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1. Smoke Balls, Harrier Jets, and Haunted Houses, oh my! · Dumb Defenses

• Judah: I just want this up a little higher. Frankie Hupy: Okay, and we're going. Yeah. Okay. So we have decided to do a podcast. Judah: Yeah. Well you decided and I went, Yeah, that sounds good. Frankie Hupy: So we have come up with the idea of dumb defenses, all sorts of weird law and the weird legal theories behind them. Judah: Well because we're both lawyers, I figure Frankie Hupy: And nerds and ADHD and all sorts of fun stuff. Judah: Once again, just lawyers. This if you had a Venn diagram of all that, ⁓ is it just one circle? It's it's like people who love Renaissance Fair, polyamorous people and people who are into BDSM circle. Frankie Hupy: Ha ha ha. It'd be a circle. Absolutely. Right. I I I I found myself wondering the other day whether I have just managed to surround myself with all neurospicy people or whether there's a weird ass apartheid with neuro t with neuropathical pe neurotypical people on top of it. Judah: I I don't I don't know what they're doing. ⁓ I don't think they're having as much fun as we are. Frankie Hupy: No, not at all. Judah: So do you wanna do you wanna go first or do you wanna first? Okay. Frankie Hupy: Sure, I will go first. Okay, so I kinda have a twofer for you because one got cited in the other and so needed to go over the one to make the other one make sense. So, ⁓ these are contracts, which is not super fun sounding, but it will be more fun sounding. ⁓ so the first case is Carlisle versus the Judah: Sure. Frankie Hupy: Carbolic smoke ball company from 1893. It's a law school case. It's a law school case. so you might be asking, what the fuck if is a smoke ball? I'm sending you through the backstage whisper thing a link so you can sort of see a picture of it. It's essentially a little ball, a little like rubber ball with carbolic acid in it and a little like puffer on top so you could. Judah: Wait minute, I've heard of this one. That sounds safe. Frankie Hupy: Kind of like super old school inhalers. Judah: The carbolic smoke ball was a nineteenth century health scam. Okay. Frankie Hupy: Yes. But they put their money where their mouth was. They put out an advertisement saying a hundred pound reward will be paid by the Carbol Carbolic Smoke Ball Company to any person who contracts the influenza after having used the ball three times daily for two weeks according to the printed directions supplied with each ball. One thousand pounds is deposited with the Alliance Bank shoeing our sincerity in the matter. Okay? So then Mrs. Carlisle decided. Hey, I could use a hundred pounds, which by the way, a hundred pounds in night in eighteen ninety two money is sixteen thousand four hundred and ninety-two pounds today or twenty one thousand nine hundred and seventy six dollars and eighty seven cents. So not a small amount of money. Judah: Okay, all right. Yeah, that's a significant chunk of change right there. Frankie Hupy: Okay. ⁓ so one thing that I found kind of weird just about how this was written, ⁓ in American law, at least modern American law, they're always talking about like the court says this, the court says this. All these judges wrote in the first person, and I found it really off-putting for some reason. but essentially Mrs. Carlisle used the ball for whatever it was, ⁓ three times daily for two weeks and still caught the flu. Judah: Yeah. I bet Frankie Hupy: And so she wanted her hundred bucks or a hundred pounds. Judah: I bet she was out there like licking doorknobs and influential season. She's like, I want twenty thousand dollars. I've just gotta get the flu. Frankie Hupy: Ha ha Right. So ⁓ the the court in that case determined that because that one thousand pounds was put aside to pay people who actually did the challenge, ⁓ that it wasn't mere puffery, and that essentially the advertisement was a ⁓ I dare you to type thing. And so ⁓ the advertisement clearly offered to anybody who performed the conditions, ⁓ and by performing the conditions they accepted the offer. ⁓ Ed so The the notice of accepting the offer is the doing of the thing. That's kind of how advertising generally works. Like you go to the gap to get a BOGO, like their advertising BOGO, you say, I accept the offer. Here are the pants that I want to buy, right? and so they went through this whole analysis about ⁓ time limitations and what is a reasonable time. ⁓ and There wasn't really a time limitation in the advertisement, ⁓ which then gets, of course, construed and light construed and light most favorable to the contract E. ⁓ only three possible timelines in this. It's either limited to people catching the prevailing p epidemic or any colds during that time frame, which the court kind of wrote off as they're not gonna talk about that. ⁓ it's ⁓ or it's you're warranted from catching the epidemic or other culture diseases while using the remedy if. after using it for two weeks, which is plausible, which in which case Ms. Carlisle would win, or for any person who contracts the epidemic or other disease within a reasonable time after having used the d the device, which is what the court ultimately settled on as the timeline ⁓ for people who are eligible for this reward. ⁓ looking at a reasonable time of how long it takes the germ to develop, ⁓ or a business sense, but also again landing on the plain ad the plain language of the advertisement is how they wanted to do it. Judah: So I mean like I this is taking me back to contracts because Frankie Hupy: It yeah, it should. It was a it was a case that probably everybody who's done contracts has read. Judah: Yeah. Yeah, the the mere puffery, as soon as you said that, it it brings you back because so c a contract it in legal essence is that there is some offer for some kind of consideration. And you have to manifest you have you have to accept and there's different ways to accept a contract, and in this case one of them is Frankie Hupy: Mm. Correct. Judah: just doing it just I'm a little concerned like what was in the carbolic smoke. Frankie Hupy: Just doing the thing. Yep. ⁓ It's carbolic acid. So some sort of like acidification of carbon. ⁓ Judah: But i carbolic acid is toxic. I mean this is real classic Frankie Hupy: It it is, but it's also toxic to the to the germs. Judah: Well this is this is people drinking bleach to get rid of Frankie Hupy: Yes. Yes. so in terms of in terms of consideration, ⁓ the court rejects the idea that there is no consideration for it. ⁓ and it rather they decide that the benefit to the manufacturer is the sale of the device, and then the burden on the recipient is conforming to the instructions, ⁓ and so that is sufficient, you know. A peppercorn will do, as they say. so they concluded that Miss Carlisle was entitled to her hundred pounds. Judah: ⁓ COVID. Frankie Hupy: and she gets her twenty grand and there's this great quote ⁓ that the defendants must pay her quote if they had been so unwary as to expose themselves to a great many actions, so the much the worse for them. The court essentially says, Boo on you. Judah: She gets her twenty grand. Yeah. Bummer. ⁓ sorry. ⁓ was this Spanish flu time? Frankie Hupy: Yes. Judah: ⁓ okay, well I mean good for Mrs. Carlisle. Okay, so the carbolic smoke bomb case. Frankie Hupy: Yes. So that is our background, okay? 'Cause the next 'cause the next case actually cites that. So Judah: Is this the fur coat case? No, okay. Frankie Hupy: No. Leonard v. PepsiCo Incorporated from 1999. I actually remember when this happened. Judah: Is this the guy that bought all the Pepsi Cube and tried to get the airplane? Yes, the airplane guy. Frankie Hupy: Yes. So the the court actually does a beautiful job describing the commercial, so I'm going to read their description of it because it's hilarious. Okay. The commercial opens upon an idyllic suburban morning where the chirping of birds and sundappled trees welcomes a paper boy on his morning route. As the newspaper hits the stoop of a conventional two-story house, the tattoo of a military drum introduces subtle Judah: Yeah. Frankie Hupy: The the subtitle, Monday, 758 a.m. The stirring strains of a martial air mark the appearance of a well-coiffed teenager preparing to leave for school dressed in a shirt emblazoned with the Pepsi logo, a red and white blue ball. A red, white, and blue ball. While the teenager confidently preens the military drum roll beg again sounds, and the subtitle, T-shirt, 75 Pepsi points, scrolls across the screen. Busting from his room, the teenager strides down the hallway wearing a leather jacket. A drum roll sounds again, and the subtitle, Leather Jacket, 1450 Pepsi Points, appears. The teenager opens the door of his house and, unfazed by the glare of the early morning sunshine, puts on a pair of sunglasses. The drum roll then accompanies the subtitle, Shades, 175 Pepsi Points. A voiceover, then in tones, introducing the new Pepsi Stuff Catalog, as the camera focuses the cover of the catalog. The scene then shifts to three young boys sitting in front of a high school building. The boy in the middle is intent on his Pepsi stuff catalog, while the boys on either side are drink each drinking a Pepsi. The three boys gaze in awe as an object rushing overhead as the military march bills to a crescendo. The Harrier jet is not yet visible, but the observer senses the presence of a mighty plane as the extreme winds generated by its flight create a paper mael storm. in a classroom devoted to an otherwise dull physics lesson. Finally the Harrier jet swings into view and lands by the side of the school building next to the bicycle rack. Several students run over and the velocity of the wind strips one hapless faculty member down to his underwear. While the faculty member is being deprived of his dignity, the voiceover announces, Now, more Pepsi Now, the more Pepsi you drink, the more Pepsi stuff you're gonna get. The teenager opens the cockpit of the fi Of the fighter and can be seen helmetless holding a Pepsi, looking very pleased with himself. The teenager the teenager exclaims, Sure beats the bus, and chortles. The military drumroll sounds for one final time as the following words appear: Harrier Fighter, seven million Pepsi points. A few seconds later, the following appears in a more stylized strip script. Drink Pepsi, get stuff. With that message, the music and the commercial end with a triumphant flourish. Judah: But in in this case, the court comes to a different reasoning because it's not legal for a citizen to own a Harrier jet, right? Frankie Hupy: Well, that was kind of part of it, but it was actually it was more basic than that. So essentially, what happens is this kid sees the commercial and wants to get the Harrier Jet. ⁓ there were ⁓ so the Pepsi stuff catalog had fifty-three different items, not including a Harrier Jet. ⁓ And said that additional Pepsi points could be purchased for 10 cents each, but you need at least 15 original Pepsi points for each order. So you could essentially like put in 50 Pepsi points and then pay the other, I'm not gonna do math in public, to get like the leather jacket or whatever. so the Harrier Jet was not in the ⁓ on the ⁓ order form. And so the kid wrote in one Harrier Jet in the item column and seven million in the total points column and mailed. fifteen original Pepsi points and a check for seven hundred thousand dollars seven hundred thousand and eight dollars and fifty cents with the assistance of counsel. try to get the Harrier jet. Pepsi responded. The item you have requested is not part of the Pepsi stuff collection. It is not included in the catalog or in the order form, and the only catalog merchandise can be redeemed under this program. The Harrier Jet in the Pepsi commercial is a fanciful and simply included to create a humorous ending to the ad. We apologize for any misunderstanding or confusion that you may have experienced and are enclosing a f some free product coupons for you to use. Judah: And so it like this kid sues. Frankie Hupy: This kid sues. The pla his his attorney writes back, Your letter of May 7th, 1996 is totally unacceptable. We have reviewed the videotape of the Pepsi stuff commercial, and it clearly offers a new Harrier jet for seven million Pepsi points. Our client followed your rules explicitly. This is a formal demand that you honor your commitment and make immediate arrangements to transfer a new Harrier jet to our client. If we do not receive transfer instructions within ten dis business days of the date of this letter, you will leave us no choice but to file appropriate action against Pepsi. Judah: And then they f so I mean like I if I'm recalling correctly, like this case, this kid's like, okay, a Harrier jet's worth ten million dollars. And you can purchase Pepsi points for ten cents apiece as long as you have purchased fifteen Pepsi's and you turn in like the actual Pepsi points. So the whole th the court was, if I recall, unimpressed by this clearly devised way to set up a lawsuit. Frankie Hupy: Yeah, yeah. Mm-hmm. Yeah. So, ⁓ the the letters went back and forth. Letters went all the way up to the VP of the company who is like, I find it hard to believe that you you're of the opinion that it really offers a hairi jet. Like nobody's impressed with this kid. there was some forum shopping chicanery that happened. Judah: Forum shopping for for Frankie Hupy: to try and get like the best whatever. Like it wound up in Florida at one point. Like he the kid lived in the p l kid lived in Seattle. Pepsi I think is probably headquartered in New York, ⁓ just 'cause the statute of frauds got brought up at one point. ⁓ and so like this kid is purposely filing in in districts where it doesn't belong in order to try and get the best outcome. Judah: Yeah. For my mom who's listening is trying to get the best place. Yeah. Frankie Hupy: Regardless, winds up in summary judgment, meaning that Pepsi is like, there's no issue of material fact here, and we win on the law. ⁓ Kid argues carbolic smoke ball, because well, in that in that situation, there was, you know, the offer and consideration was just part of the whole thing. the court says no. ⁓ they apply a reasonable or objective person standard, which is, you know, something we have to do in lawsuits like this, and said no objective person could reasonably have concluded that the commercial actually offered a Harrier jet, and it was an obvious joke. The court then had to explain the joke. Judah: ⁓ yeah, yeah. Yeah. I mean I I love it when they when they do that when they're like the joke is that it's it's such this big thing and it was not getting the teachers close up. and what level did this make it up to in court? Was this trial court? Okay. Frankie Hupy: I think this was just trial level. This was just the trial level, but it was a very long decision for a trial level. Judah: Y I mean you can tell when they're having a good time with it. And also when they're just trying to they know that other people are gonna read this lawsuit. But this this was a circumstance where this kid had clearly set it up to say, like, I've done the math and I think like got backers or sponsors for this lawsuit, 'cause they're like at the very worst Frankie Hupy: Mm-hmm. Mm. Mm-hmm. Judah: They're just not gonna take our money, we're not any money, and at the very best, we're gonna get the value of a Harrier jet in the millions of dollars. And it just didn't work. Frankie Hupy: Right. Yeah. Yeah. Right. And so they included a quote from E. B. White that said, humor can be dissected as a frog can, but the thing dies in the process. Which is so true. ⁓ they labeled the commercial as having zany humor. ⁓ the lettering on the screen was meant to evoke military espionage thrillers, so Pepsi stuff will inject drama into the hitherto unexceptional lives to show how exaggerated it is. They do say that this is in fact mere puffery, ⁓ as opposed to the Carlisle case. the youth in the c in the commercial is a highly improbable pilot who could barely be trusted with the keys to his parents' car, much less the Harrier jet, which is they called the prize aircraft of the United States Marine Corps. he spent his pre-flight minutes preening and flies without a helmet rather than following safety protocols. ⁓ there's a youth statement of It Sure Beats the Bus, which ⁓ they said evidences an improbably in ⁓ insociant ⁓ attitude towards a relatively difficulty in and danger of piloting a fighter plane in a residential area. Judah: So so I've actually got c it I've got a similar one. I've got a real estate contract case for you. From nine from late eighties, early nineties. So it was actually decided by the s New York Supreme Court. So this made it Frankie Hupy: ⁓ my god. Okay. Which is the trial level court. Judah: ⁓ Frankie Hupy: In New York, the Supreme Court's the trial level court, it's fucked up. Judah: It's it's like that in Washington states too. I didn't know that. ⁓ New York no, it's an appellate court case. Sorry, it made it to the Court of Appeals. Frankie Hupy: Yeah. So is it so is it the appellate court or is it the Court of Appeals which is their s which is their highest court? Judah: It is ⁓ I guess cause you know the new New York appellate division is the citation. Mid level court. So this went through trial court. I mean in and in the decision, it does reference the lower court. So I knew it had been through at least one. So like Washington has the superior court and you know, so different states do different things. All right. Frankie Hupy: New York decides to be really confusing. Okay, so it's the mid level. Yeah, what our what our ⁓ civil procedure professor would tell us is that it's the Supreme Court 'cause it has supreme jurisdiction over everything. And I'm like, Cool bro, the rest of the country thinks otherwise Judah: Yeah. That's the all right. Pi picture it. Nineteen ninety one. There is a Person shopping for a nice waterfront house in New York and goes, finds ones that he likes and says, I would like to buy this. Talks talks to the real estate agent. This is where things get interesting. The real estate agent goes back to the seller and says, This person would like to buy your house. And the seller says, I'm not going to agree to this real estate transaction unless you tell the prospective buyer that the house is haunted. Frankie Hupy: Weird, but okay. Are they actually trying to sell the house or are they just trying to like look like they're selling the house? Judah: Weird but okay. They're actually trying to sell the house. The real estate agent goes back and says, All right, well, the seller won't sign this contract unless you know that the house is haunted. And the buyer laughs it off, signs the contract, and puts down earnest money in the amount of thirty-two thousand five hundred dollars, which in today's money is worth about eighty grand. And they're all about their merry way. Then the buyer goes and talks to the seller. And after talking to the seller about the activity that was occurring in the house, the buyer immediately tries to rescind the contract and get their earnest money back. Frankie Hupy: Because the house was actually haunted. Judah: Well, according to the lower court, the house was actually haunted. But let's as a matter of law, as a matter of law, the house was haunted. The appellate opinion, I really encourage you to read, because there's some real gems. You can tell that the the Court of Appeals was having a great time. They quote Ghostbusters, couple Frankie Hupy: Like as a matter of law, the house was haunted. Judah: couple lines of Shakespeare, they have ghost references all the way through it, but let let's talk about the law of the case. So in New York at the time, it's really the the law of real estate contracting is caveat ⁓ tour, buyer beware. Frankie Hupy: Mm. Judah: But the Court of Appeals decides that the buyer can rescind the contract and get their earnest money back and does not have to follow through with the sale of the house, which is what the seller wants. So in this case, the buyer is Mr. Stamovsky and the seller is a Ms. Ackley. Ms. Ackley, prior to deciding to sell her house, has made it. Very well known to the community and even to Readers Digest that the house is haunted, that it has poltergeist activity. She talks to the local paper at least three times. Like I said, she talks to Readers Digest and she includes her home on a local house tour of haunted houses and tells stories of things moving, of her daughter being shaken awake from bed every morning, makes jokes about. not needing an alarm but is happy yeah but she's happy that the poltergeist isn't waking her up every morning and that she can sleep in. So she she's made no secret of it. Like she's advertised it. It's gone out into the community and so thinking of this first lawsuit, she ⁓ we don't know what Miss Frankie Hupy: They want to make sure they get to school on time. Judah: ⁓ Ms Ackley says to Mr Stambovsky to make him so freaked out. Because before that he had a real estate agent tell him, hey, this house is haunted. And he was like, ha ha ha. He goes and talks to her and this guy wants completely out of the entire deal. Frankie Hupy: Because now it's actually haunted. Judah: Well, we we can only guess and I like to think that she scared the absolute bejeebers out of him. ⁓ she seemed pretty content with this house. It's ⁓ an a nearly four thousand square foot waterfront house that Ms. Ackley and her husband ⁓ had bought years prior in very poor condition and had been of interest in historically like the locale for revolutionary and pre-revolutionary war maneuvering a and battles and and all k kinds of other stuff. But this guy ⁓ wants out. The lower court s the the best thing that comes out of the lower court is they say as a matter of law, the house is haunted. And they make Frankie Hupy: Imagine being the trial judge being like, Really? I have to decide. Judah: Yeah. They they make that they make that ruling cause Ms. Ackley had been so public about it. So it's like, hey, ⁓ we cannot argue that the house is haunted. But there've been a lot of other cases in New York prior to this and the laws I understand have changed quite a bit. ⁓ so Ms. Ackley appeals. And the appellate court has Frankie Hupy: She appeals because she doesn't want it to be haunted. Judah: No, she appeals because she wants to force the sale of the house to go through or to retain the earnest money. ⁓ here's I've got a couple of good quotes. While I agree with Supreme Court that the real estate broker, as agent for the seller, is under no duty to disclose to a potential buyer the phantasmal reputation of the premises and that In his pursuit of a legal remedy for fraudulent misrepresentation against the seller, plaintiff hasn't a ghost of a chance. I am nevertheless moved by the spirit of equity to allow the buyer to seek rescision of the contract sale and recovery of his down payment. A little bit further on, therefore the theoretical basis for granting relief, even under the extraordinary facts of this case, is delusive if not ephemeral. So they are really trying to to jam as many ghost references into this as possible. But what they really come down to towards the end of the case is g it kind of essentially that the this caveat ⁓ tour is Frankie Hupy: Mm-hmm. Judah: Like, hey, buyer beware, and the buyer has this tremendous responsibility to do examination. However, the best examination in the world could not have revealed that that house was haunted or the reputation of the house being haunted. And so the court Frankie Hupy: Yes. Even though she was like super public about it. Judah: To her local community, ⁓ kind of towards the end here, ⁓ in the case at Barr, Defendant Sellar deliberately fostered the public belief that her home was possessed, having undertaken to inform the public at large, to whom she has no legal relationship, about the supernatural occurrences at her property, she may be said to owe no less a duty to her contract vende. And the court kind of reasons that. she had a duty to tell and kind of reasons that the buyer could not have known that her muckraking about her own house would have made it less valuable and that he didn't know that it it had this reputation. In the summary of the case, ⁓ legal scholars are like, ⁓ this the court ruled that she had created this bad reputation for the house, making it less valuable. But that's not all the court says. At no point does does the lower court or the appellate court ever say the house is not haunted. The lower court says this c house is haunted as a matter of law, and the appellate court goes on and references that a number of times. So this is a case where two courts, the Supreme Court, which is the lower court, and the appellate court of this great state of New York determined Frankie Hupy: Mm-hmm. Judah: that a house was haunted. Now, this case got a ton of publicity and after the rescission, so the buyer gets his money back, gets to walk away from the case. He had also ⁓ sued up for false representation of his agent, but that got dismissed. Frankie Hupy: I bet. 'Cause like i they were they were pretty clear that it was haunted, like how is there a false representation? Judah: Well, like the reputation for it being haunted. The anyway, there's it's just a fun case. Here's a rare real estate case for apparently from the time where the buyer gets his money back and gets to walk away. But in the aftermath, there is a ton of publicity about this case, about how the court ruled that this house was haunted. You know, you can imagine what the papers said at the time. And this lady pretty much immediately gets twenty-five offers for her house. And Frankie Hupy: Mm. Ha ha Judah: One of them from a famous it said in the article mentalist or medium spiritualist person, she winds up selling it to a different person and moving to Florida and later dying. And after her death, her son was interviewed, where he says that now he has no doubt that his mother is haunting the house, this the supposed poltergeist house, the one in New York. So that her Frankie Hupy: The one in Florida or the That's a bit of a trip for a ghost to make. Judah: I mean, who knows ⁓ what what's happening in the astral plane. So there is ⁓ a house that has gone through a couple of famous people's hands. It was once owned by Ingrid Michelson, the singer, ⁓ that is, according to the courts of New York, is a haunted house. Frankie Hupy: That's wild. Judah: Yeah. And I thought you would enjoy Stambovsky V Ackley, which which you can read at NY app div one nine nine one if you wanted to look it up. It is it is honestly, legitimately a fun read. Frankie Hupy: Such good name, Stembovsky. Ha ha ha. That's awesome. I've got ⁓ there are some other fun quotes in the Pepsi one. ⁓ when they were trying to like, you know, dissect and therefore kill the humor of it. ⁓ traveling to school in a harrier jet is a quote exaggerated adolescent fantasy. Blowing clothes off the teacher is literally defrocking an authority figure. ⁓ he parks the jet next to a plebeian bike rack. So they also had some fun with language in this one. ⁓ no school would provide a landing space for a student's fighter jet or condone disruption of the j the or condone the disruption the jet would cause. So in terms of the price, we touched on this a little bit. ⁓ to amass seven million Pepsi points is approximately 190 Pepsi's per day for the next 100 years. Or approximately 700,000 worth of Pepsi points. The actual cost of the Harrier Jet in ninety-nine was twenty-three million dollars, which is about f almost forty-five million dollars today. So the deal was too good to be true. ⁓ The s the kid sort tries to say there's no difference between anything the jet versus anything else in the commercial. and the court's like, This is obviously absurd, no. Judah: mean there's there's that hey, obviously absurd what's the difference between a jacket and a hairi jet? I I mean who knows? I just wanted all the jet and the and Pepsi never cashed this kid's check. I think it would have been a different thing if they say like we have a Harrier jet and here it is or they cashed his check and then tried to send him, you know, fifteen hundred jackets. But Frankie Hupy: Right. Right. Right. No, they didn't. And in fact the the letter from the VP of advertisement read, I find it hard to believe that you are of the opinion that the Pepsi stuff commercial, here and after commercial, really offers a new Harrier jet. The use of the jet was clearly a joke that was meant to make the commercial more humorous and entertaining. In my opinion, no reasonable person would agree with your analysis of the commercial. Judah: And no reasonable person did, even this kid didn't knew it was unreasonable. That's why when he sent off for the jet, he already had a lawyer. Frankie Hupy: Yeah, yeah, yeah, yeah. Yep, with the assistance of council. ⁓ Yep. Judah: with the assistance of counsel. He's got some schmuck. I mean, for let let's defend the Carbolic Smoke Company though. I think today th this might be a winnable case because the ⁓ Mrs. Carlyle would have to prove that she indeed had the flu. She would have to prove that she indeed had used the product as directed for a minimum of two weeks before contracting the flu. I mean there's there's other ways they could have got her. Frankie Hupy: Right. Well, and there I mean, we've got a whole lot more technology and stuff now that we could I like back then, like, if you got the sniffles, everyone like, ⁓ my god, it's the flu ⁓ but now, you know, the entire office can come down with COVID except for my husband who wound up having flu somehow. Judah: It's the flu. When did when did Kevin get COVID? Frankie Hupy: Ner w so I think you had already left. ⁓ but in so it was twenty twenty one when Delta variant was starting to come out, like everybody but Gene and Warren at some point got sick. Judah: ⁓ I I actually recall this because I still had an active case in Douglas County that they wouldn't let me off of. So I came back to finish it when I was in Bend, got COVID when I was in Roseburg, and took it back to bed, and then people got really, really angry at me when I said I I came back to Roseburg for a few days and all I got was is was this lousy COVID and then everybody at the office got sick. So I don't know if it was that round. Frankie Hupy: It was probably that round, 'cause it was it was very, very, very c it was right after masks were like not mandated anymore. And then some schmuck who hadn't been vaccinated came to court and got everybody sick. Judah: Mm-hmm. Thinking about judges having fun in their rulings, I I hearken back to I was in law school and this was the first case I had watched since becoming a law student. So it was the winter break after your first semester of law school and I had gone back to eastern Washington and I just went to go watch some cases at Superior Court in Colfax, Washington. Frankie Hupy: Yes. Mm-hmm. Which is the trial court. Judah: which is the trial court. And I saw this fa judge who at the time was six hundred thousand years old and had been on the bench forever. And so I've watched these two people go back and forth. It's a custody modification, you know, each parent has like w wild Accusations against the other parent, and they're just going back and forth, snipe, snipe, snipe. The judge is up there, he's pretty quiet. It's ⁓ completely pro se, so there's no lawyers on either side. Yeah, so he's just ⁓ they get to the end of this, and the judge goes, Well, for this custody case, let me tell ya, if there was a third option that wasn't either of you two. Frankie Hupy: Mm-hmm. ⁓ God, I feel bad for that judge. Judah: I would give the kid to them. Howe. ⁓ however, given that you're all I've got to work with. And then goes off and gives like a very terse ruling, essentially providing 50-50 parenting time and then s and then yelling at them to behave better and sending them on their way. And I remember like so like the snipes. Frankie Hupy: It's called DHS. Yeah. Judah: were safety threats, like I wasn't drawing concerners, like, Well, this might go straight McDonalds and like Frankie Hupy: ⁓ it's like dumb shit, yeah. Judah: Yeah, dumb shit. and that was the first the first one I ever ⁓ watched. ⁓ as a as a law actually I don't even I didn't even think I'd ever seen a case before until I was in law school and I thought maybe it'd be a good idea to go watch court. Frankie Hupy: figure out what I'm getting myself into Yeah, I I don't remember what the first one I watched was, but I definitely remember like my first trial in front of Judge Garrison, who I think was gone by the time you started practicing. he did civil stuff forever and then decided to to run for judge. And so he was one who liked who wasn't quite done being a lawyer, I think. Judah: Correct. Mm. Mm. Frankie Hupy: And so like I made my closing and I sat down and he went, I'm not done with you. And I was like, I I what now? Definitely somebody who has a lot of fun from the bench. ⁓ but yeah, was not expecting that. Judah: Yeah. Excuse you? My first contested hearing was I was in Clatsup County and I made an objection that doesn't technically exist, but was adjacent to a real objection. And the judge goes, Mr. Largent, did you mean but I said yes I was I was so nervous. I was just sweating, you know, I'm not getting I I wasn't getting support from that office that I started off with. They were just awful. And I said, Yes I do. And the and the judge goes, Good, sustained. Frankie Hupy: Mm-hmm. Yes. Mm-hmm. Judah: 'Cause I was so close. Frankie Hupy: Yeah. No, well, so I ⁓ so you know how DHS the DOJ would do those document up perm hearings. And so it was in front of Marshall, not in front of at that point it would have been Zuver, I think. Anyways, it was in front of not the normal juvenile judge. And it was this c like one of those cases that I was just like hanging on by my fingernails trying to get something for my clients. And Judah: Mm-hmm. Frankie Hupy: I was I had I had ⁓ initially objected because they just dumped the documents without like telling us which ones they were and they're like, ⁓ it was all in the discovery. Yeah, the discovery was like fifteen hundred pages. ⁓ and so as I'm starting to like go through c the judges like are are you waiving authenticity? And I was like, No, no, no I am not. Judah: No, no, no, no. No. Frankie Hupy: And he was like, Sustain sustained and I was like, ⁓ shit, did I just win a permiary? Judah: Well now I mean like because he was incorrectly following the law because perm hearings have the buckets. ⁓ yeah, we should we shouldn't get into that. That's not that interesting, but that's another show. He didn't know what the law was. But I will say one on on the discovery thing, I had a client who he was very disabled veteran and he had gotten an FTA for a period of time that it turns out that he was in the hospital Frankie Hupy: That's another show. Judah: And so I Take the the package is to prove like, hey, this guy, you know, he wa he didn't really FDA, it was involuntary. And I so I send over with my client's permission this like giant stack of VA medical records. Because you know how many medical records the VA can produce. Frankie Hupy: ⁓ my god. And the fact that you even got them was like an act of Congress, so Judah: I got them directly from my client. I I remember that. So ⁓ and and like I just gave him everything down to 'cause my client was super, super anxious and I and I gave him down to my my client had given me the receipts for the f what he paid at the pharmacy ⁓ for the medication. So I sent this big dump over and it was ⁓ Frankie Hupy: Yeah, that that's the way to do it. ⁓ my god. Judah: I won't say his name because in case somebody watches this, but the DA down in Douglas County that was sh shaped like ⁓ human square. and he gets back hold of me, he's like, I can't go through all this stuff. ⁓ I need you to narrow it down and s send back just the relevant stuff. Cause he was very lazy. And then the DA's office had relabeled Frankie Hupy: ⁓ and resent it. Yeah, I remember this. Judah: And they sent it back to me. And so that's the case where I went through I took out just the scans of the receipts from the pharmacy, relabeled it, and sent it back to the DA. Frankie Hupy: Ha ha ha. Judah: But it's like, hey, and then I I had another time where a different DA I when I was like, hey judge, my client is dead. Like that's the reason he's not at this hearing. He just died. And ⁓ the DA asked for a warrant and I said, Okay, but I don't want to be there when you serve it, and I just walked out. Frankie Hupy: Ha ha ha. fact that and I we run into this, you know, up where I'm at now and it's like well, you need to prove to us that he's dead. It's like you are it's way easier for you to get something from the Emmy than for me to. Judah: Then for me to get something from the Emmy. Well, I didn't have anything the ⁓ Frankie Hupy: Like Judah: I remember talking to Eric before I went and I was like, What do I do? Like I don't have proof that he's dead, but I you know, his this person's partner called me and it was I knew he was terminal. He had a terminal illness the entire time I represented him. And ⁓ Eric's like, let him get a warrant. Just let him. Well, I mean it's up to you to try and find him. The judge wound up giving it's like, Okay, ⁓ either DA you like DA you have to investigate and then Frankie Hupy: That yeah, that tracks. Judah: We'll come back in a few weeks if you can't determine if he's dead or alive. Then the DA, you know, gets a hold of the ME and is like, ⁓ your client's dead. I was like, I know I told you he was dead. You asked for a warrant. But just like anytime anybody didn't show up, well warrant, warrant, warrant, warrant. And then yeah, I want I want them to file an FJ on a dead guy. Frankie Hupy: Ha ha ha. And then they filed FTAs. I had a client who was very ill ⁓ and was, you know, perpetually on aided assist status and because he didn't understand what was going on, he would miss court. And then he'd get an FTA. And then he'd get an FTA on the FTA. And then he and I'm like, Stop filing. Just stop. Just stop. Judah: I had a client who had pled to this, had stolen a single hostess muffin from a convenience store. Yeah, and she wound up getting she's very, very addicted to drugs, very mentally unwell, wound up getting seven different FTAs and serving a total of forty nine days in jail over a muffin. Like just walk into traffic. Frankie Hupy: ⁓ I think I remember this case. Yeah. Yep. Judah: I mean like just what's the point of this? Frankie Hupy: They need their pound of flesh. Judah: Yeah, and I I still remember how much the muffin cost. The restitution request was two dollars and like seventeen cents. And Frankie Hupy: And the amount of the the amount it costs to prosecute that person. Judah: Well thinking about that it cost them at least three hundred dollars a day to keep somebody in jail, you know, we're in tens of thousands of dollars of territory for prosecutor time, defense time, jail time, two dollar muffin. And at at a certain point like, how about this? I will civilly compromise this, I will pay for the muffin. Frankie Hupy: Right. Judah: Alright, well next time Frankie Hupy: Yeah. Next time, ⁓ what am I I started looking up for next time. I think I've got a lover's quarrel for you next time. Judah: Next next time we go to pre-Renaissance era France. It will be fun. I will see ya then and I'll have a chord for my mic. All right, bye. Frankie Hupy: Cool. See ya then. Alright. Bye.