OA596: Depp v. Heard, with Morgan Stringer

Transcript

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

0:01:18 Thomas: Hello and welcome to Opening Arguments. This is episode 596. I'm Thomas. That's Andrew Torres. How you doing, Andrew?

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

0:01:27 Thomas: Doing great. I mean, lots of stuff going on in this episode. We've got Pop Law. We've Got Ace Associate, Morgan Stringer. She's gonna explain to Andrew who Amber Heard is and also kinda to me. I know she was Aqua Woman or something. I don't know. She was just in some movie.

0:01:38 Andrew: Yep, that's an important thing.

0:01:46 Thomas: Movie.

0:01:46 Andrew: She talks to the fish, huh? That's good to know.

0:01:47 Thomas: Yes, I think so. She'll tell. Morgan will explain it. I don't know.

0:01:51 Andrew: Okay, good.

0:01:51 Thomas: I pretend that this was just about you, but it's also me. I know who Johnny Dip is, though.

0:01:57 Andrew: Yeah, me too.

0:01:58 Thomas: So many people have been clamoring for this segment and. So let's get to it.

0:02:02 Clip: Blog. Of course, the Bob Loblaw Law Blog. Wow. You, sir, are a mouthful.

0:02:07 Thomas: And we're joined by Ace Associate Morgan Stringer for Morgan's Pop Law. How you doing, Morgan?

0:02:13 Morgan: I'm nervous, but great. Because of the subject matter that we are discussing today.

0:02:17 Andrew: Nervous

0:02:19 Thomas: Yeah. Yeah. This feels like a hornet's nest.

0:02:23 Morgan: It is. It's a huge hornet's nest, and I would not be shocked if I got some death threats.

0:02:29 Thomas: I mean, and that goes either way, like either side you take on this, there's going to be nothing but grief from the other side. So I hope that all works out.

0:02:30 Morgan: Yeah.

0:02:40 Andrew: All well we'll beef up security yeah around around your place

0:02:42 Thomas: Yeah. This is the weirdest thing. You're going to have to explain to Andrew who Amber Heard is. First of all, that's not the weirdest things. That's actually totally not weird. But also, I don't know from the popular coverage. I'm sure even Andrew has seen some of it because it's everywhere. And I just don't know what to think because everything online slants toward, you know, Johnny Depp is this wronged man and Amber Heard is this hysterical woman. But from what I know about our society, I am very skeptical of that type of claim. Oh, what's going on here, Morgan?

0:02:43 Andrew: Yes

0:03:14 Morgan: Yeah, obviously, huge content warning. We're going to be talking about, you know, abuse and sexual assault, that kind of thing. Also, some substance abuse. So I just want to start off with that. But yeah, so first, I guess I will talk a little bit about Amber Heard. I mean, we all know who Johnny Depp is, I hope. Yes so it's going to be wild when I get accused of being you an Amber Heard fan because the only thing I knew about her before I started researching for this was that she was an Aquaman and she dated Elon Musk which if you date Elon Musk that's a you know yeah yeah you're you're down in my book and I loved the Pirates of the Caribbean movies growing up and you know the other other various movies Johnny Depp's been in like Nightmare on Elm Street Edward Scissorhands you know

0:03:33 Andrew: I do know him

0:03:50 Thomas: Yeah. Huge negative points for me.

0:04:00 Thomas: Oh my God. Now I

0:04:03 Andrew: I like yeah

0:04:04 Morgan: Things like that

0:04:04 Thomas: Also feel really old. Oh edward at least you named edward scissorhands that's an old movie yeah not

0:04:04 Morgan: Yes

0:04:08 Andrew: Oh growing up huh yeah

0:04:12 Morgan: So we're all very familiar with that, but the thing is, I think that a big part of why this is crossing to the mainstream is because people are such big fans of Johnny Depp because he's been pop culture for so long, and I think I really want people to just relax and chill. So before you send that death threat to me, please chill, and I need you to realize that you do not know Johnny Depp. I do not know Johnny Depp, and in that same vein, you do not know Amber Heard, and I do NOT know Amber Heard. So, but there has been this absolute lunacy that has taken over social media, and so I'm just asking everyone to relax about it and calm down and realize that Johnny Depp is not Captain Jack Sparrow. Like, I, I need you to just I am begging begging please realize that all

0:04:59 Andrew: All right great great intro lesson you do not have a relationship with your favorite hollywood celebrity what's going on

0:05:09 Morgan: Yeah, listeners may have noticed on TikTok and on Twitter, you know, there's been hashtags of Justice for Johnny Depp, people are selling t-shirts, you know, it's gotten insane, and there also has been this really disturbing trend on TikTok where people are taking Amber Heard's testimony from his case and actually reenacting it in exaggerated ways, trying to be like, "Oh look how inconsistent this is, you couldn't do this," and even mocking her sexual assault testimony. Like, I even saw a lawyer, you know, getting some dunks in. So yeah, it's been absolutely fantastic and not triggering or harmful for me to, see all this content.

I think I want to go through just some misconceptions and sort of do like a classic debunking. Misconception number one is that Amber Heard, this is the first time she's ever alleged abuse, so of course Johnny Depp had to sue her, right? And this actually is not a domestic abuse trial, which is another misconception people have. This is a defamation trial. So just for some context, Depp and Heard met on set when they were filming The Rum Diary in 2009. They start dating in 2012, and then in 2015, they get married.

May 2016, Amber Heard files for divorce, and days later, she files for a restraining order on the grounds of domestic abuse, and that restraining disorder is granted. Depp's lawyer immediately goes on the defensive by saying she is lying so that she can get a favorable financial

0:05:45 Andrew: Okay can so

0:06:33 Morgan: Settlement out of the divorce, right? So Depp and Heard, they do reach an out-of-court settlement in August 2016, and this also involves an NDA. And both parties, they make a joint statement after the settlement. And they also make individual ones. So Amber says there was never an intent of physical and emotional harm. And Depp said neither party has made false accusations for financial gains. So this was, you know, just another celebrity divorce, you out of court August 2016. But then you'll Me Too happens in 2017.

0:07:07 Andrew: But quick, question, that settlement and NDA encompassed the the divorce, right? So there's was a marital settlement agreement in that as well, right?

0:07:15 Morgan: Yes, but I don't know what all all that entails, right?

0:07:18 Andrew: Because That's all, that's all been kept confidential, but in other words, this was all kind of subsumed into the the divorce proceedings, and both sides agreed, as is very, very common in celebrity in cases, to to keep that confidential, got

0:07:33 Morgan: Yes. And also basically no disparagement, that kind of thing, which we'll come to. So misconception number two is that this is the first time that a court has even ruled on this sort of content between them. So in April, 2018, The Sun, which is a British tabloid, to put it mildly, ran a headline entitled, Gone Potty, How Can J.K. Rowling Be Genuinely Happy Casting Wife Beater Johnny Depp in the New Fantastic Beasts Film? So I, of course, distastefully using a Harry Potter pun because this was referring to Johnny Depp being cast in the Harry Potter spinoff Fantastic Beasts. So Johnny Depp sues News Group Newspapers, This is NGN, which owns The Sun, and The Sun's executive editor, who wrote the article for defamation. So this is taking place, and basically American listeners can think of this as a civil trial court. It's the queen's bench division of a high court. But Depp is making these claims for defamation in an English court. And listeners may recall me discussing elements of definition in my Cardi B segment.

0:07:35 Andrew: Yep yeah wow

0:08:43 Morgan: Those standards are American standards, which you will need to keep in mind for later. Later but it is very easy to win a judgment on defamation in the UK. There were some reforms that were done in 2013 but compared to the US it's a lot easier. So for libel in the UK you have to have one a negative false statement of fact, two that caused or was likely to cause serious harm to the claimant's reputation, three the statement referred to the claimant and four the statement was published. Also the burden of proof is actually on the defendant, not the plaintiff, to show that the statement was not false. So the son, yeah, exactly. So the sun is having to show basically that, no, actually, Johnny Depp was a wife beater.

0:09:17 Andrew: Wow and there's no sort of New York times v sullivan difference between public and non-public figures okay okay yeah

0:09:30 Morgan: No, they do not care if you are a public figure. This is not the Cardi B case. So additionally, in English court, the more serious the allegation, the higher the strength and quality of the the evidence that the allegation is true must be, and where the allegation is one regarding serious criminality, clear evidence is required. So it's a lot easier there. So what NGN did was they presented 14 incidents where they alleged that Depp was abusive to Amber Heard. NGN claimed that Depp's substance abuse disorder would exacerbate his anger, cause him to have blackouts, and then then he wouldn't remember what happened, but he would frequently abuse Heard in those moments. And there are even text message exchanges and other evidence that Depp referred to this abusive, rage-filled part of himself as a monster. And when confronted with what he did, he would apologize and say, you know, I'm going through a hard time, you notice my substance abuse disorder, etc.

0:09:33 Andrew: Yep got it I

0:10:30 Morgan: Also in England, libel cases do go before a judge. There is no jury. Trial was in late July 2020. And that trial lasted for three weeks. And there was a lot of media attention about this trial, but there wasn't so much as the, you know, hashtag Amber Heard is a psychopath. There were some corners of the internet that were paying more attention to this case, particularly incels and people who want to, you now, detract from the Me Too movement. But I think there are also people who genuinely believe that Depp was a victim of abuse because Because that's also the claim that Depp made when in this defamation trial was that Amber Heard was actually the abuser and he was the victim.

0:11:10 Andrew: Certainly Did not. I, Thomas, did you know that there was a Johnny Depp defamation suit in in 2020? I, I missed that entirely, but

0:11:10 Morgan: No,

0:11:19 Thomas: Until this coverage, I've heard about it since, since this, but no, not at the time.

0:11:23 Andrew: Contemporaneously, yeah. No, I think, I think that's right. I just wanted to, I may be the least active person on on pop culture, but you know, I, I did have this show in in 2020, and Uh, and it, and it slipped beneath our radar. So I think, uh, at least from a sample size of three, that, that's, uh, new information for me.

0:11:34 Thomas: Yeah. Right.

0:11:40 Andrew: Anyway

0:11:40 Morgan: That's not just new information to you. I have heard, I don't think I've seen anybody talk about it in the context of this case, which is kind of bewildering to me, right? I've seen a few other than a few journalists from Vox and then one from The Guardian. But from, you the little TikToks being made, the tweets that are being made. I have never seen somebody say, hey, by the way, basically this the same case kind of played out in the UK.

0:11:48 Andrew: Really

0:12:05 Morgan: So here's what happened in that UK case. Right. The judge found for The Sun. In fact the judge found for 12 Yes, the judge found for twelve out of fourteen incidents presented by NGN, which meant that they win in total because they said, okay, as their defense, they said basically, here are fourteen incidents where we think that we can prove as true that Johnny Depp abused Amber Heard. The judge found for 12 out of 14, and Justice Nichol you can look this up. He lays out all the evidence, his conclusions about that evidence, and why he made them. It is a 126 page long judgment, and you are free to disagree with the judge's assessment, but I still find it very telling that a judge in an English defamation trial, where the standard of evidence is much lower than it is in the U.S., actually found, and the burden was on The Sun, a tabloid newspaper, that he did actually abuse Heard, and the judge found that it was not the other way around.

0:12:12 Andrew: Wow that so so Let, let me spit back, just make sure that I'm understanding. An English court, so not binding on U.S. courts and different standards of admissibility. Nevertheless, when you're sort of thinking about persuasive effect, English tribunal found that The Sun, a tabloid newspaper, by a preponderance of the the evidence, had proven 12 instances, uh, in court of Johnny Depp abusing Amber Heard, sufficient to grant a defense verdict on a defamation case in which they had called him a wife beater. Wow.

0:13:02 Morgan: Yes, That is absolutely correct. Also, one of the other reasons why this isn't coming up, I feel, is because Johnny Depp did not sue Amber Heard in English court. He sued The Sun. A little, so, that brings us to this case. And again, this is this case in the U.S. that everybody's watching play out right now, this is not someone suing specifically over domestic abuse. This is defamation. So the issue again is this. So Heard was named ambassador for women's rights to the ACLU. And in that capacity, she wrote an op-ed in the Washington Post in December, 2018. So this is actually while the British case is going on. And it was titled, I spoke up against sexual violence and faced our culture's wrath. That has to change. So again, this is after the sun article came out, but while that defamation case is still going on. The article never mentioned Depp by name, but she described herself as a public figure representing domestic abuse. But in March 2019, Depp sues her for defamation for $50 million.

0:13:48 Andrew: Right

0:14:37 Morgan: She counter sues for $100 million. That is the case that is going on right now. And someone may say, oh, well, you know, they probably were in Hollywood. Why was he suing in Virginia? In Virginia, if you allude to someone to the point where basically people can figure out who you're talking about, then that's enough for that person to then sue for defamation.

0:14:58 Thomas: Well, that seems pretty, setting everything else aside, that I mean, if, if I write an article that says I am a victim of domestic abuse and I'm married to Lydia, and I don't, you know, like, I feel like that's reasonable conclusion that someone might draw, and I can't be be like, I didn't name you.

0:15:14 Morgan: Yes, exactly. But that standard is backed up by a lot of Virginia case law.

0:15:19 Thomas: It's is it like only in virginia or specifically or is it a lot of states where this would be the standard uh

0:15:19 Morgan: No, no, but there's just a lot of case law on it in Virginia. So I think that's why they chose Virginia. And then there's some other weird reasons as well that I don't have time to get into,

0:15:25 Thomas: Okay so it's like a favorable uh gotcha so Question. Uh the all the stuff that's on video and this is another reason why this is such a massive thing is it's all on video it's All Televised or whatever um what we're seeing is that depth suit or her counter suit or do they tend to handle those at the same time, how does that work for for the non-lawyers like me oh

0:15:35 Andrew: Oh

0:15:52 Morgan: Basically at the same time, right. And then also, so this case doesn't get completely out of hand, I don't remember the timing exactly, but each side has a time, right. So when I was watching live, live streaming of the trial, the judge at the end of the day would say, you know, the claimant has this many hours remaining and this many minutes. And then, you the defendant has this many hours and this many minutes left. So it is, it is basically timed. And as of right now, they are expecting to wrap this up. So the trial is not going on this week. I also found that kind of odd that they dismissed for the week. The jury's not sequestered also, by the way. My knowledge, I don't know if that has changed. But yeah, they are not sequestered. So I don't know, you know, again, there's no telling what information they may even accidentally be exposed to because I've seen people say they can't avoid content about this trial. So you think they and then and then, of course, Facebook's going to know.

0:16:29 Thomas: Wow yeah

0:16:29 Andrew: Wow

0:16:47 Thomas: I know I can't avoid it I'm trying my ass off and I can'T avoid it

0:16:52 Morgan: Yeah. And Facebook's got to know, hey, we're at the courthouse. You might be interested in this content, you know. So that

0:16:56 Thomas: Face the gps shows you were in the jury box uh do you you might be interested in this tiktok

0:17:02 Morgan: Is concerning. Right. Is that, you knows, media bias might set them up. But I don't know, again, but a lot of the media stuff is highly edited, which is something that I'm going to get into. So there is an audio recording of Amber Heard that, and this made the hashtag justice for Johnny Depp start trending. So this Daily Mail released this in 2020. And this was before, this was, I believe, February of 2020. So that was before the judge issued his judgment in that UK case. So I listened to the entire 30-minute clip that was released to Daily Mail, not just the snippet, and it's clear that it was part of a longer conversation over the phone between Depp and Hurt about their divorce proceedings. Both sides are saying, hey, we want to settle this privately.

0:17:49 Morgan: And also, just a side note here, don't do this. Always talk to the other person through your lawyer This was, yeah, this was a bad idea for both sides to do, but, um, you see, especially how this has been used against Heard, um, whether you think that is, you rightly or wrongly there. But so Heard says, "Oh, my team does want this settled, you privately," but then Debt brings up, "Okay, well, your lawyer said that she did not want a mutual gag order," and then Amber Heard you gets a little frustrated, "Why, Johnny, why wouldn't she want the gag order? Why wouldn't you want both parties to be able to talk about this to the press?" So that implies, you know, that there's something Depth does not want people to know about, right? But again, as Andrew said, that's, you know, kind of common for celebrity divorces. But, um, you can get that that connection there. Um Heard also says that she wants insane stories and leaks to TMZ to stop because that, that at the time was really escalating.

0:17:55 Andrew: Excellent advice

0:18:46 Morgan: Like right after she filed for divorce, TMZ instantly was like this gold digger and This, you know, she's making everything up and things like that. So she said, "Hey, that's, can, great, I would love to settle this privately, but kind of hard to do that when, you know, TMZ is running insane stuff about me." So she's saying everything I'm doing has been, you know, as a defensive move, and I don't want to do this because I still love you and care, care about you, which, um, Depp, you know, also says that about her, right, that he cares about her and loves her. But Heard brings up that, you know, she has evidence, so because Depp keeps saying, "Oh, well, do you want to go to court, do you want to go to court," and then she says, "Well, here's the thing, I have evidence about," and she's talking about the abuse and this context, right? She says she has photos, messages, etc. So she says, "Here are the possibilities, one, I'm lying and I've been, you, you know, just holding onto this evidence for years for no reason."

0:18:51 Andrew: So

0:19:43 Morgan: And I'm lying about, you know, and I'm secretly have been in some secret fight club or something, or two, these are true. What do you think people are going to believe?

0:19:51 Andrew: Quick question with respect to that how much of the evidence in connection with the uk defamation trial is public right

0:20:01 Morgan: All of it. There's, there's certain, but again, there is enough to where there is a 126 page judgment and where he is laying out evidence he heard. He'll say, you know, Mr. Murthy testified to this, you Know, regarding incident incident number three, I actually really like the way that the British judgment is laid out because the judge is a fact finder there, right? So he's like, here are the facts that were all presented. Here is what I found. This is why I found this way. This is how I weighed this evidence. This is y, you know, I believe this testimony was more credible than that testimony, which again, you're free to disagree with, but it's out there. So the fact that people are saying, oh, well, this was a rigged trial or something like that that is not true and also he was able to appeal

0:20:02 Andrew: Uh-huh that's that's never a great argument please

0:20:48 Morgan: Because yeah that that isn't a good argument you're right it is dumb, and to say like, oh, it was somehow rigged, these were celebrities, and he did have a right of appeal and he did try to appeal that case but basically the court Court said, no, you no there's no reason for the judge found what he found. Sorry, ma'am.

0:21:06 Andrew: You oh so the so the court affirmed on on appeal oh wow okay so fair to say that if you have an opinion about the news coverage of the the current Depp-Herd, trial, right, with respective claims of defamation, that to have an informed opinion, you ought to at least read the British court's judgment.

0:21:07 Morgan: Yes.

0:21:27 Morgan: Yes. And again, you can disagree with what the judge found and what you know that that's fine, but at least look at it is what I'm saying. Instead of believing, you know, altered tick tocks basically and out of context, you know, audio drops.

0:21:27 Andrew: Yeah. Sure. Yeah. Yeah, I.

0:21:41 Thomas: Sorry I've studied all the relevant relevant underlying tick tick tocks for this case uh morgan I know what I'm talking about yeah

0:21:47 Morgan: It's concerning. It's very scary to me that this is where it's going, but yeah, so this is where that snippet comes from, this audio recording.

0:21:55 Thomas: This is like a big smoking Gun, just so, Andrew, not like among the, you know, Redditors, the tick tockers this is a huge smoking gun that Morgan's breaking down. Andrew, that's like, who, who are they gonna believe, me or you, kind of thing.

0:21:55 Morgan: Yes.

0:22:08 Morgan: So, so HeARD Said she had to defend herself from these, you know, these allegations being brought up in TMZ, and she also brings up, hey, when, when my friend, um, can't, or it was a third party of theirs, IO, um, is a man's name, but she said, hey, what, he called the cops, that wasn't me. He called the cops during this incident. And when the cops came, I didn't cooperate with them.

And Depp is, Depp brings up, yeah, but you're the one who told him to call the police. And she says, okay, well, I did that because I was afraid for my life in that moment, and I thought you were going to accidentally killed me. And then Depp responds by saying, I lost a finger that night, which the finger situation is very murky, I don't have time to get into it, but there's different stories about how Depp accidentally cut off a fingertip, cut it off Himself.

He claims that he lost his fingertip when Heard through a bottle of vodka at him, is the claim that he makes now, but he says, I lost a finger of that night, and says Amber threw a can of mineral spirits at his nose. That's when Amber says, you can tell people it was a fair fight, and then see what the jury and judge thinks. Tell the world, Johnny, tell them, Johnny Depp, I a man, and I'm a victim too, of domestic violence, it's a fair fight, and see how many people believe or side with you, she says, which is a bad thing to say, because that's not

0:22:08 Andrew: I Yeah.

0:23:29 Morgan: Like accurate, and I am not saying that that was a good thing to say, or that that, that she was right to say this, or even that she never hit Johnny Depp, because she says, you I was a 115 pound woman, and Depp says, oh yeah, but you would start it. And Amber says, okay, well, did I overpower you? And Depp says, okay, well you try. And then she goes on to say, yes, but I have all this evidence that you abused me, and she does mention the size difference again. And, you know, of course I'm not saying like Amber was right in saying this, or that she even is, you know, a perfect survivor with this, but again, the issue of the defamation trial is, was she lying when she said Johnny Depp abused her. And there's one expert witness, um, who called this situation mutual abuse, but for reasons that I'm going to get into, um, I'm not 100 sure about about that terminology, because apparently amongst domestic abuse experts,

0:23:28 Thomas: I

0:24:28 Morgan: This is a very divisive thing, the concept of this mutual abuse. So with that, I just prefer to leave that debate to the experts. And again, this is why kind of the courtroom isn't really the best forum to sort of of untangle this very toxic relationship where You know I believe abuse did occur but I think that this debate within the scholarship of domestic abuse about okay, well, is mutual abuse a thing? I don't think that that's best for people on TikTok or Twitter to be really having discourse about right now, because it's not settled amongst the experts themselves. And I prefer to leave that conversation amongst them, right? It's an messy situation for, I think, this court to figure out. I do not envy the jurors here.

And Amber Heard does acknowledge that she says we called each other horrible things. She says she would hit him and she would throw things at him. But she's saying that she did hit him out of the space of self defense. But I don't think that you can say, based on what I've seen, that Amber Heard is a psychopath who is making up everything that has happened to her.

0:24:47 Andrew: Yeah. Yeah

0:25:40 Morgan: And Johnny Depp is a sweet, innocent, small bean who did nothing wrong, right? I don't think that's what people should be getting out of this. And I think that there are things that people can get out of it. But again, I think that this space of, you know, mutual abuse that's happening between the parties, and that kind of language, I'm just very, I'm not comfortable with using that myself because of what the experts say, right. So there's some experts that say, no, there is a primary person who is the abuser, and then there is somebody who is, you know, the abuse survivor, right, and what the survivor does is act out of self-defense. So I, I'm not an expert in that field, so

0:26:20 Thomas: You have any idea how, how the law views that, is you it just kind of up to a jury to decide like, yeah, you gave this person a black eye and so you're abusive or no, I fought back. And in the process of that, yes, I might've caused harm to them, but it was because I was fighting in defense, self-defense.

0:26:21 Morgan: Yeah.

0:26:37 Morgan: That's an issue of fact, so that's for the jury to sort out. I want to talk about just some of the narratives that are going around about this trial, and just sort of talk about that. So the first one we have, and this is a popular one, that's basically that Amber Heard defecated in their bed to get back at Johnny Depp because she's such a bad person.

0:26:56 Andrew: What?

0:26:57 Morgan: So, the judge, yeah, it's insane. This case has gotten insane. I had to watch a deposition with a man who was vaping and driving while he was being deposed so It was somebody, um, that worked for Johnny Depp, and it was a taped deposition that they were admitting into the courts, and apparently while the man was being deposed, um, he was vaping and driving because it was done over Zoom. So, um, that was a lot.

0:27:06 Andrew: What wait I'm

0:27:21 Thomas: It's a new world we live in Andrew. It's anew.

0:27:24 Andrew: Can we say that To work, clients, like, if the law office is a Peter Torres represents you, and you were being deposed, please take that deposition from your house while not vaping. Thanks.

0:27:24 Morgan: Oh.

0:27:34 Thomas: Remember The one that was, I can't remember what, we talked about this, but pretty early in the pandemic, where a guy was in traffic court and appeared, like, while driving, and use the Zoom background to try to not look like he was driving. Remember that?

0:27:34 Andrew: Yeah.

0:27:47 Andrew: That, was great, uh, surpassed only, of course By I Am Not A cat

0:27:49 Thomas: By the cat. Yeah. Yeah, of course. Yeah please

0:27:51 Andrew: Yeah

0:27:52 Morgan: Yeah, the, a classic. I feel like we need to annually celebrate that moment amongst lawyers. It can be like extra our Christmas. But yeah, so this one narrative is that, yeah, again, Amber Heard defecated in the bed to get back at Johnny Depp because, you know, she's a psychopath. So the UK judgment mentioned several reasons why the judge doesn't believe it was Amber, a friend of hers, but he does present, like, the evidence that Johnny Depp's team presented, which was, you know, the housekeeper believed that the dogs couldn't have done that, um, and apparently at the time one of the, um, her line manager said, her told him it was a harmless prank, but Man

0:28:30 Thomas: Tell me, we got forensic poop poop experts that came in and argued back and forth as to whose poop this was. It doesn't

0:28:36 Morgan: It's it's gotten out of the things I have had to look into the things I have seen and read and watched um I deserve extra compensation and a vacation so it would um God, I mean, hey, I can have fun wherever, so

0:28:50 Andrew: Arkansas it is

0:28:57 Thomas: This Buck is Brought to You by BuckMason Clothing. We all have our favorite go-tos, shirts, sweaters, jeans, that stuff you wear all the time. Well, as I was getting dressed this morning, I realized a lot of my go-to's are from Buck Mason. Mason. Mason clothing, I I'm wearing it all the time. I'll tell you why. It's because of the high quality, mostly for me. I hate just thin, cheap clothing that wears out after you wash it a couple of times. That is the exact opposite of Buck Mason. I got this really cool cotton t-shirt that is just it's thick with two C's. I'll say I'll put it down. It that thing is not going anywhere. It's not going to get worn out because it's so well made. I love it.

Buck Mason's clothes are second to none. They're timeless and they never go out of style. Everything I've gotten from them fits right out of the box and it becomes my new favorite. Buck mason has all the essentials jeans, shirts, jackets, and so much more. I I love them. Already told you that even after I put them through the wash a lot of times, because I wear them a lot, they still look just as good as when I got them.

0:29:56 Thomas: I think that once you try Buck Mason, they'll become your go-to's too. Head over to buckmason.com and get a free t-shirt with your order. That's B-U-C-K-M-A-S-O-N dot com slash O-A to get a free t-shirt with your first order. One more time, buckmason.com slash OA.

0:30:17 Morgan: Yeah, but the judge points out, it wouldn't make sense for Amber, a friend of hers, to do that, because that night Depp left for one of his other properties, which, you know, is an insane thing that, because you rich people do not live like us, but, um, you know, he just went to one of his other houses that night. So how would that get back at Depp if he wasn't even staying there

0:30:35 Thomas: Seem like an ironclad counter argument to me but uh

0:30:35 Morgan: Yeah. It's not ironclad, right, but again, the issue, again, as the UK judge points out, like, this is a defamation case, and this Is about you know Did you, yeah, and again, this is where a lot of these issues are getting crossed over, right? Because the issue legally here is, okay, well, did you abuse Amber Heard, like, did the son make that up essentially, and did she make that up. The issue isn't like, oh, well, you know, what Amber did was bad, or even, you know, if you want to go super dark, did she deserve it. But anyways, I'm glad, glad that people got hashtag MePoo trending on Twitter. So great work with that, guys. I'm super happy about that. So another thing that people have been saying is that Amber's disjointed testimony proves she's lying. So there's a case where she is talking about, you she's talking about being physically assaulted.

And she keeps, she mentions that, "Oh, I just kept thinking, you have a dirty carpet, the dirty carpet." People have been mocking this on TikTok, and there's also been, um, disjointed testimony with her saying, "I thought he was punching me," and breaking it down and then later on her testimony it's clear she's actually talking about, again, huge trigger warning here, but she's talking about being sexually assaulted with a bottle and thinking the pressure from that and the movement from that was that Depp was punching her and people thought this, this was hilarious. They made videos, um, saying, "Oh, I wish Johnny Depp would do that to me."

0:30:44 Thomas: Right. Yeah yeah you're

0:32:06 Morgan: And oh, she testified in a way that like, wasn't linear. And, you she was acting and well, a real victim would act like this. And the testimony was disjointed. And as somebody who's been through traumatic events, I can tell you like often how you will remember that is especially in the aftermath is disjointed because your brain's going through a traumatic event.

So the, and when people are saying things like, "Oh, no tears came out," in which the follow-up, you know, some I've seen where somebody's like, "No, here's her crying," and they'll say, "Oh, well, you know, she's acting, she's an actress." And again, it's, there's nothing you can say, it just gives me the same vibes of when people say, you know, "Oh, well, you know, the husband didn't grieve right, so he must have killed his wife," and then you find out 20 years later, you know, the Innocence Project gives them all death row, right?

So it's that same narrative of like, "Oh, well, you have to testify in a certain way," and, "Well, a real victim would do that," which are things that you would think now, especially in the Me Too era, that, as I call it, people were past that, right, with saying, "Well, no, victims actually act different ways."

0:32:26 Andrew: Yeah

0:33:12 Morgan: But the thing is, when the victim is somebody who maybe unlikable or that people don't want to believe or accuses someone people like, because, I mean, who was coming out swinging for Harvey Weinstein, right? Like, it's not like a bunch of kids were like, "Oh, Harvey Weinstein is my idol." You know, um, so when it happens with somebody in that situation, or even when it's somebody who, she does acknowledge she hit Johnny Depp, does that mean that she, like, you know, again, people are kind of having the sort of like, "Well, maybe she deserved it, she, you knows, gave as good as she got," or, you, again, it's just, I don't think that framing is helpful or useful to anybody. And I think it's actually really harmful, that. So stop that.

0:33:54 Thomas: Gonna have to turn off the internet

0:33:55 Andrew: Yeah

0:33:54 Morgan: Um, another, big um, thing that came out and this was, And I'm going to start talking more about, you know, specific videos that have gone viral now. So this concerns a makeup palette, which, I mean, every detail has been combed over by these fans. And I think part of that is sort of the true crime phenomenon, which I'm somebody who, listens you to true crime, crime content, reads, you know, those kind of books.

But I think there's a way to engage with it in a way that's, know, more you healthy than in other ways. Right. And Right. I think people have forgotten that this is a case about real people. And I Think People are, you know, almost kind of desperate to be part of a story, In a way that's like, oh, I found something that no one else did. Or I found a detail that proves that, you know, Johnny Depp is innocent.

I'm the one who, you or, you know, by finding these little details, almost like it's an episode of Unsolved Mysteries And you think, you know, oh, if only I noticed this one thing on Unsolved Mysteries, I'm going to be the one to solve the case. Right. But this is a case involving two people, and it involves domestic abuse, and it's getting very problematic. So Hurt's attorney, she held up a color correcting kit. So this is an makeup palette that'll have various colors like orange, green, and purple, and basically the idea is you color correct your skin to cover blemishes. It's basic color theory. So, you know, purple will cancel out yellowness in your skin, or red and orange. Orange will cancel out purplish and black. So dark circles, green will cancel out redness, etc. So the attorney holds up this color correcting kit and says,

0:34:42 Andrew: Am so glad we have you on the show to explain that

0:35:25 Morgan: I figured some listeners might be like, what the hell is a color correcting kit?

0:35:30 Andrew: And at least 50 percent of the hosts so I uh I greatly appreciate that okay anyway

0:35:34 Morgan: So The attorney holds up his color correcting ket and says, this is what Amber carried in her purse for the entire relationship with Johnny Depp. This is used during opening statements, and in the context is obviously. She's saying Amber used makeup to cover up her bruises and injuries, right? So a Depp fan creates a TikTok that is clearly a fan edit of some things, but then the TikTok ends by pointing out that the color corrector the attorney is holding is a Milani color correector, and that didn't come out until 2017, which is after the abuse allegedly occurred because the divorce happened in 2016. So obviously that's not, the attorney was using this as, you know, a prop to form an emotional connection with the jury,

0:35:48 Andrew: Yeah

0:35:59 Thomas: Yeah yeah yeah if I pull out a pen and I'm like, my client had to carry this pen around with them, and then it's like, well, that pen was issued in 2019, you're like, okay, it was a, it's a pen, like, you know, I didn't mean the literal pen, this exact pen. And

0:36:26 Morgan: Exactly. So then Milani, the manufacturer of that color corrector that that the attorney held up, decided they needed to make a big viral moment for themselves and make themselves the, um, main character, essentially. So what they did is they do something on TikTok called stitching, right? So you can take the, you can make a video of somebody's Tiktak video and, you know, do your own reaction to it. So they do this with this, this Depp's fan's TikTok, and it shows someone at the company pointing out that it did indeed come out in 2017, and this TikTok made by the makeup company plays a, it's playing a song in the background where the lyrics say, you know, I'm an international super spy, and there's spy music playing, and they're pointing to the catalog they're showing, you now, 2017, and they are pointing to a screen that says, yeah, it came out in 2018.

0:37:12 Morgan: The fan video, just to make everybody more depressed, has 4.6 million likes on TikTok, 38 million views. Milani TikTok has 5.5 million views and 1.1 million likes, and it is by far their most viral content. So congratulations to them. They made a viral moment happen out of a trial that involves domestic abuse. And when they were asked about this, they said, our video was to verify the acclaim that are eagle-eyed and loyal fan base made about the product named of a trial. Milani Cosmetics is not taking a formal stance on a trial evidence or future outcome of the case. But as BuzzFeed News pointed out, the account has been replying to Depp's fans and liking comments, including one reading, newest Milani model, Johnny Depp.

It's just very gross that That they are using this opportunity as, you know, to create this viral moment for themselves. But obviously, that's not what Amber Heard's lawyer was saying. Now, regardless of how you want to weigh the testimony here in this really messy case, it's, survivors of abuse are going to see this, And they're going to say how you talk about this. They're going see how you treat the, you kno, how you're treating Amber Heart. And honestly, I've seen people do that. I have seen friends of mine do that, and I've thought, you I don't know if that's somebody that I would feel safe talking to if any of this happened to me, because, yeah, I don's feel safe with that. There's been another video that claimed that Heard did a bump in the middle of her testimony.

0:38:18 Andrew: What

0:38:44 Morgan: So, yes. Yeah. Yeah. Did some coke.

0:38:44 Andrew: What of the precious little cinnamon bun, but of cocaine you you mean

0:38:49 Thomas: You know what a bump is from Madison Cawthorn, Andrew?

0:38:51 Andrew: Thanks

0:38:53 Morgan: Yeah, a so tweet that went viral said, yo, I've done some shit in my day, but I've never had the stones to do cocaine in a courtroom. Then it has a video of Amber Heard holding a tissue to her nose and rubbing it, and supposedly they're like, oh, she was sniffing the cocaine there so a tiktok

0:39:08 Andrew: Again precious little cinnamon bun, but that's not how one ingests cocaine

0:39:09 Morgan: Yeah

0:39:13 Thomas: No, even I know that. Hmm.

0:39:13 Andrew: Right okay

0:39:13 Morgan: No um unless the judge I guess spiked the tissues with coke somehow like I I again it's which I that sounds horrible but yeah No, it's, I would not be shocked if somebody made that claim at this point because people have lost their complete minds. So if actually the video is altered, they edit the sequence of events to to make it look like she pulled the tissue out of her lap and then supposedly like rubbed her nose. And then, you know, she puts it back down because obviously I guess that the implication there is this is her special cocaine tissue, right? But actually what she does is she, you can see the box of tissues is on the stand. She pulls a tissue out because this is actually at a very emotional part of her testimony. And she uses, she pulls out the tissue and rubs her nose with that. But but they edited that to make it look as if, again, which even if she had done that, that makes no sense. That is an insane thing to believe. If you believe that, please go outside and touch some grass. Go outside.

0:39:22 Thomas: Snortable tissues. A new business idea.

0:39:28 Andrew: Uh

0:40:13 Morgan: Your family misses you. There's also another viral video claiming her pause for a photo. And look, she instantly stopped her crying. So this proves she's acting. And that video is also altered. And there's even another version that adds a sound effect and flash. Andrew, can you tell me, um, is flash photography usually allowed in courtrooms?

0:40:36 Andrew: No. Hundred percent not

0:40:36 Morgan: Yeah.

0:40:37 Thomas: No, that's why they have those sketch artists. Unless the sketch artists had like a flashbulb on their pencil, you know, like to hold on, hold still for my sketch. Okay.

0:40:39 Andrew: Yeah

0:40:47 Morgan: They're acting like this is a courtroom scene from a musical chicago right like It's insane, like, this the 1920s, like, you know, everybody's like, "Hey, miss, um," wanting to snap a photo. But yeah, that is. And then there's another one that is saying that, um, this one viral went, especially on Twitter, but it's made the rounds on TikTok and other social media as well, as it as disinformation often will. And it said, um, basically that Amber, in, and I mean, you'll be able to tell what's wrong here, and Amber Heard's opening statement she said the thing with Johnny, "It's like the sun shines on you and it's glorious, and then he forgets you and it's very cold." And it goes on. In the post claims that this is exactly, um, what Margaret Sherwood says about Dickie and The Talented Mr. Ripley. "We got her, ladies and gentlemen, she's literally quoting from movies." That shows that she's acting, and realize Amber Heard did not make an opening statement, so

0:40:51 Andrew: Right Yes, uh,

0:41:39 Thomas: I was taking that to colloquially mean like the, the, uh, the start of her testimony, but, but yeah.

0:41:39 Morgan: Yes.

0:41:39 Andrew: Yeah. Through her lawyers yeah so so what is the real story did the lawyers quote from that movie in their opening statement or it's just all made up or what

0:41:45 Morgan: No no it's made up it literally made up and Then other people are taking clips, yeah, that one's just like somebody tweeting that and just saying that she did it, so therefore you, it's, it's fine, you can just repeat that, it's fun. So there's other people saying that he's quoting movies by saying things like, well, he drank lots of tea, or, you know, saying things like, the most beautiful woman in the world, which are obviously, you know, very generic lines like those aren't from you and then Snopes pointed out that you could easily do the same same thing with Johnny Depp's testimony. You could say, oh, loved her instantly. That's a line from American Outlaw, right? There's, there's so many, like, you could easily do that.

0:41:52 Andrew: Oh god yeah

0:42:14 Thomas: Huh? Huh?

0:42:30 Thomas: I don't even know what this allegedly would prove. Like, I feel like they're about as likely to speak in movie quotes that, yeah, but doesn't mean you speak in old movie quotes. That's a weird, what?

0:42:31 Morgan: But, that she's acting.

0:42:33 Andrew: Right. Yeah.

0:42:41 Thomas: Anyway,

0:42:42 Andrew: Yeah.

0:42:42 Morgan: Obviously time to go through all the disinformation that's out there about this case. And also this case is not finished. So the trial will resume on May 16th. The judge has said that she would like for closing to be the Friday before Memorial Day. And that's the idea. And then I don't know how long the jury is going to deliberate, right? And juries are very interesting creatures.

So it's possible that again, the jury says, okay, well, Johnny Depp clearly hasn't met, you know, the burden here, right he hasn't met the burden of showing defamation or they might just they might think okay well um you know the issues here are very complicated and muddled they might split the baby on it right and say okay you get this much money this person gets that much money or you know nobody gets anything right and there's just a lot of really awful narratives that are seeping into here so I think that this is a way where where you can say me too has gone too far and and believe women is nonsense, but if you say that outright, people are going to call you a sexist asshole,

0:43:32 Andrew: Yeah. Yep.

0:43:43 Morgan: But, if you, say, oh, well, look, Amber Heard, then it's fine, and, also, I think there are people who do want to bring attention to male victims, which absolutely exist, we should be bringing more attention to them, and I think that there are people who are hopeful that, you know, Johnny Depp is breaking the stigma, and people will seek help and or acknowledge that they're being abused and there's also people who want to acknowledge male victims being very well-meaning here but there's sort of this trap here where if I don't believe Johnny Depp is an innocent boy do no wrong then I don't care about male victims therefore anything that I say about me too can be discredited right so I Think that's really the insidious thing you have to watch for in how you talk about this and if you do believe that you know, if you want to make commentary on this whole mutual abuse situation, then, I mean, go for it, I guess.

But again, I think that's situation that I am deferring to on experts there. That's why I haven't really talked about this trial and, you know, been out there and, well, this is my personal opinion on it.

I'm just here to tell you, here's what happened. Here's things in context. Here's, you knows, altered things that people have made. And also, I do find it very weird that there are people who are determined to get this certain narrative out of it out there. And this is my theory. And again, this is just, know, you my opinion. But I don't know that Johnny Depp actually cares if he wins or loses this case.

0:44:22 Andrew: Yeah, right.

0:45:13 Morgan: I think the court of public opinion is what matters right because It doesn't matter what the jury comes back with if a jury says hey you didn't prove defamation or if they split the baby on it or whatever it doesn't matter the narrative is that Amber Heard is a lying psychopath who is making absolutely everything that happened to her up and that Johnny Depp has done nothing wrong in his entire life, right? So instead of it being an actual conversation about, hey, this was a very toxic relationship involving a complicated situation with complicated people, and also like survivors don't have to be perfect, and people should just be allowed to talk about what happened to them, and we should have space for that, but we cannot have those kind of nuanced conversations, evidently. So, and I think that there might be a reckoning about this case, and people are going to be like, oh my gosh, can you believe this became such a media circus and nobody recognized people are complex and complicated.

0:45:17 Andrew: Yeah yeah.

0:46:13 Morgan: And it just reminds me so much of, you know, I thought we were, you know, maybe getting past that, that needing for like, oh, in 10 years, you know, like Tonya Harding, like how we talked about Tonya Harding was so horrible or how we talked about Anna Nicole Smith was so horrible or look at what happened to Brittany. Me. I can't believe nobody said anything. And I just feel like we're just in that same cycle. And I think that there's three main takeaways here that that I have. So disinformation is really going to impact everything, including the law, if we do not watch out. Because we see it can make or break your narrative. It can break people and events. And it's powerful. And I don't think it should be underestimated. And we've got to figure out how we're going to deal of disinformation. And again, we've just not created space for conversations about imperfect survivors in these situations.

And that there is a backlash to Me Too and Believe Women. There is a backlash to the feminist movement as a whole and gains that that's had. There's a backlash to, you know, it's connected to backlash against LGBTQ people as well. Because what cannot be left unsaid is Amber Heard is bisexual. And I'm very familiar with these biphobic narratives that that bisexual women are manipulative liars,

0:46:36 Andrew: I

0:47:26 Thomas: I've never heard it. That's that's a stereotype. Never heard. Didn't know she was bisexual. I have never heard of that. Is that part of this?

0:47:28 Andrew: Boy

0:47:31 Morgan: And that it has to be said, I do think it has to been said, because also a lot of what her allegations are is that Johnny Depp was afraid she was going to sleep with other women.

0:47:43 Thomas: I didn't know that.

0:47:44 Andrew: I wish we had another hour to kind of explore all of that I think those takeaways are incredibly are useful Well, last the thing that I would add to your set of takeaways that that struck me is that there is a deeper record here. Right. That there is the UK proceeding that, if you you'RE taking in what you're seeing and you want to have an informed opinion, make sure you're not taking in information selectively. You oh

0:47:49 Morgan: Yes, and that's what I really tried to do here, because again, Again, and that's what I really tried to, and I hope that I did strike a good balance here without, you know, falling into these sort of traps. But again, it's so difficult because there is so much disinformation or so much misinformation out there. And also my last takeaway, I think here is people will do anything for ratings still in this day and age, except now everybody is a content creator.

0:48:13 Andrew: Yeah yeah wow yeah

0:48:37 Thomas: I would like to add an ironclad rule of the Internet is if you see everybody going after a woman, don't just instantly believe what they're saying and jump on the bandwagon, because I think that's been proven to be incredibly harmful almost every time. Time. So yeah, thanks for the breakdown, Morgan. I know Andrew learned a lot about who these people are and what any of this is. No, I did as well. I really didn't know much about this. So thanks so much, Morgan, as always.

0:48:37 Andrew: Yeah I it I

0:49:06 Clip: Thank you for being a friend, yeah, travel down the road with me, say we started from the bottom now we're here girl,

0:49:15 Thomas: Now it's time to thank our Hall of Famers, our all-time greats, at patreon.com/law, enjoying all the goodies plus this extra shout out, and we are on the quartile system this month, I believe, and I'll go first. Thank you to Legal Eagle is so handsome, agreed. We're happy to announce our newest co-host, and the next one is the Smiths, so I guess that means, you know, my family's co-host now or something, yeah.

0:49:40 Andrew: I like the idea that it's just going to be like, you know, Arlo, maybe maybe Lydia comes in from time to time it'll be great, yeah no

0:49:44 Thomas: Oh he'd be great Arlo is hilarious. If I could harness his hilarity for good, he'll, he would be a great co-ost. I'd be out of a job, crazy. Animal Lady has given up on changing her Patreon name. Just take my money. Praise be unto Hamilton Budget. Budget Botanist is pausing Fiber because of PhD workload. Last week, reach out on Twitter for plant help and I'll try to get to you. Ah, end of an era. I hope you can unpause at some point. I'm glad it's pausing and not ending. Please offer any suggestions for a podcast that would read my Patreon name weekly asking for a friend. Liberals own tequila too. Support Sparkle Donkey tequila, not ineffective vodka drinks. I forget if we've already had that that one, but it's still, it's that it's so funny.

0:49:54 Andrew: Oh yeah that is so

0:50:29 Thomas: I'm laughing again, even if we haven't eaten. Gabe Halls, Matt Morrison, One Smart Cookie Cutters, uh, listener, Thomas F: does anyone see a realistic way the Democrats keep control of the House or Senate? Because it seems like evil is winning. Well, I'll tell you, overturning Row is one way that Democrats might be able to keep controlof the House of the Senate because, uh, that's so egregious that even some Republicans might not like it, possibly. We'll see. Maybe Boris Johnson was drinking at Emperor's Brewery beer all those times at all those illegal Party Gate shindigs.

0:50:29 Andrew: Good wow

0:51:01 Thomas: GDT says everyone knows that the police can arrest you without, hold on, I gotta pause. Do other countries have the stupid gate thing too? Did we export gate suffix to other countries? Gosh, I've, I've been hating the dash gate for, I don't, 20 years seems like, and and other kids infected the entire world, possibly. That's sad. I would, I would hope there would be something more delightfully British, you know, that we could have laughed at, but no, Party Gate. Oh,

0:51:32 Andrew: Party scone, party crisp uh, party biscuit. Thank

0:51:34 Thomas: Boy. Yeah GDT says everyone knows that the police can't arrest you without, page two of two, your consent, maritime laws, freedom menu, Benghazi, and the the buttery males. Fred from Colorado, keep Colorado and abortion access haven with LGBTQ legal protection, support Colorado state House dems. Absolutely not a last week tonight producer. Le do le bien fabulo. Jennifer Tchaikovsky, Supreme Court justices should have 18 year term limits and so should Conrad Michaels. Sabrina Sturgeon is unicycling around the world, check out her Patreon at patreon.com slash unicycle the world Oh, that's delightful. Edgy veggie and your turn, Andrew.

0:52:20 Andrew: You to the exultant return of Oh So Fluffy Torsten and Peel, Evie Huntington Harvard alum, no hood, suck my D from the back, Clarence John Brown did nothing wrong, elect Thomas Smith President American Honky-Tonk Bar Association, jurisprudence fetishist gets off on a technicality, Don Quicks Oat, don't laugh, Donkey Hody may deliver you a swift kick in the ass, I learned the name in a book, okay, Pablo Escogars, sorry, Pablo Escargose, Heroin Snails, great one, Brian K., Angry Mac Face, Penelope is glad Sydney got sanctioned for terpsichoree, this is not the greatest octile, no, this is just a tribute, April Poff, Beau Fadiz Nuts, I'll never not laugh at that, General Contact Unit Problem Child, his name is my name too.

0:53:11 Andrew: Stary Decytheth, which I guess is Donald Duck doing Stare Decisis. Wuthering Shites. The Dows. Dallas Dallas D'A. John Crusoe owes justice to Diamond Ross what do you call an attorney grievance hearing at a cookout a barbecue learned at a handjob just met learned at a hand job over last weekend Halster Goodwater and Jake bet the patron whose name not saying thank you all so much for supporting the show, patreon.com/law, uh, sign up in the recurring five bucks or more and uh, you will get an octile shout out from us or sometimes a decile shout out from us every month.

0:53:17 Thomas: Wow all right just gonna reveal that online, huh, okay, oh okay and Here's hoping you all meet Learned Handjob this weekend again. May we all be so lucky.

0:53:59 Andrew: Learned handjobs for everyone why

0:54:08 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:54:13 Thomas: And And now it's time for T3BE answer time. Well, what's the default thingy, how did I do, all

0:54:21 Andrew: Thomas, I just want to say, before we get into it, and you probably know what that means, that you analyzed this question absolutely perfectly. Okay, so driver runs a stop sign, hits a vehicle driven by the man, the man was injured, man sues both the driver and the city for negligence, so the allegation is the driver was negligent, not paying attention, city was negligent for not properly trimming the bush that partially obscured the stop sign, which is a fact that you might think would be given to us a little earlier in the hypothetical, but you know, this is how the bar does it. The jury finds the amount of damages is a hundred thousand dollars and allocates negligence like this: the man, that is the victim him, 10% negligent, the driver, 85% negligence, the city, 5% negligents.

0:55:06 Andrew: And as you note, does not specify how to apportion liability or what the rule on a negligence is. And so you need to know that for purposes of the Multi-State Bar Examination, which is what you're taking, there are the, the idea is to approximate what the law is in a majority of jurisdictions, so it follows the majority rule, not always just the common law rule, the the 13th century Saxony common law role is contributory negligence, that is still the the rule in a number of jurisdictions including Maryland, but it is by far the minority rule these days. So your answer of D, nothing, would, would have been correct if contributory negligence was the default rule, but it is not.

0:55:34 Thomas: Right that might be important, damn

0:55:53 Andrew: The default rule is comparative negligence. So then the question is, under comparative negligance, how much can the man recover from either defendant, well, you need to figure out, so right, in other words, you start off with the $100,000, right? And then the question is, how much can the man recover and from whom can he recover it,

0:55:52 Thomas: It why either defendant yeah so what happens to the ten thousand, does he pay himself okay they

0:56:20 Andrew: About to get to that. So from so that that relates to the second question that you asked, which is, is joint and several liability also a default rule on the MBE? And the answer to that question is yes, right? So the man can seek the maximum of his damages from the city, even though the city was only 5% negligent, right, and then what happens? The city has to go after the driver.

0:56:45 Thomas: Sort it out amongst themselves, yeah

0:56:47 Andrew: Yeah, exactly. This is the joint and several liability is the rule that emphasizes making the plaintiff whole, and what that means is that it can result in unfairness. And what would the unfairness be? The driver is insolvent or leaves the jurisdiction or whatever. And now the city is left holding the bag, having paid the full amount of damages. And its right of seeking contribution is effectively nothing. And the idea is, okay, that's bad, that's right, an externality

0:56:47 Thomas: Not great, then

0:57:20 Andrew: To the transaction. But as a matter of law, we would rather have one of the, quote, negligent parties holding the bag as opposed to, yeah, as opposed to having the victim hold the bag, right? If you can only go after the amount that they're responsible for, then the victim here would only get $5,000. So the question is, does the man pay himself? Yes, the man pays himself, self, so the maximum damages that the victim can seek here is ninety thousand dollars from either party which makes the correct answer b and uh that was that was one of the four answers you thought it might be so so

0:57:30 Thomas: The victim, oh uh so b okay yeah yeah yeah no I, I was, yep, yep, I wasn't sure if the like damages number already took that into account, you because when you talk about damages, seems to me that you're talking about like damages of the somebody owes the plaintiff,

0:58:12 Andrew: Yeah, no, that's that's a great question, this is actually the way in which a jury verdict form would look in a negligence trial, so the first thing you would ask the the the jury is how much was the victim hurt here. What is the total amount of recovery and counting all of the theories of liability here, right? Direct damages, which would include, you know, the cost of the hospitalization, everything that that is considered consequential damages anything else you want to stick on top of that indirect damages right uh you know, punitive damages. If you've, if you have a punitive case, which you don't have here, right? You get the big number first, and then you say, allocate responsibility among the parties and your numbers must add up to a hundred percent. And whatever amount they allocate to the plaintiff is the amount that the award is reduced, is effectively reduced by.

0:58:18 Thomas: Hmm. Okay. So that comes first. Gotcha.

0:58:39 Thomas: Mm hmm. Right.

0:59:06 Thomas: Gotcha.

0:59:06 Andrew: And then again, it depends on if youhave joint and several liability, you don' always have have a case of joint and several liability.

0:59:06 Thomas: Gotcha.

0:59:14 Andrew: Depending on jurisdiction and depending upon what, the allegation. So for example, right, I did insurance coverage litigation for a long time. And the first question that you decide in a bunch of jurisdictions where it's not clear is, is this going to be joint and federal liability for insurance, for example. Is called an all-sums jurisdiction, right, and the idea is that it would say you could recover all sums from any one year from any insurer, and then, you know, kind of let the insurers fight it out amongst themselves, uh, versus a pro rata approach, where you have to, you know, if in a particular year 50 of your coverage is one insurer, then 25 an excess that sits on top of that, and 25 in excess that sits on top of that, then each insurer is only responsible for the amount of coverage that they have tendered to you.

0:59:14 Thomas: Just depending on jurisdiction or what? Yeah.

1:00:09 Andrew: That rule is settled in two dozen states and kind of up for grabs in two thousand states. And as you might imagine, greatly influences the value of the litigation, you in terms of, oh, hey, yeah, we're going to come after you and then make Make you, you billion dollar insurance company, sue another billion dollar insurance company for a decade for the amount of contribution. And that's tougher spot to be in. Yeah, that's quick kind of how juries allocate funds in comparative negligence cases. I wish you could get credit for this because you really did nail it.

1:00:44 Thomas: Nailed it. Never have I been so completely right and yet didn't even second chance bar exam.

1:00:46 Andrew: Yeah. Nope.

1:00:49 Thomas: You know, that's how it goes. That's sometimes you eat the bar.

1:00:50 Andrew: Yep. Yeah, this is the coin would even lose here. You've you you were so

1:00:55 Thomas: Well, the coin was me in disguise. It was me in a, you know, in a mask or something. Yeah boy, I nailed It it's so it's it's interesting. It's a majority of states, it's not like the, you know, common law defaulty kind of thing. That's good to know.

1:00:55 Andrew: Right. Oh, but I'm still proud of you. Yep.

1:01:12 Thomas: You know what, I'm holding my head high. I'm proud of this performance. I really, uh, I showed how much I know in getting this completely wrong. Well, let's find out who this week's big winner is. Why?

1:01:19 Andrew: Yeah. Well, Thomas, if it's any consolation to you, a lot of people got this one wrong as well. I've seen a lot C's and D's, and in fact, one of the few correct answers, and this week's winner, goes to Lauren Park, who is studying for the bar exam as we speak. Lauren notes, B, 90% on the bar, exam unless told otherwise, assume pure comparative negligence and joint and several liability. That is exactly right. Right? We didn't even go down the rabbit trail of the various subcategories on comparative negligence because it's not relevant and doesn't change this question. They then continue because city and driver are 90% at fault. Man can recover entire amount from either. That is exactly correct. Concise, right rules.

1:02:10 Andrew: Congratulations, Lauren, on being this week's winner. And everyone, let's give them a follow. They are at LParkLens on Twitter, that is L-P-A-R-K-L-E-N-S, and congratulations, Lauren, on being this week's winner, and best of luck to you on the bar exam.

1:02:28 Thomas: That's our show. Thanks so much for listening. Thanks to Ace Associate Morgan Stringer for bringing the goods on the Amber Heard Johnny Depp trial. I know I learned a ton and I'm sure Andrew did too. Like, for instance, who is any of these people? We'll see you next time.

1:02:43 Andrew: Are You

1:02:46 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.

1:03:20 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash 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.