OA Bar Prep With Heather! T3BE41

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.

0:00:47 Thomas: To Opening Arguments. This is Thomas Takes the Bar Exam, OA Bar Prep with Heather. Question 41 today. Means, of course, we get the answer to question 40, last week's question. Was a really tricky one involving evidence and parole evidence rule and a bunch of stuff I didn't totally remember. Then we're going to get question 41. Let's see, any announcements? Announcements. Got my TikTok going strong at SeriousPod. I've made some debate -related videos I thought were kind of funny. Of course, check out the Instagram. Check out that Instagram at OpenArgspod, which is another reminder on that. Other than that I think it's time to get on over to the the answer to question 40 with Heather Varanini after this break, which you can avoid at patreon .com slash law and all the ads. They suck. Wants ads? Wants ads. Go to patreon. Com slash law. And you don't have to listen to any of them. Not the ones that are mean, not the ones that are some absolutely crazy thing. I have no control over neither of those. Right, Heather, welcome back to another week of T3BE. It is time for you to give us all the answer to question 40. Remind us what was happening in this very difficult question that I hope you won't tell me was super easy and I just suck.

0:02:00 Heather: This was um our friends paul and dale and paul and dale were in a lawsuit for the breach of contract over 50 handmade surfboards where paul introduced part of an email that he sent to dale and then dale responded by trying to introduce another part of the email that said there's no obligation to receive any surfboard unless they're delivered in one lot of 50 handmade surfboards and if Paul objected to the introduction of that evidence we're trying to figure out how the court was likely to rule were they going to allow Dale's introduction of that second part of this the other part ofthe email or the court going to reject it and if I recall correctly your answer was a was that Dale failed to object to the email and waived any right to introduce any other part of it and then your second chance answer was that dale's evidence is inadmissible under the parole evidence rule all right so let's um what's our topic for this week so if I recall correctly you were thinking it might be contracts or evidence where did you land what topic are we in yeah

0:02:59 Thomas: I think we're pretty solidly in evidence here.

0:03:03 Heather: We are in evidence and what were the tip -offs yeah

0:03:06 Thomas: Because the call of the question is about objecting to the evidence and And pretty much all the answers had to do with evidence.

0:03:13 Heather: That's exactly it and you did make a good point um you were we're walking through the answer choice about kind of vacillating between contracts and evidence. And what I'll do is I'll just make a quick note to say that it's not uncommon for there to be some overlap between topics, which is sometimes why these can be kind of challenging. But know that when questions like this are testing, they're only trying to test one topic. So even though, again, there can be some overlap between the topics like there is here, where there's a breach of contract action, and even one of the answer choices talks a little bit more about contracts than it does about evidence um questions um only really going to test squarely on one topic so hopefully that makes your job a little easier no you're like no this was too hard um

0:03:55 Thomas: Don't I care how you classify this thing. It was hard. And I couldn't remember. I can't believe I couldn't remember what the parole evidence rule is. But

0:04:00 Heather: I promise we're going to get there but before we do um I will say the evidence by and large as a topic is really tough um it's tough in law school it's stuff on the bar exam and so I don't want you to feel alone in the fact that it's hard uh it's usually a four unit class and it covers a lot a lot a lot of topics and we'll talk in a minute about why and how it can be hard where that can be and I'll say that personally I found evidence to be very hard and it's one of the classes that I had the most trouble in in law school so and you can see why

0:04:28 Thomas: But But it's also super fascinating. And it strikes me as, like, maybe one of the most important topics to, solid. It. I mean, so much of, again, I'm just judging on my experience, but it, but it seems like evidence is pretty crucial in all areas. And so much of how we would talk about my lawsuit was like, okay, yeah, but that won't come in or this won't come in, or this will come in. Or how we, and it's like, it was amazing how much of the conversation revolves around these evidence rules and like what stuff that I'd be like, well, obviously that can be part of this whole dispute. Right. And it's like, wow, how is that? That no, that's not admissible. And it's crazy how much it often goes against what a normal person might think it should be.

0:05:12 Heather: Yeah exactly and especially for folks who are working in the litigation context folks who in court all the time like you said this is so important because if you've got this really great piece of evidence but it's not going to be admitted great you've got a great piece of evidence but the most important part is it has to be admissible that's almost like the first step is it like

0:05:29 Thomas: If a piece of evidence is not admitted in the forest and no one's around to admit it, then did it even make a claim? I don't know.

0:05:39 Heather: So so a couple of really big topics that fall under the evidence heading uh and one of the ones that we'll talk about today is the presentation of evidence um two types of one that kind of fall under this category and one is um like documentary evidence and the other one's testimonial and testimonial is just a of evidence presented by people or something that's spoken by people so today do it feel like we're talking about something that somebody's saying or does it feels like we are talking about a piece of evidence that's being admitted like as a document what in the document category and so that's what we're going to be talking today and that's we're gonna be focusing on and let's start um talking about the parole evidence rule um in answer choice d dale's evidence is inadmissible under the parole evidence rule I will put you out of your misery and we'll walk through the parole evidence rule and um your memory okay it's

0:06:22 Thomas: Oh, great. I don't like that this is happening this early. I feel like that me. Yeah, it's a bad sign. I'm just saying it's about time.

0:06:30 Heather: Um the parole evidence rule, it's kind of got two big parts, and the first part we'll talk about is that it states that evidence that would clarify, modify, or contradict the terms of a written agreement are generally inadmissible, right? And we're trying to figure out, is Dale trying to introduce evidence to clarify, modified, or contradict the terms of his agreement with Paul?

0:06:48 Thomas: So, OK, so that's so funny because I something in my brain was like, I know this has something to do with what like linked it in my mind somewhere back in the dark recesses of T3B from, you 2018 18 or something. I was like, I know this has some, cause there's contracts that that can't be just oral contracts, which is crazy. And it's amazing, like what amount of that can Be, but there's other stuff that can and I associated the parole evidence rule with that. Then I was Like, but my mind, I was, like, that doesn't make sense as a rule of evidence. But now that you stated that way, now there is kind of the link there. It kind it make sense that those things were were linked in my brain or am I misunderstanding?

0:07:22 Heather: No, it makes sense because part of the rule is saying here, got this other part of the rule too, that it's about timing. Because that's kind kind of what this is about is we're in a situation where the pro -evidence applies when somebody is trying to, when they've maybe said something before the agreement, before the final agreement, or at the same time as they're making the final argument, they've said something and now they're trying to incorporate that in.

0:07:45 Thomas: Gotcha.

0:07:45 Heather: Does that make sense?

0:07:46 Thomas: Yeah.

0:07:46 Heather: So that is, I can see where the link happens because that does make sense.

0:07:47 Thomas: So it doesn't sound like that's right unless again maybe that email, that selection of the email is trying to modify the contract, but I don't know if that's what's going on here. I can't tell.

0:07:59 Heather: You're right. That's not what's happening here because Because the scenario would be different. It would be a scenario where something that was said before they made their contract, let's say they had a conversation beforehand. Now Dale's trying to incorporate part of that conversation or a term into their agreement now. That's not what he's doing, right? He's trying to incorporate part of an email differently. Does that help? That

0:08:19 Thomas: Yeah okay well it does insofar as my second choice is wrong, but that's only good if my first choice is right. If my first choice is wrong, then that's even worse.

0:08:34 Thomas: So there some sort of rule about, or something about referencing evidence that someone had a different understanding later on than what the contract said okay gotcha but

0:08:43 Heather: Is part of the parole evidence rule. That is about the clarify, modify, or contradicting terms. Yeah, a lot of times that will be folded into the parole evidence rule. And

0:08:52 Thomas: One it doesn't tell us but in this one we don't know if like okay well first exhibit one was the contract in its entirety like we don't know that here right yeah

0:09:01 Heather: We have here is we this email that Paul first. He's got part of this email, and then Dale's another trying part of the email. We're trying to figure out whether or not the court's going to let that in. Is there any rule of evidence that would allow for that to happen, essentially? Essentially. You're right. So that's part of how D is out. We're not trying to change any terms. And now what we're going to do is we're gonna look at C. Dale's evidence is inadmissible hearsay. It sounds like you have some familiarity with hearsay that's a topic that's tested all the time on the bar exam and all the time in law school. It's a really big topic and it sounded like you had actually had a pretty good grasp on what hearsay is.

0:09:34 Thomas: You mock me I'm just kidding totally teasing I hate hearsay and no matter how much I have heard that definition over and over and I think I remembered it correctly it doesn't really matter because there's so many not only exceptions to hearsay There's also, there's the two different things, right? There's like, well, There's exceptions, but there's also things that just aren't hearsay, right, or there's, I don't know. I never remember. It's impossible.

0:09:58 Heather: Non -hearsay, not hearsay, and exceptions.

0:10:01 Thomas: Yeah, yeah. So, there are things that you are like, oh, yeah, okay, this, this isn't an exception. It's like no, that's not an exception, it's actually defined out of hearsay somehow before everything else and it's, yeah it's hearsay is so difficult, I have a real tough time with it. But I do try to stick to that definition of something said out of court, introduced for the truth of that statement or whatever.

0:10:23 Heather: An out-of-court statement offered for the truth of the matter asserted is inadmissible unless it's an exception, non-hearsay, or not hearsay, then it may be admissible. That was a mouthful. I'm sorry. Did a good job of breaking it down, and I'll do a quick recap, which is that out of court, the statement has to be out of this court. I always say too, with these types of questions, especially with evidence, if you see anything in quotes, that's like a big flashing neon sign that that's the thing you have to pay attention to. So when we're looking at the original Statement, we're look at that Statement that's in quotations that says, there is no obligation to receive any surfboards unless they're delivered in one lot of 50 handmade surfboards. So we have to ask ourselves, was was that original statement made in this court? If the answer is no, then it's out of court. Then that satisfies out of Court. Then we're looking at the next part of the rule, which is statement. Is what was said, was it intended to convey a message? The answer a

0:10:34 Thomas: Seems

0:11:18 Heather: Lot of times is yeah.

0:11:18 Thomas: Like it. Yeah.

0:11:19 Heather: A lot of time is pretty straightforward. It's a yes, right? So we've got out of course, we've gotta statement. Now where it gets fun or more complicated we're trying to determine what the purpose, it's being the statement is being offered for because and I think you were kind of getting at this or you said it which is that um on the purpose that things evidence is being offered for can determine its admissibility so basically if it's the substance of the statement is being offering for its truth like if the proponent is offering it to prove that it's true it's admissible however if you advocate evidence really really well. You could try to offer it for another purpose. It might be admissible, And that's like you were saying a little bit earlier, some stuff can come in, some stuff cant, and that's what we're looking for.

0:12:00 Thomas: So like, sometimes it's like, well, I could introduce this because it's evidence of what my mindset was at the time, not necessarily the truth of whether or not there were any obligation, there was any obligation obligation to receive the surfboards, blah, blah. I don't know if that's matters in this context, but stuff like that. Right.

0:12:14 Heather: Exactly it. Yeah. All of a sudden it transitions from something that was inadmissible and that cannot come in to something that can. Like I said, it gets fun. Um.

0:12:22 Thomas: Definitely the word for it for sure.

0:12:24 Heather: Like I say, law school school fun, in here we have, which part of their agreement, right? We know that if our friend Dale is trying to introduce this to prove that the statement is true, it's inadmissible hearsay, right, and then that would make C correct. But like you said, we've got these other categories, and there's a lot of them, and if it falls under one of those categories, then it would become admissible. To skip a lot of that and I'll just go straight to the point. It's actually considered not hearsay. We've got this category under not hearsays that's called legally operative facts. Legally operative facts are things that are just saying that the words matter because they have a legal effect. And oftentimes, things that are like words of a contract, they fall under this category, right? The substance isn't quite as important as the fact that they were said, that's how this comes in. These are parts of a contracts, so they're legally operative facts, and they then move it from an inadmissible hearsay to legally operable facts. And that's how this changes the answer. And we know that C is incorrect, because,

0:12:39 Thomas: Interesting. Okay. So, but, but clarification, is it admissible or is it not hearsay?

0:13:32 Heather: Admissible as not hearsay. Because that's the category. Weirdly, if that makes sense, because we've got these three categories, which are non-hearsay, not hearsay, and exceptions to hearsay. Does that make sense?

0:13:48 Thomas: You've got non hearsay, you've You've got hearsay and then you've got hearsay within exceptions. So you're saying, but you're saying this wasn't hearsay with an exception, right? Or you might

0:13:56 Heather: The hearsay rule. The hearsAY rule, the things that are admissible kind of fall into three categories. Fall into not hearsay, non-hearsay, and exceptions to the hearsay rule.

0:14:09 Thomas: Not hear. Are Non hearsay and not hearsay are two different things. Nah, I quit. All right. That's the end of the show, everybody.

0:14:16 Heather: Told you this is going to be fun. The

0:14:20 Thomas: No wonder I'm confused. What's the difference between those two things?

0:14:23 Heather: Between those two things, the, I don't know that there's a, to be frank, I don't know that

0:14:29 Thomas: You're like, this is the whole fabric of law law unraveling because no one's ever asked that question.

0:14:38 Heather: A GOOD considered exemption like it just depends on how you talk about it there's

0:14:41 Thomas: Exemptions. Yeah, that's I'm remembering that there's like very different confusing categories. And sometimes stuff is like it could be not hearsay or it's is it just admissible hearsay? Like it's just hearsay that they've decided for some reason is fine. And that's different than hearsay within exceptions. Right.

0:14:58 Heather: That's I do know is that there's different purposes for which they can create the Categories so for some other reason that they create some of these is about reliability, right? So the concern is they want to make sure to your point when you were working through the question is like, they want to make that there's an examination of the person who said the statement. And when that can't happen, which is the case with hearsay, they're concerned with things like reliability of the statement, and that's why some of this exist.

0:15:25 Thomas: Okay. So combining what you've said in google maybe let me make sure as I kind of want to understand this I'm seeing basically not hearsay is evidence that actually doesn't meet the definition of hearsay non-hearsay is technically hearsay but not treated as such because of this rule 801 exceptions and then hearsay exceptions is like different because it's under 803 and 804 has gotten there was one question back in the day that I think I think it turned on that because it like somehow the way the thing was treated it mattered whether it was like a hearsay within an exception or non -hearsay and it's just like fiendishly difficult but all right let's accepting all that uh that nonsense where so

0:16:09 Heather: An A or an E? Just kidding.

0:16:10 Thomas: So we were at uh what we were on answer b oh

0:16:15 Heather: Talking about C, how C is incorrect because the statement would come in.

0:16:22 Thomas: And and why was it again oh we didn't say it okay okay gotcha

0:16:23 Heather: Didn't say yet. No, that's why. So then what we are is we're down to A and B. We're down two. A, Dale object to the email and waived any right to introduce any other part of it. Or B, deal is entitled to introduce evidence of any part of the transaction necessary to make it understood. So, and your answer was A, which is about objection waiver, right? Also talking a lot when you were working through the question about portions of something and whether or not you were able to include more of something. So, let's say you're in a contract agreement with somebody and that person introduces part of the contract. You're like, listen, I want to introduce another part of agreement for context. You had to reason it out, do you think the court would allow you to introduce the other part for context?

0:17:13 Thomas: Don't understand why the court wouldn't just be like just introduce the whole contract I don't okay

0:17:18 Heather: That's a good question, question can do that just introduce the rest of it but let's just say for the purposes of what you're trying to do you're just trying to say well I just want to respond by putting this relevant portion

0:17:23 Thomas: I mean on one hand that makes sense but I feel like that could get into this infinite argument of oh well but then you need the context for that which is the other thing and just Just, it feels like that's a weird way to do it, but I also, maybe I'm wrong and it's fine. I don't know.

0:17:43 Heather: The piecemeal part of it I

0:17:45 Thomas: It's like, well, okay. Is it going to be true that this one paragraph is the perfect context for that other paragraph? Or is it going To be like, now we're in a battle of just like, a minute, but this paragraph became before that one and that needs context for that. It seems very weird to me, but maybe, know. Is this you saying, yes, you can just introduce another paragraph and it's fine.

0:18:04 Heather: More or less, yes. You can just pick and choose the one for relevant context. Here too, with about objections, right? Which is, it's a slightly different issue. Objections are are typically, they've got to be specific and timely made. Otherwise, they're waived, right. We think there's any issue with Dale making, this issue up? Do you think there's an issue with timing here? Or do we think that he's doing it an at appropriate time, meaning that Paul introduces the evidence and then Dale says it? Do we Think that there's any issue With that here?

0:18:10 Thomas: Okay. I So Paul introduced the evidence and Dale didn't object, and then Dale introduces evidence and Paul is objecting. So, sorry, seemed plausible to me that Dale, by not objecting when Paul introduced the email, that been a problem. But if there's no thing that he actually could have objected for, then no.

0:18:51 Heather: There's nothing here that Dale, in this particular situation, Dale's sorry. Simply offering the other part of the email at this point. Right? No issue around objection as it relates this question.

0:19:03 Thomas: Principle is actually it's fine to introduce just like, a part of an email. Sounds like if that's fine, then that's fine and there's nothing he could have objected to. So not really any reason why that matters. And so like the objection part and whole like partial evidence -y thing that I had gone with sounds like not really the issue here. And it's more about kind that problem, it sounds like it comes down to well he's just admitting evidence and why is he able to admit evidence uh I guess that's probably because of b

0:19:32 Heather: This actually gets to the doctrine of completeness. The rule says that an adverse party can ask that other portions of the written statements necessary to put the admitted portion into perspective can be admitted when part of a writing is introduced by the opposing party. So here we've got our friend Paul, who offered part of the email, right, that part that he sent to Dale that said that there was a production issue. Then Dale, our adverse party, was then entitled to introduce any part of The email that should be considered regarding the breach of contract action.

0:19:59 Thomas: So so I think that's like the same principle but it's like a different mechanism for how it happens like it's not it's Not really like he's supposed to object and then if he doesn't object he kind of gives up that ability it's more like he just responding by I also didn't know exactly where in time because it says like okay he introduces it and then says Dale then offers evidence and I don't know if it matters but like I didn't know if that was like literally right after or if that's part of that same process or if that happened at a later time but either way okay so it's like the principle is still sort of the same in that you Dale has a right to want to put in more context but it's the objection sounds like it's not exactly how you do it

0:20:44 Heather: Exactly it, right? Doesn't like stand up and go, object. He can just, the next thing that he can do is say, I'm offering this piece of evidence. Yeah.

0:20:46 Thomas: Okay

0:20:54 Heather: Were going was absolutely right. You were getting to the doctrine of completeness, which is you were absolutely getting at that idea.

0:20:53 Thomas: Yeah that was high I couldn't remember that that phrase, but yes, I was like partially something full, whatever. Okay. That was the thing I was going for, but it's interesting because it does seem like this is something that could just kind of go on a merry -go -round forever, but maybe not. I don't know. I guess the way it works is like, if you need the whole contract, I guess you'd just submit the whole thing versus if they think that this one part here is sufficient, then I guess they get to do that kind of in response right

0:21:01 Heather: Was like, oh, you're almost there. You're so close. Yep. And it's really here to better. It has to be that relevant portion to help understand what they're doing better. And to your point, you also hit on something too, that of, I think, what can make evidence really challenging is trying to keep all those moving parts in your mind, because there could be some, because like you were saying before, oh, is there something else that might make it inadmissible? But here, we're not worried about that, because the doctrine of completeness takes care of it. But that is part of what can make evidence Really, really challenging when you're working on questions and thinking about it or studying it.

0:21:56 Thomas: But it sounds like you're saying the answer is b but what's interesting is it doesn't really sound like the doctrine of completeness exactly because b was dale's entitled to introduce evidence of any part of the transaction necessary to make it understood whereas what I'm taking the completeness part to be would be like dale's entiled to introduce um other portion of that same evidence that would would give it more context, which seems like a slightly different thing.

0:22:20 Heather: It's generally the same, to give it more context or to make it understood. That's that's getting at the same idea.

0:22:25 Thomas: Really? Even though it's saying any part of the transaction, it's not really talking about like this email. Like there might be other parts of the translation that aren't this email, right?

0:22:33 Heather: But for the purpose of the question, we're really limited to the email. And

0:22:37 Thomas: The only reason I'm still hung up on is it almost sounds like the other part of the email thing is not really even playing into it. If that's no part of The Answer B, it even matter? Like, does the question change at all if Dale's like, all right, well, here's a different email that has part of the same, like later in the thread or something that has the same transaction as information about this transaction. It sounds like that's totally covered under B as well, which suggests to me that maybe the partial email thing is just a red herring and is not any part of this. Am I, what do you think?

0:23:09 Heather: To your point if there were more facts to suggest that there was something else that was maybe more on point or more relevant to help explain the transaction between the two of them and maybe why Dale the that's relevant, more appropriate? Sure. I think the trying to think, it think it would make it like a lot harder and a lot more confusing does that make but

0:23:32 Thomas: Yeah, I don't know. I think, So it's entitled to introduce evidence of any partof the transaction necessary to make it it understood. Now Now, with all the context you've given me, it sounds like that's just about this transaction and has nothing to do with like the partial email thing. And it sounds like the personal email thing is it's necessary to know that that's not a problem, but because that's a problem. It sounds like it's kind of not relevant in this answer at all.

0:23:56 Heather: Is relevant because so part of the issue here is about is right here we have this issue where he declines the surfboards the the partial shipment even though they agreed to 50 and paul saying Paul introduces the of the email that says hey I let you know that we might have a slight delay introducing this to say there was a delay so suggestion is that he might get some but not all of them and Paul is suing Dale because he's saying there's a breach by by by rejecting the 15 surfboards, there was a breach. Dale's defending by saying, listen, part of the email said that I did not have to accept. Part of shipment. And I was under no obligation, unless they all came together as 50. And that's how it's relevant. Is that this? Yeah, does that? So

0:24:41 Thomas: I think, I think we're saying the same thing. I don't think it being part of the same email matters at all yet.

0:24:47 Heather: Yeah, no, maybe I just didn't understand. It it didn't have to be part of the same email chain. No. Oh,

0:24:51 Thomas: Yeah. So the whole like part of the partial email, all that stuff was like not at all the issue. And all that matters is.

0:24:58 Heather: I see what you're saying. Yeah. Okay. I didn't understand before. I thought you meant something else. Yeah, no, it didn't have to be part the same. You know, my understanding, at least is it whether or not it's part of the same e -mail chain? I don't know that that matters.

0:25:09 Thomas: It is. Yeah, I think that's how the that's for sure, because it says any part of The Transaction. I mean, there could have been some other completely different medium that they he could have texted him. Hey, reminder, there's no part of whatever. And that's why I was saying the partial e -mail thing, I Think, is completely red herring. Doesn't doesn't matter yeah exactly so it's it's a a good great red herring because it totally uh fooled me but in the end the answer is like I love and the bar does that too because it'll state such a general answer that it's like that's its way of saying yeah all those things you thought might have been a problem aren't a problem and the answer is like yes because evidence is a thing that trials have you know and you're like well that seems way too general but it's actually the logic of it makes sense is because Well, yeah, there's no other problems with it. And this evidence is a thing you can introduce because this is the dispute year and you're able to introduce evidence of any part of the transaction necessary

0:25:27 Heather: It could or pigeon it wouldn't matter excuse yeah yeah oh yeah yes yeah

0:26:04 Thomas: To make it understood. So, yeah. I think we're on the same page.

0:26:07 Heather: Are sorry I think I misunderstood I'm so sorry I Think I misunderstood what you yeah and can I tell you something the funny thing is is I actually thought this question was going to be easy for you and I'm going to tell you why no

0:26:10 Thomas: That's okay. Because I was way better at this than I am.

0:26:18 Heather: No no it's because it's It's almost too, because you have this great ability to really reason through things. Think that a lot of times the people who are steeped law students, people sitting for the bar, legal people, it's almost like we get trained to overcomplicate. And I think you do this, this great job.

0:26:36 Thomas: I can overcomplicate. I'm pretty good at overcomplicating.

0:26:40 Heather: Well, welcome.

0:26:40 Thomas: Here, I submit into evidence this question, if that's OK. I don't know. Am I allowed to? Objection.

0:26:46 Heather: Listen, this is your show. And I really thought, cause, and I was hearing you do the, so I was pretty sure you were were going to get to be because this to me is the logical non -lawyer answer in the sense of like well sure like we have a dispute and somebody introduces part well can't I just introduce the other part did you make it it makes sense like you know and I think this I was like I was going to be too easy because you would like logic your way into this too quickly so like that was I was convinced

0:27:10 Thomas: Definitely wasn't that no no well I think what what me is again like I think in general this general rule wouldn't like trump any problems with the evidence you know and I I there was a conceivable problem with the evidences and I was just wrong about that you know I mean like Like, if it was hearsay, it wouldn't matter that, like, he's entitled to introduce evidence of any part. Like, it was like somebody else said something to somebody else unrelated that, like, oh, I heard that Dale and Paul's contract involved the right to not accept all the surfboards, you know? Like, I there's a real problem with the evidence, I don't think B would mean, I mean, well, yeah, but it's fine because it's any evidence of the transaction necessary to make it understood. But maybe I'm wrong on that.

0:27:55 Heather: No no if there was another problem listen if there's another problem with the evidence just to be frank this would be a question about relevance or like you said or hearsay yeah absolutely because because first step always the threshold question is it has to be relevant to be admissible and so like first step number one sorry

0:28:08 Thomas: Like, OK, let me give you a hypothetical just for fun. Introduces that email and then Dale's like, oh, yeah. I have here a recording of Paul's wife talking to Paul's life's cousin that says I heard that Dale and Paul had a contract. You know, like that B wouldn't mean, well, it's evidence of the transaction. No, it is like that is still an immiscible hearsay. Like that is going to – so like that was why – so I thought B was like is not going to overcome problems to evidence. So the real problem was I just thought there was a problem with this evidence. But, you know, there wasn't. Totally fine.

0:28:42 Heather: You're like, I just thought this evidence was BS.

0:28:46 Thomas: I just – I thought you couldn't just introduce parts of emails. I thought there were some completeness thing. But no, it turns out – I mean there is. Is, but like not how I thought it was. So I learned a lot here today. That was frustrating.

0:28:58 Heather: I'm is so, so hard. I will listen, and I'll tell you briefly. So I took it the summer after my first year of law school. And um it's usually a 14 week class I took it in seven I don't recommend that to anybody so my and when my student it I I would have done that too and I didn't do well um I'm not like I didn'T DO WELL I GOT A B no um what I did do was that I had the opportunity to come back and be a teaching assistant for the woman who was my original professor and um it changed a lot of things for me because I really struggled so much because it's so hard it's to you

0:29:00 Thomas: Certainly suck at it. Yeah, I would take in 28 weeks. You've

0:29:32 Heather: Because I'm sorry.

0:29:32 Thomas: Bested me this time. And no, no, it's good. It's fun. I think those questions are really hard and I need to get better at evidence. Maybe I'll have to study more than zero. All right well that loss takes me to 23 of 36, .89%, so you know not loving it but still hanging around, if hey if I can stay above 60 I'm pretty happy but we'll see how many more evidence questions there are it's gonna depend on that all that was a big failure for me, but let's see if the listeners did any better. And as I look at reddit .com slash r slash open args and patreon .com law, I got to say basically everybody did better than I. Most People got that it was answer B. like I overthought this one. Well, I know I definitely did. Let's see who didn't do that. Here's a good one. I don't know if this person has won before, but on reddit a reddit dot com slash r slash open args hungry dash back seven four eight nine. So hungry back seventy four eighty nine says, quote, I'd like to introduce into evidence the fourth, ninth and thirteenth through twentieth words of this email, end quote. And they say, I'm just a big dummy who doesn't know law words. But if it's not B, Heather's going to have a hard time explaining it to me. Yeah, all right, fair.

0:30:45 Thomas: I probably should have given it that level of analysis as well. On Patreon, I would like to shout out this patron went on vacation and all they brought me was this crappy display name who unlike Thomas, I'm completely sure I have no idea what the Pearl Evidence Rule is and based on hearing it, I could have spelled it with an E at the end. With my gut, I think the answer is B. That seems to be the most fair, especially because it now looks like Paul was trying to hide this part of the email. Sus, as the kids say. Also, idea for a special episode inspired by last week's OA bar prep episode, mentioning that trying to go for speed would make the episode two minutes long. About a lightning round episode where you do a whole bunch of questions at a bar exam pace? Sure. How heather teaches speed improvements maybe this is a bad idea but could be fun I think I how would I do that I would have to take we'd have to set a number of questions that I sort of do silently and do and yeah I don't know how that would work it would be interesting it would probably be something done off mic or something and then we could talk about out the results and just maybe that's it. Maybe we do a speed. Maybe I do a speed session. Sort of cover what the questions and answers are, but not in the depth that we normally do because it would take hours to do like 10 questions or whatever. Then Heather talks about speed improvements as possible, but I think it would be very discouraging for me because I take so much longer than you're supposed to. Then again, I'm sure I would shave some time off by not trying to like explain myself in a complete and sometimes as as possible way so that would shave some time off but yeah I don't know I'd be a little worried that I'd find out that there's no chance I could ever pass the bar because of speed I don' know though seems like the first instinct is often right so maybe there would be we'll see it's a good suggestion I'll think about it but either way to our winners hungryback7489 and patron went on vacation all he brought probably was Crappie's play name. Congrats to both of you. Right, after this break, we will get question 41. See if I can turn it around.

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0:35:46 Thomas: Heather time to redeem myself let's see if I can do it question 41 here we go

0:35:51 Heather: Environmentalist decided to take up composting since the city she lived in had not yet adopted composting as part of its waste programs. The composting pile emitted very foul smells, which could be smelled throughout the environmentalist neighborhood by all of her neighbors.

0:36:06 Thomas: This going to be the end going to end that composter, Heather Varanini, and this is like your personal like crusade you've had against the city that you live? I hope so.

0:36:15 Heather: You know me so well? Environmentalist began composting, the neighbors used to hold pool parties, barbecues, and movie nights regularly outside. I think you know where this is going. The horrible stench from the compost pile made it terribly unpleasant for the neighbors in the neighborhood to hold their events any longer. One of the neighbors, who could no longer hold his weekly family movie nights due to the foul smell, brought an action against the environmentalist for private nuisance. Is the neighbor likely to succeed in his action? A. No, because the neighbor has not suffered a harm different from that suffered by other neighbors. B. No because the environmentalist's compost pile is not interfering with a profitable use of the neighbor's land. C. Yes, because the environmentalist's compost pile substantially and unreasonably interferes with the neighbor's use and enjoyment of his land. D. Yes, because the neighbor's use of the property predates the environmentalist's interference.

0:37:16 Thomas: Okay. Okay, I think I'll start with where I'm supposed to start for once, which is categorizing the question. I thought it was going to be like real property, but private nuisance sounds like it could be like a tort thing. I am seeing like, based on the answers I am seeing, A is about the suffering, the harm different than the neighbor. So that's a kind of maybe a tort things. B is about land. So that's the solid real property. C is about, yeah, I think I'm going to lean toward real property. I think I'm going to lean toward property. So that's where I'm putting category wise, which is always a bad sign. That's not, it's not my strongest category. That's a tough one. The tests were all real property and hearsay, I would score about 10%, I think, probably. An environmentalist named Heather Varanini. No, I'm just kidding. Decides to take up compost. Very foul smells, which could be smelled throughout the environmentalist's neighborhood by all of her neighbors. What do you compost? Compost. The compost piles don't smell that bad. I grew up in the country. We had, we had not just like your little, your little city slicking compost bucket. We Had a whole thing, big old composty thing. And it doesn't smell great when you're right next to it, but like, honestly, it doesn't smell that bad. What are you eating? Environmentalists. Who knows? Used to, before the environmentalists began composting, neighbors used to hold pool parties, barbecues, There's all this stuff. I love that. Nights outside. Won't even go outside any longer. Okay. One of the neighbors who could no longer hold his weekly family movie nights due to foul smell brought an action against the environmentalist for private nuisance. Private nuisance? I guess that's rather than public nuisance being like. Like, so is public nuisance like that a corporation does? Like, if they're polluting a river or is private nuisance, does it have to do with like being in your own home versus like when I take my compost pile out on the town, then I'm a public nuissance. When me and my compost file go on dates, then I'ma public nuisance. I don't know. I'm actually not sure which that is, but okay. Okay. Private nuisance. Is the neighbor likely to succeed? Okay. So A is the weird one. A no, because the neighbor has not suffered a harm different than that suffered by other neighbors. Now that's a, that's an odd one, isn't it? It seems like, oh, there's a class action going on, but this person's suing outside of that or something, but I know it has nothing to do with that or it could be, could imagine that if the way that the tort works or whatever it is, if for some reason, oh shoot, is that the public private nuisance distinction there? So interesting. That's actually wonder if that's what's going on here, I've never seen private nuisance. I don't think I've had a question related to that. I have seen public nuisance questions, and I thought that was usually like a business polluting a town or whatever. But now I'm wondering if private nuisance is something that's like, yeah, it's directly affecting one person. So if the compost pile smell was wafting over like an old cartoon and had like the green cloud and it was only going over that neighbor and else, is that a private nuisance versus it's going out equal opportunity? Is that some different tort or action or whatever? You have to hey, this thing is causing a public nuisance. If it's yeah, is that what it is? So is this like they sued for the wrong thing? That I had this thought is gonna make it really hard to get the right answer, so at first I was gonna like eliminate A, but I don't know, that I mean it could make sense, it could be like hey, this thing you are doing is affecting everyone, just like a different tort than hey, are directly polluting my groundwater or something. I don't know. Just my groundwater, or something, I don't know, I'm not sure. Okay, B, no, because the environmentalist's compost pile is not interfering with the profitable use of the neighbor's land. I doubt that's it. I highly doubt that's it. Private nuisance, no. I don't think that's it. I'm eliminating B. Yes, because the environmentalist's compost pile substantially and unreasonably interferes with the neighbor's use and enjoyment of his land. So C is the no-nonsense, you would be like the no nonsense answer. And maybe what I should go with to be safe, because I feel like I've been tricking myself too much lately. So C. C is like a strong contender here. D, yes, because the neighbor's use of the property predates the environmentalist's interference. I don't think that should matter here. I think that is something that's like, yeah, I don't know what that is. I feel like that's something like if it's, hey, this already I've already been doing this, then you, Johnny come lately, move over and try to watch outdoor movies. I don't think that's a private residency thing. I feel like that could be like some sort of real property thing. But I wouldn't, I wouldn't think, I wouldn't think it'd be a private. I think if you move into a house, this is just a neighborhood, right? It's just regular neighbors. No commercial anything. It's just like, I think you have the right to the enjoyment of your property, the use and enjoyment of your land. I don't think D is it. I don't think it's like, oh yeah, well, I was already jackhammering 24-7 over here before you moved in. So the fact that you can't ever sleep, that doesn't matter. I was here first. I don't think that's anything. So I'm eliminating D. So strongly A and C here now, is it A because the neighbor has not suffered a harm different than that suffered by other neighbors, so would that matter, or C, yes, because the environmentalist's compost pile substantially and unreasonably interferes with the neighbor's use and enjoyment of his land. It would be pretty weird if it worked that way. I mean, I feel like it's not impossible that A is right, but I think I should just stick to my trying not to trick myself too much, and I should probably go with the safe answer, C. C is pretty basic, it's like, what are we even doing here though, you know, it's pretty basic, but you know, sometimes they're that easy. I would think it would be weird if I brought an action for private nuisance and Heather the composter is like, hey, motion to dismiss, you know why, because everybody hates my compost pile, not just this guy, that'd be a weird way for it to work, but it also, again, it could just be like, you know sometimes the bar will do that where it's like, yeah, they just did the wrong tort or wrong action or whatever, like they brought the wrong action against the person. Since I don't, I'm not a lawyer, it's hard to know that, private nuisance because it's public again, it's public v private. Is that the distinction? Is it commercial use of land versus private use of land, or is it private, as in like public nuisance, you're nuisancing like everybody, private. Nah, I'm just, I think, I think enough. I have enough doubt about any of that, that I should stick with C. I'm between A and C, not 100%, but I think the thing to do is stick with C even though it could be wrong, because I think it's just more likely, and I have more reasons to doubt A, even though it could be the galaxy brain answer. I'm going with C, yes, because the environmentalist's compost pile substantially and unreasonably interferes with a neighbor's use and enjoyment of his land. If you'd like to play along, you know how to do it. Hop on over to reddit dot com slash r slash open args, and find the post for this T3BE and put your answer there and we'll track your answer and stuff. It's super fun. If you're a patron at patreon.com/law, that's an even better place to go because you have a higher chance of getting picked. And if you're a patron, you can do both. So that's where you play. Looking forward to reading your answers and seeing if I got this right or if I stunk it up. All right, Heather. Well, thanks for another fun question and we'll have to see in next week.

0:44:40 Heather: I guess we'll see what happens with the environmentalist

0:44:42 Thomas: We'll find out the rest of Heather's story.

0:44:51 Clip: Thank you for being, say we started from the bottom, now we're here, girl.

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0:47:41 Thomas: That's awesome, 501st and Rebel Legion want you, Cosplayers doing good. Milo Meadsong is on to the post process now that his petition was denied, well, keep us updated, I'm sure that'll take a couple years or whatever, but yeah good luck, A String of Unpronounceable Characters, Malaika Chandler, FRED R GROOTHUIS, Malcolm the Dragon, the Precious Variant, Big Easy Blasphemy, RhondaTheDork.com, Chris Waltrip, Mitchell, and by Felicia, still on top though, it's a close battle, thank you so much, Hall of Famers, you're the best, especially our champion, our reigning supreme leader, by Felicia. All right. Well, that's the show. Thanks so much for listening, thanks so much for playing. It is so fun reading your answers each and every week. All right, we'll see you for Rapid Response Friday.

0:48:23 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.

0:48:40 Heather: The other part did you make it, make fucking, excuse me, make it make sense, like you

0:48:43 Thomas: No, because the neighbor is not huffer, huffered, hufferd a sarm, no