Listen to the episode and read the show notes
Topics of Discussion:
- Hearsay Deep Dive
- Breakin’ Down the Law: The Saga of Paul MacNeal Davis and his Batshirt Crazy Lawsuit
- T3BE Answer
Thomas: Hello and welcome to Opening Arguments, this is episode 469, nice!
Andrew: [Laughs] Niiice!
Thomas: Nice! How’s it going, Andrew?
Andrew: Well, even better now. [Laughs]
Andrew: This is going to be a comedic episode.
Andrew: I have – oh gosh I have something that, it is delightfully layers upon layers of funny.
Thomas: Wait, you’re bringing the funny? Oh crap, was I supposed to do a law?
Andrew: Yeah, you were supposed to bring a law.
Thomas: Okay, let me just [Sighs] shoot! Wikipedia entry for law … hold on! [Laughs]
Thomas: No, okay.
Andrew: [Impersonation] Webster’s dictionary defines “law” as… [Laughs]
Thomas: [Laughs] Naw, you’ve got both the law and the funny, maybe! I’ll see what I can add, I can’t wait.
Thomas: Alright, well, I’m too excited, let’s get right to it, Andrew.
Hearsay Deep Dive
[2:07.5] [Segment Intro]
Thomas: First up, though, question from patron Dianne Resigns Time [Laughs]
Andrew: That’s such a good name, it is.
Thomas: In the latest episode there was some joking about just killing the witnesses to your crimes in order to escape the consequences. I wanted to point you to Federal Rule of Evidence 804(b)(6) which states, essentially, if the defendant murdered the declarant, rendering them unavailable, the declarant’s statement will not be barred by the rule against hearsay. I’m glad somebody thought of that little loophole!
Thomas: But if somebody else – okay, here’s the thing though, and I stand by this because this was a bar question that I got wrong… so it was a bar question, I guess. [Laughs]
Thomas: I dunno why I added the second thing, it’s redundant. It was a bar question and I still hold open that under those circumstances you don’t know who killed the person. I guess the facts of the question could stipulate like oh, it was a random accident, but in the real world what if someone’s just killed in a hit and run? You would never know, and I actually kind of mean this as a serious question.
What if it’s unclear who killed the declarant and you’ve got some hearsay – actually, maybe this would be a good premise for our Law’d Good Book or something, or movie. You’ve got some hearsay, “ah the person who stole the painting was my neighbor” and it’s unclear as of that time of the trial or whatever it is who killed the person. What would happen in that case?
Andrew: That was exactly my idea for this little segment.
Thomas: Oh! Well, I didn’t know that, but that’s where I went with it.
Thomas: Okay, well, see I brought the law! No, I brought the law, that was me bringing the law.
Thomas: You bring the humor later, we switched roles, it’s opposite day. 469, nice. Okay. [Laughs]
Andrew: [Laughs] As anyone who is studying for an evidence final or for the bar exam knows, you spend time in the 800s in the Federal Rules of Evidence because that’s where we have all of the – we have the definition of hearsay. Let’s start at the top. Rule 801 defines exclusions from hearsay. There are basically two, these are prior statements by the same witness that are then offered either to impeach or to rehabilitate that witness’s testimony. In other words, the witness says something, you’re impeaching them by saying [Impersonation] “But Mr. Smith, I’m confused-
Thomas: [Laughs] Yeah.
Andrew: -didn’t you previously say you would never support Donald Trump under any circumstances?” That is defined as not hearsay, even though it’s obviously hearsay. These are not exceptions, these are exclusions, and yes, the bar exam will mess with you. [Laughs]
Thomas: What? No way!
Andrew: I was looking for a – yeah.
Thomas: First I’m hearing of this!
Andrew: [Laughs] So, prior statements by the same witness offered either to impeach or to rehabilitate the credibility of the witness, or an opposing party’s statement under certain conditions. I’m not gonna go through those conditions-
Andrew: -because it’s not relevant to this segment. But those two things, even though they’re very obviously hearsay, are just defined as not hearsay, in the same way that we define certain things as not speech, even though they’re obviously speech. Let me give you an example in the law. The reason it’s permitted to ban child pornography is because the Supreme Court has just said “child pornography isn’t speech.”
Andrew: Of course, it’s speech, of course if pornography is speech it obviously is, it’s just they’ve defined it as an exclusion from – it’s just not covered by the First Amendment, it’s not defined as speech. Analogously, Rule 801 says “These kinds of statements, even though they are out of court utterances made by a declarant who is not present on the stand to defend those utterances, nevertheless they are permissible.”
Thomas: That’s the definition of hearsay? I struggle with hearsay. We’ve gone through this so many times, but if you’re a witness on the stand then how is not anything you’ve ever said not hearsay because you’re there? What’s the definition of hearsay?
Andrew: Sorry, let me be clear about this. If you’re on the stand then you can be asked about your statements.
Andrew: But as exceptions, you can put up somebody else to testify – and I know I used, I did a mock cross examination-
Andrew: -of “Mr. Smith didn’t you previously state…”
Andrew: That would not be hearsay because you’re actually on the stand.
Thomas: So, if someone’s on the stand you can ask them about anything that they’ve said previously regardless of-
Andrew: Yeah, yeah.
Thomas: Okay. But it’s just if you offer up “hey, somebody else said you said this,” is that what it is?
Andrew: Yeah. That’s exactly right.
Andrew: Definition of hearsay is out of court statement-
Andrew: -offered to prove the truth of that statement. Your past statements are your hearsay, but I can ask you about your hearsay and I can aske you, you know, did you make that statement at the moment in which you say yes, I did make that statement, then you have considered to have adopted that statement for purposes of the trial.
Thomas: So, it becomes not hearsay at that point.
Andrew: That’s right.
Andrew: Because I can then ask you about it. But if you say no, I never said that, and look, here’s the real example in which this comes up, particularly in modern litigation, are emails. You know, it was sort of harder to do with letters, but you know, I put one of your emails in front of you and you’re like “yeah, I never sent that,” and I say well, doesn’t this say it’s from firstname.lastname@example.org?
Andrew: And you’re like “yeah, yeah, but I dunno, somebody could’ve spoofed that address or whatever. I never, ever said it.” We actually have – I’ve litigated these issues where, you know, the opposing party will say “we object to this as inadmissible hearsay,” and you have to find some way of getting it in if you don’t have alternative proof that the party who sent it out actually sent it out. Now, I’ve had success when it is business emails of getting it in under the business records exception, for example.
Andrew: But yeah, 801 defines things that are excluded from hearsay which means I can put anybody on the stand. I put Thomas on the stand, you are impeached because of your testimony about Donald Trump, I could bring somebody else to say “well, hasn’t Thomas previously said to you that he would say anything to make Donald Trump go to jail?” I can then ask them that question for the purpose of impeaching your credibility as a witness. I can ask you those questions and you don’t have to adopt those statements, and you can say-
Thomas: I can say I didn’t say that.
Andrew: I could say it doesn’t matter.
Thomas: But you get to like kind of read the statement aloud and the jury hears it, kind of thing?
Andrew: Exactly right.
Andrew: Exactly right. 801 defines the exclusion, it also defines what hearsay is. I should have read that to you instead of doing it off the top of my head-
Thomas: I mean, I’ve heard it defined so many times, it just doesn’t make an impact on my brain. I don’t know why, it’s so hard.
Andrew: Maybe the way the Federal Rules of Evidence define it will make it slightly more clear than I did?
Thomas: Ah, okay.
Andrew: It says “Hearsay means a statement that: (1) the declarant does not make while testifying at the current trial or hearing;”
Andrew: Even past statements by the person who’s on the stand, “and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” I dunno if that helps.
Thomas: Yeah… Well, I think it’s help to talk about how if you’re on the stand you essentially can un-hearsay anything you said, is that right?
Andrew: Yeah, that’s right. You just adopt the statement, that’s right.
Thomas: Huh. Okay.
Andrew: Again, remember that the protection for hearsay is rooted in the notion of cross examination.
Andrew: You don’t want to have Thomas testify about what Ron said, let’s call Ron.
Thomas: Okay, alright, that helps.
Andrew: That’s 801, kind of defines what hearsay is and says by the way we’re gonna take these two classifications of statements that are very obviously hearsay, but we’re gonna define them as non-hearsay. Rule 802 says hearsay is not admissible. That’s all it says. Put the declarant on the stand, let him testify and be subject to-
Andrew: -oath and cross examination. Rule 803 is the one that everybody tries to memorize and-
Andrew: If you can memorize a list of 23 things then you do it. If you need a pneumonic this is where people will come up with one.
Thomas: Oh yeah. My Aunt Something Doesn’t … yeah.
Andrew: [Laughs] These are the exceptions to the hearsay rule. They’re not exclusions, they are-
Thomas: Every Good Boy Does Fine Always.
Andrew: [Laughs] These are things that are admittedly hearsay, but the law says we’re gonna allow you to introduce anyway. I will tell you, the major elements of those 23 that I use in my practice are either public records or excited utterances. [Laughs] The other are an increasingly specific set. Ancient documents applies.
Thomas: Ancient documents! Oooh! We gotta work this stuff into our Law’d Great Movie somehow.
Andrew: [Laughs] Yeah, I agree. Family records, market reports and similar commercial publications-
Thomas: Imhotep said what, exactly?
Andrew: [Laughs] An ancient document, you would be happy to know, Thomas, that the stuff you wrote in middle school qualifies as an ancient document.
Thomas: Oh, really?
Andrew: That is a statement in a document that was-
Thomas: God, am I that old already?
Andrew: -before January 1, 1998, and who’s authenticity is established.
Andrew: Yeah. Again [Sighs] this is an egregious rabbit trail but let me state it for a moment, because I have heard this argument used by grotesquely dishonest Christian apologists, to say well see? The bible counts as an authentic, ancient document so –
Andrew: And it would be like yeah, all that’s to say is that if it were a trial you could admit the statement. [Laughs] Right? Saying you can admit the statement is very, very different than saying-
Andrew: -the jury is instructed to believe that the statement is true. [Laughs]
Thomas: Right, yeah. It’s not saying this is accurate.
Thomas: It just means you get to have it in the trial.
Andrew: This is a piece of –
Andrew: This is evidence that you can admit as opposed to the alternative, which is you don’t even get to consider this at all.
Thomas: Now I’m just picturing a skit we could do where god’s on trial about how horrible the bible is, and he’s just like “ah, this is all hearsay though!” Oh, hold on, Your Honor-
Thomas: -the ancient document exception-
Andrew: So, 803 contains all the exceptions. Those are the things you memorize and you wind up never using a dozen and a half of these. Then we get to 804. 804 are additional exceptions. The 803 exceptions apply regardless of who’s on the stand, whether they’re available, the declarant. Whether the person who said it is available to be called as a witness or not, you don’t have to put them up on the stand to testify as to hearsay, that would fall into one of those 23 exceptions.
Rule 804 are more exceptions that apply only when the witness – the declarant, I keep saying witness, I apologize for that – when the declarant is unavailable, may not testify. What does it mean to be unavailable? 804 sets that out. It says, “a declarant is considered unavailable if they are (1) exempted from testifying about the subject matter-
Andrew: -because the court rules that a privilege applies.” If you overhear – it would be hard to have a situation where you might overhear, say, attorney/client privilege.
Andrew: But think about that, I would think you would argue that that vesicates the privilege because of the third-party exception.
Thomas: Oh yeah, true.
Andrew: But you know, who knows? You’re listening at the door through a glass.
Thomas: Isn’t it about expectation of privacy? So, wouldn’t it still be privileged if they had an expectation of privacy but that was not accurate?
Andrew: Yes, that’s what I’m thinking.
Andrew: Is that there’s some kind of subterfuge-
Thomas: See, sometimes I know law stuff. Why can’t I get a bar exam question that somehow allows me to show the couple law things I do know well?
Andrew: I know! I know! Well, we’ll see. Privilege. “If the declarant refuses to testify despite a court order to do so.” That is, they are presumably being jailed for contempt.
Thomas: How does the fifth, pleading the fifth interact with this?
Andrew: That’s the privilege.
Andrew: If somebody has taken the fifth.
Andrew: You can put on hearsay because that witness – but only specific kinds of hearsay.
Andrew: Because that witness – declarant. I keep saying witness, this is really bad.
Thomas: Probably my fault, just blame me.
Andrew: That that declarant is unavailable to be a witness because a privilege applies; or if they refuse to testify. Think a journalist who says “well, I’m gonna-
Andrew: -go to jail to protect my source. I get that you have a valid subpoena to require me to testify? I am not Don McGahn, so I don’t get to just ignore them without consequence, I’ll go to prison.”
“(3) the witness testifies as to not remembering the subject matter.” You can only testify as to things that are in your knowledge. You might have an elderly witness that says “yeah, I gotta tell you I just don’t remember any of that.” Okay, you have now become an unavailable witness on that subject.
“Cannot be present or testify at the trial because of death-
Andrew: -or a then-existing infirmity, physical illness, or mental illness,” and then there are a couple more. “Is absent from the trial or hearing and the statements proponent has not been able, by process or other reasonable means, to procure the declarant’s attendance,” and there are some sub criteria.
Thomas: This is quite the hearsay deep dive we’re getting into here.
Andrew: Yeah! I thought it would be fun.
Thomas: Okay, just wanted to make sure we have enough time for our silliness, is all.
Andrew: [Laughs] So, if that’s the case, if the declarant is unavailable-
Andrew: -then the following are not excluded by the rule against hearsay.
Andrew: There are six different categories of evidence that are not excluded if the declarant is unavailable. The biggest one, where this happens all the time is the first one, which is former testimony. I will tell you; this is a thing that we take into account as lawyers when you are deposing elderly witnesses. You will say okay, I’m gonna ask questions in this deposition that I might not otherwise ask, and I’m going to know that I can play the witnesses statement at trial if I think there’s a chance that the witness is not going to otherwise testify at trial.
Andrew: I have made that determination on a number of cases, where, for example, for the London Market I’ve deposed not only elderly witnesses but, you know, witnesses in the British countryside where I know we can get a subpoena, but they’re not gonna show up.
Andrew: Because, you know, to subpoena to testify you have to go through international convention, and they’re not gonna show up in court in New York if we wind up going to trial on this. That former testimony is what comes up a lot. And, on that list, number 6 out of 6 is “Statement Offered Against a Party that Wrongfully Caused the Declarant’s Unavailability.”
Andrew: It says, “A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.” That can be murdering the witness. [Laughs]
Andrew: But that could be anything that would-
Thomas: Yeah, slashing their tires.
Andrew: Yeah! Tend to make the witness, intending to make the witness not available to testify and having done so wrongfully. I’ve never relied on that particular exception, I’ve never had a case in which that’s come up, but I absolutely love our patron Dianne Resign Stein for bringing up that 804(b)(6)-
Thomas: Wait, you haven’t answered my question, though.
Andrew: What was the question?
Thomas: My question is someone – you know, it’s not as though every murder is solved the minute it happens. Someone dies under suspicious circumstances, we don’t know who did it, what would happen if you tried to get their testimony in under this hearsay exception saying well, we don’t know who did it-
Thomas: -it could be this person, what would happen with that?
Andrew: That would fall under the first five exceptions, because they’re dead, not that we know who did it, so you could get their prior statements, their former testimony, or you could introduce hearsay testimony from somebody who has heard any of these categories-
Thomas: No. Hold on, go back to the question.
Thomas: It was they’re dying on the street, they want to say “my neighbor stole the painting,” I think. The answer was that wasn’t allowed because it wasn’t related to why they died.
Thomas: I’m saying couldn’t you have gotten that in under the idea that’s like well what if it was the neighbor that hit them with the car but we just don’t know? It’s a hit and run, we don’t know who it is. Can we get that in?
Andrew: That would fall under (b)(2), statement under the belief of imminent death because you have now changed the hypothetical, which is in the prosecution for homicide or in a civil case a statement that the declarant, while believing the declarant’s death (their own death) to be imminent, made about its cause or circumstances. So, yes you would say-
Thomas: No, but then the answer to the bar question would have been different! That’s what I [Sighs] answered in that question and I was wrong.
Thomas: Come on! Explain yourself, what’s going on here? The test is porked.
Andrew: I will go back and re-open the question.
Thomas: The problem was because their death wasn’t related to the painting thing.
Andrew: Wasn’t related to the statement, yeah.
Andrew: He was just saying an unrelated thing.
Andrew: In the bar exam, you can always argue about stuff. You could always say “well maybe this is,” but it goes by the rule of reason, and that there was nothing set forth in the fact pattern that said that dying declaration was related to the circumstances or cause of the-
Thomas: Yeah, it’s not. We’re granting all that. I’m saying I’m a lawyer, I’m on this case, and I’m saying this murder is unsolved, Your Honor, this is a hit and run. Isn’t it possible that the neighbor was responsible and therefore we could allow this hearsay? Would the judge just decide how reasonable they find that?
Andrew: That’s right. The judge would have to decide on a matter of admissibility of that particular statement whether it was more probable than not that the statement was related to the cause or circumstances of death. Yes, that would be in the discretion of the trial judge. Notice that the trial judge does not have to use the guilty beyond a reasonable doubt standard there, they just have to say okay, yeah, I think that this is potentially probative of the nature or circumstances of death.
Thomas: But that’s interesting because you’d almost have to have a trial within a trial.
Thomas: How would you even make – because look, hit and run accidents happen all the time. A hit and run where you just don’t know who did it, honestly picture a situation where it’s like “yeah, we don’t know. Could’ve been somebody, could’ve been whatever.” What’s the judge gonna do to make that determination?
Andrew: You can do that. The judge can order-
Thomas: A mini trial?
Andrew: Yeah, a little trial within the trial.
Thomas: Could they have the investigators, like hey, in camera tell me all the evidence you have [Laughing] or something like that.
Andrew: Yeah! They can do all of that, absolutely!
Thomas: Okay. Interesting.
Andrew: There we go, that’s a revisit of the bar rule. I think the answer still stands. [Laughs]
Thomas: Look, I still think this is a way that I technically was right on that question in some way, shape, or form. That’s all I’m saying.
Andrew: Okay, I will say you could – if you mean by “right,” could construct a non-invalid argument-
Andrew: I will accept that. [Laughs]
Breakin’ Down the Law: The Saga of Paul MacNeal Davis and his Batshirt Crazy Lawsuit
[25:21.3] [Segment Intro]
Thomas: Alright, now it’s time for the main fun. Absolutely crazy lawsuits against crazy people, cannot wait!
Andrew: [Laughs] For part one of the story here, and we may not get into part two [Laughing] based on the A segment, but I’m definitely going to tell you the tale as we follow our hapless protagonist Paul MacNeal Davis. Paul MacNeal Davis is crazy person. He is a 2011 graduate of the University of Texas, J.D. from the University of Texas. That means he’s been practicing law for 10 years. This means he is in his late 30s to early 40s. Keep that in mind as I tell you about him being a crazy person.
He was, until 2021, the Associate General Counsel for Goosehead Insurance. If you’re thinking you’ve never heard of Goosehead Insurance, I had never heard of Goosehead Insurance, they’re way bigger than you think!
Andrew: They are publicly traded under JSHD, and they appear to be a secondary market. Goosehead doesn’t underwrite the policies, but they shop among other insurers to compete to sell policies. I don’t know, I didn’t look that heavily into their business. Being associate general counsel means that he very likely worked processing claims in their, Goosehead Insurance’s, legal department. Which, again, perfectly fine work.
Then Paul MacNeal Davis, on January 6th of 2021, decided to participate in the insurrection to overthrow the government of the United States, and Paul MacNeal Davis decided that he was going to Instagram himself while doing this; Instagrammed a video of basically him going “whoo! I’m getting teargassed!”
Andrew: Yeah. That led Roger Sullenberger of Salon to tweet out that Instagram video. “This is Paul Davis. Paul is a lawyer. He’s associate general counsel & director of human resources at Goosehead Insurance. Today he stormed the capitol building in an attempt to stage a coup against the US government and documented his crimes on Instagram.”
Thomas: [Laughs] Cancel culture run amok, Andrew.
Andrew: Yeah, exactly. The next day Goosehead, by the way they are @-
Thomas: Back in my day you could do a coup and brag about it and, you know, there wouldn’t be all these cancel culture wackos trying to get you in trouble for it!
Andrew: [Laughs] Yeah! In fact, the next day Goosehead, that’s @followgoosehead on Twitter, tweeted out, (quote) “Paul Davis, (comma) Associate General Counsel, (comma) is no longer employed by Goosehead.” (End of Tweet).
Andrew: I want to point out, Goosehead after tweeting that out has 2,000 Twitter followers, or, you know, 1/6 of Opening Arguments.
Andrew: But that tweet has 83,000 likes.
Thomas: Yeah. I’m sure pre-tweeting that out they had 7 followers, yeah.
Andrew: Yeah. No, clearly. Who’s gonna follow Goosehead Insurance, right?
Andrew: That’s January 7th, and then Paul says that he has founded Paul M. Davis and Associates. As of right now, no listing for that name in the Texas Department of Corporations. He has no website. Put a pin in that, and no physical office, but you know what? You’ve gotta start your own firm somewhere. I spent a good part of my first year doing law stuff from my basement.
Thomas: And now you’re doing law stuff from …. Your basement. [Laughs]
Andrew: [Laughs] Yeah, thanks pandemic. But I have an actual office, you can find it.
Thomas: Yeah, she’s from Canada. I get it. [Laughs]
Andrew: [Laughs] Paul, however, has very, very busy wackaloon 11 days, because on January 18th he files a lawsuit entitled Latinos for Trump, Blacks for Trump, (and then a whole bunch of folks known only by their initials) v. Sessions. If you’re thinking-
Andrew: v. Sessions? That’s because the named Defendants in this lawsuit were Texas Republican representative Pete Sessions.
Thomas: Oh, okay.
Andrew: Why is he listed first? No idea. Mitch McConnell, Nancy Pelosi, Mark Zuckerberg, Chuck Schumer [Laughs]
Andrew: Alexandria Ocasio-Cortez, Georgia Secretary of State Brad Raffensperger, Roger Sullenberger, and the entire 117th U.S. Congress.
Thomas: Well then why go through the trouble of [Sighs]
Andrew: Good! Because he’s crazy person!
Thomas: Just say the entire Congress.
Andrew: Yeah, you could-
Thomas: Save us all some time.
Andrew: You could have just said that and saved us all some time, but he decided not to do that. That lawsuit we almost covered on the show. That was filed in the U.S. District Court for the Western District of Texas, and featured as its opening paragraph – and it was on the whiteboard, it was in my notes but it just didn’t make it in because we were a little busy that following Thursday.
Paragraph number 1, “Despite the appearance of Trump in the names of two of the plaintiff entities, this is not a 2020 presidential election fraud lawsuit.” This is where I would like to get that Morgan Freeman voice to come over and be like “spoiler, this was, in fact, a 2020 presidential election fraud lawsuit,” [Laughing] but delightfully there’s a footnote 1, and footnote 1 I want to read it to you word for word because it just made me giggle uncontrollably.
Footnote 1 says “this is not a Sidney Powell lawsuit.”
Andrew: “This is not a Rudy Giuliani lawsuit, this is not a Lin Wood lawsuit, this is not a Team Trump lawsuit, this is not a Republican lawsuit, this is not a Democrat lawsuit.” [Laughs]
Thomas: In fairness, every lawsuit should say “this is not a Sidney Powell” that should be the thing you start putting – every lawyer is like “yeah, it’s just best practice to say ‘I’m not Sidney Powell.’” [Laughs]
Andrew: Yeah, I have not nor have I ever been-
Thomas: It’s kind of a formality at this point, but we all do it.
Andrew: -Sidney Powell. Yeah. [Laughs]
Thomas: It’s just kind of one of those lawyer things everybody does.
Andrew: [Laughs] That would be excellent boilerplate.
Andrew: Despite them saying this lawsuit does not seek to change the declared winner of any election that took place in the past year, the relief sought by crazy person Paul Davis in this lawsuit was, in fact, permanent injunctive relief forever restraining defendants, which includes the entire Congress, from “participating in any action relating to the process of electing public officials, holding public office, or any official government position, or a position in any partisan enterprise related to American politics and also from defaming or threatening or otherwise interfering with the life, liberty, or property of plaintiffs.” Yeah, it did not seek to change the election results, it just sought to prevent Congress from certifying the election results and actually transitioning power over to Joe Biden.
That was signed on January 18th, 2021, because good Opening Arguments listeners know you start at the last page. Put a pin in that because that’s gonna be delightful throughout this litigation. By Paul M. Davis, Texas bar number 24078401. [Laughs] Then it’s signed as “admitted to Western District of Texas,” okay, good. Then it says “former associate general counsel of Goosehead Insurance Corp., terminated after peacefully protesting, now solo civil rights attorney.”
Andrew: You don’t put your employment history in your signature block!
Thomas: Also skilled in Excel and Word.
Andrew: [Laughs] Right? I got fired, I used to be [Laughs] an insurance lawyer!
Thomas: Don’t you know who I used to be?! [Laughs]
Andrew: [Laughs] Okay. So, he files that on January 18th, then on January 21st, because January 20th Joe Biden is sworn in as President, so now we can’t have the injunctive relief to forever restrain Congress from participating in any government stuff. Now he’s gotta file an amended motion for a temporary restraining order, and this is the one that also went viral because [Laughs] in paragraph 2, it is entitled, and I am reading this word for word from this crazy person’s motion. (Quote) “Gondor has no King.” [Laughs]
Andrew: [Laughing] Now, let me tell you, we’ve got a lot of lawyers, would-be lawyers, law students listening. Do not start your motion with a citation to the fictional kingdom of Gondor from Lord of the Rings, okay? Courts don’t want that!
Thomas: Well, the other problem with that is Gondor does have a king!
Andrew: Yeah! [Laughs]
Thomas: That’s an argument made by someone who was wrong within Lord of the Rings. How’re you even – you can’t even do your Lord of the Rings thing correctly.
Andrew: I could read to you all of paragraph – there’s like a seven-line footnote too that says “During the course of the epic trilogy, the rightful King of Gondor had abandoned the throne,” and “a steward was appointed to manage Gondor until the return of the King, known as ‘Aragorn,’ … at the end of the story.” I think what he’s saying is Trump is Aragorn and the Court needs to step in until we can get Trump back on his rightful throne as Lord of Gondor. That is my best effort at translating from crazy to-
Thomas: Wow. Yeah, because I’m not sure if he’s defending the guy who’s chomping those tomatoes or not, is what I wanna know.
Thomas: All those Lord of the Rings movie fans.
Andrew: I’m going back to reading from this, now. “The Judicial Branch is currently the only remaining legitimate branch of government-
Andrew: – and therefore has a duty uphold the checks and balances in the Constitution to curb the unlawful power grab perpetrated on the electorate by Defendants.” I will say this, for a crazy person he at least acknowledges that if the presidential election was stolen, so too were all of the Congressional and Senate elections.
Thomas: Hmm. Wow.
Andrew: Boy does he follow through with that! Boy howdy!
Thomas: So, in that way he got that right and a bunch of Republican members of Congress didn’t.
Thomas: Take note, you’re even worse than this guy in that respect!
Andrew: You’re worse than this guy, yeah. “[This] Court must immediately act to check the power of the Legislative and Executive branches by placing them into a state of stewardship to preserve the status quo ante, pending a preliminary injunction and then until a trial on the merits. Plaintiffs hereby request that the Honorable Court enter the Temporary Restraining Order attached hereto enjoining the illegitimate 117th Congress and 46th President (collectively, the ‘Usurpers’) -” [Laughs]
Andrew: “-from enacting any new legislation or making any substantial departures from United States policy, foreign and domestic, as it existed prior to their unlawful usurpation of power on January 3, 2021 and January 20, 2021, respectively by appointing a group of trusted special masters to provide oversight to the Usurpers.” [Laughs]
Andrew: Now there’s a footnote here, footnote 4, and you’re thinking “oh good, I really wanna know who he wants to appoint as the trusted special masters.” Footnote 4 says “Supra note 2.” And footnote 2 was that 8-line footnote about the epic trilogy and the throne of Gondor-
Thomas: Sure, yeah.
Andrew: -and the return of Aragorn. This is madness!
Thomas: In case you didn’t catch my previous footnote. [Laughs]
Andrew: [Laughs] In case you did not understand that I am a completely crazy person.
Thomas: Per my last footnote. [Laughs]
Andrew: Then there’s all this stuff about the Help America Vote Act, and you know, in any event this is nonsense. Still signed by “Paul M. Davis, Former Associate General Counsel of Goosehead Insurance, (Terminated after peacefully protesting).” That is January 21. Four days later, before anybody had been served, the Court – and I wanna emphasize this is a thing I have never, ever, ever, ever seen! Ever! In the entirety of my career practicing law, sua sponte, issued a show cause order.
It says, and I’m translating only lightly, “Dear Paul M. Davis, you seem to be a crazy person and you have 14 days to amend your lawsuit or we’re dismissing it.”
Andrew: Among the reasons for that was that the lawsuit asserted § 1983 claims against the Congress, and you can’t assert § 1983 claims against federal officials, you can only assert them against State officials. That was due February 10th. Again, I don’t want to pause too lightly over this, I have talked about the alcohol lawsuit I was involved in that was frivolous in the extreme. I have seen cases that will – that are as frivolous as you can possibly imagine, and for the Court to step in four days after reading a Complaint and go “alright, but yeah, gotta get this lunatic off my docket right now,” never, ever seen it.
In any event, February 10th you’ve got to amend your lawsuit, so he does. Then he amends it again on February 16th, even though you only get one amendment as of right in Federal Court, so perhaps that’s why his February 16th Second Amended Complaint is entitled “First Amended Complaint.” It’s still complete nonsense, but again, following our Opening Arguments rule, we start at the end and work backwards. In his signature block he has now removed the reference to his former employers and it now gives his email address as email@example.com, and refers to his co-counsel, Kellye SoRelle. The only problem is, Davis SoRelle does not exist and if you go to dsvissorelle.com you get a Wix page that says “nobody has claimed this website.”
By the way, he fixes a little bit of the – but there’s still like six different § 1983 claims in this. It’s still completely bonkers.
So, then [Laughs] three days after that, perhaps unsurprisingly, he gets fired by almost everybody in the case.
Andrew: Okay. Blacks for Trump, Latinos for Trump, Joshua Macias, M.S., B.G, J.B., and J.J. all – sorry, B.G. and M.S., but not J.B. and J.J., all fire him and [Laughs] that then leads him to move to withdraw as counsel and say “okay, there are still four people here, J.B., J.J., P.P., R.D., and H.H.” sorry, five people, “who want to stick with my strategy. The other, you know, the organizations and two dozen people have all fired me, but there are five people that want to stick with me, so let me withdraw, I’ll bring a case for them and I’ll give all the rest of the plaintiffs over to Kellye SoRelle, who’s gonna continue prosecuting this case.”
Again, with this one, we read it backwards. We go to the last page of this two-page motion and we look at the signature block, which now says “Paul M. Davis,” and gives his email address as firstname.lastname@example.org.
Andrew: And Thomas, I want you to pull that pin out. I made you promise at the beginning of this episode that you would do the thing I asked you to do live on air? I want you to go to paullovesamerica.com.
Andrew: Just type it on in!
Andrew: [Laughs] If you’re listening to this-
Thomas: Paul loves America…
Thomas: I’m going to – should I incognito mode this, or?
Andrew: You do not need to incognito mode.
Thomas: Okay, alright. I’m going to paullovesamerica.com. Cool cat…
Thomas: What the?
Andrew: If you are not doing – if you’re listening to this show-
Thomas: What the hell is this?
Andrew: -and you do not have access-
Thomas: First off, I’ve travelled back to 1999 in terms of website design.
Andrew: I want you to describe where paullovesamerica.com redirects?
Thomas: Cool Cat Kids Superhero, the anti-bullying movie. Oh, and kids gun safety movie. Wow, that’s a lo- with Erik Estrada! Wow.
Thomas: Wait, Vivica A. Fox? What the f-
Andrew: I do not know how Vivica A. Fox got shoehorned into this Cool Cat Kids Superhero. I want to point out, it is selling merchandise for Cool Cat, which by the way is a t-shirt with what looks like capital Comic Sans font that says “Cool Cat” on it.
Thomas: Okay, my thinking was this was going to be a website from 30 years ago that is somehow still on the internet.
Andrew: Oh no!
Thomas: If you scroll to the bottom and it says Copyright 2021, Derek Savage. Who’s Derek Savage?
Andrew: What is the connection between Derek Savage and Paul here? No idea. I was unable to figure this out, but yes, Paul MacNeal Davis’ paullovesamerica goes to –
Thomas: Yeah, it’s a redirect.
Andrew: It’s a redirect, yeah. [Laughs] To the merchandise page in association with Cook Cat the Movie, and it must be seen to be believed.
Thomas: What in the – I’m just so confused, I don’t even know. Cool Cat – I’m gonna look up this movie.
Andrew: [Laughs] You do that.
Thomas: Cool Cat Saves the Kids.
Thomas: Cool Cat Finds a Gun? Okay, this is a series, I think.
Andrew: It is!
Thomas: It started in 2013, I think, is the oldest one I can find. Well, why don’t I just look at Derek Savage’s IMDB page. Let’s see…
Andrew: You do that while I continue to read from the lawsuit, here. In addition to withdrawing and directing the Court to a Cool Cat merchandise page, Paul M. Davis also filed a motion for his attorney fees! He did not – he said “I’ve spent 450 hours of pro bono time on this lawsuit,” which, no. No, you have not. We know exactly how much time, mathematically, it was possible for him to spend on this case, and even assuming he doesn’t sleep it’s not 450 hours.
In addition to all of that, the motion for fees talks about how a third party grifter group wanted to sell merchandise called M90USA, and Paul didn’t want to tell them no he couldn’t, and it was just … it is as bananas as anything as I have ever seen in my entire life, and it is supported by an exhibit. I have uploaded, and I will let folks read it for themselves. It is supported by an exhibit that very clearly reveals attorney/client privilege.
Andrew: Now, it reveals attorney/client privilege between people who are – let me not characterize this. Let me instead read this. This is in green text; this is quoting from Paul M. Davis. This is an exhibit he himself attached to a motion for law fees, for legal fees. He’s seeking to get paid, and as evidence for why he should be paid, he included this text message. (Quote) “It takes a LOT to get text; me angry!!!!” (with four exclamation points) “I am a kind, loving person. But,” (in all caps) “I WILL NOT SIT HERE AND BE ACCUSED OF UNETHCIAL CONDUCT TOWARDS CLIENTS when I have been working night and day for six weeks, pulling literally FIVE all-nighters with less than two hours of sleep per night with ZERO compensation FOR MY CLIENTS!!!!”
“I will literally DIE” (in all capitals) “for Latinos for Trump or Josh Macias! Indeed, I have nothing left to live for other than Jesus Christ, who is my everything, and God has shown me to work for THEM” (in all caps) “and for AMERICA,” (in all caps) “so that is what I’m doing.”
“While I appreciate you, Bob, for bringing these clients, Steve, Kellye and everyone else together, and I will not take that away from you. You have a longer history with them than I do, and I respect that. That does not give you the right to threaten me with non-existent ethical violations after all the hard work I have done.”
“I specifically asked to be left off group emails and texts to protect my ethical duties to my clients, yet I somehow got put on this one. I asked to be removed from the text and talk only directly to the clients, and that has not happened.”
You’re sitting there thinking who’s Bob?
Andrew: Bob [Laughs] is the person – and again, I wish I were making this up! The person who is listed as, in this motion for attorney’s fees, as having been surreptitiously added on the phone calls by Paul’s former partner Kellye SoRelle. This is under the highlighting. “Mrs. SoRelle discloses confidential attorney/client communications to Bob and then claims Bob was monitoring our comms.”
Andrew: Upon reading this text exchange – and I want to emphasize I have not edited this in any way – “screenshots of which are attached hereto as Exhibit 1, Mr. Davis was extremely puzzled and wondered where this accusation regarding unilaterally dropping Plaintiffs had come from since he was planning no such thing and has never, and would never, act without apparent client consent in any matter. Not being an angry person by nature, Mr. Davis was justifiably irate with Bob in the group text after he scurrilously accused Mr. Davis of unethical behavior, in front of clients for whom he had been working 80-100 hours a week, for free, and not getting much sleep.”
“This is when things went from strange to downright bizarre. Mr. Davis remembered that he had a conversation about case strategy with Ms. SoRelle that was clearly protected by attorney-client confidentiality. Mr. Davis realized that Bob’s accusation could only have come from a statement made in text and in a follow up call where Mr. Davis expressed concern to Mr. SoRelle that Bob seemed to be having some sort of undue influence over the Plaintiffs and was poisoning their thinking about the case strategy with suggestions of inclusion of what the whole team had previously agreed were frivolous legal claims” (parenthesis) “(this has always been a case strictly about violations of election law and NOT a case about election fraud).” (End parenthesis, end period, end my quoting from a [Laughing] complete crazy person).
This is what happens when they get together. These people honestly, as far as I can tell, and sincerely believe such a variety of contradictory, unsubstantiated, conspiracy theories that we’ve put them in a room together and said “okay, describe what you believe,” and now they have Bob monitoring their communications and the disagreement in strategy between which facet Q-Anon nonsense they’re gonna go forward with. I will tell you, this was filed a couple of days ago. [Laughs]
Then at the same time, by the way, Latinos for Trump wrote a letter to the Court that said “we would like to petition the Court to allow us some time to obtain legal co-counsel.” “We have fired Paul Davis due to conflict of interest, irreconcilable differences, and his inability to represent us with utmost high standard of ethics and professionalism. We have the utmost respect for your court and just ask that you give us time to install a new attorney.” I don’t think the Court’s gonna grant this motion, I think the Court is just gonna dismiss the lawsuit and say “come back at some other time when you’ve got a lawyer.” Nobody’s been served, there’s no prejudice, you’ve already tried to amend your Complaint twice when you only can once without seeking leave of Court. Just go away for the good of everybody involved here.
There you go, that’s the Gondor lawsuit and accompanying request for attorney’s fees. If you need brightening on your day, I can think of nothing better. [Laughs]
Thomas: I’ll admit, I haven’t heard a word you said for 20 minutes. I’ve been off on this Derek Savage-
Thomas: There’s so much to this, there’s twists and turns. We’re gonna start a new investigative podcast, because this Derek Savage thing is a prank, I believe. I was looking up the movie and there’s all these reviews, like zillions of reviews on this terrible Cool Cat movie, and it’s because somehow, he ran afoul of somebody on YouTu- I’m trying to piece it together. Incoming, just in, breaking news, some YouTube controversy from 2015, so everybody was rushing to give bad reviews on his weird cat movies, there’s this whole thing about Derek Savage. I can’t even process this all, we’ll just say this is an ongoing matter on this show, you know? On Opening Arguments. We will figure out who Derek Savage is.
Thomas: What he is, the Cool Cat movie, how the website got redirected to that. There’s no relationship between these people. Wow, this is breaking news!
Thomas: You’ve got your work cut out for you. This is a major rabbit hole for us tot investigate. Wow.
Andrew: Alright, well, we have taken enough investigative time that I don’t get to tell you about Dominion suing My Pillow, but believe me, that will come up maybe a week from now.
Thomas: Wow, Law’d Awful Lawsuits. Yeah, definitely.
[56:02.6] [Patron Shout Outs]
T3BE – Answer
[1:08:39.1] [Segment Intro]
Thomas: Alright and now it’s time for T3BE answer time, let’s see how I didn’t pork my streak this time!
Andrew: [Laughs] Alright, so, Thomas, this was a difficult question, but a straightforward constitutional question.
Andrew: It was a jurisdiction to keep its public-school expenditures under control in a time of increasing costs. Passed a law providing that children who have not lived in the state for at least a year cannot attend public schools in the state. Which of the following statements about this law is most accurate as a means of constitutional law?
First thing you did was among the “no” options you excluded C, which was because publicly funded education is a fundamental constitutional right, a state may not deny it to any class of persons who reside in that state. That is correct as-
Thomas: As an elimination?
Andrew: -a means of exclusion. Right.
Andrew: As an elimination, yeah. You correctly remembered that, inexplicably in our country, education is not considered a fundamental constitutional right so it does not-
Thomas: Alright, well, at least I got that! [Laughs]
Andrew: -necessarily invoke strict scrutiny. Then you said I’m also gonna get rid of D, and I’m gonna choose between A and B, the two yes answers. That’s where you failed to pork the streak.
Andrew: The answer is D and let me tell you why.
Thomas: Holy moly! Okay.
Andrew: Yup. D is the state durational residence requirements established for this kind of publicly funded service solely for the purpose of reducing state expenditures violate the equal protection clause of the Fourteenth Amendment. That comes almost word for word from a case called Shapiro v. Thompson–
Andrew: -from 1969, in which a particular state attempted to deprive, establish a one-year residency requirement before you could receive welfare in that state.
Andrew: Now, welfare, not a fundamental constitutional right. We can get rid of welfare in its entirety, but the Supreme Court, and again this was the Warren court, a very different court in 1969 than it is today, said, “We recognize that a State has a valid interest in preserving the fiscal integrity of its programs. It may legitimately attempt to limit its expenditures, whether for public assistance, public education, or any other program. But a State may not accomplish such a purpose by invidious distinctions between classes of [individuals]. It could not, for example, reduce expenditures for education by barring indigent children from its schools. Similarly, in the cases before us, appellants must do more than show that denying welfare benefits to new residents saves money. The saving of welfare costs cannot justify an otherwise invidious classification.”
Previously it had said “Appellants’ reasoning would logically permit the State to bar new residents from schools, parks, and libraries-
Thomas: [Laughs] Yeah.
Andrew: – or deprive them of police and fire protection.” Which I think that’s really, if you’re thinking about this-
Andrew: Could you imagine a locality being like “ope, sorry, you have to have lived here for a year otherwise we watch your house burn to the ground.”
Thomas: What’s the constitution – I get, okay, this is related to a case, I get it, this was un-gettable by me because it’s specifically a case there’s no way I would ever know. What’s the constitutional principle – I agree with the result of the decision.
Thomas: But how would I have gotten to the constitutional principle that tells me that?
Andrew: As specified in the question, they have argued that that classification violates the Equal Protection Clause.
Andrew: It violates the Equal Protection Clause, remember-
Thomas: But it says it only violates it because it’s for the purpose of reducing expenditures.
Thomas: That’s a tough thing for me to reason to.
Andrew: It really, really is. Yeah, if you think about it usually you think about Equal Protection Clause cases as involving some kind of heightened scrutiny.
Andrew: This does not create a protected class or invoke any particular levels of scrutiny-
Andrew: It can be thought of as serving kind of a footnote to rational basis and basically saying okay, all you have to show in order to deny services-
Andrew: -is a rational basis, but we are not accepting the justification of it saves us money as a rational basis, because that’s tautological. Obviously, denying services will save money, that doesn’t provide any additional reason. You have to have some other reason above and beyond “it saves us money” for denying services that cost government money, which I think makes a lot of sense.
Thomas: Yeah! No, I think it makes sense. I’m not disagreeing with it; I’m just saying this was impossible.
Andrew: It’s a-
Thomas: Short of knowing this, because it comes down to what’s the specific rationale that the court used to come to this decision in a certain year, in 1960-whatever, it’s hard to get at this from first principles. If we were talking first principles I’d be like “well, yeah, education should be a fundamental right,” let’s just get to that. You know, it’s hard to-
Andrew: Yup, yup.
Thomas: -come up with the way. Because I could actually imagine a hypothetical in which cutting off services could increase the expenditure in some way.
Thomas: If the means testing to determine who you’re cutting it off to would actually increase the costs, that would kind of contradict what you’re saying but … yeah. This was un-gettable. In terms of evidence of test porkage, this one was not – I do not believe there was any way I could’ve gotten this, this was impossible. Short of just luck, obviously, like I could have just lucked my way into D, but yeah, in terms of actually reasoning my way to it as someone who doesn’t know this law? There’s no way. Alright. So far, pretty porked test, Andrew!
Andrew: [Laughs] Well, I’m doing my best here, Thomas, and I will tell you the source for these when we’re through this next batch of ten. I think you’re gonna have a hard time-
Thomas: Oh, it’s just ten?
Thomas: Can we find one that’s a bit- okay.
Andrew: We can. But I’m testing out different-
Thomas: Testing out the waters?
Andrew: Yeah, you know.
Thomas: For real, here’s what I’m worried about. If some source of test prep is giving you their ten questions, wouldn’t they be incentivized to say “here’s a sample of some really impossible questions to show how much you need our test prep.”
Andrew: I don’t want to reveal what the source is because that would make it – I know you would not cheat-
Thomas: Attorney/source privilege? [Laughs]
Andrew: Yeah, well [Laughs] I know you wouldn’t cheat, but some of our listeners might cheat. When we’re done this set, I will reveal this source, which I think will potentially rebut that assertion.
Thomas: I guess.
Andrew: Who knows?
Thomas: I still think if we’re dealing with a selection of ten of something that has, you know, I worry that could be the issue we’re facing here, that when we grab a small subset of questions maybe those would have been, whoever is choosing a small subset of questions would be incentivized to choose hard questions. It could be a possible problem.
Andrew: I will make this offer to you. The next set beyond this, number 224, 225, I will take a full set of questions.
Thomas: I think we should.
Thomas: We need a practice – again, it’s like-
Thomas: If I were doing the SAT and it was like here – there could be ones where it wants to give you an accurate prep test for the SAT, or it could be like here’s one emphasizing impossible parts you need to work on, that kind of thing.
Andrew: Yeah! I understand the concern, and I want you to have the full range of MBE questions to take, so I will-
Andrew: -do that next.
Thomas: You’ll hear from my attorneys, I think we’ve reached a good faith agreement-
Andrew: [Laughs] We have, yeah. There’s a settlement in principle here.
Andrew: Well, Thomas, I don’t know if this will make you feel any better but an awful lot of people got this question wrong. Probably about half agreed with you, but in terms of getting the right answer how about Silk on Twitter, who says “I’m super confident the answer is C because kids have the right to an education, but D sounds like something in a clown horn SCOTUS opinion so that’s my Lionel Hutz Law Talkin Fallback School option.”
Congratulations, I know you tried to hedge your bets, but your first one was correct. Everyone give them a follow, that is @aiiye and that is Silk, congratulations on being this week’s winner!
Thomas: And that’s our show, thanks so much for listening, thanks so much to our top patrons, thanks so much to all of you. And a reminder, if you want more us, which, come on, it’s more us. Who doesn’t want more us? Follow us on Stereo, get that Stereo app, on your phone, whatever phone you have go to the app store, download the Stereo app, follow @Torrez, follow @SeriousPod, and catch us every Wednesday at 5 pm Pacific time, 8 pm Eastern time. You can ask us questions, we get to hear your voice, it’s so much fun. We’re trying to get to more and more of them, it’s a constant battle between lightening round-
Andrew: Between Thomas and Andrew.
Thomas: Essentially, yes.
Andrew: It’s a constant battle between Thomas and Andrew. [Laughs]
Thomas: Pretty much, honestly, but it’s a fun battle and we enjoy it, so join us. Stereo app, every Wednesday, and we’ll see you then.