those freebies, and the test has to check your pulse as a lawyer. Well Uh, I won. Let's find out who this is. Gonna be interesting, in one where a lot of people probably get it right. I'm sure that you're gonna have to pick the most entertaining answer or something. We'll see. Future Andrew, for the first time in a while, why don't you choose who is our, our big winner in this week's T3b and

1:05:46 Andrew: Yeah you did there you go I Thomas, I can't tell you how great it feels to be back announcing T3BE winners, and especially this week when we have a pithy and amazingly correct answer from the Mortgage Talkin' Guy on Twitter who writes, T-3-B-E is C, unless the hotel was on Crime Alley in Stabbington Heights. Well, that is exactly right for exactly the right reason, and remind me never to visit Stabvington Heights, but I do want to remind everybody, let's give Mortgage Talkin' Guy a follow. They are at N-J-O-R-D-A-N-79, at NJordan79 on Twitter, and congratulations for being this week's winner.

1:06:59 Thomas: And that's our show. Thanks so much for listening. Uh, the hippos are not people, my friend, I think it was the the punch line there, and we'll see you for another Rapid Response Friday, and we're see you at the Q&A, come on, it's coming up right now, probably as you're listening, patreon and uh YouTube, come join us.

1:07:12 Andrew: Yep

1:07:15 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.

1:07:49 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.