OA Bar Prep With Heather! T3BE39

Transcript

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

0:00:00 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:00:08 Clip: I just know that you were going to kick that bar's butt out of here, you know? Come in here with a skull full of mush and you leave thinking like a lawyer.

0:00:31 Clip: My staff has flunked the bar exams six times.

0:00:36 Clip: You graduated from law school six years ago. What have you been doing since? Studying for the bar.

0:00:46 Thomas: And welcome to opening arguments. This is Thomas takes the bar exam number 39. This is the episode where Heather Varanini, professional bar tutor, gives me a sample bar question. I try to answer it and home, both on Reddit and on patreon.com/law. It's a lot of fun. Right. Announcements before we get started. Well, so much, but I guess then again, I told folks on the Monday episode already. So lots of Where There's Woke, really good Where There'S Woke episodes. Please check out that show. So much is coming out, and I think it's really good and really interesting. You love a good debunk, and I'm pretty sure most of the listeners would hop on to Where There's Woke. Then, of course, Gavel Gavel, that day two of Michael Cohen testimony featuring the worst start to a cross -examination that anyone has ever heard of. So effing hilarious. At patreon.com/gavelpod. All right, I think that's all the announcements I have for now. Now excited for, get to the answer to last week's question 38, which hop on over with Heather to this break.

0:01:46 Thomas: Right, Heather, how are you doing this week?

0:01:49 Heather: How are you?

0:01:50 Thomas: Doing amazing. I'm excited to learn more about Middle -Earth law with to Norse myth law, whatever that other thing is. I don't know that. I don't know Asgard. I do know Lord of the Rings, but I'm exciting nonetheless to get the answer to last week's question number 38.

0:02:05 Heather: This is where our friend Patty where was hit over the head by her friend Debbie, and Patty was from the western district of Asgard, Debbie was from the eastern district of Mordor and this cause of action arose rose from something that happened in the state of Isengard and we're trying to figure out in which judicial district was venue proper. The first thing that I'll ask you today is what do you think that this question was testing you on?

0:02:34 Thomas: Oh, yeah, I always forget to answer that. All right, let's see. I think, is it, well, you know, I would have said like, I civil procedure, but we didn't really talk about that much. Is there you go.

0:02:44 Heather: That's The bar will always test, when it tests multiple choice questions, it'll test federal civil civil procedure um so this question is presuming let's say that all these places are in in one universe essentially so this is federal civil procedure um talking about a specific topic and I think you were thinking that it was talking about personal jurisdiction because you were starting to talk about uh this topic called purposeful availment do you remember that and the rule for purposeful available essentially essentially, is that a has to purposely avail themselves of the laws of the foreign state.

0:03:20 Thomas: I think that's what I was going with, right?

0:03:22 Heather: That's exactly it. Jurisdiction is when the court may have to have the power to exercise over the parties. This particular question was asking about venue, and venue is a little bit different in the sense that it's federal district court is the proper court to hear the dispute so you're asking about whether or not it matters whether this district issue matters and the answer is yes and

0:03:45 Thomas: Well so the, sorry, the I didn't say this but the part that I meant there and maybe it will matter but it said like oh this only has one judicial district versus this has like multiple and then in the answers that didn't factor like it didn't matter like oh it could have been the eastern district of asgard rather than you know what I mean so like I was kind of looking at from that angle doesn't mean I was that was right but but that was kind of what I meant, I just didn't say the full thought there, right?

0:04:09 Heather: I got you, okay, that makes sense. Well, if this helps, some states are so big that they have more than one federal judicial district right in california not surprisingly and like texas are some of those states um no to the venue may be proper in more than one district. So that's sometimes how that pops up. The rule for this is that, and bear with me with the terminology, the plaintiff may lay venue in any district where, listen, I don't make up the rules. I just repeat them. Going to go down the list and we'll go through that. The plaintiffs may lay a venue in a district where first where any defendant resides. Resides so you made a note too about the residents of the parties and that matters because here it'll say it talks about residents right and we remember back from before then we're talking about an individual it resides for their domicile which is their physical presence and intent to remain the good news about this question is that we don't have to worry about that because it just tells us um friend patty is a resident of the western district of the state of asgard and our friend Debbie is a resident of the Eastern District of the State of Mordor. So we don't have to worry about where do they reside because the question just tells us. Love these questions. I don't have to do the extra stuff.

0:05:18 Thomas: Not like occasionally she does do some pillaging in the south lands that, uh, don't get covered in the books too much, but that doesn't matter here. Yeah.

0:05:27 Heather: Exactly. So that's our first step. Our next step is that plaintiff a may leave venue where a substantial part of the claim or the events or omissions arose or a substantial part or property is situated. So you did a great job of identifying or thinking thinking and reasoning your way into knowing that a lot of times the cause of action where the cause of action arises is a place where you can bring a case right exactly and then we've got our last rule which says if no district satisfies the two above a district in which any defendant usually if there's more than one defendant is subject to the court's personal personal personal jurisdiction regarding the cause of action. So what that's really saying is that if there's no venue that arises or that can satisfy either the first two rules above, then we start to think about personal jurisdiction. But since we can probably find a place between rules one and two, we don't have to worry about

0:05:50 Thomas: I feel like I'm two for two here so far yeah I was gonna say is that like online stuff or something I'm trying to think well

0:06:27 Heather: The usually comes up when we've got multiple defendants and if they're living in different places or if we've Got defendants in the same in place but here we only have one defendant so we don't have to worry about rule number three so let's take a peek and uh let's look where our friend debbie defendant resides she's in the state of murder right so you're saying that as a result of that uh answer choice looks good as a reason of debbie living in mordor

0:06:52 Thomas: B and there's also D.

0:06:54 Heather: So b and d are looking kind of good right now but um early on you also discussed uh a and b by the way can you remind me why it was that you did that and

0:07:03 Thomas: Just figured that you have to be able to sue in the place where the pool party happened like where the where the incident was I I think that was what I felt safest about I was like it's you've You've got to be able to sue where it happened. And so that eliminated A and B for me.

0:07:19 Heather: Like I said that was such a great um to reason your way in to answer choice c as being a really strong answer because as you can see that rule number two gets us the answers right away where the cause of action arises I'll also mention that part of what makes this answer question kind of tough is the reminder that then you can be proper in more than one place right c is a is answer but part of what makes these types of questions really tough is that you can have more than 1 correct answer that doesn't make it the best answer because we can have again things that are factually correct or correct based on the rules but we need to have the best answer. So we know, for example, that B is a correct answer choice, but C is also a correct answer choice. Because B, again, is the state in which the defendant resides that makes it correct. We know that C, to your point, is also correct because it's the place where the cause of action arose. Now two correct answer choices. But are they the best answer? That's really what we're are looking for. So it's easy to, when you're moving really quickly on the test, to want to pick one of these answers and move on. But that's why it's important to go through each of those answer choices to make sure you've got the best one and not just the correct one before you move on.

0:08:31 Thomas: That's right. I still don't have experience trying to take this at the proper pace that I would be going because that would be a really quick show. It'd just be like two minutes or whatever it is. So yeah, I guess I don't have that disadvantage as much as a real test taker would have.

0:08:47 Heather: All right. What we'll do now is we'll look at answer choice A. This is the Western District of the State of Asgard only. What information does this refer to?

0:08:55 Thomas: Just where the plaintiff is.

0:08:57 Heather: Yeah, exactly. Did you notice something about the rule? Say Did anything really about the plaintiff?

0:09:03 Thomas: No, it didn't.

0:09:05 Heather: Exactly. It doesn't contemplate really anything about the plaintiffs. The thing it cares a lot about is about the defendant's residence, it also cares about where the cause of action rises.

0:09:14 Thomas: Because it's like you don't want to pull someone in. And I guess it wasn't quite the same as the availing themselves thing. Maybe it sounds like you're saying, but the reasoning of like pulling someone across the country, because I, you know, it does kind of make sense to me. Is that why? Like, I mean, if something have I'm on a trip in New York and somebody hits me with a rental car and they live, I don't know, in New Jersey and I live in California, it'd be pretty tough to like sue them in California and make them. Um, it court probably wants to like bias in favor of the defendant in that case.

0:09:45 Heather: Well, it definitely is, to your point, when you were first talking about it earlier, that the plaintif is the master of their complaint, right? Don't want to give them all of the advantages to your point just now right and so although they all get the original place um pick uh do have some things that sway in favor of the defendant so this is exactly part of why a is incorrect is because it doesn't the rule around venue doesn't more focused on the plaintiff and the cause of action sorry the defendant and the cause of action and a is out so now we're left with b c and d and then we're looking to see whether or not any of those answer choices contemplate both mordor and isengard and what does d contemplate

0:10:24 Thomas: It D's got both of them there. So I think, uh, I'm looking pretty good here.

0:10:28 Heather: You are d is the correct answer choice

0:10:30 Thomas: Yay. Wow. That was a, I wasn't sure about that one. It was like ,I had like the wrong stuff going on, but also enough of the right stuff going going on, that it didn't mess me up too bad. So again, I'm actually having a hard time differentiating. It's not about the availing yourself thing though, right? It's a different rule.

0:10:51 Heather: A different rule because personal because that relates to personal jurisdiction which is about whether the court has power over the people in the lawsuit right it's the threshold question that the court has to answer before it can start one of the questions that also comes up is about where the plaintiff will file the lawsuit and that's a little bit different and this question is the one about where the plaintiff can file that lawsuit does does that help answer the question a little bit yes

0:11:17 Thomas: I think so. I didn't remember those are two different things, but I think the power of reasoning got me close enough to where I got the right answer. Here yay all right yeah let's I better check my score here so that's

0:11:25 Heather: It did so I have 22 out of 34 is that right

0:11:33 Thomas: I have, yep, 22 out of 34, 64.71, creeping up, all right. All right all right let's see if I can get a little bit of a that was that was fun uh still I'm calling a foul on the asgard thing I really need answers on that like what happened there I would did a dimensional portal open up or something thing. Cause I'd, I'd not, I'm going to need the tests to be more consistent fantasy wise in the lore. The test needs a lore master, but no, that was super fun. And let's find out who else had a fun time and got this one, right? First, I'll look over on reddit.com/r/openargs for the big winner over there. Of folks loved this fantasy -related question and also the of fantasy was a bit inappropriate. Hard to pick a winner. So many good ones. Don't normally like to pick someone who clearly seems to either be a lawyer or just looked it up because that's, like, less fun. But I also like to try to pick new winners, so I'm not picking the same people every time. And so I think I'm going to go with Modest Polar Bear on Reddit, who says, I agree with Thomas here, though he got the right answer for the wrong reasons. He's technically correct, the best kind of correct. This is a venue question, not a personal jurisdiction question. The issue here isn't going to be minimum contacts with the forum state, but the venue statute at 28 U.S.C. 1391(b), venue in general, a civil action may be brought in one, a judicial district in which any defendant resides. Besides, if all defendants are residents of the state in which the district is located, two, a judicial district in which a substantial part of the events or omissions giving a substantial part of property that is the subject of the action is situated, or three, if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action. So, of the three districts available here, the venue is proper in the defendant's district of residency and the one where the cause of action occurred, or answer D. congratulations to Modest Polar Bear, because I think, though, again, I don't normally want to go justa with just textbook answer, because that's kind of boring. Most of the other answers, I think along with me, misunderstood why this was correct. So I wanted to safely choose the most correct answer and someone I don t remember giving a shout out to. So congrats to Modest Polar Bear, tired of all this arrogant ass polar bears too, that's another reason, could be just my personal biases though. And on patreon.com/law, so many good answers to choose from, really had the, unfortunately, the wrong answer, but Jenny Dowd said, one cannot simply walk into Mordor, so I think C is the proper answer, uh, but it was D of course, But that was a good tie in. So many good ones. David Back Spino Breaker did a whole answer in like Thor speak, but that's, I can't, that's too much to read. Sorry, but, but well done. This one's also a lot, but Matthew from talking about the big stuff podcast did their answer in the form of the, the, like the poem about the one ring to bring them all and buying them stuff. Stuff these are all great but I think I'm gonna shout out Aminah, says, ah, the legal battles of Middle-earth, Patty plaintiff, hailing from the lush forests of Asgard, is taking Debbie defendant, a resident of the shadowy eastern district of Mordor, to court after a not-so-friendly smack to the head at a pool party in the land of Isengard. Now, if Saruman's seeing stone was a legal text, it would tell you this: Patty can either haul Debbie to Mordor, a place where anyone would be thrilled to fight a court battle, or she can take her grievances to Isengard, where the infamous pool party took place. Both are proper venues under the great laws of Middle-earth, so the correct answer is D, either in the eastern district of the state of Mordor or the state of Isengard. Well done, Aminah, using a palantír is cheating, I'll allow it this one time. Let me remind you just once again, that no matter who I shout out, I do read every answer and I get a kick out of them. So thank you so much for playing everybody. I really appreciate it. Right. Well, now it's time for question 39 and see if it's like Harry Potter or some crap. I don't know. We'll find out. Or if it was just like normal after this break.

0:15:43 Thomas: Right, Heather, it is time for another question, uh, start another streak, I can't wait, uh, we'll see if this one's uh fantasy related or not, let's have question 39.

0:15:52 Heather: Dante was a clerk working at Quick Stop, a small convenience store in New Jersey, when Randall came up to the counter to buy a six -pack of beer.

0:15:58 Thomas: Mythical land of new j oh no just new okay new jersey yeah never mind cast

0:16:03 Heather: Dante thought Randall did not look old enough to purchase the beer, so he asked for his driver's license. Randall acted like he was going to grab his wallet, as Dante turned around to grab a bag for the beer. Dante's back was turned, Randall threw the money on the counter, grabbed the beer and ran out of the Quick Stop. Up in

0:16:17 Thomas: A spell to oh no okay just running all right I think we have a normal question again darn oh well oh

0:16:23 Heather: New Jersey, it's a misdemeanor to sell alcohol to anyone under the age of 21. If Dante is prosecuted for violating the law, what is his best defense? A. Dante asked for Randall's driver's license. B. Dante did not know that Randall was a minor. C. Dante didn't sell Randall the beer. Or D. Dante was not the owner but was only an hourly employee well

0:16:43 Thomas: That's interesting yeah I'm reacting to that being the the place we were going law -wise. I didn't, I thought it was going to be like some, some crazy thing happening. And then it's like accidentally selling someone something. Okay. This is weird. All right. So if I can get over the fact that we're not in a fantasy land anymore, this is normal, normal land, boring, New Jersey of all places, even worse, worse than normal. Convenience store. So Randall comes up, he buys a six pack of beer. Hi, I'm definitely not two kids in a trench coat. Don't give me some beer Dante thought that it didn't look old enough asked for his driver's license turned around threw money on the counter grabbed the beer and ran out so is a weird one it's like all right he asked him for the ID but then like turned around and instead of stealing it it's funny because if you just stole it no one would be be like ah well Dante's at fault there but because Randall threw the money on the counter and ran out with the beer it's like you sold that to two children in a trench coat alcohol which is kind of funny um hope this isn't real so what if Dante is prosecuted for violating the law what's the best defense I would say the best offense would be like come on stupid but I guess you have have to do a more law -based one than that, but that would be my first defense. So Dante, okay. But, but I do like, this is still interesting because it's like, you, how yeah, what is the best defense? Those are often fun because they're probably all going to be like but will they be the correct answer kind of thing? So A, Dante asked for Randall's driver's license.

0:18:19 Thomas: Some reason that doesn't jump out as like the best one to me so far, but I don't know. So I'm not, I'm not like eliminating it, but I don't think that's like the best. I don't know. Dante did not know that Randall was a minor. That strikes me as not a good answer because I think the better answer is like, Hey, I didn't sell it. He stole it. I don't think, you know, like, so I think I'm eliminating B. C. Dante did not sell Randall the beer. Yeah, that seems pretty good there. I think that would be a strong front runner for me. Or Or D, Dante was not the owner, but only an hourly employee. I don't think that's good either. Let me think. I don't think D matters because it just says it's a misdemeanor to sell alcohol anyone. It doesn't, like if the owner's not even there and an employee does it, like would the owner be the one to get in trouble? And I don't think that's it. So I think it's, I think we're strongly in A and C territory. So is the best defense that, hey, I asked for the driver's license. Since I was doing my part, I was not going to sell it if they were under 21. is it C, hey, I didn't sell the beer. I got to say that if you're being prosecuted for selling someone alcohol under the age of 21, feel like the best defense is going to be that you didn't do that, I think. So I'm between A and C. And I'm going to go with C. Oh, and furthermore, I'm going to remember to say that this is probably criminal law procedure, I think. Like it. It's a crime. So, violating the law. So, yeah, I am between A and C, but I think the best defense to someone saying you did something is probably, no, I didn't. Because they didn't actually do that. So, I'll go with C, final answer. What a weird, quick one. Right, if you'd like to play along, you know how to do it. Go to reddit.com/r/openargs. it's really fun. You can answer there, do the no spoilers tags, and it'll also track your score. If you're a patron at patreon.com/law, that's the actual best place to play because you have better odds of getting chosen. And also if you'RE a patron, do both. And then you've doubled your odds probably. I don't know about doubled. It's probably some factor that's not that. But it's, than one. You've more than won to your odds. It And gets to track your scores. So play along. We'll see if I'm missing something because it seems pretty simple. But often I am missing something when it seems pretty simple. So we'll find out next time. So much, Heather.

0:20:40 Thomas: Pins and needles. I can't, we'll have to see you next week to find out what happened.

0:20:40 Heather: Thank you how guilty or or not guilty as our friend this

0:20:50 Clip: Thank you for being, say we started from the bottom, now we're here, girl.

0:20:59 Thomas: All now it is time to thank the patrons. And this is now in the month of September, Remember, we are slightly slightly changing because we've caught up with our new patrons and as much as I'd love to have just an impressive teeming flow of new patrons each and every week, that's unfortunately not how the business works. Therefore, we're going to switch to doing whoever the new patrons are and all of the Hall of Famers. It'll be so much fun. So I hope you've changed your names and I hope you're excited too. If you, if you are a patron who changes their names, if You're not, that's okay. Some people like to keep their same legendary name, their memorable name all the time. Either way is great. But I hope, uh, I hope You're ready, but first finishing out our new patrons. You to booty town. And I want to thank booty town anyway, addition. In addition to being a patron, always Always appreciate Booty Town, but thank you, Booty Town. Michael Brownfield, Rebecca Helgesen, Brandon Ayers, Pulsar_Pulsar, Addison P., Michele E Hutchinson, Giraffery, and Tara. Thank you so much, new patrons. Now it's time to thank those Hall of Famers, those all -time greats. Are the folks that pledge at the $5 level and above for at least a month. We begin with thank you to Scott Vera. Come on down to Four Seasons Total Landscaping, conveniently located near a dildo shop and crematorium. I'll never forget Four Seasons Total Landscaping. It's the best. Rip into it. Dear old dad's reference there. Judy Hanrahan, stare decisis, has gone into hospice. Goldfinch, Hidari, Logomancer. Sex and gender are different things and people should stop using them interchangeably. Apprentice of Adventure, Jesse D. Myers, that's a non-e mouse. And it is cavalri with an I at the end. That's kind of a coincidence there. Coyote, unfrozen paveman lawyer, justice is a dish best served with cold hamburgers. Nick Fish, A Negative Phenomenon. Scab hockey is the best hockey. (You Gotta) Fight For Your Right (To Ex Parte). Jaysank, Terry Cannon, no relation. Book recommendation, Rest Is Resistance, a manifesto by Tricia Hersey, fight capitalism and white supremacy through naps, it's too, sounds too good to be true. Et OA Chicago live show, you bring the law and I'll bring the winning presidential ticket at the DNC, oh, that was so good, that DNC, that was fantastic. Oh great, now I have to go back to changing my name every month, well you got to change it every week I think. Actually, I'm fast at sex, Thomas Freeman, Cajunkilla. Fraud Fishy Hates Everything. Chris Simpson, love the extra episodes. Check out the Queer and Cryptography Conference at cryptography.lgbt. Liberal Zone Guns 2, support root cause mitigation, not ineffective gun control. Not a lawyer, but I play one in court. Delighted you call whatever you're using now Swipe, even though the original is defunct. I had the good fortune to work on Swipe. Love the goddamn Cranberries and Matt and Tom at the same time, and not in in that order, but the Cranberries are not my favorite band. Stormy Decisus says, visit sharebandbooks.com. This isn't a Patreon name, and I'm not reading anything right now. I just personally think Legal Eagle is so handsome. Mark Schultz, The Cincinnati Kid, Bob Loblaw's Law.... Podcast. Philly Basement Bar is out knocking knocking doors for Harris. You should too. Oh, great. Good job, Philly basement bar, and good message, especially in Pennsylvania. Yeah. Elect Thomas Smith President, American Honkytonk Bar Association. Katay, Guy Chapman, the solutions archaeologist, Philip Kizer. One does not simply walk into court in Mordor. There you go. The 501st and Rebel Legion want you. Cosplayers doing good. Meadsong is on to the post-conviction process now that his cert petition was denied. Characters. Malaika Chandler, FRED R GROOTHUIS, Malcolm the Dragon, the precious variant, Big Easy Blasphemy, RhondaTheDork.com. Waltrip, and our number one patron, though Mitchell is creeping up very quickly, catching up. But our number 1 patron is still by Felicia. You so much, Hall of Famers. You're the best. Thanks to everyone who makes this show happen. And hey, if you're not on patreon.com/law, I understand. But maybe take the time to write an iTunes review or something, as long as it's five stars. If not, then don't. Dog world we live in podcast -wise. It's a competitive environment out there. Right. That's the show. Thanks so much for listening. Looking forward to seeing you all on Rapid Response Friday. See you then.

0:25:19 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.