OA Bar Prep With Heather! T3BE42

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: And welcome to Opening Arguments. This is what we do every Wednesday. It's Thomas, expert, our bar prep tutor, Heather Veronini, gives me a practice question. Well, answers and then gives me another one. Folks play along. It s a lot of fun. Question last involved a compost pile so you know and seeing as how this is episode 42 that means we'll get the answer to 41 and we'llgetthatfreshquestion42 can't other than please go follow that instagram account open args pod olivia doing a great job over there it's a good good follow. It's really cool. And been making a few TikToks when I have time at SeriousPod on TikTok. You want to check that out. Than that, I think it's time to take a quick break, which you can avoid at patreon.com/law. then let's head on over to Heather for the answer to question 41. it is time for the answer to last week's stinky Stinky question about an environmentalist everyone's environment themselves, their smell environment, with this very stinky compost pile. Little nervous about this one. I hope I didn't myself out of the right answer, but Remind we'll us what happened with this question. I

0:02:00 Heather: Had an environmentalist who decided that they would take up composting in their neighborhood and it just stuck up the whole place and we had this nice neighborhood where these families were living and they would have like outdoor barbecues and parties and movie nights and then as soon as that compost pile went up the fun went back inside and then um had one gentleman that decided that since he couldn't do that anymore um because of the smell of the the compost pile that he would sue his neighbor. We're trying to see whether or not his lawsuit was going to be successful. That's what we're looking at. So let's see. So you started and your thought was that this was a real property question. But as you were working through, you said torts quite a bit. Made you think this was real property over torts? What was kind of like the deciding factor?

0:02:18 Thomas: Mean it feels like it's kind of both but enough of of this beard of the question felt like you know just the use and enjoyment of of land and stuff and so I felt like it was more real property -esque oh

0:02:55 Heather: This is one of those places where the two kind of overlap. Lap but it ends up being a torts question because yeah because we have one neighbor kind of suing another um a civil lawsuit but it is over kind a real property issue right so that's where it has a little bit of the both yeah

0:03:12 Thomas: Okay but enough torts that we're torting it's it's we've got a yeah plurality of tort or majority I guess just a majority of tort

0:03:15 Heather: We're tweeting we are that's right and you were absolutely correct that this was a private nuisance question um our big tip off here was um again I love these kinds of questions because um it doesn't tell us right in the call of the question we can always back up and a lot of the times the tip off is when so-and-so so-so for x and here we have that our neighbor is suing our environmentalist for private nuisance and this is telling us that's exactly what the call the question that's exactly what's happening so we can go straight to our rule for that but um don't worry I'll walk us through what that is as we go through the answer choices. Let's talk a little bit about, let's start with answer choice A. No, because the neighbor has not suffered a harm different than that suffered by other neighbors. You talked a little bit about feeling like this was a versus a private nuisance distinction. Do you mind reminding me a little bit about what made you think that? Were

0:04:11 Thomas: Well, I was just kind of grasping for what it could be at first. I was like, oh, that doesn't matter here. But then I was thinking, I don't I can't quite I don't think I know private nuisance versus public nuisance. I don't think I've ever seen private nuisance. And so I worried that a might be getting at that, like maybe maybe this was the wrong action. And maybe, you know, maybe this is for when someone's just causing you harm and nobody else or something. And then but if it's if it's causing a lot of people the same harm, then it would have to be like a public nuisance action. That was what I worried. But ultimately, I just didn't have didn't enough confidence to go that direction.

0:04:42 Heather: You all right in thinking that this answer choice was getting at that distinction. You've done enough of these questions to know exactly how it's going to test. So, you are definitely heading in the right direction with that. And this answer choice is actually getting exactly at public nuisance. This was a public nuisance. Yes, absolutely. Hope this is also helping you to realize that you are absolutely getting in the correct direction. And the more practice that you're doing, the better that you'll get at these. I hope that you feel more confident hearing that, because I was so excited to hear you I was like oh yes you're exactly right um let's talk a little bit about public nuisance it's an unreasonable interference with the health safety or property rights of the community at large this also requires a private party to suffer a unique damage that's not suffered by the community large so it has these two pieces where one yeah and I had heard you kind of mentioned like oh I think that the questions that you had have done before, that it kind of requires something similar, like there's like a community harm.

0:05:28 Thomas: Interesting. Thing yeah I kind of got at that but I didn't know there's a secondary requirement that one person has more like a distinct harm from others huh

0:05:44 Heather: And this will happen a lot. This is how it gets tested, at least on a bar exam. What this might look like is that, let's say, for example, a local lake gets polluted and locals can no longer swim in their beautiful local lake. Then we hit on that unreasonable interference with like the health or safety of the community, But right? Let's say um you've got a business owner and maybe that business owner has a fishing where maybe they have a little trout farm and they have people come in and pay to fish the trout from the local lake and he's the only person that has that business once the lake gets polluted he can no longer run his business and he is affected uniquely in that way and he he's allowed to bring a public nuisance claim.

0:06:22 Thomas: I what I'm getting at is but for that you can just pollute a lake and it's fine well what is it just some different thing so what if you pollute the lake but nobody happened to have a fishing business what happens huh

0:06:32 Heather: I imagine that there are different laws and different causes of action that you can bring, it might not be a public muisance claim, yeah,

0:06:47 Thomas: And maybe the reason being like, it's an individual person suing for it. This is a tort. So like, hey, you've done something to me specifically is like somewhere in the tort logic and something else might govern if it's, hey you've affected a bunch of people the same. Okay, interesting.

0:07:05 Heather: But here we're missing piece of something right? Because, yeah.

0:07:11 Thomas: That was public nuisance, right? You were talking about? Okay.

0:07:13 Heather: Exactly. Yeah. And also we know that that's not the cause of action here. We have the neighbor suing for private nuisance. Also brought up a good question about whether or not this kind of was a question that was almost trying to trick you. Was it like the right cause ofaction? Did I hear that correctly?

0:07:19 Thomas: But now that I think about it, it looks like I eliminated A for, well, I didn't have great reasons. I just didn't, wasn't confident enough, but it sounds like I didn'T get that quite right. So A, actually the logic of it is the person, the neighbor would have needed a harm different than other neighbors in order for it to be a public nuisance, not in a way that would suggest it should be a pubic nuisance. Um yeah oh

0:07:52 Heather: That's part of how A is incorrect and how we can eliminate it. Also, too, the bond exam at this point, they're going to try to trick looking insofar as telling you there's plaintiff suing the defendant for a cause of action and then not really tell you that somehow there was a mistake and they should have done something else they're not going to do that's like too nasty and tricky um

0:08:12 Thomas: I disagree I feel like that's what happens recently that like when it was um well okay maybe maybe sharper lawyer brain sees this differently but that's how I saw when they're like oh they're suing for specific performance versus what they should have been suing is just give me the money like that was like two questions ago or whatever like I see that as like, that's, that kind of trick to me. Now maybe, maybe you're sharper. I see it as a different thing, but like that, that, I feel like that happens to me a lot.

0:08:38 Heather: I get you yeah yeah that makes sense yeah and I see what you mean there yes I meant was sometimes usually what they'll do sometimes there are our questions where they will ask uh the highest level of culpability that so -and -so can be you know that sort of thing they'll ask it in a more direct way but I will agree that there are some super tricky kind of questions that have that feel of like wait a second is is this really supposed to be something else

0:08:59 Thomas: And they're they're, so tough for non-lawyers. Cause it, what it'll do is cause like a non - lawyer looks at the whole thing. It was like, this is a winning issue. You know, like you look at the whole thing and you're like, yeah, this person should win. Then like the question has been really tricky and been like, well, but they're asking for specific performance, you dummy, not like just money. And that gets me. Cause like, I'm like, oh yeah, duh. But, so that's like that kind of trick. Um, really hard for non -lawyers cause it's so easy to get distracted by like, well, this person obviously has the winning case here, but if you sue, if you bring the wrong cause of action, it doesn't really matter. That like kind of blows the whole thing.

0:09:33 Heather: There are two that not just for non-lawyers but even for for folks when they're taking these questions it can be really tough for a number of reasons not the least of which can be uh the questions will play with your feelings and you'll be like like you said oh they should win or like oh well he was done a massive injustice oh

0:09:47 Thomas: Like, I love compost. Damn. Compost smells great to me.

0:09:52 Heather: Love it she wants to like save her neighborhood or whatever you know exactly just to go back to it and that's part of how a is the wrong answer choice that's

0:09:55 Thomas: Well it sounds like a is just yeah it's asking a thing about public nuisance and it sounds unless I mean we haven't gone into private nuisance yet sounds like it has nothing to do with the test for private nuisance cool all down with a down with

0:10:09 Heather: Exactly correct yep so now we're on the B. No, because the environmentalist compost pile is not interfering with a profitable use of the neighbor's land. This is where we can start talking about private nuisance. Private nuisance is a substantial and unreasonable interference with the use and enjoyment of the plaintiff's land, and because the law loves to get more complicated, we've got to break down substantial and unreasonable. So what this answer choice is doing is it's trying to get to the unreasonable part and I'll explain that I promise um unreasonable what this means in this context is that the severity of the inflicted injury has to outweigh the utility of the defendant's conduct and said another way the harm that's suffered by the plaintiff must be a lot worse than the usefulness of whatever the defendant is doing and that relates to be is that um court a lot of of times uses a balancing test to determine the unreasonable interference, right? It'll balance the interests and use is one of the factors that it will look at. It'll see like, oh, was there any profitable use of neighbor's land, right. What I like to do when I look at this is say, we know two things about best answer choices, they have to answer the call the question question to be correct based on the facts. I look at this and I go, oh, well, do I have any facts in the fact pattern about the profitable use of the neighbor's land? It tell us anything?

0:11:32 Thomas: No unless it's charging the um money to come watch the movies which could possibly but But unless that's happening, no.

0:11:40 Heather: That's how I know that B is a wrong answer choice because we don't have any facts there. You said, that's exactly what it would be. Is he charging his family? Is he charged in popcorn? Does he have, instead of a lemonade stand, a popcorn stand, right yep

0:11:52 Thomas: That's interesting because, again, the answer, though, is no. So, like, by this logic, it could be like, well, yeah, that is why this isn't a private nuisance or why it doesn't succeed is because the neighbor is not charging for the movie night. It just that that isn't a necessary condition. It's just it could be a sufficient condition, like if it were interfering with profitable use. Gotcha.

0:12:17 Heather: Nailed it perfectly and and also I always look at this to say I also ask myself um he harmed more than what's the usefulness of what she's doing like is our friend um neighbor with his movie night is he suffering more harm than her big stinky compost pile essentially right how's that gonna come out yeah

0:12:35 Thomas: I love our dynamic because it's like I'm such a logic brain and I'm it's like we're we're like we speak two different languages and then it's trying to make them coalesce. And I actually love it. It's really fun because I would just think of this in terms of necessary versus sufficient. Like it's with profitable use is not a necessary, but it could be sufficient. Right. As in that there could have been one way to go, or it sounds like from what you're saying, correct me if I'm wrong, that if the thing that the can't do, like if the the neighbor is suffering is just like insanely bad, even if it has nothing to do with profit, then that is another way that we know that that could succeed. But that means that the profit part isn't necessary, just could be sufficient. Gotcha. I love it. Let's keep translating.

0:13:18 Heather: I like it too Well, and I also like that because funny because the way that my brain works, and I think your brain would be very good doing the LSAT because the LSat does a lot of logic puzzles and that sort of thing. And so I love hearing you say that because that's a lot of times how I have to translate is into what you're saying, because that's not the way that my brain works first. So I always love hearing you talk that way. And I'm always like, yes, that's correct. You know, because it takes me another step to get there, if that makes sense.

0:13:40 Thomas: It's great. But it's so fun because everyone's brain is different and there's there's no one way to know something, you know, like there's many different ways to have knowledge. It's really interesting. All right.

0:13:48 Heather: Exactly. So unsurprisingly, that's how b is incorrect so b is out so both of the no's are out so is our neighbor likely to succeed yes so we're in the yeses so we'RE DOWN to c and d yes because the environmentalist compost pile is substantially and unreasonably interferes the neighbor's use enjoyment of his land or yes because THE NEIGHBOR'S USE OF THE PROPERTY predates the environmentalists interference interference. I'll hop down to D because you almost, um, uh, almost kicked this one out and said that it was irrelevant. You explain why I didn't, I want to make sure that I remember why that that was.

0:13:57 Thomas: Like yes. Yes. OK, so I thought this this could be something, but I like for some other thing, like imagine it being relevant at some some different cause of action or something. But it didn't seemed like this would turn on whether or not the neighbor's use predated the pile. Because it just seemed like when we're talking about a neighborhood and we're talking about the right to your home versus not, like, let's say there's a vacant lot next to a neighbor who's just doing, I don't know what the most private nuisance -y thing is, the example, but like just awful private, the worst private nuissance you can imagine. Imagine. And then I move in and like, whoa, this is unlivable. And then they're like, yeah, but I've been doing this forever. I don't, I feel like with private property, I like residential property ,I feel like that shouldn't work, but I could be wrong. I don't know.

0:15:10 Heather: Not wrong. Um, it doesn't matter in the sense of like, that's not like you said, that sign of, yeah, there are, there aren't some stuff in real property. So when we get into the real property stuff where timing matters a lot, um and timing is super important but this is not one of those places and so

0:15:14 Thomas: Good. Ah, that's exactly what I was thinking. Okay, good, all right.

0:15:27 Heather: So when you're like oh this feels irrelevant I'm like yes you're right and d is out so that leaves us with c and I'll explain before I explain a little bit more I'll talk about the other part of the rule which is the substantial portion substantial means that the defendant's behavior or actions has to be obnoxious offensive or inconvenient to the average person in the community versus just like a sensitive person right sorry listen there's always that with torts um what we know from the fact pattern is that we've got this community of people who were hanging out outside and then all of a sudden they end up inside because this very foul smelling compost pile right facts are trying to tell us is that they're trying to telling us that um environmentalist compost pile is obnoxious to the average person in the community that's what that's trying to get at so it's trying to tell us that it does meet this substantial requirement that's what those facts are there for that's trying to say that there's not just it's they're trying to save it that yeah not just the neighbor it's not just him being super sensitive with his like dog level nose right

0:16:19 Thomas: Not just this sensitive person. Yeah. Cause that would be me by the way, that absolutely would be me. It'd be like if my neighbor was really into Axe body spray or some other, like any, really any perfumey thing. And if they're a little heavy handed on it, I'm like, I can't live here. I'm burning down my house. But everybody else would be like ,I don't, I don't know what you're talking about.

0:16:45 Heather: I'm like I can be like half a mile away and I'm not going to be like who put on that freaking axe body spray who that sin against humanity we're

0:16:52 Thomas: So as long as you and I live close, then maybe, be, then maybe we can, yeah, we can like, oh, see, everyone's affected by this.

0:16:55 Heather: Fine we're in the community

0:17:01 Thomas: All two of us. Yeah.

0:17:01 Heather: Listen but yeah so that's what that's trying to do it's trying to say that that's substantial and so it meets the unreasonable and the substantial part um and we see that it interferes with our friend the neighbor the use and enjoyment of his land because he can no longer hang out with his family like he used to outside right and that's how we get to see not only by process of elimination because it meets their requirements for the rule so you were correct the c is the correct answer yay

0:17:26 Thomas: Right. Yay. Recovered. Finally. Feel like you're just, you're sending me easy ones to make me feel better sometimes. No. Okay. So that we've done 41 questions as the numbering would suggest, but we had a little, a little controversy early on before you were here, Heather, where some of the, it turned out five of the questions were repeats. I don't know. Do you know this? Did I tell you this?

0:17:47 Heather: Can't remember.

0:17:48 Thomas: Well, because I'm hardcore, I decided, all right, if they're repeats and I got them right, not going to count them. If I got them wrong, I'm going to count them because that's even worse. And I got four of them wrong. Just the four out of the five repeats I got wrong, which is sad. That's really bad. So that's why the the score is out of 37 right now. So right now I'm 24 out of 37 for 64.86%. And, doing okay. Okay. In the day, it was like, I was struggling for 55%. I think it was struggling for, so I feel like I'm doing better or Heather goes easy on me. I'm not sure which.

0:18:24 Heather: I don't I promise I promise I don't listen

0:18:26 Thomas: We go. All right. Well, I'm so happy about that and I'll have to find out who this week's big winners are. Give them some shout outs. Well, I, I don't know. I don't know. I think this was a pretty easy one because everybody got it right. I feel not at all special for getting this one right. I not even sure I found a single person who didn't get it right. One of those where I think the no -nonsense answer is the right answer. So how do we choose? Well, over on reddit.com slash r slash openargs, -s -s I underscore p -e -t -i answered, I swear if the answer isn't C, then the bar exam belongs in a a compost pile. But also, it's sandwich sandwich time. And another frequent winner said, I'm going with C. I think a horrible stench would the enjoyment of the neighbor's property. And I think that's sufficient for a claim of private nuisance. Also, Heather needs to mix up her compost pile and get some oxygen in there. Done, Yossi Petty, and it's Sandwich Time. Of course, our most important, Important, most brilliant winners on patreon.com/law. their ranks, support the show. Great batch of winners to choose from. But Kladacki says, C, because the best conclusions are the ones made immediately without previous consideration. And because this sounds like when your sibling puts its finger very close to your nose while arguing, I am not touching you. And that should be illegal.

0:19:42 Thomas: Peter Olson, who says, C is the only answer that makes sense. A, B, and D sound like lame excuses that only a lawyer could think of. Well, you know, a lot of our law is lame excuses that only the lawyer can think of, so not sure it's bulletproof logic, but it worked. Thank you so much to patrons Maria Kledacchi and Peter Olson. Love the participation. Keep it up, everyone. It's so much fun. This one was easy, but we'll see how the next one is. Episode is brought to you by Quince. Do you ever open your closet and think, why did I buy that? Definitely have. I've noticed that of the stuff I bought in the past is just not like the quality that it ought to be and it wears out so much more quickly, but since shopping with Quince, I have not had that problem at all. I am still wearing my Quince stuff, the time, and it still looks just as good and fits just as right as when I bought it. Has all the seasonal must-haves like 100% European linen shirts from $30, performance polos, and versatile the best part. All Quince items are priced 50 to 80% less than similar brands. Ends. Do they do that? Well, it's by partnering directly WITH top factories. CUTS OUT the cost of the middleman and passes the savings to you and I. Quince only works with factories that use safe, ethical, and responsible manufacturing practices, along with premium fabrics and finishes. Finishes. Wearing some shorts that I got from Quince right this minute as I'm talking to you. Made liberal use of their summer collection because here in Sacramento, California summer for 11 and a half months out of the year and so I got at I need more. I would love more from Quince, and love them. Wore them for most of summer. They still look Great. They Still Fit Great. Recommend. Fill your closet with timeless pieces you'll be wearing for summers to come with Quince. To quince.com slash OA for free shipping on your order and 365-day returns. That's Q-U-I-N-C-E dot com slash OA to get free shipping and 365-day returns. quince.com slash OA.

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0:23:10 Thomas: Despite being a private nuisance myself I'm glad I was able to get that question right. Hopefully I can carry that momentum on to question 42. By see. Let's see if I can get one right here.

0:23:22 Heather: Right, All right, well, let's see. Defendant was charged with two separate crimes related to her drunken, they

0:23:26 Thomas: Again, the the defendant crime family they're wreaking havoc on the nation heather someone's gotta get to the bottom of that yeah

0:23:31 Heather: Are all over, related to her drunken driving debauchery in Fort Mason in San Francisco, which is a national park. Of the crimes was punishable by a maximum of six months imprisonment and a $4,500 fine. Requested a jury trial, but her request was denied. Proceeded to a trial before a judge in federal district to court in San Francisco and was subsequently convicted of both charges. Judge sentenced Dasha to four months of imprisonment for each charge, to be served consecutively, as well as a fine of $4,500 for each charge. Appealed her conviction, arguing that she was entitled to a jury trial. The appeals court overturn Dasha's conviction?

0:24:13 Heather: No, because the maximum sentence for each offense was six months. No because Dasha's actual sentence for each offense was less than six months. Yes, because the sizable fine makes each crime a serious offense. D, yes because the combined maximum sentence for the offenses was eight months.

0:24:10 Thomas: Okay wow what oh my god I have no idea okay so here is the weird thing in terms of the category there is it's I mean criminal law and procedure you would think it would be but there's also like the interesting federal question in there and there's federal civil oh that's civil procedure never mind I think it's got to be I it's pretty much got to criminal law and procedure unless there's some other I could see is a constitutional law if this involves your constitutional right to a jury trial that might be something but I'm feeling like it's pretty criminally here. I'm going to say criminal law and procedure is the category we're in possibly with a little bit of a possibility. You're in a national park. Not sure if that matters. I guess maybe it makes it a federal thingy. Is that the key? Because if you're charged, you're in a trial before a judge in federal district court are you entitled to a jury trial and by and the weird thing is none of the answers are yeah you're entitled to do a jury trial so they'll overturn the conviction they're all related to the sentencing so that would that would imply that the issue is that you are you can probably have a jury trail if the crimes are serious enough or something. Or if if the there's punishment, it seems to be some combination or some calculation based on the maximum sentence and stuff like that. So I guess that makes sense. Like, I don't know. Was going to make a comparison to like, when you get a speeding can you request a trial by jury or whatever? That's also a different thing. So it's not exactly the same. This is going to be hard. Each of the crimes was was punishable by a maximum of six months imprisonment and a $4 ,500 fine. Proceeded to a trial before a judge in federal district court in San Francisco and subsequently convicted of both charges. Sentenced Dasha to four months of imprisonment for each charge to be conserved consecutively. So, that's rough. Rough. That means she is sentenced to eight months and $9,000 total. Her appeal says I was entitled to a jury trial. Is going to be a tough one to get right. This This is going to be a tough one to get right. So, it seems like it's based on the maximum sentence or something. Okay. And if I had to guess, I would guess that amount the is going to be something in between 1x and 2x of these things because it's like, does it count per charge or does it account per entire sentence that you got? Like, I'm guessing that's going to been an issue here. Maybe it's one. Oh, wait, wait. Oh, I just had a weird memory. What is that? Just had weird memory of something about a year, like being sentenced to like a year and a day or a year minus a day some reason. Uh, what is that some, that has been covered on the show somewhere sometime had that. And I don't remember. Okay. But that, so I, yeah, I think a year maybe, maybe that's going to be the key. It's It's like maybe a year is the critical amount of time. And so the point of this question is like six months was the maximum for each. Now, do you count it by adding them together? And I kind of think you would have to because is the longest I've thought about this without even getting to the answer answer. Is both. But I think, okay, I'm imagining that the consideration here is going to be, hey you're entitled to a jury trial if it's a big enough deal if you're charged with jaywalking and it's you know it's nothing it's too that's too much like everybody if everybody demanded jury trials for every little thing uh would clog the and already very clogged system so maybe that's maybe that'S what we're working with here um this is federal so it might be slightly different but but I think that's what what we'RE working with HERE so perhaps the rule is based on severity of the sentence. Now, the question is going to be, is it per charge or per entire thingy? And I think the law is at all logical, which it may not be, I think you would want it to be based on the total possible time you're facing. I mean, imagine if you did like 30 things that were not terrible, it'd be pretty rough to not get a jury trial when you're looking at a thousand years or something, you know, like something crazy like that. So like, I'm actually pretty sure now it's based on the it's based on the most time you could face and the cutoff is a year. And the painful thing, and that's just by, oh man, I've stringed a lot of barely memories together. The painful thing is I don't remember if it's a year or a year and a day that it's going to matter. So I could, I could do all this and then get, you screwed on that, count. On But But so I am thinking just before looking at anything else, if I had to just give an answer, I would think she's facing a maximum sentence because it can be consecutively. She's facing an maximum sentence of a year. If I Had to guess, I Would think that that like the cutoff would be a year now. Would it be a Year or less meaning you don't get a jury trial or is it more a year or more you do do Have a right to a jury trail. God, the appeals court overturn Dasha's conviction? No, because the maximum sentence for each offense was six months. That would be on the logic that we deal with each offense, not the sum total. I think that's wrong. I actually think it is the most time you could do, like with with any, any you kind of combination of possibilities, I think. B, no, because Dasha's actual sentence for each offense was less than six months. So that's interesting. Actual sentence was, now that, that's sort of, if I'm right about this year thing, which I may not be, very deviously disguising the year thing. So it's saying like, no because the actual sentence was less Than Six Months, meaning that when you added them together, that is less than than a year. Now, am I wrong in six months is the cutoff or is a very, very clever way of hiding the year thing? God, I feel like a year is something. Maybe I'm remembering a different thing. Think more about that memory, it was something Something like, if you do a year and a day, then you're not eligible for something. Remember it as being something kind of crappy, like kind of like a way to really stick it to somebody. It was, if he sentenced them to a year, and a date, they're not, they don't have a right to do that. They're eligible for, I don't know, time, sir, early, really, no, something. Something. I feel like that memory is not this. So maybe six months is the here. Six months and under. Let's say, what if six months is the cutoff? So the key to the question is, but if you add them up, it's eight months. If you don't add them Up, it is six months. Would suggest that it could be six months and fewer, but maybe not because A says no, because the maximum sentence for each offense was six months. Going to have to keep going through. I think I've uneliminated A based on that. I've no, because Dasha's actual sentence was less than six months? I think that's possible. I don't think that's right. No. That can't be right. Okay, I think I can firmly eliminate B because the decision or the right to a jury trial has to be before that. It has to be before you know what the actual sentence was. Otherwise that would be insane. That wouldn't make any sense. So B, I'm going to say is a no. yes, because the sizable fine makes each crime a serious offense. Oh, okay. So it sounds like serious offense is the issue. So you are probably guaranteed a jury trial or the right to a jury trail for a serious offense and the serious offense now now does the money make an issue sizable fine is nine thousand dollars a sizable find enough to be a serious offense I don't think so not nothing but like I if I were thinking of me like now maybe inflation is a problem I don'T know when these regulations would have been or whatever when these rules would have been written. Like a year of my time or six months of being in, in jail is worth a lot more than $9 ,000. So like, I'm trying to think of like, oh, either this amount of time or this amount money, the amount of money would be a lot higher in my mind. Cause like, imagine how much it would suck to be in jail for six months. I would not, if someone's like, Hey, you want to to go in jail for six months in return I'll give you nine thousand dollars I'd be like uh no I wouldn't do that now maybe we go a little higher there might be a number eventually we can reach a deal but I feel like nine thousand I don't know nine thousand that nine thousand doesn't seem like that number to me but was this rule written long enough ago that like we're talking nine thousand in like 1937 dollars and that's like a billion dollars I can't eliminate c but I'm feeling like that's not enough money for it to be a serious offense but I could be wrong d yes because the combined maximum sentence for the offenses eight months oh oh well that makes it easy oh d is just wrong so yes because Because the combined maximum sentence for the offenses was eight months. That doesn't, so that would be once again using the four months, which was what she was actually sentenced to. But again, I do not believe that could be, unless I'm getting something really wrong, I don't think that could be how you decide the right to a jury because that would happen after you would need a jury. D, I think they might have just slipped me a little bit of an out there because D I think is is solidly wrong and B is solid wrong. So I guess I can at least say I'm between A and C. I know that much. Wow, this is crazy. So here's my issue now. Am pretty sure, like, I don't know why I know this. I think it's some vague memory, but it's also, I think, logical. I'm pretty sure it's based on the maximum you could be sentenced to. I think it is based on that. It makes sense because you don't know what you're going to be sentenced to. And I think this determination should be the maximum time you could do, because that kind of determines how serious it is. So because of that, wording of A would be super tricky if it's right, because A says no, because the maximum sentence for each offense was six months. I don't think it's for the each offense. I think think it's the total. Like I'm virtually certain it would be the total now. Are they being super tricky and saying, no, it's not a serious crime because if you add those together, you get a year and maybe the cutoff is a year and it should be a year in a day. That would be the trickiest trick to ever trick. That Would Suck. That's possible, but that would suck. The, here'S the crazy thing. Think I'm going to go with C. I actually think I'M going to to go with C because I think B and D can't be right. I'm, I'm pretty certain that it's based on the maximum that you could be sentenced to. AndI think you would have to add it together because they're being served consecutively, not concurrently or whatever. So if you were to get sentenced to the maximum thing and serve that full time, it would be a year. A says no, No, because the maximum sentence for each offense was six months. So here's the thing. I'm going to answer C. it's A, that's the trickiest trick to ever trick. And that's amazing because if it's a and I, well, okay, I could just be entirely wrong about what's going on here. But if, if I like, if I've gotten it right thus far, somehow and possibly, and it's a year and a day is the problem. And A is saying no, because of maximum sentence free defense was six months, therefore you add them together into a year. I'll just take my lumps on that. Like, if that ends up being it, be sad that I didn't choose it, but, think I am going to go with C, because I just don't think A is worded in a way that would logically make sense, but we will see. So, I am between A and C. I am gone with C. I think the sizable fine, apparently, is going to make, oh, wait. Makes oh god c also says makes each crime a serious offense so that would imply that it's not about the nine thousand it's about oh man this sucks I just noticed this the last second yes because it's fine makes each prime a serious defense that would mean that like it's not about adding them together that would be the amount would be somewhere beneath beneath forty five hundred dollars so each the other thing I don't like about that is because I I wouldn't really think it would matter if it's each crime like that feels a little super to me so like let's say I was charged with murder and jaywalking you know because like I jay walked over to someone and murdered them it would be kind of weird to be like well they each have to be a serious events otherwise no dice that's stupid so I now I'm kind kind of worried about this language yes because the sizable fine makes each crime a serious offense I I would think it would be like taken as a whole it's is it a but but serious offense clearly seems to be the terminology here and it could also be that the amount is less than forty for five hundred dollars and it's just saying yeah not only yes but each of the crimes was not only as a total but each each of the crimes was a serious offense, man, is like my favorite question, assuming I've gotten any of this right, it's my favorite, if I've gotten all this wrong, and I'm just talking about nothing, that sucks, but think what really bothers me is each crime doesn't need to be a serious it doesn't I think that can't be right because like I said you could be you could be charged with something that's like not at all serious and something that is serious together and it really is more about the maximum added together so I man I actually think I'm gonna go with a now even though I think it's like very tricky way of stating it it at least is doing the calculation that I think you have to do which is the maximum sentence possible and it's saying no because the maximum sentenced for each offense was six months add those together you get a year gosh I think I'm between a and c I'm going with a no I'm I'm doing with a this is this question, I love this question. This cannot wait. I cannot wait to find out how wrong I am on this. So, final answer A, second choice C. All right, Heather, I'm going to be on pins and needles for an entire week on this one.

0:37:52 Heather: Right. Well, I'm excited for the next one.

0:37:55 Thomas: Yeah. So we'll say goodbye for a week until I find out what and if I'm anywhere near correct. But hey, everyone, make sure to play along on reddit.com/r/OA because that's the place to do it I'm really excited to look at the answers for this one uh that's if you're not a patron if you're a patron of go on patreon.com/law and play on both by the way that way your score is tracked on reddit and you got a better chance of being picked on patreon.com/law so that's where to play you so much. Can't wait to see these answers.

0:38:26 Clip: Thank you for being, say we started from the bottom, now we're here, girl.

0:38:36 Thomas: It's time to thank our patrons, our all-time greats over at patreon.com/law. They make the show go round. Seriously, this is the kind of coverage that only exists because of you folks. So please consider pledging and joining the ranks. Got a new patron to thank this week. Debbie D. Thanks, Debbie D. And then it's time to thank those Hall of Famers, those all-time greats. We begin with Scott Barra. Chandler. Rip into it. Judy Hanrahan. Stare Decisis has gone into hospice. Ian Goldfinch. She talking about me? Logomancer. Sex and gender are different things. I don't mean they're different words. Folks should stop saying female instead of woman. Apprentice of Adventure. Jesse D. Myers. Cavalri. I.T. Coyote, caveman lawyer. Served with cold hamburgers. Philip Kizer, Nick Fish, A Negative Phenomenon. I, Thomas, just wanted to say, go Caps go. No, go Sharks go. I am kind of rooting for to break Wayne Gretzky's goal scoring record. I think that would be really cool. But he's gonna need uh gonna need some really good seasons uh a very old man it's possible (You Gotta) Fight For Your Right (To Ex Parte) Jaysank. Terry Cannon, no relation. Carol Nichols, no relation. Et oh, oh great, now I have to go back to changing my name every month. I'm Fast At Sex. Thomas Freeman. Cajunkilla. Fraud Fishy Hates Everything. Chris Simpson. Love the extra Extra episodes? Check out the Queer and Cryptography Conference at cryptography.lgbt. Liberals own guns, too. Support root cause mitigation, not ineffective gun control. Not a lawyer, but I play one in court. Give up on funny names. I'm just Leo G for now. Oh, nice. I love the goddamn Cranberries and Matt and Tom at the same time and not in that order, but the Cranberrys are not my favorite band. Stormy Decisus says, visit sharebandbooks.com. isn't a patron 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. Basement Bar is knocking doors for Harris. You should too. Edgy Veggie, Elect Thomas Smith President, American Honkytonk Bar Association, Baltakatei, Chapman, The Solutions Archaeologist, Philip Kizer. I have concepts of a patron name oh you might be this week's winner oh maybe I should start choosing a patron winner for name shout out just for fun and if I'm doing that I gotta say I have concepts of a patron name is a good one that's right now that's the leader the 501st and rebel legion want you cosplayers doing good Milo Meadsong is on the post-conviction process now that his cert petition was denied

0:41:24 Thomas: So much, Hall of Famers. Love you so much. To our winner, I have concepts of a patron name. Right, that's our show. Can't wait to be back for a Rapid Response Friday. There's a lot to cover. I wonder what we're going to land on. Hey, another patron perk, by the way. We put up the Patreon thread each and every Wednesday asking you folks what you'd like to hear explained or covered in Friday's show. So if you're on Patreon, you get a voice there. You get to suggest things and also kind of vote on other people's things. So hey, patreons, get on that. Maybe you didn't know about it. Check it out each and every Wednesday. Well, we'll see what we decide to cover or what you decide to cover, and we'll see you for Rapid Response Friday. See you then.

0:42:03 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.