Law School Doesn't Have to Suck

Transcript

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

0:00:56 Thomas: Hello and welcome to Opening Arguments. I am Thomas Smith and got the special episode that I promised you the other day. Here's what's going on. Wanting more than anything to like just offer you guys the structure that's so badly needed after all the nonsense and the change -ups and all that, you me, I was entirely intending to just that final switch keep the structure that it used to be, end of story, done, count on it forever.

However, in the effort to try to find ways to take workload off Matt so that we could be able to do all this stuff, be ableto do Gavel Gavel and Opening Arguments, the honestly barely has time to do OA itself. A busy guy. He is over there helping people, plenty of cases, real-life lawyer stuff.

While back, Lydia and I heard about this website called Women Also Know Things, and it's a really, really cool place where it was like, hey, why is everyone always looking to men as the experts for interviews and media appearances and all that? And the minute I heard about it, I was like, well, writing that down for whenever I am able to utilize it.

And sure enough, through that, found someone with legal expertise, and it just so happened to be someone whose job is to her law school pass the bar. It's literally what she does for a living. So, so we thought it'd be fun to try a bar question or two. And when we did, it was very clear that this was worth doing another change up for. Me, I had, the last thing I wanted to do is change things up again.

But Heather Varanini has been such a delight, and I've learned so much just in the two questions we've done. Here's the other thing. It turns out that right about now is when law students are studying to pass the bar, soon, is another reason that's like, all right, dang it, I'm bringing back the Wednesday bar episodes. Another thing is when Heather and I have done bar questions, they're very long, because she, really, delivering you a class almost each time. It's really cool.

And it's too long to tack on to the shows, um, the tight turnaround as they are. So really seems like the perfect thing to do is go back to that Wednesday, Wednesday bar exam format. And want to emphasize that, you're if someone who skips T3B, I'd encourage you to try this at least at first, because it's much less about me answering a question and much more about learning the law and getting that deep dive. So that's what's happening, and I want you to meet Heather.

So we just did an interview at first, and I figured, yeah, yeah, no, people can get to know you and what's going on, and it really jumped off to places that neither of us expected. It was super fascinating and heartwarming and really interesting. Talks about her background, and we get into mental health and law school and disability and accommodation, stuff like that. You know, it's really interesting stuff that she wants to make a part of her mission as an educator.

Wants to making law school, you more accessible, not just the same old stuffy, very white male kind of thing that it is, and it's really cool to hear, this is a great interview, I hope you'll listen, and then at the end we do a bar question, and I to get both the question and the answer in there because the magic that Heather brings to the show is largely obviously in the answer, and so I didn't want to make you wait until Wednesday to hear like the main thing I'm excited for having Heather on about.

So that's what we're doing. It's an interview getting to know Heather and tackle a bar question and get to hear how she handles that. And then on Wednesday, expect that T3B solo episode to be back. I said, not at all what I plan to do, but I think the important thing in life and in, I don't know, my podcasting, is to take advantage of when people come along who are great at what they do. I definitely want to take advantage of that.

And this seems to be the best way to do it. Let's get on over to the interview with Heather. And then after that, stick around for a really fun bar question.

0:04:52 Thomas: Hello and welcome to a little bonus episode of Opening Arguments. I've got a guest with me and it'll become clear why I think very soon. Welcome to Heather Varanini. How are you doing?

0:05:03 Heather: Doing great. Thank you so much for having me.

0:05:04 Thomas: Thank you so much. All right, so here's the thing. I think it's become clear that my bar performance is not what it should be. And that's very important to me. I need to ace this thing. I needed to get the top score. I, uh, I needed, I need to become a lawyer. Well, a podcast lawyer, not a real lawyer. And I think we, we should bring in the big guns. And so I am so excited. Lydia, uh, you, tracked you down, and we've been chatting, and I'm just so excited for the audience to meet you because you are someone who helps people pass the bar, uh, for your job, right?

0:05:35 Heather: That's exactly what I do. Yes.

0:05:37 Thomas: Let me tell you, we've done a few practice questions, and, uh, it's truly fascinating to get more insight from that kind of perspective. And so I'm really excited for this, but I thought it would be cool if the audience got to know you a little bit before they just, like, all of a sudden heard you doing bar questions. So why don't you tell everyone about yourself?

0:05:55 Heather: There's a lot to know or maybe not very much. But primarily, what I'd do for work is that I'm the Director of Academic Achievement, what that means is that I oversee all the academic success programming in classes at my law school. And I work really closely with bar studiers. So basically I meet students before they start law school, I help them build the skills that they need to be successful in law school, and then teach them how to take that with them through to bar study and pass a bar exam to become a lawyer.

0:06:23 Thomas: Many like podcast bar exam students have you had?

0:06:27 Heather: Up until now, about zero.

0:06:29 Thomas: Okay. Okay. So it'll be a little, a new thing, butI can expect it's a line of work that may increase over time. I don't know. So far it's just me. It seems to be just me, but like, you never know. I you want to go into some of your history? I thought it was kind of interesting with how you got into what you were doing. It's up to you if you want to, you talk about that or not.

0:06:44 Heather: I Yeah, I grew up in a really small town in Northern California and I'm a first generation college student and law student and lawyer. Went to UC Santa Cruz for undergrad where politics I studied and Latin American Latino studies. And then I graduated college And I thought, oh, my God, it's that's it, I made it. Set for life.

0:07:04 Thomas: Yeah, exactly. That's what we all thought back then. Yeah.

0:07:07 Heather: Yeah, and then the recession hit. Nobody wanted to hire a fresh grad. So I worked a lot of part-time jobs. Then I started, I got very lucky a couple of years later where I got a full-time job working in an international consulting firm. Very quickly, the dream died.

0:07:09 Thomas: Yeah, Yeah.

0:07:23 Heather: And learned a lot of really great skills there, but I quickly found that it wasn't for me. So I started talking to folks about what they did for a living because I started wanting to look for a career that I thought would be a good fit. And I started to talk to folks and I was asking them, like, hey, like, what do you do for a live? Like, what's your day look like? And it turns out there's a term for that. And that's called informational interviewing, which I did not know at the time. And started to find, much to my surprise, that the people that I saw myself to be most like were lawyers. And that shocked me.

0:07:56 Thomas: Oh, Heather's a psychopath. We should tell people. I should make that clear. Yeah. That makes more sense now. They need that background. So, yeah, you related to lawyers the most for that reason, I think. Right.

0:07:56 Heather: Yeah, that's exactly it.

0:08:09 Thomas: Sorry. You in my mouth about lawyers recently. So.

0:08:12 Heather: Listen, I don't blame you. There's a reason why lawyers have such a terrible reputation, honestly. Honestly.

0:08:16 Thomas: Yeah, but what do you think was what Why do you Think that was why do you think that was the case back

0:08:21 Heather: Turns out that a lot of these people were really thoughtful. They spent a lot of their time reading, writing, and doing a lot basically the opposite of what you see on television. And they were really like thoughtful people, really the opposite of argumentative. And yes.

0:08:31 Thomas: Yeah. Really? Did you just meet like a like cool batch of lawyers on an island somewhere or what the hell? Explains this?

0:08:46 Heather: Yeah, well, it turns out that the majority of lawyers don't actually do what you see on television. That was what surprised me and that so much of their jobs are based in research and reading and writing. The vast majority of cases never actually even ever go to court. And so although it's considered an adversarial system where there's one person on one side and one on the other, that that idea of like that really awful fighting and like terrible attitudes that a lot of people who are worth their salt, their lawyers don't actually do that kind of stuff. I thought, well, I guess this is starting to sound kind of like me.

0:08:50 Thomas: Sure. Yeah,

0:09:20 Heather: And then I was presented with the idea of do I actually want to go to law school? Is that that something that I could see myself doing? I afford it? Can I be a lawyer? So then I started to ask that question of those people. On Based your experience in law school, do you think I would be somebody who you think would be a good fit? Do you think it's something I could do? What do you think? Then they were like, yes, of course.

0:09:19 Thomas: I

0:09:44 Heather: Think primarily because I was a really terrible student, just to be really honest. I was an awful student. So pretty much up until until the time I got to college, I hated school. It was the least place in the world I wanted to be. And so, uh, college was really the first time that I started to take an interest in being in a classroom and excelling in schoolwork. Uh. And so the thought of going back to school, um, at that point in time was attractive, uh. Because I just, I like really for the first Time been interested in school. So I thought, okay, okay. Okay. I think I can do this.

0:10:06 Thomas: Still want to go back to school. I love school. But I had the same thing where, well, I always like so I have have ADHD, so I couldn't really being in the classroom sucked. But then when it was like the rare thing where I was interested in the class, it was my favorite thing. So I can kind of relate to like, I wouldn't mind going back to school someday.

0:10:27 Heather: Yeah. Yeah, Well, and the cool thing is, you know too, and I just, I have to make a plug for this. And what we know too about ADHD, especially in adult learners, is that it presents a little bit differently. And school can be a really great place for students with ADHD when, when classrooms are more adaptive.

0:10:44 Thomas: Hmm. Interesting. Yeah, I mean, I aware that I had ADHD I was in school. I mean I was aware that I had a major focus problem, but I just didn't put it in that language, you know, so I never really thought about that.

0:11:00 Thomas: And at anything, like I always kind of just thought it was on me, like, "All right, I just had to figure out how to do this," you know? And so I never really would have thought about that, except that we didn't even plan to talk about this. But I notice that obviously there were differences in terms of classes that I could actually like exist in and classes where I would be in outer space.

And if someone was ever just, God, I had a class, it was the worst, where someone literally was just reading PowerPoint slides that were already available online anyway. And it was just like, why am I here? Why would I ever go to this class? This is someone just reading, they're reading to me and I can't pay attention to that. There's no way. And it wasn't like an interesting topic. So that was a class where I literally could not do it.

It was like, I just wasn't there even when I went. So I stopped going because it was like I'm not even, I go and then I wake up and the class is done, essentially. And so it's interesting.

I don't know what kinds of things you're talking about, but definitely I always did a lot better in ones where there's participation or it felt like I was kind of trying to like, you know, trying to solve stuff with, you know, or trying to answer problems or just being, you know. Just involvement kind of thing.

0:12:13 Heather: And that's exactly what I'm talking about. And so, the reason I mention that is because an increasing number of students are coming into law school and seeing that they're struggling. And for the first time, they're getting ADHD diagnoses as full -on adults. And anecdotally, I'm seeing this a lot with my female students. And there's really just a lot of things, but a couple of the things that work really well in the classroom with students, and surprisingly, benefit everybody in the classroom, are things like shorter lectures. So instead of having like a three -hour lecture, sorry, yeah, with everyone is,

0:12:26 Thomas: Hmm. Mm-hmm. Hmm. Oh, my God. There's no way. There's not way. Yeah. All right. Just hearing that, I was like, oh, yeah, there used to be. I never had three hours, but I had, there were the classes where it was at least two. And I was like, this are we doing? There's no way.

0:12:53 Heather: Well, it feels like an exercise in somebody listening to themselves talk, right? Also to your point, like, so having shorter lectures, so like for, for example, like having, you know, a lecture that's maybe 15 or 20 minutes and then with student participation and engagement, and then also including time, just like what you were saying before, where there's exercises, where students can get together and they can work on a problem. Like it's a game changer because all of a sudden, then you get everyone involved and then it's more productive.

0:12:58 Thomas: Yeah. Yeah. Yeah, totally. I mean, it really, I'm not sure that that necessarily always has to be the case that what would be better for, you someone like me with ADHD be better for everyone. But I honestly, I can't really think of why you wouldn't rather have that kind of class. Like I did, maybe that's just the limit of my own experience, but but I cannot imagine being like, no, I would like to sit there while someone drones on for three hours. And I like write down parts of what they say for some reason. What I prefer. I dunno. It's hard to imagine.

0:13:46 Heather: Well, and I think the challenge with legal education is that it's been one way for a really, really long time. They're like, it this way for so long. It's obviously worked before. It's going to keep working. It's funny because a lot of folks like me are saying, well, it hasn't worked in the past and it's not working now. We should be working to change it so that we can do something that's much better and much more engaging. And so that we have better outcomes. We've got students who are learning more effectively and then we're going to put out better lawyers.

0:14:02 Thomas: Yeah totally.

0:14:14 Thomas: Well, that's really cool. Okay. So wait, did we interrupt your story or you, you relate you to the lawyers. You, Oh, we got into, you talked about whether or not you would do well in law school. So And you and these lawyer friends thought you would do well.

0:14:22 Heather: Yeah. And The thing I was kind of nervous about was, um, listen, I thought last school was for smart people and

0:14:31 Thomas: And you're here to say it's not.

0:14:34 Heather: Yeah, I'm here to tell you that's a decidedly a no. Um, because, but I thought I was in the category of, of not smart people. I of people in the world, who are smart and they did smart things, like doctors and lawyers, and then everybody else. And then I was in the everybody else category. Then, I was not somebody who could ever make it into the other. So, when I decided to go to law school, there a lot of hesitancy on my part because I know I was taking on this really massive endeavor. Did a lot research. I spent a lot of time. It was probably like a year or two process of me going to law schools, on Tours, trying to get scholarships, preparing for the LSAT, doing all this stuff in an effort to try to figure out whether or not it was going to be a good use of my time And money.

0:14:36 Thomas: Yeah. Hmm. Wow. See, like already right there, that stuff you did is the kind of crap I couldn't do. And I'm like, man, that's that makes a good student right there is somebody who has that ability to like do that legwork. Whereas like I don't want to sound like an asshole, but I've always been in the smart kid like of the what I thought was the smart kids section of stuff.

Except I was always just sitting there thinking like, yeah, no, I do well on tests, but I cannot do any of the like legwork stuff that you come to find out, or I think anyway, let me know what you think. But not just, I'm sure, in law school, but in all walks of life, all areas of life. You really need that other thing. You really like being at tests does almost nothing unless you actually can work hard and do that other element.

I can't tell you from my other show, I interview a lot of scientists. And One thing I always love is that even though they're like, they're often people who are, you know, have published studies that are, they're doing well, they're at good institutions or whatever. And like often they're not the kind of people who are like, yeah, I was the top of every class, I was best of the best of best. It's, there are a lot of them that where kind, it's like, yeah, no, I wasn't, I wasn't necessarily like super gifted, per se, in quotes. But like, you know, I found that I liked, I had a passion for this thing and I wanted to do it and I worked at it. And that gets you so much further, you, you know, it seems to me.

0:15:59 Heather: Really, I love hearing that, honestly, I really thought, I went through my whole life being around and surrounded by so many people who were always at the top, and I always felt so distanced from them and really unsure of what are they doing that I'm not doing? What do they have that I don't have? And always feeling like I was never going to get there and therefore I was an idiot and just not capable, not smart enough and really relegating myself to, well, I guess I'm just going to have to be street smart then and figure it out, which is not a bad thing, but just really at some point settling in my mind on who I was and what my trajectory was is going to look like.

0:16:46 Thomas: Hmm.

0:17:10 Thomas: Yeah. That's so funny how, how we all look at the world. Cause I like, I hear you saying, well, I worked for an international consultant firm and I was talking to, you know people to get a sense of what I wanted to do. And then I was doing the legwork of like going to different, you knows, law schools. I was checking for scholarships and I'm just like, well you're a genius. I couldn't do any of that. You know, like it's funny how we all have that kind of the way we look at it. It's funny. It sounds like magic to me, like all, Everything you just described, that's magic. I don't know how you did it.

0:17:38 Heather: That's funny because even when you say like, oh, you're really bad at standardized tests. Like I hear that and that's something I struggled with. So my students know this about me, but I, wasn't until I was in college that I was diagnosed. So I, to be really honest, I have anxiety, chronic anxiety. I have like, a lot of flavors of anxiety.

0:17:54 Heather: I'm like the 31 flavors of ice cream, but with anxiety. Um, so, um I was with test anxiety when when I was in college and was finally able to get treatment for it. But I struggled with standardized testing.

0:17:53 Thomas: Yeah, yeah.

0:18:06 Thomas: Oh, I bet. Yeah. Man, if you get that anxiety, that is hard. I, many people listening have dealt with that kind of thing. I'm sure we'll have a lot of people chiming in that they've dealt with that. I, for one, always had performance anxiety. And I didn't know. I did not understand what it was.

Because I did a lot of sports, sports big high school and stuff, and I, it was like my favorite thing to do, except every time it would come to, like, in practice I would just be amazing, like, it was just absolutely amazing, running, whatever it was, it's like, wow, I'm really good at this, like, I played basketball one -on -one and, you know, just for fun against people, I was like, I'm a really good at this. And then I would not make the basketball team.

And it's like whenever it was a competition, like an official thing, my heart would just explode and I'd be like, wow, wow, I guess I'm out of shape, you know? And really, I bet you it was similar for you in what you figured out. I figured out that, oh, when I just like, you now, take a pill to help with a specific important event like that, I'm, it's a night and day. Like, it is like, oh, that is just that.

Like, I decades that I just was like not in shape because, like, I would just all of a sudden not, like, in the same way I imagine you thought, like, oh, I am just not good at tests, you kno, or something.

0:18:09 Heather: Yeah.

0:19:15 Heather: Absolutely. I thought it was me because I think I always, my default is to think that the problem is me.

0:19:21 Thomas: Same.

0:19:21 Heather: Like when there's, when, yeah. When something goes wrong, I'm like, Oh, I mean, I was going to say, default is to think I'm the a-hole basically. It's a me problem.

0:19:28 Thomas: Yeah, same. Oh, we have a lot in common. I had no idea. Yeah.

0:19:33 Heather: And so I'll never forget that when did get medication, my grades went from being no joke when I was in high school, like C's and D's, to college, going to A's and B's. And it changed drastically. And it also gave me a lot of confidence to say, okay, well, the hard work that I do outside of the classroom really can pay off. Just made such a big difference because I really did think, well, if I do this a little bit differently or if I do that differently, and then no matter what I did, it didn't change. I was still getting the same result. I'd show up at the test and I would sit there and sometimes I would just forget everything.

0:19:47 Thomas: Hmm.

0:20:11 Thomas: That's so interesting. Yeah.

0:20:13 Heather: It's really overwhelming and very frustrating.

0:20:15 Thomas: Yeah, I don't, I, I'm, I don't know how interesting this is to the audience, but I think the ADHD thing was the reason I was really good at tests. Is That's when I could get the, the stakes to be high enough for my brain to engage, you know, where it's like, I, doesn't work for athletics because you have to physically be doing stuff. And if you're like out of breath, like for me, if my heart is racing and I'm out of breath, that just makes you not able to compete well, but it does make your mind sharper. So, like, for me it's interesting, we had like inverse kind of powers there where it's like, I needed the high pressure of the test. And then I would all of a sudden be like, this is, I'm focusing so hard. I would come up with answers that I didn't even know I had, you know, kind of thing. It's like were it's, the opposite side of the coin there.

0:20:27 Heather: Yes. Yeah.

0:20:55 Heather: It's funny funny how that works sometimes, right?

0:20:56 Thomas: Yeah. Goes to show kind of like what I our conversations that you care about, which is like really trying to tailor education to people's needs in ways that's more accommodating, right?

0:21:08 Heather: I mean, I think that's part of how I approach teaching, because I think a of times I felt left out or left behind. And I think I've seen that a lot in education, where it's pretty easy to make excuses for trying not to include everybody in the classroom or in what it is that you're trying to do when you're teaching. And so So my is always, how can we work to include everybody and work together to ensure that everyone's achieving their goals, right? And so that's kind of why my approach to, and that's kind of what I was making that comment about ADHD, which is like, when we do or we make changes to update the classroom or what we're doing in the classroom, then something we're kind that's going to be good for everybody. So a good example of this is, lot of students in in my classrooms who have a disability, whether it's been diagnosed or not. So some of them are learning disabilities. And what we know is that for students who have dyslexia, that certain fonts are easier to read than others.

0:22:06 Heather: And sans serif fonts tend fonts that are easier read. So in all of my PowerPoint and everything that I...

0:21:41 Thomas: Mm -hmm. Hmm. Oh, yeah. Oh, no. Isn't that the one people hate? Oh ,no. It's Comic Sans that they hate. Okay. Never mind. Shut up.

0:22:14 Heather: Yeah. Well, Because it's just a joke. Right, you just see Comic Sans and you're just like, "joke incoming," um,

0:22:17 Thomas: Okay. Yeah. We have, you don't know this, but we have an ongoing running bit that uh, Matt, it has very specific font, uh, and and whatever's, I don't notice things like that, uh, so I hope, I hope you're going to say Garamond is a good font rather than, because that's his favorite, it's a, it's a big part of the show, so tread, tread lightly, I'm saying, on Garamont.

0:22:42 Heather: This is a very, okay, listen, I have to just side note, this is a very lawyer thing, I literally have books on my shelf about typeface. Yeah.

0:22:49 Thomas: Awesome them and.

0:22:50 Heather: I'm sorry, but, but it's actually, so the one I use is Arial, um.

0:22:54 Thomas: It's.

0:22:54 Heather: It's pure purely to improve the ability for people to be able to read more clearly, so everything I do, whether it's my emails, everything is all default to Arial for that reason. And it's, I've never had any student come up to me and say, hey, I'm dyslexic. But it doesn't matter, because the goal here is truly about readability. So it's small things and it's big things to change a classroom to make sure that like everybody is included.

0:23:16 Thomas: Great, when it's those things that are really just positive, like there's nobody who's like, I cannot read Ariel, I don't understand, I mean maybe Matt would have come into your office to be like, hey, I can't do this, this, I hate this font, you need to use Garamond or I'm out of here, you know, like maybe, but other than that it's mostly just, I, that's not always going to be the case, like there are some accommodations that are going to b0 some, like sometimes.

0:23:37 Thomas: But. Like when it was ones that very clearly are like just upside, it's like, hey, why doesn't everyone just do that, uh.

0:23:37 Heather: Yeah, exactly. Always tell people to, more often than not, like you're saying, it's like a curb cut. You know, are you familiar with what curb cuts are? Are?

0:23:50 Thomas: Maybe, yeah.

0:23:51 Heather: So curb cuts are the, when you're walking down the street, it's on the corner when the street gets, down so that you can easily walk off the corner of the street. It's kind of like, yeah, so it's curb cuts. So they were originally designed and created for people who are disabled so that they could easily get on and off the sidewalk. It turns out that once the government made the curb cuts that they were, it was good for everybody and it helped everybody, right?

0:23:59 Thomas: Yeah. Yeah. Yeah. No, I need there to be a ledge that I could fall off of, like that's just important to me personally, yeah.

0:24:21 Heather: Well, I tell people too, some of the changes that you make in your classroom are ones that are just going to be good for everybody. They're just going to be a curb cut. So do That kind of stuff. So like, for example, bright neon yellow, often not great. So, for example, I think there's a good percentage of men who are colorblind, so there's certain colors that we don't like to use because it's going to make it harder for folks to be able to see that, that's how you've tried to highlight some of the text in. The classroom.

0:24:46 Thomas: This. Is. So funny because we really have not planned any of this, and uh, yeah, my son is colorblind, so my uh, dad is color blind and so, so we have that genetic thing where like any boys we have are 50 50 and it's been, it's been, it has been really, I mean, to use a pun, eye opening, like it's, it's fascinating how often, you not that, that I would have been like, well, screw colorblind people, am I right?

You know, but like when you get your eyes open to like, oh yeah, shit, that's, when they're kids, it's, there's so much stuff where they don't know that they're, they're colorblind, and they just can't see it because like you don't, most people don't think of it. You know, it's the text on the little handout for kids is certain colors. And it's like, he, I, doesn't know what it is.

You know, it's, it's really fascinating to think about those things and to like see it from that perspective. And there are, there's absolutely text that he's not going to be able to see if it's not the right, you know what I mean? It's really interesting.

0:25:39 Heather: Yep, you can't see me nodding my head yes to all of that. Yeah, because I think a lot of times too, because the world is really built for people who, the world feels oftentimes built for people who have zero health problems, who live in a world who they are completely healthy, there's, there's no deviation from that. And so sometimes when you have a problem, a problem or something, something that you deal with day to day, it can feel like you're fighting to navigate through a world that maybe wasn't built for you. And so I feel like small things that aren't that hard, just being able to do certain things to make sure that we're including everybody, not that hard to do, but it's really important, which is, I think, for the reason that you mentioned.

0:26:17 Thomas: Totally. Totally. Yeah. And just awareness. It's it's nice to have more awareness of things that can be problems, like even if, you know, like, even if it's like, OK, I'm not doing this particular accommodation until it's like, oh, someone in the class is colorblind. Absolutely. Why don't we make that change? You know, it's stuff like that where it's like people I think there's a reactionary. Oh, I know there's just a massive reactionary force in our country and everywhere. Just any any changes in imposition or whatever.

But one thing I try to do when talking about often like political issues on my other shows, too, is to point out like Like, hey, you can even have an opinion of like, okay, well, maybe I don't want to do that most of the time, but if there's somebody who needs it, then just do it then. Like, it's like, I'm kind of anticipating an argument a little bit because I know how reactionary crybabies people are often about stuff, any imposition on changing their behavior. But what's funny is when you point out that like, it really is such a subtle, small thing that costs you nothing and

0:26:22 Heather: Yeah. Yeah.

0:27:10 Thomas: You're free to still have your own feelings about how you want your life to be, like, whatever, it's fine, nobody's making you change your whole life, it's so little of an ask, and. People act like it's the end of the world.

0:27:18 Heather: Yes. And I always tell my students too, so we have orientation. So orientation is something that happens the week before typically students start law school. They, as part of my work, I present orientation because I talk about, I required laugh, of them in law school, and I'm laughing specifically because there's so much, it's overwhelming. Always I give them a piece of advice, a few, a lot, let's say. Give give them a piece of advice before they start law school. And, they uh, hear a lot of advice and lawyers hear a lot of advise. Law students are a lot advice, but the one I, the one, I try to stick with all the time, uh is that I always try to, I always tell them that they need to be kind even when it's hard.

0:27:58 Thomas: Well. For.

0:27:59 Heather: Know it might sound a little bit silly, but uh I think it's really important, especially because when you go to law school, it's extremely stressful, uh profession of law is one that's stressful. Um it's a lot of anxiety. It's very adversarial, right? I think to what you were saying, so important to take a minute to just do something that's thoughtful, that's kind, because we want people to remember us for the things that we do, our kindness, especially in those times that are really hard, right, opposed to what's the worst thing that we've ever done. When you've had the worst day of your life, you don't want to remember this awful thing that happened to you. Instead, you want to reflect on like, what's a kindness that someone has extended to you in that really hard time. And so that's always why I try to remind my students, like, be kind, even when it's hard, because it's going to be hard, it's gonna be harder than you can imagine. And what's the thing you want people to remember you for?

0:28:46 Thomas: This is, okay, I, again, no idea we're going to talk about this, but I could not agree more. And I also, it's funny how everything comes down to cliches, but then you're like, well, yeah, but once you kind of have the life experience to understand why something's a cliche, it's, it's like, no, OK, that is a cliche because I, up in a kind of a harsh household, and I, upbringing, I only thought like being like smart mattered, like I really, that's like, OK, smart is the ultimate goal, and like if you're not smart, that's, you, a bad thing, and like I need to, all that stuff, stuff, and I used to, to think, uh, a genius meant you're all the Einstein stuff, or you were doing the typical, the TV genius of like, don't, you're even have the time to explain to everyone around you because you've come up with the idea and you're so brilliant and you got to leave, and they got to be like, but what, what is it?

What are you thinking? But then, oh, the genius has already left the room and you have to stare at the blackboard and being like, I can't even interpret this, he's such a genius. And it's so bullshit. Like, really, the most genius thing is being kind, like it really is. I 100 percent agree. And not only is that the thing you want to have people remember you for, to your point, I go so far as to say that's the only thing you remember about other people, like.

0:29:48 Heather: Yeah.

0:29:49 Thomas: Even me, who was somebody, again, growing up where I thought like all that mattered was being smart. Yeah, I do still value that. I really value intelligence just in my friends and stuff. And it is something that is a value of mine. But like the people who are just kind, I not give a shit what they tested on something or whatever. You're just like, I love that person. You know, like often me and my wife will just be like, I love That person. Yes, I Love That person too. Yep. Like that's all it's, it's so much better than anything else, especially, you know, I don't, I don't know anything about you or your life, but especially once I've had kids, like now that I've had kids the minute, actually this, the second I had a baby, I was like, oh, now everything else, nothing matters. Like all that matters is making a more kind world for this child to exist in. And it's like, again, no idea this was where the conversation was going to go, but I just agree more.

0:30:38 Heather: Yeah, no, thanks for saying that. And I think I so I'm I don't have children. Fur child is not the same, uh, with four legs. Um, I always think too about, I think the thing that's similar is that I think too about the future. Like what's this world that I'm going to leave once I'm gone? How have I made it better? I don't think that that's, like you said, I don'T think that's about test scores. I DON'T think THAT'S about saying this like really smart, like quippy thing. That's like on the edge of my tongue, like when I'm I'm feeling sassy, you know, like it's there, but I don't think that's going to be the thing that's gonna make the world a better place at the end of the day. Right.

0:31:13 Thomas: Agree.

0:31:14 Heather: Like, listen, it's There and I think about it, but like, I think also a lot of times too in, in a world where is very reactionary, That is where it feels like, and I'll say this because I think in the last year, year and a half, things have been really tough, and especially in the spaces where I'm at, the feelings have been really tense, really a lot of heightened emotions. It's easy to kind of snap back really quickly and to like give in to the and the frustration and the nastiness. Often think like, what's the best, instead of thinking like, oh, what do I want to do right now?

I think like, like, you know, when I'm reacting to somebody else, I think, I try to think to myself, what do they need? Where, what's, what, uh, what's maybe that, what that coming from? And I try, I try think about that with them because I think, I think on the days where I've had a really hard time.

So like, just to be totally transparent, don't my, know how to say this without it sounding really bad, but, um, but I've, I've a lot of loss in my life. And so I think my goal is always in those times where I've had days that have just been awful, awful, the I remember and that I try to hang on to are those moments where people have taken the time to just be really kind. I just, even if it's been like, how are you?

0:31:22 Thomas: Yeah, absolutely.

0:32:31 Heather: Like, how, how can I help you? Even if I was like, oh yeah, I'm fine. Just to do that, I think has made a tremendous amount of difference.

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0:34:06 Heather: Yeah. Yeah, so I ended up in law school. I ended up in the night program at the Golden Gate University School of Law in San Francisco. They have a great reputation. I asked around about it a lot for graduating practice-ready lawyers. And as someone who had had about 10 years between the time that I graduated undergrad in the time, that I was going to law school, I wanted to be able to graduate and be ready, right, to work.

So I went to GGU and I actually had a great time and not many lawyers will tell you this, but I loved law school. Was happy to be there. I, um, know how absolutely wild that that sounds. I enjoyed it and I think a lot of the credit really goes to my classmates.

I was in a program with about 30 other students who were the same age as me, had a lot of life experience and who were working full time, and they are genuinely some of the smartest, kindest, hardworking and most thoughtful people that I've met, and they made the experience really worthwhile and I would do anything for that group, people, just really changed my outlook on life. And my time in school changed me as a person. And really, again, working with them also changed me.

It changed how I viewed myself, my place in the world, what I thought I could do. I did some of the quintessential law school stuff, was on law review. I was a co-executive research editor for the Ninth Circuit Survey, which is the only law review journal in the country that's dedicated to the jurisprudence of the Ninth Circuit Court of Appeals. Wrote an article on the death penalty, actually California's death penalty. Over the summer, I worked for a federal district court judge, as a teaching assistant.

And I really started to kind of get the teaching bug, I guess, when I was in school working, doing the law review stuff and started teaching some classes to my other classmates. It was really fun. I started to have a really good time. And none of this is to say that law school is not hard. Like you hear that. It is. It's really

0:35:57 Heather: Hard.

0:35:57 Thomas: It's probably hard.

0:35:58 Heather: It was some of the hardest work I'd ever done. I will never forget. I love the story. My first year of law school, a lot of late nights. I was really late. I was reading for class. And it was probably two o'clock in the morning. I saw something out of the corner of my eye. I swear to God, I thought I was hallucinating because I was like, oh no, it's one of those moments where you're like, Oh my God, did I just see the ghost? Luckily it was not a ghost. But I looked up again. It was a mouse.

0:36:25 Heather: That is how I discovered we had mice in our apartment?

0:36:24 Thomas: Oh, and it wasn't like a mouse studying for law school as well. It wasn't like, Oh yeah. Burn the midnight oil. Huh? Yeah. Mouse law. Got to pass that test tomorrow.

0:36:30 Heather: No. He's like, I'm here help you. No, but it was just one of those things where just like, what is going on? What am I doing? And then that just kept happening, things like that. I remember too, distinctly telling myself at the beginning of law school. I'm going to do one semester and I'm going to see how it goes.

0:36:39 Thomas: Yeah. Hmm.

0:36:56 Heather: I really wasn't sure whether or not I was cut out for it. Cause again, I had this perception of what I thought a lawyer was, it uh, was supposed to be. And I wasn't sure that I fit into that mold. Like I saw a lot of those TV lawyers and then I saw, you know, you always meet some lawyers too, who are just insufferable. And so just a few. Um, and so, and I really thought like I'm not that person. And so I kept making my way through law school being like, can I do this? Should I do this? And every semester I'd be like, I got through that semester. Okay. I think I can keep going. By the time I graduated, was studying for the bar exam. Right after the school, one of my professors said they were looking for somebody to be a graduate fellow.

0:37:12 Thomas: I've met a few of them. Yeah. Yeah,

0:37:37 Heather: And she's like, do you know of anybody? And I, this is crazy. I said, I never do this. I suggested myself. I never did that. I was like, I don't know. I don't, I said, "What do you think about me?" And she was like, "Are you sure?" And I started working and thought it was just going to be a temporary job. And then it turned into this full -time career that I absolutely love. Really did think that I was going to go from law school and then go into practice because I had started working. Had done some employment. Done, I'd done some labor law. I was in law school. And then I'd also done some work with veterans, both things that I really loved, particularly working with veterans, because it's my personal opinion that a lot of people, especially politicians, say that they're going to help veterans and they do a lot of campaigning saying how, what a big champion they are for veterans and how very little do they actually do when it comes to actually helping them.

0:37:37 Thomas: Yeah, yeah. Yep. A hundred percent. Yeah, it's horrible. I mean, Matt talks about veterans that he's had to defend against getting deported. And you're like, why? What? Why would that ever be a thing that we would ever do to a vet? It's mind blowing.

0:38:28 Heather: Yeah. And Yes. And, uh, if memory serves, the United States government has promised, uh, citizenship, uh, to, uh, folks, uh, serving, and then they'll serve and the government will be like, "No, that's all right, you can go back." Right?

0:38:54 Thomas: Crazy.

0:38:55 Heather: I come from a long line of folks who've been in the military, and so I feel very strongly about this. You can see the rage rising in me right now. A client, I was able to get him benefits as a result of his service-connected injury. He didn't even know. He called about problem A. I said, "Hey, why don't you let me look at your medical records?" Took a look at his medical records. They were literally thousands of pages. It turns out we can't help you with problem A, but it looks like there's something else in your record. We got him something better than he was expecting because we had helped him. The VA sometimes is not as...

Over the years, they weren't as proactive or as helpful, I think, as they should be when it comes to helping the people who have given much to all of us. So I loved that. And I really did think that I was going to graduate law school and go and do that kind of work. But I started doing this. And then the more and more that I worked with students, the more I loved it.

Because again, it's my opinion that it's a massive privilege to be able to go into, to be in school, go to law school, to being able to do these things, because it takes a lot of sacrifice and it's really expensive to come to the law school and to take that time. So I started to see my job as an opportunity to kind of break down some of the barriers that are erected by the the institution and to make that more accessible.

There's a lot of examples. So you start law school and a lot of times they start to talk to you like you know a lot of stuff, right? Because the professors and the administration, they've been doing this for a long time. So they'll talk like you know everything. So my first day, they're like, you're going to take a class called torts. And I thought, "Oh, torts, that's great." Right. I'd worked at a French bakery after I graduated

0:38:59 Thomas: Yeah, absolutely. Yeah. Yeah.

0:40:32 Heather: From undergrad. I thought, well, I don't see an E in this torts. So probably not a cake. But I didn't actually know what a tort was. And so like, they just presumed that we would know these things. You know what I mean? And so I really thought like,

0:40:37 Thomas: Yeah. Yeah. Yeah. Yeah. Well, and it's an environment sometimes where it's like, you don't want to be the one to be like, ah, what the hell's a tort? Cause you're in that environment of like, everyone has to pretend they're the smartest person in the world and no one can do the thing of just being like, I don't know what this is.

0:41:01 Heather: That's, that's, I'm so glad you brought that up because that's such a critical part of what makes law school really hard is that for a lot of schools, for most law schools, the nature is actually really competitive because they're graded on a curve. And so a lot of people feel, for that reason, for the smarts, for the grades and all this other stuff, that they can't ask questions because if I do, I'll look dumb. My other classmates will think I'm an idiot.

And so people won't ask question not knowing that almost every single person in the room has the, the same question. So the greatest thing happened, I'll never forget this. So it was midterms. So when you're a first year law student, you're also known as a 1L. And so we had our first set of midterms. I think it was right before, right after ours, a bunch of us were standing near the elevator and, and we were all really nervous.

And somebody goes, I, I, I don't know who it was to this day, but somebody goes, I am so sick. I have had stress diarrhea for the last three days. And everyone just starts laughing, right?

0:41:58 Thomas: Wow.

0:41:58 Heather: Because everyone goes, oh my God, me too, me two, me three. I've been so sick, I've had so sick, everyone so sick and so stressed out. And that was the moment at which everything changed.

0:42:09 Thomas: Your diarrhea moment. Yeah.

0:42:11 Heather: Literally, diarrhea brought us all together. It was because it was in that moment, somebody was able to be vulnerable and the rest of us were too. And it was like, oh, we're all in the same boat.

0:42:13 Thomas: Yeah, yeah, yeah. Something that I've realized recently that can kind of be frustrating for me, personally, but I've always prided myself on being the person to be like, "Hey, what's that?" Sometimes people want to sound smart. So they want to not explain stuff, or they want to give people the feeling that they don't know something that they should. And I've always been the person that's, especially on my podcast, that, you know, my role on this podcast has been like, what is that? I don't know what that is.

What is that? And I have found that unfortunately, I think for a fair percentage of people, they think that means I'm dumb. Like, it's like if you're willing to be like, "Yeah, I don't know what that is. What is that thing?" And then just I would just go on in the show as though, oh yeah, I know what that thing is, but no one explained it. I would feel like I got to say I was smarter than I was, but does that serve the audience?

How does that do anything for anyone? For me to like, feel, oh yes, of course, well, I've looked this up real quick, yeah, I know that, obviously. It's like, no, I mean, like, that's what we're here for. Like, yeah, what is that? I don't know what what that is.

And there's definitely a strong bias I think people have to where if they hear you being the person to ask the question, they just think that means you don't know anything, and it's like, I don't think that's true.

0:43:26 Heather: It's not. And I always try to encourage my students. I said, listen, I want you to feel comfortable asking any question that you have in this class. There's no stupid questions. You need to be able to identify what you know and what you don't know in order to be successful, because you also have to be able to know when to ask for help. And I tell them that's such a critical part of being an adult, being a successful adult in the workplace, in your relationships, right? You have to be able to do that. And I also think too, I'll tell you the number of people that I really admire who when asked a question and they go, you know what? I'm not sure. I need to find out or I need to ask somebody. I would much rather have that answer than somebody just be a blowhard and be like, oh yeah, I know the answer to that question. And they just spew a bunch of stuff and you're just like that's no.

0:43:56 Thomas: Right. Yeah. My.

0:44:07 Thomas: Yeah, my, one of my biggest pet peeves is when people try to get out of a question I've asked by anything other than just answering it. It's not Like, I'm sorry, like, you're not gonna pull a trick where I think you answered the question, you didn't. Sorry, like, I'm gonna always call bullshit on that and tell people, like, you say you don't know, it's fine, like, we can, I'll even cut it out, like, you don't have to pretend you know something you don't. That's the magic of a show, is you can just cut that. But anyway, so did we get to where you ended up, your final position yet, or was that still kind of leading up to that, um

0:44:15 Heather: Yeah, Almost there. I had a couple of positions, and most of what I've been able to do is really, the goal always is academic success and working with students to make sure, like I was saying before, do they have the skills they need to be successful in law school? And there's a handful of what those are, and do, and be able to get through school and then pass a bar exam. Thing is that a lot of students unfortunately end up spending time with me because grades put them on academic probation or supervision. So they have to work with me because they're at risk of failing out of the law school.

0:45:04 Thomas: Yeah.

0:45:04 Heather: A lot of times people are really unhappy when they have to meet with me and take my classes with me. And so a lot of folks come to me and they're very, they are not in a good place. But I say that to say that that has shaped how I work with students, to be really mindful of where they're at, and also what their goals are, so that we can work to make sure that they get to where they want to be. Because the approach for me is like, how do I say this? Basically, other faculty at the law school, there can be a view of what I do is remedial or that, oh, she's too nice, or she hands them tissues or that kind of thing. I've literally had a colleague, bless her heart, say just like, oh well, they come into your office and they get hugs and tissues.

0:45:40 Thomas: Yeah. Yikes, yeah.

0:45:48 Heather: But I think the way that I approach it is this. We don't all come to law school with the same, or any place really, with the same level of skills and knowledge, right? In order for us to be successful, we have to be able to all get to the same place so that we can do that, right? And so that's where I feel like I come in, as I'm just like, all right, well, let's just get on the same page.

And I think a lot of, again, my experience taught me, that some of the barriers, part of my job is always how can I break those down in order to make law school accessible and doable, so students can find success in what it is that they're trying to do here. Because I don't think it should be as inaccessible as it is. Should law school be hard? Yeah, of course, it's going to be a tough thing.

Of course it should, because we're in a position where they're going, and a lot of responsibility, um, there's a difference between things that are hard because it's important for them to be hard, and things that aren't necessarily so, right? So my goal is always to kind of break down that stuff that's unnecessarily difficult, you know, for students, so

0:46:47 Thomas: That's excellent, and you don't have to co-sign this, but, uh, any profession could use a shake-up, uh, and it might be, there are times I get that, you know, we have the system where it's like, well, everyone deserves robust representation. And it's like, yeah, but why do we have firms that are so willing to represent the payday lender that's trying to charge someone who has no money 11 times in a day, which is a recent story that Matt covered. We've got people dying to do that and not enough people trying to represent the other side of that coin in places. And it's like, maybe if the culture changed a little bit in terms of law school, you know, more and more, maybe more of those people would be, I don't know, bringing more compassion to it rather than this like cutthroat, diehard, bullshit, you know, but you certainly don't have to co-sign that. But that's, that's how I feel.

0:47:39 Heather: Yeah, me too, yeah.

0:47:41 Thomas: Right. Well, Heather, it was amazing getting to learn more about you and what you do and kind of your inspiration and your goals. And now I think think we need to see how that translates to the classroom here. I think why don't we do a practice question? And I'm really excited to perhaps find a new light, a new way to look at the bar and maybe we'll make some more progress.

0:47:51 Heather: Great.

0:48:01 Heather: Sure.

0:48:02 Thomas: Your worst. First

0:48:04 Heather: All right. A, okay. A plaintiff was on a crowded BART train during commute hours on the way home. The BART line was undergoing significant renovations, resulting

0:48:11 Thomas: It As always is. Is it ever not? We'll just assume it is.

0:48:14 Heather: Let's say that's a yes. Resulting in frequent, sudden stops by the BART trains. The plaintiff was standing in the middle of one of the BART cars and holding onto a pole for stability, as defendant, also standing in the same BART car, was texting on his cell phone and not holding on to anything. BART train came to a sudden stop, causing the defendant to fall toward the plaintiff. The defendant lightly grabbed the plaintiff's arm to stop himself from falling completely over. The plaintiff did not like being touched by anyone, and She Was not injured by the defendant's conduct. The plaintiff subsequently brought an action for battery against the defendant.

0:48:31 Thomas: Typical man. No, Okay. Yeah. Okay, I feel like this dude just listened to a Joe Rogan that was like, holding on to the poles is for you. Okay, men don't do that stuff. And then, like, perfect timing, the car stops, he flies forward like an idiot. That's what I'm imagining was happening. Is They can just balance by themselves.

0:49:04 Heather: Men don't hold polls. A

0:49:10 Thomas: All right. Let's see. So will the plaintiff prevail?

0:49:14 Heather: A, no, because the plaintiff consented to the defendant's contact. B, no, because the plaintiff did not suffer any actual harm. C, yes, because the defendant failed to exercise reasonable care. And D, yes, because the defendant intentionally grabbed her arm and

0:49:33 Thomas: Interesting. Okay. All right, no help. You take this very seriously. I can never cheat. I have to do it on my own. I have to fail on my own, find my own way. So all this seems straightforward, but often the bar does that to you. Remember that battery is the touching part usually, and assault is often the thing that comes before that. So this seems like battery, that seems right to me, just the some sort of touching.

It's pretty clearly trying to make us think that this Joe Rogan listener was not exercising, I do like that language. Is that part of what matters for battery? So let's, although she was not injured, the plaintiff brought an action for battery. Okay, so what's going to matter specifically there? Do you need to be injured, or do you, hmm, what's gonna be the important thing?

Uh, so will she prevail on battery from, from someone kind of not, not being careful and pretty, like, foreseeable, I would say that this could happen, like a reasonable person might be able to understand this would happen. Uh, so no, because the plaintiff consented to the defendant's contact. Well, my gut answer. Oh, oh, oh.

0:50:43 Thomas: My gut answer was, well, obviously not. She clearly does not like being touched by anyone. However, holy crap, mid-sentence, I'm realizing this. This might be my answer just because just getting on a BART car, I believe you consent to being lightly touched by people. I think that may be where we're going here, but okay. So I'm keeping A alive. At first, I was like, first read it, I was like, "no way," but I'm now worried that might be it.

B, no, because the plaintiff did not suffer any actual harm. So that's another consideration. Ooh, that's one thing that the bar does that is so tricky for non-lawyers, because sometimes it's like two answers are both kind of right, but you got to figure out like which one's right first sort of, or like which one's right more. So are we in one of those cases? Let's see. So if the plaintiff did not suffer any actual harm, does that matter?

It could be one of those things where the harm will be more for damages, whereas just prevailing on an action for battery, it won't necessarily matter if there's harm. I thought it could be that. So by that logic, maybe you can still prevail, but then just not get damages. Okay. Keeping that in mind, this is tricky. I thought this was going to be straightforward, but, but actually could be trickier. Let's see. See, yes, because the defendant failed to exercise reasonable care.

So this is where it's going to get really tricky, because on the first reading, it's like, "oh, oh yeah, see, duh, he didn't, he wasn't reasonable, he should have been paying attention." But, but I, this could be one of those things where in certain situations you do consent to certain things just by kind of being there in that situation, in a way, I think.

And it is true that he wasn't exercising reasonable care, but that didn't really cause anything more than just what is a normal touch that you might experience just being on a crowded BART car. Defendant lightly grab the plaintiff's arm to stop himself from falling over completely. So, yeah, it's like lightly.

I mean, I just think, I think that's, so C is jumping out, but I actually don't, I don't think that's going to matter, because what ended up happening was not any more serious than what you normally might have in a Bark car. And D, yes, because the defendant intentionally grabbed her. Okay. Well, I guess he did intentionally do it. If you say like, well, he did it in order to stop the fall, is intent going to matter? Don't think it's D. I don't think intent is the key question there. I just don't, I think that you can negligently batter somebody and that way. So I, I think intent doesn't matter. So I've narrowed down one. I usually like to get down to two. So, consented to the defendant's contact, plaintiff did not suffer any actual harm. So I think I'm going to go with my theory that B is more about damages.

0:53:38 Thomas: Yeah, I think that B, you could still prevail, but just not get any damages. So I'm gonna go with that assumption for B. So I'm eliminating B and D. And I'm between A and C. So I'm at that key question kind of of like, is the reasonable care, was that what we're doing here? Are we trying to evaluate on that level?

Or what was not my first instinct, but my like very second instinct upon reading was, "ah, I think when you ride the BART train, you are consenting to things like this." It's not any more serious than like, yes, you know, you don't like being touched, okay, I get it, but like you're on a BART train, you're consenting to some amount of like people are going to brush past you, and lightly grab someone's arm, yeah, I think she's consenting to that by being on the BART.

Oh man, I hate it, but I, I think this is a trick, I think I've initially thought C, but I'm between A and C. I'm, I'm gonna go with A, because I think that's kind of like the nature of riding on a BART. So A is my final answer. Okay.

0:54:38 Thomas: So, Heather, how did I do? Take us through this question. Okay.

0:54:41 Heather: This is the question where we've got a plaintiff on a really busy Bar car on the subway, essentially, for those of you who are outside the Bay Area.

0:54:49 Thomas: Yeah, we should we should have clarified because this is a wide, even international audience. This is our one public transportation anywhere on the West Coast. That's like it is pretty much this and it doesn't work. It's like its no, it's not. It's not bad, but it is frequently. This is a realistic question. It is frequently undergoing renovations, as they are everywhere in America. And this is my only exposure for most of my life until I started traveling to any sort of public transit.

0:54:49 Heather: Yeah.

0:55:17 Heather: And we're lucky when it comes on time, when it's not dirty, and and then we've got this poor plaintiff getting on this crowded car, and then of course it's undergoing renovations, it stops frequently, it's really jerky, and then uh we've, you've got somebody just kind of standing in the middle. Always.

0:55:20 Thomas: Yep.

0:55:32 Thomas: And some asshole not paying attention, looking at Joe Rogan podcast while listening to it. He was actually looking at the cover art while listening to it, didn't, what he thought, he thought it wasn't manly to hold on to the pole. Predictably, he fell. I added all that. That's why he fell over.

0:55:50 Heather: Forbid he touches a pole.

0:55:51 Thomas: Exactly. Yeah, that's phallic. He can't do that. That, you He falls over, lightly grabs her arm.

0:55:55 Heather: She's not hurt, but she wants to sue. So is she going to win? That's what we're trying to figure out. If you don't mind, I'm actually going to back up a little bit.

0:56:02 Thomas: Oh, sure. Yeah, good.

0:56:03 Heather: One of the things I do with my students is I, cause there's so many topics, right? There's, this could be about pretty much anything in the world. And so when you're taking a test or when you're looking at these questions, we're trying to kind of narrow the scope, do that kind of mind palace thing, so to speak.

0:56:03 Thomas: Ooh, I like it. Okay. Right.

0:56:18 Heather: So how can we narrow the scope? So we know that questions like this, they fall into one of seven categories. And so we want to narrow it from a whole wide world down to one of the seven. I'll just give you the list of the seven to make our jobs a little bit easier. It tends to be something like civil procedure, contracts, criminal procedure or criminal law, those are tested together, constitutional law, real property, torts, or evidence.

0:56:33 Thomas: Yeah! Right.

0:56:42 Heather: And so that's typically what's tested in law school and on the bar exam. Andso I kind of like to start there by narrowing it.

0:56:46 Thomas: Sure. Would you like me? Me.

0:56:47 Heather: Yeah. Yeah. Would you like to take a, you're

0:56:49 Thomas: I, reads like a straight up torts question, but right. We're in tort, tort territory.

0:56:52 Heather: Exactly right. Yeah, we are. We're in that field of civil legal wrongs, not the tort with an E, which is those delicious cakes. Another thing we like to do too is we like to try to narrow it down even further. So what I like to ask is, because torts, encompasses it a lot of other subtopics, right?

0:57:04 Thomas: Love this. Hmm.

0:57:09 Heather: If you had to guess, what is the topic within torts that it's testing you on?

0:57:14 Thomas: Well, I don't know if I know this because I was familiar with those categories. I think I could have named most of them. I don't know if I know any subcategories. Can you give me like maybe that list or the kinds of things you mean?

0:57:24 Heather: So we've got within torts, typically it'll be things like intentional torts which tend to be like assaults, intentional infliction of emotional distress, that kind of thing.

0:57:31 Thomas: Okay. It's kind of a giveaway there, but yeah, sure.

0:57:33 Heather: Yeah. Negligence, strict liability. We've got some business torts. That sort of thing, yeah.

0:57:35 Thomas: Oh, yeah. Gotcha. Okay. So, yes, it does seem – this does seem, well, yes. The intent question is interesting. I mean, now I already, my brain combined it. Were you separating like intentional torts versus like negligence? Was that two different things? Oh yeah.

0:57:53 Heather: Yes. They are different.

0:57:54 Thomas: So we're kind of in a weird middle area here, but, but you did specifically say battery was one of those intentional ones. So I suppose we're in that territory, right? All in, we're in intentional tort land.

0:58:04 Heather: We are. Then from there, we're trying to figure out which intentional tort that we're going with. So a lot of times, the trick that I like to use is the middle of the question, because it puts us physically, this is going to sound a little bit silly, but hang with me. We're physically in the middle of the location of the question. And so that allows us to kind of either bump up to the fact pattern or bump down to the answer choices. And a lot of times that'll give us some good information or indication on how to further narrow the question.

0:58:21 Thomas: Okay.

0:58:31 Thomas: You said mind palace. You weren't lying. This is real Sherlock stuff. This

0:58:34 Heather: I wasn't kidding. I think you were like, I don't know. So if you take a peek to the last sentence right before the call of the question, it'll actually tell you what exactly is being tested.

0:58:36 Thomas: Yeah. Yeah. Yeah. No. And do you mean because the plaintiff subsequently brought an action for battery or will the Plaintiffs? Yeah. Okay, so yeah, it usually tells. I mean, sometimes I feel like it could be a trick where it's like they brought this action and they're going to fail because the right action was a different thing, but for the most part, if it's not a tricky thing, I guess we're talking battery.

0:58:51 Heather: Yes. Yeah, that's exactly it. The other thing to do, too, and so especially for law students and bar setters, what I always tell them to do is remind yourself of that rule for battery and then attack the question.

0:59:14 Thomas: Darn, I knew there was going to be a step where you had to go to law school. That's the only thing about this Mind Palace thing. But no, I could still apply a lot of that. And then I just have, and this is so fun. Honestly, I love doing this segment because instead of that, my computer is like, oh, file not found, 404. And I'm like, all right, then I will make it up. And so I have to try to make up from context clues or from my memory, maybe what those rules are. And that's the part that makes it a little harder for a person like like me, but that's okay. I still think makes the sense.

0:59:45 Heather: I also think what's really important is that this is something that my students often forget and that I like that you did is that you're using your common sense, right? Because a lot of times what happens in law school is that you get really removed from that common sense and that can actually be a detriment in a lot ways. So you did the right thing by hopping right to that when you were attacking the question.

1:00:03 Thomas: Cool. Yeah. It's all I have.

1:00:09 Heather: The answer choice here says D. It says yes, because the defendant intentionally grabbed her arm. So you, at the end of the day, did a great thing by going in between two answer choices. I always encourage folks to try to get it down to two, right? Because, yeah.

1:00:21 Thomas: Really? That's awesome. This was just a bit that I started doing like back in the day, because I hard. It was always hard. I always found that they were structured such that usually I could get to two pretty well, but then the difference between the two was often like specific law school knowledge that I didn't have, you know? And so like we started this joke where where it's like, well, I can always get it right, you know, at least like the second time. And then someone made it like a image, you thing where it was like Thomas's second choice firm or whatever. It was like, he'll get your answer within two guesses or something, you know? So that was the joke. And it's though, it did seem to fit the pattern. So I'm really, I'm pleased to learn that that's a real technique that we accidentally invented. So cool.

1:00:57 Heather: Yeah. Yeah, you're definitely on the right track, right, because that eliminates, bumps up your probability of getting the question right, right.

1:01:05 Thomas: Assuming you do it right. Yeah. Yeah. Or you've just gone to a zero when you eliminate the wrong one, which I do do from time to time.

1:01:12 Heather: Listen, it happens. My instinct was to also get rid of this answer choice, right? And tell me again why you wanted to get rid of it.

1:01:18 Thomas: Of D specifically? So D felt like the weakest one because I was worried because you said we were in intentional torts, but I felt like you could batter someone unintentionally. And so I didn't think that intent was going to be what mattered here, but yeah, now that I say that, did I mess that up?

1:01:19 Heather: Yeah.

1:01:36 Heather: No, so you are right to eliminate it, but right for the wrong reason. And this is not, it's not uncommon with multiple choice questions. But it also liked that you had a reason for each reason that you were choosing and eliminating answer choices. So you're also on the right track there. So I'll walk through why D is a wrong answer choice. So like you're right to eliminate it. But for the reason is this, it's a true statement, right? And you had kind of flagged this when you were talking about the questions earlier, um, which is that intentionally, uh, grabbing the arm, it's important right in the sense of that it's true, right? You also did a great job of identifying those facts from the fact pattern to explain your reasoning, right?

1:01:39 Thomas: Ah, yeah, yeah. At first I was like, oh no, the whole thing was an accident, but it's like, well, it does say that he did it kind of intentionally to stop himself from falling over. So it did feel true in that sense. All right, so it's the wrong kind of intent here. See.

1:02:19 Heather: And part of the rule for battery requires that, um, an intent to cause the harmful or offensive contact. Yeah.

1:02:29 Heather: And part of what's tricky here sometimes with these questions is that they can be true, this is part of why they're tricky. They can be true, but they're not the best answer.

1:02:37 Thomas: Exactly. I was trying to get out when I talked about A and B, but it turns out more applicable to D here.

1:02:43 Heather: Yeah. So that's part of what D is wrong. Does that help to explain?

1:02:46 Thomas: Okay. Absolutely. Yeah. So, it's not about intending to do the thing per se. It's about intends the harm, you're

1:02:53 Heather: Either the harmful or the offensive contact, because that portion, it can be satisfied in either way with this question.

1:02:55 Thomas: Okay, not sure I follow. What do you mean?

1:03:01 Heather: Yeah. So battery, we get to that by harmful or offensive contact. And like we are harming somebody, like we're injuring them in the way that you would expect, or we're causing offensive contact. And when we're talking about offensive contact, this is a good lawyer moment, right? Where we love a rule explanation, which just means it's something that's offensive to the reasonable person, right.

1:03:05 Thomas: Okay. Yeah, oh, and that's where the not liking being touched thing comes in, I take it. So, like, are we saying that's not entirely reasonable to not ever like being touched, or no, is

1:03:32 Heather: And you're right to bring this up. Well, this is that subjective versus objective standard, meaning in this case, um, it says the plaintiff did not like being touched by anyone. That means that she, the plaintiff, that she didn't like being touched, which means she subjectively didn't, and that doesn't meet that, this test, because when we're talking about something that's, uh, offensive to the reasonable person, it has to be objective. That means it's people like, like you and me, everybody in the audience, that we would kind of all agree, right?

1:03:45 Thomas: We love strangers touching us, that's

1:03:59 Heather: We, listen, put your hands on me in a crowded place.

1:04:00 Thomas: Yeah. No but I take your point, and the other thing is like the bar loves to give you kind of marginal stuff where you're like, well, it's kind of reasonable to be like, yeah, I don't want to be touched by anyone in this BART car, but, like, the law also has to draw a line somewhere kind of thing. Gotcha. Okay. Mm.

1:04:18 Heather: You're exactly right to point out that that's exactly what the bar does. It brings up this fact in particular to try to get the examinee to see that that's almost a red herring in the sense of that, although she doesn't like it, this doesn't really matter because it has to be something that most people would agree that they didn't like. That make sense?

1:04:29 Thomas: -hmm mm -hm gotcha Mm-hmm, so sort of by luck, good elimination on D, all right, what's next, right?

1:04:38 Heather: C, yes, because the defendant failed to exercise reasonable care. So you were talking a little bit about negligence and the reasonable care language. And I'm glad that you brought that up a little bit earlier, because I think this is a great point to discuss. When I'm talking to my students, I always say, listen, there's usually at least one answer choice you can eliminate right away from And this is one of those because a reasonable care, it, a negligence language, like negligence talks a lot about reasonable care and stuff that happens Like, when people do bad stuff kind of on accident, right?

1:04:55 Thomas: Mm -him oh and since we're in battery land, I was wrong about that, so since we're in battery-ville where we don't care about that. So you can't, are you saying you can negligently batter someone, or am I misunderstanding you? Okay, I don't know, know why I thought like, oh, I accidentally, you know, swung something around with a, you didn't know someone was there, but like I should have known someone was there. And so I hit them with it. Like, that's not battery.

1:05:13 Heather: Nope. You're correct, um

1:05:30 Thomas: It's just negligence. It doesn't. Oh, OK. Interesting.

1:05:29 Heather: Would be negligence, yeah it's either one or the other because you're either in the camp of intentional torts where you do a battery, or you're in the camp of like it was an accident in your negligence yeah

1:05:39 Thomas: OK, that makes a ton of sense. I don't think I knew that division. So it's not like you're negligently battering someone. It's just like, no, you've harmed someone by negligence and that's kind of like, OK, that makes sense.

1:05:49 Heather: Yeah and so that's, um, easy way that we eliminate this answer choice is because it's really talking about something that we're not trying to talk about right now, yeah

1:05:58 Thomas: So I do feel a little bit bad that so far I have gotten pretty lucky in some eliminations, but OK, still alive. I'm still alive with that answer.

1:06:07 Heather: And then now we're down to A and B, right?

1:06:08 Thomas: And it's going to be do you need to have caused harm? That would be B maybe. Or is it the consenting thing that I went with? OK,

1:06:14 Heather: So I really liked your discussion of the consent, so tell me why your brain went there with a consent, remind us exactly

1:06:20 Thomas: It was the kind of thing where due to like how a reasonable person, objectively speaking, just grabbing someone's arm to not fall is like really not a big deal in a BART, especially in a BART, like those things can be so crowded, like it struck me as, by going on BART, like there are certainly things we do in society where it's like, well, you're accepting some amount of risk here, you're accepting that kind of thing. So it seemed like, all right, if you're going in a crowded BART train, you're consenting to some amount of like, someone might brush by you or someone. So I thought that that made a lot of sense in explaining why this wouldn't necessarily be battery.

1:06:55 Heather: And that's a good way to think, right, especially when you're looking in conjunction with that other answer choice which, which is because the plaintiff didn't suffer any actual harm, right? And that's part of what makes these two tricky is because B is also true in the sense of it tells us that, right. Says, although she was not injured by the defendant's conduct, right. It tells Us right away that she didn't suffering any harm. So now we've got to kind through these two, what we see are basically true statements. And we've got to pick the one that is the best because that's Part of why these are hard, right is because they're not just which one are correct. It's the one that's the best out of the correct answer choices.

1:07:06 Thomas: Yeah. Right. Yeah.

1:07:28 Heather: Every best answer choice has to be correct based on the call of the question, and it has to be correct based on the facts. So it has to do both things, right? So when we know that we're talking about battery, and then it's got to hit a couple of different things. We've got to be talking about about battery and it's got to be correct based on the facts that we're looking at. It makes it slightly easier, but not always better. It was, we're trying to navigate. I do like that your mind went to the consent issue. The answer is a, so a is the best answer.

1:07:57 Thomas: Really? Oh, I was so worried that you were leading to B being the right answer. Oh, thank God. I was sweating it out over here.

1:08:03 Heather: Sorry.

1:08:04 Thomas: Oh, no, that's good. That's, I love that tension. I was genuinely worried.

1:08:04 Heather: No, think what's great is that you, because went right to a defense to the intentional torts, which is consent. Consent can either be expressed or implied, right? And you went straight to the point, right into a great explanation, and just saying you kind of impliedly consent as you get on the bar train, because there's going to be a lot of people, there's gonna be a little bumping around. We kind of got to be used to that sort of thing happening.

1:08:28 Thomas: Right. Oh, and my reasoning for B. Oh, did that hold up? Because my reasoning for B was like, well, you could prevail, but not get damages. Or was that another lucky thing? It wasn't actually true.

1:08:38 Heather: You were right to eliminate it again, but for the wrong reason.

1:08:40 Thomas: Damn, I really got lucky on this one. How could I have gotten it right and feel so bad, Heather? I feel stupider than ever and I'm one for one on your test.

1:08:52 Heather: No, no, we don't want you to feel stupid. Um, Well,

1:08:54 Thomas: That's fine. Entirely used to feeling stupid. Don't worry about it. Nothing new. Not a big deal.

1:08:58 Heather: Here of the reason why this is not the best answer is because, although it's true, challenge here is that, uh, this is where it gets a little bit in the weeds, so stick with me. Um, there has to be harmful or offensive contact to the plaintiff's person, so, um, there's an "or" in there, it makes it a little bit more challenging. Challenging.

1:09:06 Thomas: Sure. Right, Right. So the, oh, okay. So the idea is it could have been offensive contact. Ah, okay, that

1:09:19 Heather: Yeah. Yeah, the bar exam likes answers that are more definitive than that. And what we do know is that A is the better answer, because it's more definitive by stepping on that train, right? You kind of know what you're going to get, and you're agreeing to get bumped around a little bit. It's kind of like a social contract, right, we know what's going to happen once we step on the train.

1:09:32 Thomas: Mm hmm. Mm-hmm, hmm, yeah. And so B not the more right answer because it could have been. You could have said, well, it you was offensive contact or something like have been a way that B doesn't quite work. And OK, well. All right. I lucked into it a little bit, let's be honest, or a lot of it. But hey, still out there one for one. They don't ask you how you got it right when you take the bar. You just get a score, I assume. I actually I don't know how that works.

1:10:03 Heather: Well, I'll tell you, do you know that when you get your results, you never ever know your score in California?

1:10:08 Thomas: Have heard that. I I have heard that. It seems weird, but there you go. Why? They don't want to make anyone feel bad or something?

1:10:09 Heather: Yeah. I guess the idea is that it doesn't matter and that you're just a lawyer.

1:10:17 Thomas: Yeah, there you go. I like it. I remember at some point, I think there was a cover movies on here for fun sometimes, and there's one where it's like, top score on the bar, and then it's not that doesn't exist in most places, I guess. You don't ever know that, right?

1:10:33 Heather: Yeah, unless in Texas. And basically will post a and like a bio of the person who gets the top score on there. Yeah?

1:10:40 Thomas: Oh, wow. Okay. I don't mind that if it's top, like, I'm glad they don't just like make everyone else. Like if it was like, all right, we're honoring one person rather than like, hey, look at all these losers who didn't pass. We're going to put them on billboards. That's not so bad. All right. But but, that's funny. Yeah. All right. Well, that was a ton of fun and I can't believe I got it right. Uh, what a good explanation that was. Thank you so much. I learned a ton on that question. Uh,

1:11:03 Heather: You're welcome. I hope that was helpful.

1:11:04 Thomas: Right, well, Heather, uh, was an absolute pleasure. I really loved learning more from you and I that angle of someone who's have has so much experience in and trying to help people learn what can be a very inaccessible thing sometimes. That was a real pleasure. So thank you so much for joining us today. And hey, failed my way into getting a question right. And I'm glad that you explained all the reasons that I kind of lucky in getting it right, because then I can use that for later.

1:11:28 Heather: Thank you so much for having me. I really appreciate it.

1:11:30 Thomas: Hope to hear from you again very soon.

1:11:34 Thomas: Now there's only one thing left to do, and that is patron shout outs. This time we'll resume catching up on new patrons on patreon.com/law. I went back to when I took back over in February and I'm catching up. I'm going to catch up until we're current and then it'll be probably a lot easier to keep up.

All right, so thank you to Joshua, Stephen Wayne Pence Jr., Kat Weisgrim, Anonymous, Stephanie Rosen, Churro and Enchilada, David Barnes, Mullet with Buffalo Wings, that's a funny one, Bullet with Butterfly Wings I would think would be the reference and that's fantastic. Fantastic. Paul Barkley, Zachary N. Kettering, Matt Whiteside, Grant Caponi, Lehman, David O 'Brien, Steve Is the Word is the Word That You Heard, Daniel Knopfsinger, Noah Seuss, Chris Dahl, Chief Queef, okay, Ramon, Hair Braider, Reva, Katz Nelson, Lindsay, Lindsay, I can't wait to hear all the details, Robot Cans, Nettie Carey, Sean Pidgeon, Sean Byrne, and the Scent FROM Disneyland podcast, it's done by a good friend of mine. So if you're Disney fan, check Out the Sent From Disneyland Podcast and that'll do it. Thank you so much for listening.

And like I said, we'll see you for a T3B episode on Wednesday. Of course, we've got the regular Monday episode, but T3BE will resume back up on And that'll include the outs. And we'll be, you to that, I guess. But it's worth it. You then.

1:13:03 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

1:13:20 Thomas: But I cannot do any of the fucking. Oh, whoops. I don't curse on the show. I