I Like My Bar Exam Questions Like I Like My Coffee

Transcript

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

0:00:00 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:00:08 Clip: I just know that you were going to kick that bar's butt out of here, you know? Come in here with a skull full of mush and you leave thinking like a lawyer.

0:00:31 Clip: My staff has flunked the bar exams six times.

0:00:36 Clip: You graduated from law school six years ago. What have you been doing since? Studying for the bar.

0:00:47 Thomas: And welcome to Opening Arguments. This is the Thursday edition, which is Thomas takes the bar exam on Thursday. T3BEOT with Thomas. WT.

0:01:00 Thomas: I'll just keep going forever. Now, it's T3B. It's practice bar exam time. First, of course, when I bring on bar exam prep expert Heather Veronini to first give us the answer to last week's question and then give us a new bar question. It's a lot of fun. You can play along. You can join online and post your answer and I pick winners and we also see how well or not well I'm doing.

0:01:20 Lydia: Also the day of the week where OA creeper Lydia Smith forces her way onto the show.

0:01:26 Thomas: Official OA creeper Lydia Smith. Every podcast has one. It's uh yeah that's the role.

0:01:31 Lydia: It's usually me.

0:01:34 Thomas: You better not be creeping on other podcasts otherwise no I'm just kidding.

0:01:36 Lydia: Don't worry oa oa is my one and only oh man

0:01:39 Thomas: Good times. Yeah it's Lydia Smith how you doing? From that amazing podcast Gavelpod and Where There's Woke.

0:01:46 Lydia: We are getting ready to record some more stuff over on gg soon getting really excited about that um

0:01:51 Thomas: Have irons in the fire, by the way. We have so many trials that we're, we're trying to bring trial coverage back here as well. Um, just a question of, you know, time as you can imagine.

0:01:52 Lydia: My god yeah there's a lot of court things happening happening.

0:02:00 Thomas: Well, that, and there's a lot of Matt doing like saintly work for, immigrants who can't afford like, yeah, it'S like, it's, it, he's, I feel so bad because he's so busy, but he also really wants to do more OA and like do these things. And so it's a matter of of us finding the time. But he put a request in. Matt amazing. Is He's put a request in for something super special, audio from a trial that Reddit folks might know which one it is. I'll just leave it at that. We'll see if we get it. And if we do, it is going to be great. Can't wait to use that. That'll be on here if it is, it probably won't be on Gavel Gavel because, you know, we got so much to cover. And I think there's plenty of trials to go around. So we could kind bring that one over to here and it'll be fun. Yeah, that's Lydia Smith. I'm Thomas Smith. And in a

0:02:05 Lydia: People who need the most. Yeah, yeah. Fingers crossed. Yeah.

0:02:43 Thomas: Moment, I'll bring on Heather

0:02:44 Lydia: I'm also doing well. I didn't answer your question all

0:02:45 Thomas: Varenini. It's too late now. No one cares. You had a one bite at that apple. Now you don't get to answer. In a moment we'll bring on Heather for the bar question. But before we do, I is there anything folks should know about any announcements.

0:02:59 Lydia: There's an announcement the are going to be bringing back the original the og style q a for the oa audience that means everybody everybody gets to participate. Everybody gets to join.

0:03:12 Thomas: A video Q &A is on YouTube.

0:03:14 Lydia: Yeah.

0:03:15 Thomas: Woo!

0:03:15 Lydia: Video Q &A on YouTube. Join We'll have the link available for everybody. Now, not everyone's going to be able to ask questions, though. Is reserved for the patrons.

0:03:24 Thomas: Reserved for patrons. Yes.

0:03:25 Lydia: So if you want to ask Matt and Thomas and maybe some other folks, too, we'll see who we can get to join, yes, and pledge over at patreon.com/law but if you just can't you know swing a buck um this point in time you can still join you can still Join come hang out with us uh yep that's

0:03:30 Thomas: Have to go behind this velvet rope that we'll let you into. You can chat. We'll probably answer questions in the chat because we, you know, we can't help it.

0:03:47 Lydia: Fun uh that's gonna be this Sunday June 22nd at 3 p.m. Pacific 6 p.m. Eastern yep

0:03:54 Thomas: Even easier than that, click on the link in the show notes that's already there because I already made the event. It's ready to go. You can start waiting for that. Like you can click the link and then on YouTube, it'll be like, alert me when this happens. And you can hit that button. Um, you can subscribe to the channel to make it easier. Uh, yeah, it's going to be a lot of fun. I'm really excited to do this. We've Uh been wanting to do, to do a lot. I've been, I've, I'm, I, I do this a long time and, uh, can't wait to get some FaceTime with Matt and Lydia and, uh, and chat and get some live chat with the, with the yeah, we haven't seen each other months.

0:04:06 Lydia: Get back to the roots Yeah. It'll be nice to get some FaceTime, you and me.

0:04:27 Thomas: So yeah I'm really excited about that so look at the link in in the show notes patrons of course can look for that thread where they can ask the questions it's already up we already got some good ones

0:04:34 Lydia: Upvote the other ones that you want to hear from the thread, too, folks, if you haven't already.

0:04:36 Thomas: That's always helpful yep and uh I think that that'll do it yeah with everything else I

0:04:42 Lydia: I'm going to put in a plug for the question I asked.

0:04:44 Thomas: Thought that's what I thought you were gonna do and I was like okay she's keeping it uh keeping it professional no she wants upvotes for her question that I haven't seen yet

0:04:48 Lydia: No, I'm not. I'm not going to. Yes. Please. From the OA Creeper. Please.

0:04:55 Thomas: From official opening arguments creeper lydia smith wow lots of people seeking that role you know you had to beat out a lot of people for that

0:05:01 Lydia: I know. I know I have to hold on to this title, too. So we'll

0:05:04 Thomas: All right well that's it for announcements but that's gonna be a lot fun like I said go to patreon or go to that link in the show notes for the youtube link and um take care of the rest we'll handle it on our end you'll get all the notifications we'll be there yeah can't wait All right. With that said, I'm going to go ahead and get Heather Varanini on the line for the answer to last bar question. See how we all did. Then we'll have Lydia freeze, not move at all until...

0:05:15 Lydia: See you Sunday.

0:05:27 Thomas: Well, talking is still... I love how we don't count that. We can't move your face muscles, but you can use the muscles that...

0:05:27 Lydia: I'm literally not moving in my closet right now. Talking. I not. Yes, exactly. That's what I'm doing right now,

0:05:39 Thomas: We'll go with that. We'll go that. And we'll freeze Lydia until the shout outs later. Cause we always like to thank our patrons each, each and every, each, and every week. We thank our top patrons on patreon .com slash law and do the shoutouts. It's a lot of fun. So, Lydia, all we'll see you then.

0:05:40 Lydia: Loyal Can. Hand.

0:06:01 Thomas: Heather Varanini, how are you doing?

0:06:03 Heather: Doing great. I've been playing a ton of Mario Kart on the Switch 2. How are you?

0:06:07 Thomas: Me know if you want to play with me and the kids. It's been fun. So I'm playing with the kids and I of the philosophy that that I'm Mario Kart. I'm not going to let them win because what's the point? Because here's the thing. If I had one kid, I might do that. But when you have two that are playing, and I have Remy too, but he's kind of... I mean, we had him kind of play, but it doesn't really count. They're mad about losing anyway. There's not going be a thing where I make everyone happy because only one person could win. So instead, I just say like, no, I'm juste going to try. And when you beat me, you beat be. And here's thing. Mario Kart is communism at heart. It is...

0:06:42 Heather: Tell me, listen, tell me about this.

0:06:44 Thomas: Because it's not about the best racer. There's also a whole load of bullshit where if you're in last place, you if you're in any of the later places, not even last place. You can get a turtle that'll just take out first place. It'll just TAKE OUT Elon Musk. We need that turtle in real life. I'm not saying that to denigrate the game. I'm saying that TO AGREE WITH IT. We need the first place spiky turtle of life to just throw it at the billionaires. And then all their coins. Coins. Elon Musk would jump up and down, would fly up and down. All his coins would fall out and we'd all get them. That's what we actually need. That's why it's a communist game. That's why it's a socialist game at heart. That' why I agree with it. So they do, they can win sometimes because there've been times where I just get hit by 11 different things at once at the end of the race that aren't even there, especially now that this new Mario Kart has like 24 racers.

0:07:30 Thomas: And So, uh, anyway, point is the other day we did a Grand Prix and Arlo wins every single race. And I was like, is this it? Is this happening? I couldn't beat him. He was unbeatable. I was, like, what, what is going on? What are you doing? I was... My mind was just... I was just, like... What is happening? Turns out he had the auto assist on and I didn't realize.

0:07:50 Thomas: And so, I checked because we had turned it on for Remy and then, like, it'd take it over. And, so, that was a huge relief to know that they... But then, what the funny thing was, the race after I turned it off, he beat me again. And then, I was like, oh, maybe you are that good. And then I beat him like 10 times after that. So it's been fun. That's my life. It's been a lot of fun. But what's not fun is contract law and questions that might be tricks based on bad wording. We'll find out. What was last week's question? Remind us.

0:08:19 Heather: We had a retro video game collector, Peach, who wrote a letter to her stepsister, Daisy, offering to sell her collection of sports games for $5 ,000 because she knew that Daisy really loves sports games. Then we have Daisy writing a letter back to Peach that very same day accepting the offer. After that, we see our Daisy going to her other friend and finding out that the collection isn't worth $5 ,000, but it's worth about $600 because Peach is trying to offload part her game collection. As we know, sometimes we have collections. Not all of it is wonderful, right? Then what Daisy does is she calls Peach immediately to tell her she is no longer interested in the game collection, then the next day, Peach gets Daisy's letter that agrees to purchase the collection after the phone call. So we're really trying to figure out that if Peach brings an action against Daisy for breach of contract, and then Daisy defends on the grounds that no contract was formed, how should the court roll? So is it A, for Peach, because the contract is for the sale of goods valued over $500, and Daisy's rejection of the offer was oral? For Peach, because Daisy's letter accepting the offer was effective when mailed? C, for Daisy, because Peach received the phone call before she received the letter? Or D, for Daisy because the description of the subject matter of the contract was too indefinite to be enforced. You said that this was a contracts question. Was there any big tip off there for you?

0:09:42 Thomas: Yeah, just all the contracts.

0:09:45 Heather: Yeah, and you are right on to identify this as not only a contracts question, but you hit the nail on the head for the issue right away, which was the mailbox rule.

0:09:53 Thomas: The mailbox rule.

0:09:56 Heather: Yes. I get a contract's question, whether it's an essay or a multiple choice, and somebody's mailing something, one of the first things I think of is like, does this implicate the mailbox rule? Because it's tested all the time. For folks who might not know, contract maybe formation right is there must be a valid offer, acceptance, consideration, and no defenses. And then part of acceptance is that we think of this as generally the offeror is the master of their offer. Right but we also have this rule that lives underneath acceptance and this is called the mailbox rule uh and thomas as you correctly identified uh acceptance is effective upon valid dispatch so we yeah return it upon valid dispatch. So we can talk a little bit about what that might look like um and some of the other contours for the rule but I noticed um that right away you eliminated answer choice a and you started talking about the statute of frauds was an acronym to help you remember.

0:10:48 Heather: There's a few, but my, I don't know if favorite's the right word. The one that sticks in my head from my first year of law school is, it's called My Legs.

0:10:56 Thomas: That's it. It. You've got, you've told us that. My legs, that's a lot of things. I didn't know. No wonder I didn't remember it.

0:11:02 Heather: No, and I don'T expect you to. The way that I think about it is the M stands for The Y is for year or longer. L is for land. The is E for executorship. So So like if you were, um, you did, uh, many letters. Um, and then G is for goods of $500 or more.

0:11:11 Thomas: Got it. That's the, I had it. I had those three, but I didn' t know what letter to count for. Okay, yeah,

0:11:24 Heather: And then S is for sure. So you're right to think that this fell within that or it, the $500 more kind of thing was meant to kind of trigger that way of thinking in your brain. You also, uh. Noticed that, here that this is almost the opposite of statute of frauds that this answer choice is talking about a rejection needing to be in writing, right? Statute of frauds, that's not what it says. The statute of fraud tells us that in order for certain agreements to be enforceable, they have to be in writing. And it doesn't say anything about a rejection needing to be in writing.

0:11:44 Thomas: Right, yeah. I love the implication that, you like, reject a contract orally that needs to be a contract in writing, you therefore are in that contract now because you need to reject it in writing. But I also think like still of the assumption that if she wrote another letter, then it would be fine. And that's why I think sidesteps the timing issue. It sidestep, you know, so there's also that part of it.

0:12:15 Heather: Definitely sidestepping this timing. And listen, there's also, I'm not going to get too deep into this, but but there's an exception because almost every type of contract in the statute of frauds has an exception that allows you to make the agreement orally. Should kind of characterize that a little bit. But there's also this thing called the merchant's confirmatory memo. Not going to get too deep into that. But part of the thing, again, that you notice that has to happen here is that first, to fall into this, it has to be in writing. Have a writing here because Peach writes to her stepsister daisy right and then daisy writes back and like you said too the focus here isn't about it's a about the timing and b and also doesn't matter here if the rejection at least for this particular question doesn't really matter that she's yeah and so that's part of why this answer choice is wrong so you did hit on those two things with uh choice a and this is how we're eliminating it so

0:13:05 Thomas: Assuming the letter accepting it was valid, then it might make sense that like, yeah, if you're going to like opt out of it, that would have to be in writing. So like it's sort of another layer there that I thought wasn't right. And that's why I first thought this was a laugh out loud funny answer. And I was like, well, I guess there's like kind of a slightly more serious read of it that I was going with, too.

0:13:26 Heather: Yeah I think I'm following along I would say um I said I think you thought through that in a way that is had the right level of thinking in terms of or order I should say an order of thinking when you're working through why this question was wrong for the more than one reason as is some of these answer choices. Also you eliminate the answer choice C about Daisy rejecting and Peach receiving that phone call with a rejection before she received the letter.

0:13:46 Thomas: A bold elimination I feel like but I just I stuck to my guns with the mailbox rule I feel like that timing of when you receive it doesn't matter it's when you send it right

0:13:54 Heather: Exactly. Again, it's a mailbox which tells us that inacceptance is effective upon valid dispatch. Gets a little little hinky. If there's an improper dispatch, and then acceptance is valid upon receipt, or if the offer stipulates that if acceptance isn't effective until received, then the offer controls. We're not in that situation, as improper dispatch.

0:14:14 Thomas: Okay not sure what the first one you said was what was the first thing you said if improper dispatch but

0:14:21 Heather: That's the way that it gets talked about. It's

0:14:23 Thomas: The completion of that was if improper dispatch then it's valid on the receipt is what you said so I didn't know how Now, so you improperly, yeah, dispatch something, but then it's okay when you receive it. What? How does that work?

0:14:29 Heather: How that make sense? This is a good question. Sometimes it'll happen is it depends on what valid dispatch is, first and foremost. Let's say we agree that valid dispatch is that you put something in the mailbox. Proper dispatch. Let's say, sorry, improper dispatch is you leave it in front of your door. You just take a letter and you just put it in front of your door, just like on the floor, right? Then nobody sees it for some time, right, there's just sitting outside in front your house, any of that, then by the time it's at that point, to your point about this question is a lot about the timing, right. Because then the acceptance isn't valid in that particular instance, until the offer or receives.

0:15:10 Thomas: And so I think also, tell me if this is right. I think when you flip this around and think of it the other way, it might make sense because when we're in the mindset of like, oh, doesn't want this to be accepted. That's one thing. What if it's the other way and peach found out that her video game collection is worth a million dollars and then daisy can't be like well I set my acceptance on my doorstep on november 1st it that wouldn't you know it's like it's got to be when they actually received it because that doesn't count just because you held it in your heart and on your doorstep is that what's going going on here?

0:15:42 Heather: I am following correctly, yes. Because to your your point I think also when you were walking through the question you you said you can't really hold stuff in your heart like that's not how contracts law works uh that's nice that you want to um but you can uh because also like you say there's got to be a meeting of the minds we have to have offer and acceptance kind of about that same time we want people to be on the same page um then also too there's other issues that come up if let's say to your point if peach decides she wants to she's like listen I haven't gotten that offer acceptance yet and I found that it's actually worth more there's other stuff that kind of comes up around termination it's called referred to as termination of offers

0:16:14 Thomas: Of offers. Yeah. Okay, no. you don't get to count from when you like, you the letter in, your house. You know, that makes it, you need like an objective date and time and absent that it's like, well, then it's going to be when they received it because you can't really prove that you sent it earlier or that you, you know, so that's kind of how I'm making sense of that. Does that sound right?

0:16:32 Heather: Yeah and so that's a part of how we get to like sort of c being out of the question so A and C are out

0:16:36 Thomas: We are once again, it's me or it's the coin that hypothetically flipped the other way. We'll We'll see who wins.

0:16:43 Heather: We're down to B and D. And have here Daisy because the description of the subject matter of the contract was too indefinite to be enforced. So you were talking a little bit about this, about the wording of the question and sort of thing. And listen, sometimes that happens. And I think what you did, which I thought was great, was work through the reasoning because that's the best you can do sometimes. When a question is poorly written.

0:17:03 Thomas: Yeah, because God forbid they just write them better. It's the best I can do.

0:17:07 Heather: Because listen, listen, could you imagine if Peach had one game that she was trying to sell, right? Then we're getting into a similar, I can imagine this being a tighter question where there's one game trying to offload.

0:17:17 Thomas: Oh, as in, so as in like if you come up with an extreme example where it's way different than what the words kind of imply, then maybe, is that what you're saying? Like,

0:17:25 Heather: No, I'm just saying I could see a question where this is maybe more effective if she's trying to sell her like okay

0:17:30 Thomas: I think that's what I'm saying. I think I'm agreeing with you. I hope.

0:17:32 Heather: Sorry yeah I think you are too imagine that she's trying to offload let's gonna say uh one football game from the first xbox generation you know and then that's it's kind of looking like a different same question tighter language makes a little bit more sense right we need to know what the subject matter of the contract was to your point about mutual assent, but you did the right thing about what's the most reasonable interpretation of this. And also what's The question asking me and you were right. Cause this is hitting exactly on timing and that's how we eliminate D and we get to B.

0:18:05 Thomas: My God. Throw a parade, everyone. So the correct answer was actually F. I'm sorry. I got it wrong still. It was a secret invisible ink answer. No, I got a question right. Unbelievable. Unbelievable. So this is, I'm very proud of this one. So was I onto onto something Something with it being the grounds that no contract was formed being a little bit different than because the description of the subject matter was of the contract was too indefinite to be enforced?

0:18:33 Heather: So, and I'll tell you where that comes up. So maybe not necessarily here, but there's a difference between forming and enforcing when it comes up in relation to defenses. So sometimes people will think contract defenses are all the same. They can be broken up into two categories, defenses to enforcement and defenses to formation. You can categorize those differently. I do. Definitely you'll see that on the bar exam too. And so, and to your your point, they're categories. So I a good example is defenses to enforcement will be a statute of frauds, for example, and a defense to formation could be like, well, is, I don't know why I'm saying could be, like, I don'T know the answer to this. I'M SORRY, is like mutual mistake. So there are different types of defenses to raise. Sure.

0:19:16 Thomas: Would be a defense to enforcement. Oh, is that because they think they formed a contract and so they sort of formed it, but they, but, uh, they actually didn't sort of.

0:19:23 Heather: And then you can't, yes, and then you're defending to say this contract is unenforceable because it doesn't meet the the requirements.

0:19:29 Thomas: Cause I think, I think my, my thinking there and maybe others would have the same reaction is, well, if the statute of frauds thing is that certain contracts have to be in writing, wouldn't that then be about contract formation? Wouldn't you think like, oh, you never formed it cause it wasn't in writing. And then my next thought was, oh wait, but I'm sure when that comes up, they think they formed a contract. Like they probably agreed to something and but then you're, one of them is probably saying, well, no, you can't enforce it because we never had it in writing. And so that's why it's about enforcement and not formation to

0:19:56 Heather: Well, that could be one way to think about it. I think the way that this could just be the way my brain is because this has been in this so long is the general rule I use for statute of frauds is some contracts must be in writing to be enforceable. And

0:20:11 Thomas: Enforced. Yeah, no. I think, I think I'm just I the information of your Heather divisions as what it is. I'm just trying to find the reasons behind it. And I think that that, I I think we're on the same page there. Like it's, it's more like first blush, it might be like, yeah, that's why you can't form it. Cause it's not in writing, but it's actually not about that. It's about enforcement.

0:20:29 Thomas: Okay, you and I could think we formed a contract. We could be like hey, I'm going to, you know what I'm gonna do? I'm to give you goods that are worth more than $500 in a year from now when I die and we are married on that date. We'll be like you're right. We formed that contract orally, both of us. We love it. It's the greatest thing, but we're not lawyers. And then when I come to collect or you come to collect, it'll be like, oh no, we just, you can't enforce that because we think we formed one. You know what I mean? That's kind of how I'm thinking of that. I hit all of them? I think I missed one. Did I get all of us trying to make it a contract that was unenforceable for every single reason of the my legs?

0:20:29 Heather: Because sorry. The Well other thing is that the other step from that is often in these situations, what'll happen is maybe they do make an agreement. Maybe they both think they're on the same page and then something something usually happens, at least in these fact patterns, where someone's like, I don't think I want to be a part of this anymore. And so that's usually when they get into trouble and they can defend by saying, well, we can't actually enforce this contract because it was never in writing.

0:21:29 Heather: I don'T know if that helps to clarify.

0:21:30 Thomas: No, I think we're saying the thing. The thought occurred to me, though, that I guess just from my trying to reason about the reasons for this, I guess in theory that could still be, oh, wait, we didn't actually form a contract because it wasn't in writing. So and then again, who knows? So anyway, I'll move on. I was trying to make sense of it, but I realized I might not have. Or maybe I did. We'll never know. What about so the description of the subject matter wording? What about that? From something else? Like, is that, what is that from? Was I right to latch onto that wording being a little different there?

0:21:58 Heather: Necessarily. I think what this was trying to get at was this could be getting at what's required for to your point about contract formation and offers is that they have to be sufficiently definite. In order for to your point about there to be a meeting of the minds and one of there's can be a defense um to whether or not that's the case does

0:22:15 Thomas: That be enforceability? That be formation? So is that difference between formation and enforceability still valid there?

0:22:22 Heather: Yeah this is a for me this is will be a formation issue to your appointment

0:22:25 Thomas: Okay. Okay, so, okay, your point. I'm just trying to make sure I got every part of this. And I think I almost did. So the description of the subject matter to indefinite. Yeah. Cause that's, that's going to be, I when maybe I'll just ask directly in this way, what about my biggest concern, which was that daisy didn't know what she was buying like I feel like that's bad in a in a contract I just I'm I'm so glad I went with b but I felt like that was bad what's going on there and why did that not end up being a problem

0:22:41 Heather: I Oh, yeah, yeah. You're right. So to your point, I think, so things. First, I think you reasoned your way through correctly to what the question was trying to get at. And that's how you ended up at B. But second, you're right about if you don't know what you're getting into with a contract, bad. No meeting of the minds. And then you have a defense to formation. So you, yes, does that help to, was that what you're getting at?

0:23:10 Thomas: So I so yeah I'm honestly I think I just nailed it because my thinking was if if that were what was it was going to be then there would have been an answer more about meeting of minds and about not knowing what you know rather than this too too indefinite to be enforced. And so honestly, I just think I freaking nailed this one, man. I finally got it. Me if I'm wrong. I don't, I want to know if I're wrong about something, but that's, that's why I was just making sure I dotted every I crossed I've can't leave this happen. This was a miracle.

0:23:36 Heather: Listen, I can, I have listened, I see, I mean, I genuinely I get to listen to every week, the way that your mind makes way through questions. And so I'm always on the other side and you can't hear me like rooting for you going like, Oh my gosh, you're so close. Cause you can get there and you do that. And so like, I'm like, oh yes. Like I knew the second you were like, Oh, this is a mailbox rule question. And the second that you said the rule, I was like ,Oh, he's going to get this. So I'm Like, yes, I was so excited.

0:23:56 Thomas: I appreciate it, but, but there there was a lot of work to do after that. I don't know. But yeah, no, I appreciate it. And I really feel like I've nailed the last three. It's just like went the other way at the last second. And this was so close to being another one of that. AndI'm so glad that I just barely saw my way through it. So apologies for tooting my own horn, but it's been a while.

0:24:15 Thomas: I haven't, this horn is rusty. You know, it's not gotten to toot much lately. All right. Well, I'm excited to see what what everyone thought online of this. So we'll hop online and see what everyone's answers were and declare winners.

0:24:15 Heather: Toot toot. Sorry. Same. Yay. Insert beeping noise from Mario Kart. I'm just kidding.

0:24:34 Thomas: Let's see. We've got one blue sky player. That person low and is now selling high on the blue sky, Sebastian. That is the, at the Duke of doom b sky dot social says the answer is c due to peach being a fraudulent sneak thief and trying to offload a considerably lower value portion of the collection which should work around the mailbox rule due to the significant damages daisy would suffer I also believe it's reasonable to believe that peach acted with knowledge her collection wasn't worth that much due to fact that she's offloading less valuable parts of her collection to someone she knows has been really desiring it also entertaining how daisy is a sports game fan due to her primarily being in mario sports games well I can't tell if sebastian knows that the real answer is actually b but I uh appreciated nonetheless the enthusiasm and the at the injustice of it all all Sebastian at the Duke of Doom on Blue Sky.

0:25:30 Thomas: Check out OpenArgs on BlueSky to play along. And now, who's our big Reddit winner on reddit .com slash r slash OpenArg?

0:25:38 Heather: Van Buren, 1845, who says, sorry, Daisy.

0:25:42 Thomas: Still playing, huh? Wow. Still going strong.

0:25:45 Heather: Listen, that's amazing. Daisy, I think your stepsister's ethics are in another castle. All thomas thomas definitely tried to talk me into thinking they didn't agree on what specific games were up for sale but I'm not going to overthink it and say the offer was sent by mail and accepted as soon as daisy sent the letter so the answer is b hope enjoy 100 copies of madden

0:25:53 Thomas: That's awesome. Hey, Madden is like one of the least of it. So people always complain, and maybe Heather, you'll know about this better than I will, but people always complained about the, what is it, the 2K games being like just the same game over and over. Like, you know, NBA 2K, you know, 23, 22. And it's just like the same game every time. But I feel like Madden was like, I don't know. It's been a while since I played any of those games, but I feel Like Madden Was different than that. I feel LIKE Madden WAS a little bit better at like having an actual kind of different game each time, but who knows? So no, no opinions on that very controversial subject.

0:26:40 Heather: No I was just thinking about this documentary that I was watching on amazon about about it a while ago and I'm it got kind of deep like into some of all that stuff so I'm just gonna like I

0:26:48 Thomas: So, you Know, too much. You're like, Like I need to not start talking because then I'll never stop. Yeah.

0:26:53 Heather: Know yeah I think it like got down to the 3do rabbit hole I mean it was a hole anyway yeah like you said I'll let that go yeah

0:26:57 Thomas: Awesome. All right. Well, that was an awesome one. I love that winner. And now I will look at, of course, patreon .com slash law for the biggest of big winners. This person gets all the shout outs all the glory all much every answer is good like I almost want to read all of them I don't know that they all got it right but they they're all fun so first off I gotta shout out amina uh love amina she's uh always in the top patron hangs and uh she's these great people. And she says, your favorite neighborhood mail lady here. I think the answer is B for Peach because Daisy's letter accepting the offer was effective when mailed. Daisy's phone call came after she had already mailed her acceptance. And yeah, Amina working for the post office knows that rule. That's kind pretty of cool. Also congrats Amina. There said the result of the lawsuit should be c but because daisy's shonky bar exam shonkey daisy shonkie bar exam question lawyers have used the wrong grounds for defense no contract rather than no damages because there was never a time peach could have genuinely believed the contract was enforced so the answer will be B. And I feel like that pretty much nails it, right?

0:28:03 Thomas: Feel like you could have fought this on different grounds, but you know you stick with the answers that you're stuck with on the bar exam.

0:28:03 Heather: Yeah yeah Yeah. That's right. Yeah.

0:28:10 Thomas: Also got a shout out sent from Disneyland. That's a friend of mine who has a sent from Disney Land podcast. It's a fun Disney Land Podcast and it It is about postcards sent from Disneyland from different years. And so that's a cool tie -in too. We've got lots of actual male, as in M -A -I -L, tie -ins here and from Disneyland. It says, B, once it's postmarked, legally accepted based on that date. I'm not a lawyer or a postmaster, just a mail enthusiast or a postal enthusiast. Good times. And then I love Professor Flatpack's assistant says, Red Heather, Yellow yellow heather.

0:28:44 Thomas: Cause we were doing the the, warmups and doing like red leather, yellow leather thing. And then, uh, see, these were all fun. I had so much fun. Thank you so much. Everybody at patrons, especially, uh. We love when you play along, we love reading all of your comments. They're all great. Okay. Well, I'm on such a high from getting question, right? That I'm officially announcing my retirement from the game. I'm done. Uh, I want to go play minor league baseball. See how that goes. Uh. Nope. Already failed at that. Okay, so I'm back to the bar our exam. So that was short. I'll be answering question 74 after this break.

0:28:48 Heather: I love them.

0:29:19 Thomas: Right, Heather, let's hear question 74.

0:29:22 Heather: A group of people that hijacked a truck full of bees was arrested and a group

0:29:25 Thomas: I'm going to need you to stop already. A group of people that hijacked a truck full of bees is how we start. Okay, strong start.

0:29:32 Heather: Of people that hijacked a truck full of bees was arrested and indicted by a grand jury. The grand jury's investigation, the district attorney's office subpoenaed the truck driver, Tom, as a witness. Was relieved that he was not asked questions about a series of thefts of shipments of beat boxes that he Was involved in, but he worries the subject might be brought up at trial by the defense attorneys.

0:29:53 Thomas: Interesting.

0:29:54 Heather: Is afraid that he will be fired from his job if he invokes the Fifth Amendment privilege against self -incrimination on on the witness stand, so he wants to avoid testifying at all at the trial, even if he is subpoenaed by the defense.

0:30:06 Thomas: Oh, Oh, I love this question.

0:30:07 Heather: Tom's lawyer, what advice would you give him about complying with a subpoENA?

0:30:11 Thomas: First, I'd say bees, not the bees.

0:30:15 Heather: A. Tom can avoid testifing because the potential that he will incriminate himself is greater than the interest the defense has in calling him a witness. Tom can avoid testify because he is not a party to the action. C. Tom cannot avoid testify because he can plead the Fifth Amendment on the stand, or D, Tom cannot avoid testifying because he must answer all questions truthfully, even if his answers will incriminate him because he is not on trial.

0:30:43 Thomas: Oh, okay. I was, this is great. Okay. This is one that I feel like I really need to get. And I feel like I should get, because I feel somehow, I think I know a lot of information about this particular thing. I don't remember why. I think it's just come up. You know what it is? It's come up in so many Trump trials and other crap that I know about this, but I haven't applied it to a truck full of bees hijacking. So we'll see if that's any different, but this is about pleading the Fifth and self -incrimination. And we've had not only some questions about this, we've had also interesting stories involving this. And I just feel like there's a lot of wrinkles that I actually remember, but we'll see if there's yet another wrinkle that I hadn't yet come to that will be the reason I get this wrong. However, I'm going to go ahead and say that this is probably, well, here's the thing. Whenever we talk about testimony coming in, that's usually evidence, but I feel like this has to be constitutional law law because it's like your right, your Fifth Amendment right to not, self you -incriminate or whatever. So as much as this is kind of also a evidence question because it is about what kind of evidence comes in at a trial, I think in this case, I guess it's got to be constitutional law. It's about the Fifth Amendment, right? I mean, it's gotta be. So I'm going to go with that. Let's see. I know that can't plead the Fifth. Think it has to be a crime. So just Just my first, intuition my was because the question mentioned something about losing his job and all that. And like, I don't think that's going to be enough. It can't just be that's like embarrassing or bad for you. It has to be actual crime of some sort or some sort of like proceedings, some sort of justice proceedings. Because I also think there's, there've been things when it came to like impeachments or other times where it's like, it might not necessarily be about a criminal proceeding, but there's other kinds of proceedings that I think you can not to incriminate yourself for or whatever. But let's just go through the facts one more time. All right. Truck full of bees. I really was thinking this was going to be like a felony murder rule or something like, cause it says a group of people. It's kind of weird, Bee but Truck 7 or something. The Bee Hijack said Truck 7. They're all up for trial together. The Central Park Hive. No, that's

0:32:45 Thomas: Stupidest thing that's maybe ever been said on this show.

0:32:51 Thomas: Okay. Man. I regret so much that Heather has to be on mute on this segment because now I'll never know if that was funny or not. We'll find out. Tune in next week. So stupid. It doesn't even make sense at Anyway, I'm glad I made myself laugh. Probably cut most of that so central park high are on trial and district attorneys subpoenaed the truck driver okay so that's a person who's essentially you hijacked I guess relieved that he was not asked about questions so okay during that so during the grand jury investigation this is an interesting wrinkle that I'm not sure matters he was relieved that he Was not asked questions about a series of thefts of shipments of b -boxes that he He was involved in, he worries the subject might be brought up at trial by the defense attorneys. Okay. Tom is afraid that he will be fired from his job if he invokes the Fifth Amendment privilege against self -incrimination on the witness stand. So that, okay. So that's interesting. So it feels like the Fifth amendment against self incrimination should be hunky dory when being asked about thefts you're involved in. That seems fine. But it's interesting that he says, well, I'm worried that I will be fired if I invoke the Fifth Amendment against self -incrimination. But that I don't think matters. I think that's kind of on you because like that's not being prosecuted, like you're not incriminating yourself. You just might suffer a consequence from having pled the fifth, which I don'T think the Constitution cares about, I think. An interesting little wrinkle. So he wants to avoid, maybe or that's just in order to get us to this part of the sentence, which is he wants TOAVOID testifying at all. Might be, okay, that might be just what that's about. Wants TO AVOID TESTIFYING at all, even if he is subpoenaed by the defense. Tom's, oh, I get to be a lawyer. As Tom'S lawyer, what advice would you give him about complying with a subpoENA? Tom can AVOid testifying because the potential that he will incriminate himself self is greater than the interest the defense has in calling him as a witness. That's nonsense. That's not the test. I don't think at all. Amendment, right, is pretty much, I think that's just, you can plead the fifth and that's, you Can just plead the Fifth. There's no balancing test of the interests. Like you can just do it. So it's not A. Tom could avoid testifying because he is not a party to the action. I Don't Think That's True. This is a criminal trial, right? Right. It's not like a yeah, it's going to be. I don't think that's true either, which is I mean, I usually like to leave one yes answer and one no answer alive. But I feel like that's not true. I think it's true. I don' t think you can avoid testifying because you're not a party. I mean you're a witness and the state is like, hey, oh, well, actually it's the defense. Right. So he's subpoenaed by the district attorney. So he's Subpoena by the state. But he is worried. I got confused because he's worried that the defense attorneys will be the ones asking him questions he's uncomfortable with. So that's interesting. I don't think that matters, but, but yeah, you can't just not testify. I mean, there's people people in trials. I know in the Diddy trial right now, there is like an ex -girlfriend that didn't want to testify, but has to be there. Is not suing him or wasn't part of any of that, but she has to testify. Yeah. And there is also the, in the Young Thug trial, I feel like there was something like that. Yeah, Yeah, so it's not B. I'm going to just eliminate A and B. Those can't be right. Tom cannot avoid testifying because he can plead the Fifth Amendment on the stand. That I like. I good. I think it would be reasonable to be like, hey, there's some stuff that I'm going to plead the fifth on, but you still have to answer the questions that are not that. They still, yeah, so I'm pretty solidly C. C. D. Tom cannot avoid testifying because he must answer all questions truthfully, even if his answers will incriminate him because he is not on trial. That is also not right. Well, I feel so certain that this is C. I absolutely feel certain that there's a C because you the fifth in someone else's thing. That's always true. You just, you know, it's about about incriminating yourself in a later thing it doesn't have to be like that very trial just this seems so straightforward that I'm trying to figure out if there's like a trick or maybe the trick is knowledge and I somehow know enough for this to be easy famous last words because no way he cannot avoid testifying because Because I'm trying to think if there's any trick that would make it D somehow still. Okay, the trick would be, if it were D, the super duper trick would be that you can only avoid going on the stand at all if it's your trial. You have to go on thestand and yet could still plead the Fifth Amendment. But wouldn't that still be C? C I'm trying to think so c is just tom cannot avoid testifying because he can plead the fifth amendment on the stand that seems straightforward to me that that seems like what it is it I'm just trying to make sure so I guess I'm between c and d d seems I mean I almost would eliminate d because it says he has to answer all questions truth truthfully even if his answers will incriminate him but I'm only wondering if like is there a trick where that's true unless unless you plead the fifth. Like, is it trying to be tricky that way? Like, yes, you do have to answer all questions truthfully, unless you bleed the fifth, but that'd be pretty, that'd be pretty crazy for that. So I almost want to go between B and C just in case. Might go between A and C. I'm trying to think like, okay, if I'm wrong about C, I'm pretty solid on C. Um, like 99 % sure. I'M TRYING TO THINK OF WHICH IS THE BIGGEST CHANCE I'll get it wrong. And if I go back to A, seems bad, too. Like, none of them seem right. A, Tom can avoid testifying because the potential that he will incriminate himself is greater than the interest the defense has in calling him as a witness? Nah, that can't be right. Because, like, you have the right to put on your case, you know? I feel like that's a very fundamental right is to be able to put on your own defense and call the witnesses you need to call. Yeah, I can't be A. So if I'm wrong, I guess I'll go between C and D because I think D is the most plausible second chance answer. But I just think it's C. I think you have to testify. And if you get to a question where you need a plea the fifth, you can plea the sixth. I don't think you can avoid testifying. The only thing is if D is a super duper trick where it means that, you to answer all questions truthfully, even if they'll incriminate you, dot dot dot, unless you plead the fifth. Like if it's trying to leave that part out to have that still be technically true. Then it would also have to be true that if he were on trial, then he can avoid testifying. That part kind of makes sense because like because sense that like the one on trial, it would be weird if they and I'm sure they would if they were allowed to call you to the stand somehow and just make you plead the fifth over and over. They would do that because it would look worse than not doing it. You know, they'd just be like, oh, where were you? Plead the fifth. Well, like that would look so like I'm just trying to scramble to think of any way I got this wrong. So I'm going to go between C and D, but I think it's just C. I don't think there's any way. I don't think there's any way D is true. I'm definitely not going with D, but I'll say, I'll say D is the most plausible second chance answer in my mind. Uh, and that'll be fine. Okay. So final answer C, second chance to answer D and I'm covered in bees.

0:39:37 Thomas: Covered in bees! All right. Uh, Heather, you so much as always.

0:39:39 Heather: Yes, I'm bee free over here.

0:39:44 Thomas: Go and be free. I released you. It's a, it's a pollinate. I don't know. So much. Fun as always. I'm really curious about the answer next week. We'll have to talk then and see if I got, could I put together two correct answers in a row? We'll see. We will find out. The world is clamoring to know.

0:40:03 Heather: Be sure to let everyone know, including you. I'm

0:40:07 Thomas: Good times. We got to get out of here before we ruin the entire show with bee puns.

0:40:16 Clip: Thank you for being, say we started from the bottom, now we're here, girl.

0:40:25 Thomas: One thing left to do today and that is to give shout outs to our patrons at patreon.com/law beginning with the new patrons and so of course unfreeze we recorded that first bit last week too so it's it's been a while

0:40:33 Lydia: Oh, I feel kind of like creaky and yeah. 10 ,000 years will give you such a crick in the neck. God, I'm so annoying.

0:40:43 Thomas: And I'll just thank our new patrons real quick patreon just powering through patreon.com/law thank you to Krista Attewell and Travis DePrato, maybe thank you so much for signing up it means a ton to us and I hope you enjoy the no ads and the content all and now it's time to thank our hall of famers our all -time greats at patreon. John dot com slash lot. These are the saints. These are the heroes, the entities among us that pledge at that five dollar level and above for at least a month. And then they get a shout out each and every week and they get to change their name or not or have the same name for years. Either way, it's great. We like both of them.

0:40:56 Lydia: And travis so glad you could be here my bffs yes or not yeah we do oh

0:41:23 Thomas: I believe it's your turn first.

0:41:25 Lydia: How wonderful okay thank you to Vetinari for America 2028 one man one vote unremarkable casey khan the woke moralists jordan peterson warned us about speaking of I sent this to you Speaking of Jordan Peterson, kind of related, Kennedy Center, big news. They're announcing some some new acts over at the Kennedy Center. Adam Carolla, everybody. Adam Carulla.

0:41:51 Thomas: I don't know what they normally did over there. Did they do like stand up comedy nights? Probably Maybe.

0:41:53 Lydia: Not that. Yeah. I mean, do they do like a mix of a lot of things.

0:41:56 Thomas: Know they did like the Mark Twain award thing.

0:41:59 Lydia: Yeah. But Adam Carollo, that's a you that'S right up that alley. So Donna Treadaway, Mother of Harridans, please say you have contracts now, not undefined 50 -50. I don't know. It's about you and Matt versus you and Andrew.

0:42:10 Thomas: What? Please say you have contracts. Oh, well, it's a different, yeah.

0:42:19 Lydia: Fine. Thank you so much. Some say it may happen that a victim must be. What? If some says it may be. If some stay. Say a victim must be oh

0:42:29 Thomas: Not a victim. No, it'S that. Don't know if it's just cut off or something. They're giving us a little bit at a time we'll see next week I don't know yeah so

0:42:38 Lydia: It's gonna be a big reveal yeah protect trans kids I don't want to body shame but stephen miller looks like he drinks unicorn blood no lemons no melon it's true

0:42:50 Thomas: It's another okay so this is uh yeah caught on that these have been palindrome's the last several of these so good stuff no lemons no melon no no woman no cry you know the pain unless it's that famous song.

0:42:54 Lydia: Well. Oh, yeah. I was like, no. Yeah. Yeah, that famous

0:43:08 Thomas: Lemon's the melon.

0:43:12 Lydia: Palindrome. No women, no cry. Cyanitis. Disappointed in all the capitulating to fascism. Fourth Circuit attorney reluctantly changing her font. Sex and gender are different things. Apprentice of adventure. Probably a real person. Rooting for the hamburgers to deliver more timely justice than the current system. Unfrozen caveman lawyer. Nick Fish. The doodly swoosher TM. A negative phenomenon. The science of selling yourself short. You got to fight for your right to ex parte. J -Sync. Cavalry. Vehicular man's laughter is at 100 % after recharging with the newly discovered element privilegium.

0:43:53 Thomas: Privilegium.

0:43:54 Lydia: Yes, privilegiam. Elect Lydia Smith, president of the American Honky Tonk Bar Association. Oh, dang.

0:44:01 Thomas: How dare you? All right. It's a runoff. It'S a run off.

0:44:03 Lydia: Dang. You know, I just needed to step in with, you know, the official OA creeper. Next up, president of the American Honky Tonk Bar Association.

0:44:10 Thomas: You know what we didn't shout out? Away on Dear Old Dads this week. Lydia Smith OA Creeper is officially a Dear Old Dads Creepers.

0:44:16 Lydia: I am.

0:44:18 Thomas: Two episodes with Lydia Smith you're going to get it over on Dear Old Dads. Actually, you already have one and you're getting another one very soon tomorrow. So look forward to that, folks, if you're a Dear Old Dads fan.

0:44:27 Lydia: Thank you.

0:44:29 Thomas: Or you should check that out, everyone. Regardless, you don't have to be a dad.

0:44:33 Lydia: Not a dad. I was on there.

0:44:35 Thomas: Yeah, if you have kids or if you ever were a kid, those are the two groups that we're going for.

0:44:41 Lydia: Mm hmm, Mm hmm so it kind of covers everybody.

0:44:43 Thomas: Yes. Yeah. And so you'd almost think the first one is kind of irrelevant.

0:44:48 Lydia: You to even a blind squirrel can find these chunks.

0:44:52 Lydia: And look, I finally changed my name for real legally.

0:44:57 Thomas: It. You to Thomas Freeman, Cajun Killa, E.T., Fraud Fishy Hates Everything, Chris Simpson, Love the Extra Episodes, I Love the Democrats, Fecklessness is My Fetish Baby, Gavelhead Chucking Away, This 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 Honky Tonk Bar Association.

0:45:19 Lydia: We'll see.

0:45:23 Thomas: We've got a third party runner. Look, she's just going to spoil, you know, she's not, if you go, if we split, if мы split the Smith vote, then yeah, that's a problem. We're going to then some other, well, there's no, this is a primary.

0:45:30 Lydia: I'm the green party. One else is running, though. It's just you and me. This is

0:45:40 Thomas: Yeah.

0:45:40 Lydia: The primary.

0:45:41 Thomas: Uh -huh. Well, what do you think? We're from two opposing political parties? No way. There's an, there's like an evil law show that has their host you know and we can't yeah see see we can'T split our vote all right here's the thing if you end up with more support I will I will resign I will uh withdraw from the race yeah so we'll we'll uh we don't know spoilers or rank choice voting hey we make the rules why don't we rank choice american honky -tonk bar association she's

0:45:44 Lydia: I don't know. Well, I know the evil law show. Yeah, that's true. OK, we're not splitting our vote. Concede. Yes. Yes, I.

0:46:08 Lydia: Yeah. I would prefer rank choice because I don't know that I'm willing to concede. So there you go. However, yes. Evil law podcast. Agreed.

0:46:14 Thomas: A real spoiler Spoiler, everyone. Thank you to Baltakatei, Philip Kizer. At least George III had a good wig. Cornland, a string of unpronounceable characters. Hors d'oeuvres in the court before we report. Maleka Chandler. Malcolm was was my soul dragon. 23, August 17th through 17, June 24th. F cancer. Oh, uh, man, that a sadness. I can't even let enter into my brain to ponder because it, I won't be able to finish the recording. So I'm so sorry for sending love. Yeah, absolutely. Milo Meadsong is Fighting Petty Tyrants, RhondaTheDork.com, Big Easy Blasphemy, Chris Waltrip, Fred R. Grotheus, ClassicLibtard, and Mitchell. Thank you so much. Top patrons, hall of famers, all -time greats. You're the best.

0:46:42 Lydia: Soul sending love from us to you yeah yep you are the best vote for me yeah

0:47:09 Thomas: And we'll see you all at that hangout, the YouTube Q &A. We expect to see every single one of you in the flesh.

0:47:12 Lydia: Sunday and if you're not there we will know

0:47:18 Thomas: Yeah, if you don't show up to this, then we're going to make, we're gonna demand everyone come back to the office. Like, We're going to try the Q &A's. Yeah, we're going to allow the Q & A virtually. If But you don't show up, you're going to have to come in the office. All of you for the Q and A. You have to drive to my house for theQ &A. OK, so let that be a warning. No one wants to work anymore. It's just.

0:47:23 Lydia: Rtos yeah mm -hmm yep Yep.

0:47:40 Thomas: All right. Well, thanks so much for listening, everyone. Thanks so much to Heather Veronini for bringing the bar questions, as always. So much fun. And starting a new streak, one one in a row on, on T3BE. So, you I make that two in a room? Can you even have one in a road? I don't think you can.

0:47:49 Lydia: Believe in you no no is the row yeah

0:47:58 Thomas: A part of an infinite set of rows that could exist in all dimensions. You could go anywhere with that row. You know what I mean? Just mathematically. So yeah, deep or height or width.

0:48:04 Lydia: That's deep oh my god

0:48:13 Thomas: I don' t know. Wherever the The rose shall take me. All Enough of this nonsense. Thanks so much, everyone, for listening. We love you. And And we'll see you all on Rapid Response Friday. Feel like we have some news to talk about. Supreme Court, can't wait. Yay.

0:48:20 Lydia: Feels

0:48:28 Thomas: Great. Awesome. But least at we'll get to probably read some fiery dissents, maybe. Maybe. Rapid Response Friday and that YouTube Q &A on Sunday. We'll see you all then.

0:48:27 Lydia: Like it feels like

0:48:38 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

0:48:56 Lydia: Creeper Lydia Smith forces

0:48:59 Thomas: There's also a whole load of bullshit where was a Michael Jordan reference. I couldn't tell if you got it.

0:49:01 Heather: Toot toot. Sorry. It's been a while.

0:49:07 Thomas: It has been a while. It hasn't been a long time. It has. It's been a First, little while. First, I'd say bees, not the bees.

0:49:15 Lydia: We'll see.