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  • (woman screaming) (man grunting)

  • - (splutters) Oh, come on!

  • (chuckling)

  • (lighthearted jingle)

  • - Hey, Legal Eagles, D. James Stone here,

  • teaching you how to think like a lawyer.

  • Last week we covered the first half of Liar Liar.

  • Today, we're covering the second half,

  • including the entire divorce trial.

  • So let's dig in, remember to like and subscribe,

  • and be sure to comment in the form of an objection.

  • I'll either sustain or overrule it.

  • And while you're there, let me know what movie

  • or TV show I should do next

  • and stick around until the end

  • when I give Liar Liar a grade for legal realism.

  • So without further ado,

  • let's dig into the second half of Liar Liar.

  • (dramatic orchestral music)

  • That is not what courtroom bathrooms look like.

  • That is way too nice.

  • (mischievous orchestral music) (people murmuring)

  • Why are all these people in this court?

  • This is a random family divorce.

  • There's no reason all those people should be there.

  • - From March 6th through June 12th,

  • I surveilled Mrs. Cole at the behest of Mr. Cole.

  • During that period, I noted that Mr. Cole left each day

  • between 7:40 and 7:50.

  • Thereafter Mrs. Cole would frequently have a male visitor

  • arrive and stay from one to four hours.

  • - So at this point, I think Fletcher Reede,

  • Jim Carrey's character, should probably be objecting.

  • There're a couple issues here.

  • I don't know if they'd win the day,

  • but they're probably worth objecting to.

  • Number one, California has some really strong

  • invasion of privacy laws,

  • so this investigator is conceivable invading the privacy

  • of Mrs. Cole, presumably what is going on

  • in her own residence inside of her own bedroom.

  • I don't know if that creates an evidentiary burden

  • to bring this evidence in,

  • and therefore it would be unlawful

  • to bring this kind of evidence

  • into their divorce proceedings.

  • That doesn't seem like it would carry the day

  • because I'm sure that there are many instances

  • of private investigators actually taking the stand

  • and providing exactly this kind of evidence

  • in a wedding proceeding to show adultery

  • in a violation of the prenuptial agreement.

  • But as a putatively experienced trial lawyer,

  • Fletcher Reede really should be breaking up the flow

  • to prevent the private detective

  • from getting into a rhythm

  • and getting his entire story out

  • and showing all of presumably the bad evidence

  • that's about to come out.

  • - [Investigator] I was able to take several photographs

  • of the male visitor. (Fletcher gulps)

  • - [Attorney] I see.

  • - I don't know what the attorney has just done here.

  • She has handed the photographs from the witness

  • to the judge without laying the foundation that's necessary.

  • A photograph needs to have foundation laid

  • before you can bring it into court,

  • to bring it into evidence,

  • and if you don't bring it into evidence,

  • then it's as if the photograph never existed

  • because the judge can only take things into consideration

  • that actually came into evidence.

  • So she needs to lay the foundation

  • that this person took those photographs,

  • that they reflect the scene accurately

  • when he took those photographs,

  • and that they're a fair and accurate representation

  • of what actually happened.

  • So those are all evidentiary hurdles

  • that this witness must establish and overcome

  • in order for these pictures to be entered into evidence.

  • The attorney just can't pick them up

  • and then hand them over to the judge.

  • That just, it doesn't happen.

  • You slowly enter them into evidence

  • after you've laid the appropriate foundation.

  • - Your Honor, as you are aware,

  • under the terms of the prenuptial agreement,

  • if Mrs. Cole commits adultery,

  • - No. - she is entitled to nothing.

  • With your permission, we'd like to play

  • the following tape recording.

  • (playback button clicking)

  • - No, okay, so there are a lot of problems

  • with what just happened in court.

  • In order to establish that this witness

  • has the personal knowledge of what happened

  • between Mrs. Cole and her gentleman callers,

  • the lawyer has to establish that he has some reason

  • for this personal knowledge.

  • In other words, he has some basis

  • to be able to opine as to what was going on.

  • And he actually took a step back and said the wrong thing,

  • that he doesn't really have personal knowledge

  • because they kept the shades drawn.

  • So he doesn't have a visual confirmation

  • of what was going on.

  • What he does is that he heard what was going on

  • behind closed doors.

  • He was using some form of electronic surveillance

  • to hear what was going on in the bedroom.

  • Unless, of course, they were engaging in conduct so loudly

  • that he was able to hear that

  • without the aid of an electronic device.

  • But let's assume for the moment that this

  • is a fairly sophisticated private investigator

  • and he's using electronic surveillance equipment.

  • If that's the case, then he doesn't have personal knowledge

  • except for what is on this video tape.

  • Now, California not only has very strict invasion

  • of privacy laws, but California also has very strict

  • electronic surveillance laws.

  • And California is a two-party consent state,

  • which means you need to have consent

  • from all of the parties to a conversation

  • before you're allowed to electronically surveil them,

  • so you can't just pick up the phone and start recording.

  • You need to actually get consent from the other person

  • that's on the line of that telephone.

  • And electronically surveilling someone

  • in their own house might be a violation

  • of that electronic surveillance wiretapping law,

  • which I think would really preclude

  • this particular evidence.

  • So Fletcher Reede really should have objected

  • on multiple grounds right now

  • to prevent this kind of testimony from coming in.

  • It might be an invasion of privacy,

  • it might be a violation of the Electronic Surveillance Act,

  • and there's very little chance

  • that Mrs. Cole consented to this recording,

  • so those are all very good reasons, by statute,

  • that this evidence might not come in.

  • - [Samantha] Ah, do it to me. (man grunting)

  • Oh, do it to me, harder, harder.

  • (Samantha screaming) (man grunting)

  • - (splutters) Oh, come on!

  • (chuckling)

  • Okay, there's also a huge hearsay problem,

  • and I just live for good hearsay questions.

  • The tape itself is hearsay and arguably,

  • what is being said on this tape is also hearsay,

  • so there is a double hearsay problem.

  • Now, you can get over double hearsay

  • by showing an exception or an exemption at both levels,

  • but because there's hearsay in what's being said

  • and hearsay in the form of the tape,

  • you have to have an argument for both of those levels

  • before testimony like this, evidence like this can come in.

  • So let's talk about the first level of hearsay

  • in the tape itself.

  • Now, just because you have a recording

  • does not mean that it's not hearsay.

  • On the contrary, it is still an out-of-court statement,

  • a document can be hearsay, a videotape can be hearsay,

  • and an audiotape like this can definitely be hearsay.

  • So I think the easiest way

  • to get around this hearsay problem

  • is to establish from the private investigator

  • that this is business record.

  • He is essentially in the business of creating audiotapes

  • exactly like this, that he has done it many times before,

  • and then lay the elements of the business records exception,

  • that he is a custodian for this particular audiotape,

  • if not the creator of this audiotape,

  • and that it was formed in the regular course of business,

  • and just go over the different grounds

  • for the business records exception.

  • So let's assume that he's able to get over the first level

  • of hearsay in the audiotape itself.

  • I think that there is a presumption that emails

  • and actual recordings tend to be pretty reliable,

  • so courts try to bend over backwards

  • to get those kind of records in.

  • So we get to the second layer of hearsay,

  • and here's where it gets really interesting.

  • You might say that what is going on in this tape,

  • they're out-of-court statements and therefore,

  • they should be considered hearsay

  • and excludable from evidence.

  • But remember that hearsay is not just any statement.

  • It is a statement used

  • to prove the truth of the matter asserted.

  • Now, no one is using this tape for the voracity

  • of what is actually being said on the tape.

  • In other words, that her gentleman caller

  • is actually better in bed than her husband

  • or that God exists because she keeps saying,

  • oh, God, oh, God.

  • Instead, what they are doing is showing the existence

  • of the underlying acts, in other words,

  • that she committed adultery

  • and these exclamations are evidence of engaging in that act,

  • which has legal significance under the prenuptial agreement.

  • So I don't think this actually qualifies as hearsay

  • because hearsay must be a statement used

  • for the truth of the matter asserted.

  • They're not using it for the truth of the matter asserted,

  • and therefore, we don't even have to talk about

  • whether it's an exception to the hearsay rule.

  • I don't think it qualifies as hearsay in the first instance.

  • Now, that being said, I think Fletcher Reede really

  • should be objecting here

  • because he needs to break this up,

  • he needs to try to prevent this tape

  • from coming into evidence,

  • and he's just allowed the other attorney

  • to play it whenever she wants

  • and establish its credibility.

  • He might lose these hearsay objections

  • because it probably gets in under the first level

  • and it's probably not even hearsay on the second level,

  • but still, you gotta object,

  • you've got to preserve the record

  • to show that you've objected

  • so that you can make that argument on appeal,

  • and you've gotta break up the flow

  • of the direct examination.

  • Not good lawyering by Fletcher Reede here.

  • - Your Honor, I object.

  • - And why is that, Mr. Reede?

  • - Because it's devastating to my case.

  • - Overruled.

  • - Good call.

  • - Not a valid objection

  • and the judge was right to overrule it.

  • (dramatic orchestral flare)

  • - Your Honor, would the court be willing

  • to grant me a short bathroom break ?

  • - Can't it wait ?

  • - Yes, it can.

  • But I've heard that if you hold it,

  • it can damage the prostate gland,

  • making it very difficult to get an erection

  • or even become aroused.

  • - Is that true?

  • - It has to be.

  • - Well, in that case, I better take a little break myself.

  • - You know, I was going to object

  • and say that this is a conversation

  • that really should take place during a sidebar,

  • but then it occurred to me that there is no jury,

  • so there's no reason to have a sidebar.

  • A sidebar is only for when you want something

  • to be talked about outside of the presence of the jury,

  • and since there is no jury here,

  • there's no reason to have a sidebar.

  • Examinations are gonna take hours if not days,

  • especially a witness as important

  • as this private investigator.

  • You've gotta lay really, really specific foundation,

  • which they haven't done here,

  • so it wouldn't be surprising for the attorney

  • to ask for a short recess

  • before starting into their cross-examination

  • of one of the most important witnesses of the entire trial.

  • (frantic orchestral music)

  • (grunting)

  • (growling)

  • (grunting)

  • (roaring) (radiator clanging)

  • - Oh, ah, ah! (crying)

  • - What the hell are you doing?

  • - I'm kicking my ass, do you mind?

  • - Fletcher Reede is really gonna need a new suit after this.

  • If you need a new suit, check out the links

  • in the description below.

  • It's where I get all my suits and it helps out the channel.

  • - Order!

  • (people murmuring)

  • Order!

  • (gavel pounding)

  • Under the circumstances, I have no choice

  • but to recess this case until 9:00 a.m. tomorrow morning.

  • Unless, of course, you feel you can still proceed.

  • (mischievous flute music)

  • - So, in reality, if someone really had been beaten up

  • in the middle of trial, everything would stop.

  • There would basically be a manhunt going on

  • in this courthouse.

  • The judge would never just ask

  • if Fletcher Reede was ready to continue

  • because there would be police swarming all over the place,

  • maybe the SWAT team was called in.

  • There's gonna be an investigation

  • and they need to find this horrible person

  • that presumably beat the hell out of Fletcher Reede,

  • so this trial would not continue on the same day at all.

  • It would stop immediately.

  • (phone ringing)

  • (sighing)

  • - Hello?

  • - So you actually have to be really careful

  • when you bring cellphones into court.

  • Some courthouses allow it, but others,

  • like the federal courthouse in Virginia

  • that proceeded over the Manafort case,

  • don't allow any cellphones whatsoever,

  • and they don't even have cubbies or safes

  • to lock up your cellphone when you get there.

  • So if you arrive in court,

  • you're forced to get rid of your cellphone

  • or find some other place off-premises to store it.

  • God help you if your cellphone goes off

  • and the judge hears it.

  • I have seen people expelled from court

  • specifically for violating a rule like that.

  • Judges can be really, really persnickety

  • when it comes to electronic devices

  • and things going off in their courtroom,

  • so you gotta be very careful.

  • - Respondent calls

  • Kenneth Falk.

  • - I think that's right, to call them the respondent.

  • This is not a situation where you'd have

  • plaintiff and defendant.

  • I think it would be claimant and respondent,

  • which is a nice little touch

  • to get that terminology right.

  • I think that's correct.

  • - Mr. Falk. - Don't do it,

  • don't enter the well.

  • - Do you know my client, Samantha Cole?

  • - Yes.

  • - Okay, good question, establishing, open-ended.

  • Good job.

  • - Isn't it true that your relationship

  • with my client is entirely platonic?

  • I object, Your Honor!

  • - To yourself?

  • - Yeah.

  • But I would like to

  • rephrase the question.

  • - Ah.

  • - That was actually a good objection.

  • He asked a leading question of this witness

  • and if he hadn't objected, the other attorney should have

  • because you're not allowed to lead your own witness.

  • This is direct examination.

  • All your questions have to be open-ended,

  • so when he asked, isn't it true that you've never,

  • blah, blah, blah, that was improper.

  • That question implied only one answer,

  • and that's exactly what you're not allowed to do

  • on direct examination.

  • So good objection and good striking of the record.

  • - You had sex with her every time you met,

  • didn't you, didn't you?

  • Liar!

  • - He's badgering the witness.

  • - It's his witness.

  • - You slammed her!

  • You dunked her donuts! - Still can't badger

  • the witness. - You gave her dog

  • a snaussage, you stuffed her

  • like a Thanksgiving turkey!

  • (gobbling)

  • - All right, all right, it's true, okay?

  • I humped her brains out!

  • There, now you happy?

  • - No further questions.

  • (chuckling)

  • - So I probably don't need to tell you

  • that there's all kinds of things that are wrong here.

  • Number one, he's asking tons of leading questions,

  • he is badgering the witness like crazy,

  • he is asking argumentative questions.

  • Just because he has called this witness

  • doesn't mean that he is allowed to engage

  • in that kind of behavior.

  • That's totally unprofessional

  • and it's really probably a violation

  • of your duty of loyalty to your client,

  • so despite him being honest,

  • he is still breaking his ethical rules to his client.

  • So what he really needs to do is just shut up

  • and not say anything.

  • That way, he can both tell the truth

  • and also uphold his ethical obligations to his client.

  • - Uh.

  • No questions.

  • - Yeah, exactly right.

  • When you don't need to gild the lily,

  • you don't need to get anything else out of the witness,

  • you do not ask any questions,

  • you do not ask any followup.

  • You just let the record remain where it is

  • so that the other side doesn't have an opportunity

  • to have a rebuttal or to do damage control

  • of what they have already done.

  • You just let sleeping dogs lie and you move on,

  • so great job by this other attorney.

  • - Is this this a copy of your driver's license?

  • - Not allowed to enter the well like that.

  • The bailiff will tackle you.

  • - And it says here you were born in 1964.

  • But that's not true either, is it?

  • Is it!

  • - No.

  • - Will you tell me what it says here

  • on your birth certificate under date of birth?

  • - Your Honor, I object.

  • What does this have to do with anything?

  • - Overruled.

  • - None of this stuff is in evidence yet.

  • You have to add this to the evidence

  • before you're allowed to talk about it.

  • You just need to establish that a material fact

  • is more or less likely to be true

  • based on the presence of this evidence or testimony,

  • so that's a very, very low bar.

  • So in reality, if the judge didn't really know

  • where Fletcher Reede was going with this argument,

  • then what the judge would do is ask Fletcher Reede

  • to make a proffer.

  • He would not just say, I have no idea what's going to happen

  • so I'm just going to allow this evidence to come in.

  • The idea that you're gonna sandbag everyone,

  • including the judge and the other side,

  • it rarely happens in real life.

  • There's so much briefing

  • and there's so much back and forth

  • that you have an idea of what arguments

  • are going to be made ahead of time.

  • It's not just sprung on you and your client

  • like it is in this movie.

  • - And the truth shall set you free!

  • My client lied about her age!

  • She was only 17 when she got married,

  • which makes her a minor.

  • And in the great state of California,

  • no minor can enter into any legal contract

  • without parental consent, including...

  • - Prenuptial agreements.

  • - Prenuptial agreements!

  • This contract is void!

  • - Voidable. - The fact that my client

  • has been ridden more than Seattle Slew is irrelevant.

  • - Sort of. - Standard community property

  • applies, and she is entitled to half of the marital assets.

  • - Maybe. - All $11.395 million.

  • Jordan fades back, swoosh, and that's the game!

  • - That is not the game.

  • - Nothing further, Your Honor.

  • - All right, let's talk about marriage law.

  • Last time I covered this scene just in isolation.

  • I pointed out that in California,

  • a minor can enter into a contract

  • when they are still a minor,

  • that that contract becomes voidable

  • at the option of the minor,

  • who can then ratify or disclaim that contract

  • when they get to the age of majority,

  • which is the age of 18 in California.

  • So as a technical matter,

  • the contract is not void ab initio.

  • In other words, it's not void

  • from the very beginning of the contract.

  • It is voidable at the option of the minor.

  • But that is not the end of the question.

  • Now it's time to think like a lawyer.

  • (rock music)

  • So the respondent argues that the prenuptial agreement

  • is voidable and she's exercising her option to void it.

  • All right, so what does the other side say?

  • Well, this is not the end of the game,

  • this is actually the very beginning.

  • What the husband would probably argue is a couple of things.

  • Number one, a contract can be ratified without an express,

  • or in other words, the actual language of ratification.

  • You can ratify a contract by your conduct.

  • So the husband would argue that for the last 13 years,

  • this woman has been in the marriage,

  • has received all the benefits of the marriage,

  • and therefore has ratified the prenuptial agreement

  • that she entered into when she was a minor.

  • Furthermore, I think the husband would also argue

  • that the defense of fraud applies.

  • This woman, without notifying the husband

  • or fiance at that time, fraudulently stated

  • that she was of the age to enter into a marriage

  • and a marriage contract.

  • So she committed a fraud on the marriage and on the husband,

  • so he would have the burden to establish

  • that a fraud was committed and that is a defense

  • to the lack of contract formation that she's arguing.

  • I think he would be likely to win that defense,

  • that affirmative defense.

  • Now, the last time I covered this specific scene,

  • a lot of astute viewers pointed out that,

  • well, if the prenuptial agreement is void,

  • then doesn't that mean that the entire marriage is void

  • from the very beginning?

  • Because the same fraud

  • that precludes the prenuptial agreement

  • from being effective would prevent the marriage itself

  • from being effective?

  • Well, that is a very, very interesting question,

  • but that probably doesn't change the result, and here's why.

  • In California, there's no such thing as common law marriage,

  • but what there is is something called a Marvin claim.

  • You might have heard of this as palimony.

  • In other words, just because you are able to show

  • that a marriage is invalid,

  • there is still a claim to be made

  • for essentially exactly the same rights you would have

  • if you had entered into a marriage.

  • And the Marvin claim dates back to, I believe it's the '70s.

  • It's named after the actor, Lee Marvin,

  • who had a seven-year relationship with a woman

  • and they didn't get married,

  • but the court found that even in the absence of a marriage,

  • the equities required some division of assets

  • along the lines of what would be given under a marriage.

  • I think the equities in this particular case

  • show that there is something that's like a marriage

  • and in that circumstance, the marriage rules would kick in

  • and you would still need to decide

  • how those marital assets are divided up.

  • California is a community property state.

  • It is also a no-fault divorce state,

  • which means that in general,

  • it doesn't matter who has engaged in adultery.

  • Either party is allowed to exit the marriage

  • whenever they want and if there is no prenuptial agreement,

  • then community property applies

  • and there's more or less an even division of those assets

  • that exist in the marital form.

  • But to tie this all together,

  • I think all the equities go to the husband,

  • and that's something that courts really do take a look at.

  • Even if you have good arguments on either side

  • and there's no clear answer,

  • the courts will look to the equities and here,

  • the wife has committed a fraud on the marriage,

  • she's the one that committed the adultery

  • in violation of the prenuptial agreement,

  • and I think that the court

  • is likely to take all of that into consideration,

  • probably find that she has ratified the contract

  • or that the affirmative defense of fraud applies.

  • I think the husband probably wins here.

  • But if you disagree, if there are any family law lawyers

  • in the audience, let me know in the comments below.

  • I would love to continue this discussion.

  • And by the way, if this makes your head spin,

  • it's you and me both.

  • These are the kinds of gray areas that we get into

  • in the law all the time.

  • And that's why you often need to hire a lawyer

  • to handle these kinds of things

  • because it gets really, really messy.

  • - In light of this new evidence, the court must rule

  • in favor of Mrs. Cole.

  • She is hereby awarded - Yes!

  • - half the marital assets.

  • (gavel banging) - Again, the judge would never

  • just blurt out in the middle of the trial proceedings

  • that one side has won, is entitled to whatever it is

  • that they're asking for.

  • Not all the witnesses have been called,

  • the parties haven't conducted their closing arguments,

  • they haven't filed their post-trial briefs,

  • they haven't made their post-trial motions.

  • There are a million things that need to happen

  • between now and when the judge renders his final verdict,

  • including giving a tentative decision

  • and allowing the parties to talk about that final decision,

  • probably calling for another settlement conference.

  • No way would the judge ever just bang his gavel and say,

  • you win, respondent.

  • Not gonna happen.

  • - What?

  • - If I get sole custody of the kids,

  • that's another 10 grand in child support payments.

  • - You just won 11 million dollars.

  • - Hey, I'm the victim here.

  • You said it yourself.

  • And I'm gonna hit him where it hurts.

  • - But you...

  • You said he was a good father.

  • - So?

  • - Well, Mr. Reede, do we have an agreement

  • on custody or not?

  • - I think here, Fletcher Reede needs

  • to follow the wishes of his client

  • and reject the settlement offer, although this would, again,

  • happen in settlement negotiations

  • outside of right in front of the judge

  • after having handed down a verdict in this case.

  • But if he finds himself ethically unable

  • to make the argument that she wants to make,

  • then he can withdraw from counsel,

  • he can talk about irreconcilable differences

  • between him and his client and make a motion to withdraw,

  • as her first divorce attorney has already done in this case.

  • She's not in a bad spot, she can get another counselor

  • to help with this post-trial briefing

  • in this post-trial custody dispute.

  • So it wouldn't really be much prejudice to her.

  • - Why should you be any different?

  • - Bailiff, take him away.

  • - This man is a good father! - I don't think the judge

  • has the power to issue a contempt ruling

  • when court's not in session.

  • This is after the trial has happened.

  • I'm not sure he has that power.

  • - I'm Jose Canseco!

  • I'm Jose Canseco!

  • (brash orchestral music)

  • (lighthearted orchestral music)

  • - Now it's time to give Liar Liar a grade for legal realism.

  • (gavel banging)

  • Now, there's a lot going against it, unrealistic dialogue,

  • supernatural elements, totally unrealistic trial timeline.

  • But I have to admit, it was a ton of fun

  • to try and untangle this legal web

  • involving the prenup and a minor entering into a contract.

  • Good job by the writers.

  • So I give Liar Liar the benefit of the doubt

  • and I give it another B plus.

  • Not bad, good job, guys.

  • Do you agree with that grade?

  • Leave your objections in the comments below

  • and let me know what I should review next.

  • In the meantime, check out this playlist

  • that includes all of my prior reactions,

  • including Suits, Better Call Saul, and tons more.

  • So click on the playlist and I'll see you in court.

(woman screaming) (man grunting)

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本物の弁護士がリアクションするライアーライアー(後編)(離婚裁判) (Real Lawyer Reacts to Liar Liar (Part 2)(The Divorce Trial))

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    林宜悉 に公開 2021 年 01 月 14 日
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