(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.