Getting Our Dramshop Act Together

Transcript

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

0:00:47 Thomas: Hello, and welcome to Opening Arguments. This is Thomas Takes the Bar Exam 69. Yep, that's right. I've hired my wife to stay against her will. She's saying night... No, I'm just kidding. That's right, it is time after a week off. It is time to come back. The bar exam calls. So, we do the usual. Heather will be on in a little bit to give us the answer to last week's question, shout out some winners, and give us that new question. But Lydia's here for some fun, some camaraderie, some atmosphere in the beginning and then of course we'll be back for the shout outs later let's see any news well we are trying to make high court happen I feel like we should reward the dedicated listeners who listen to t3be

0:01:18 Lydia: I sure am. Ambiance. We are. Oh my gosh. Yes. They need to know. It is scheduled.

0:01:32 Thomas: High court is scheduled we'll see that doesn't mean it will

0:01:37 Lydia: I've had a discussion with Matt about the drugs of choice.

0:01:40 Thomas: Happen it's been a different scheduling experience where you're having to schedule someone's

0:01:46 Lydia: So yeah, I was saying, you know, like, okay, is a Wednesday or a Friday better? And he was like, I think Friday is a better vibe. And I was like alright, that's fair.

0:01:50 Thomas: Drugs yeah you just can't you just gotta go to court on weekdays probably and I I know I teased Gavel Gavel, but that had some unexpected additions. And now, for real, for reelsy reels, I am just putting the finishing touches on. And normies on Gavel gavel are about to get like 10 straight episodes. That's not even an exaggeration. Zero exaggeration will probably do like one a day for like the next week and a half because there's so many. But patrons at patreon .com slash gavel pod will get chunks. The chunk method will just give them a hardcore history. I'm excited about that and I know I teased it before but then what happened was it turns out the complaint was like double the amount we thought it was yeah and they were each half of a complaint length it was weird

0:02:14 Lydia: We we charted it out today yeah yeah the problem was the intro and the factual allegations were completely different yeah normally it's like the factual allegations reflect on the introduction and maybe expand upon it but like they were totally different in this one so we ended up having to go double

0:02:51 Thomas: Yeah and you normally hope there's gonna be some pictures and some index and some other crap that just takes up page numbers you know that's not good but I guess in this case there were pictures really of text messages

0:03:00 Lydia: There were a lot of pictures yeah

0:03:02 Thomas: Some of them incomprehensible Oh boy. So anyway, gavel, gaVEL heads. Gavel heads will know. I see you gavel heads. I'm making it a thing. It's, yeah, I don't know.

0:03:12 Lydia: Hey, I'm here for it.

0:03:16 Thomas: So be on the lookout for that. Be on the look out for the, you know, we'll do the usual Q &A. I think we're going to do, we need to switch up the Q &H. We need to do an actual Q &, the old timey Q &E video that we used to do. We got to switch to that.

0:03:26 Lydia: You know, I'm glad you're bringing this up because this was a an agenda item for me for our next work meeting. Because I needed to I need to pick your brain on this because I want to make sure I set it up right for everybody for the show.

0:03:31 Thomas: This is T3B69 slash OA board meeting. Yep. Yeah.

0:03:40 Lydia: You know, that it's clean, that it's wonderful and that it's smooth sailing. But I'm excited for this to kind of go back to the roots of the Q &A.

0:03:48 Thomas: I think that needs to happen. I think that's going to be the way to go. And then maybe we'll do the like private hang after for the top patrons kind of thing. So, yeah. All right. Well, that's our, uh, that'S our meeting. Uh, just let me take the minutes of that meeting.

0:04:00 Lydia: Send them to us, please, because we'll both forget.

0:04:03 Thomas: It's, uh... Five minutes. I don't know what the... Is that the minutes? Or you just say how many minutes it was. I think that's a joke in something. I can't remember.

0:04:07 Lydia: You don't know what Minnesota is. Yeah. Yeah, well, I don't know it, so it's a joke from you.

0:04:16 Thomas: I get a lot of mileage out of Lydia not remembering any quotes of anything. I can just say it's me all day. No. No, I never would do that. Can't take credit for someone else's work. All right, well, after this nonsense... that you probably didn't hear any of because I cut most of it. We're going to get on over to Heather.

0:04:32 Lydia: Lydia, edit. Lydia, edit.

0:04:35 Thomas: We're going to take our usual break, which you can avoid at patreon .com slash law and then we'll get on to Heather and question 68 answer and then the new question and then, we'll, uh, get this goofball back for the patron shoutouts later.

0:04:52 Ad: [Ad break 1 — ad music]

0:04:52 Thomas: Heather Varanini, how are you doing today?

0:04:54 Heather: I'm doing pretty great today. Not in any quandaries over who owns what in regards to my house, but how are you doing?

0:05:00 Thomas: I am just counting my sticks. Fine, I figure I want to figure out who owns what sticks. I don't know. We'll find out who owns what, but I am very happy to have you here for another question and answer. That's the best. So why don't we get to it? Remind us what question 68 was.

0:05:14 Heather: Well, we had the wife, Wendy, and the husband, Hubert, buying a beautiful house together, and they took title as joint tenants. And then they had a child named Kelly. And after that, Wendy and Hubert got a divorce, and Wendy and hubert continued to hold title to the home as joint tenants. But then Hubert moved out of state and conveyed all of his title and interest in the land to Kelly. Then shortly after that Hubert was killed tragically. And died without a will. So we're trying to figure out who has title to the land now.

0:05:38 Thomas: The motorcycle. Damn it. I should have said that. I think the motorcycle, once it, it's sort of like a Highlander situation. Like once the motorcycle falls on him, it wins and then it owns. Okay. So Wendy and the motorcycle is the actual answer.

0:05:55 Heather: E was Wendy and the motorcycle. If we had our answer choices were A, Wendy, B, Wendy owns one half and Hubert's lawyer owns one half as tenants by the entirety, C, Wendy and Kelly as joint tenants, or D, Wendy and Kelly as tenants in common. And you correctly identified this as a real property question. And this is kind of, yes this is like a classic property question in the sense that you're tracing property like who owns what and when yeah yeah

0:06:14 Thomas: Excellent work me. And it sucks. So it is a classic real property. I agree. Those two two elements.

0:06:26 Heather: And like many of my students they would also say that it sucks so you picked up on that one of the subtopics and this gets tested pretty often which is it's referred to as concurrent estates or co -tenancies and that's when more than one person owns the same piece of land at a time so a lot of times what we're trying to do is figure out we're trying to categorize the type and then we're trying to figure out usually also if there's like a hitch and then if the type if it's changed and how and that's kind of what we're doing here we're time to identify what type it is when windy and hubert own it and whether there's been a hitch and then also if so has that title has it transformed perfectly put let's first try to figure out the different types of tenancies there's usually three we've got a tendency in common we've Got a joint tenancy with right of survivorship and then We have a tendency by the entirety?

0:07:02 Thomas: There's been an unhitch. Yeah, they're all in this question, conveniently enough.

0:07:18 Heather: Yes. Yes. So we'll talk about each as we go through. But let's start by talking about the type of tenancy that Wendy and Hubert have initially. And so here, the question or the fact pattern says that they took title as joint tenants. So, we can actually believe the fact pattern when it tells us that. This is a joint... I know. No, no, you did. Sorry. No. That was more of like a tip.

0:07:35 Thomas: Did I not? I think I did. Oh, okay.

0:07:40 Heather: Sorry, and that was... No, credit to you. This was a joint tenancy with right of survivorship. And it's created between two co -tenants. It's again, limited to two. And what this means is that the interest will automatically pass to the surviving joint tenant. So here's what I mean. Let's say it's just Wendy and Hubert. And let's say, again, ignoring the rest of the fact pattern, Hubert or Wendy passes away. So what happens is when the other one is surviving, then the half, the other half of the other ones that's deceased passes automatically, so that the surviving tenant owns the whole thing and they don't have to do anything. It'll just transfer automatically to them. So if that was to happen here, let's say it was just Wendy and Hubert, Hubert passes away, nothing happens in between, he would automatically transfer over to Wendy and A would be the correct answer. That's how we would get to A is if Wendy owned the entire thing.

0:08:14 Thomas: Makes sense. That's sort of what I said in so many words, but not the right terminology, probably.

0:08:31 Heather: Yeah. And that's okay. And unfortunately, we had some things happen in between that make this not the right answer choice. We had our friend Hubert conveying all of his title and interest in the land by deed to Kelly. He does this while he's alive. And this is referred to as an inter vivos transfer. So that's a fancy term for just saying that he transferred it while he's alive. So what this does effectively is this is referred to as a severance. This severs the joint tenancy between Wendy and Hubert. And what happens when there's a severence is it means that there's no longer a joint tenancy and that if something happens to our friend Hubert, which it does, it no longer automatically passes to Wendy. So this is part of the other reason why A is no longer correct. So we can, like I said, A is incorrect. So That Was Out. You also correctly directly spotted that B was a nonsense answer.

0:09:08 Thomas: Interesting. Oh good.

0:09:19 Heather: It's wrong for a couple of reasons. One is that tenancy by the entirety is reserved for married couples.

0:09:24 Thomas: Okay. Was Wendy cheating with the lawyer? Maybe that's what happened here.

0:09:28 Heather: Well, the good news is that we don't have any facts about a lawyer.

0:09:30 Thomas: The lawyer was the motorcyclist from the last question it's a conspiracy the lawyer murdered him I knew it it's all coming together

0:09:35 Heather: How do you know? Yeah. That's how we end up eliminating B. Wendy and the lawyer is not married. We don't have any facts about a law. So we can get rid of that one.

0:09:43 Thomas: Sure yeah would have been weird

0:09:46 Heather: So that we end with C between C and D. So let's talk a little bit about the joint tenancy a little bit more to some things that help to create the joint tendency are these things called the four unities, because we need to make this more complicated.

0:09:57 Thomas: Sounding mystical first you make a pentagram I don't know conjure in your mind the image of the tenancy you would like

0:10:02 Heather: It's funny you said that because I always imagined a wand being waved. And that's, yeah, the four unities.

0:10:08 Thomas: Yeah yeah the four unities is that what you said oh okay so it's when like mars venus jupiter you know, when they're all in alignment. Okay.

0:10:17 Heather: Yeah, in the night sky.

0:10:19 Thomas: Yeah. What?

0:10:20 Heather: What happens is they're the unities of time, title, interest, and possession, which means that what happens is that the interests of the two co -tenants, they vest at the same time. The unity of title means that the interest by which they are acquired, it's by the same instrument, right? So So like if they're acquiring title by deed. Yes.

0:10:38 Heather: Like if we're getting, if we were acquiring the house together, we do. So it has both of our names on it. The instrument that we get is the deed. Yeah.

0:10:44 Thomas: So Lydia and I, we did that. Is that what you're saying? Or are we different because we're, are we the entirety because we're married? Oh, okay.

0:10:48 Heather: Well, it just depends.

0:10:52 Thomas: What's the standard that everyone, what's like most people buy a house together as a married couple? Let's just say this is a lot of people. What's that normally? Is that the joint tenant thing?

0:11:01 Heather: That's a good question. It'll depend on the state that you're in.

0:11:04 Thomas: Oh God. Okay, I'm in state common law. I'm the common law state.

0:11:08 Heather: So for example, some states will have to, it'll have to say, you'll have to choose the tenancy by the entirety and that you have to be married at the time of the creation. And it's pretty similar to joint tenancy with right of survivorship. But again, one of the main differences that you have to do is you have married at the time. Of the creation. That's a big difference. But a lot of times, too, what will happen is that the default type of tenancy is a tenancy in common. Yeah.

0:11:31 Thomas: Oh, okay. Interesting.

0:11:33 Heather: And so that's the default type of co -tenancy. But one of the main differences, there's a few, but one of the main differences is that there's going to be a lot of people. It's not limited to two. You don't have to be married. You can have like five people.

0:11:42 Thomas: Gotcha. It's a polycommune. Okay.

0:11:44 Heather: And there's only one unity involved, and that's possession. Because each individual co - tenant, they have the right to possess the whole. So it's only that one unity.

0:11:52 Thomas: Okay, I need to go back to the four unities. So I got to beat the sage of time and the sage possession.

0:11:56 Heather: Title and interest. Yeah.

0:11:59 Thomas: So yeah, I don't think I have a sage of interest. This is great. This video game is going to be lit. I can't wait.

0:12:05 Heather: Listen, the most boring video game of all time.

0:12:08 Thomas: So I missed the four unions thing. Can you step back and explain what you meant by that?

0:12:11 Heather: So there's four unities and basically there are four things that have to happen kind of at the same time in order for a joint tendency with writer survivorship to exist.

0:12:16 Thomas: Same time. Oh, so that's all for the joint tenancy thing.

0:12:22 Heather: Yeah. And because the writer survivor...

0:12:22 Thomas: Oh okay. So the answer is D, but that's Okay. All right. So joint, so you're saying in order for joint tenancy, you have to have, it's, it's sort of like you have To have started it off together at the same time. You have to have the same, you said same interest. So that means like, you can't like I'm three quarters and you're a quarter kind of thing. Is that what that means? Uh, okay. And then let's see, there's the sage of fire. There has no, uh, what's the, what was the other one? So time interest title. Okay.

0:12:46 Heather: The title. So we take it by the same instrument like a deed we're both both of our names are on it

0:12:52 Thomas: And then what was last one? Oh, so,

0:12:53 Heather: The possession yeah or we have identical rights to enjoyment which is just basically saying that we both have the right to possess the whole yeah

0:12:55 Thomas: You both live there or you both could live there. Okay. Yeah. Oh, okay. So the same amount of... Gotcha. Because even though those all sound like the... So those last three things sound like the exact same thing, to a not lawyer, but those are three subtly different things, I suppose.

0:13:13 Heather: Yeah and that's kind of welcome to property sorry yeah

0:13:16 Thomas: Okay, no, no. We've had questions about kind of honestly, each of those things before, but we don't have to repeat it now. But basically, so there was interest, there was title, and there was possession, and those were three different things. Okay? Hmm.

0:13:29 Heather: I think of them as t -tip if you're like I have to remember this I think it was t

0:13:30 Thomas: T -tip. Okay. I'm going to say Q -tip and then Quidal instead of, what's your first T? Quime. All right.

0:13:37 Heather: -dip um it can be time or title but from yeah yeah

0:13:41 Thomas: So Quime, Q -Tip, everybody. The same Quime... This will be, this will help me remember. For Joint Tennessee, it's got to be a Q -TIP. It's the same Quine, the same title, the same interest, the safe possession. And so you need all that for Joint Tennessee. And because we have almost none of that here, if not none, except, oh, I guess we have one. We have like possession maybe or something. We had like one of them for Wendy and the daughter, right? Yeah.

0:13:57 Heather: We do that's exactly we have possession Yep.

0:14:04 Thomas: Yeah. And that's it. So it sounds like then you're saying because it doesn't have the joint tenancy, which sounds like it has a bunch of requirements, like you said, that's why it just goes to tenants in common or something.

0:14:14 Heather: And it's specifically here because Hubert, while he was alive, he conveyed his interest in the house or the property to Kelly, to the daughter. And what that did is that severed the joint tenancy that he had with his ex -wife. And then it, this is a little funky, it transferred it into a tenancy in common.

0:14:31 Thomas: And now what exactly is the tenancy in common? Like, how does that change the tenency there?

0:14:35 Heather: Well, what happens is that there's no longer a writer's survivorship.

0:14:38 Thomas: Okay. So once Kelly, Kelly can't, but could Kelly transfer it by deed, but just not by dying?

0:14:44 Heather: Yeah, exactly.

0:14:46 Thomas: Oh, wait,

0:14:46 Heather: And it won't automatically pass. So like, let's say Kelly dies. Kelly's portion of ownership is not going to automatically transfer over to wife slash mother Wendy. Yeah. Fun.

0:14:56 Thomas: What? To the mother? I just was thinking to somebody else.

0:14:58 Heather: Yeah exactly. That's right. Or somebody else. It's not going to automatically transfer unless Kelly has what's referred to as like an instrument, right? Like a trust or a will in which they say, I want it to go somewhere.

0:15:09 Thomas: Oh, okay. So, it could still pass with a will then. It just doesn't automatically do it okay boy write a will I guess people so having a will isn't just about like divvying what goes where there's stuff where if you don't have a will it might just evaporate essentially

0:15:14 Heather: That's exactly it. Yeah. Yeah, well, it'll never evaporate. But the very last thing that will happen is if there's nobody that exists, nobody to take this thing happens. Well, it's called ishqit or ishit. It will go to the state. Do you want the government? Yeah.

0:15:36 Thomas: Yeah I know that but I thought okay I just want to clarify because it sounded like you said so if kelly died without a will what happens in this question

0:15:44 Heather: Yeah, that's a good question. It'll just depend on who's in the line of succession.

0:15:48 Thomas: I thought she said the whole thing was a tense and common as it doesn't she doesn't what

0:15:52 Heather: So what'll happen? So you're asking me a question that goes into like a wills and trusts thing, which is why I was answering.

0:15:56 Thomas: Well no I know but not exactly I thought I was trying to get it okay resetting I want to understand what tenants in common is versus joint And it sounded like you said tens in common meant there isn't the survivorship thing.

0:16:03 Heather: Yeah. That's exactly it. The main difference between tenancy in common and joint tenancy with right of survivorship is exactly that. There's no right of survivorship with a tenancy in common. So it won't automatically pass.

0:16:16 Thomas: That's what I was asking. So if Kelly died in this question now, that now that D is the right answer and she's a tens in common, if she dies without a will, what happens?

0:16:23 Heather: Wendy does not automatically get Kelly's portion. It doesn't, won't, automatically pass, yeah.

0:16:29 Thomas: Oh, but does anyone?

0:16:30 Heather: Well, that will depend on whether Kelly has a will or a trust that says or conveys, sorry, right, that says or conveys.

0:16:37 Thomas: Yeah, but sorry. That's why I'm asking. She doesn't have a will. So what happens that that's why I was trying to get at that. Like she doesn'thave a will so that so that's why I said the thing might poof disappear because it sounds like if you don't have a will, then Kelly dies. Does that interest just disappear?

0:16:52 Heather: It'll never disappear. There's depending on what state that you're in, there'll be like a day in which they will handle your assets based on who's related to you and that kind of thing. So that would just depend.

0:16:58 Thomas: Peer yeah all right I think then the thing that's killing me is then I then I don't understand the difference between joint tenants and tens of common again because then that sounds like there is an automatic thing that would pass but it would just be dependent on the order

0:17:13 Heather: So oh, I can I think I can answer this. So the other issue too, is that when you don't have an instrument, you have to go through a lot of times you have to go Through probate. And so to answer this question is that one of the things with the writer survivorship is you don'T have to GO THROUGH probate to do that, it 'LL just automatically pass. In Kelly's instance, for example, with the the tenancy in common. Let's say there's nobody. As they go through the line of succession to find somebody, that would still have to go through. That would still has to go to the probating process, I think. I'm not sure. I don't do rules of trust, but that would make it more complicated. It's not just going to automatically pass to somebody. Basically, can I keep the government out of my business? The answer is with tenancy and common, no.

0:17:49 Heather: There would still have to be somebody who would get involved. Does that kind of answer what your question was asking?

0:17:49 Thomas: Of I think so I think I'm also misunderstanding when you say right of survivorship so it's so that just means it goes to the other owner so that means if husband had died so if that motorcycle, it'd been a little bit sooner. If husband had died before the conveying the stuff, then Wendy just owns it, right?

0:18:10 Heather: Yes, exactly. And it just happens automatically.

0:18:11 Thomas: Okay. Automatically.

0:18:13 Heather: Nobody gets involved. Goes to Wendy. Yeah.

0:18:16 Thomas: Gotcha. So now that Kelly, Wendy and Kelly are tenants in common, you're saying there's a longer process if Kelly dies. It doesn't just go to Wendy. It could go elsewhere. Okay. Depending. Okay, I think, yeah, that makes sense. Okay yeah.

0:18:31 Heather: Yeah. Fun times.

0:18:32 Thomas: No, I, I. I think that there was no real way I was going to get that and that's It's OK. You know, it sucks that I that's a real curveball, too, because that's one designed to trick even Thomas's second chance law firm. Look, I'm not 100 percent. I've never claimed to be 100 percent I've claimed to be almost every time I can get the answer within two tries. But this one was really designed because A and C are both so plausible that I don't. It's pretty hard to it's pretty hard to go D, you know, like for me as a non not knowing anything, it's like I guess I needed to at least figure that joint tenancy wouldn't transfer in that way. And then Then I would have been between A and D, I guess. But yeah, that's a tough one. That's a rough one. That's tough one, mm

0:19:09 Heather: And it was interesting to hear you get really close when you were saying well one of these is not transferable and the heirs can't claim and that's where the joint tenancy with right of survivorship comes in. But it's like if you don't have that language kind of like what you were seeing it's hard to know that.

0:19:22 Thomas: Alas, oh well, my score is taking a further pummeling. I feel like I'm coming back to reality a little bit. Now I'm at 57 .81%, just dropping like a rock, that score. But we'll find out if anyone did better on the interwebs. We'll have to check on Reddit and Blue Sky and all that stuff and see who our big winners are. I demand that no one else got this right, Heather, or I'm gonna be mad, because that was a real hard one, a super tricky one, but let's find out. I'm sure we have a few hot shots. Why don't we go to reddit .com slash r slash open args and see who the big winners are this week.

0:19:56 Heather: The split seemed to be between answers C and D.

0:19:59 Thomas: Oh yeah. Like cheaters did D, but then everyone else did C. Gotcha. Okay.

0:20:02 Heather: You know we got a lot of good D answers I'm going to say it's IMM underscore Austin. So I'm just going to say it.

0:20:11 Heather: I'm Austin who said, I think the answer is D joint tenancy is the one that does not transfer to your heirs. If you get smushed by a motorcycle, but it is still possible to transfer it before conducting dangerous tide pooling. However, once you transfer joint tenancy, it becomes tenancy in common. Thus Wendy and Kelly were tenants in common, even before Hubert's common and foreseeable demise. Remember to check twice motorcycles are everywhere.

0:20:24 Thomas: All right. If

0:20:36 Heather: Listen,

0:20:35 Thomas: It's IMM, maybe it's international man of mystery could be, but what, what a great answer that pretty much nailed it. You'd almost, that's almost a book answer. That's almost like you, you looked at, no, No, I'll trust you. That sounds like someone who knows what they're talking about. That's a good answer. Well done.

0:20:39 Heather: I think you're right. Yes. Yes, nice.

0:20:51 Thomas: I hope that no one who's not a lawyer got this right. That's my only hope because this was really hard. But we've got some great winners on patreon .com slash law. That's where the high rollers go. That's the best way to play. Safander says, do I know how property works? No, I'm Gen Z and I will never own any. So I guess I'm going to guess based off the simplest answer and say C. He had joint tenancy and he gave it to his kid before he died. So she has joint tendency with the mom well it's incorrect but the funniest one so I'm I'm always will prioritize the funniest answer and then we have a patron who's actually the same as the answer you already read so they played in both places that's awesome want to shout out drew hickox and I don't think I'm doxing them they play the both places they're trying to get a shout out so I assume that they're okay with that and well done so I like the folks who play in both places that said that's the way to do it and that was the only correct answer actually so I've glad to learn that's the same person because that halves the number of correct answers.

0:21:50 Thomas: One more fun answer to shout out, vote. First off, vote Zoran Mamdani for New York City mayor. Always want to shout that out. Great patron name. But they say, I vote for T4BE. Thursdays, Thomas takes the bar exam.

0:22:03 Thomas: That's a new name. Oh man, that's a good idea. But yeah, I think T3BE is the way it it is for now yeah this person also chose c so yeah no it's it's just just the one person got the right answer but a lot of people played and had good answers so thanks for that we love we love reading your answers it's the best I just for fun did a little spreadsheeting to do more stats okay you ready so I want to make sure I include that latest failure okay that wasn't good that was a rare second chance bar exam miss so

0:22:03 Heather: It rolls off the tongue. Yeah. Yes? Yes. No,

0:22:37 Thomas: My real score is down I think I already said that but down down to 57 .81%. Second chance bar exam score. Got any guesses?

0:22:45 Heather: I'm bad at this. Yeah.

0:22:46 Thomas: No, just guesses. Like you just like, how often would you think someone would get? Basically it's just me trying to answer it in the top two. So like if it was random chance, I'm pretty sure it's simply 50 % is random chance. So you would hope that it's above that. And while you know, it's about my 57 .8 one. So these are all numerical clues you can use.

0:22:58 Heather: I would say it's somewhere like maybe 65, 70%.

0:23:09 Thomas: Ooh, boy, you'd not a lot of faith in the second chance bar our exam. It's 83%. Thank you very much. It was doing, yeah, a bit better before this last one.

0:23:12 Heather: No wow that's great

0:23:19 Thomas: Yeah, no, second chance. Like I said, it's performing a lot better than random chance. We'll just say those first two tries. So yeah, I have that as a little column in my spreadsheet forever. Oh, but actually what was really interesting is I decided to break out my score. I sent Heather the topics that we've had to track those. Turns out we've got two that we're doing doing way too many. That's all right. But I track my score in the topics and that is revealing because constitutional law, nailing it. Unfortunately, that's one we've had a lot of, so I probably shouldn't get those very often. I'm answering 84 % and that's normal, not second chance. These are just normal scores. 84 .6 % constitutional law questions and actually criminal 68 .8 % and tort 75%. Everything else, very bad.

0:24:06 Thomas: Those are the high good ones. My worst is apparently contracts. That's so weird. I would have said real property and it could be if we have a few more real property, I could quickly catch down to that score. But yeah, no contracts is my worst. I think we keep having tricky ones with that. Cause I just like, I would've said I was okay at contracts, but no, my worst topic apparently. All right.

0:24:00 Heather: Good yes really

0:24:30 Thomas: That'S no good. I gotta, I gotta get those numbers up. So now it's good to get like a breakout score. So I know what I have have to work on in my not practicing that I do.

0:24:39 Heather: Well listen you're doing something instinctually that I do with my students who are studying for the bar and who like I work with in law school because a lot of times the way you feel about something like instinctually doesn't always necessarily line up with the actual work that you'redoing which is why I always encourage students to like look at the numbers like like, look at how it's going. Because sometimes like I was, I would be studying, I'd be like, oh, I feel really good about this. And then my scores would be like girl, you are not doing nearly as good as you think that you are. And so like you said, it's a good opportunity to be like oh, like, maybe I'll just do something a little bit differently, you know, and so that's I always just you did that instinctually in a way in which I always encouraging students to do because it's also good to see like, oh, look, I'm like crushing it in con law. Like, damn.

0:25:17 Thomas: Yeah, the Constitution, a document I may have never read. It's possible I've never read the whole thing. I'm going to go ahead and say more than possible. Maybe in high school they made me do it once, but like a document I've ever read, nailing it, absolutely nailing it. Contracts, things I've like signed before in life, can't answer a single one. I feel feel like every contracts one has been a like, Oh, almost, but then not. So then I feel like I'm getting close, but I'm just getting it wrong every time. So there you go. I mean, huh? Not good. So that was fun to do that little breakout, but it's time for question 69. The one every teenager in the audience has been waiting for so that they could go, Hey, uh, including me question 69 after After the break, I gotta get one right. I'm on such a bad skid. All right, we'll take a break and then we'll get to it.

0:26:12 Thomas: This episode is brought to you by Quince. You know, last time I was telling you about Quince, I believe that I was talking about summer clothing from a more theoretical perspective. And now, since we're in Chex Watch that I don't have, May, that means the California summer is already well underway. And that's why I'm so glad I have the right clothes. And my clothes from Quince are the first things I reach for in my closet now. They're lightweight, they're comfortable, and here's the most important part to me. They last. I don't know what's going on. Other clothes, they just seem to wear out so quickly. But all my Quince clothing lasts and looks as good as it did the first day I got it. And Quince has all the things you actually want to wear. We're talking European linen beach shorts, organic cotton silk polos, and comfortable pants that work for everything from backyard hangs to nice dinners. And the best part, everything with Quince is priced 50 to 80 % less than what you'd find at similar brands. By working directly with top artisans and cutting out the middlemen, Quince gives you luxury prices without the crazy markups. And Quince only works with factories that use safe, ethical, and responsible manufacturing practices and premium fabrics and finishes. So elevate your closet with Quince. Go 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. One more time, quince .com slash OA.

0:27:41 Ad: [Ad break 2 — ad music]

0:27:41 Thomas: Okay, Heather, here we go.

0:27:42 Heather: Right. Patty was walking in a crosswalk near her home while she was hit and seriously injured by a truck driven by drunk driver Dylan. He had just left his local bar, Thomas's Tavern, after being served many drinks by the bartender, Billy.

0:27:49 Thomas: Well, okay, do you know that for sure? I mean, do we have proof that he left Thomas's Tavern? It could have been any tavern in the area. It could've been a different person's tavern. Definitely not mine.

0:28:03 Heather: Patty sued Billy in a jurisdiction that does not have a dram shop act. Is Billy vicariously liable for Patty's injuries?

0:28:14 Thomas: Okay, crucial information. It does not have a Dram Shop Act, everybody. I'm so glad you told me. Dude, the snozzberries taste like snozz berries as well. That sounds like something in Willy Wonka that they just made up. Yeah, well, ever since the Dram Chop Act, I can't kill kids with chocolate anymore or whatever. Okay. But I love that they do not have a Dram Shop Act. So in my mind, that's just totally nothing, like a random thing. But they're like, hey, important clarification. This jurisdiction does not have Affligability Gloom Act. Okay. It doesn't. Nor a Schmankstunblab Act. Neither of those. It's a very particular jurisdiction.

0:28:53 Heather: A, yes, because Dylan caused Patty to suffer personal injuries. B. Yes, because there is no Dram Shop Act in the jurisdiction to limit liability. C. No, because Dillon acted recklessly by driving while drunk.

0:29:01 Thomas: How dare you question. Come on. God damn it. Oh, boy. All right. Okay, fine. All Right. I feel like there is little ability. That was weird. I feel like that does exist, but is that only as a result of a dram shop act because of the great dram shop incident of 1937? I don't know. It was a dram show where everyone got over -served and And then they all drunk drive. They killed a whole town. This entire town was demolished. And so that's because now the Dram Shop Act. So I feel like there's liability. Is there liability to the extent that if they decide to drive, you're liable? I don't, that feels a little too far. Like, I feel Like, so I like to just, you know, get my first instincts here. I don' t know. I feel, like, first off, I think I've had a question tangentially related to this before where it was talking about like something happened right when they left the bar maybe they fell or something like I could see that being like if you walk out of the bar and you fall over because you're like wasted because they over served you but I feel like getting in a truck and driving I don't know if that's on the bartender now I could See like passing bills that are like hey just just to make extra sure that we don't over serve people will introduce this liability even even though it's like morally, I feel like it's not the bartender's fault to that extent. I feel drunk driving is a choice that I don't think you have to make when you're drunk. Believe it or not. I don'T think you HAVE to. Unless there's something where you have get them transportation. Maybe that's it. Maybe if you ensure they have transportation if they're that drunk. I DON'T KNOW. I DONT KNOW WHAT HAPPENED IN THE GREAT DRAM SHOP INCIDENT OF 1937. I DONOT KNOW. I WASN'T, I HAVE NO IDEA. So I'M AFRAID I'M LEFT NOT ENTIRELY SURE ON MY FIRST INSTINCTS. It also just says served many drinks. Doesn't actually say anything about being over -served per se. I mean, many drinks is many drinks, but what if that's over the course of like a long evening of hanging out there? You know, what if you're there for six hours, you know, you come there after work and you're just like hanging out all night. You might have many drinks but you're not like super duper duper over -served. So that's interesting. Thing. It doesn't even say anything about Dylan was visibly drunk as he ordered, you know, two more drinks. And the bartender said, yes, sirree. Sure do love being a dram shop here. Nothing like that. So I don't know. I think giving us no facts that are specifically over -serving, I mean, unless I'm crazy, I feel like just saying many drinks is not enough to say, you Know, what if, what if it's Andre the giant, you Now, like you could give Andre the Giant many drinks and he he would never be drunk. Like, I feel like that's not enough to say for sure that you've over served someone, but it all depends on what happened in the dram shop. Okay. Patty's walking in a crosswalk. Dylan has left drunk, but is dram shop, is that going to be less about over serving and more about just like, if someone's leaving drunk, you got to make sure they have a way to get home or something. Like I guess I could see that being it. I don't know. In which case maybe they are, the bartender is liable. So let's see, is Billy vicariously liable for Patty's injuries? I'm gonna go ahead and say if I had my druthers I would say that serving someone many drinks we don't have any facts that they're like super duper over served I mean I guess the fact that he's drunk sure okay I guess that tells you it but I feel like it would give us more than that and the fact that like driving is a choice you don't Have to do that I feel Like I want to say no just like karmically in the universe but I'm not like super certain on that okay Billy vicariously level so So A says, yes, because Dylan caused Patty to suffer personal injury. So that would say, okay, so I don't like that one. I think I can eliminate that because that would imply that anything Dylan does. So the because there, we're looking at, this is important. We got to break down the specific because of the answer. Because Dylan caused it means Billy is liable for anything Dylan Does. Dylan could walk out there and be the Zodiac Killer. And it would be like, well, Billy over -served him. So it's Billy's fault that he's the Zodiack Killer. So not A. B, yes, because there's no Dram Shop Act in the jurisdiction to limit liability. I'm also leaning kind of away from that one because I feel like, I mean, that would imply that but for the Great Dram shop incident, that there'd be like just all kinds of liability and that the Dram Shops Act would limit it, which seems like, I don't know, that's definitely not what I would think. Like, I would Think that this is something that you would have to introduce jurisdiction in order to impose liability. So I'll keep B alive just because, well, I don't know if I'm keeping it alive. I don'T think it's that. C, no, because there's no Dram Shop Act in the jurisdiction to impose liability. Or D, no because Dylan acted recklessly by driving while drunk. So I kind of think I'm between the no answers actually, which is good because my instinct was no, sort of. My soft instinct was no. And so is it about this Dram shop bullshit that I've never heard of, which I'm sure exists, but I don't know what it is. Or is it no, because Dylan acted recklessly? Because that would imply that like, hmm, you know what? Maybe I don't love Dee so much, actually. Dylan acted recklessly by driving while drunk. Man, at first, I can't decide. On some level, I like it because it's along with what I was saying, where it's like, yeah, I think that's kind of on Dylan. Like, even if you're drunk, the choice to drive is kind of your thing. But there's a part I don't, there's something I don't like about it, which is that it would sort of imply that if Dylan wasn't acting recklessly, then Billy would be vicariously liable for what Dylan did. And that doesn't make sense either. But I don't know if that's a fair logical inference there. No, because Dylan acted recklessly by driving while drunk. Maybe that's not a fair inference. Maybe the reverse or whatever you call that, maybe the inverse of the answer isn't true. The yes, if he didn't act recklessly and did something that caused an injury. I do really think I'm between C or D I just don't like I definitely don't like a for sure and B I just really don't think it would be about the Dramshop Act limiting liability especially as a yes answer yes because there's no you know like and because limit wouldn't even mean like get it I don't know I just don't I don't like B so no is the only answer so I have to look at like the only reasoning is the reason Billy is not vicariously liable for Patty's injuries because there is no Dram Shop Act? Is that the only reason? Because there's no Dram Shop Act to impose liability? Or is it no because Dylan acted recklessly? Which would imply that even if there were a Dram Shop Act, that it would still be no because there's still the part where Dylan made the choice to drive while drunk. I guess my only other hesitation is what would a Dram Shop Act impose liability on if not driving while drunk? You know, I guess it would be, like I said a moment ago, stuff that happens right outside the bar, someone leaving the bar and keeling over, someone leaving the bar and tripping. What else? Yeah. Leaving the bar and like not getting lost or something. I don't know. I guess those could be things. I think that's really the heart of the question. Do I think the only liability exists because of the Dram Shop Act or like if there were a Dram Shop Act or do I think that even if there were one of those, it wouldn't cover this? I should have said the category. What even is, I guess it's torts because it's not constitutional law not contracts not criminal law not evidence not federal yeah I guess this gotta be torts I'm on a real bad streak so I feel like I gotta change up what I'm doing possibly the only other thing is like none of this addresses over serving really I could almost see a dram shop act being like yeah if someone drives drunk right after leaving your bar you have some vicarious liability there just because like I can almost see that being it So I kind of actually think, I think I might go with C because I feel like the way it would work absent anything else, just thinking about like common law, I feel like absent anything else, there'd be no question here. Cause like, I don't think in the old timey times, anyone blamed the bartender back in the day. Like, I'd feel like that's something that would be a more modern invention, like to try to address the problem of drunk driving maybe. And so for that reason, I feel like common law maybe would be like, there's absolutely no chance Billy is liable. And the only way Billy would be liable would be this Dram Shop Act thing. All right, I'm between C and D and I'm going with C. It's a tough choice, but I think just based on the logic that if it were common law, I just don't think old timey times cared about this at all. I think it was all about the individual choice and you wouldn't blame the bartender at all and so I think that leads me towards C just because D would imply that there is some way absent the Dram Shop Act for Billy to be liable, whereas C is just puts it squarely on whatever this dram shop act is now I'm going to laugh if the dram shop act is a completely made up thing that would be so funny I actually hope that's it but I think I'm gonna go with C and my second choice answer is d and I have to hope that at the very least I can get my second chance answer score going on this but man another tough one another tough question if you'd like to play along make sure to go to check blue sky it's it might be there it very well may could might be there but also go to red .com slash r slash open arcs And most importantly, go to patreon .com slash law. That's where the best folks go to play. That's what Clarence Thomas himself goes to play still love that answer. That was one of my favorites in a while.

0:38:39 Heather: I've been thinking about that since then.

0:38:40 Thomas: All right, Heather. Well, until next week, when you crush my hopes and dreams,

0:38:45 Heather: I'll see you in the tavern.

0:38:47 Thomas: I'll see you in the old Thomas's tavern. This episode is brought to you by HIMS. You know, for a lot of men dealing with something like ED can be uncomfortable, which is why Why HIMS provides access to a comfortable solution with an all online process and personalized treatment options. You know how during the pandemic we found out that a whole lot of jobs can be done from home online and it was like better for everybody involved. It's that principle, but for like kind of awkward conversations that you might feel uncomfortable talking to the doctor about. That's why HIMS is so great. It's providing you with access to affordable sexual health treatments from the comfort of your couch. It's 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 is needed, and one low price covers everything from treatments to ongoing care. 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 .com opening the featured products include compounded products which are not approved nor verified for safety effectiveness or quality by the fda prescription required see website for details restrictions and important safety information price varies based on product and subscription plan and

0:40:15 Ad: [Ad break 3 — ad music]

0:40:24 Thomas: There's only one thing left to do which is to thank our patrons at patreon .com a slash law these are the amazing folks they're the best they're they've done studies literally true they're new patrons just a couple of things this time mark and and Natalie F. Thank you so much, Mark and Natalie F. And folks, join their ranks, patreon .com slash law. But now, we can of course go to the Hall of Famers, the all -time greats. These are the folks that pledge at that $5 level and above for at least a month. And they get a shout -out each and every week. Some of them change their names. Some have the same name for 10 years, almost, going on. Some of whom I recognized from the very beginning. And that's awesome. And we love all kinds here on Opening Arguments.

0:40:59 Lydia: Better yeah old money new

0:41:09 Thomas: Both billy

0:41:11 Lydia: Money yeah I was thinking titanic yeah yeah kathy

0:41:12 Thomas: Zane and what's her name yeah what's what's the yeah kathy bates both billie zane and kathy baits

0:41:16 Lydia: Bates yeah yeah unsinkable molly brown new money

0:41:20 Thomas: I am surprised that you aren't more impressed with my going with your titanic reference and polling

0:41:25 Lydia: No I love it I I'm not surprised I just love it it's what I expect of you

0:41:29 Thomas: Names oh wow okay okay I fair enough men referencing your wife's favorite things is the bare minimum

0:41:38 Lydia: Yeah especially like like very specific historical events like the titanic movie be really

0:41:41 Thomas: Okay very specific historical bits yeah you don't mean the actual Titanic, the movie. I was going to make that joke too. That's it. Yeah, it's a time and place for sure. Like it's distinct.

0:41:53 Lydia: Like a formative experience in my life I'll never forget it when the Titanic sank

0:42:01 Thomas: I'll never forget where I was when the Titanic movie was on in the theater that I watched it in. My older sister horrified that there was nudity that I witnessed. Horrified. Oh yeah.

0:42:10 Lydia: Oh my god seriously oh my God I can imagine

0:42:14 Thomas: Horrify. You know who didn't give a shit? My parents. But my older sister, her. No, that's got, you know, and it just goes to show, yeah, the fascist mindset is a real thing. And I, and, and that's not like, I'm not saying that's like evil fascism, but it's, it's that need to police and control into the rules and the religion, the whatever. Present at a very young age over things that don't matter at all.

0:42:17 Lydia: That uh it's a sign for the future so some foreshadowing

0:42:38 Thomas: So there you go. I might leave this in because it was actually kind of interesting when you think about it and no one's listening right now. So who goes first? Yeah, it's just us.

0:42:32 Lydia: Yeah yeah Yeah, just us. All right.

0:42:48 Thomas: Why don't you start us off with our Hall of Famers?

0:42:51 Lydia: Big thank you to Unremarkable, who shared a very wonderful picture of a young Matt Cameron from that gamer movie thing. Yeah, yeah. There was a picture on blue sky.

0:43:00 Thomas: That Gamers movie. Yeah. Wow. Oh,

0:43:06 Lydia: If you're not hanging out on blue Sky following open args, you missed out on a really great little trading card of game master, human lawyer, Matt Cameron. Yeah.

0:43:14 Thomas: Yeah. But it's not a Magic the Gathering card, so I don't know what it is.

0:43:18 Lydia: It's not. Yeah.

0:43:18 Thomas: But it is similar -esque, and I like it. And I refuse to believe Matt ever looked that young.

0:43:25 Lydia: Also, big thanks to Casey Kahn. Democracy cannot survive unregulated capitalism. Donna Treadway, mother of harridans. Vote Zoran Mamdani for NYC mayor. How's that looking?

0:43:37 Thomas: I'm scared to ask.

0:43:38 Lydia: I know. Me too. Protect trans kids. Also, the new team is stellar and the pod is better than ever.

0:43:43 Thomas: Aw, that's so nice.

0:43:44 Lydia: Thank you so much. And also, yes, protect trans kids, we agree. Thank you to Never Odd or Even, Cyanitis, disappointed in all the capitulating to fascism, 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, the patented chunk hose.

0:44:10 Thomas: The patented Chunkos. There's a Gavlehead. I recognize a gavelhead in the wild.

0:44:16 Lydia: That's a gavelhead. Man.

0:44:20 Thomas: Now I have to keep the gavel head thing from earlier. Damn it.

0:44:22 Lydia: Yeah, you do. Yeah, You do. You have to keep all of it.

0:44:25 Thomas: Or I cut everything and it's just silence. We're really doing an experiment to see if we can be canceled. Like, I don't know if a podcast can be cancelled. And I don't mean that in the cancelled culture sense. I mean that in the TV pilot sense.

0:44:41 Lydia: They're like this is just too

0:44:41 Thomas: Yeah, like the network. We might get a call from NBC and they're like, I can't believe I'm saying this. We're canceling you. We didn't know either that we were in charge of this.

0:44:50 Lydia: Much yeah we're not getting paid like nbc owns us that's for

0:44:53 Thomas: No, no, that's, they're going to say that too. We want to make clear, we're never paying you at all, but we're canceling it.

0:44:58 Lydia: Sure a negative phenomenon vehicular man's laughter is out of battery cavalry charge I

0:45:06 Thomas: Nice. I think that's a new one. I don't know what it's in reference to, but I agree with the sentiment.

0:45:11 Lydia: Also agree you gotta fight for your right to ex parte jay sank sports and gender are different things things. Nice. The unexamined milk is not worth drinking. Oh, God. Oh yeah. Don't even get me started on RFK. Disgusting. Look, I finally changed my name for real legally. Thomas Freeman and Cajun Killa passing the ball to you.

0:45:34 Thomas: All right. Thank you too, E .T. Fraud Fishy hates everything. Still love that one. Chris Simpson. Love the extra episodes. I love the Democrats. Fecklessness is my fetish, baby. 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 the shit lying down Elect Thomas Smith President American Hockey Donk Bar Association Baltic Cate Philip Kaiser 60 % of the time Thomas gets the bar question right every time That's right, I do Corin Land Hors d 'oeuvres in the court before we report A String of Unpronounceable Characters Maleka Chandler Malcolm the Dragon the Precious Variant Milo Meadsong is Fighting Petty Tyrants Ronofthedork .com Big Easy Blasphemy me. Fred R. Grotheus, Chris Waltrip, ClassicLibtard, and Mitchell, our champion.

0:46:22 Thomas: Thank you so much, top patrons. You're the best. And thank you to everyone for listening. It's a lot of fun. We enjoy these times. We enjoy these, these times of bonding and board meetings and shout outs. And Heather. Thanks, Heather, as always.

0:46:37 Thomas: And we should be back next week with T3B as well. Won't be taking any more weeks off this month or anything. So looking forward to that. And And we'll see you all for Rapid Response Friday. So much to talk about.

0:46:33 Lydia: We sure do. Yeah, Lydia

0:47:07 Thomas: And it sucks. It also just says, I can talk. Hey, buddy, I'm recording. Where's mom?

0:47:17 Thomas: I love you, bud. Can you, can you go find mom?

0:47:21 Heather: Heard his little voice. Such a sweet little voice!

0:47:24 Thomas: He's so cute.

0:47:26 Lydia: Edit. Lydia Edit, Okay.

0:47:29 Thomas: You have to leave. I'm sorry. You get it.

0:47:30 Lydia: All right. Bye, everybody.

0:47:32 Thomas: Folks, she's not leaving. I don't know. This is uncomfortable. You need to leave, I don' t know. I can't have you here the whole time. Yeah.

0:47:38 Lydia: I'm trying to like make stepping sounds.