T3BE67: To Larse or to Burgle?

Transcript

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

0:00:58 Thomas: Hello and welcome to Opening Arguments. This is Bar Exam Day. It's Thomas takes a bar exam. It's the answer to last week's question 66 as well as a brand new question 67. I'm joined by Lydia for the intro and for the shout outs. How's it going, Lydia?

0:01:12 Lydia: Oh, yeah, I'm here. Couldn't get rid of me.

0:01:15 Thomas: You're just my emotional support, Lydia, that I have for the Shoutouts. It's fun.

0:01:17 Lydia: That's fine. I can serve that role.

0:01:19 Thomas: It is much more fun to have a friend, a platonic friend. It's a weird time to do this. I don't know. No, it's gonna be so much fun. And then we'll get that brand new question. Heather will be here. She's actually here. She's back. I found her. I've located her.

0:01:22 Lydia: Yes, that's what we are, friends. Woo -hoo!

0:01:36 Thomas: She's here. I promise. I feel like people don't believe me until they hear. No, she's definitely here. It's not going to be just me doing a falsetto voice. I promised you it's actual Heather. So that's our agenda today. Yeah. Wednesdays is just bar exam prep days for now. And the shout outs, of course. Any announcements?

0:01:44 Lydia: We have Q &A next Monday, April 28th at 2 .30 p .m. Pacific, 5 .30 pm Eastern. Working on seeing who all can join, but we're definitely going to have Matt and you and I'll be there, And it's going to be a lot of fun. Reminder that Q &A threads go out on Patreon for folks to submit their questions, regardless of Patreon level. But if you want to join live, you're going to want to subscribe at the higher tier, $3 and up, in order to come and hang out with us live while we answer some questions and chit chat. And it'S always a fun time. So that'll be, again, next Monday, April 28th.

0:02:28 Thomas: It's a fun hangout. We're like deeply invested in a lot of your lives. Like a lot lot of the people who come. Yeah. We've been tracking people's like relationship, dating life, what they're cooking,

0:02:34 Lydia: I ask follow -up questions month to month. If you've shared. Yes, yes, we have.

0:02:42 Thomas: What car they're driving. I mean, it's fun. Yeah, I mean I get very little contact with other human beings. It's my one chance a month to talk to anyone.

0:02:44 Lydia: Jaw surgery. Like, yeah, it's fun. I love learning more about our listeners and our patrons.

0:02:54 Thomas: It's great. It's really fun. So that's Monday at

0:02:56 Lydia: 2 .30 p .m. Pacific, 5 .30 pm Eastern.

0:03:00 Thomas: Fantastic. Well, I'll try to be there. Yeah let me check. I'm not gonna, I can't give you a firm, but I'll check.

0:03:02 Lydia: See if you can clear your calendar. All right. I manage your calendar, so you're going to be there.

0:03:08 Thomas: Oh okay, I'm gonna be there all right. Well, we'll take our usual break and then we'll be on with definitely real Heather, totally Heather. I promise. Can't wait.

0:03:20 Thomas: Today's show is brought to you by 1-800-Flowers. Moms deserve the absolute best, especially on Mother's Day. And when it comes to flowers, there's only one place I trust to get it right every time. That's 1-800-Flowers.com. And I really love their variety and their selection. This year, I went on 1-800-Flowers. Lydia shouldn't hear this because even if she does have time to listen to OA, she's going to hear the patron version because, you know, she is a VIP. IP. So don't tell her. But anyway, went on to 1 -800 -Flowers .com website and there were so many choices and I let Phoebe pick because that's always the most fun. And I have got those flowers, which are beautiful, by the way, already scheduled for Mother's Day. I'm way ahead this time. That is not normal for me. And it is all because of 1-800-Flowers. You can schedule it out that far in advance, probably further in advance. I don't even know. I haven't tested the limits yet, but I'm going to. And right now, when you order one dozen roses, they'll double it to two dozen for for free. And the roses from 1 -800 -Flowers are picked at their peak, cared for every step of the way, and shipped fresh to ensure high quality and long lasting beauty. So to claim your double your roses offer, go to 1-800-Flowers.com slash opening. That's 1-800-Flowers.com slash opening, be like me, do it right now, get it all done way in advance. It's fantastic. This is the greatest feeling. I've never done this before. Do it. 1-800-Flowers.com slash opening.

0:04:41 Ad: [Ad break 1 — ad music]

0:04:42 Clip: Heather Varanini in the digital, how are you doing?, so great to have you back, doing great, if I got this question wrong, we can absolutely blame the substandard non-Heather questioner from last week, whoever that was is fired, they cleaned out their desk, gone, so how are

0:04:45 Heather: I'm good. How are you doing? No, no, no. No, Lydia did a fantastic job. And so big shout out to Lydia for all of her hard work and stepping in. So I'm so grateful to her. She was amazing.

0:05:11 Clip: You doing I mean it's been you you don't realize what you had till it's gone

0:05:17 Heather: No thank you to you and to everybody who's been so patient while I've been transitioning. So, um, I think I heard you mention, um. So for those of you who don't know, I've transitioned into a new role. Um, some other law school was so kind enough to pick me up. And so I've been transitioning into another role where I'm still doing academic and bar support. And so I'm so excited. Everyone's been really kind. A lot of people have been like, so how's it been going? I'm like, actually great. Andso for those of you who maybe transitioned to another job where you've been in it for a long time, you worry, there's like a worry. Oh, no, is it gonna be worse? How's it gonna go? Are people gonna hate me? But people have really kind and welcoming and thoughtful in a way that has been like really refreshing. And it's also been nice to meet the students. So like the best part of the job always, I'm always really excited to get back to meeting with students and and getting back into a classroom. So like, I'm really eager to do that. And I just had this great experience. And everyone's been so kind to me. I really can't say that enough. I think especially and I want to also reiterate that because when people think about lawyers in law school, I think a lot of people have really negative connotation to that. So I'm always so like, pleasantly surprised when I get back into these situations where people are, they're kind, and they're thoughtful, and They're thinking about students first. And so I always want to reiterate those really

0:06:22 Heather: Like, good things that are happening. So yeah, thanks for asking.

0:06:22 Thomas: I'm going to go ahead and say this prolonged audition tape we did here with these questions was part of how you got the job. Don't answer, don't know, blah, blah. I was, don't say, and it wasn't.

0:06:30 Heather: Of course, of course, it had to have been right yay thank you

0:06:36 Thomas: Yay. Yeah, it has to be. It's so great. I am so glad you were able to squeeze it in because we love having you and I really hope we can keep going. Now, having said that, when I find out the answer to this one, I may want to reconsider. No, I'm just kidding. Kidding. Let's find out. What was our question last week?

0:06:45 Heather: Thank you yes well this was our question about the father who was hanging out in golden gate park with his daughter at blue heron lake and she falls in and this sort of rescuer comes in it's actually a nature photographer right and he saves her from drowning but in the process his very expensive very nice camera it breaks but he does rescue the daughter and as that happens when the father and the photographer see each other at the edge of the lake. The father thanks the photographer profusely and promises to pay him to replace the camera in a couple of weeks. And then a couple weeks later, when the photographer contacts the father, the father kind of has a change of heart and he says, no, I'm not going to pay. So surprise. And we're trying to figure out whether the photographer can recover the cost of his broken camera from the father under common law. You correctly identified this as a contracts question. Question.

0:07:37 Thomas: Well, I mean, that's not a good sign because I was like, well, I think it is a trick, not contracts question. But if it's a contracts question, then I don't know that I got it right. But okay.

0:07:51 Heather: We had a couple of answer choices. It was A, no, because the daughter and not the father received a material benefit from the photographer. B, no because the father's promise to pay for the camera is not supported by consideration. C, yes, becausethe photographer suffered a detriment when he dropped his camera to save the daughter. Or D, yes because the photographer can recover through specific performance. So you actually really right away identified there were some contracts language in here in some of those answer choices and I kind kind of heard you say that that was part of maybe your tip off for thinking of that.

0:08:20 Thomas: I mean it was tons of contracts answers. So it definitely was that, but I really didn't like that it was that because it was like why is that the way that this would work? But yeah, at the very least, D specific performance was stupid. I knew that. I'm coming out strong saying that. And if you're like, well, that's the right answer, then I guess I'll just have to leave.

0:08:39 Heather: No, we'll get to that in a minute. But you also hit right away on the topic of the contracts question, which was about whether or not the agreement was enforceable, right? It's about contracts formation. So you right away hit right on that, which is that there has to be offer acceptance and consideration at the time of the contract formation between the parties. So whatever that was happening on in here, you knew right away that that's what it was about. We'll work through each of these answer choices. And we'll talk about a little bit about those different parts. And like you said, D was a wrong answer choice. So you were correct to eliminate D.

0:09:11 Heather: There's a number of reasons why D is wrong. One of which is that it's a remedy when there's a valid contract. It's there when money damages are inadequate, when there is something really special and

0:09:20 Thomas: It would be like, you need to perform as a camera, actually, for me. Judge is like, turns out that's the rules. You gotta be a camera for this guy.

0:09:31 Heather: Nobody else can be that camera, just you. Yeah. And that's just, it's not, listen, listen, we can buy another camera.

0:09:33 Thomas: No, just you. You got to click and then you got to draw something really fast. Yeah, no, that doesn't make sense.

0:09:43 Heather: So D's out. Yeah, it doesn't. So you did a great job eliminating that. And you also eliminated A pretty quickly too. And you talked a little bit about saving the daughter as a benefit, right?

0:09:53 Thomas: Yeah, so A, no because the daughter and not the father received a material benefit. That just seemed like it couldn't be right. It takes a dim view of family. But then again, this father seems to take a dim view of family. So I don't know, maybe it was based on that.

0:10:07 Heather: Well, there's another reason, which is that oftentimes when we're thinking about whether or not there's a valid contract, we want to make sure that we're looking at the two parties who would be in agreement. And the two bodies who would be making the agreement here would be between the father and the photographer, this is starting to kind of shift. This answer choice starts to kindof shift the focus. It starts to go, well, now the focus is on the daughter and whether she received a benefit. That's not actually the focus when we're looking at, again, contracts. We want to see, is there an agreement between the photographer and the father?

0:10:36 Thomas: Well, I think the logic of it would be if you thought that the father and the photographer, the cameraman had some valid contract or something, then this would just be the idea that, well, actually you provided someone else something. So, I guess the question I I have is, is there any difference or reason that your kid receiving something is not, because like, does it matter based on the age? I can sign a contract for my kids to get lessons in something, you know, or whatever. Like it doesn't, is there an age thing that matters or how does that work with contracts for your kids and parents?

0:11:12 Heather: That's a good question. My first instinct, and I'd have to think about this a little bit more, my first instinct is to talk about, because there's also topics called third party beneficiaries and and assigning rights and duties. And so there's a time when you can agree to do something and then somebody else can benefit from your signing of the contract. Now, I don't know if that's the right answer, but that's first thing that immediately comes to mind. So it's not uncommon for you to sign and agree to doing something that benefits another person. That's also part of contracts as well. One of the first things that you think when you get a contrast question is, and this kind of came up in the call of the question, which is what law applies? That's the first thing.

0:11:43 Heather: And when you see in the question it says under common law, that's what it's getting at? Does the common law apply or UCC? The reason I mentioned this is because you're trying to figure out because there's a different universe.

0:11:53 Thomas: That's right. Yeah. If it's goods, then it's the the UCC yeah

0:11:56 Heather: Yes. Yeah. And then if it's pretty much anything else, then we've got the common love. And in the next set of questions that you ask us, they're a valid agreement. Is there a valid contract? Is there valid offer, acceptance and consideration? And you're looking again at those two parties. So we're looking, did our friend, the photographer and the dad, was there an offer? Did one person make an offer to another? Was there an acceptance between them? And then was there valid consideration? Meaning like, was there a detriment on both sides, basically? And then that's kind of what we're getting at. And even if that agreement benefits somebody else, that has to exist between the two parties to the contract.

0:12:20 Thomas: Gotcha sure sure so this is one of those like answering in the alternative if you had a different mistaken assumption that's why it's interesting to me like if you thought there was a contract but then the thing it turned on was wait a minute the daughter got something the only interesting distinction to me would be is my kid getting a swim lesson a material benefit to me because I'm the dad or the parent and I feel like that would be a yes right or is there some like like joint contract -y thing where it's like, oh, I'm actually not getting the benefit my child is, but I'm still signing the contract as a guardian or something. But I was interested in the distinction there if one exists.

0:13:07 Heather: That's a good question. And I think that tends to come up more when there's like a breach in the agreement, like if somebody doesn't perform, and then that question about was there material benefit? Or was there an material breach versus a minor breach? Who did get the material benefit of the bargain?

0:13:19 Thomas: Oh, because the material benefit thing is, oh okay, well that's another facet of this. So if I go back through my what forms a valid contract thing, which I loosely remember and you just said a second ago is the offer acceptance consideration. Is that it?

0:13:33 Heather: Yes.

0:13:33 Thomas: Yeah. And so material benefit is not one of those words. So what is material benefit? You're saying Is that a term that's just thrown in there to trick the Thomases of the world, or is that a language that's used in something else, like as you're saying, like a breach or something like that?

0:13:48 Heather: And that's a great question. It is language that comes up in another part of contracts that you'll talk about in some other areas, right? Who received the material benefit of the bargain in case there was a breach, in case that sort of thing. So it is kind of thrown in there to be like, oh, did I miss an issue? Is this about something else?

0:14:02 Thomas: Sure. So there's a multitude of reasons why this one doesn't make sense. Gotcha.

0:14:06 Heather: Yeah, exactly. Yeah. So now we end up being down to B and C. No, because the father's promise to pay for the camera is not supported by consideration. Or yes, C, yes, because the photographer suffered a detriment when he dropped his camera to save the daughter. And you chose C. The photographer suffered a detriment because part of consideration is that it's a bargain for exchange of something of legal value, right? That's kind of like the long and shorter, but a lot of times it can be, I think a better way to explain consideration, at least for me, has always been to give examples. A return promise to do something. I think one of your examples that you gave was there's an exchange of promises. Like I'll give you $500 to paint my house. Another one is a return promise for doing something that you're legally allowed to to do. I'm going to give you a car if you don't smoke for a year. Yeah.

0:14:49 Thomas: Oh, that's what? Oh, nice.

0:14:51 Heather: So that's also consideration. Those are things that are considerations. So what you're looking for is a part of the agreement. Was there like an exchange of some sort of detriment or something of value? So between the parties, at the time, let's say, was there an offer? Was there acceptance? And then at the same time, did somebody give up something and give somebody something at the same time? That's a lot of times we're looking for.

0:15:11 Thomas: Yeah, I didn't really think so. I think I was just going with the sneaky, not a contracts issue. You. But I mean, if I were to try to rehabilitate my probably wrong answer, the only thing that could come close that I mentioned was like, if you deliver something and someone's like, forgot my wallet. And then they're like, I will pay you for this. That's the closest I could get. I've delivered you a daughter. Here you go. Here's your daughter. I have suffered some cost of in the form of my camera, but here's the, here'sthe goods dropped on the floor. You know, No, she's fine. She's fine, she just a little, yeah. And then the guy's like, I forgot my wallet, we'll pay you later. It's the closest I could come to it being a contract, but I don't know that it is.

0:15:51 Heather: You're dead on. It's actually not a contract. And for part of the reason that you mentioned, and the other part is that there's no time. I think also part of the issue here is that There's really no time for them to have a contract because can you imagine if your child's drowning and someone goes, Oh, I really like to save your child. But first, let's talk about the terms of this agreement. Yeah.

0:16:07 Thomas: Well, if anything, that's why I hoped there'd be some way that this works out for the cameraman, you know? Like I would think the law, I guess that was sort of another part of my reasoning was like, yeah I feel like this scenario is not that crazy to have happened throughout history and have some sort of way they deal with it.

0:16:21 Heather: Right. Well, I think too, and there's a really easy rule. And one of them is that certain things are not consideration. Consideration. They're not sufficient to me consideration. One of them is a promise to make a gift. That's one that kind of comes up a lot. Well, I promise that I'll give you a gift in the future. But the one that applies most to this one is past consideration, right? Something given in the past is an adequate consideration because you can't bargain for it.

0:16:43 Heather: This comes up A lot. There's a really famous case as basically a child was drowning, passerby sees the kid jumps in and saves it. And then an eternally grateful parent offers the rescuer money for the rescue. I'll give you that money because this rescue happened in the past. It's a little bit of a weird timing thing. And it kind of doesn't make quite sense. But because the contract agreement has to happen kind of at the same time, we're having this conversation, I'll do all that stuff. And if it's something that happened already, and then you can't try to then enforce it, like in this scenario here, well, I will give you the money. And then the photographer tries to enforce it later.

0:17:13 Thomas: It's definitely not a contract situation. That's what we can all agree on. I was just hoping there'd be some other way that it would work out.

0:17:17 Heather: Yeah. Yeah, I mean, and it's possible. But I think it's also trying to encourage people's good behavior, right? We don't we don't want to discourage people from rescuing other people. That's for certain listen don't be butterfingers and drop your damn camera so c unfortunately is the wrong answer and b is the correct one because it deals with the issue of consideration here we have past consideration because the father's trying to say trying to provide money for something that the photographer did in the past and that's not sufficient

0:17:24 Thomas: Apparently we do. Yeah, and why should we look at this as anything other than a cold, hard contract? You know, just the way God intended. This is the way you would look at it. And no other way.

0:17:57 Heather: So don't love it don't love it can't we be a little bit more

0:18:01 Thomas: Yeah. I don't understand where lawyers get the bad reputation, Heather. I just, I'm trying to figure it out. I can't, can't figure it down. Yep.

0:18:06 Heather: Humane if there was only a good example of that if if

0:18:13 Thomas: So for once the common sense answer in terms of obviously this person should get reimbursed for the camera didn't work. And I think that's important because like, again, from the beginning I said like, well, hopefully this is just not a contracts thing. Um, but yeah, if it's going to just be a contract, fine. If it's just be a contact thing, I guess it's Just going to be a contracts. And that's that it was my second second chance answer, because I did recognize that B was probably the heartless monster lawyer answer.

0:18:27 Heather: Only yeah

0:18:42 Thomas: But I feel good. That's one that Thomas's second chance law firm, that's what it was made for.

0:18:34 Heather: Yeah yes yes

0:18:47 Thomas: You know, that'S why I got into business in the second chance. Law firm is to get that one wrong with the humane answer. And then, you know, you law robots can get it right. That's fine.

0:18:47 Heather: Yes hey listen I'm gonna give a plug here is this not the perfect one of the great examples of trying to build a better law profession isn't this a really great right to your set to your law firm right a lot less of this a lot more

0:19:03 Thomas: Yeah, there you go. Starts, change starts with us. Yeah.

0:19:08 Heather: Yeah listen yes why do you think I teach

0:19:10 Thomas: All right. So it sounds like you got it right.

0:19:11 Heather: Yeah that's what I heard yes

0:19:11 Thomas: All right. No, let's, I got it wrong. Let's find out which heartless bastards got it right this, this week. I'll start us off with blue sky. Cause we had some good, we had some good skeets. We had some good quotes, keyed answers. Garrett Leach at Garrett leach .dev. Oh, okay. I guess if you're a dev, you got a cool thingy there.

0:19:36 Heather: Fancy Nancy.

0:19:36 Thomas: It says B there's no consideration. There was lots of consideration of the beautiful scenery, but not of a contract. Contract. Either that or I considered the red heron of contracts a lot too much. Good stuff. These are all pretty good. I think I'm going to give, I haven't given a blue sky shout out in a minute. I'm a triple shout out. Brian Gibson at apparition dash maker says, I think it's B, the photographer saved the daughter under his own initiative, not as a consideration in exchange for paying for the camera. No contract was formed. The father's promise is just words. Yeah. And ethics are just things that people do, you know, that That all action, what is murder? Just an action someone took in the form of moving one's body, possibly. That's all murder is. And promise is just words. I agree. Glad we're all psychopaths today. And the photographer cannot claim to have been materially harmed by the broken promise. Well, that I don't know about, but okay, fine. I'm not sure if that's necessary to the whole thing. Clearance Unicorn, great name. At Clearance, Unicorn says, A is wrong because the dad does benefit from the kid being saved. Yep, sure. Sure. D is wrong because specific performance is about, yeah, blah, blah. C is wrong because the offer to pay was not made before he dropped the camera. So there was no detrimental reliance that leaves me with B. Yeah. Okay. No, I know. I pretty much came to the same conclusion, pretty much the same, except the part where I had a heart, but no, you got it right. Good job. All

0:21:00 Thomas: Three blue skeeters. All right. How's Reddit doing?

0:21:02 Heather: Brett is doing great. I'm actually going to give a shout out here to ProfessionalLaw4639, who answered correctly with B, but it's also said, I'm a law student in my final week of law school. So bar prep isn't the horizon. So I hope I'm right. You are. I mean, I'm not reading your full post, but I just did want to say congratulations on finishing up law school. This is a huge thing.

0:21:22 Heather: Please take time to celebrate. You're going to graduate law school soon. I know you will jump right into bar prep soon. Take time to collaborate. This is such a huge accomplishment. So good luck. Congratulations. Also, I'm going to read out RCT Bob who says answer B is correct. The guy had already dropped his camera before he made the promise. And so it's not enforceable. If the father had shouted, quote, I'll pay for your camera if it breaks if you save my daughter, end quote. And then that would be really weird and specific requests, but would probably be enforceable still makes the father an a -hole though

0:21:51 Thomas: He's like I would get her, but but I have to drop this camera. He's like, I hereby accept your offer. I will replace your camera. Then we'd have a contract. See, and honestly, like jokes aside, that's so dumb that I thought, oh, well, there'll be some provision for like you had to go out on a limb to do something for somebody in a way like this, you know? But hey, there wasn't. Yeah, yeah, I hear you.

0:22:11 Heather: I'm yeah most of most people answered b correctly yeah

0:22:19 Thomas: But let's go to patreon.com/law for the most important winners. Aaron Hutton says, says, I can never figure out how to answer on Blue Sky, so I'll answer here. I think it's B, mostly because the father paying for the camera would be the considerate thing to do, but there's no consideration. No good deed goes unpunished.

0:22:35 Thomas: Yeah, Aaron Hutton, good job. And also just to clarify, go on Blue Sky, follow open args, find when the T3B post is and just quote skeet it with your answer. And that's how you do it. Now for the big winner, we got to go with No Country for Old Ben, who says the answer is B. At Common Law, the rules about contract formation were pretty hard -assed. A law podcaster in England in 1620 presented with this question would have thought the answer was so obvious, he probably would have said something like, hast thou lost thy wits? Ere the sire did vow his payment, the limner had already wrought his benevolence. Therefore, no true bargain of mutual recompense could be formed. The law has since adopted a more chill attitude about this kind of thing, and you might be able to enforce the promise was under contract. This question is really tricky because, and I think Thomas was going for this, tort seems like a more intuitive way for the

0:22:34 Heather: I love

0:23:26 Thomas: Photographer to recover damage to the camera. I don't really remember the details of torts brought by rescuers, but I remember that the rescue party needs to have been negligent. We could make an argument here that the dad was negligent for letting his non-seaworthy daughter hang out so close to the water. Snuck that one in, that's a good one. But I think the question would have to make it way clearer that the father was negligent, especially when all the answers are phrased as contract answers. Yeah, no, that's fair. Also note that under tort, the liability of the father would not depend at all on the promise to pay. I also noted that actually. I did note that, that the promise actually had nothing to do with anything if it was torts. Again, that was really my theory. It was like, there's going to be some tortsy way or some other way that it would work. So we all agree. That was fantastic. No country for old Ben. Loved it every step of the way. Yeah. Unless it was like... Oh, quick. I let swim in that, you know, that lake with all the camera smashing sharks? I let her swim in there after something. I don't know. Yeah, the dad would have to be, it doesn't quite, this doesn't quite do it. Fantastic. Great answers. So glad to have Heather back

0:24:28 Thomas: Most of all. That was awesome. And now we'll see if we have Heather Beck for a question after this.

0:24:38 Thomas: This episode's brought to you by Notion. Look, there's definitely no shortage of AI tools and AI related things out there. But if you're like me, it's hard to even figure out where to start with that. I need AI to tell me about the AI, but then which AI do I ask? Not to mention I've got my notes and things in so many different places, but that's where Notion comes in handy. Notion combines your notes, documents, and projects into one space that's simple and beautifully designed. Notian is your one place to connect teams, tools, and knowledge so you're empowered to do your most meaningful work. All right, I've got the best reason to use Notion. It says here, teams that use Notions send less email, already great, cancel more meetings, bam, sold, done. There's nothing better than canceling meetings. I can't stand meetings. And save time searching for their work and reduce spending on tools, which helps keep everyone on the same page. You had me at hello. So try Notion for free when you go to notion .com slash opening. That's all lowercase letters, notion .comm slash opening to try the powerful, easy -to -use Notion AI today. And when you use our link, you're supporting our show. Notion .com slash opening.

0:24:35 Heather: Yes that's what you will

0:25:49 Ad: [Ad break 2 — ad music]

0:25:50 Thomas: Heather, you made it. You're back. You're good. We held on to you for the question. I'm so glad. I was worried.

0:25:54 Heather: Yeah me too I'm so glad

0:25:57 Thomas: Why don't you go ahead and give us question 67 here?

0:26:00 Heather: Well Marcia decided she needed more spice in her life, and she purchased a brand new fast red motorcycle. She parked it in the garage attached to her house for safekeeping. Unfortunately, her flashy new two -wheeler caught the attention of one of her neighbors, Dylan. Dylan loved motorcycles, but fell on hard times and did not have enough money to purchase one for himself. He was an engineer and adept at creating gadgets from things around his workshop. After seeing Marcia's new motorcycle, he created an automatic garage door opener that could open any automatic garage door. One night, he used the device to open Marcia's garage door, hotwire the motorcycle, and take it for a joyride. Dylan intended only to drive it around town, show off to his friends, and enjoy the wind in his hair for a few hours before returning the motorcycle to Marcia's garage without her knowing.

0:26:03 Thomas: Marsha, Marsha. Marsha! Wow. Okay. I love these questions. Ah, yeah. I mean, what's the crime here, Your Honor? Her. This is a lot of, they call this empathy. I feel like we're getting a lot inside into this criminal's like, his backstory, you know, you just, you just want to borrow it for a little bit. Wow. Jeez. I'm going to say no to that. No crime. Because he had really good reasons for everything he did. So, no crime. Another burglary, larceny dealio. I mean, we've had enough of these. We've had a few of these, and And I'm going to prove that by getting it wrong. That's how I'll prove that we've had enough of these. Okay. First, I should start with the category. And it feels like criminal law. I would be hard -pressed to imagine it being anything else. So, okay. So the burglary, larceny thing. Burglary. The distinction is always the larcenies just slipping away with something. And burglaries usually with the threat or force of violence.

0:27:07 Heather: However, while Dylan was out cruising around, he detoured to his friend's party at the beach. After parking Marsha's motorcycle atop the cliffs overlooking the ocean, he felt a rush of anger at the unfairness of the world, pushed the motorcycle off the cliff, and watched it fall and crash into the water below. Under the common law, what crime or crimes is Dylan guilty of? A. No crime B. Burglary C. Larceny Or D. Both burglary and larceny

0:28:18 Thomas: But I feel like, and I feel like I've been gotten on this a few times. I think there's some other thing where if it's like at night in your house, I actually think that's also burglary for some reason. And it kind of makes sense. It's like, even though it might otherwise be larceny, it's like, well, it's your house and it's at night. Like, that's burglaree -y. Burglaree. Um, but the both is going to be interesting. Okay, so no crime is hilarious. That's my favorite answer of all time. No crime, just totally fine I also don't I like I don't even know so larceny I'm surprised they didn't throw like a grand theft auto in here but I guess like under common law maybe that didn't exist I don't know you steal someone's horse back then it's just like horse that's just horsing around it's horse crime back in the common law days if you just wander off with someone's motorcycle without violence is that still larcenY I guess it could still be larcenE because again I think it's without the threat of violence. But I do actually think the whole garage attached to the house, I think that's significant. I actually think that'S what we're going with here. There's just something in my mind that I'm pretty sure your house and specifically nighttime, weirdly enough, I feel like is part of this. I feel that's just some carve out. I don't remember why I think that? Some sort of question, or maybe it's not. I don't know. But I actually think that's, and the fact that I remember that, and we got the details of attached to the house, garage attached to the house and that it's at night. Like, I think we're looking at that burglary larceny distinction. And I think it's trying to make me think larcenny with the fact that there's no violence and you just sort of, he's going to return it. That's, you know, just, just taking it out. But but I think it's, it's secretly burglary, but what could it be? Both I think is the key is the key question here. Does the garage door thing matter? Like if you just, if he just opens a garage door and I don't think that, I don'T think that matters. There's probably some case law about this. Cause this distinction probably matters in terms of the attached garage. Maybe that'd be, I don' t even know if it matters that he pushed it off the cliff. Like I'm actually trying to figure out if that even affects anything. Cause like it might, it might affect like, you know, rather than recovering it, there might be like a damages thing or something if it was civil, maybe. But I don't think in terms of larceny or burglary, like, yeah, for example, I mean, if you larce something else or you burgle something, it doesn't really matter what you do with it after you've done that to make it, you know, like if I walk off with something from the supermarket and then I throw it off a cliff, that doesn't turn it into burglery. That's still larcenY. So I think that's just for, you now, to make us take too much time answering it because Cause I don't, don't think that matters, but it could be something I don'T know. So easy elimination on A. I think B burglary is alive because of the nighttime house thing that I swear I'm remembering. I think that's, I think That's right. I think it makes sense. Cause it's like the whole idea is a distinction between like using force and not, you know, and we, I guess the laws long seen that as like different, which I guess makes sense like if you just get sticky fingers versus if you're willing to like threaten to hurt somebody or hurt somebody to steal something. But I can imagine the house maybe being something where it's like, well, it doesn't really matter. Like if you come in someone's house, like that might as well be burglary. And I think that kind of is the thinking there. Like it kind of makes a certain kind of sense to me. So I think B, burglety is alive and well. C, larceny. I think C we can eliminate because if I think it's B, then it can't be C. Like if it's just B, if it'S burglery, it can'T just be larcenY. So I THINK we eliminate C easily. And I THINK we're just down to B, burglarY or D, both burglARY and larcenYY. So is there any part of this that's Larson? I don't know if there's some distinct, like the way the question's going, it seems to want to make me think about like what his mindset was, which I just don't, I don'T know that that matters, but, but maybe it does. Maybe there's the idea that like, well, if he just borrowed it to do a joyride and put it back, that's more larceny-y versus once he decided to trash it and send it off a cliff, that makes it more burglary. But I just really don't think that's it. I think that is all distraction. But I guess I kind of think this is either or. I don't really think it is a both. I am going to allow for D. Well, I guess the other question is if I am pretty attached to B in terms of burglary, what is my second chance answer? On one hand, I am torn between B and D just because that was what I was torn between logically speaking. On the other hand ,I got to think about what is more likely. And I kind to feel like something being both burglery and larceny is kind of not really ever ever true. Like, I kind of think it's either or. I mean, if it's the threat of violence, if it qualifies as burglary, it's burglery. Unless there's like two different crimes, but I don't, I don'T think it was. I Mean, opening the door, like, do you make the argument that like the part where he like got access into the house is like somehow a burglory? Maybe that would be like if that part's a burillery and then the larceny is just slipping away with something. I guess that's the only kind of weird way I could see that working out. But I actually think even even though I'm between B and D, I actually think in terms of second chance strategizing and my second chance bar exam has been very good lately. And it's important because I often get these wrong. I think I'd rather go B and C because if I'm wrong, it would probably be that I'm wrong about this like garage rule, you know, this house at night rule. And that really we're talking larceny. So I think I'm going to actually go between B. And C. Even though when I was eliminating, I kind of, I, kind of eliminated C, but I think that I think looking at what's most most likely, if I'm wrong, I think it's likely to be larceny. So I'm going to go between B and C and I'm gonna go B burglary. And if you'd like to play along, go to blue sky, follow open args and find the skeet that is T3B and do a quote skeet. You got to quote skeeth the skeeth. It's the only way it works. And that way you're sharing it and you're providing your answer. And also reddit .com slash r slash open arg. That's a great place to make Heather laugh a lot at your answers. So we heard last time, or maybe you're only going to hear in the post credits. Could be that you haven't heard it yet, but she found your answers really funny. Or most importantly, patreon .com slash law. That's where the high rollers go to play T3B. That's Where the heavy hitters play, get their T3D kicks.

0:34:28 Thomas: So that's where you play. You go for that post on patreon.com/law and put a comment there with your answer. And I will laugh at it a lot. All right. Well, Heather, thanks so much. I'm so glad you were able to make the time for us. We badly missed you the other week. Yeah.

0:34:42 Heather: Me too.

0:34:43 Thomas: Yeah, we'll find out how punked I am on this one. We'll find OUT if poor Dylan can talk his way out of burglary. I don't know. If you create a garage door opener that opens someone's garage, it's practically they wanted you to steal it. You know, it's like, come on.

0:34:59 Heather: Them's the rules.

0:34:59 Thomas: It's right there. Yeah. This show is brought to you by HIMS. All right, men, dudes, dude bros, guys. HIMS is changing men's health care by providing you with access to affordable sexual health treatments from the comfort of your couch, which that's the best place for it, I'll be honest with you. Trying to go in and talk to someone about this in person can be not the most fun thing to do. So forget that and try HIMSS. The process is 100 % online, so there's no need for uncomfortable doctor's visits. Just fill out an intake form on their site and a medical provider will determine the right treatment option. If prescribed, your medication ships directly to you for free, no insurance needed, and one low price covers Everything from treatments to ongoing care. With hundreds of thousands of trusted subscribers, HIMS can help you find the ED option that works for you. So start your free online visit today at HIMS.com slash opening. That's H-I-M-S dot com slash opening for your personalized ED treatment options. HIMS dot com slash opening the featured products include compounded products, which are not approved nor verified for safety, effectiveness or quality by the FDA. Prescription required.

0:36:20 Ad: [Ad break 3 — ad music]

0:36:29 Thomas: And there's just one thing left to do, which is to thank our patrons, both our new patrons and our Hall of Famers. We'll start with those new patrons at patreon.com slash law. And here with me to do that, of course, is Lydia. How are you doing?

0:36:42 Lydia: Hello. I'm doing great.

0:36:44 Thomas: So much fun to have you here. All right. Well, here's the newbies. Well, why don't I let you do it? I'll let you deal with the newbie. And it's one more step to have to send a screenshot. But, like, we have enough this time that I feel like it's worth it.

0:36:54 Lydia: What an honor. All right. And welcome to the Cool Kids Club. Oh, a Patreon. Welcome to Sharon, Bradley, Eliza, Holly Moore, Megan Hansen, Brittany D Steffey, Keleigh Quinn, and Ivo Dimitrov. Welcome. And thank you for joining us.

0:37:13 Thomas: And now we've got to thank our Hall of Famers, our all -time greats. These are the folks that really, really support the show to a degree that is irreplaceable. We also track a lot of their lives and their goings on. It's a two -way relationship for sure. We're more invested than them than they are in us, if I'm being honest with you.

0:37:29 Lydia: Yeah, it's probably accurate.

0:37:31 Thomas: They're like, oh, yeah, podcast, whatever. Yeah, sure. We're like how did your date go from last time in the hangout?

0:37:35 Lydia: I know. We're not having any more kids. So this is like our chance to expand our family. In a very healthy way. Yes.

0:37:42 Thomas: Sure the good thing about this segment is I know only the like really hardcore listeners make it this far so we just speak to them like it's I like it I mean for real yeah and why don't you start us off thanking those hall of famers

0:37:49 Lydia: Yeah. Our favorite people anyway. Yeah, okay. Thank you to UnreMerkable Casey Kahn. Democracy cannot survive unregulated capitalism. Donna Treadaway, Mother of Harridans. Vote Zoran Mamdani for NYC mayor. Please do. And Liz Skeen would be especially grateful because that's her friend.

0:38:10 Thomas: Please do I don't know I think that hear me out I think we need someone like the same thing person who's for everything all the time in politics. That's just in general. I think the best thing to do is the same three people forever for the rest of time for anything. Yeah. Yeah, just forever. That is the way to do it.

0:38:23 Lydia: Like a Cuomo brother. Yeah. And just rotate. Yeah, yeah. Maybe Gavin Newsom can like move to New York and then run for NYC mayor. Yeah yeah you guys don't want him. I'm gonna keep thanking people. Hunter Biden slap chop.

0:38:50 Thomas: Slap chop.

0:38:50 Lydia: I don't know what that is but that's sounds great.

0:38:51 Thomas: Hunter Biden's laptop, but Hunter Biden slap, chop, chop I don't get, but okay. I'll go with it.

0:38:53 Lydia: Oh Hunter Biden's slap chop oh okay all right. Cyanitis. Disappointed in all the capitulating to fascism we are as well tim ward fourth circuit attorney reluctantly changing her font sex and gender are different things apprentice of adventure still rooting for the hamburgers to deliver more timely justice than the current system unfrozen caveman lawyer Nick Fish vehicular man's laughter is out of battery fair valus tarak valus torak did I say it valus tark Cork.

0:39:23 Thomas: It gets weirder every time. Yeah, it matters not at all.

0:39:35 Lydia: But I want to get it right. A negative phenomenon. Cavalri. Irregardless of anything, Gretzky has only three goals from the record.

0:39:37 Thomas: There is no right. I think it's a fictional thing.

0:39:46 Thomas: That's really good. That is such a long joke in the making too. It's like there's so much set up there. Yeah he's going to suit up again.

0:39:53 Lydia: Yeah, you got to fight for your right to ex parte. Jay Sank. Thomas's. Is this A .I. or Al? Thomas's A. I.

0:40:02 Thomas: It is A1.

0:40:02 Lydia: Sotomayor. Oh, Thomas's a one So do my org girlfriend. Does this mean I get Linda McMahon's job?

0:40:08 Thomas: I was going to say, the way that you didn't laugh, I wasn't sure if you knew I was joking. Thomas is A1, Sotomayor, girlfriend. Thank you so much.

0:40:12 Lydia: I was trying to push through. Okay. Yes.

0:40:17 Thomas: Love it.

0:40:18 Lydia: Chuck Quisling Schumer out of the Senate. Look, I finally changed my name. For real, legally. Thomas Freeman and E .T.

0:40:26 Thomas: Thank you, too. Cajun Killer, Fraud Fishy Hates Everything, Chris Simpson.

0:40:28 Lydia: I think it's Cajun Killa, but that's okay.

0:40:31 Thomas: Oh, that's true. Cajunt Killer, Frod Fishy hates everything. She did that from memory. Wasn't even like, she's not even looking at him right now. Yep.

0:40:36 Lydia: I know. That's how much you guys mean to me.

0:40:40 Thomas: Fraud Fishy Hates Everything, Chris Simpson, love the extra episodes. I love the Democrats. Fecklessness is my fetish, baby. KB. Gun control works. See Australia. Mark Schultz. The Cincinnati Kid. Bob Loblaw's Law Podcast. Philly Basement Bar is back open and isn't taking this shit lying down. Elect Thomas Smith President, American Honky Tonk Bar Association. Paul Ducatet. Philip Kizer. Trump's just jealous because Heard Island has an emperor. Yeah, like an emperor penguin. Yeah. That's good. Coryn Lann. Hors d'oeuvres in the court before we report. A string of unpronounceable characters. Malaika Chandler. Milo Meadsong is fighting petty tyrants. Malcolm the Dragon, the precious variant. Rhondathedork dot com, Big Easy Blasphemy, FRED R GROOTHUIS, Chris Waltrip, Classic libtard, and Mitchell.

0:41:04 Lydia: Yeah, yeah, that's cute. I like that.

0:41:25 Thomas: Thank you so much, world champion Mitchell. You know, they doubted you when I said for a while that you were definitely going to end up on top. It's just straight math. People were like, no way, not possible. Yeah, no, it happened. And now look at this. Speaking of orders in the court, loosely speaking, forgot to mention, I mean, just for fun that we went to, Matt and I got to see in New York when we were all together, Matt andI got to to see Liz in Night Court, which I thought was not real. I thought that was a fictional thing.

0:41:49 Lydia: But you guys miss the sovereign citizen, she said.

0:41:53 Thomas: I know we missed a sovereign citizen in Night court. Oh, that should be the name of something like a novel or something. A sovereign citizen. It's a really weird, whatever Yankees can King Arthur's court. What is Connecticut? I want to say Connecticut. Yeah, it is a Connecticut Yankee in King Arthur. Yeah. Jeez.

0:41:55 Lydia: Yeah. Ooh. I'll call John Grisham. Yeah. King Arthur's Court. A Connecticut Yankee in King Arthur'S Court. Yeah, 1889.

0:42:14 Thomas: That feels like yesterday. Then modern version is a sovereign citizen in Liz Skeen's night court. It was really, I mean, it was not interesting, but it was also interesting. Like to me, any of that crap is interesting, But like, if it was like a movie or TV show, it's the lead and you wouldn't even make it like there, nothing happened again. I didn't get the sovereign citizens.

0:42:35 Thomas: I was there for just the most basic things, just drunken disorderly disorderlies just, and, and hey, guess what? It's all like homeless people who are not white. You You can't sit in a courtroom like that for more than five seconds and be like, oh, is this all racism? Yeah, it's all racism. Oh, OK. It's just all part of the systemic racism. So that was a bummer. But it was cool seeing Liz Skeen do her thing, because Liz Skean, like all OA lawyers now, are on the good side, are on side of trying to help the folks who might be getting steamrolled by the system. And they aren't just corporate lawyers making, I was going to say a dollar, but it's a lot of dollars, making too many dollars. So that Was Fun.

0:42:37 Lydia: Like traffic tickets or what? Okay. Hmm. Yeah of course. Yeah Yeah. Yeah. The good guys.

0:43:17 Lydia: Yeah, did you guys end up taking pictures? Um, you and Matt?

0:43:20 Thomas: Yeah, but I think it was on Casey's phone. So I don't know if I have any. We'll have to, you can bother Matt, Matt can bother Casey, and then get ahold of those.

0:43:23 Lydia: Okay. Okay. All right. And then in a few months, I'll get them maybe. Yeah?

0:43:30 Thomas: Because it's a really dumb thing I ever do where I'm like, let's take a picture. And if I ever take the picture, it's as good as gone. It's in my phone forever. And someday I'll look back on them 50 years from now. But if it's ever like, oh, let'S get a picture of this. I'm Like, yeah, someone else do it.

0:43:46 Lydia: And and anyone who's in the Facebook group will have seen a picture that I posted because I took a picture and I posted it of when we met up with Liz.

0:43:54 Thomas: Loved it. That's great. I'm glad you did that. Thank you so much. Watch and thanks everyone for listening and our patrons most of all love you so much and we'll see you for rapid response friday see you then oh my god are you serious that's awesome

0:44:21 Lydia: Did you see Hegseth ordered a makeup studio to be installed in the Pentagon? Yeah. Yeah. To get ready for any press like TV spots.

0:44:30 Thomas: Yeah war fighters we're fighting all I think every time I think of him it's just war fighters we're finding we're hiding we're fighters where are we not fighting any wars right now

0:44:40 Lydia: Yeah so why do we need warfighters?

0:44:41 Thomas: Pretty much yeah war fights all we need apparently you need to get back to war fighting war fighters were fighting. Stupid.

0:45:02 Thomas: This is Heather just reading your amazing answers, everyone. I think unless she started doing something else, got bored.

0:45:08 Heather: No, no, I'm literally reading the answers.

0:45:09 Thomas: Look at what Garfield said in today's paper. No, he's not.

0:45:14 Thomas: Ethics are just things that people do. You know, that lake with all the camera smashing sharks.

0:45:21 Lydia: Sharon, Bradley, Eliza, Holly Moore. I don't know. I didn't know if it was Sharon Bradley bradley or sharon and brad I don't know okay I'll redo it yeah it was me getting stuck on if that was a first name or a last name

0:45:25 Thomas: What is this that you're doing? What is. Oh, OK. I thought you were doing some voice or something. The cadence was. OK.

0:45:38 Lydia: And if you did a weird enter