T3BE77: If a Chandelier Falls and You Aren't There to See It, Did the Liability Even Happen?

Transcript

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

0:00:47 Thomas: Hello and welcome to Opening Arguments. It's Thursday. That means it's time for Thomas Takes the Bar Exam. Thursday, time for the Thomas Takes The Bar Exam, T75BE. I'm Thomas. That over there is Lydia Smith. How are you doing?

0:00:58 Lydia: Hi, I think I've said this before, but like, I genuinely think that you're trying to find ways to add more T's to this title.

0:01:03 Thomas: Always. It is tea -flation. You got to keep up with the teas, with the Joneses.

0:01:05 Lydia: T -void. Yeah, it's starting to get exhausting. It's like Dr. Seuss, you know, like, are

0:01:12 Thomas: Other podcasts, adding more teas all the time. You know? Yeah. Yeah. I know you don't listen to any others out of loyalty to the company, but trust me, they're adding teas left and right. Yep.

0:01:14 Lydia: They? Wow, geez. Yeah. Wow, that's some industry inside scoop. Goop.

0:01:24 Thomas: You heard it here first. It's Thursday. That means we're going to have bar exam prep expert Heather Varanini on to give us the answer to last week's bar question about the car accident and the journal entry. This was a very tricky one. I'm extremely curious to see how I did and how you all did. It was a lot of fun. And then of course, after that, we'll get the fresh question 77 for us to all attempt, you know, either be extending a streak or totally redeeming ourselves one way or the other. So that's the agenda. And then of course, Lydia is here not only to just be that charming voice for the intro, but also to thank our patrons at patreon .com slash law. We thank the Hall of Famers each and every week. We think our new patrons and we have a little fun.

0:01:59 Lydia: A .k .a. my favorite people. If you want to be one of my favorite people, you know what to do. You know what to do?

0:02:11 Thomas: There's an easy way to do it. It's pretty easy. Other human relationships can be tricky.

0:02:17 Lydia: Super easy.

0:02:17 Thomas: This one, it's literally the pay to play of human relationships. Have you ever wanted friendship to be like an app or a video game where you just are like, ah, I'm just going to buy the boosts with real money.

0:02:31 Lydia: It's a Black Mirror episode. Yeah, but not dark. Yeah.

0:02:34 Thomas: But not as, but actually good. Yeah. I was going to say, don't, nevermind. It's not a Black Mirror episode. I don't want to get anywhere near that. Those are homework for me. We've tried to watch them and it just feels like work. I've been meaning to say this somewhere, and this is as inappropriate a place as any.

0:02:49 Thomas: Watching Black, I like Black Mirror. Don't get me wrong. Good show. I dread new seasons coming. I'm like, no, don't. Cause I know I have to watch it. And yet it's work. It's just work. It's like, I have to, I had to put my mind in another dystopia. You know, I'd like, I don't know.

0:02:58 Lydia: We're only a couple episodes in, but there was one that I was like, I feel like this could happen in 10 years.

0:03:09 Thomas: That's what they all are. They're all already that we're going to get to the point where earlier seasons are actually reality.

0:03:10 Lydia: Yeah, I know. But like, but I'm it's really like we're on the edge of this. Yeah.

0:03:16 Thomas: Like they're already happening and then they're going to have to like, you know, they could do like reunion shows. Yeah. Oh, let's not get into that.

0:03:19 Lydia: Hopefully not the prime minister and pig episode. Yeah.

0:03:23 Thomas: All right. Well, enough of this nonsense. Let's get to something far less dystopic in Heather Varanini and we'll get our bar exam practice question. So after this break, which you can avoid and become Lydia's best friend at patreon .com slash law, we'll get to it.

0:03:36 Lydia: Hi.

0:03:40 Ad: [Ad break 1 — ad music]

0:03:40 Thomas: Heather Varanini, how are you doing this week?

0:03:43 Heather: I'm doing pretty well. I have not had any evidence -related issues this week. How are you doing?

0:03:46 Thomas: I'm good. I've been doing nothing but thinking about this just the whole time. We had a tough question last week. I'm going for that four -question streak, and I don't know. I might just get hit by a car here. We'll see. Remind us what this question was.

0:03:56 Heather: Well, A driver and a passenger were involved in a car accident, and not too long after, the passenger wrote a summary of events in their journal. And then several years later, the passenger took the stand and was unable to accurately recall the details of the accident, even after reviewing the journal entry. So the question asks, assuming a proper foundation is laid, may the summary of the incident be read into evidence? A, yes, because it refreshes the passenger's recollection. B, yes because the passenger memory of the actual event is insufficient. C, yes even though it's hearsay because the out-of-court declarant is on the stand and is capable of being cross -examined. Or D, no because the best evidence is the writing itself. So you coded this as an evidence question.

0:04:41 Thomas: I hope I got that part right. Yay. Yeah.

0:04:42 Heather: You did, you did. Yeah, I mean anytime you see this at the end to be read into evidence or anything suggesting that we've got an evidence question. And you're also sort of talking about the hearsay rule as you were working through the answer choices. So this is actually a question that relates to the hearsay rule. And so we're trying to figure out whether or not we can actually read this in the evidence. And part of the reason this implicates the hearsAY rule is because whenever you have something that's... So the rule is an out-of-court statement offered to prove the truth of the matter asserted is inadmissible unless it's non-hearsay or an exception applies. And this is anytime you're in a situation where you're on the stand and you're reading something, or you're reading from a document, or your talking about something that happened out of this court, a lot of times we're implicating the hearsay role. And that's what's happening here, because the journal was created out of the court, it was created not long after the accident. So and now he's trying to read it into evidence. And then that's where this comes in. So you're kind of asking, is there a difference between reading something into evidence and submitting something to evidence.

0:05:46 Thomas: I really need to know that.

0:05:50 Heather: Well, you are right. There is a distinction. Reading something into evidence, again, is not just submitting it, but actually having that thing and reading it out loud while you're on the witness stand. And that's not the same as submitting something for evidence. And so there's some rules about it kind of can sometimes implicate the hearsay rule, which is why we have to be a little bit careful when we're looking at something like this. So you are Right to think there was a distinction and you were Right to start to implicate that hearsay rule.

0:06:16 Heather: All right. Right. So you also started talking a little bit about when someone's memory's refreshed, when they're on the witness stand by something, right? You were talking a little bit that. There's a rule for that. It's called present recollection refreshed. And one of the federal rules of evidence actually allows a party to have the witness review a record while they're testifying to jog their memory. They can literally have anything. It can be literally anything on the witness stand to refresh the memory. It could be a boot. It it can be like a pen. Yes.

0:06:45 Thomas: I'm going to request like a nice, like fancy dinner. I need an entire pizza actually, or something, you know, ice cream, just something fun. I only remember things when I'm given a foot long Subway sandwich and then they do that.

0:07:01 Heather: You've got to have your memory jogged when you're on the witness stand because oftentimes, to your point when you were working through the questions, it's not uncommon for someone to get on the witness stand and then not remember every single detail that happens, right? Because questioning can often involve a lot of details. So having something that can refresh your recollection can be really helpful. And again, it could be a Subway sandwich. Who knows wait

0:07:24 Thomas: Now I remember how much these suck. My testimony is these are kind of terrible. The sandwiches.

0:07:30 Heather: The sandwiches are the questions okay god that smell of that bread anyway

0:07:35 Thomas: Yeah, the bread, bread your honor the bread does smell good I agree no you know it's about like the vegetables are wet paper they don't do a whole lot for me and I don't eat meat anymore when I eat meat I think I can get away with it now there's no meat there's nothing here for me I rest my case

0:07:46 Heather: Um we're out when the present recollection or when it comes into play usually two things have to happen the witness once knew the information but can no longer recall it and also the item will help the witness remember so that's all very like reasonable it makes sense listen on

0:08:06 Thomas: I swear this entire pizza will help your honor

0:08:11 Heather: The night of the murder. I ate a pepperoni pizza from, yeah.

0:08:12 Thomas: Yeah yeah yeah sense memory you know you know on second thought I ate two pizzas I'm just remembering I ate two

0:08:21 Heather: Two is always better. And so in that particular situation, again, we can use anything and we're looking for that. Here we see the person on the witness stand. They did get the opportunity to review and then to testify. And if that journal had just refreshed their memory and that was enough, they could not necessarily read it into evidence. They can't all of a sudden then just start to read from the journal. Instead, they can go, oh yeah, thanks. I'm glad you reminded me of the journal, now I can start to testify and answer your questions.

0:08:44 Thomas: Pizzas but first I need a nap I've just eaten two entire pizzas and I have your honor I'm feeling sleepy can I just get my

0:08:49 Heather: Listen, they were all meat marbles.

0:08:53 Thomas: Blood sugar is just going crazy

0:08:56 Heather: But here, part of the tip off that this is not present recollection refreshed is because it says here, the passenger is on the stand and unable to accurately recall the details of the accident, even after reviewing his written summary about the accident from the journal.

0:09:09 Thomas: You can almost say present recollection was not refreshed

0:09:13 Heather: Not refreshed. And so that's part of how we know that it's not present. Recollection refreshed. It's because it's telling us they did review it, but still couldn't remember. And so this is out. So you eliminated A right away. Answer choice A is the answer choice that deals with present recollection refreshed. So your right to eliminate that because A is a wrong answer.

0:09:33 Heather: Because it also factually didn't work. So then we're left with B, C, and D. So we have two more yeses and we have a no. And we're trying to think, can we read this journal entry in the evidence? So you're right to think again to implicate the hearsay rule, which is what's discussed in answer choice C, right?

0:09:33 Thomas: It also didn't

0:09:51 Heather: Because this is saying because the out -of -court declarant or declarant, however you'd like to say it, tomato, tomato is on the stand. But the issue here is that oftentimes when we're talking about hearsay, the determining factor isn't whether or not the person on the stand is able to be cross -examined, is capable of cross - examination. So that's not a determinative factor here, which ist how we eliminate answer choice C.

0:09:51 Thomas: Yeah so is that kind of what I said where I was like I don't I think it's using like the rationale of what hearsay is but I don't think there's a specific exception for if the declarant is right here is that basically right that was my logic for that one okay oh

0:10:25 Heather: Yes and no. And we're going to get to that, I promise. Even though you chose it as your second chance answer, you had mentioned that statements without cross-examine, that that might not be the determining factor. And when you were talking about that, you were right to say that and to think that that was the case. But you did start to talk about something, which was how about if you weren't able to remember, maybe you would have to establish that you wrote it right after.

0:10:47 Heather: You'd have to go through some steps. So you logicked your way into getting closer to the right answer. So I'm giving you, I was like, yes, keep going. So then we end up being between B and D. So either yes, because the passenger's memory of the event is insufficient efficient or no because of the best evidence rule. So you could also mention that the best evidence rule, this kind of came up a lot, but that it was kind of hard to remember, but you also started talking about copies. Do you remember this?

0:11:10 Thomas: Yeah it feels like I thought it's I don't know I think I thought I knew what it was but I think it got burned years ago by a best evidence question I don't. It's, uh, yeah, I don't remember it's a tough one to

0:11:17 Heather: It is. And part of that can be the answer choices often sound right. And a lot of times it feels like you can just default to this answer. So the best Evidence Rule is when an original document or a reliable duplicate is required to prove the contents of a writing or recording or photo or whatever. And it applies when the contents are at issue. Usually that's like words of a contract. And when the witness is relying on the contents of the document to testify. So the best evidence rule, unfortunately, is often a wrong answer choice on the bar exam.

0:11:34 Thomas: Remember huh yeah yeah.

0:11:52 Heather: Because when you're reading it, it sounds good. Like, oh yeah. And they write really good wrong answer choices that revolve around the best evidence rule. Because you're like, yeah, yeah. We're looking at a copy. So we really just should have the best evidenced would be if it was just the original thing. You're like yes, right answer. And then you miss it. Because again, it has to meet these two requirements, right? We've got to have the contents at issue and they've got to be relying on them when testifying. Because the best evidence rule, again, isn't just about the very best evidence, but it's when we've got an issue as it relates to a copy. We're trying to prove the contents. And here, that's not quite the case. We actually have the original journal.

0:12:28 Heather: So we do have the originals, but we're not worried about a copy because usually that's kind of how questions about the best evidence will appear on the bar exam. And so this doesn't implicate the best evidence rule in that way. We don't have an issue around whether or not the journal's a real copy or something else. So unfortunately, D is incorrect.

0:12:46 Thomas: Oh, man. Flew too close to the sun. Didn't even get my second chance. I probably should have changed the second chance to B, but I'm waiting for how B, like, insufficient for what? What's going on there?

0:12:57 Heather: This is such a great point. So B is the correct answer. And it's because this talks about an exception to the hearsay rule, which is past recollection recorded. But to answer a question first, insufficient for what? The answer is insufficient to testify. Because you've got to have personal, when you're testifying for personal knowledge, like you have to have personal knowledge should testify. And so this is getting at, he can't remember, he can't member, what are we going to do for that to happen? And then, since he can remember, right, even after the refresh, they try to refresh his recollection, then we're in the situation where even though it's out of court, something that was created out of Court, we have the implication of the hearsay rule, we've got this exception. So when a witness has an inadequate memory to testify about a matter for which a record exists, right here, that's the journal, contents of the document can be read into evidence.

0:13:40 Thomas: Read into evidence. So that whole thing doesn't matter.

0:13:43 Heather: The fact that it does. Because part of the difference between past recollection recorded and present recollection refreshed, mouthful, is that you can only read into evidence when you've got past recollections recorded, but not present recollection refreshed. It's part of the difference between the two of them is one can be read into evidence and the other cannot when you're looking at it.

0:14:02 Thomas: I guess what I'm saying is the whole distinction between read versus, like... Entered into evidence didn't matter, could the question have just said, said, may the summary of the accident be entered into evidence. And would that change anything in this?

0:14:09 Heather: Here, yes, and well, let's see. Yeah, absolutely. That's part of the reason why B is the correct answer is because with some of those other devices, when you're on the witness stand, you can't read what it is that you're writing. And maybe this will help explain a little bit. You talked a little bit about what does it mean to have a proper foundation laid. Sometimes you have to go through some steps to get evidence into the record. To be read into evidence, to be submitted as evidence and that sort of thing. There's some steps that you have to go through and that's often what it means when it's asking about or saying or stating that a proper foundation is laid. You'll have to get up there and say to your point, establish that you wrote it right after the incident happened. So you'll have an attorney ask you, so did you have personal knowledge of the facts in the record? Yes or no, right? The person says, uh, uh, yeah, I used to.

0:14:58 Heather: Can you recall them? And then you go through and the answer is, you know, no, I can't remember anymore. And then the attorney will ask you, did you adopt or write the record when it was fresh in your mind? Oh yeah, yeah. Like not that long after. So you go through some of those steps, right? And then also one of the other ones is the record has to accurately reflect your knowledge at the time it was made.

0:15:13 Thomas: Well, how would you know that?

0:15:19 Heather: Well, you ask, you say, oh, does this journal look like it accurately reflects what you knew at the time when you created the journal entry?

0:15:25 Thomas: Can't remember. That's what I'm trying to tell you. I have no idea. Maybe this was a creative writing assignment I did. I can't remember what happened in this accident.

0:15:33 Heather: Well, assuming the answer is yes, it can be.

0:15:36 Thomas: Okay? I think that's the whole thing. Not that it makes the answer wrong or anything, but it's just like, I feel like that's a little bit of a bug. I guess you would say, well, this is my journal in which I wrote stuff that happened. So yes, I guess, but I don't see how you could say that looks about right. While also saying, I don't remember, you know, like what? Yeah.

0:15:49 Heather: Yeah. That looks about right. I think I did that.

0:15:58 Heather: Well, I think part of it is also I think it's doing two things in the sense of you're trying to refresh that memory that you have. And at the same time, you're reading it out loud to say this was once my memory. This is what happened. There was a time which I knew this for certain. Now there's enough time passed, I don't quite remember, but these are the events as I recorded them.

0:16:19 Thomas: I was all the way with you until that last, whatever that this last thing is. Cause then it just sounds like you're refreshing your recollection and that's your testimony. Like what is, what is that? I don't know. I have a hard time understanding the distinction there, but whatever. The distinction is this gets read into evidence the other time it doesn't

0:16:32 Heather: Oh, yes. Well, imagine, so I always think of it this way. Imagine that you don't have your recollection refreshed. You're like, I'm looking at this journal, it doesn't remind me of anything. Or it doesn't remind me of anything, but I don't remember well enough just looking at it to testify about the evidence or to testify about the events that occurred. And maybe the attorney is trying to get you to testify testify about details of the event, how they happened, who hit who, what time, what color was the car, all that stuff that maybe several years later, because litigation tends to be long, you kind of can't quite remember all those details. So then that next step is, well, maybe if you read it out loud, we can get those details, and also this is accurate because it was written close to the time in which it happened. Does that help explain it at all?

0:17:10 Thomas: Hmm kind Oh yeah, I still—I—so, okay so you'd ask those questions and then they just have them read it and then it's read into evidence but there's something you said about when I asked like if the distinction mattered why so so I guess I yeah that's the part I don't get why isn't it just entered into evidence? Why is it actually

0:17:32 Heather: So part of the reason it gets read into evidence is because, for example, the witness on the stand, and they can't quite remember enough to just testify from memory. But a lot of times the attorney is trying to get at those details still.

0:17:37 Thomas: Read oh oh okay so it's like So it's one thing to say, okay, maybe I get this. Well, wait, but then still, why don't you just enter the piece of paper into evidence? Why is it read into evidence? I don't get that distinction. Does it matter?

0:18:00 Heather: So you're at a jury trial and you want to make sure that the jury hears all the evidence, especially if you're thinking it's a particularly important piece of evidence. You want to make sure it's read out loud so all members of the jury and the judge can hear it.

0:18:11 Thomas: Yeah. Yeah. But isn't there also a thing, like I kind of went through this, isn't there also a thing where you've submitted stuff into evidence and then when someone's testifying, you're like, can you read this for me? You know, like, why isn't it that?

0:18:22 Heather: Yeah, I'm trying to think. I think because here we're talking about a witness who's testifying about an event that they experienced and they're working and that's what they're

0:18:34 Thomas: Like that's what the testimony actually is kind of thing. Yeah. Okay. I guess that makes sense. Okay, so it's like, rather than, I guess I, what I started to say was, I think I get the distinction between, oh, my memory is refreshed. Go ahead, fire away. And that versus, I see these words, but I, it's just not bringing up anything else, which I think I can relate to, where it's like, boy, I guessed that happened. I kind of remember it happened, but I just don't remember any of this I just I see the words but and so it's like rather than the person ask you questions what color is the car then you like look down the thing and you're like doesn't say you know it's like rather than that it's just like well just read what it says you know read what you have kind of thing that's better than just like pretending you remember but you're actually just using a cheat sheet or something, I guess

0:19:21 Heather: Yeah because um you're supposed to be depending on sorry depending on the type of witness and depending on what you're trying to get out from them witnesses need to be able to testify generally speaking like lay witnesses have to testify from memory, generally speaking.

0:19:33 Thomas: Right okay that seems like an important just the reason that that yeah okay I think if that's if that's an explicit rule, then I think that helps me understand this distinction a little bit. I still don't get the read versus submitted. I feel like you could just, your honor, I submit this thing and then that would be fine too. I don't get it, but what am I missing? It's not important.

0:19:51 Heather: Yeah, my instinct is to say it's really just about getting because I don't. I'm trying to think about whether or not.

0:19:59 Thomas: Well, it might just be, so could it be that they could have done that? But the question is just saying if the attorney just wants them to read it. I guess then my question is, that was why I was confused as I asked you, could the question just say, may the summary of the accident be submitted into evidence? It seemed like you said no, but I'm not really understanding why.

0:20:18 Heather: I was saying no, because that changes the answer that would move it from past recollection recorded to something else. But it's true that if there was another scenario where you're just like, I just want to submit it into evidence, if the question focused around whether or something could be submitted into evidence. Yes. But then the answer choice would be different as well.

0:20:35 Heather: It would change the facts just enough that we would likely get a different answer.

0:20:35 Thomas: Well, I don't totally follow that, but I feel like I should get almost Thomas' second chance credit because I think I exactly called like, look, if this wording is saying it's insufficient related to a hearsay exception, I just thought that the passenger's memory of the actual event is insufficient. I think this was a very fiendish question because I didn't understand insufficient for what. I wish I had gone with B as my second chance. I should have trusted myself because I was pretty sure C was wrong, but it just was like worded more plausibly. And B was like, just, uh, you know, it was insufficient. It got me. All right. Back to, back to square one here. Back to the starting blocks. I'll have to start a new streak, everyone. Sorry. Go home. We're all streak over. Well, I'm a failure. Let's find out if anyone online was not a failure, we'll see how they did.

0:21:22 Heather: But you were right to say, I was just going to say you were right to say when you're talking.

0:21:24 Thomas: You're right to say you're a failure now. You were right about the failure part. I can give you a few points for that.

0:21:29 Heather: But it was funny, when you were working through the question, you were saying, Oh, why doesn't it just say be yes, if it's an exception to the hearsay rule or something. And it was fun. Because when you said that, I thought, yeah, and that's part of what also increases or decreases the difficulty of the question part of more.

0:21:42 Thomas: Yeah, I just didn't use any. And I wasn't saying like it should literally say yes because it's an exception. I was just saying if it used any of that language, it used nothing at all related to that.

0:21:51 Heather: And that's also you make such a good point. Because some of these reasons, these questions are harder is because they expect you to do some of the inference there.

0:21:57 Thomas: Should I go to law school? Yeah. I

0:22:01 Clip: And good news, because we got skeets. Heather, we got Skeets. We love a good skeet. We're suckers for a good Skeet.

0:22:05 Heather: Yes, we love a skeet.

0:22:08 Clip: These are the geniuses who played on Blue Sky at OpenArgs. At Skrain Games says, Long time, first time. My assumption here is, yes, the contemporaneously written notes can be read into evidence against the passenger's oral testimony. It would be up to the other party to impeach that evidence, either as not being contemporaneously written or for being incorrect. That seems pretty much right on, right? I mean,

0:22:31 Heather: Well, the issue of impeachment when it comes to that kind of stuff is it goes, it's a little different just because of what impeachment is and how it's used. So I'm, I don't know off the top of my head. That's a good question. Yes. Yay.

0:22:40 Clip: It's a hesitate a hesitant yeah well they got the right answer or I've got a couple more they're short might as well ryan p bowls says no because it's hearsay and not an exception to hearsay or it's an exception but not an exemption to an exception I think you got it wrong but I don't know I didn't even say an answer but I just want to throw that in because I love I love a good skeet but I believe you got that wrong but I don't know didn't understand your answer and finally brian gibson at apparition dash maker says I'm guessing c because heather ended with I guess we're going to just have to see next week. I can't let any spoilers go. So that didn't work. All right. Well, one clear winner there and it's screen games, but all were fun. So I wanted to read them all. How did folks do over on reddit.com slash r slash open args? Nah, I don't believe. No,

0:23:21 Heather: Yay. Well people generally got the answer correct. Um, and I'm going to shut up.

0:23:29 Clip: No, wrong, wrong. This one is so hard. I love the use of the passive voice there. Who led him

0:23:29 Heather: It was tricky. I'm gonna start out by shouting out to mikey malloy who said oh man thomas got so close then was led astray the answer is in fact

0:23:45 Clip: Astray? Aquaman. I don' t know why that Aquaman quote's been going around lately. Someone said edit and it's like back into the but anyway yeah who led him astray me I did it I led myself astray I killed ned johnson I'm gonna make all the oa references okay sorry but anyway yep that's right

0:23:56 Heather: B and mike had a really good breakdown of the answer which um I encourage folks to read but um I'll kind of go to the end where he says speaking of best evidence one day the best evidence of my mental collapse will probably be my evidence essay on the california bar exam will I survive five this out -of -court declarant cannot testify as to the truth of the matter asserted

0:24:18 Thomas: Really did just prank myself so hard. I even said like, ah, but I feel like it's not usually best evidence. Like I feel I could get burned on that. Only to step right on that best evidence rake. Handle comes up, smashed me right in the face.

0:24:27 Heather: Yeah we don't love that

0:24:31 Thomas: I'm waiting for the fact now. Someday. It won't be soon. It might be, you know, who knows when. Heather's going to come up with a real best evidence question where it's the right answer. And I'm going to lose it. I'll get it wrong then because I'll be like, no, fool me once. You know? Yeah. It's so good. It's still good. Anyway. Yeah. No, well done. Well done. I am skeptical that most people would get this right. I mean, come on. Come on. How are people on Reddit getting this right? Are they just all professional attorneys?

0:24:44 Heather: You can't fool me again. I can't get fooled again. I'm sorry it must be um seligman 99 had a good answer and said you've heard of hearsay but have you heard of past recollection recorded it turns out the courts agree our brains are mush but allow us to read what we recorded shortly after the event on the stand so the answer is b

0:25:17 Thomas: Well, yeah, that's like someone who writes a bar exam test for a living. Like, come on. It's great writing. They know exactly what they're talking about. All right. Well, I won't hold it against any Redditors for being too well -informed and too knowledgeable. You know, I should think of it more as like the answer key. So I'm not going to be upset that they got it right. But that one was really hard. I feel violated by that one a little bit. Not going to lie. I feel like I was wronged in some way. But no, I only have myself to blame. I had it. I was right there. Right there. Yeah.

0:25:44 Heather: You're experiencing what a lot of bar exam studiers and bar takers experience, which is you do feel wronged or violated by the bar examiners. So Apprentice57 was saying thank you to two contributors to the automation end, Bacowskified for upgrading the visuals of the score chart, and Nobody514 for a Python function that helps add a new question text to the other part of the archive. So thank you both for doing that.

0:26:07 Heather: And thank you for Apprentice57 staying on top of all this. It's exciting.

0:26:07 Thomas: I love that I know and recognize all three of those Reddit handles and think fondly of all three of them. Thank you so much. That's awesome. I'm glad they're doing that. Cool.

0:26:14 Heather: Yes. That's a great community. Yeah. Yeah.

0:26:19 Thomas: So a little upgrade to the score system there. Hope folks enjoy it. So only one thing left to do, which is to go to patreon.com/law and see what happened over there. Well, I think I'll go with Ray, who I think has the best answer. I am going for B because the phrase, assuming a proper foundation was laid, appears to be telling us that there are no other obstacles. If the passenger's memory has already been shown to be deficient, I see no reason to presume he could be usefully cross -examined perhaps he's had a head injury or other catastrophic brain event in the years since the accident Ray says, "looks like we have another palindromic player in the game gotta shout that out and then we got people who are patrons were kind enough to get it wrong so it was pretty much just ray thank you patrons you're the best for so many reasons including making me feel better about that really difficult question thanks everyone for playing so much fun and now I gotta see if I can start a new streak that's all we can do we just start back on over It's going to take me decades to build that three question streak that I had and then ruined, but we'll do our best. All right.

0:27:18 Thomas: After this break, we'll get question 77. This show's brought to you by Hims. Look, some things can be uncomfortable to talk to the doctor about what is comfortable to talk with the doctor. Pat actually, there's not really much where it's like, I, I can't wait to talk to my doctor about X, you know, like what, what is that thing? But something's more uncomfortable than others. And something like ED is one of those things. But that's why HIMSS is so great, because you can avoid those awkward in -office visits for things like ED and take care of the process 100 % online. Through HIMSS, you can access personalized prescription treatments, and they offer access to ED treatment options that cost 95% less than brand names. All you have to do is fill out an intake form on their site and connect with a medical provider who can determine if treatment is right for you. No insurance is needed, and one low price covers everything from treatments to ongoing care. If prescribed, your medication ships discreetly to your door for free. With hundreds of thousands of subscribers, HIMS can help you find the ED option that works for you. So start your free online visit today at Hims.com/opening. Find ED treatment that's up to 95% less than brand names at Hims.com/opening actual price will depend on product and subscription plan. Featured products include compounded drug products, which the FDA does not approve or verify for safety, effectiveness, or quality. Prescription required. See website for details, restrictions, and important safety information. HIMSS .com slash opening.

0:27:18 Heather: Winnie

0:28:57 Ad: [Ad break 2 — ad music]

0:28:57 Thomas: All right, lay it on me. Here we go. 77.

0:29:00 Heather: Winnie was on her way to meet her husband, Herb, for lunch at the restaurant adjacent to the bookstore where he worked. Winnie had just entered the building, which was owned and operated by the bookstore, when she heard the sound of breaking glass and screams. A big chandelier that was hanging in the restaurant fell into the waiting area.

0:29:16 Heather: Winnie saw several injured people in the waiting area, including her husband who was lying in the wreckage of the chandelier. When she saw her husband, she fainted and hit her foot on an umbrella stand, breaking the bones in her foot. The chandelier fell because the fastener that the bookstore used to secure it to the ceiling was loose. If Winnie sues the bookstore for her injury, is she likely to prevail?

0:29:35 Thomas: I was hoping this was going to be an excited utterance or something. Somebody being like, oh my God, I can't believe we left that chandelier hanging by a thumbtack on the top of the seat, you know, and then be another, another hearsay thing, I guess. But no, this sounds harder. All right.

0:29:48 Heather: A. Yes, because her husband was one of the people she saw lying in the wreckage. B. Yes because the bookstore use the fastner for the chandelure. C. No, because she was not personally in the zone of danger of physical injury. Or D. No because she did not actually see the chandelier collapse onto the diners.

0:29:51 Thomas: Interesting. Huh. Oh, what a fiendish answer that one is. Well, as usual, it's my favorite thing about T3B, about taking bar exam questions, is that I get to just construct what I assume an entire area of law is based on one question and do it probably like 70 % well. If that, maybe that's giving me too much credit. But first I'll do my kind of overall thing. So she just entered the building. We'll see if that that matters, heard the sound of breaking glass and scream. So, I mean, that D answer you heard, it's kind of getting at that, what sounds like a distinction between like being a part of or witnessing an accident versus coming in after the fact. We'll see if that matters. When he saw several injured people in the waiting area, including her husband who was lying in the wreckage of the chandelier. And so it's like she sees her husband, faints, and then gets an injury essentially. And it also says the chandelier, basically the bookstore's fault, pretty much. Like it's pretty much the bookstore'S fault. I don't know how it wouldn't be. Unless we had a good, we don't get this a lot. Zorro sword chop the rope holding the chandelier up and then it just so happens to hit an exact circle of people that are you know about to get them or whatever like we used to have a lot of that a lot chandelure based escapes from danger so unless it was one of those situations which I think it should have been once they hire me to work on questions but then it might change the liability of course this seems like it has a number of things going on so oh first off what is this what is this question of course it is probably torts I think my only outside aid that I ever use is the list of categories of questions because I'd never remember them although by now Now I might, as I'm looking at the list, constitutional law, contracts, criminal law procedure, evidence, federal civil procedure, real property. I mean, that chandelier was very real. Tell the victims of the great chandelure fall of 2025 that that chandelier was not real. But no, I think sounds like torts to me because it sounds like negligence kind of thing. And that's a tort, right? I can't think of anything else it would be. I'm going to go ahead and say torts. So this seems like a negligenty type thing. Someone neglected to fasten a chandeliere. What we have is just a lot of different possible like exceptions to how things could work here. And I'm I don't know how I'm going to pick the right one, but we'll see. OK, let's go through it. So can she win for her injury, just her injury from when she saw her husband and fainted and broke her foot? A yes, because her husband was one of the people she saw lying in the wreckage. That's certainly plausible. I feel like this is going to be one where I can't eliminate any of the answers, but that's certainly possible because I could see a distinction. Like if there's some sort of accident and a bystander comes in from the street, not not related to anybody, sees blood, faints, hurts themselves. I feel like that's not on, call me Ayn Rand, but I feel Like that's Not exactly on the company. But does that get complicated by your relative being, in this case, a husband being one of the victims? Does that like bring that causality a step closer enough to matter? And I think this is all going to be however the F they've constructed the rule that I don't know. I could see that being a part of it. I think there's a strong case to be made for that. I'll leave it alive for now. B, yes, B, yes, because the bookstore used the fastener for the chandelier. Why does it say used? The bookstore used The Fastener. Is that what that's supposed to say? The chandelure fell because The Fasteners that the bookstore used to secure it. Oh, okay. So it's just saying because just a weird way of saying like they hung the chandelier. They're the ones responsible for the hanging of the chandalier. That I'm going to go ahead and say that might be one I can eliminate because I don't think that matters. I think when we talk about torts and we talk about negligence, I think this is one of those things where if someone gets hurt in your business, it's kind of on you regardless, you know, in some ways. So I don't think it, I don'T think the fact that like they use the fastener, they can't be like, no, we hired a chandelier fastener guy who came in and did it. Like, I DON'T think that would matter really. So, I will say I can't eliminate B. I think that's gonna not be it. C, no because she was not personally in the zone of danger of physical injury. Another very plausible answer because I could see that being the rule. You know, are you responsible for what level of pain and suffering radiating outward? Are you responsible for butterfly affecting outward? And this feels to me like right on the line, you know, just looking at the overall event. The wife wasn't there, comes in, wasn't anywhere near the danger, but sees her husband hurt and faints. And let me just make sure. Fainted and hit her foot on an umbrella stand. What's the rule going to be? Is it going to me the pain and suffering caused by witnessing pain and suffering? I don't know. That's really hard. I just don't know. I think C is really strong. I think C as a possibility for sure. D no, because she did not actually see the chandelier collapse onto the diners. And that one's a curveball. That one's curveball because I also could see that being it. Like I could see it being if you're a business you could be liable for like the emotional suffering of people who witness a horrific accident. And so what if that's the rule? And so, what if the fact that she didn't actually see that and it's only that she saw her husband lying there, which was why why she fainted that caused the fall. Like that could very easily be the distinction. So this one's tough because I see three pretty plausible answers. It's a lot better when I can eliminate two solid answers. I'm leaning almost toward eliminating A, even though it'd be a double yes elimination. Cause I'm trying to think like, because her husband was one of the people she saw lying in the wreckage. So that would mean you have to be connected. You have to literally be the relatives of the People Who Were Hurt. I mean, I can imagine that. I can imagine it being like, well, yeah, the trauma caused by a family. But I feel like that's not not going to be how it works in this literal case. I could see it being some extended liability for family or something, but I don't think the difference between like, well, she fainted because it was her husband versus, I don'T know, her cousin or whatever. What level of relation does it have to be? Oh, that's her neighbor that she saw. Yeah. I'm talking myself out of A. I don'T KNOW. I hope this isn'T a grave error, butI THINK I'M GOING TO ELIMINATE A AND B. So that leaves me with a for sure no answer. Maybe B is trying to get me with like the negligence per se say thing where it's like, well, it's their problem. But I actually don't think that it would come down to the fastener. I think that's too specific. If it was a negligence per se answer, I really don't Think it would come Down to the faster come down to like, this is their premises. This is their place of business, I think. So I think I'm still solidly no on B. So, I Think I'm going between C and D. So is it that no, because she was not personally in the zone of danger of physical injury. So do you only have to be in the highway way to the danger zone. Or D, no, because she did not actually see the chandelier collapse onto the diners. That's a real curve ball, but I'm kind of leaning toward D. Because, okay, C, here's why I'm maybe leaning away from C. If it's only about being in the zone of danger, then I feel like that would mean the company would not be liable, like the bookstore would not being liable for a whole lot of really bad stuff that could happen. Like if it's an awful accident, like super traumatizing, something horrible, but then people who are genuinely emotionally damaged by that, like have have PTSD by that. They're like, well, you, you weren't ever in any danger though. Like you weren't actually personally in the zone of danger. So therefore you're not. So like, that's, I'm kind of thinking maybe no one see for that reason, because I do think there should be such a thing as liability for like sort of the extended circle of effect a little bit, you know, like the trauma of being immediately at or nearby a horrible event. Like I, I think that makes sense. And so D being no, because she did not actually see the chandelier collapse onto the diners. I actually, Actually, I think I'm liking that more and more because that's giving out that distinction between like, is she a part of like this accident? Like, was she there? Did she witness it? Therefore, are her damages and injuries or whatever tied to like that event? Or it's more like, oh, no, she's on the scene. Like, because what's the limit of coming on the screen and fainting and hurting yourself and then being liable? Like, is it forever? You know, is that the way it is? Is it as long as your husband's there? Is it whatever? It's like, the more I think about it, the More, I Think I Like Dee. I'm doing the debate if I should switch up my second chance. No, because she was not personally in the zone of danger of physical injury. I do like that one the less, but I'm not sure I like it any less than the next. I mean, if I wanted to worry about like, okay, what's the most likely way I get this wrong? What do I think that is? I could see it being a weird B thing where yes, them using the stupid fastener meant negligence per se kind of thing, like liability no matter what. I could say, I just don't like the fastener language. I just think that's so dumb. A, yes, because her husband was one of the people she saw lying in the wreckage. I mean I would say that's, is that more plausible than C? C. I think I'm going to stick with my, I'm gonna stick to my guns. I'm going between C and D and I'm picking D. Oh, that's what I did. Last question apparently. And, uh, how did that go for me? Not, not great, but I think that's all coincidental. I don't look into that at all. I hope Heather doesn't either. Cause I think it should be random. I don't want the test to be operating on that level. So yeah, I am between C &D and I am going D. No, because she did not actually see the chandelier collapse onto the diners. I mean, I don' t know. I think it's a weird answer, but I I think it's because she wasn't actually a part of this event, this horrific event. I think had she been, then the bookstore might be liable for some amount of damages related to her falling because she's scared if it was or her emotional state after seeing it, but not actually being there and just coming in later. I, I think that's what I'm thinking is the most possible. So D final answer. All right. Well, I'm going to get out of this podcast by escaping. Ha chandelier chopped and it fell on Heather. No, I wouldn't do that.

0:39:04 Heather: No chandelier play.

0:39:04 Thomas: It's going to fall. Yeah. It's going to fall directly. So the circle in the middle goes over you and it doesn't actually hurt you. And so you're just kind of trapped a little bit in a, in a chandelier. And then I'm out of here though, but I'm not going to hurry. I'll just be like, yeah, bye.

0:39:19 Heather: Peace.

0:39:20 Thomas: Don't chase after me. I will find another chandelier. There's more chandeliers where that came from. All right. Well, thanks for another great week, Heather. And we'll, uh, we'll find out next week.

0:39:25 Heather: You're Welcome. Look forward to more chandelier play in the near future. Sorry.

0:39:36 Thomas: This episode's brought to you by Quince. Always love when I can talk to you about Quince because I wear Quince wearing some right now, wearing my Quince shorts. Why do I always say I'm wearing my quince shorts because I'm always wearing my Quince shorts I'm a straightforward guy that's as simple as that and quince has the kind of stuff you'll actually wear on repeat like breathable flow knit polos crisp cotton shirts and comfortable lightweight pants that somehow work for both weekend hangs and dressed up dinners and here's the absolute best part everything with quince is half the cost of similar brands and how is that possible well they cut out the middlemen who likes middlemen I don't think anyone quince sure doesn't because they cut outside middlemen and give you luxury pieces without the markups and quince only works with factories that use safe ethical and responsible manufacturing practices and premium fabrics and finishes we're fully in the throes of summer it's july and so I'm wearing my quince shorts more than I'll go ahead and own it every day pretty much every day but here's the thing I got a bunch of different pairs of them so it's not as weird as it sounds and they've got stuff you'll want to wear every day it's so comfy it lasts. That's my favorite part. Doesn't just disintegrate after going through the washer like some other stuff does that I won't name. And it's affordable. So what's not to like? So stick to the staples that last with elevated essentials from Quince. Go to Quince.com slash OA for free shipping on your order and 365 day returns. That is Q -U -I -N -C -E dot com slash OA to get free shipping and 365 day returns Quince.com slash OA and

0:41:13 Ad: [Ad break 3 — ad music]

0:41:23 Thomas: Only one thing left to do and that's to thank our patrons you know I want to I want a comment and of course lydia smith back to do that I want to acknowledge somebody complained somewhere about my music for thank you for being a friend and I wantto acknowledge I don't want to be hostile or embarrass that person or anything but I just want to and I wanna firmly say apologies that you don't like that song I'm sorry about that I don' t really understand it but I'm sad I'm not trying to call this person out but I do want to say that I love it and it will never change. So that's just, I just want to give a firm, this thank you for being a friend is the greatest vocal performance I've ever heard in my life that this random guy on YouTube 10 years ago did. And he doesn't even have many other videos. He has a couple other weird ones to this day. Oh, I don't, I haven't checked in like a year, but like he had like nothing else every five years or so. And it just, it's so good. It's so so good. I'm sorry. So that's always, it's once a week,

0:42:07 Lydia: You check in on him every now and then. Yeah?

0:42:19 Lydia: It's from the greatest television show of all time, The Golden Girls. And if you can't get it behind that, then I don't know. I don'T know what to say.

0:42:26 Thomas: Especially now that you're doing the shout outs with me. It's like, it'S a way to unite us both.

0:42:29 Lydia: Yes, it really is. Yeah.

0:42:31 Thomas: So apologies. I respect your opinion and I value your opinion. I don't want you to be unhappy with anything, listener, but I'm sorry. It'S not going to change. It' s my favorite thing. I like hearing it every week and getting it in my head for a little bit. So there you go. But all that said, we need to thank that person because they might be a patron. I can't remember if it was a patron comment or not. Thank that that person, and our new patrons at patreon .com slash law. I'll handle those. Thank you so much to Colleen Herndon and Elizabeth Kano. Thanks so much. Hope you enjoy it. Hope you enjoy the no ads and the goodies and the being Lydia's friend.

0:43:04 Lydia: Welcome.

0:43:05 Thomas: That starts now, I guess. I don't know when it's official.

0:43:07 Lydia: We are new friends now.

0:43:09 Thomas: I Don't know what the Lydia's process is, but there's, there's a, there'S a friend onboarding process that she does.

0:43:10 Lydia: Thank you for being a friend. Oh, it's really just, you know, sign up on Patreon and then we're good.

0:43:18 Thomas: So yeah, but I mean, in terms of like advancing the friendship, you know, it's an ongoing thing. So, Colleen and Elizabeth look for an email, I guess, or a letter from Lydia. Now, of course, we've got to thank our Hall of Famers, our all -time greats. These are the best people in the world, objectively. They pledge at that $5 level and above for at least a month. And we thank them each and every week, as long as T3BE happens. Sometimes it doesn't happen.

0:43:20 Lydia: Oh yeah, well, I mean, that's true. They're my top tier friends. If Myspace top eight still existed, this would be Myspace Top X whatever number. Yeah yeah I

0:43:48 Thomas: There's a friend hierarchy. People don't like to talk about it, but it's real. I think you're going first. And by the way, people can change their names to get a special funny shout out or whatever, ever or do apparently palindromes is a big thing people are doing these days or they cannot change their names and either way is great because either we get a new fun name or we get the name we know and love and we enjoy

0:43:54 Lydia: Am all right with that thank you to nick fti I think yeah just say it out loud nick fti all right I

0:44:15 Thomas: It yeah don't don't say it in your mind then

0:44:18 Lydia: Was trying to think like can I sound that out but no it's just just letters Vetinari for America 2028 one man one vote unremarkable donna tread away mother of Harridans executile dysfunction how can I make my law firm protect trans kids I don't want a body shame but steven miller looks like he drinks unicorn blood there's the pestilential what they

0:44:18 Thomas: No one can hear it yeah yeah oh that's a tricky one there's the pestilential

0:44:49 Lydia: Okay and I got I got it I got

0:44:49 Thomas: Pestilence I'm guessing pestilencial I've never heard of that word

0:44:52 Lydia: This there's a lot of people who are like I don' know I don''t know I'm not the pestilencial nuisances and hopefully my tone was what that patron was going for Mike Lipinski. Yeah.

0:44:55 Thomas: Yeah I like it yeah you did it with like a there he is energy like the guy guy comes in the office. There's those pestilential nuances, you rascals.

0:45:03 Lydia: Yeah, it's like a, like, yeah, exactly, exactly.

0:45:09 Thomas: I say nuances, nuisances. That's a different friend group. The pestilence total nuances.

0:45:15 Lydia: Mike Lipinsky. Warsaw was raw. Little palindrome.

0:45:19 Thomas: Palindrome of the week so far.

0:45:21 Lydia: Yep. 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. Still rooting for the hamburgers to deliver more timely justice than the current system. Nick Fish, unfrozen caveman lawyer. I like my podcast like I like my coffee. Chunky.

0:45:41 Thomas: I love it.

0:45:42 Lydia: So gross. A negative phenomenon. Was it a car or a cat I saw? Oh. Alright.

0:45:49 Thomas: We've got a new leader in the clubhouse for palindromes. Yeah.

0:45:52 Lydia: And they both included the word was.

0:45:54 Thomas: Cause you know, was and saw is an easy, that's kind of a freebie. So though.

0:45:59 Lydia: You gotta fight for your right to ex parte. Jay Sank, cavalry. Vehicular man's laughter confirming he is a lawyer and good at math, but 120 % was better for the bit. Just think of all the people I didn't rank for president, American Honky Tonk Bar Association. That is a very fair point. Wow. Okay. Even a blind squirrel can find these chunks. Huh. Weird. This patron name is blinking. What happens if I... Oh, no.

0:46:23 Thomas: My turn. And thank you to Thomas Freeman, Cajun Killa, Fraud Fishy Hates Everything, E.T., Chris Simpson, Love the Extra Episodes, I Love the Democrats, Fecklessness Is My Fetish Baby, Gattlehead Chucking Away, Mark Schultz, The Cincinnati Kid, Bob Loblaw's Law Podcast, Philly Basement Bar is Busy Organizing, Elect Thomas Smith President, American Honky Tonk Bar Bar Association. That one still stands. It still stands tall.

0:46:46 Lydia: There's no Lydia anymore.

0:46:48 Thomas: Salute that patron. Baltakatei. Philip Kaiser. We all want merch, but then I'll have to rethink the name of my blacktop company, Gravel Gravel. Nice. Cornland. A string of unpronounceable characters. They could be right next to Four Seasons Total Landscaping, you know? Gravel, Gravel Four Seas. Oh man.

0:47:07 Lydia: Yeah. Yeah, gravel, gravel. We'll do all of our conferences in front of gravel gravel right

0:47:12 Thomas: Gravel is like the spinoff company of, they allow them to operate in the same like commercial space. Gravel Gravel, we're technically different. You know, you have to make the checkout to Gravel Gravel if you're getting gravel, but we all work for Four Seasons Total Landscaping. And we're all not a hotel. I'll never get over that. It's the best. Yeah. Hors d'oeuvres in the court before we report. Malika Chandler. Milo Meadsong is fighting petty tyrants. RhondaTheDork.com. Big Easy Blasphemy. Chris Waltrip. Fred R. Groothuis. ClassicLibtard.

0:47:23 Lydia: It's a subsidiary yeah yeah my best friend of all time

0:47:40 Thomas: And Mitchell, our champion. Absolutely. I'm assuming Mitchell's into that.

0:47:44 Lydia: That's true consent you know yeah

0:47:45 Thomas: That's true. You can opt out of the Lydia's Friend system, But I don't know why you would want to, but you can.

0:47:49 Lydia: I would be sad but I would understand thank you thank you

0:47:52 Thomas: All right. Well, that's all that does it. That's all of it. Thanks so much to Heather. Can't wait to find out what level of failure I am this time. And also thanks to Lydia, who would never call me a failure. I could make the boomer wife joke, but that's not that's Not how my marriage is. And that's Like, all the boomer comedy was I hate my wife for some reason. Like, I don't, it has nothing to do with, nothing to deal with. Can you believe my wife, everybody?

0:48:24 Lydia: I think I also set the tone of this episode talking about Black Mirror. It's just like dark.

0:48:32 Thomas: Can't even follow the conversation. I can't take her anywhere.

0:48:32 Lydia: Well, OK. OK.

0:48:35 Thomas: We better go.

0:48:37 Lydia: We need to have a conversation.

0:48:38 Thomas: All right. Thanks so much for listening, everyone. And we'll see you very soon for, some would argue, tomorrow for Rapid Response Friday. See you then.

0:49:05 Thomas: Let's take seven. See if I can do it. Oh, my God. I can not believe we left that chandelier hanging by a thumbtack.