OA Bar Prep With Heather! T3BE34

Transcript

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

0:00:47 Thomas: And welcome to Opening Arguments. This is Thomas Takes the Bar Exam, or T3BE with Heather, or both. Thomas, and this week we'll be getting the answer to question 33, as well as a brand spanking new question number 34. We get to it, I want to remind people that over on Gavel Gavel, so patreon.com/gavelpod, we've got Michael Cohen. It is Michael Cohen day. Finally, Eli Bosnick reading Michael Cohen, a ton of fun. And in my usual end of the month flurry, we're also going to get some Alec Baldwin stuff going on Gavel Gavel. Matt to dismiss hearing, and wow, that was very, very interesting. I'll have that up on Gavel Gavel as well, but here we are on Opening Arguments and we'd better get to the answer to question 33 right after this break. All Heather, how are you doing today? Oh, uh, or involuntarily, we'll okay, we had a fun one, I'm excited for the uh, the answer to question 33 about how to be a good husband. Been they were

0:01:39 Heather: Great. I haven't killed anybody yet. Well, that's what we're here to find out.

0:01:54 Heather: Yeah, this one was about our friend Tim and his diabetic wife and his amazing tickets to the World Cup and how he decided that even though his wife was really ill and unable to get out of bed that he was just gonna like hang out at the World Cop.

0:02:07 Thomas: Good, they were incredible tickets, they were incredible tickets. Don't fight the question, Heather, the tickets were incredible.

0:02:18 Heather: Were. They level of homicide, if any, that Tim committed, so that's what we're at this week. So, know, um, to me it sounds a little bit obvious, but I'm just going to ask you, which topic, uh, I always feel like this bears saying out loud, which topic do we think that this is testing on? Well, I Mean, listen, yeah.

0:02:32 Thomas: Family law? Criminal law? I guess I would say yeah.

0:02:38 Heather: Um, I always like to say that, um, crimes in the question was which of the following in crimes is the tip off, maybe, and

0:02:44 Thomas: That would, that would be probably the tip-off, yeah.

0:02:46 Heather: We know this is also a homicide question because

0:02:49 Thomas: Which Of the following constitutional violations did Tim commit? No, it's not that. Okay, yeah.

0:02:49 Heather: Exactly. We've got a dead body, so we're in the homicide category, so I think this is a good way to work through, so we'll just start kind of at the top here and um, one of the first crimes here is murder, and started off right away by saying, uh, one of ways will you start talking about intent, tent, right away. And you said that Tim didn't seem to have any intent to kill his wife. Is my memory, is it serving me correctly?

0:03:16 Thomas: Mean, again, again, in the spirit of not fighting the question, like as far as we're all concerned, just like socially, this is murder. But by the letter of the law, I think the question would need to tell me that he meant to kill her, meant her to die in some way, or patch the scheme or something.

0:03:31 Heather: Exactly it. Yeah. Intent to kill means you intend to kill someone and that you do. Really It's straightforward. And just like you said, there's nothing in the fact pattern to suggest that Tim intended to kill. The way that murder is treated on the bar exam is that it's under the common law, it's the unlawful killing with with malice aforethought.

0:03:35 Thomas: Yeah.

0:03:47 Thomas: And when he bought those incredible tickets, he knew he was like, this Is going to kill my wife.

0:03:54 Heather: And He was planning. And malice tends to be satisfied in one of four ways. And one of the ways is intent to kill. And then the other three ways are intent to commit serious bodily injury, depraved heart murder, or the felony murder rule. We can walk through each of these. So, we already talked about intent And we'll talk about intent to commit serious bodily injury. And it is what you think it is, right? If you intend to seriously injure someone, you do seriously injur someone and then death results. That's exactly what it is. So a really good example of that is, let's say you get into a bar fight, you plan to beat the hell out of somebody, you dude, and then they die. That's where we're at. Here, we're not really in that situation, right? Like, as you mentioned, there was no intent on Tim's part. So we don't need that here either. Then that leaves us with depraved heart and felony murder.

0:04:21 Thomas: Yeah. Mm hmm. The way you said it earlier depraved heart murder it was like you're murdering their heart you're doing like the Five Point Palm Exploding Heart Technique on them. That's deprave heart murder. Everyone a weird part of the law that doesn't get used often, but it's there for a reason. Oh,

0:04:51 Heather: You can't see me, but that's exactly the hand motion that I'm doing right now.

0:04:59 Heather: Well, the definition, well, you're gonna love this definition. It's the reckless indifference to an unjustifiably high risk to human life, Life evidencing an abandoned and malignant heart. We've

0:05:10 Thomas: Boy. Yeah, that gives me, that gives me worries, because this certainly is, uh, first thing you said, you, was it indifference to something human? I already forget. Yeah.

0:05:19 Heather: Reckless indifference to an unjustifiably high risk to human life.

0:05:23 Thomas: I mean, that, I, that sounds like something going on here, sort of. Did

0:05:27 Heather: The way that this comes up in the bar is kind of the same over and over again. End. So a good see someone gets up on top an over pass and they have a big cement block lock. Then they drop it on a car and then that kills somebody. Way that this comes up is in a setting in which there's a lot of people around and somebody's doing something.

0:05:35 Thomas: Right. Yeah, yeah.

0:05:46 Thomas: You're waving your sword around in a crowd, it's okay. I think I remember this, it's, you wouldn't say like, ah, ah, you meant to kill that person in specific, which is like kind of the other version of specific kind of intent, but it's so depraved and so reckless that it's like rises to the level of murder. Is that it?

0:05:50 Heather: Exactly.

0:06:07 Heather: That's exactly it. Really like the sword in the crowd idea. I want to borrow that from the set. Okay, can I borrow that?

0:06:12 Thomas: I don't know. I think I got on the kill Bill thing after the exploding heart technique. So the samurai sword is what I'm envisioning.

0:06:19 Heather: With Tim here, uh, just him and his wife, that takes us out of the depraved heart, right? We're not, he's, he just, we're in that kind of scenario, right?

0:06:24 Thomas: Yeah. He's not doing anything. Like it's one thing if it was like, Like, oh, he's, smashing you all the vials of liquids in the house. And it's like, he doesn't specifically try to get rid of her insulin, but he does like, maybe then we'd be talking, but it's cause like he, he hasn't done anything actively. So it's, I think it's hard to say that he's would be murdering here.

0:06:27 Heather: Yeah.

0:06:46 Heather: That's exactly it. Um, then we'll go through our very last definition of, um, part of the rule, and that's the felony murder rule. It's remember this one well.

0:06:53 Thomas: Right. Yeah. It's like you're getting someone for murder because they were part of a conspiracy where someone else murdered someone, even

0:06:59 Heather: Those kind of the felony murderer, those types of questions come up, um, there's a couple of people involved, usually there's a felony, and then sometimes like someone else will get hit and that sort of thing. Those are like the more challenging, complicated questions. If I can simplify it, hopefully, this is when a death occurs in the commission of an inherently dangerous felony. And luckily for the bar exam, there's only a couple. If you ever hear this, they're the BARK felonies, B-A-R-K. The way to remember it. So you'll hear this a lot of times too, there's a lot of mnemonics that like lawyers and law students use, and bark is the one that for the felony murder rule. Um, it's burglary, arson, rape, robbery, and kidnapping. So

0:07:11 Thomas: Oh, OK. OK. It's different than the being part of it, because I associate the felony murder rule with like the getaway driver for the, you conspiracy thingy, is but that a different thing?

0:07:46 Heather: Sometimes there'll be questions, some of the questions that are more, uh, can have like a high degree of difficulty, culty, will be like, oh, let's say there is a robbery in progress, the getaway driver is involved and he shoots somebody, they'll be like, oh, or something like that? So

0:08:01 Thomas: The example that I remember is like, this all guy agrees to be the getaway driver for a bank robbery. All he's doing is driving, the people go in there. Wouldn't you know it, the bank didn't want to be robbed. And so there's a shootout, and the people, instead of the guys inside shoot somebody, they die. They come out and he get drives the getaway vehicle. My understanding is that that getaway driver can be charged with murder under the felony murder rule, is how I learned it.

0:08:27 Heather: Yeah, exactly. Ask, sometimes like under certain jurisdictions, it'll be, be like, yeah, exactly, can he be charged in

0:08:33 Thomas: Right, so that might be jurisdiction specific, whereas we're, when we're doing this bar exam, we're always talking about like what common law or whatever, like the multi-state kind of thing, right?

0:08:41 Heather: Sometimes what they'll do is if they want to change it, they'll be like, oh, in this jurisdiction, for get first degree murder, is this, or under this restriction, this is the role, and they'll do a little bit of modifying to spice it up.

0:08:46 Thomas: Yeah, okay. But the, the bark thing, to get back to that, that's when, forget all the conspiracy or you're in a group of people thing for now, that's when you're doing something real bad and someone dies in the process of that, even sounds like, again, other two parts are ways that you're guilty of murder even if you didn't set to, like, I'm gonna murder this person, like, was in the progress of doing something horrible, so you're still guilty of murder. Okay.

0:09:14 Heather: Yes, and you can look at the fact pattern and say, we don't have any of the bark felonies. And so we t meet the this felony murder rule because we don t have any of the bark felonys present. So it's kind of an easy, ah, the felony murder rule isn't implicated here.

0:09:15 Thomas: Mm. -hmm. Unless the K is for kicking a soccer, but no, that doesn't even make sense.

0:09:29 Heather: Close, part of also how we know that murder is not our answer, and we can eliminate A. But you did a great job of going kind of right to the intent, because intent is such a big part of murder when

0:09:40 Thomas: Is not the answer, everybody, still

0:09:42 Heather: A is out. And then that brings us to voluntary manslaughter. Voluntary manslaughter, it's an intentional murder that can be mitigated down to voluntary manslaught, just meaning that the charge is reduced. So oftentimes we're looking at an intentional killing under which there are certain circumstances in which the law boss says, you know what? That's okay. We're going to reduce the charges. The first thing we ask is, do we think that Tim intended to murder his wife?

0:10:08 Thomas: No, so you, oh, okay, so you still need intent for voluntary manslaughter, you're saying, okay. That's what the voluntary part means, gotcha.

0:10:09 Heather: Yeah, exactly. Exactly. And like you said, the answer is no. So B is out. I'll give you another exam tip here. On the bar exam, voluntary manslaughter looks the same almost every single time. I'll give you the fact pattern. Spouse or partner comes home to find their other spouse or our partner in bed with someone else.

0:10:33 Thomas: Had better tickets to the World Cup, no.

0:10:35 Heather: Much tickets. Non -cheating partner is so surprised that they shoot and kill either one or both people who are sleeping together. Obviously intent to kill in that instance, right? Because you see the person coming and they're so surprised they intend to kill one or two people. And they're like, both of the people that are together, right. Trying to do the PC version of the story.

0:10:55 Thomas: Know. Yeah, and this is, I feel like this part of our law is so outdated, it's, you committed a double homicide and the law is like, yeah, but, like, you know, for some reason, in the throes of passion, yeah.

0:10:55 Heather: Um, and it really does have this like, well, you were in the throes of passion and you hadn't, and you had no time to cool down. Uh, and so it's okay. Like reduced your charge essentially. Um, because you were so worked up, and so that's the scenario that you'll see time and time again on the bar exam, that really is there to get you to think about voluntary manslaughter. Yeah. So that's when I see voluntary manslaught, I, that's normally what I'm thinking of.

0:11:11 Thomas: Yeah. So so for voluntary manslaughter, it's a bit of a niche thing, it seems like, and I should think of murder but with like slight, that the law is like gonna be like, all right, not quite murder, okay, well, that's not this. Second chance bar exam alive, alive. And well.

0:11:39 Heather: No, we Yeah, exactly. So now we're down to C and D, and that's exactly where you ended up too, as you were working through the questions. You asked the most important question, which was whether the relationship between Tim and his wife, whether that mattered and whether that created a duty So you really hit the nail on the head.

0:12:01 Thomas: Oh, did I use the right words? Was that right?

0:12:03 Heather: Did. Yeah, exactly. Yeah. I was like, yes. Did it create a legal duty essentially to force him to have to do something?

0:12:03 Thomas: Oh, cool. Yeah. I'm a little worried here.

0:12:13 Heather: Identified by if it was a child, likely yes. Yes. So the question then becomes, is the parent -child relationship, which creates a legal duty oftentimes, is that similar or dissimilar to that of a relationship between spouses? Know what you said the answer was, but if you had to think about it again, do we think the legal duty between having to take care of a child, do we think having to care of our do you think that's similar? Are we required, let's say, when we get married to have to take care of that person?

0:12:41 Thomas: Let's see. To have and to hold. In sickness and health. Yeah, doesn't say you have to prevent That sickness, though. It just says, yeah, exactly.

0:12:43 Heather: In Sickness And health Since We're both Married People Right But what if they're already sick? I'll

0:12:54 Thomas: I don't think this should be the same as a parent -child relationship. I think that like that would be very messy and complicated. It's not the same. I don't know if there's gonna be some like other level of thing that it is, but I think it would be weird to be like, all right, when we get married, who is the slightly more vulnerable person, all right, you're responsible for me in this way, like if I can't lift something you I don't know, I just think like to be criminally liable for things like that, I I don't know, that seems weird to me. I'm not sure.

0:13:25 Heather: Put it this way, so you did a good job of saying of, um, focusing on that aspect by also identifying, listen, he didn't do anything actively, like he didn't cause Right, the problem, but the thing is, here he doesn't have to. And I'll tell you why. Because what we know about involuntary manslaughter is that it's an unintentional killing that can happen in one of two ways. The first way is misdemeanor manslaughter. It's a killing that is committed during a misd demeanor, or during the commission of an unenumerated felony. Said another way, basically, questions like this will again, sometimes what they'll do is they'll say, hey, in this jurisdiction, this is what a misdeemeanor is. Or in this jurisdiction, this is what constitutes a felony. Then you'll kind of have an idea, oh, if this misdemeanor is committed, or if this felony is committed, in a death results, then we're in misdemyanor manslaughter, we're working in that involuntary manslaughter

0:13:33 Thomas: I'm

0:14:14 Heather: Scenario.

0:14:15 Thomas: You Saying those are the same thing, like involuntary manslaughter and misdemeanor manslaughter

0:14:19 Heather: Essentially, Yeah, they way to get to involuntary manslaughter is through criminal negligence. It's when there's a deviation from the standard of care of a reasonable person and then death results.

0:14:20 Thomas: Okay.

0:14:30 Thomas: Were incredible tickets, though.

0:14:31 Heather: Listen

0:14:31 Thomas: Like, you have to admit that's The Thing It Was the World Cup It's

0:14:35 Heather: And It was The world Cup, the World club Listen, it doesn't happen every year.

0:14:38 Thomas: Not the Copa whatever thing that happened in this country that barely anyone cared about. I think that just happened. I already forget. What it is.

0:14:44 Heather: Did you say Barely Anybody, so am I barely anyone? No.

0:14:46 Thomas: Barely any of us dumb Americans cared about it.

0:14:48 Heather: No.

0:14:48 Thomas: You know, the more enlightened folk for like, I definitely cared about the Copa, whatever this was.

0:14:51 Heather: I So excited, anyway, that's a holder. That's exactly it, right? You said before, too, you also made a really great point by saying, generally speaking, when there's a stranger, we don't owe them a duty of care, right? So if a stranger Comes up to hey, if I don't get that medication, I'm going to die. Sorry. But the law tells us that we don't have any obligation there, except when the law creates a legal duty. The law creates illegal duty when have a child, child, and when we have a spouse. Yeah.

0:15:05 Thomas: Yeah. Oh man, I've never heard of this. That's excellent. I, wow. Okay. All right. Good. You know what? Good. I was always on the side of prosecuting this psychopath. I just want everybody to know that. I just thought, you know, maybe the maybe the law was going to be weird here. I thought it was trying to I thought I was really trying to tug at the heartstrings and then, you know, that way get you to want him to be guilty. And then it's like, well, no, sorry, there's no actual crime here. But fortunately for my wife, I was wrong.

0:15:25 Heather: Yeah. She Doesn't listen, does she, this

0:15:55 Thomas: Of course, she no, actually, I think with all the podcasts, I don't think she can keep up with O .A. think too busy with all the other ones, so maybe she doesn't. We'll see. Hey, hon, let me know if you hear this.

0:16:03 Heather: Will Fly Under The Radar Knock Twice, just Kidding. Yeah, so a spouse will have a legal duty to aid the other when one requires aid Is an imperil, yeah, so

0:16:06 Thomas: Yeah. Wow. Never heard of this. That is so interesting. I feel like I've heard a lot of murder questions over my years doing this. And I don't think I've ever heard of the like special little duty. And, and in fairness, like I kind of identified all that. And I just thought like, I think for me, it's like, OK, legally speaking, we're grown ass adults here. Like I know is I don't look. Tim is an asshole and deserves for this in some way. I thought like. All right. But also we're adults here, you was worried that like this fact pattern is very much like, yes, this guy should rot in prison. And I could imagine others that would be a little more complex if we had an extra duty to our spouse. But I I was wrong, turns you out we do. And so I apparently the law is going to require me to help my wife not die, which is good.

0:17:03 Thomas: Wait, is she guilty of murder for allowing myself to podcast myself to death? Think she is. I think if I die podcasting and they do an autopsy and they're like, there's just microphones phones in here, like blood microphone level is that's what did it. I think that they'll be like, Lydia, I'm sorry, you are guilty of enabling this, this had a duty, you should have stopped him.

0:17:01 Heather: Mean, ideally, and Then involuntary manslaughter, the Answer choice is C, uh, manslaughter, because our our friend Tim, uh, had a legal duty to aid his spouse, and he acted unreasonably when he was unwilling to miss the match, so answer choice C is the correct answer.

0:17:26 Thomas: Yeah.

0:17:41 Thomas: What you're telling me is there's no level of ticket that would be enough for this not to be involuntary manslaughter. That's what I can't get over.

0:17:47 Heather: Not that I'm aware of.

0:17:47 Thomas: Okay. Right, that's, that's how the law works, everyone. So I got it wrong, I, uh, my second chance fortunately got it right. My second chances a better husband than I, go to to the second Thomas, the second chance bar firm, bar exam test taking firm, if you'd like a better husband. But I love this one. This was, this was very close on C or D, and I went the wrong way, but I liked this cause it was tough, and it was, I learned something very new.

I just never had come across that duty. And thanks, so going to find out who is a much better partner than I am, apparently. Right, right. So much participation this week, it really seems to be getting more and more each week, which I love. Thank you guys so much for participating and playing the game. Got some good answers this week to shout out.

First off, on reddit.com/r/openargs I'm actually going to give the shout out to an incorrect answer, but I think I have good reason, because it might be the medically correct answer. So JXB1978 says, "As the husband of a diabetic, I dispute the premise of this question. Slipping into a coma is much more likely to be caused by low blood sugar, which an insulin injection would only make worse.

It sounds like this woman needed some sugary food slash drink to raise her blood sugar. Having too high blood sugar is not good either, but I'm informed that you'd need to have very high levels for long, long periods of time before any adverse impact was evident. The husband was right to be skeptical about this. No court in the land would convict him. Answer D." So, like I said, incorrect legal answer, because, of course, the answer was C. I do appreciate the kind of medical correction.

I'm actually surprised the bar exam would have messed that up. That's interesting. I feel like they usually, you like to get stuff like that right, but who knows. Oh, also, I guess I don't know who wrote this question. Maybe the bar examination prep company was lazy. Anyway, but that's interesting to know. So slipping into a coma, much more likely to be caused by low blood sugar.

And then you just, that's the classic thing you see in a lot of movies and shows, like give that person a candy bar or whatever, just get that blood sugar higher. That's interesting. Well, JXB1978, you were wrong, but also right, so you're the winner on Reddit. And I have a great winner on patreon.com/law, of participation makes it so much fun, it's a tough field of competition, but this week's winner is No Country For Old Ben.

Say, fun fact, this is my first answer to a T3BE and my last episode of T3VE before I actually take the bar exam next week. All right, well, good luck. This answer is, well, it's possible you've already taken it, I don't know when you are sitting, but I really hope you're having a good test there. No Country For Old Ben, but anyway, they continue, continue. You don't have a duty to help a diabetic stranger, but you can have a legal duty to help certain people.

The people at the pool where your lifeguard, your home care patient, your children, and yes, your spouse. His inaction caused her death, so he's criminally liable for homicide if he satisfies the mens rea element. Voluntary manslaughter requires negligence, which is gross deviation from the standard of conduct that a law -abiding person would observe in the actor's situation. I think blowing off your dying wife so you can watch the World Cup is textbook criminal negligence, so I'm going to say C. Congrats, No Country For Old Ben, you nailed it. It. I think one other reason I picked your answer, in addition to just wanting to give you a shout out for taking the bar, is not many people grabbed onto that key thing in my mind, which was, do you have that duty to your spouse or not?

And as heartless as I sounded, I'm sure I didn't actually know that you had that extra legal duty to yourself, because it is true that if this was your friend, like literally, if this was your friend who called you in this exact same situation, situation, you would not be liable. And I think that's the key to get at. So I'm glad you highlighted that, because a lot of people just talked about like, oh, yeah, you have a duty and didn't talk about why. AndI think that was important, so well done. Right, so after this break, let's get to question 34.

0:21:37 Thomas: Well, not going to lie. I feel a little bit dumb for that one. I felt like I should have had it. I could have, should have, had it, but it's There is always is more bar exams. So in that spirit, let's have question 34.

0:21:49 Heather: Right, here we go. Famous podcast host and comedian Thomas, it is you, was

0:21:54 Thomas: That's me. Well, I should be able to get this one then. It sounds like it's about my life.

0:21:59 Heather: Asked by talk show host Jimmy Fallon what type of soda he drank during an interview on The Tonight Show. Responded with, quote, quote, I only drink Columbia Cola because it's the best refreshing soft drink, end quote.

0:22:04 Thomas: Don't

0:22:11 Heather: Week later, Columbia Cola began an international ad campaign on social media. Featured a picture of Thomas holding a can of Columbia Cola in one hand and his quote from the show. Cola did not receive Thomas's permission to use his statement from the interview or his picture. Thomas prevail in a lawsuit against Columbia Cola for using his statement and picture.

0:22:11 Thomas: Oh, I love this. This is so different from like most questions we bad. I love this. Okay.

0:22:34 Heather: A: Yes, because Thomas has been defamed. B, yes, because Thomas's likeness was appropriated for a commercial purpose without his consent. C, no, because the ad accurately reflects what Thomas said publicly before a large audience. Or D, no, because Thompson's appearance on TV created an implied consent to reasonable use of anything he might say.

0:22:57 Thomas: Holy moly. Okay, I'm remembering last question that I got wrong. I actually was remembering the right instinct and then didn't choose it, and so I can't wait to do the same thing. So, like, I feel like this would happen more often if this was something that was cool. Like, I don't, I feels like there's been plenty of times where celebrities have made statements about products that I don't think get used in ads.

Now, I don't know what the reason for that is a hundred percent, but like my, what's jumping out to me is answer B right away, because it's sure, sure. I, as I very clearly remember on Jimmy Fallon, I made that statement about Columbia Cola, but I think it's a little bit bit different to, it would be one thing to do like a fair use, but I think it's a little bit different to like sell a commercial product using someone's likeness.

Like that feels like you're not allowed to do that. So that's my instinct. So B is my strong instinct, but let's go through it. Okay, almost recite it by memory. I don't need to read your questions. So what I did was I went on Jimmy Fallon and I, you said I only drink Columbia be a cola, which is weird. I don't drink soda, but yeah, occasional diet Dr. Pepper, but no, oh now they're going to use that. They're going to use, actually they can, it's fine.

If you want to use that for an ad, Dr. Pepper, I only drink occasionally diet Dr. Pepper occasionally, but soda is very bad for you. So don't drink it. It's good for you, and so go on, and I'm holding a can. I don't know where they got that picture. I guess they've made it, and will I prevail in my lawsuit against Columbia Cola for using my picture and my statement?

Yes because I've been defamed, well how bad is Columbia Cola, is Colombia Cola like the cola of pedophiles or something, I'm not seeing why, I don't think it's that I'm defamed, I mean that would be, that wouldbe a twist, I don't think it's that, that would be a huge twist, I'm gonna say no on a B, yes because Thomas's likeness was appropriated for a commercial purpose without his consent. Yes, I mean, that seems very strong to me. However, I think C seems close.

So C will be the attractive distractor. It'll be probably my second choice because C is no, because the ad accurately reflects what Thomas said publicly before a large audience. I'm trying to think, has that happened? Do they get to you?

I think of like a TV, oh wait it's social media, I don't know if that matters, but if it's an image I'm trying to think if I've ever come across this, you know it's a very real situation because you would think if you know if Jay -Z is at a ball game holding a soda and then you think they could just use it, but they definitely don't, but is it different, it's one thing to use an image.

You snap an image of someone using a product, but I feel like that, you people have to use products. I feel like you'd get celebrities using stuff all the time. You just find a picture and post it. And I don't see that. So like, intuitively, you, I feel like this is not okay to do.

However, it a little different if you've, if you made a statement, like if you'd gone on a show, like you've talked to a broad audience, a large audience and said, I, you just did an ad for them essentially, then D, no, because Thomas's appearance on TV created an implied consent, consent to reasonable use of anything he might say. And that can't be right. I think A and D are clearly not. I'm going to go no to A and B. If either of those is right, I am very confused. So is it B, because Thomas's likeness was appropriated for a commercial purpose without his consent, or C, no, because the ad accurately reflects what Thomas said publicly before a large audience? So easy to say, oh, just trust your first instinct. But also, sometimes that's, it's wrong. Sometimes that first instinct is wrong. Do you know which time it's going to be? So it's just a picture. Don't, again, I don't know what the picture's from.

I'm not sure if that matters, but it's me holding a can of the cola and it's just a quote from the show. Hmm, I, it's social media, you share memes all the time, there's just an image of someone in a quote that was what they said from something, that, ah man, that is, but is that the kind of thing that it's so ubiquitous, technically you're not allowed to do it, but so ubiquitious that nobody does anything about it, I don't know, that might talk me into C because it, well, I was going to say forget that it's a commercial thing, but I'm maybe that I'm not sure if you can, because I do think from what limited knowledge I have or memory of talking about any of this, a commercial purpose is a different thing.

I think that is important, like that, that doesn't, like it has, it's a different set of like freedom of speech rules, I think, or whatever. If you're just putting a picture and just quoting what was said on Jimmy Fallon, okay, but what about this? Let's say, let's did that, there's, and, no way to know what was in my mind when I didthat.

But, uh, let's sayI did that and actually either I was joking or like the next week I learned that Columbia Cola is the official cola of January 6th protesters, investors, and I'm like, well, never mind, it true that like not giving me the chance to like changed my mind or have consented to continuing to use my image to sell this cola could be an issue with that, just like theoretically is that important, don't know, I'm gonna do do it again, I'm going to get burned again.

And I'm actually going to go with C because like, it's, it's literally just a quote. Like if you post a meme, that's a quote from something like, I, I'd have a hard time being like, yeah, I can sue you for posting a picture of me with a quote of something I said online, or sorry, not online, on, on a TV show, on big TV show, our internet is pictures of people with quotes of what they said on TV, like that's, I mean, again, now, is it because it's a commercial purpose?

0:28:26 Thomas: Man, it's it's very tempting to just stick with B. is a commercial propose. You always have to have someone's consent for commercial purpose. You know what? All right. Is gonna be hilarious either way. Either way, this is gonna really funny. Gonna stick with be I'm going to stick with me. I'm go be first choice and then second choice C. C and, on my knowledge of quantum physics, me choosing B made it C. So expect that it's C everybody, but I'm sticking with B. Final answer. Right. And if you'd like to play along, make sure to go to reddit.com/r/openargs and look for the post about it. And the Reddit, the robot somebody made will track your score. But if you're a patron, you want to post it on patreon.com/law on the posting for this episode. And that gives you a better chance of a shout out. But as I always say, feel free to do both. And then that way you've got even better chances. So that's where to play along. And remember, because I chose B, the answer will be C. So make sure to choose C. right, Heather, we'll wait for that okay

0:29:32 Clip: Thank you for being, say we started from the bottom, now we're here, girl.

0:29:41 Thomas: It's time to thank the new patrons at patreon.com/law. And we are in May still. Catching up, but there was that additional influx, I'm realizing, in May once I officially ousted Andrew from the show and the business, and I think a lot of people were waiting until that, so I'm so glad to be able to finally thank those people.

So thank you to Morton Monrad Peterson, Jay Copper, The Real Blind Lawyer, Knappens, Jonathan Buckley, Nathan Lee, Recovering Goth Tim Crail, Marcel Brian Miller, Joe Lanzillo, Work For Better Prep For Trouble, Ramsey Nicholas Tinelli, Mark André Leblanc, Steve Dudenhofer, Nick From England, Jessica C, Matt Freeman, K Draper, Max At Max.com, Gen Gen, Robin Cristo Ren Bastion, Spamay, Eric John C. Tate, Davidson, IcePain, T-Roll, and Chandra.

Thank you so much, my new patrons from May, and there's quite a few more from May to catch up on in the coming weeks. Now it's time to thank our Hall of Famers, our all-time greats at patreon.com/law. These are the saints, the amazing folks who pledge at that $5 tier and above for at least a month. We're on the last quartile. Wait a minute, that means begin that final quartile with. Elect Thomas Smith President, American Honkytonk Bar Association. Guy Chapman, the solutions archaeologist. Baltic Cate. Kaiser. More like real porkerty. Am I right? Okay. Weird. The 501st and Rebel Legion want you, cosplayers, doing good. Milo Meadsong is on to the post -conviction process now that his cert petition was denied. Oh, that sounds like bad news, but sorry about that. Well, good luck. FRED R GROOTHUIS, Maleka Chandler, Malcolm the Dragon, the Precious Variant, Big Easy Blasphemy, RhondaTheDork.com, Chris Waltrip, Mitchell, and our leader, who is, ah, man, Mitchell is in hot pursuit, but still our current leader is ByeFelicia.

0:31:55 Thomas: So thank you so much to top, top patron ByeFelicia and of course everybody in our Hall of Fame. Right, that's the show. Thanks so much for listening. Good luck on that question and we'll see you next week for the answer and another question as always. Thanks so mucho for listening, we'll se you then.

0:32:14 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.

0:32:30 Thomas: Oh, normally you mute, so I don't normally hear this like laugh track, but I am appreciating it. I got to say, I