Can a Priest Rat You Out?

Transcript

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

0:00:46 Thomas: Hello, and welcome to Opening Arguments. This is Thomas Takes the Bar Exam 70. It's Wednesday, so that means it's time for another bar question. And it's time for the answer from last week's question. But I'm Thomas. I'm here with Lydia Smith. How you doing? Hey!

0:00:59 Lydia: It's time for Lydia. Just kidding. I'm doing well. How are you?

0:01:01 Thomas: Well, you know, I would love to banter with you, but I'm all bantered out. You know why?

0:01:09 Lydia: Ooh.

0:01:09 Thomas: Because we've done so much bantering for Gavel Gavel, which I know, there have been some fake outs. I know there have been, you know, we're the boy who cried gavel a little bit here. But it's it's out. It's actually out. So we can't be, we actually can't. The wolf is in your podcast feed. We can't Be Crying Wolf because it's there. There's a couple out for normies right now. There's bunch out for patrons. So patreon .com slash gavel pods, but no worries. There are tons coming right away. They're scheduled. By the time you're hearing this, there's three fresh gavel gavels out for you. Three. And that's for normies for patrons forget about it. Forget about it. There was like nine.

0:01:42 Lydia: Forget about it.

0:01:43 Thomas: Now forget about that. There is nine out. There like so many out and And the banter. Oh, the banter that we had. That's why we're... This is a banter -free zone today for this. Because we're just... We're all bantered. You don't want to...

0:01:55 Lydia: Speak for yourself. You don't tell me not to banter.

0:02:05 Thomas: The way you did that was, like, so perfect. Because it was like, like VATS banter? Like, just speak for yourself. It's so stupid. Oh, boy. Okay. Well, I am preserving my banter like an opera banterer before the big performance. You know? You got to go. There's even an Italian word for it, probably. Sotto voce? I don't know. Something like that.

0:02:30 Lydia: Oh, yeah. Save your voice. Yeah.

0:02:32 Thomas: Maybe. I mean, I think

0:02:32 Lydia: Yeah. Yeah. That sounds like Italian to me. So it's

0:02:34 Thomas: Sotto voce is probably just playing quieter for piano, but it might be the same thing. I don' t know. Or maybe not. There's so much rattling around in this brain of mine. You never know what's going to come out. Anyway, where are we?

0:02:49 Lydia: Chaos.

0:02:50 Thomas: Yeah. Forgive us. We just went through the longest complaint in the world for Gavel Gavel. We went through a million page, almost 100 page complaint for Gavel Gavel.

0:02:58 Lydia: I wouldn't even say it's the longest complaint. It's the longest irrelevant complaint. That's what it is.

0:03:03 Thomas: That's the thing yeah if it was like all cool interesting stuff um I mean it's very interesting but like if it was all good points you know but like it's a mess but it we finally got through baldoni's first complaint in the baldoni blake lively thing so if you have been waiting to hear that side just go to gavel gavel it's there it's coming it's it's all so much of it for patrons and quite a bit for normies and we've already scheduled the posts like it gets gonna be like two a day for a while so don't worry it's come it's their and it's so that's That's our exciting gavel gavel news. It's the reason for just zero, absolutely no banter today. We're all bantered out. Well, we'll try to save a little because you've got to come back to thank the patrons.

0:03:40 Thomas: And there's got, we can't give them a little banter.

0:03:42 Lydia: They deserve it.

0:03:43 Thomas: So go rest, go rest your banter, and I will invite Heather on for the answer to last week's bar question and for a new one. So that's what we'll do after this break. We'll get on with Heather. So excited. Can I get one right? I don't know. Let's find out. If you'd like to skip this ad and support us, go to patreon .com slash law and pledge as little as a dollar and lose the ads. Get the extras. We've got bonuses this month. We're high court coming to a pod near you.

0:04:08 Thomas: And we've got another little bonus that I'm excited about. There was some very curious oral arguments the other day. It was wild. And I record a little bonus on it with Jenessa. That'll be out pretty soon too. Trying to do more stuff for our amazing patrons at patreon .com slash law. So head over there to avoid the break and get the goodies. And after this break, I'll be on with Heather for the answer to last week's bar question.

0:04:30 Ad: [Ad break 1 — ad music]

0:04:33 Heather: I'm doing pretty well. I'm here. I am sober. So I'm pretty good. How are you?

0:04:36 Thomas: Yeah, I'm going to give someone liability for me being underserved. There ought to be that too. Like, hey, I am miserably not buzzed right now. And you have some liability for that. Get on it.

0:04:49 Heather: Yes, I'm here for a reason. Yes.

0:04:50 Thomas: Why does it only go one way? Why does it only go one way? So remind us what last week's question was.

0:04:56 Heather: Well, our friend Patty was walking in a crosswalk when she was hit by a drunk driver, Dylan. And Dylan had just left his favorite local watering hole, which was Thomas's Tavern, after being served too many drinks by bartender Billy. And Patty is suing Billy in a jurisdiction that does not have a Dram Shop Act. And we're trying trying to figure out whether or not Billy is vicariously liable for Patty's injuries. A, yes, because Dylan caused Patty to suffer personal injuries. B, yes, because there's no DRAM shop act in the jurisdiction to limit liability. C, no, because there is no DRAM shop act. And the jurisdiction is not the jurisdiction to impose liability. Or D, no, because Dylan acted recklessly by driving while drunk. So that's where we're at. And you guessed that this was a torts question, right? Yeah, you were. That's exactly it. It's a tortes question. There's two ways we could know that one of which was it was vicarious liability. It comes up a lot in torts. Well, not a lot, but it comes up in tords. And also anytime we've got one person suing another person, a lot of times tords is one of the things we want to think about. So you were right, there were torts, and then when we're trying to think about what's our subtopic, it tells us right in the call of the question that it's

0:06:00 Heather: Vicarious liability. Yeah. Well that's actually a subset of vicarious liability.

0:06:00 Thomas: Dram Shop Law. Oh, OK. Tells me it's not made up, possibly, unless they have subsections for made up things. That would be really funny. Me.

0:06:11 Heather: So We'll start talking is. Well, it

0:06:15 Thomas: Subsection F, dram shop law. Don't need to know it. Not real.

0:06:20 Heather: Is real, but I promise we'll get to that. I don't want to make any assumptions, but do you know what vicarious liability is? Okay.

0:06:25 Thomas: Yeah. Yeah, that just means being liable in somebody else's place, essentially, right? Like, or is it at the same time as somebody else?

0:06:31 Heather: The way I like to think of it is that one person is liable for, in this case, the tortious actions of another based on the relationship to one another, right? So if I'm liable für something that you do because of our relationship to each other.

0:06:38 Thomas: I guess my only distinction I was making is, does, in general, vicarious liability mean you're sort of stealing the other person's liability or you're both liable? I wasn't sure which of those things.

0:06:52 Heather: That's a good question. The answer is, lawyer's favorite answer, it just depends too, especially in tort and that can come down to sometimes like recovery but we're not worrying too much about that part now because patty is suing billy directly So we actually have we'll get to this in a second but I'll talk a little bit in more detail I promise in just a second about what a dram shop act is and what a dram shop is in and of

0:07:13 Thomas: It's where I get my dram. Where I get all my dram? Hmm.

0:07:14 Heather: Itself You actually eliminated answer choice a pretty quickly right away and you were right to do that I really liked listening to why you thought that because I think in my mind what I heard you do is you eliminated a and d for for almost similar reasons, logically speaking.

0:07:31 Thomas: Maybe. I don't know.

0:07:33 Heather: Yeah, so what was interesting, so you were saying that for A, implying anything that Dylan does, like that Billy would be liable for anything that Dylan does.

0:07:40 Thomas: Yeah! Yeah! You know, just the reasoning because Dylan caused Patty to You know, that just means anything Dylan does, Billy's liable. That can't be right. If Dylan goes home and cheats on his taxes, you can't be like, well, was he over -served?

0:07:52 Heather: And plus two, this is a classic, I think, wrong answer choice, because while it's correct, right, because it's factually correct, because Patty did suffer personal injuries, this is also giving us negligence, because this is saying suffer personal injury, and this is also giving a different part of torts, because suffering harm and personal injury is really talking about negligence. And we're squarely in a different part of asking us about vicarious liability, which is very different. And so if you're somebody else, and your brain works a little bit differently, if you were wanting another reason to answer, this is another reason. Sorry if that helps at all.

0:08:24 Thomas: I love it. I love that we've done this long enough to learn, like, what's going on in each other's brains. This is, if everyone's checking, the studious Heather who has a taxonomy of everything, the way that she can eliminate it that I cannot because I don't know what's happening.

0:08:39 Thomas: But I've learned to just not question it because That's awesome. I like that we have two different kind of brain ways we approach this. And maybe there's maybe that maybe the audience will be some of each, you know?

0:08:49 Heather: I do. I think so too. And that's why I like listening to you eliminate A and also D, right? Because as you talk through D, you were saying kind of something something similar, which was that the answer choice kind of implies that Billy would be vicariously liable if Dylan was not reckless.

0:09:02 Thomas: Yeah, I wasn't I wasn'T 100 % sure if that logically followed. Does it for sure? Because like, my last thought was, I could see it being a one way ratchet sort of thing in that if Dylan acts recklessly, that puts it on Dylan. If Dylan doesn'T act recklessly. Is there some other way for Dylan to cause harm to somebody that would be because of being too drunk that wouldn't be acting recklessly? I guess maybe not.

0:09:30 Thomas: Maybe that's what you're saying. Maybe there is no thing that fits that puzzle piece. I wasn't sure in the moment.

0:09:34 Heather: And not within the confines of this question, if that helps answer. Yeah.

0:09:36 Thomas: Sure, sure. I think it's also not just the confines of the question because it's about like logically speaking how this would apply, you know, because like A is wrong because that would imply that anything Dylan did, even though that's not in the strictly in like, like Dylan's not doing other things in the context of the questions. You know what I mean? Like, don't you think it's fair to still say that, like, if an answer choice would make Billy liable for all kinds of stuff, even though it's stuff that's not in the question, that's still a way to know it's wrong, right? Just say yes and we'll move on. No, I'm just kidding.

0:10:05 Heather: My brain's like, oh God, I have to think that. So hopefully we can wrap around back to this once they answer what, does that help?

0:10:13 Thomas: Absolutely. Yeah, we can, we Can See or we'll forget it. It's fine. Either way.

0:10:17 Heather: So let's go here. So I'll explain what a dram shop is. It's just a different way of saying that it's a commercial establishment that sells alcoholic beverages. Yeah, because let's see, what's the law without making things confusing?

0:10:28 Thomas: Because it used to be opium dens. That's what the law was about. Now I'm going to Google it. I never do anything. I just want to know the strict definition of Dram Shop just for fun. Oh, it does just say bar. Okay. Bar, tavern.

0:10:40 Heather: Bars, restaurants, restaurants even.

0:10:41 Thomas: All right. Okay. I was hoping it had an old timey thing. Like give me etymology. That's what I want. Etymology. Just for fun. Oh, it's from the traditional practice of selling alcohol by small unit of measure called a dram. Okay, sure. All Right.

0:10:53 Heather: Yes. Interesting, right?

0:10:55 Thomas: Yeah. I was just hoping it was more fun than that, but all right. I'll get, that's all right, sure,

0:11:00 Heather: But I thought what was really interesting as we start talking about the Tram Shop Act was that you reasoned your way into why it is that these laws exist. And just to remind everybody, the reason that these law exists is they kind of populated around the time of the 19th century based on the temperance. Well, you were kind of saying as a reason for like drunk driving as a way that came out. And also, I think the way that I saw it was also the temperaments movement.

0:11:20 Thomas: Which was just general debauchery that people didn't like. It wasn't so much about people killing people with their horse -drawn carriages but maybe a little bit I don't know right

0:11:27 Heather: And I think also a little bit more modernly that also came up, I think with Mothers Against Drunk Driving, not that, right, that's kind of how these things kind of come up. So dram shop acts, right? They're laws that most jurisdictions have, either again, by statute or by judicial decision that impose liability on a tavern keeper that serves alcohol.

0:11:46 Heather: Sorry, this is listen, all the laws, all that stuff is like tavern keepers, just like bartender yeah

0:11:46 Thomas: It's like specifically like dungeons and dragons implications for this you know because it always they always start in a tavern I feel like there's there's gonna be liability for like the quests they do after you know depending on that that must be rough

0:11:59 Heather: It's funny because every time I like the word tavern keeper just keeps coming up and everything that I have even in my notes right and all I do is I think of this like dark and kind of like dark wood it's very no

0:12:07 Thomas: Yeah they can't be well lit that's that's the rules of taverns first rule of taverne club don't don't light it well I also want to note that a dram so the 18th century british way of measuring alcohol which is called a dram three -fourths three quarters of a teaspoon, not even a tablespoon. What proof are they dealing with back then? That's like rubbing alcohol. Three quarters of the teaspoon is a unit of measurement. I mean, am I crazy? That seems like not a lot of alcohol to me.

0:12:35 Heather: No it's it's not a lot of it

0:12:36 Thomas: But maybe it was like this hardcore tainted, like old timey, you know, 1700s, like death poison alcohol. I don't know. Maybe it was because it was, like, way stronger.

0:12:44 Heather: Listen that's interesting yeah I'm like I am really curious

0:12:49 Thomas: Definitely unregulated, whatever it was. I'm sure. Yeah.

0:12:51 Heather: Yeah well it's also interesting to hear you very quickly, almost reasoned your way into knowing between B and C. Your instinct was that the dram shop would impose liability as opposed to limit. And that's how you eliminated B, which is exactly the reason that B was wrong and C was correct. Yeah. Yes.

0:13:05 Thomas: Oh, good. I'm glad. I's glad. That makes me feel better. Cause I did, I did feel good about that. Like I feel like old timey times, more hardcore, you know, I feel like you'd need some sort of dram shop act to impose liability. Okay. So B's out.

0:13:17 Heather: Yeah. And yep. And then C is our correct answer. So you were right.

0:13:21 Thomas: Oh that's right. Cause you already eliminated D. Okay, oh wow. Yeah. Well, I got one. Sorry. I'm just drunk off my ass on dram. You're saying I got one right?

0:13:29 Heather: Yes!

0:13:29 Thomas: Oh man. I got a, I picked a hell of a day to quit drinking drams. That's awesome. Awesome. I can't believe I'm right about something. That's it's been it's been too long. And not only that, look, OK, it's only been over a month since I got one right. But what sucks is before that was another month. So I've gotten two right in two months. It hasn't been good. My score used to be a lot better, but, you know, feels good to get one back in the W column again. That says what a relief. All right.

0:14:01 Heather: So it was good. And again, this was tough, especially with the vocabulary. But like I said, you do such a great job in the way that your brain works being so logic and reason focused that you worked your way all the way through this again, perfectly, which I would have seen this and go, damn shot back. I don't have no idea.

0:14:14 Heather: And I would've just been like, I don'T know. I'm randomly picking.

0:14:14 Thomas: To be fair, most of the time that is what happens. But I feel like, yeah, yeah, no, I feel like I was able to get there on this one. That's nice. Thank you. Appreciate it.

0:14:22 Heather: Excellent.

0:14:23 Thomas: I'll take it. Wow. Well, I'm back up to 58 and a half percent and second chance bar exam assault. Now it's over solidly 83. So, you know, there we go. Doing well. They both get credit when I get one, right? Well, all right. What a good day. I'm going to go get lit. I want to celebrate at my local tavern and maybe pick up a side quest while I'm there.

0:14:36 Heather: Yeah

0:14:46 Thomas: Let's go to the interwebs to see who Who else is just blushing with the fresh buzz of getting one right? Surveilling the Landscape. First of all, it's on Blue Sky, and we had a number of participants. Great job on Blue Skye, everyone. Blue SkYE, that's openargs .bsky .social or something. I don't know. I still hate that. Just search OpenArgs. I think that does it. I'm a little disappointed because I think everyone got this right, which is all we... That doesn't make me feel great. But I'm sure as a teacher, Heather, that probably like what you're going for, weirdly enough.

0:15:18 Heather: Mean, that's the goal or listen to goal is learning whether people get it right or not. I just want people to walk away having learned something.

0:15:24 Thomas: Well, my goal is personal accomplishment. And I feel like if I get one right and everybody gets it right, that makes my right answer less valuable. So that sucks. But no, that's okay. We all celebrated question 69 by getting it right together. So lots of people I could shout out. We have a first timer. So I do want to shout out Recluse. How do you normally spell Reclose? Because this is R -E -C -L -U -C. That seems not right. Yeah, yeah, recluse. But they seem like they had like a textbook answer. So I'm going to both shout them out for being a first timer, but it's also like they're just telling me like what a dram shop act is. And so it's like, all right. So half a shout out there. Thank you, recluses. Appreciate it. We got a few that just guessed kind of along with me on the same logic, like Philip DeFord, which is at Davis J3608. I believe the answer is C, God dram it. I have literally no idea what a Dramshop Act is, but I agree with the assessment that it would introduce liability to the bartender rather than absolving them of something that exists a common law. There you go. And then Carl at Z -I -P -P K -O -D -E at B -Sky says, C, absent specific legislation, a bar owner can sell someone a finger of whiskey and then give you the finger when that person drives drunk.

0:15:52 Heather: There's usually an S at the end instead of a C. Yeah.

0:16:43 Thomas: It's fun. All right. So how did the Reddit folks do?

0:16:45 Heather: We got a great answer. It's sandwich time. It says going with C based on context. I assume a dram shop act imposes liability on bars for injuries caused by drunk customers. That makes me think if there is not a dram job act, then there is no liability. So so Patty needs to sue Dylan. Great answer. Spot on. So that was exactly it.

0:17:03 Thomas: Wow, that person's a genius. That's exactly what I thought no good stuff so how are the answers pretty uh did everybody get right over there too or

0:17:06 Heather: We had some Bs and D answers.

0:17:15 Thomas: Thank you everyone appreciate it it's nice of

0:17:16 Heather: Yes. And I think some folks knew that it was a measure of liquid. Some folks didn't know what a Dram Shop Act was. And so there's just a little bit of a hit and miss. Again, I'm the kind of person where if I would have seen this not knowing, I would not have known what that was. I would've answered incorrectly and been like, what's a Dlam Shop? Doesn't exist. Not a real thing.

0:17:35 Heather: Never heard of it. And then gotten the the answer wrong. So shout out to all those people who even had some modicum of idea of what this was.

0:17:35 Thomas: You Yeah and I just used my powers of logic because I didn't know what it was either well let's see we've got some great patrons at patreon .com slash law everyone pretty much nailed it I don't I don'T even know if there's a wrong answer here like kate from seattle I'm guessing that a dram shop act is We'll say the law. I think there's a typo there, but a law thingy that holds bartenders liable for over -serving customers. If that's true, I think it has to be C. B is complete nonsense. And the other two choices are irrelevant. Okay. So now who wants to go shopping for drams?

0:18:13 Heather: Drinking for drams. Oh, sorry.

0:18:13 Thomas: Me, I'm in. Oh wait, fireball old fashions. This is right in their wheelhouse. You know, this is the question this patron was born for. Fireball old fashion. And they say alcohol aficionado here. And I've I've heard of Dram Shop laws. Those are laws to attribute some of the liability of those under the influence of alcohol to the people who serve them beyond their limits. Since there are no Dram shop laws in the question, that eliminates A and B. D doesn't make sense because if Billy doesn't have liability because there's no Dlam shop law, Patty's driving doesn't change anything. I don't know if I followed that. Patty's Driving. Was Patty the driver? Hold on.

0:18:47 Heather: Patty was walking in the crosswalk.

0:18:49 Thomas: Yeah, I think we might have got a switcheroo on the name. Patty's not the driver. I think it's Dylan, but that's okay because Patty Pedestrian.

0:18:49 Heather: And then yeah Dylan yeah

0:18:57 Thomas: And I had noticed that, you know, it's always the same first letter there. Dylan Driver, I'm guessing. Bartender Billy, yeah. Unless Dylan is the dram. Maybe that's...

0:18:59 Heather: Yeah bartender Billy

0:19:07 Thomas: Dylan was the dram all along. But anyway, that leaves C is the correct answer. Drink responsibly, everyone. Well, thank you, Fireball Old Fashions. Now I just have to read out this patron name because it's so good. Marvel's Gavelhead versus the Four Unities.

0:19:06 Heather: Yes

0:19:23 Thomas: So good.

0:19:23 Heather: So much creativity I love

0:19:26 Thomas: Interesting one to run by you here. Here, Aaron Hutton says, I thought the establishment, not the bartender, would be vicariously liable if there was a Dram Shop law. And none of these answers fit that. So I'm going to go with C, since none of the other answers allow for my non -lawyery understanding of Dram Chop law. I shall explore this further later in High Court.

0:19:44 Thomas: But yeah, what's the deal there? Is that significant in any way?

0:19:44 Heather: It the answer is always going to be it depends but for the purpose of the dram shop act it typically for now just imposes liability on with the referring to the tavern keeper so the person that's serving alcohol but certainly in since we're talking about tort if you you would like to also include the tavern itself, you would be able to do that.

0:20:02 Thomas: Yeah. I mean, I'm sure everybody would get sued. And that's a question of sorting it out. But I also imagine maybe various dram shop acts could be written differently, whether or not to incorporate like the whole establishment or maybe if it sets some like, this is just me guessing, but I would have to imagine that there's like, as long as you have, you know, rules in place and all that and a bartender goes rogue, like I would, I would think maybe establishment wouldn't be, you know, necessarily liable in that case, but who knows?

0:20:29 Heather: Absolutely. And one of the I was glad you said that. But one of the other not to get too far into the weeds, but one of the other tenants of vicarious liability is about whether or not someone's actually acting within the scope of their employment. So typically speaking, if someone to your point is like they're doing something that's way far outside the scope, and then someone gets injured, then the employer can say, you know what, they weren't actually acting as one of our employees, and and therefore we are not liable. And that's part of how they end up distancing themselves in a suit where vicarious liability is involved.

0:20:56 Thomas: Yeah. Well, great job, everyone. Fun stuff. We all got it right. Some of the wind out of my sails, but that's okay. Okay, we've got a chance for another question and a chance to shine or fail miserably either way. So after this break, we'll get question number 70.

0:21:09 Heather: Maybe we'll find a question on detours and frolics.

0:21:12 Thomas: What? What's detours and frolics?

0:21:13 Heather: That's the vicarous liability thing about whether or not you're doing something within the scope of your employment or outside as a detour and a frolic. Yes, yeah.

0:21:16 Thomas: Oh, your honor, this was clearly a frolic. There was frolicking going on. Detours and frolicks, like apropos of nothing, I would never have a million, billion years never have guessed it had to do with vicarious liability. That sounds like a, I don't, yeah, I know. Don't know, like a trespassing thing maybe or something like that. No, no, it was a frolic. It was specifically, okay, why don't you demonstrate for the court? Were you doing a frolic or more of like a running motion or more?

0:21:46 Heather: See Bambi in the field. Just kidding.

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0:23:25 Thomas: Let's have question 70.

0:23:25 Heather: A seller of office chairs, Martha Sitz, sued the manufacturer of the chairs, Comfort For You, for breach of contract, alleging that the chairs failed to conform to contract specifications. Not long before trial began, Martha suffered a serious head injury that left her unable to move or communicate. A guardian was properly substituted as a plaintiff in the lawsuit. At trial, after the presentation of Martha's case, Comfort For You calls as a witness Alberto, who is a priest, to question him about a conversation he had with Martha at a church fundraiser. In this conversation, Martha told Alberto in confidence that the chairs she received were fully functional, but that she learned one of Comfort 4U's competitors offered a lower price and wanted to get out of her contract with the company. Martha's attorney immediately objects on the basis of clergy penitent privilege. How should the court rule on the objection? A. Overruled because the privilege can be invoked only by the person who made the confidential statement. B. Overruled because the circumstances under which Martha made the statement take it outside the scope of the privilege. C. Sustained because Martha's statement was made to Alberto in confidence or D. Sustained because this is not a criminal case

0:24:33 Thomas: Man, so much going on here. I mean, I mean, I had, over the course of listening to that, I had like 14 different like, oh, okay, it's going to be this. Oh, it is this. Oh, is this? And it is like, man, there is a lot going on here. Okay, first off, what is this, this seems like an evidence question to me, because it is a privilege, I mean, it could almost be like a procedure question, but it seems like whenever it is an objection, I am pretty sure that is evidence, it about something either coming in or not, and it is about a privilege. So I'm going to go. I feel like there's a whiff of civil procedure, but I'm pretty sure that's evidence. So that's that's what I'll say. I'll say it's an evidence question. So we got interesting set of circumstances because we got Martha Sitz or we could go with the arrested development, Sally Sitwell kind of thing. And she's suing for breach of contract, alleging that the chairs failed to conform to contract. We don't really get any info about that. And I don't know that it matters. But then she's sort of like incapacitated, which is a whole that's a whole thing. It says a guardian was properly substituted as the plaintiff, which I don't think this ends up mattering. I don' t see anything in the answers that has anything to do with that. I guess the only thing I can think of is if that was done because Martha is now technically unavailable. So that might bring something in that wasn' t otherwise. But I would think that it would be a statement of interest anyway. Anyway. So I would think, so I'm actually kind of confused as to why, I don't know if it matters, but I don'T know why this, that part of it was even in there. I guess it's probably so that Martha can't invoke clergy penitent privilege. Well, but then it says Martha's attorney still does that. So, hmm. Yeah. Interesting. Well let's see. Maybe it'll become clear. This is, boy, what a rich question. There's so much in here. So comfort for you, the person, the chairmaker calls a priest to question him about the conversation he had with Martha at a church fundraiser. Now it's not in the confessional thingy. Will that matter? I have to imagine this, there could be some sort of case law on this because I do feel like there's the clergy privilege thing. It's interesting though, because this isn't about a crime and it isn't really, yeah, that D answer sustained because this is not a criminal case through wrenching the whole thing because that might be interesting. But I would also still think that like, okay, when you think about privilege, like spousal privilege, I don't think it matters if it's civil or criminal unless unless it's the family court exception thing, but I think that the principle is like, you ought to be able to trust that you can communicate confidentially with someone. Like it's more about that. It's not about like, well, it's not criminal. So we can just get at this. Cause it's More about like maybe I, so I lean toward it being more about like just being able to communicate with someone like a priest or if it's spousal thing, or if it's like a doctor or whatever, being able to like have that communication in confidence evidence just as a whole and sort of preserving that ability. And so if it was just completely invalid, if it were a civil case, that feels not great to me. Like that feels like that would open it up a lot. But just to, I'm sort of skipping ahead, but just looking at the logic of the thing. So Martha's attorney objects on the basis of clergy penitent privilege. The question is how should the court rule on the objection? And the D answer was sustained because this is not a criminal case. So I suppose that would mean sort of the other way of what I was saying at first, which is you have that privilege unless it's a criminal case, unless maybe you've confessed to a crime, which that's more plausible. But what's interesting is it's not even about confessing to a prime. It's about a criminal cause. It would imply that like any, I don't know, like any witness, anyone involved could have that clergy penitent privilege shattered or pierced maybe would be a better word just so I don't I still don't love it but I skipped ahead a little bit but I was just keeping that in mind so it's at a church fundraiser it does say Martha told Alberto in confidence so I want to know first off we should speak to Alberto's manager because how does how did the other side even know to call this as person as a witness so that seems like already Alberto is uh leaking like a sieve or something or flip whatever so anyway Martha Martha told him that she's just doing this to get out of the contract and that it's totally bogus. And Martha's attorney then objects on the basis of clergy penitent privilege. Oh boy, there's a lot there. I love this question. Okay, so Martha's Attorney is the one objecting. Okay, So A, overruled because the privilege can be invoked only by the person who made the confidential statement. So that would suggest that not even your attorney could do it, which I don't like because I I feel like everything you do in court, like your attorney does it pretty much. I mean, I shouldn't say everything, but I'm pretty sure like most things, they're not going to be like, oh, well, your attorney invoked the privilege, but not you. Like you are your attorney. They're, they have power of attorney. Like, so I find that answer weird because I don't know, I don'T know what it's going for there. I feel Like Martha is invoking the privilege by her attorney making this objection. Yeah. I don' t, I DON' T like that. It' s not like Martha herself would have to say, like, if anyone does not approve a Of Alberto spilling the beans here, speak now, forever hold your peace. And it has to be Martha, but like she's apparently incapacitated now. And for that matter, I feel like the guardian would then, maybe they could do it. So I don't like A. So B, overruled because the circumstances under which Martha made the statement take it outside the scope of the privilege. So I think that would be under the idea that you got to be in the confessional booth thingy. The weird little tiny wooden like fort they make for you to go in there and have a little party. Tell some weird priest all the stuff you've done. It's a bizarre. It is a bizarre thing. Don't get it. But I don't know if that's what it's going for, because this says at a church fundraiser. But it does also say Martha told Alberto in confidence. So I'm definitely not certain which way this particular question should go. But my leaning would be that if you're talking to the priest, it is at a church function. It's not like the priest was like, you saw them at the grocery store. It's at a Church function. It does say Martha Told Alberto in Confidence, and we don't want to fight the question. I feel like kind of not be either. Either. Like, I don't really, I'm not certain on that one, but it seems like it would be a pretty kind of shitty privilege if it had to be in specifically that special safety zone, like home base, like in TAG or something. Like you can, you can say queen for a day. You can confess to whatever contract fraud you want to in that little box thingy. So I guess I won't eliminate B, but I'll say like, I doubt it, but I don' t love B. I doubt it, it's possible. C, sustained because Martha's statement was made to Alberto in confidence. OK, so that that seems like a pretty straightforward answer. That seems like Martha. It's about it being in confidence. So I think C is a strong contender here. I think she's just a strong intender. But then we've got the wild card, the curveball, as I referenced, D sustained because this is not a criminal case. And I think that's going to be the crux here because I don't love the wording of criminal case because that seems too, too broad. Because what I was going to say is, okay, I need to make sure to try to speak all my thoughts because I tend to skip my thoughts and just skip around. But on one hand, you'd want to say, okay if Martha came in there and said to Alberto, hey, I killed a guy, you would think that something that serious would perhaps warrant a piercing of the clergy penitent privilege. So I could see D being plausible in that sense. Like, oh, okay. Okay. It's all, it's all the privilege you want unless you're talking committing a crime. But two things. First thing is, like I said earlier, this is not a criminal case feels like that just feels too broad because like imagine if it's just based on it being a criminal cause now imagine that you know Martha's not the defendant in the criminal case but it's like a tertiary witness or whatever a peripheral witness and then they want to like bring in a priest to say like what did they tell you that it just feels like that would still be a criminal place but like that would seem too broad to me so that that's one thing I'm not certain on that but it feels just too broad like just all it has to be is a criminal criminal case that it's related to, and then you're able to pretty much get past that clergy penitent privilege. The other thing is, there's part of me that thinks that you're not getting past that Clergy Penitent Privilege anyway. I feel like that's a pretty hard and fast rule, I think. I don't know. It does seem pretty crazy to go in to confess to a murder to a priest, and it's like, yeah, that's that. But then again, I don' t, man, I do' t know. Because it's not, it's, like, I just think priests wouldn't be in the business of being witnesses to stuff all I feel like this would put them in the witness box a lot. Like that is their function to hear people talk about the wrong stuff they did. And a lot of things are crimes, even if they're not serious. For those couple reasons, I'm leaning away from D. Now it's just, do I take one final gander at B, the circumstances? Because I mean, it's possible that what Heather's going to tell me is, well, clergy penitent privilege is when you're in a church and you're confessing something during that specific confessing thing, possibly. I guess that would make it like very Catholic. So maybe that, that actually could be an, I mean, this might be silly. That could be another reason why it would just be C because you wouldn't want to like make it too tied to one religion. Like it seems like it would be fair that it would Be kind of any religion. So it's about telling a priest or whatever, some sort of religious figure person, something in confidence. Yeah, that kind of sort of talked myself into that actually. Like I feel like it wouldn't be, I could see it having to be in a church maybe. Maybe. It does say at a church fundraiser. So actually we don't even know if it is. It could, maybe that is at the church. I was thinking like, who knows if that's at a car wash or something. Yeah. So I think B is strong. So, I'm actually struggling to find just a second chance answer. I think I'm going to go with C ultimately. So. I'm like time travel in my mind. If I'm wrong, what is Heather telling me is the reason? Is she going to say, well, you can't tell your priest you killed a guy. Could be that. I do feel like there could be some like mandatory reporter type thing, maybe. But also, again, the language of a criminal case just feels too, I mean, is it about a speeding ticket? You know, it just feels to like that feels too broad because it's just it could be a lot of stuff. Yeah. So I think I'm going to go second chance answer B because I think like if I got it wrong, I think maybe it will be like, no, you got to be in a church talking about this might not matter, but I'm really 50 50 on the second chance. Answer B or D, I think are like equally plausible. I will say another problem with the language of D is like, if I read it just completely out of context, it's pretty bare bones. It just says sustained because this is not a criminal case. It doesn't even really talk about anything. So if they say objection, clergy, penitent privilege, and you say, yes, I will sustain it because this is not to criminal case, yeah, okay, I think that's enough. I think I have enough problems with the wording of D to say B is my second chance answer. Okay, official answer C, second Second chance answer B. Oh boy, what a question. That's final. And if folks would like to play along, you know how to do it. Go to Blue Sky, search OpenArgs, find the post. Answer there by quote skeeting it or go to reddit.com/r/OpenArgs. And there, you know, scores are tracked. It's really cool. Interactions are fun. You can do the no spoilers tag there, all that stuff. Or you have to, I think. And finally, for the bestest and mostest shout outs, the most important people go to play at patreon.com. All right, Heather. Well, I confess I am on

0:35:39 Thomas: Pins and needles waiting for next week and finding out the answer.

0:35:39 Heather: Well we're just gonna you're gonna have to hang tight if you have anything else to confess I'm sure there is a priest near you who will

0:35:49 Thomas: So go to my nearest little fort that they have. It just reminds me of the forts my kids build all over the house. Good stuff. Well, Heather, a pleasure as always.

0:35:51 Heather: Listen

0:35:59 Thomas: And I'll be on pins and needles. See you next week.

0:35:59 Heather: Thank you

0:36:06 Ad: [Ad break 3 — ad music]

0:36:15 Thomas: And only one thing left to do, which is to thank our patrons. So a welcome back, freshly banter rested Lydia Smith. How you doing?

0:36:24 Lydia: Yeah.

0:36:25 Thomas: Oh, wow. That's how you can tell.

0:36:27 Lydia: I Kool-Aid manned my way into the closet.

0:36:28 Thomas: Coming in strong. Just a pitcher full of banter. We've got to thank our new patrons first. At patreon.com/law. Sean Keller, Kim, and Phil Andrew. Thank you so much. Hope you enjoy the goodies and the warm, fuzzy feeling of supporting us.

0:36:45 Lydia: Welcome.

0:36:46 Thomas: Yeah, and the not ads. Thank you. And now we've got to thank the Hall of Famers, the all -time greats. These are the folks that are so amazing. They pledge at that $5 level and above. They're so amazing that they get a weekly shout out and they can pick whatever the hell name they want and we will read it. We will read It. And some people change their name all the time. It's really funny. We love it. That we enjoy it. Some people like to have the same name forever because it's iconic. That's also great. Either approach is fantastic.

0:37:12 Lydia: Yeah, it's like, you know, warm and cozy feeling when you read a name you know.

0:37:17 Thomas: Why don't you start us off with those Hall of Famers, those all-time greats?

0:37:21 Lydia: Thank you to UnreMerkable. Casey Kahn. Democracy cannot survive unregulated capitalism. Donna Treadaway, mother of harridans. Vote Zoran Mamdani for NYC mayor. Protect trans kids. Also, the new team is stellar and the pot is better than ever. Yay.

0:37:37 Thomas: You're the best.

0:37:37 Lydia: 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. Fraud Fishy hates Cheetos. Fraud Fishy hates Tab and Mountain Dew. Fraudishy hits Cheetos, really?

0:38:05 Thomas: This is, wow.

0:38:05 Lydia: This is news.

0:38:05 Thomas: This is, I've been, yeah, this is major. Wait, or is this a different Fraud Fishy Hates Everything? Sometimes they trick me. That's the one no no it's not they trick see just all right it's later exactly so lydia's a total noob I've been burned by this before yeah sometimes I'm like whoa they changed their name and it's like no it's a it's an imitator but

0:38:11 Lydia: No, no. This is, I think this is, oh, is Fraud Fishy Hates Everything up in yours? Oh, all right. So someone's tricking us. All right.

0:38:27 Thomas: That's okay I like it fraud fishy hates cheetos fraud fishy hates Tab okay sure yeah

0:38:32 Lydia: Okay, but the real Fraud Fishy, I would like to know if you actually hate Cheetos. Because we might have to have a conversation in this household, yes. Yeah. Yeah.

0:38:37 Thomas: Because I'm the only one who doesn't like cheetos it's weird in this house yeah and the whole the rest of the house covered in cheeto dough dust all the time. I'm the only person who's not orange.

0:38:46 Lydia: We're Al from Al's Toy Barn and Toy Story 2. too. Thank you to a negative phenomenon. Vehicular man's laughter is out of battery. Man, you gotta charge. It's been a while. Gotta get more battery. Come on, man. Cavalry, charge.

0:39:03 Thomas: Yeah, that patron agrees with you.

0:39:04 Lydia: Yeah. You gotta fight for your right to ex parte, j -sync, take a deep breath right now. Marvel's Gavelhead versus Versus the four unities. Gavelheads unite. Look, I finally changed my name. For real, legally. Thomas Freeman and Cajunkilla passing it over to you.

0:39:23 Thomas: All right. Thank you to E .T. Fraud Fishy Hates Everything, the real one. Chris Simpson, love the extra episodes. I love the Democrats. Fecklessness is my fetish, baby. Gavelhead, shucking away. Mark Schultz, the Cincinnati Kid, Bob Loblaw's Law Podcast. Philly Basement Bar is back open and isn't taking the shit lying down. Elec Thomas Smith, president, American Honky Tonk Bar Association. Baltic Cate, Philip Kaiser. Microsoft Office 2013 was the best version, but I'm starting to regret my MS -13 tattoo.

0:39:58 Thomas: Oh, I love it. I wasn't sure where you're going with that because I was already with you. Like I was like, yeah, 2013 was great. What was it? And it's so funny. I used to know this so intimately because of my job where it's like, OK, it was 2007, 2007, then 2013. Then I want to say there was a 20, shoot, what was after that? 2019?

0:40:00 Lydia: I know. That was a good year. It's a good vintage. 2017?

0:40:18 Thomas: Anyway, I used to know this intimately. I think it was 2001 before that, 2007. Anyway, this is from memory. And now I'm realizing that memory might be jumbled with some other dates. But point is, when, yeah, and the gangs. Yeah, that's true. But when this was my job, I was like, I knew intimately the differences and like the stakes of whether someone was, you know, because it's like Like, exactly, because like a state office situation, or even when I was in the private sector, you know, it's like I had to know which version of office we were working with.

0:40:28 Lydia: And the other gangs that you're in. Yep. Oh, compatibility. Yep. Yeah.

0:40:48 Thomas: Corin Lan, hors d'oeuvres in the court before we report, a string of unpronounceable characters, Malaika Chandler, Malcolm the Dragon the Precious variant, Milo Meadsong is fighting petty tyrants, Rhondathedork.com, Big Easy Blasphemy, FRED R GROOTHUIS, Chris Waltrip, ClassicLibtard, and Mitchell. Thank you so much, top patrons. You're the best.

0:41:08 Lydia: Yay. You are I like seeing all the little gavel heads come for this yeah the law dogs

0:41:12 Thomas: Yeah gavel heads unite well gavel heads and OA law dogs law dogs and gavelheads law dogs and ga vel heads greatest collection of law people ever assembled they're not rival gangs they're they team up a lot of overlap and MS13 we're also no I'm just kidding all right well that's it from us but if you want to hear more of us for some reason gavel pod baby go to patreon .com so gavel pot or just look up gavel gavel it's out for everybody there's a lot of us there and there's There's a lot of a very bad legal complaint that we go through. So check that out. And if not, that's okay. We will see you for a very special Friday episode. Good time to say this. I'm traveling, so it won't be a rapid response, but it is an incredibly good interview.

0:41:58 Thomas: It was a very inspiring week of interviews. The second one is coming at you instead of Rapid Response Friday, and it is great. You're going to want to tune in. It's fantastic. So I'll see you then. That's the rules of taverns. First rule of taverner club. Hold on, I got one. Sorry, I'm just drunk off my ass on dram. You're saying I got on right? I picked a hell of a day to quit drinking drams.

0:42:08 Lydia: I can't wait

0:42:38 Heather: What's a tram shop doesn't exist not a real thing never heard of it