The Slap. The Actual Legal Implications. NO HOT TAKES

Transcript

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

0:01:16 Thomas: Hello, hello, and welcome to a bonus episode. It's not anti-slap law, it's slap law. How you doing, Andrew?

0:01:25 Andrew: I'm fantastic, Thomas. How are you?

0:01:28 Thomas: Oh, man, I'm good. Here's what I want to say right off the bat, just right away before anybody, you know, turns it off immediately because they've heard too many slap takes. No hot takes. This is not a hot take. You're going to be inundated with hot takes, but I very much am interested in the legal questions around this. Some really interesting legal questions around the incident, uh, between Will Smith and Chris, uh, Rock. I think it's fascinating. So I wanted to ask you these legal questions. Andrew did, did deep dive research as he always does. And we wanted to give you just that this is a bonus, totally, you know, uh... free for everybody, little bonus show on what happened. No hot takes, just the facts, ma'am. Uh... what do you think, Andrew?

0:02:12 Andrew: All right, let's do it.

0:02:13 Thomas: Let's do that. So... and also, we should tease, coincidentally, there's a substantive thingy that happened. The final decision in the Eastman Privilege stuff that we just covered. If you heard the episode, if you're a patron, you've already heard it. If not, it's coming out tonight on the episode. And that decision was reached. So we have to talk about that a little bit. But first, Slap Law. In case you are living on Mars, I'm going to play the audio of the altercation. And please note, this will not be a family-friendly show. It's an uncensored show. It's a non-edited show because we're getting this out right away for everybody. And there's some cursing in this one. So here you go. Here's what happened to all the Martians who haven't seen it yet.

0:03:03 Clip: Jada, I love you. G.I. Jane 2, can't wait to see it. All right? That was a nice one. Okay. I'm out here. Uh-oh. Richard. Oh, wow. Wow. Will Smith just smacked the shit out of me.

0:03:36 Clip: Wow, dude. It was a G.I. Jane joke. I'm going to. Okay? That was the greatest night in the history of television.

0:04:02 Thomas: So that's what happens. Where do we begin, Andrew? I mean, there's so many questions that come to my mind. Charges. What could he be charged with? Assault on live TV, assault and battery on live TV. What does that add to it, to the mix? Where was security? A lot of people wondering how did they, and by the way, the show just went on and he just won the Oscar and then went up and gave a speech. It was very weird.

0:04:23 Andrew: Right. That was a little weird.

0:04:28 Thomas: So where do we even begin with the law here, Andrew?

0:04:30 Andrew: Well, let's start off with potential criminal liability for Will Smith, right? Right. And here your intuition is exactly correct. This is under California state law. Right. A violation of the assault and battery sections of the California penal code. So let's.

0:04:52 Thomas: I actually had a funny question for you though, because I know, I know as a longtime time listener, the assault and battery is commonly misunderstood. Like, the assault, people, people say assault when they mean battery, and the assault part isn't that the, like, the approach kind of thing.

0:04:54 Andrew: Oh, go ahead.

0:05:05 Andrew: Yeah.

0:05:05 Thomas: And I was thinking, because he kind of sucker punched him and just walked up like normal, is it just battery? I was gonna ask you, like, these can you skip the assault part because he, like, pretended that he wasn't gonna hit him and then just whap?

0:05:06 Andrew: So you you absolutely could, but there's no need to. So let's break down both of those two statutes. Right? Right. Assault, referred to as simple assault in the California Penal Code, is Section 240. And it is an unlawful attempt coupled with a present ability to commit a violent injury on the person of another. So the moment you undertake that swing, right, a half second before the slap connects with Chris Rock's face, that's An assault. Assault.

0:05:22 Thomas: Right. Right. Hmm. OK. So even Bruce Lee couldn't commit the battery without the assault. Would they like the quick punch that he would?

0:05:55 Andrew: That's That's an outstanding interpretation, yes. That is, that is my interpretation of California Penal Code section 240. Now, the, the thing that everyone thinks is assault is battery, which is California Penal Code section 242, which says, and again these are one-line definitions of the statute, we're going to talk about how they're applied when we get into some of the specific instances of this particular incident, but the statute defines battery as any willful and unlawful use of force or violence upon the person of another, and force is defined in the case law, and again this is one of those 13th century Saxony things, as an unwanted touching, right? So force does not have to be what you would think, right, any level, level of unwanted touching.

0:06:48 Andrew: Right. So both of these are misdemeanor offenses. Right? That's why it skips. It goes from 240 assault to 242 battery. Why does it do that? Because 241 sets out the penalties for committing simple assault under California law. That is $1,000 or up to six months in county jail. It's a misdemenor offense. Same thing for battery, although it carries twice the economic penalty, up to $2,000, and up to six months in county jail.

0:07:20 Thomas: Well, that's going to bankrupt Will Smith.

0:07:21 Andrew: Yeah. And again, everything. So this is state law, state court in which state judges have a tremendous amount of leeway in discretion of whether and how to award prison time in connection with an offense. I have found zero indication that for a first-time offender that you would get jail time in connection with simple assault or simple battery. So, yeah, we're talking about a thousand dollar fine or two thousand dollar fine in connection with the assault and battery.

0:07:22 Thomas: Jeez. Right.

0:07:57 Andrew: So that's it in terms of your underlying criminal offenses. I should say that battery becomes a more serious offense. It can carry up to a year in prison if the battery is connected with, quote, serious bodily injury, I'm going to take a look at the jury pattern instructions. Again, no hot takes here. I am not adjudicating whether the slap is appropriate or disproportionate or anything like that. I will tell you, under California law, it does not qualify as a serious bodily injury. A serious bodily injury. This is, again, straight from the pattern jury instruction.

0:08:44 Andrew: Section 925 means a serious impairment of physical condition. Such injury may include but is not limited to loss of consciousness, concussion, bone fracture, protracted loss or impairment of function of any bodily member or organ, a wound requiring extensive suturing and serious disfigurement. So that's the kind of instruction that would be read to a jury to determine whether to convict. And I think it's pretty obvious, based on what 11 billion people saw last night on national television, that this slap did not arise to that level of injury. So that charge is not going to be added on to the battery charge. So we're talking about potentially two misdemeanors.

0:09:32 Thomas: Now, there's been some talk of, you know, does he have to press charges? There's been, um, some reporting that Chris Rock's not going to. I looked into that and it didn't seem conclusive yet, although, you know, maybe lots of change in the 12 hours since it happened, but that linked to something that just said he declined to fill out a police report at that time that didn't suggest to me that he would foreclose on the ability to either press charges or to sue civilly, which I'm sure we could talk about. Out. What's your sense of all that?

0:10:06 Andrew: Let's absolutely talk about the civil suit possibility. But first, let's answer that specific question. Pressing charges isn't really a thing. I kind of wish we had done this in one of the past episodes of, you know, breaking down the law or defining terms or whatever.

0:10:21 Thomas: You know, yeah, 580 something, 581 that we've done. We never did. Man, that's crazy.

0:10:27 Andrew: But here's the way that it is portrayed on television. And let's be honest, the way in which people typically interact with the legal system is the idea of if you are the victim of a crime, you then as the victim get to choose whether to press charges or not and if you choose no then that goes away and that is not the case, the prosecution gets to determine whether or not to quote press charges, what do we mean when we talk about an individual, rightly, if you ask Chris Rock, hey, sort

0:11:02 Thomas: Yeah. Is this something where practically speaking, it just works out that way because a lot of crimes, if you are the witness, you're the person who would need to like provide the testimony or cooperate with police in order for the police to even have any sort of case for the prosecutor to have any sort case. It essentially becomes that where like, like, if you decide you're not going to do it, then there's not really any case to be made.

0:11:24 Andrew: Of. So you are correct in that what people mean by, "Are you going to press charges?" Is typically, "Are you going to give a victim impact statement to the police?" Usually you need that, right? Because usually a crime does not occur on national television. That's exactly right. So if the victim decides they are not going to fill out and talk to the police and sort of describe what happened and that initial incident report, then it becomes very, very difficult to charge somebody, but not impossible. And a key area in which this often happens are spousal abuse cases, right? The police show up, the obvious victim says, well, I'm not going to press charges. And if it happens enough times or, you know, if it happened in a particular circumstance, circumstance the the police can fill out their own incident report, right, they can go to the prosecutor and go, yeah, you know, we're not going to get any cooperation from this witness, but I am absolutely happy

0:11:25 Thomas: Okay. Hmm. It didn't happen on the Oscars.

0:12:32 Thomas: Yeah.

0:12:32 Andrew: To take the stand and testify that

0:12:33 Thomas: And we've got a hell of a surveillance tape on this case.

0:12:35 Andrew: Yeah right, yeah, here, so so there are really two options.

0:12:40 Thomas: I imagine the officer walking the Oscar. Hey, you got any security cameras that captured this? Whoa, yeah, there's a lot of them. They're really big, too. Wow, those are fancy security cameras.

0:12:50 Andrew: They sure are. So, look, if let's assume Chris Rock decides he's not going to quote press charges. Can the prosecution still make the case for assault and battery without that incident report? And I think the answer is pretty clearly yes. And let me point out that you can still subpoena Chris Rock to testify. Right. And he still has to come and testify. So, so, one of the practical aspects of the victim saying, I'm not going to press charges, particularly, again, think of the domestic violence scenario, is the idea that you're not going, going to get great testimony out of this witness either, right?

Um, and that can be a real problem here, I think, if Chris Rock says, yeah, I'm not going to testify, because, you know, again, no hot takes, but, for, he makes a strategic decision based upon certain events that occurred immediately before the assault and battery to say I am not going to testify, nevertheless, I think if subpoenaed, would probably testify largely truthfully. And again, you have some good security camera footage, so could you prove, and is there any kind of intent-based element for either assault or battery that would require, uh, Chris Rock to testify here. And here I

0:13:09 Thomas: Yeah. Yeah. Oh. Yeah. Right. Yeah. Yeah.

0:14:15 Andrew: Looked at, again, the pattern, the pattern jury instructions, beginning at section 915, for battery. So this is what a judge would read to the jurors in determining whether they believe beyond a reasonable doubt that Will Smith committed a battery. You would say to them, the defendant, Will Smith, is charged in count one with assault, in violation of Penal Code section 240. To prove that the defendant is guilty of this crime, the people must prove beyond a reasonable doubt that, one, the defendant Will Smith did an act that by its nature would directly and probably result in the application of force to a person. Okay, well, you don't need Chris Rock's testimony for that. Two, the defendant did that act willfully. Okay, again, don't think you need Chris Rock's testimony for that. Well,

0:14:58 Thomas: Yeah. That'd be an interesting defense, if he didn't, I don't know what he would come up with, I guess. I mean, he went with the God defense a little bit, and in his Oscar speech, you know, the devil, or the devil, I think, made him do it. But I don't that that probably won't work legally, I'm guessing.

0:15:17 Andrew: Well, later in the instructions it says says someone commits an act willfully when he or she, well, it says, when he or she does it willingly or on purpose, it is not required that he or she intend to break the law, hurt someone else, or gain any advantage. Right. So that's the, that's what the jury will have to go by in determining whether it's willful or not. Again, notice that that doesn't require any sort of testimonial evidence, right? That just requires a jury's evaluation of, hey, and again, there are cases, since this doctrine is a common law doctrine and goes back to 13th century Saxony, right? There are cases of Andrew pushes Thomas, and Thomas stumbles and falls into

0:15:21 Thomas: Even If the devil made, right, Yeah.

0:16:05 Andrew: Bob, right, so Thomas did not assault or commit a battery on Bob, because you didn't act voluntarily, right, I pushed you, you fell. Now, you know, then you ask these kind of weird corner cases of, you know, suppose it's like a soccer match, right, and I lightly graze you, and you take a theatrical dive backwards, as if I have, you know, punched you with concussive force from a video game, and, uh, and then in the, in the act of acting injured, you injure someone else, right?

0:16:24 Thomas: Oh.

0:16:42 Thomas: Guilty.

0:16:42 Andrew: That, yeah.

0:16:43 Thomas: Death penalty.

0:16:43 Andrew: Maybe.

0:16:44 Thomas: Maybe we can finally make soccer more real.

0:16:46 Andrew: Maybe we could do that. So, uh, that, that's that second element, defendant Will Smith acted willfully. I think jury will not have any difficulty finding that. Third, when the defendant acted, he or she was aware of facts that would lead a reasonable person to realize that that his act, by its nature, would directly and probably result in the application of force to someone. And that is you are making, because there are cases of battery, sorry, I said battery, but I mean assault here. I've got it under the wrong heading. We're doing this live.

0:17:07 Thomas: Yeah. I'm

0:17:24 Andrew: So, you know, I apologize for the five seconds of misinformation to our viewers. So again, Again, these are the elements of assault. This is Section 915 of the pattern jury instructions. There are cases of assault in which people feel threatened by various gestures, activities. Right. So think about it this way. If I, you know, if I'm twice your size and I do that, like raise my shoulders and kind of lean towards you, right? Right. And you cower and back down, that would involve this third element. Right. Which is, have I acted in such a way that would cause a reasonable person to think that you are getting ready to apply force to me? And, you know, muscling up, leaning in with my shoulders, looking aggressively, that probably would lead a reasonable person to think I'm about to clock you. Right. On the other hand, you know, you could easily imagine

0:17:23 Thomas: Doing it live, it's fine.

0:17:44 Thomas: Yeah.

0:18:25 Andrew: Unreasonable interpretations, right? I happen to see a person across the street, it looked like they made a gesture of some sort, now I want to sue them for assault. Well, you know, is that, uh, is that an example of something that a reasonable person, uh, would think that that act is going to directly and probably result in the application of force? And, you know, you could see it going either way here. When somebody takes that big George Foreman style wind up and comes down with the slap, uh, that probably meets that criterion, right?

0:18:51 Thomas: Yeah, since I'm younger than you, I was like, how would this involve the grill and the fats dripping down, oh, oh, the bar, yeah, yeah, okay.

0:19:02 Andrew: The boxer. Yeah, before, before, before he hawked grills, George Foreman was a fantastic boxer.

0:19:11 Thomas: Yeah. He slapped the meat juice right out of him, I agree, good old George Foreman slap left, so

0:19:16 Andrew: Watch the George Foreman Evander Holyfield fight. Foreman Was like 47 at the time. And he was just this huge man mountain. Evander. Holyfield was a literal Greek God at the top. Anyway, so that's a that's a side project for away listeners. And then element number four. When the defendant acted, he had the present ability to apply force to a person. So you cannot assault somebody if this standard is slightly different when we talk on the civil side, on the tort side. But if you lack the ability to cause that harm, then you cannot be guilty of assault. That's a defensive impossibility. Right. Now, since.

0:20:03 Thomas: Like Will Smith goes to slap him and he doesn't have an arm or something like, then Oh. Okay. He Like left his arm by the table, okay.

0:20:07 Andrew: Right. Exactly. Yeah. You you are the rest. There is also a fifth element. That fifth element is that the defendant did not act in self-defense or the defense of another. That won't be given here. Put a pin in it. We are going to talk about the question of provocation, which I know you're going to raise, but let me tell you in advance, this would not result in a self-defense instruction, right? Or the defense of others, Right. And you could see how you could construct an argument of, well, is he defending his wife right that

0:20:33 Thomas: Yeah. Hold on, what if there was a car dealership nearby that Will Smith needed to defend from Chris Rock's critical race theory, I'm just saying, would that work on the jury? Oh, yeah, oh that's right, there's no white people involved, okay.

0:20:52 Andrew: Would that would not work on the jury, uh, at least not in California Yeah.

0:20:59 Thomas: Dang.

0:21:01 Andrew: So there are continuing instructions, right? I already talked about the instruction of what it means to act willfully. They go on to say, the terms application of force and apply force mean mean touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Again, this is exactly what the jury hears. Making contact with another person, including through his or her clothing, is enough.

The touching does not have to cause pain or injury of any kind. The touch can be done indirectly, by causing an object or someone else to touch the other person. You don't need to give that instruction here, but that's part of the law. The people are not required to prove that the defendant actually touched someone, probably don't need to give that instruction here, against, again, video. The people aren't required to prove that actually intended to use force against someone when he or she acted. No one needs to actually have been injured by the defendant's act, but if someone was injured, which occurred, you may consider that fact along with all of the other evidence in deciding whether the defendant committed an assault and, if so, what kind of assault it was. Voluntary intoxication, not a defense to assault. Okay, so those are elements of proving assault. What about proving battery?

Battery is section 925 of the pattern jury instructions, we'll go pretty quickly here. To convict, the prosecution must prove beyond a reasonable doubt, uh, that, number one, uh, the, the defendant willfully and unlawfully touched, here, Chris Rock, in a harmful or offensive manner.

0:21:46 Thomas: Whoa.

0:22:39 Andrew: And that's it. And we're going to talk about that. There was also an instruction that says, and the defendant did not act in self-defense or in defense of someone else or while reasonably disciplining a child. And I will point out, yeah, I will point out that it is, I knew that was, was going to grab some attention. I actually read the commentary in the pattern jury instructions, and they talk about the classic case of your child is about to fall into the ape hut, uh, down at the local zoo, and so you reach over and you grab him and you yank his arm, and, you know, and it's, it's potentially painful and more than you need to, but, you know, you kept him away from the ape hut or whatever. So, uh, I

0:22:53 Thomas: Topic for another show? Wow. Yeah.

0:23:25 Thomas: They live in huts

0:23:25 Andrew: Don't know, uh, uh I thought it was a, a hilariously updated example Yeah.

0:23:25 Thomas: Or pen, yeah. I don't know. I mean, that's like the best case scenario. Okay, so they put in, like, an updated best case scenario, because obviously it sounds like this was written for just people hitting the shit out of their kids, yeah.

0:23:40 Andrew: I I did not go back to the prior amendments, but I am very very confident given how old this doctrine is that at some point it was like, and obviously the Bible says, you know, beat the crap out of your kids whenever you want, uh, yeah.

0:23:44 Thomas: Yeah. Yeah. That's fine. Yeah.

0:23:54 Andrew: That's fine. So, uh, then the question is, how do you break down that willfully and unlawfully? So someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intended to break the law, hurt someone else, or gain any advantage. Making contact with another person, including through his or her clothing, is enough to commit a battery. So, uh, and what makes it offensive, offensive is unwanted, want it. So there you go, minus the defensive others bit, which I told you to put a pin in, and I'm sure you're gonna ask me about it. Seems pretty clear that, uh, the prosecution could prove assault and battery, uh, without Chris Rock's testimony, and, um, go through each of those elements and, uh, gain a conviction beyond a reasonable doubt. So, what about how this happened?

0:24:50 Thomas: I was gonna ask, were, were them fighting words? I don't remember. If fighting words still exist in California. But yeah.

0:24:52 Andrew: Yeah. Uh, Fighting words still exist as, as a Supreme Court doctrine, uh, that is an exception to the First Amendment. It is an incredibly archaic and infrequently relied upon section, and oddly enough, the things that you might think would be the most fighting wordsy of fighting words do not really show up in the Supreme Court's jurisprudence. And part of that is almost certainly attributable to the number of African-Americans that have been on the Supreme Court throughout history. So put a pin in that for another place in time. But here, in particular, with respect to this California statute, it is absolutely clear that this provocation is not a of defense.

0:25:45 Andrew: This is section 917 of the pattern jury instruction. So when you are trying to figure out is this self-defense or the defense of another, here is what would be read to the jury in this case. Quote, words, no matter how offensive, and acts that are not threatening are not enough to justify an assault or battery. However, if you conclude that the defendant spoke or acted, sorry, it should be, however, if you conclude that the plaintiff spoke or acted in such a way that threatened with immediate harm or an unlawful touching or great bodily injury or trespass on land or trespress against goods, you may consider that evidence in deciding whether the defendant acted in self-defense or defense of others.

0:26:37 Andrew: So let's break that down a little bit because I think it, again, shows the archaic nature of this. The California model pattern jury instructions come down on the side that physical contact is always worse than speech, right. That's a decision that they've made, that's something, uh, that I think philosophically we can and do continue to debate. It's a position that I've said on the show I've changed my mind about. That I probably would have said I agree with that a hundred percent six. And I'm not sure I agree with that anymore. It's something that's always been sort of open in my mind ever since reading Mary Matsuda's Words That Wound back in law school. But it, I think, takes on particular salience today.

0:27:27 Andrew: That's a broader social question. In terms of the application here, it absolutely would not avail Will Smith for a criminal defense because of the public policy choices that California has made. And illustrating that those are public policy chooses, notice the kinds of things that the jury would be allowed to consider, right? That is, if the words were enough to threaten with immediate harm, right, so if I I come up to you and I say, yeah, exactly. So we get that. That still sort of fits in with the force equals force, right? Well, I'm threatening imminent force, right? I'm threatening great bodily injury. But what about the trespass on land or trespass on goods?

0:27:57 Thomas: Yeah.

0:28:15 Thomas: That's an interesting one, yeah.

0:28:17 Andrew: It reflects the idea that it is OK to use force in defense of your property, right, Prior to somebody being an aggressor. And if we're at that place, I mean, to me, this is a very, very good counter argument if you are a believer that hate speech maybe ought to be considered as a defense in cases like this. One of the things, you know, the reply would be the, you know, sort of 19th century John Stuart Mill marketplace of ideas. Touching is always worse than speech. And the reply back to that might be, well, you've said that as a legal principle, but as it turns out throughout history, various kinds of legal interests have been accepted from this, right?

0:29:08 Andrew: Including a man's home is his castle, right. I'm allowed to defend my property by escalating, by being the first person to use force in response to your speech and use that as a defense to an assault and battery charge, to assault and battery charges. So I think it's good to understand the full context of that. So

0:29:29 Thomas: Also we've seen how in this day and age how harmful, how much more harmful speech can be than merely slapping somebody. I mean, Trump started an entire insurrection, and while he may be guilty of something, we'll, we'll see, I, I don't know that anyone's argued that he, you know, like the speech he made, you know, it's hard, I don't think any, I don't think he'll be charged, correct me if I'm wrong, I don't think he'll be charged for the speech he made leading into that, uh, even though for incitement, even though that's absolutely more dangerous than I don't any, any number of actions that you would consider, you know, small acts of violence.

0:30:10 Andrew: I absolutely agree. I mean, certainly under the battery standards where I come up and poke you in the shoulder, and I say, hey Thomas, that's it, enough with the emergency episodes, and I poke you a couple of times, uh, I was, I had other plans on this Monday, um, that

0:30:25 Thomas: Get back to your document Dungeon Torres, I don't want to hear it.

0:30:34 Andrew: That's, that's a battery and uh, so yeah, absolutely, yep.

0:30:36 Thomas: Yeah and the idea that, that is what, and I think it goes to show that legal standards may be what they are for pretty decent reasons in this case, but like, I also think that socially, you know, that doesn't mean we all have to align our values around what the law is in thiscase You know, we don't all have to to align our values around the fact that Will Smith slapping Chris Rock is worse than what Trump did just because there was no technical crime. I don't think we all have to accept that morally, even if legally the standard might be that.

0:31:07 Andrew: I think that's exactly right. So after deciding that the provocation self-defense, defense of others was not available, I looked through a bunch of California cases to try and figure out, well, what are the typical issues, other than that, that are raised in defense to assault and battery cases. And I found a couple commonalities, spoiler, none of which are likely to help Will Smith much here, right? So, right, obviously, primarily, you were defending yourself or someone else. Second category is the, you didn't have the present ability to use force, right? And that is, there are cases involving, um, somebody gives you what, what the cases call an offensive gesture from across the street. Well, you know, it's, that's not hard to fill that one in, right? But, uh, I, I, uh, you know, you, we're walking, I'm on the east side of the street, you're on the west side of the street, there's three lanes of traffic in between the two of us, and, uh, I, you know, give you the old one finger salute, right? I

0:32:19 Thomas: But we could go old timey. It's like the do you bite your thumb at me, sir?

0:32:23 Andrew: I bite my thumb at thee, yeah. Uh, and I even take out the glove and I wave it in your direction, um, I don't have the yeah.

0:32:25 Thomas: Yeah. Oh, wow. You just started a war. No, I'm

0:32:32 Andrew: I don't have the present ability to use force in that case. So even if I'm threatening you, right, there's no way that that's an assault. Because you can't reasonably be an apprehension that you're about to get hit because there's three lanes of traffic in between the two of us. Now, if I run across the street, sure, that, that changes the situation. But if I just go on about my day, that incident, that event cannot qualify as an assault. We also, we talked about this a little bit, but if you didn't act willfully, if you were part of a chain of causes, then that would say, again, not an assault. Right. Hi, you're standing. We're all, we've all gone skiing, and you and I are standing at the top of the mountain, and I, I push you and you start staggering down the mountain, like mostly out of control.

0:32:32 Thomas: Just kidding.

0:33:26 Andrew: And you are headed straight for somebody at the bottom of the mountain, they are reasonably in apprehension that they are about to get clobbered by a Thomas Smith on skis, but the fact that you didn't undertake that action, even if you're sort of like flailing around and trying to gain control of your body on the skis, is a defense to you being charged with assault. Now, uh, kind of skip ahead, head, can I be charged with assault? And the answer there is absolutely yes, right? That is a doctrine called transferred intent, right, and so the question would be, if I am intending to assault you and I push you and you stumble down the mountain and clobber somebody else, then I have committed both an assault against you and a battery against that third person, right and an assault And a battery against the third

0:33:37 Thomas: Yeah there we go I became

0:34:19 Andrew: Person that that is exactly right. So none of those things seem to avail Will Smith much here. I will tell you that the typical defenses against battery are, in every case that I read, was basically a question of whether it constituted serious bodily injury or not. And again, I've already adjudicated that this is not serious bodily injury, and I don't think anyone would try to claim that. So that, I think, kind of wraps up the criminal side.

0:34:19 Thomas: Your weapon of choice so time for the civil side, I think is what you seem to be leading me to, yeah, yeah. I, uh, who knows, socially maybe, uh, Chris Rock just wants to avoid the whole thing. I think that's entirely plausible. Part of me wonders that, uh, in addition to assault and battery, which it sounds like those are both criminal and could be like civil torts. Right? Right.

0:35:00 Andrew: Yeah. Well, yeah, that's right.

0:35:19 Thomas: OK. In addition, I feel like if he wanted to, if Chris Rock was very upset by this whole thing, which I would think he'd have every reason to be, even though, you know, venturing into opinion territory of whether or not how much he deserved any sort of reaction, we can we can set aside, but getting slapped on live TV in that way, that strikes me as real emotional distress, emotional harm kind of stuff. Territory, is that in the picture? Oh,

0:35:47 Andrew: It absolutely is, but not in the way that you're thinking about it. So here are the the torts that I think Chris Rock could raise against Will Smith, keeping in mind. And this was, you know, Morgan's first take, which was, boy, Chris Rock would make a terrible plaintiff. And I think that's right. And remember, you knows, even if, even if you've got sort of, even if if you went to a judge rather than a jury, right, in a particular civil case, that you would still take a look at the totality of circumstances. And great, Chris Rock would be a tough plaintiff to take in this case. So, uh, the the torts that he would allege against Will Smith are intentional torts, right? That is exactly what it sounds like. You did a thing on purpose, and you can civilly sue someone for both assault and for battery. The elements are basically the same, but they change a little bit because the burdens change and because what you are looking to do changes. But for assault you have to

0:35:51 Thomas: Yeah.

0:36:07 Thomas: Court.

0:36:53 Andrew: Intentionally threaten, and it has to be by a defendant who possessed the apparent present ability to carry out the threat, measured by a standard of reasonableness. Okay, so that's a little different, right? We talked about in the criminal context, if you have an impossibility defense, right, if you couldn't possibly have hurt the defendant on an objective level, it doesn't matter whether they were reasonably in apprehension that they were about to get hurt, um, you you couldn't commit the assault, you couldn't commit the battery, therefore absolute defense. Civilly, however, all that matters is, uh, that a person of ordinary courage, again, I told you a lot of uh 13th century Saxony here, may have been placed in apprehension, uh, of imminent physical harm.

And you, can I I just, I envision the like 14th century courts going to adjudicate this, and, you know, and saying, well, you know, the the defendant here was a, was a man of short stature and, you You know, was known throughout all the realms of England as, you know, the the weakest. And, you Know, it if the plaintiff was reasonably in apprehension, right, the plaintive was even smaller than the court jester. Who knows? Right. The test is not an objective one. Is this a person who could harm you? But it is a subjective one. Is it reasonable for you to have been in apprehension that you were about to get hit?

0:38:04 Thomas: Jester. Who? Yeah, Okay.

0:38:33 Andrew: Everything applies that we just talked about, right? Even if it's the end of a chain of events and the doctrine of transferred intent, again, they obviously don't come into play here, but, you know, as long as we're doing a deep dive, let's do that deep dive. Now, with respect to the emotional distress component, right, you might be thinking, oh, is it going to be going to sue for intentional infliction of emotional distress? I don't think so. And I don't think so, you might add it in because, you know, of the "sue every everyone for every reason and let God sort it out" doctrine, but that's much harder to prove, right? You have to prove that the defendant's conduct was extreme and outrageous, and we've talked about that, and, I, you know, slapping somebody on live television, probably extreme and outrageous.

0:39:19 Andrew: But why would you go to that additional burden of proof to reach the same level of damages, right? And those damages that you can receive at common law for being the victim of a tortious assault are, you can get compensatory damages for your physical injuries, right, probably not going to be a lot here. You can get damages for humiliation, disgrace, or loss of dignity, right, and all of that, you know, would apply. And again, I should add, the physical injury, uh, includes, since we're no longer in the 13th century, uh, your your mental damages as well, right, like to the to the degree that, that, uh,

0:39:47 Thomas: Right. Yeah. I mean, it jokes aside, like, I, I think that could be very traumatic. It really, I guess, it depends on, uh, how Chris Rock, I guess, processes the whole thing, but I could imagine that being devastating, um, and I was going to ask you, like, it sounded like you were saying, you know, if I get slapped on live TV or slapped in the privacy of my own, or something, assaulted and battered, and that way, like, that it would be the same, but you're not saying that. You're saying that the additional kind of embarrassment, humiliation part of the damages is already built into the tort of battery.

0:40:06 Andrew: Absolutely. I I Absolutely. I'm Saying it is built into the compensation for the damages component.

0:40:39 Thomas: Yeah, exactly. That's What I tried to say, if I didn't say that, then that's what I meant to say. No, no, it's fine, no, no, you're a lawyer, I probably said something not technically correct, which is is the best kind of crap.

0:40:40 Andrew: Yeah. Exactly right. No, I'm sorry, if I wasn't trying trying to pick nits with you. Yeah. But yes. So one of the ways in which this occurring on live television makes more of a difference would be if Chris Rock were to say, hey, I can't get work now because, you know, this happened to me or this assault happened to be on national television. And loss of wages is well established as, you know, part of the grounds for direct compensation. You can also get nominal damages. Nominal damages are nothing else happened, but you get one dollar. Now, why would you want to get nominal damages of one dollar?

0:41:00 Thomas: Yeah.

0:41:31 Thomas: You want to buy a soda? I don't know. I don't think that you could buy a soda for a dollar anymore in this economy.

0:41:35 Andrew: No, you cannot. But the but the answer is because that could in some jurisdictions keep alive the question of punitive damages. Right. To say, OK, so you don't have any actual, you don't have any compensatory damages in which we think that, you know, as the jury, that, you know, you need to be compensated for, but we're going to say this definitely occurred as a matter of law. We're gonna award you nominal damages of a dollar. Now we're to take up the question of punitive damages, which usually have to be proven by clear and convincing evidence, and that is that

0:42:11 Thomas: Yeah, well, I was gonna ask you about the timing, like, how long does he have, I guess, what's the statute of limitations or something? Because what if, you know, what if Chris Rock, and this is hypothetical, I don't think that any of this is the case, but like, what of Chris Rock? You know, he doesn't know now, but in, I DON'T KNOW, a year, he realizes like, geez, I haven't gotten a job in a year. Like, I, you KNOW, how how long does he have to measure out that, that the consequences of, of what happened?

0:42:35 Andrew: That is an excellent question. Under most torts you have a two to three year statute of limitations. Let's assume that it's a two year application here. And the question of whether you file now or whether you fail later becomes a real question, because you can request damages for future loss of income, right, future loss of wages. But in order to make those allegations, they have to be reasonably supported by direct evidence. In other words, just mere speculation isn't enough. And so the question would be whether you think you could demonstrate that loss of income better now, or whether you You would demonstrate it better, you know, a year from now, two years from now.

0:43:30 Andrew: And that's something that I will tell you, in an unrelated capacity, right, having litigated sort of future interference with with business activities on a number of occasions, right, courts tend to be pretty conservative, right, the way in which they say, oh, we're going to calculate future loss damages is when you can demonstrate, you know, direction, here are the seven contracts that got canceled, you know. And so, um, we don't know what's happened with respect to that. It would not surprise me if Chris Rock is having a conversation with his agent today, right, and his agent may be telling him, you know, dude, we had lined up like these six ads that we were going to shoot and they all canceled this morning. Right, well, if that happened, then I don't think you need to wait the year.

0:44:22 Andrew: You could say, yeah, in the immediate aftermath, you know, 100 percent of pending contracts canceled. And so we anticipate that we're going to lose this much in future earnings based on the last couple of years of future of past earnings. Right. And a court is competent to adjudicate those kinds of issues. Right, to say, yeah, Okay, well, you've now demonstrated with uh sufficient evidence a reasonable likelihood of loss of of prospective, uh, earnings. So, uh, so yeah, it

0:44:56 Thomas: Yeah, probably not going to happen. I feel like that's not really going to affect him, but who knows? I, if it were me, it would be more about the, you know, the, the live TV component of it. Just really feels like a additional layer of kind of emotional damage that, uh, that if I were suing that I feels like that would be what I would focus on. But I guess that's maybe hard, hard to quantify as well. And if you have actual lost earnings, you want to like go for that, you know, because it's more tangible, I suppose. Wow.

0:45:23 Andrew: I tend to agree with you that I think that what makes this the interesting question is the the live TV component. I do want to button up, uh, the the thread that I started to go down and to say there will not be a plausible allegation of punitive damages here against Will Smith. The standard there is characterized by evil motive, intent to injure, ill will, or fraud, sometimes summarized as actual malice, and that it would be counterproductive. If I were Chris Rock's lawyer, even if I got over the other hurdles with him as a plaintiff, you would say, yeah, when I make an allegation of punative damages here, because then that would put Chris Rock's conduct at issue kind of front and center, whereas you could otherwise draft your complaint in such a way that you would be able plausibly to argue in front of the judge that the provocative statements do not count.

Right. And you could argue to keep them out of such a trial. Now, again, I'm not opining on ultimately whether it would be, you know, admitted kept in or kept out. I think they probably would be admitted, you Know, for understanding the mindset of the defendant. But, you know, but but it would be a good argument, right, to say, yeah, that we're we're not alleging anything about the intent of Will Smith other than he acted willfully. That is, he wasn't pushed. He wasn't compelled to do it at gunpoint. He deliberately decided to do the thing that he did. And that's sort of the claims that I think direct intentional torts easiest to prove by Chris Rock against Will Smith. Wow.

0:46:26 Thomas: If You had to give us just your guess, your prediction. Let, if hypothetans is all hypothetical, don't worry, hypothetically Chris Rock decides to to sue civilly for this thing. What do you think would be the outcome? What do you think?

0:47:35 Andrew: I think this would be I think that the case is probably pretty strong. Right. Not again, notwithstanding the character of the plaintiff. I think that if you were Will Smith, you would demand that it be tried before a jury. Right? You have a civil right to a jury in California in certain cases, which would come into play here. And, you know, essentially, we We talk about this all the time, that that the idea of, you know, sort of jury nullification coming into play. And usually that's nonsense. Right. Usually that's not a thing that attorneys think about. This, I would say, would be a close cousin.

0:48:20 Andrew: Right? If this were a civil lawsuit, is things that attorneys do think about all the times are the character and credibility of the primary witnesses here. And in general, you know, given what we saw, Chris Rock would be a terrible plaintiff. And I think Will Smith would be very, very good defendant. Right. And if you were Chris Rock's lawyer, could you try and carefully shape and craft the message in such a way that the jury doesn't get to hear the tape, doesn't gets to hear testimony as to what happened? And you could try to varying degrees of success. But I think the moment that the jury gets to watch the tape or, you know, let's be honest, this would probably be a case where it would be impossible to exclude everybody from the jury who watch. Watch it would be it would be just me if I hadn't gotten your text last night. Yeah.

0:49:15 Thomas: Yeah, great time to reference our intro quotes. That one is so funny. It's the SNL skit where they're trying to find OJ jurors. And that's why he says, well, I went into a coma 20 years ago and I woke up and was dropped off at this courthouse. So it'd be like, it'd be that guy, Will Arnett or whatever. No, that's not who it is. Whoever that is.

0:49:33 Andrew: At the score. Yes, that's that's exactly right. Yeah. You would probably have jurors comprised of folks who said, yeah, no, I've I have seen it, but I can still adjudicate this case.

0:49:48 Thomas: I'm 50-50 on this.

0:49:49 Andrew: Yeah, fairly. And so, you know, remember that at the end of the day, it is the the the jury's decision as to how to evaluate each of those elements and how to match those up with harm. So one of the things that a reasonable jury could do is say, you know, we don't think is challenge the link of causation here to say, we think the damages that you're suffering, particularly the humiliation, disgrace, loss of dignity, are not proximately caused by the assault, but were, in fact, caused by your conduct immediately prior to

0:49:49 Thomas: Yeah, okay. Oh, interesting.

0:50:32 Andrew: The assault. Right. In other words, people don't care that you got slapped. People care that You said what you did before you got slapped.

0:50:38 Thomas: Interesting. Wow.

0:50:40 Andrew: Right? And

0:50:41 Thomas: I didn't even think of that. Wow, what a lawyerly argument there.

0:50:41 Andrew: Yeah, that would be that would Be my argument if I were Will Smith facing these intentional tort claims in a civil case.

0:50:53 Thomas: Wow. If you were Will Smith, could I borrow like $10 million from you? Okay, thanks. Appreciate it. That's wow. What a great answer. And off the top of your head, surprise question too. People get to see unedited how good a lawyer you are. I can't believe, possibly we've already gone on like the length of an episode, I have to ask about the Academy, the Oscars itself, the venue, you know, people were really confused as to how he just, again, won the award, went up, gave a speech, do you have any thoughts on that, legal thoughts, opinions on, is the Oscars liable, the company, the venue the whatever, not

0:50:58 Andrew: Yes, absolutely. There you go. I I do, and they would all fall under the general theory of negligence, right? So, Will Smith, intentional torts, you did a thing on purpose. The the allegations against the Academy, against the venue, against the security company, against anybody you could find, what would be allegations of negligence, right? The same kind of catch-all argument that you use when you, know, know you slip and fall inside the ice cream parlor, right? And those are, a that the defendant owed the plaintiff a duty of care, and here the argument would be the Academy uh invited uh Chris Rock to attend this event, and one of the things that you typically do for your invitees is say, "Oh, and by the way, like, no one will be slapping you in the middle of our events," right? I

0:52:21 Thomas: Sure why I'm even saying this but you won't get slapped on stage,

0:52:22 Andrew: Don't right. Uh, was there a breach of that standard of care? Right. Was there then actual loss or damage to the plaintiff from that failure to act or from the affirmative conduct? And did that loss approximately result from that breach of that duty? So kind of to go really quickly, we already talked about, is there a duty of care? There is. How would you go about adjudicating that? And in my mind, this case, I mean, there's nothing like this case ever.

0:52:54 Thomas: Yeah, no kidding, Because there's no way you could say, like, yeah, they had a, should have had a security guard at Will Smith, knowing that he, you know, like, I don't, I don't, there's any reasonable way they could have stopped it. The only question for me was like, what happened after? Like, should they have done something, even though, I guess he didn't get slapped again, so I don't know if you have damages for that part, but it does seem like maybe something could have happened after he slapped him, but nothing happened. It's really weird. Yeah.

0:53:00 Andrew: But it is.

0:53:23 Andrew: And so the way I analogize this in my head, are there's a fairly well-established body of tort law of premises liability where the business is in, you know, you see this phrase a lot. And I understand that there's a lot to unpack here. An unreasonably dangerous neighborhood, right? And that is, you know, you operate a business and somebody is hurt by criminal elements that then come on to the business, right? And even though that seems to be an intervening cause, that is, the people who hurt you are the criminal element that came onto the business, there have been successful examples of suing when that conduct persists over time.

0:54:16 Andrew: And the classic example of these cases are failure of nightclubs to have bouncers. Right. And so and then, you know, you show up at the club and a fight breaks out. You get hurt. You don't want to sue, you Know, drunken bar patron number eight. You want to Sue the nightclub. Right? Right. And in those cases, there are a number of factors that you look at. And all of these factors, I mean, just to quickly summarize, greatly favor the Academy here. Right. Those are, you know, what was the past criminal history at the site? Right.

0:54:54 Thomas: Not much.

0:54:56 Andrew: None. You know, the timing of the event.

0:54:57 Thomas: Other than, uh, movies get, people getting robbed when they shouldn't. I could have had a better reference. See, if it was not live, I would have thought of some names.

0:55:03 Andrew: Yeah. Right. Yeah. Everything related to Titanic getting an Oscar.

0:55:13 Thomas: Oh, I should have said, other than Encanto getting rot, that would be the one, that'd be the crowd pleaser, getting robbed on best song. Yeah.

0:55:17 Andrew: Yeah. Uh, the timing, and this is a, you know, if, if it's more dangerous at night, did you step up security at night, right? Uh, what kind of previous claims uh have have been raised against this establishment? Um, is uh the activity foreseeable, has it happened before, right? What about similar businesses? Well, it's not too much, I, you know, I guess you could talk about the Emmys, the the Grammys, major awards ceremony, all of that has to be, I think, construed as strongly in favor of the Academy as possible. But I will point out, insofar as it would likely lead to a judge determining that there was no breach of the duty of care, that in other words, by saying no breach the duty of care that the existing security measures were adequate at the Oscars, in light of the history of the Oscar's as an award show, but it does mean that in the future, right, the next

0:55:43 Thomas: The Emmys. Yeah. Yeah. Oh, yeah.

0:56:25 Andrew: Awards show probably should have more security, probably should look at this, uh, because if somebody were to, you know, uh, get, uh, uh, were to be the the victim of an assault and battery at, you know, the next MTV Music Awards. Do they still have those? I don't know.

0:56:26 Thomas: The next Chris Rock.

0:56:44 Andrew: You know, you could say, hey, look, you know, we were on notice from six months ago that, you

0:56:43 Thomas: I don't know. And this just sucks because honestly, no, like it's fine. This is a once in a zillion thing. You don't need to. What are we going to see? Like bars on the stairs leading up to the to the stage next time? I mean, this is I hope the lawyers don't make that happen. Sorry. No offense to your kind, Andrew, but I hope the lawyers aren't. Well, now we got liability.

0:57:11 Thomas: So we're going to have to have, you know, The stage will be 40 feet in the air with a thing. Yeah, I don't know. Because, look, this is a freak event. Can't we just, as a society, realize this hopefully will never happen again?

0:57:09 Andrew: Know, you you could. But this is, I think, a really, really good illustration of how that the way that the the law is crafted creates incentives for how the law becomes applied. Right. Right. In other words, the fact that the law looks at prior history incentivizes you to, you know, lock the proverbial barn door after the horse has escaped. Right. That's why so many things feel reactive or overreactive of, oh, hey, yeah, we did X black swan event occurred. And now we're going to make sure that definitely doesn't occur again. And and you're like, but that's not the lesson you should be taking away from this. Right.

0:58:08 Andrew: The lesson here is not we should all be terrified for awards ceremony attendees being assaulted. Right. It is how we ought to consider the interaction of speech in an environment like the Oscars. And so, yeah, so I think you're right. I think your right to call out lawyers for it. So very, very quickly, if you get over the if you if you were to say nevertheless, no, we think that the Academy owed a higher duty of security here, even though, you know, even thought that that none of that history seemed to back that up. You would then have to prove that there was a real injury there, there was, there was up, there was bodily injury and that that was the proximate cause or the proximate result of the defendant's negligence. In other words, that if there had been adequate security that that security could have, you know, bum rushed the stage and jumped in between, uh, you know, Will Smith and Chris Rock. And that seems like a hard one.

0:59:16 Thomas: Yeah, I just don't see it. But nothing for the fact that they shouldn't have removed him after. Is that nothing there?

0:59:25 Andrew: And again, I think the question is, is that once Will Smith has demonstrated that he is potentially, you know, a bodily threat to the attendees, is he an ongoing bodily threat? Right. Right. Do you now have a higher level of duty? And I think that's the stronger argument. Right. Would be. Yeah. But but you, you know, let him stick around and get an award that proves, you know, that you didn't care about the safety and security at all. And there, I would say, again, parsing this as lawyerly as possible, that it would be a challenge to draw a that that's why I emphasize the proximate causation standard to say that that failure caused Chris Rock's harm, because it definitely didn't, right? Like the failure to remove him after you got slapped did not cause you any additional harm, right? The harm was the first one.

0:59:55 Thomas: Yeah. Yeah. Yeah. That's kind of why I asked him the question. You don't really have any more, I'm not sure if this is the right phrasing of it, But you don't really have any more damages resulting from that. I mean, had he attacked him again, it seems like you'd have a solid, you know, easy case that the academy or the venue should have done something. But I guess since he didn't, since nothing else happened, there's not really any damages you can get out of that, right?

1:00:21 Andrew: Right. Yeah, I think that's right.

1:00:45 Thomas: Wow. Well, that's a full episode. Should we talk about the way more important news that Trump definitely committed an insurrection?

1:00:47 Andrew: Yeah, Uh, I'm gonna break down this document on Wednesday's Cleanup on Aisle 45, so if you love deep dives into treason, then, you know, you should probably listen to that show. But this is incredibly good news on a story that I am sure we will continue to cover. By then there will be even more developments. By Friday, on the John Eastman, architect of the one-sixth insurrection, this morning, breaking news, the judge, Carter, in that case, has completed his review of all 111 documents generated between January 3rd and January 7th, of those, uh, ruled that a hundred and one of those 111 are not privileged.

1:01:41 Andrew: Uh, and mostly that is the application of the crime-fraud exception, so goes through, uh, considers a lot of the preliminary arguments that we discussed, right right? The, you know, Chapman University's email servers, expectation of privacy, was there even a relationship, an attorney client relationship, all of that good stuff, and says, no, let's assume you got all of that, concludes that both Donald Trump and John Eastman more likely than not use the relationship to commit crimes. And the basis of that determination does not depend at all upon any of the documents that were themselves reviewed. Right. So in other words, if you're thinking, oh, you know, what's the basis? What about an appeal? What kind of emergency relief?

1:01:46 Thomas: Yeah, there you go.

1:02:33 Andrew: That makes it very, very unlikely that this result is going to get blocked by a higher court. Um, it, you would have to grant an interlocutory appeal to go from, uh, the U.S. District Court for the Central District of California up to the Ninth Circuit, uh, and uh, then the Ninth Circuit would have to say, yep, we want to stay the effect of this order pending resolution of the full appeal, all of that, uh, and and that seems highly unlikely likely

1:03:05 Thomas: Well, what can Clarence Thomas do from his hospital bed? Because that's a topic for a show we need to do. But boy, can the Supreme Court hypothetically, if they wanted to, stop this still?

1:03:08 Andrew: Yep. Yep. It They, look, the Supreme Court always can hypothetically jump in here, but they have been highly unlikely other than Clarence Thomas, right, who

1:03:23 Thomas: Yeah, that's true. Except for ClarenCE Thomas. For weird, who knows what reason, why? Not sure. Hard to say.

1:03:28 Andrew: Yeah. Uh, to to jump in on these kinds of cases, and um, and and particularly by these kinds of gases, I mean, one six committee subpoena cases. And I do not see, again, you know, I, you will find no one preaching as to what a clear and present danger this Supreme Court is to the ongoing health of democracy. I don't see them intervening to protect John Eastman here. I see this. And remember, this order requires that John Eastman turn over these documents to the one six committee. But Chapman University has a copy of each and every one of these documents, so in the event that John Eastman decides that he's going to go rogue and just not produce them, um, they're copies, they can be turned over to the one six committee.

1:04:20 Thomas: Wow.

1:04:20 Andrew: Procedurally, very unlikely that that they will not. And um, this is uh, a a tremendous and monumental development if you are a Merrick Garland skeptic. Uh, go do what we've done, right right? Get on social media and retweet out our tweet and and get behind a campaign to ask journalists to ask Merrick Garland, hey, when are you going to indict John Eastman? Because a court has determined that it is more likely than not, that is a higher standard than probable cause, that John Eastman committed crimes. Then you can ask, oh, by the way, what about Trump as well? But but let's get, let's get Eastman indicted. He has a court said he's used his position as an attorney with the president to commit conspiracy to defraud the United States.

1:05:14 Andrew: That's a serious offense. And today's not a great day to be John Eastman. Today is a great day. If you love American democracy, I

1:05:24 Thomas: All right. Well, look forward to the cleanup on Aisle 45. and, I imagine, the next opening arguments for more on that huge news.

1:05:32 Andrew: Think so. That's that's a safe bet.

1:05:35 Thomas: But thanks for listening, everybody. Thanks, Andrew, for putting this together so quickly. Amazing deep dive there. Really answered a lot of the legal questions. And share this around because lots of people are incredibly wrong about the law involved in this case. So easy for people to get the law wrong, especially on things like this. Thanks for listening. Thanks everybody. If you enjoyed this, please support us, patreon.com/law, and please join us for the Q&A on YouTube on Wednesday, 4 p.m. Pacific, 7 Eastern. I think that about does it. Thanks again for listening. Thanks, Andrew.

1:06:09 Andrew: All right.

1:06:10 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.

1:06:44 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.