Transcript of OA499: Mo Brooks Gets Served By Swalwell

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[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, on sale today for 499!

Andrew:         [Laughs]

Thomas:         There you go, made the joke, Andrew!  I’m Thomas, that’s Andrew, how’re you doing?

Andrew:         Ah, somehow that joke is just so much funnier coming out of you.

Thomas:         [Laughs] I don’t think that’s true.  You’re a funny guy, Andrew.  You know?

Andrew:         [Sighs]

Thomas:         You’re as funny as I am good at the law.

Andrew:         [Laughs]

Thomas:         [Laughs]

Andrew:         52% of the time.

Thomas:         Hey, I don’t even think I have that funny batting average.

Andrew:         Hey, I was gonna say, I will take that.

Thomas:         [Laughs] The people don’t hear how many jokes of mine I edit out of the show.  499, can you believe it?  Next episode is 500 and I’m gonna go ahead and say Andrew has something super special planned.  I mean, just the most amazing episode 500.  [Laughs] I’m just gonna make that claim first.

Andrew:         Can we talk offline?  Yeah.  Okay, great, great.  Definitely.

Thomas:         You’re not gonna believe the episode.

Andrew:         100%, yeah.

Thomas:         Let’s get to today’s episode, which sounds like it’s gonna be a lot of fun.

Breakin’ Down the Law: Mo Brooks Gets Served by Eric Swalwell

[2:16.9] [Segment Intro]

Thomas:         So, Andrew, did Eric Swalwell [Laughs] send an elite seal team 6 into, I dunno what, I guess commit trespassing on Mo Brooks and assassinate someone?  I dunno what the allegations are, it sounds silly to me, but did that happen? [Laughs]

Andrew:         Why don’t I quote – look, we all know Congressman Mo Brooks of Alabama is garbage.  Here is a direct quotation from the fundraising literature that he is sending out to his garbage constituents, and anybody else on any, like list.  If you’ve ever bought a Q-Anon related product I’m sure you got this pitch via email.  (Quote) “Click below to watch Eric Swalwell’s horrible agent SPEED” (that’s in capital) “down our driveway, RUN” (that’s in capitals) “out of the car, and STORM into our house.”

Thomas:         Yeah.

Andrew:         “The radical left can’t take me down so now they’re coming after my wife.”

Thomas:         [Laughs] Oh.

Andrew:         “Click here to make a donation to my Senate campaign.”

Thomas:         His wi- so I assume there’s also footage of them running out with his wife, then? 

Andrew:         “And help us fight back against Eric Swalwell and the unhinged Democrats.”  That was also in capital letters, but I’ve done my shouting quota-

Thomas:         That’s assumed at this point, yeah.

Andrew:         -for today.  Yeah, hint, if you click on the video, you will not see a car speed down the driveway.  You will – meh, run?  I dunno, it’d be running for me, but you know.

Thomas:         [Laughs] It’s a trot, you know.

Andrew:         It was a trot.

Thomas:         The person wanted to get to their destination.

Andrew:         Yeah, and you would see them cross through an open garage door, is what you will see.

Thomas:         Okay.

Andrew:         You will not see him enter the house, which the agent denies doing.  You will certainly not see speeding, kidnapping the wife, storming the-

Thomas:         Running away with a bloody knife or something?

Andrew:         [Laughs]

Thomas:         Was the wife stabbed?

Andrew:         Not as far as we can tell.  So, look, this is a question about-

Thomas:         [Laughs]

Andrew:         -service of process.  Okay?  I thought it was a good time to do a little mini deep dive on that and to answer – because we’ve gotten some really, really good questions, including I think the best question, which is folks who go out and read the rules for themselves-

Thomas:         Hmm.

Andrew:         -then say well this in plain English seems to allow X.  One of the things is, this is service of process, governed by Rule 5 of the Federal Rules of Civil Procedure.  It says, 5(b)(2), subsection (C) says that you can serve by “mailing it to the person’s last known address—in which event service is complete upon mailing.”  So, the question that got sent to us was, well, why’d you go through this whole, you know-

Thomas:         Mm-hmm.

Andrew:         -storming the castle.  Why didn’t you just mail it to the guy?  I have answers to all that.

Thomas:         Yeah.

Andrew:         What is service of process?  Service of process, it covers two functions.  The first is you can file a lawsuit, but not serve it on a person.  That is to say you’ve gone through the trouble of actually putting it in the court; you’ve paid your filing fee; but maybe what you want to say to somebody is hey man, I just filed a lawsuit against you, you can go online, you can look it up.  If you want to end this before I serve you with papers and start the clock running for your time to answer, which means you’re gonna have to go get a lawyer, I’m open and I’m listening, but the clock is ticking.  And the clock is in fact ticking, because you have to do that second component.  When you file a lawsuit, you have to prove to the Court that you have actually given it to the person or persons you are suing.  That is called service of process.  As I described, it’s governed by Rule 5 of the Federal Rules of Civil Procedure.  In practice, this is carried out by, depending on the jurisdiction, almost always-

Thomas:         Hitmen.

Andrew:         No, almost always it’s carried out by professional process servers.

Thomas:         Oh!

Andrew:         They have a little cottage industry, what they do is you give them the papers, you tell them who they need to serve, and then they-

Thomas:         Like a bloodhound!  They go [Sniffs] and they just run off!

Andrew:         Sometimes they’re former or current private investigators.  Sometimes they’re just people with some experience on that.  The more tricky you think it is to serve somebody, the more likely you are to call somebody that has a PI background and sort of knows all the nuances.

Thomas:         Yeah.

Andrew:         Look, I’ve had to do – I’ve had to serve papers on folks who were evading process before, and I’ve had process servers get creative.  Now, none of the get creative match up to what you’ve seen maybe sometimes on TV, but I’ve had them-

Thomas:         Hide in a potted plant? 

Andrew:         [Laughs]

Thomas:         Any of that stuff?

Andrew:         This was a competing business, and my process server showed up, rang the doorbell and said “oh hey, can I see Mr. X?  I have an appointment,” you know, a consulting appointment at 3:00.  Then the receptionist buzzed him in and the process server went in and while the guy was like “uh, I don’t seem to see you on my calendar-

Thomas:         Bam!

Andrew:         He was like oh, maybe this will help! [Laughs]

Thomas:         [Laughs]

Andrew:         And pulled out the papers and handed it to him.  Then after that happens-

Thomas:         Are you legally required to say “you’ve been served?”

Andrew:         Uh, you are not required to say “you’ve been served.”

Thomas:         Okay.

Andrew:         But you are required to do this.  So, 5(b)(2) says “A paper is served under this rule by:” then (A) is “handing it to the person.”

Thomas:         Hmm.

Andrew:         That thing that you see on TV is, in fact, the primary way in which people get served with process.  That is somebody will hand it to them.  Can they mislead you?  Can they do exactly what I just described that actually happened in real life on behalf of me?  Yeah!  They can do that thing!

Thomas:         Wow.

Andrew:         Then what happens is the process server fills out a return affidavit.  I’m gonna link the one in the Swalwell case here.  I shouldn’t call it the Swalwell case [Laughs] but in any event, the process server here was a gentleman named Christian Seklecki, and Mr. Seklecki’s affidavit is publicly available.  You can go click on it and read it, and it just describes the process.

Thomas:         [Laughs]

Andrew:         It says hey, I went out to X address, I saw this person-

Thomas:         Abducted the wife, attacked [Laughs] just routine, you know.

Andrew:         [Laughs] It does not mention that part, but it describes the circumstances under which you delivered the paper to that person.  For example, this one says “I initially tried making contact with the occupants” at their address, 7610 Foxfire Drive SE in Huntsville, Alabama.  That’s a matter of public record so we can say that.  “I tried making contact with the occupants… by going to the front door, knocking, ringing the intercom, ringing the front-door-security device (similar to a RING system).  However, there was no answer.

After waiting nearby, I eventually saw a Toyota Highlander” then there’s a note of the license plate that says “Registered to Mo Brooks and Martha Brooks” which, again, leads me to believe that there was some additional PI work behind the scenes done here, “pull into the driveway of the residence.  I followed and also drove down the driveway.  When I stopped my car at the bottom of the hill, the Toyota Highlander was parked in a parking garage and the … garage door was open,” which is true, you can see that on the video.  “I got out of my car, I walked to the driver’s side door of the Toyota Highlander.  As I was approximately tow or three feet away, the driver’s side door opened, and I recognized the female in the driver’s seat to be Martha Brooks.  I extended the papers toward the woman for her to accept and said ‘Mrs. Brooks, I am serving you with legal paperwork.  This is for your husband, Mo Brooks.’”  So, you know, “you got served.”

“As Martha Brooks exited her car, I asked her if she wanted me to hand her the papers.  She did not answer but yelled at me to leave and told me she is calling the police.”

Thomas:         [Laughs]

Andrew:         “I then said, ‘Ok, I’m putting them on the floor right here.’  I then dropped the papers near her feet and reminded her the papers had been served.  I then immediately walked back to my car to leave the property.  However, I was unable to immediately leave because Martha Brooks walked around to the rear of my car, ostensibly to note my license plate, and reversing back up the driveway was the only way to leave.  After approximately five or six seconds, Martha Brooks walked around to my front of the car and the moment I saw she was clear of my intended path off the property, I reversed up the driveway and left the area.”

That’s the end of the affidavit.  Notice that what that affidavit does is describe in sufficient detail for the Court the reasons to believe that the intended person actually got the copy of the lawsuit-

Thomas:         Mm-hmm.

Andrew:         -that they were out to serve.  That’s the whole reason behind all this stuff in the first place.

Thomas:         How – while we’re doing a process and service deep dive-

Andrew:         Yeah yeah.

Thomas:         Is this some sort of get out of jail free card if you can successfully avoid [Laughs] process for long enough?  Are your free to go?

Andrew:         Yes and no.  Yes in the very technical sense, which, you know, is often the best sense, that if a case goes to court and you have not been served you can move to dismiss that pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure.  If there has been insufficient service of process you can say “I don’t have to be here, we’ve gotta start this all over again,” and if the Court agrees with you they do.  Additionally, if you have filed a Complaint but not served the defendant, after a certain period of time the Court can order your process struck from the record and can say, yeah, look, you’re just sitting on your rights, get this person served.  Those are the two major things.  Now, does that make a difference?  It doesn’t always make a difference, but remember, suppose you have a two-year statute of limitations and you first file the complaint within the statute of limitations-

Thomas:         Oh.

Andrew:         And the defendant evades service of process for forever, you could wind up-

Thomas:         Wow.

Andrew:         -having to refile the lawsuit and them coming back and going “well, you didn’t file a lawsuit until more than two years after the commission of the initial wrong.”  That’s an area where I could see that happening and coming up.  Now, no the flip side I will tell you when somebody is evading process you can go to the Court and inform them “this person is evading process,” and courts are not super cool with that.

Thomas:         Yeah.

Andrew:         If you demonstrate significant proof and affidavits, Rule 5(b)(2) subsection (D) says-

Thomas:         Just imagining the game film, like in the NFL.  Like “see?  I went here and they did a quick spin move, got around me!” [Laughs]

Andrew:         [Laughing] Yeah, that’s right.

Thomas:         Get somebody on the telestrator, you know?  Terry Bradshaw or something.

Andrew:         You could.  [Laughs] But the point is that in both the federal rules and state rules there are additional procedures where when you have diligently tried to find somebody but you can’t because they have no known address-

Thomas:         Hmm.

Andrew:         So, sometimes States will allow you to publish it in the newspaper.  The federal rules allow you to leave it with the clerk of court.  Courts will devise ways to help you serve your defendant if you’re being diligent in the service of that defendant.  But the reason to evade service of process in addition to, you know, being a jerk like Mo Brooks, is that service of process is what begins your obligation, it starts the clock running for you to have to respond or to answer or move to dismiss the complaint.  You don’t have to do anything until they’ve served you.  If you want – you can’t afford to hire a lawyer this month but you’re pretty sure if you evade for a week, you can hire a lawyer next month.

Thomas:         Huh.

Andrew:         Those are other reasons less malicious-

Thomas:         Yeah.

Andrew:         -why you might say alright, it’s crucial to me – again, do not take legal advice from a podcast, or do not take illegal advice from a podcast here.  Evading service of process is not a cool thing to do, but there are different reasons why folks might try to do that.  Now, understanding that that’s what happened, and understanding, by the way, the process server is an agent of Eric Swalwell, but even if this person committed war crimes-

Thomas:         [Laughs]

Andrew:         -in serving paper, Eric Swalwell hired a process server.

Thomas:         Yeah.

Andrew:         I do this-

Thomas:         Swalwell could be like I assure you I’m leaving a bad Yelp review; I didn’t have anything to do with this.

Andrew:         [Laughing] Right.  That’s exactly right, and the idea that you would ever hold the lawyer or the party that the lawyer represents responsible for the actions of a process server-

Thomas:         That’s silly.

Andrew:         Is beyond silly.

Thomas:         I will say, I feel like this is a good side gig for our taint team.

Andrew:         Yeah! [Laughs]

Thomas:         We could use the van while we’re doing the taint team stuff.  Just, like, bam!  Roll out of the van, you’ve been served.  You know? 

Andrew:         Yeah.

Thomas:         When things are slow.

Andrew:         Yeah, well I think when we’re looking for a mid-season spinoff-

Thomas:         [Laughs]

Andrew:         -good way of doing it.  Now, was a crime committed when the process server-

Thomas:         I mean, I think I can answer that.  [Laughs]

Andrew:         [Laughs]

Thomas:         Um, no. 

Andrew:         No!  Here’s the thing, the crime that Mo Brooks tweeted out was Alabama Code 13A-7-2, which says that “A person is guilty of criminal trespass in the first degree if he knowingly enters or unlawfully remains in a dwelling.”  Since there’s no proof that he entered the dwelling and the affidavit is that he entered the garage, no.

Thomas:         Hmm.

Andrew:         Even by the video, would not apply.

Thomas:         Wait, I can go in people’s garages and that’s cool?

Andrew:         [Laughs] Well, let’s get there.

Thomas:         Oh, okay.

Andrew:         That’s 13A-7-2, first degree criminal trespass, Class A misdemeanor.  7-3 is second degree, that makes it a Class C misdemeanor if you enter a remain upon real property which is fenced or enclosed in a manner designed to exclude intruders.  Also, not the case here.  But, your question, what might potentially apply would be 13A-7-4, which is third degree criminal trespass makes it a (quote) “violation,” like a parking ticket, to (quote) “knowingly enter or remain unlawfully in or upon premises.”  That’s the most that you could get, below a misdemeanor, a violation. 

But I [Laughs] have to tell you, I did some looking about in Alabama case law, most jurisdictions have either or both statutory or judicial exemptions for process servers.  In Alabama the default is to have the Sheriff serve the papers and there is Sheriff’s immunity for serving papers.  You know, you can’t go sue the Sheriff for trampling your precious begonias when they’ve walked through your garden to hand you the papers, and probably that same degree of immunity would apply even if there was an arguable criminal trespass here. 

You definitely can’t recover civilly, either against the guy.  That is 6-5-262, which says you can recover in tort for any abuse of or damage done to the personal property of another unlawfully is a trespass for which damages may be recovered.  Setting papers on the floor and walking into the garage, uhh, does not seem to have done any damage.  Arguably isn’t even unlawful.  Certainly doesn’t seem to be recompensable. 

Thomas:         At this point I’m kinda wondering what this case is even about?  [Laughs] Why is Eric Swalwell hiring a process server to kidnap someone’s wife, or whatever? 

Andrew:         This lawsuit is the lawsuit that Eric Swalwell filed after the January 6th insurrection pursuant to the KKK Act that holds Mo Brooks and others responsible for letting folks onto the Capitol grounds, allegedly conspiring, conducting tours.  All of this is in connection with the January 6th insurrection.  The fact that the story has been about service of process and not a congressman evaded service of process for months in connection with starting an insurrection kinda tells you where we are.

The last thing I’ll say on that is, as a matter of federal practice almost all instances of process are being pushed into a model in which you sign a waiver of service.

Thomas:         Hmm.

Andrew:         Because – this goes back to the question we flagged at the beginning about well, why didn’t they just mail it to them?  The answer is because if you just mailed a copy to Mo Brooks, then Mo Brooks is gonna file a 12(b)(5) and say “well, I never got it.” 

Thomas:         Mm-hmm.

Andrew:         How do you prove that this showed up at my address?

Thomas:         Yeah, especially with Louis DeJoy.

Andrew:         Right, exactly.

Thomas:         Yeah.  [Laughs]

Andrew:         If there’s a process server there’s an affidavit from an adult and that will be dispositive – the court’ll be like yeah, I don’t think this process server who got paid $60 dollars to drop this off is willing to perjure themselves in open court to say that they delivered it to you when they didn’t.  [Laughing] Although I will tell you, I certainly could tell stories off the air of process servers who’ve probably perjured themselves in their affidavit.

Thomas:         Oh wow.

Andrew:         But it doesn’t matter.

Thomas:         Yeah.

Andrew:         You have an affidavit signed under penalty of perjury that says “I did the following,” we read it, and the Court can say yeah, that’s good enough.  You tell me you didn’t get it?  I don’t care, I’ve got a signed affidavit here, that’s good enough, we’re going forward, case proceeds. 

One of the ways to avoid that is Rule 4 of the Federal Rules of Civil Procedure which says that you can voluntarily affect a waiver and say “yeah, I agree, I’m waiving my rights to say I never got this, I got this.”  The reason is most law – this was true even before COVID, but certainly in the era of COVID I had to sue two people and I emailed their lawyers and I was like hey, here’s a copy of the lawsuit that we’re gonna file against you, does your client agree to waive any objections to service of process?  In both cases the answer was yeah, yeah, yeah, we’ll accept service, that’s fine.  That’s the way it’s supposed to work.  Even when you sue somebody, they’re supposed to either accept service or say “I’ve waived my objections to receiving service.”

Thomas:         Alright, well, yeah, as usual Andrew, it sounds like I trust the word of Eric Swalwell over Mo Brooks and the footage and the filings back that up.  Is that the takeaway here?  [Laughs]

Andrew:         That is the takeaway.

Listener Feedback: Christian Healthcare Sharing Ministries

[21:24.6] [Segment Intro]

Thomas:         Okay Andrew, as we teased on the last episode, we have gotten and are still getting, as of recording, feedback on the Christian Healthcare thing that we call a scam, that you call a scam.  Lots of feedback.  I’m wondering, is this an Andrew Was Wrong?  Are you retracting anything?  Is this an Andrew Was Right?  What do we make of it?

Andrew:         Yeah, this is an Andrew Was Right.

Thomas:         [Laughs]

Andrew:         I retract nothing.  [Laughing] I reiterate everything.  But, look, we’ve had some good feedback.  I want to kinda bookend with folks that have agreed with us and that have said boy, I always thought this was fishy, I had no idea it was this bad.

Thomas:         Mm-hmm.

Andrew:         One listener sent us some actual documents.  I’m gonna keep them quiet. 

Thomas:         Ooh.

Andrew:         Not reveal their name.  I’m still looking for, if you have one of the contracts, mm-kay?  And now I have some idea as to why there might not be a formal written contract.  So, let me describe first a series of discussions that somebody sent us; some email conversations that they had with an administrator with one of these healthcare sharing ministries.  They said “no no no, there’s no contract.  There’s nothing for me to show you, we don’t have a written contract,” repeatedly.

Thomas:         Well, that’s a red flag.

Andrew:         That seems like an odd thing.  And so what I have in my hands is a scan of one of the-

Thomas:         Of a scam!  You have a scan scam.  A scam scan.

Andrew:         A scam scan!  [Laughs] And it is a checklist of understanding.

Thomas:         Huh.

Andrew:         To this particular ministry.  It says “this form must be completed and returned as soon as possible.  Thank you for becoming a part of Scam Ministries.”

Thomas:         [Laughs]

Andrew:         “Your participation is a testimony-

Thomas:         [Laughs]

Andrew:         [Laughs] -how Christians care for each other.  Due to various state regulations, it is important that you fully understand that Scam Ministries is a group of Christians who voluntarily assist each other with certain medical costs.”

Thomas:         Hmm.

Andrew:         “If you have any questions, please call our office and ask for the member assistance department.”  Then, “Please sign at the bottom and initial each of the following:  1) I understand that my monthly gift to Scam Ministries enables the ministry to help me in the following ways.”  Again, notice, we talked about but did not emphasize that.  They have taken the position here in this contract – and by the way, this is a contract. 

Thomas:         Yeah.

Andrew:         [Laughing] Anything that requires you to sign it at the bottom and initial on every line, they can call it a “checklist of understanding.” 

Thomas:         [Laughing] Yeah!

Andrew:         They’re using it as a contract.

Thomas:         Like, no!  It’s a homework … handout… something.  [Laughs]

Andrew:         Yeah.  Exactly.  They have taken the position that I expected they would take, which is “yeah, this is a gift.” 

Thomas:         Yeah.

Andrew:         Good luck, even if we deny you coverage, good luck getting it back.  You can get back premiums, gifts to ministries are harder to disgorge.  So, “it enables Scam Ministries to help me in the following ways:  To keep on file information concerning my participation or my family’s participation; to receive medical needs and prepare them for consideration for sharing through the member escrow account; to share medical needs found to be eligible under Scam Ministry guidelines; and to send me a Scam Ministry newsletter each month.”

Again, notice the language in there.  Consideration for sharing.  I have agreed, I’m giving you a gift; you’re maintaining this information, you’re thinking about whether you’re going to share it out.  “2) I understand that Scam Ministries is not insurance and no guarantees are given to those who participate.”

Thomas:         Wow.

Andrew:         Some of our defenses that have come back in are people that have said “well, they don’t say that they’re insurance.”  They certainly now will say that and will say that in the same context that we said in episode 497, which is “yeah, we would never hire insurance brokers to do blah blah blah.”  But yes, they will say we understand we’re not insurance, but that’s because in their marketing they’ll be like “we’re better than insurance,” right?  [Laughs]

Thomas:         Yeah.  Well, also I mean the fact is that a lot of people think this is insurance.

Andrew:         Yes.

Thomas:         Maybe there’s somewhere in the fine print, they’re letting you know, they’re making a disclaimer, but there’s a lot of paperwork and things, there’s a lot of stuff people don’t read.

Andrew:         Yup.

Thomas:         People think this is insurance.

Andrew:         Yup.  “Number 3) I understand that my participation is voluntary and I have no legal obligation to give to the medical needs of other members; 4) I understand that I have no legal right to receive money from the Scam Ministries office itself-

Thomas:         Wow.

Andrew:         -or from other participants.”  Sign that right there.  “5) I understand that Scam Ministry participants’ desire to know the needs of others and have their own needs shared in a manner based on scripture, particularly-”

Thomas:         [Laughs]

Andrew:         Then there’s a bunch of bible passages I’m not gonna read.  “6) I understand that, as stated in the Scam Ministry guidelines, members must be active participants in the ‘Body of Christ’ according to Hebrews 10:25.”  Gotta go to church.  “Number 7) I understand that responsibility for payment of any medical needs or bills remains with me, regardless of whether other participants send funds to help with payment.  Number 8) I understand that the risk of payment of any medical bills or needs is not shifted or assumed by Scam Ministries or any Scam Ministries members.  Responsibility for payment remains with me.” 

Again, I’ve got a couple more here, but as a lawyer who drafts contracts-

Thomas:         [Laughs]

Andrew:         What you ask is hey, contract is gonna protect you from being sued, what are you worried about being sued about?

Thomas:         Mm-hmm.

Andrew:         The things that are listed here are the things that they’re worried about being sued about.  “I understand that if my medical needs are submitted to Scam Ministries for sharing they may be accepted or rejected according to the guidelines.  I understand that Scam Ministries is not approved or endorsed by the Department of Insurance in my State and that claims or losses are not protected by the State Guarantee Fund.  I understand that part of my monthly financial gift goes towards a minimal administrative expense to operate the Scam Ministries office.”  And, before laughing at that a little bit, I have done a little bit of work and there is not – I have not found – I want to be really, really clear about this because I continue to call this a scam.  I have not found a Creflo Dollar.  I have not found anybody that’s making millions of dollars off this scam.

Thomas:         A smoking jet?  A smoking private jet?

Andrew:         Yeah.  A smoking private jet, that’s right.  It does not have to be.

Thomas:         Yeah.  Even normal insurance makes insurance companies a lot of money.

Andrew:         Yeah.

Thomas:         So I imagine this makes somebody even more.

Andrew:         But I do want to be clear I do not see somebody making private jet money off of running these.

Thomas:         Hmm.

Andrew:         That doesn’t mean that it’s a good use of your money.  Anyway, then finally it says “I understand that participants send money to help one another out of a desire to share one another’s burdens; it would be an abuse of their trust and will render me ineligible for participation in Scam Ministries if I use money I receive for a shared need for any purpose other than payment of that need.  I attest that my initials represent that I understand the above statements.  Participation by me and my adult family members reflects an effort to uphold biblical principles.  I understand that Scam Ministry members involved in a sinful lifestyle are ineligible to participate.  I understand that Scam Ministry strives to uphold the biblical directives that Christians carry each other’s burdens.”  Then it’s continued on the back, but sadly I don’t have a scan of the back.

Thomas:         So, look, I sign a lot of things without reading ‘em too clearly.  I probably shouldn’t admit this on the air, I don’t read a lot of stuff.  I think even I would kinda skim through that and be like “uhh what?  What the heck?”  There’s a lot in there that lets them off the hook for not helping you at all.

Andrew:         Yeah.  And now suppose – there’s a lot of things that basically “we promise to maybe share this around, maybe.”

Thomas:         Yeah.

Andrew:         Then the question was I inferred that based on the “Christians have a duty not to sue one another” language-

Thomas:         Mm-hmm.

Andrew:         -that was on one of the major ministry sites that there was an arbitration clause.  Katherine Hermann in the Facebook group – another lawyer – found an arbitration provision buried in their membership guidelines, which was available to the public, and it calls for (here I’m quoting) “legally binding arbitration in accordance with the Rules of Procedure for Christian Coalition of the Institute for Christian Conciliation, a division of Peacemaker Ministries.”  (End of quote).  Now, leaving aside the sort of delightfully Orwellian language there, the Institute for Christian Conciliation is a scam arbitration group!  [Laughs]

Thomas:         Oh wow.

Andrew:         Okay?  We could do an entire episode just on these folks.  I will prove it to you in eight seconds, though.  You can’t download their rules of procedure.  You have to send an application, tell them what procedure you are adjudicating, and then to get them – I am not making this up – you have to sign an NDA on the application that says (quote) “I agree not to publish or otherwise distribute these documents to third parties,” (end of quote). 

Now real arbitration groups publish their rules online.  The reason real arbitration groups publish their rules online is because when you go to have an arbitral award confirmed by a court, the court has to be able to go back and look at the process and go hey, did this meet the standards of the Federal Arbitration Act?  And if they don’t show you what their rules are you can’t prove that the- and those requirements are real minimal.

Thomas:         Yeah.

Andrew:         It’s not hard to get an arbitration approved and confirmed by a court of competent jurisdiction.  But every group – I’m gonna include, I have a Triple A arbitration pending right now.  The Triple A Arbitration Rules are available at  It is – the hallmark of real arbitration is they tell you how they resolve disputes.  The hallmark of fake arbitration is you have to do this.

Thomas:         Okay, but wouldn’t that then be better for the people who want to sue them?  Because then the court’s not gonna accept the arbitration?

Andrew:         That’s a great question.  I will tell it to you this way: I do not know of any case – I have litigated a lot of arbitration awards and there is a strong presumption all the way up to the Supreme Court level-

Thomas:         Hmm.

Andrew:         -in favor of the validity of voluntary arbitration awards.  There are very, very narrow procedural grounds for overturning them.  I do not know of any – that’s not to suggest that there are, I’m sure that there are some.  I can’t cite you a case, I can’t think of a case, I have never found a case in which a court has refused to confirm an arbitration award because the arbitration agency itself is fake. 

Now, I can think of lots of reasons for why that might be the case.  The answer to your question is twofold.  Number one, yes it will make it easier to argue that the arbitration was procured by fraud, which is one of the grounds for refusing to confirm an arbitral award, but there are sort of two pretty hefty counterweights.  The first is the strong presumption in favor of arbitration awards in court, and the second is the likely unavailability of means to ever get to litigate that point.

Thomas:         Yeah.

Andrew:         Because you’re talking about – as we’re gonna talk about in some of the people who push back.

Thomas:         Oh, by definition it’s people who’ve already lost a bunch of money on this scam, probably.

Andrew:         [Laughs] Yeah!

Thomas:         So they can’t afford to go all the way through that process!

Andrew:         And attracted to the scam by the fact that they can’t afford insurance.

Thomas:         Yeah!  Wow.

Andrew:         And probably have costs shifted to them in the arbitral forum.

Thomas:         You know what Andrew?  Now I’m kinda rooting for that absurd situation where the guy had a billion dollars saved and was like “oh, do I have enough money saved?  We make $12 million a year.”  Now I’m kinda hoping that guy got-

Andrew:         [Laughs]

Thomas:         -some of this coverage?  He’d be the one person who has the resources to-

Andrew:         He’d be the one person who could sue, yeah.

Thomas:         To take this all the way to the top!

Andrew:         Yeah, give us a call-

Thomas:         Maybe that’s the long con!  [Laughs]

Andrew:         -Mr. Guy that wrote into MarketWatch, yeah!  [Laughs]

Thomas:         Of the article! 

Andrew:         I like it, I like it!  It’s a better defense than anything we got out of Ali Malito or MarketWatch, which is nothing.

Thomas:         [Laughs]

Andrew:         So, what did people argue – and I will tell you, nobody disputed the thesis in general.  Nobody, none, nowhere, said hey, this is a great long-term way to take care of your health needs, which is how this is pitched.

Thomas:         Yeah.

Andrew:         Here’s what came in.  First came a handful of stories, and I picked the best one, of people who unambiguously won and came out ahead in the system.

Thomas:         Mm-hmm.

Andrew:         And let me just say, I said this on Facebook, you repeated it.  If you were the first investor with Bernie Madoff-

Thomas:         Oh yeah.

Andrew:         -and then you cashed out, you won!

Thomas:         The first several.  Went on for a while, yeah.  A lot of people made money on that.

Andrew:         Pyramid schemes work because plenty of people make money.  Casinos work because plenty of people manage to beat the dealer.  But if you told me that your retirement program was-

Thomas:         [Laughs]

Andrew:         -first I’m gonna go to the casino and then I’m gonna invest that money in a pyramid scheme-

Thomas:         [Laughing] Yeah.

Andrew:         -I would say that’s a scam and nobody would argue and be like “well you know, Fred Wilpon made a ton of money with Bernie Madoff.”

Thomas:         Yeah.

Andrew:         And you’d be like great, that doesn’t prove what we’re talking about.  So, this was a pre-episode comment sent to us by Timothy Couper via email, who said:

“A little background might be worthwhile.  I identify as gender fluid / gender queer.  I have two master’s degrees in theology and undergrad majors in philosophy and neuroscience.”

Thomas:         Huh.

Andrew:         “My partner and I have had a Christian health share for at least 4 years.  In 2018, my partner had an ectopic pregnancy that was life threatening.”

Thomas:         Ooh.

Andrew:         “The surgery cost $60k.  The health share paid it.  The health share also paid over $45k in 2020 when my partner got pregnant again (with a little scientific help) and this time we got our baby after” well, I’m not gonna read some of the more personal stuff, here.  “I’d have to check all the details as there was probably even more bills paid, but I know that we have received at least $100,000 in healthcare between those two events.”

Thomas:         Wow.

Andrew:         “Our monthly insurance/share fee is $530 dollars.”  Yeah, I’m very happy that you were able to-

Thomas:         Yeah.

Andrew:         -get through those life-threatening events.  In general, because the way to beat the system is to get in at 25, cash out on huge but not life-threatening events, and then drop it; every single one of these success stories that we talk about typically involve pregnancies.

Thomas:         Yeah.

Andrew:         Because that’s where young people have high medical costs.

Thomas:         And I was gonna say, that’s an area where I think it would fit with the kind of Christian-ness of this thing, where they’re like “yeah, we’ll help ya have a baby, we’re all about that;” whereas maybe some other cases where people might be denied coverage in critical ways where it kind of conflicts with their Christian worldview.

Andrew:         Yeah.  Although I would – we didn’t drill down.  It says “with some scientific help,” I’m positive that none of the – well, I don’t want to say I’m positive, but I would be shocked if any of these ministries paid for invitro fertilization because in IVF therapy it is standard practice to have selective reduction.  The IVF drugs can lead to octuplets and radically dangerous multiples, and so typically when you get IVF you have to consent to selective reduction of multiple …

Thomas:         Tiny little things that aren’t-

Andrew:         Zygotes, right.  It’s zygotes, I’m looking for the word that covers when it’s a blastocyst. 

Thomas:         Yeah.

Andrew:         Anyway…

[37:02.3] [Commercial]

Andrew:         Let’s assume – take all of that, and we’re gonna talk about like math in a minute.  This person can still wind up a long-term loser and it would not take that long for that to happen.

Thomas:         Hmm.

Andrew:         Monthly insurance share fee is $530 dollars.  That is $6,000 dollars a year.  Again, run a calculator to see at which point $6,000 a year would produce $100,000 in wealth.  It doesn’t take that long.  Again, it takes a decade, but if you stick around and pay another decade’s worth of premiums and never draw anymore benefits then-

Thomas:         Well-

Andrew:         -you may still wind up behind.  Go ahead.

Thomas:         I’ve gotta say, this might be your weakest argument, Andrew, because the whole business of health insurance by definition would have to be this way otherwise it wouldn’t be a business.  On average anyone contributing – on average – has to be contributing more than they’re getting paid out otherwise it wouldn’t be a bazillion dollar business.  It just has to be.  I think it’s more a matter of degree than merely the simple fact that like oh, you might end up losing out in the long term. 

Andrew:         I agree with that, and there’s a similar objection that Katherine actually made that I want to get to.  I want to compare it to investing the premiums only that you understand the dollar value of the contributions coming in and going out, because the spirit that animated this response and a half dozen like this that we got was “you say it’s a scam, but (quote) I’m ahead financially.”

Thomas:         Yeah.

Andrew:         How do we figure out if you’re ahead financially?  The fact that there are massive problems with our healthcare industry?  You’re an OA listener, you already know where we are on that.  What I’m trying to respond to is the argument of “hey, I did this and I came out ahead.”  The two responses are one, individuals coming out ahead are like individuals beating the dealer; and number two, let’s carefully calibrate what you’re thinking of in terms of coming out ahead. 

For example, we had another relatively unambiguous winner, was “that one random canon lawyer guy on the Facebook group,” (that’s how he wanted to be identified).

Thomas:         [Laughs]

Andrew:         Who was in for two years, his wife had two pregnancies, they paid $500 a month in fake premiums, and they cashed out with $20,000 in benefits.  Okay, if you can get in for two years-

Thomas:         Get in, squeeze out some children.

Andrew:         -then yeah, you might show up as a winner in this.  But I contrast that with another Facebook story where the person was absolutely certain they had come out ahead.  Again, remember, this is a bad thing.  The average cost of an uncovered pregnancy is between $5,000 and $10,000 dollars; the medical expenses associated with an uncovered pregnancy.  That is an undiscounted number.  Remember, we talked about in episode 497, it is a condition of the healthcare sharing ministry that you have to beg down your bill or they will beg it down for you if they’re an in-network. 

I just want to describe this, and again, don’t take legal advice from a podcast, I’m not saying this is good that the underlying social conditions are this way.  If you are uninsured and you get a $7,000 dollar pregnancy bill without an HCSM, you can probably beg that down, get them to write off a portion of it, and get on a payment plan with the hospital.  I will tell you, my wife did that at a time prior to when we were not married and she was uninsured and she had a big hospital bill, went to the emergency room and paid off in like $25 a month installments while I was in law school until we got to the point where the hospital wrote off the balance of the bill.

Thomas:         Hmm.

Andrew:         This is a thing that people do, and it is key – it is a cornerstone part of the HCSM business.  Negotiate down the bill.

Thomas:         Again, I don’t really see the problem there.

Andrew:         I don’t – what I’m saying is if you are comparing the benefit to say $7,000 pregnancy-

Thomas:         Oh.

Andrew:         I had a $500 deductible so I got $6,500 worth of benefits, you didn’t.  You probably got more like $2,500 worth of benefits because you would have had to have done the same begging to bring the bill down without the HCSM.

Thomas:         Oh, okay.

Andrew:         And that reduces the overall net value to you.  We had a person write in and say yeah, I’m doing great, my premiums are $800 a month, that’s $10,000 a year, and his wife had two pregnancies – this is a different person from that random canon lawyer guy, this is a third person.  He defined his wife as having taken $13,000 in benefits – two $7,000 pregnancies for $500 each.  Well, you take him at his word, if he’s been a member of the ministry for more than 16 months he’s lost out.

Thomas:         Yeah.

Andrew:         But again, if you bring that to net present value is probably still not.  Probably the first one within that first year is still not sufficient because – I will say it to you this way, again, don’t take legal medical bill paying advice from a podcast.  If you have a $7,000 unpaid pregnancy and you can afford to pay the hospital $500 a month, they will absolutely discount that bill and you will pay it off.  Again, not saying you have to.

Thomas:         I really don’t see the strength of this because this sounds like you’re arguing against any insurance.  Wouldn’t that same thing apply to any insurance company?

Andrew:         Well, no.  [Laughs]

Thomas:         Why not? 

Andrew:         For multiple reasons.  The biggest reasons are that the insurance companies have to provide all of the benefits that are specifically excluded here.  We’re just talking about what people think about, which is-

Thomas:         And that’s what is the problem, is what I’m trying to say.

Andrew:         Yeah.

Thomas:         It’s less that you end up slightly behind if you do the math right, that’s gonna be true with insurance.

Andrew:         Yeah, yeah.

Thomas:         You’re gonna end up behind.  I just want to emphasize I think the key is you don’t have the coverage that you would have with a real insurance.

Andrew:         Correct.  Right, and that gets to the argument we saw a bunch of times which was well, go back to Coup who says “it seems like it makes sense if you’re in a position like we are.  We have massive student loans, make too much money to get a reasonably priced insurance plan, but also don’t have much cash because the student loans soak up so much per month.”

Thomas:         Hmm.

Andrew:         “For people like us it’s either health share or no insurance.  I suppose student loan forgiveness would change that, but I’m not holding my breath.”  Yeah, so would universal coverage.

Thomas:         Yeah.

Andrew:         I get that, and it’s why I encourage you to take a look and see.  Do you fall within that unbelievably narrow category of-

Thomas:         Right.

Andrew:         -being able to get in and get out on an economic basis, because the other value of hey, knowing someone is going to be there to backstop me, you’re getting zero of that value.

Thomas:         Oh, okay.  Maybe to clarify I think I see what you’re saying.  With these select specific scenarios, people aren’t able to choose between Christian health share and real insurance.  You’re saying for these select people it’s like well, actually, it’s either Christian health share or nothing so they think okay, Christian health share; but if you look at the economics of what’s going on there, they might actually be better off with no insurance, maybe?

Andrew:         With nothing, yeah.

Thomas:         Yeah, okay.

Andrew:         Yeah, don’t take legal financial planning-

Thomas:         That’s not a good scenario.

Andrew:         Yeah! 

Thomas:         You know.

Andrew:         No!  I am not saying that at all, but I’m saying if this is your defense that we’ve gotta really drill down on, that also answers – Katherine Hermann also had a bunch of great questions and one was arguing with my suggestion that you would be (quote) “better off putting that money into an investment portfolio because it would result in a larger return.”  She talked about the inherent privilege of being able to have an investment portfolio.  That was not my point.  To the extent that that was ambiguous at all, what I was not trying to say is the classic “okay boomer” of-

Thomas:         Yeah.

Andrew:         “I don’t understand why you millennials aren’t just saving $5,000 a month in a retirement account.”  No.  I was trying to give a way to understand the economic value of the benefits that were being promised.

Thomas:         Uh-huh.

Andrew:         Looking at, if I’m a long-term participant in one of these and I’ve drawn two big events that total $125,000 over ten years, how far ahead am I really?  Compared to what I could have otherwise done with that money.

Thomas:         Yeah.

Andrew:         Because you have spent the money.  So, it’s not a case where you can’t afford to spend the money because by definition you have.  But, yeah.  I did not mean to, and I certainly don’t want to be understood as saying like “why don’t you young kids just- you whippersnappers just put a few million away into”- I agree, that would be ridiculous.

Thomas:         I guess – I’m trying to think of what the other scenarios would be.  I mean, if your argument is this is a very specific, yes, some people can come out ahead of course.  You know, we never denied that, like you say, but if the choice is between this or nothing, give me a scenario where it’s gonna be very clear that you got porked.  You know?  Is it when you have a catastrophic event and the Christian health share caps out?  And you would’ve been literally better off without insurance in that case?  Is that what you’re saying?

Andrew:         If you have a catastrophic event that goes uncovered then, by definition, you would have been better off with nothing because then at least you wouldn’t have been spending your monthly premiums.  You would’ve been better off with whatever you did with that.

Thomas:         I guess- So, what are the – it’s hard to know without the contracts and the, you know, a bunch of details about what’s going on here, but I guess the problem would be, or the question would be, how likely is that – how often is that – what kinds of things? 

Andrew:         That’s something that we cut for time on 497 and also because it didn’t quite hit the legal aspects, but I mentioned Reed Abelson, New York Times, if you google “Christian Healthcare Sharing Ministries New York Times” you’ll get a dozen stories.  You will get linked to a half dozen lawsuits that have been filed involving denials of coverage and misrepresentation.  I’m gonna tell a story to end this out from our friend, LadyOtheFarm, but yeah, let’s take our unambiguous winner and modify it just a tiny bit, and that is the same ectopic pregnancy, but assume that the woman involved-

Thomas:         Wasn’t married?

Andrew:         Went and got –

Thomas:         [Laughs]

Andrew:         Wasn’t married?  Yeah, but no, assume they went and got IVF.  Didn’t feel like I need to tell anybody, didn’t think too hard about the theological views that her evangelical church ministry was gonna have about selective reduction of embryos, gets to the ectopic pregnancy and then the HCSM is like “you had invitro drugs?”

Thomas:         Yeah.  See you later.

Andrew:         Yeah, that’s it.  That is not consistent with a Christian lifestyle because you had to agree to commit abortion-

Thomas:         Hmm.

Andrew:         -when you signed up for these therapeutic treatments.  That’s not consistent with a Christian lifestyle, we don’t have to cover it.  We read you the contract.  You can say “what’s our proof that we’ve ever done that?”  The fact that it’s listed as an exclusion is a pretty good reason to think that they’ve never done it, and I think that sort of dovetails into Krystal’s story, this is LadyOtheFarm, longstanding listener, this just broke my heart.  She said:

“I had a church member try to talk me into it after just having had my eldest.  Kid needed a heart surgery at 8 months, and she” (that is the fellow church member) “thought this ministry ran like a charity.  I knew better and had her come with me to talk to the guy that ran it.  I think I broke her.  When he first saw me, he was all excited and friendly.  (Quote) ‘A young married couple with a new baby is perfect!’ (End of quote)” [Laughing] Yeah, I bet.  

Thomas:         Yeah.

Andrew:         “Then I explained the kid has Down Syndrome and needs a heart surgery.  His face fell immediately.  In less plain language, he explained that they wouldn’t be able to cover that large of an expense until we had paid at least that much (2-3 times is what I think he was going for) in premiums.  Plus, they only had deals with certain hospitals, so they wouldn’t cover the Children’s hospital.  He said we could take out a loan from the church and pay a much higher price, but then we might be better going with the state plans (which were free for kids by the way, even though he had originally been trying to tell me that their plans were much cheaper and better).”

Thomas:         [Laughs]

Andrew:         “The woman who brought me started to get nervous.  She asked what would happen if she got into a car wreck or had a relapse of cancer since she had her plan for less than 2 years.  He stumbled through a nonsense answer that kinda ended with ‘well, we could get you a loan too.’  He then asked her if she had disclosed that she had previously had cancer when she applied.”

Thomas:         Yeah.

Andrew:         “She had told me that a benefit was that they didn’t ask you about your prior health, so I knew she hadn’t.  He started to tut-tut her.  I slowly backed out of the conversation.  She looked devastated.  There was no way she was getting her money back.  I brought her info on the ACA and how to enroll the next times I thought I might run into her, but she never spoke to me again.”  

Thomas:         Oh, wow.

Andrew:         “I think she thought that this ministry was like a charity because that’s how she tried to convince me.  She thought they’d cover my kid, or if she had a relapse, it would always cost around half of what they said regular healthcare costs.  She thought it would be free if she couldn’t work.  He stopped that thought in its tracks; they would just drop her in a moment of need for failure to pay.”

I wanted to end with that human story because we have, I think, bent over backwards, particularly in 497 – this is a less sharable episode, we’ve been more clear about our beliefs on evangelical Christianity and socialized medicine in this episode, but yeah.  It is piggybacking off the idea that the church is the place that does charity.  These are very much not charities.  They are very much protected in the event that they decide not to cover you for any reason whatsoever and your remedies are pretty much zero. 

Thomas:         Yeah.

Andrew:         I stand by my assessment.

Thomas:         And I know you were saying the last word there, but I just wanted to emphasize, again, that I do think this is a huge indictment on the American healthcare system.  I think that if we had – well obviously if we had universal healthcare, but if we had even a better system it wouldn’t create so much pressure for people to be looking for something that’s too good to be true.  That doesn’t absolve these scams from being scams, but it also, I think, gives an understanding of why people are desperate and are vulnerable.  That’s a real fault of the system.

[53:41.3] [Patron Shout Outs]

T3BE Answer

[1:05:48.1] [Segment Intro]

Thomas:         And it’s T3BE answer time.  Let’s find out if I successfully got back on the saddle or if I fell right back off that horse.

Andrew:         Alright, Thomas, this was a hearsay question.  This was a trial for extortion.  Prosecutor calls a witness who had previously testified to the grand jury.  In her previous testimony – so his expectation is that she was gonna say “I heard the defendant threaten a man with physical harm unless he made payoffs,” but when she gets on the stand in front of the actual jury she denied ever having heard the defendant make such threats, even though she had previously testified to that effect before the grand jury.  The prosecutor now seeks to admit her grand jury testimony.  How should the court rule?

First Thomas v. the coin, Thomas’ Second Chance Law Firm eliminated A) Admit the testimony, because it contains a statement by a party-opponent.  Good elimination!  That’s nonsense.

Thomas:         Okay.

Andrew:         The witness is not a party opponent, by definition.  [Laughs]

Thomas:         Yup.

Andrew:         You also eliminated C) Admit the testimony under the former testimony exception to the hearsay rule.  That’s also a good elimination-

Thomas:         Oh, alright!

Andrew:         -and we’re gonna talk specifically about that.  So, it is indeed between B) Admit the testimony, both for impeachment and for substantive reasons, because the witness made the inconsistent statement under oath at a formal proceeding; or D) Exclude the testimony for substantive use, but by implication, use it for impeachment because it is a testimonial statement.  You went with D, the coin went with B.  [Laughs] And Thomas, I’ve gotta tell you, the coin is bridging the gap here, my friend.

Thomas:         Yeah.

Andrew:         It’s B.  You were actually led astray here by having too much legal knowledge.

Thomas:         That’s where the coin got me!

Andrew:         It is 100% where the coin got you, because the coin had no prior legal knowledge.  You were thinking about this as a prior inconsistent statement, which again is correct, which you use for impeachment but not for the substance thereof.

Thomas:         Mm-hmm.

Andrew:         But remember that when you approach hearsay as a lawyer there are really – you really do like a three level – once you’ve decided it’s hearsay you do a three-level analysis.  First is you look at Rule 801 and you see is this the kind of thing that would otherwise be hearsay but we’re gonna define it as not hearsay for reasons.  Those are called exclusions.  These are things that are, again, very, very obviously hearsay, they’re just defined as not hearsay.

Thomas:         Hmm.

Andrew:         If it’s not excluded then the question is is it a definitional hearsay but does it fall under the exceptions?  Then the exceptions, there are exceptions that apply under 803 whether the witness is available or not, or there are exceptions that apply only when the witness is unavailable.  I have to tell you, [Laughs] a witnesses prior testimony is defined as statements that are not hearsay.  It’s 801(d).

Thomas:         Oh.

Andrew:         It says “when the declarant testifies and is subject to cross-examination about a prior statement, and the statement:” which is what she’s giving on the stand now, and the statement “is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.”

Thomas:         Hmm, okay.

Andrew:         Yeah.

Thomas:         Or in deposition?  So you can always do this, then, basically.

Andrew:         [Laughs] If they are presently-

Thomas:         That’s weird.  Why did I think that you had said you can bring it up for impeachment purposes but not to just get it on the record?  I guess I remembered that wrong?

Andrew:         No no no no, you are remembering correctly because usually what you are doing with a witness where you are impeaching is you are using that prior inconsistent statement to cast doubt on the veracity of their current testimony and I don’t care about the underlying substance of what they’re testifying about.

Thomas:         Mm-hmm.

Andrew:         You’re right that if you want to get the substance in and they are presently on the stand and being cross examined and they have previously given testimony under penalty of perjury in a deposition and it is inconsistent that that falls under exclusions from hearsay, it’s not hearsay at all.

Thomas:         Oh, so you can get that in there?

Andrew:         Yeah, you can get the substantive-

Thomas:         Oh.  I guess I misunderstood.

Andrew:         No, I think this is an area where my history and practice has sort of conflicted.  Think about it this way: it depends on what you, as the trial attorney, want to focus the fact finder, either the jury or the judge, what you want to focus their attention on.  If you want to focus on the content itself then you might use this 801(d) rule.  But if what you want to say is you should impeach this witness, you should not believe anything they have to say, then you just want to use it as a prior inconsistent statement.

Thomas:         Oh.

Andrew:         You don’t want to focus on the content involved.  But you absolutely remember me telling stories, because I have done that.

Thomas:         Yeah, yeah.

Andrew:         I have impeached with deposition testimony as a prior inconsistent statement.

Thomas:         Yeah, that’s totally what I’ve remembered.

Andrew:         Yup, and that was just me telling war stories, not trying to go for-

Thomas:         Oh.  Alright.

Andrew:         -the substantive content of what the prior statement was.

Thomas:         Yeah.

Andrew:         Yeah.

Thomas:         Man, that really led me astray.  I’ll try to remember that.

Andrew:         I’m sorry!

Thomas:         The coin – no, no I don’t blame you!  The coin got me this time.  I don’t remember how many times the coin has actually gotten me.  I think the coin has agreed with me when I got it right, this might be the first time the coin won.

Andrew:         I think this is the first time the coin has gotten you.

Thomas:         Wow.

Andrew:         But because of the agreements, coin is now three for six.  So, closing up, breathin’ down your neck, Thomas.

Thomas:         Well, I lost.  The coin won.  Let’s find out which fine listener won as well.

Andrew:         Alright, Thomas.  Joining the coin as winner this week is Geoff Freeman on Twitter who writes “B!  After the witness changes their story, you need to impeach them, and then you’d want the original story regarded as evidence.”

Eh?  Not quite but, uh good enough, close enough for nonlawyer work and you got to the right answer so Geoff’s twitter handle is @ZartCosgrove, everyone give Geoff a follow on Twitter and congratulations on being this week’s winner.

Thomas:         And that’s our show!  Thanks for listening.  We’ll see you, as always, on Friday for rapid response!

[Show Outro]

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