Steve Palmer [00:00:00]:

Alright. Lawyer Talk Off The Record On The Air. They don't teach you that in law school. Got Troy right here. Troy Hendrickson, a Capital University Law student, 2nd year, halfway through.

Troy Hendrickson [00:00:11]:

Halfway through. Gotcha. Start the the 4th sorry. Yeah. 4th semester this Friday.

Steve Palmer [00:00:16]:

The 4th semester. And then the 3rd year, they bore you to death. So anyway, this is a series where we are taking on topics. They don't teach you stuff in law school topics. Then the idea is, you know, you get the basics in law school, and then we will sort of hash it out in real world, with real world considerations here at the table. And I'm gonna do something a little bit unique here. We're gonna take a topic that you've been asking me about, since we did our negligent homicide, manslaughter, etcetera, series, or discussion. And then we're gonna couple that with an answer to a question that we got from Paul over on TikTok.

Steve Palmer [00:00:49]:

And Paul's question was, if negligent homicide is killing with a car inadvertently, and the victim was an was the unborn, the law sees that child as a human. Correct? Then wouldn't abortion be negligent homicide in the least? So this is, like, taking all this to the most hotbed topic you can possibly bring up in today's society. But here's what we're not gonna do. We're not gonna talk about whether it's right or wrong to have an abortion. Alright? We're gonna we're gonna deal with this very clinically, and we're gonna leave our sort of thought on the morality of it aside one way or another. That's for you guys to figure out who am I. But what I can what I think is these are interesting topic or these these are interesting, considerations when we're kicking around, the murder definition, etcetera. And, you know, generally speaking, there's a lot going on in as of late with abortion with the US Supreme Court, reversing Roe versus Wade and the Dobbs decision and sending that, in essence, back to the states.

Steve Palmer [00:01:43]:

That'd be another interesting breakdown. And then, you know, the individual states and how they're they're sorting it out and acting on it, and then couple that with, like, the murder definitions and where we are. So, you had some questions. I guess we'll start there.

Troy Hendrickson [00:01:56]:

Yeah. So in law school, we went over abortion sorry, abortion. I guess charges on someone when somebody is pregnant. So if I were to kill a pregnant woman, in law school we were taught this is now double homicide because there's a fetus in there. Yeah. And so in my head, I kind of understand where this question from Paul is coming is, yes, like, if we're defining at that end, why is it not defined as murder when someone else does? It it kinda makes sense a little bit.

Steve Palmer [00:02:25]:

Well, this is this is no. You're right. This is, like, one of those little, what I'll call conversational hand grenades I used to throw in when people argue on abortion. I'd be like, yeah. But, you know, Ohio's murder law, for instance, says, no person shall purposely and with prior calculation design cause the death of another or termination or unlawful termination of another's pregnancy. Alright. Well, that's interesting. So, it's murder, so you get charged with 2 counts of murder generally.

Steve Palmer [00:02:48]:

If if you kill a pregnant woman, that's gonna be 2 counts of murder. And there has been I think there have been some states that had laws like this. And because of the states statewide stance on abortion, they've amended their some of their murder statutes, to eliminate that language. Now, again, I'm not going into whether you agree or not. I don't agree with it, but there's an incongruity to it. But there's a couple of things that we should point out about that statute. 1st, this is the purposeful murder. And and let me just, because our question was about negligent homicide, Ohio's got something called negligent homicide that says no person shall negligently cause the death of another or the unlawful termination of another's pregnancy by means of a deadly weapon or dangerous ordinance.

Steve Palmer [00:03:30]:

So there's a negligent homicide statute that may or may not fit. Now like anything in law, particularly criminal law, where you have statutory elements. So look at it like a checklist. So when when I defend a case and you've done this for me, we pull the jury instructions on what the jury's gonna hear. And what I'm doing is we are we are figuring out, the reverse of what the prosecutor has to prove. The jury is gonna be instructed that, this is the definition of the crime, and then we create a list. And the list in this situation would be no person shall negligently, cause the death of another, so you can say the another or the unlawful termination of another's pregnancy by means of a deadly weapon or dangerous ordinance. Alright.

Steve Palmer [00:04:13]:

Well, that's interesting. Let let's just take the the term let's take the element of the unlawful termination of another's pregnancy. You catch the language in there that counts?

Troy Hendrickson [00:04:24]:

Yeah. The unlawful part? No. No?

Steve Palmer [00:04:28]:

The unlawful terminate that which is good. You're good, but keep going. The unlawful termination of another's pregnancy. So that's not your own.

Troy Hendrickson [00:04:37]:

That's true.

Steve Palmer [00:04:37]:

That's another's. So the Ohio General Assembly has written this law. This is like look, folks. Definitions matter. And this is why and, look, I I wherever you stand on on, politically correct movement or the woke movement or whatever it is, I abhor this stuff where they start to where people start to change the definitional structure of terms because we need to define them in order to have, an understanding of what the law prohibits and what the law permits. And once you start to blur definitions into different things, then it gets very difficult, to actually apply any laws with any consistency. But there is the the the exceptions that matter are baked into the equation of these two offenses. Both say unlawful, which means it implies what? That, like, you

Troy Hendrickson [00:05:25]:

did it in a legal way. In my head, in my head, I'm thinking, like

Steve Palmer [00:05:28]:

Well, no person. So you can't cause the unlawful termination of another's pregnancy. So what they're protecting there is doctors

Troy Hendrickson [00:05:37]:

Who are doing it lawfully.

Steve Palmer [00:05:39]:

Who are doing it lawfully. Right. Yeah. Right. So that's not murder if a doctor does it. That's what they're saying. Now what about your own pregnancy? So I guess you can there's 2 protections there. Unlawful termination, meaning some other law permits it, and of another's pregnancy, which mean you're doing it to you're terminating your own pregnancy.

Steve Palmer [00:05:56]:

So in So if

Troy Hendrickson [00:05:56]:

I do a homemade abortion?

Steve Palmer [00:05:58]:

That that was probably that could be murder.

Troy Hendrickson [00:06:01]:

Okay. Because I If you

Steve Palmer [00:06:02]:

do it to somebody else.

Troy Hendrickson [00:06:03]:

And what if I So

Steve Palmer [00:06:04]:

this this is, like, back alley abortion stuff you're talking about.

Troy Hendrickson [00:06:06]:

Yeah. Yeah. That's that's what I was thinking when you said what's worth that 6. I was thinking unlawful. I was thinking, like, what if I start, you know, alleyway abortion services by Yeah.

Steve Palmer [00:06:13]:

It's unlawful. It's unlawful. And so that those the the but on yourself, that's a whole different story. Now look, I've also had cases. You know, there's a very famous case. I think it was State versus Hopper, h o p f e r, in Ohio where this there was a time when babies were sort of showing up on people's doorsteps or, like, like, young girls, sadly, would get into these depressions, and and they would terminate their own pregnancy or have the baby and, just sort of hide it or it was stillborn or whatever. Horrible stuff, you know, all the way around. And, this is a case that, you can go look it up or check it out in the highest supreme court.

Steve Palmer [00:06:49]:

But that scenario happens. That's a little bit different scenario. But, the other protection, I guess, we should go into is since Roe v Wade was reversed in Dobbs hold on. My computer blacked out here on me. Ohio has passed a constitutional amendment, And I I guess we can go we can sort of talk a little bit about what Dobbs was and what what it wasn't. So Roe v Wade basically created a constitutional right to have an abortion. And, again, you can agree or disagree with whether that was a, a good idea or not a good idea, but most scholars at the time thought, well, that's a big stretch. Because if you check out the Bill of Rights or the Constitution, it doesn't say anything about abortion anywhere, and they sort of found this penumbra of rights in the 14th amendment, due process realm.

Steve Palmer [00:07:38]:

And we're not gonna go into that, but there's some let's just say there was a there was a shaky foundation to it. Now it became precedent, and it lasted since, what, 68 was was I don't remember. I mean, 70, 70. Maybe 70. We'll have to look it up. But, at any rate, Dobbs basically said, look, it was never a constitutional right. Shouldn't have ever been a constitutional right. This isn't a federal constitutional issue.

Steve Palmer [00:08:02]:

So we, therefore, reverse Roe v Wade, and it's not like we said we send it to the states. Like, you may but that's in effect what happens. You know, it's like if the if the federal government doesn't have jurisdiction or authority over it, then in our system of justice, the states do. You know, we have, like, these independent states that, and it's it's really sort of brilliant, constitutionally, what's going on. It's like, you you know, the states get to decide what they're gonna do for the people that live there, so they're localizing this stuff. Now, again, I'm not taking a position on it. Do you agree or disagree with reversing Roe v Wade? That's up to you. We're talking about the consequences of it, though.

Steve Palmer [00:08:38]:

Mhmm. So then what happens is lots of states start to legislate on this stuff. And when by in several states, Ohio, one of them, created constitutional amendments to enshrine the right to abortion in that state. Now look

Troy Hendrickson [00:08:53]:

Ohio was really recent too. I think it was, like, last year we

Steve Palmer [00:08:55]:

talked about. Last year. Yep. Yep. And, you know, it it has some, I had it up. Here it is. It it has some let's let's take it out of the realm of abortion for a second. I hate constitutional amendments that are really just legislative acts, and let me tell you why.

Steve Palmer [00:09:12]:

In Ohio, we have something called the General Assembly, which in federal court or the US system, they call it Congress. It's 2 houses, and they pass laws. The idea of congress passing laws is you have individuals or our representatives on literally on the floor debating topics, like presenting evidence. You we have congressional hearings all the time where people are presenting facts, presenting evidence, and and only then can you come up with good public policy. The and and then you have this representative form or representative decision. Now you may not like it. Your rep may have voted the other way, but, you know, there there's, you know, there's a democracy here. And then the law is a process.

Steve Palmer [00:09:53]:

Anybody who's watched Schoolhouse Rock, I'm just a bill sitting here on Capitol Hill, it's got to go all the way up, and then the president gets to either sign it, or veto it, or in the state system, our governor DeWine either gets to sign it or veto it. Then it go if he vetoes it, it goes back, and they try again. The point is that it can change. There there's a there's a process for change. And when when the the difference being constitutionally, if you try to do that, make a legislative pass a legislative law, except really call it something else like a constitutional amendment, now you've enshrined it as a constitutional right. And the downside what what what do you think the downsides of that are?

Troy Hendrickson [00:10:36]:

The downside, I immediately am thinking, is there's difference between federal and state.

Steve Palmer [00:10:42]:

Forget about that. Let's just talk about at the state level or at the federal level. When you make something a constitutional amendment, there's some it it there's some downsides. There's some upsides to it, but there's some downsides to it.

Troy Hendrickson [00:10:55]:

I can't think of, like, what the downside would be. I mean, other than that, you're shaking up the entire judicial system. Like, we have a new law that we have to then figure out.

Steve Palmer [00:11:03]:

Okay. So here's here's my perception of the downside. Okay. We'll we'll talk sort of generally speaking. If we have a law that we don't like and Congress passed it or in Ohio, a general assembly passed it, then the remedy is the voters can vote, and they can change it. You know, they can pass a new law. They can repeal the law. They can, pass they can amend the law.

Steve Palmer [00:11:25]:

And the problem becomes or or or the the consideration is this. Let's say you take a topic like abortion that somewhat relies upon a scientific definition. So for instance, in Ohio's, constitutional amendment, it talks about, the viability of a fetus outside the womb. And, you know, that that is specifically a vague definition. Yeah. But, you know, or if you talk about something scientific that needs to happen, then you can't then go on the con congressional floor or the general assembly floor and present evidence, present testimony, give give the voters facts about the changes or the the new science or the new laws or whatever it is. So in other words, almost all of this stuff, all of the Ohio's constitutional amendment could have been done with a law. Yeah.

Steve Palmer [00:12:18]:

Right? It could have been done with a law. Now the people who are in favor of abortion, they don't like that because then it's too easy to change the law. They want a right to abortion. The people that disfavor abortion, they don't you know, they they don't they want a law because they wanna eventually get the grassroots of votes enough to repeal the law. I get it. That's the debate. But when you try to legislate through a constitutional amendment, you're enshrining, a controversial problem into a constitutional amendment that makes it very difficult to change. And then if if in its application, you run into issues, such as by when is a fee is viable, And it makes it harder to make amendments to that because now you've got to amend the constitution, not just add a section to the law or take away a section to the law.

Steve Palmer [00:13:03]:

So it's got it's got its pros and cons. And and, look, people we I've I I've debated this with folks all along, and and I this is I feel this way about almost all constitutional amendments. Right? The in in in the federal system, there's as I always say, if you want a constitutional right to abortion, there's a process for it. You can just go get you can amend the constitution and add an amendment. And, you know, people say, well, that's no good because we won't get it passed. Well, then, you didn't get it passed.

Troy Hendrickson [00:13:28]:

So you're saying that, like, your issue with it being a constitutional amendment is they've built instead of a straw house, which would be like a law, they've built a concrete house. And if you wanna if you wanna change or destroy that house, the concrete house is obviously gonna be a lot harder.

Steve Palmer [00:13:42]:

It's a lot harder to change it. Yeah. And I'm not saying even I'm not even saying repeal it. I'm just saying, like, change it or modify it even in a way that everybody would agree with. So now we're stuck. Now we've got this and it and it reads like a law, interestingly.

Troy Hendrickson [00:13:57]:

I mean, when you were saying the language and you're saying how it's vague, the other thing I'm thinking of now is, like

Steve Palmer [00:14:01]:

Well, the constitution should be vague, but go ahead.

Troy Hendrickson [00:14:04]:

And is now we then have to start building case law on it to fill this vagueness, and there's gonna be

Steve Palmer [00:14:09]:

That's correct. And that that should happen on the con on the general assembly floor. Mhmm. Cases shouldn't build shouldn't pass law. They should interpret it. Yeah. Alright. So here we go.

Steve Palmer [00:14:19]:

Every in Ohio, every individual has a right to make and carry out one's own reproductive decisions, including, but not limited to, decisions on contraception, fertility treatment, continuing one's own pregnancy, miscarriage care, and abortion. The state shall not directly or indirectly burden, penalize, prohibit, interfere with, or discriminate against either, 1, an individual's voluntary exercise of this right or, 2, a person or entity that assists an individual in exercising this right, unless the state demonstrates that it is using the least restrictive means to advance the individual's health in accordance with widely accepted and evidence based standards of care. However, abortion may be prohibited after, fetal viability, but no case may such abortion be prohibited if in the professional judgment of the pregnant patient's treating physician, it is necessary to protect the pregnant patient's life or health. And then they give us a bunch of definitions. As used in this section, fetal viability means the point in a pregnancy when the in the professional judgment of the pregnant patient's treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable means or or with reasonable measures. This is determined on a case by case basis, and then they define state. It it sounds like a statute Yeah. Except it's constitutional amendment.

Steve Palmer [00:15:38]:

And the problem with this is, you know, the the what if all the what if you have to change the definition of one of these terms, or what if you want to? Like, we're we're sort of presuming, a very specific, format here. And look, I'm not suggesting well, I I have my own position on abortion in my personal affairs. Mhmm.

Troy Hendrickson [00:15:59]:

It is

Steve Palmer [00:15:59]:

what it is. But if you wanted to make abortion lawful in Ohio, I would have suggested that you pass a law, not make a constitutional amendment, at least on an amendment like this.

Troy Hendrickson [00:16:10]:

I I I agree with you on that. I'd I mean, it's gonna be kind of exciting to see how it rolls out over the couple years and the case law coming out on it. I'd I would like to see another thing I was really learning with is the overseeing physician. Like, for all I know, it that's now we're going off a doctor's opinion, and that's gonna vary between every single doctor. It it's gonna be interesting to see.

Steve Palmer [00:16:31]:

It will be interesting to see. Right. So, look, I mean, like it or don't like it, we have a constitutional amendment in Ohio that says what this says. Now this reads like a law, like a statute that you would you would, see in the high revised code. It even has its own definitional section, which is a typical statutory type scheme. It does not read to me like a constitutional amendment. But in Ohio, there's been other areas recently where we have decided as a as a a state that we like this stuff, and we're we're sticking a bunch of stuff in the constitution. Fair enough.

Steve Palmer [00:17:03]:

I can gripe about it. I can pound the table about it, but it is what it is. We're we have it. And like you said, it'll be interesting to see how it gets interpreted. We're really and you could take this debate, folks, away from abortion. Like, I I I don't mean this to make a that'd be a pro life or pro choice debate. It just is, how do you how does the state get to it? I think you're gonna see a lot of grappling with this at the state court level now that Roe has been, reversed. And I and I suppose on on a good level, that's it's happening at the grassroots, at the grassroots level, and we'll see how this happens.

Steve Palmer [00:17:37]:

Now the other big question, along these lines is whether the the, federal government can pass a law. Can Congress pass a law that enshrines abortion, or that, allows abortion and then, apply that law to the states. We shall see. There's there's some other interesting constitutional arguments to be made there, but, we'll see what happens. This is the which is why during the presidential election, you saw these everybody asked, are you in favor of a congressional law that that says this or this about abortion? So we'll watch how that sort of unfolds. Again, I I'm fascinated by the constitutionality of the stuff or by the by the academics of it, more than the actual morality of it.

Troy Hendrickson [00:18:16]:

Can we circle back to Paul's question here? I I I got some that I thought up of.

Steve Palmer [00:18:20]:

It's kinda it

Troy Hendrickson [00:18:20]:

sounds a little eggshell skull y. So Eggshell skull rule here.

Steve Palmer [00:18:24]:

Let's go back to Paul's question. If negligent homicide is killing with a car inadvertently and the victim was the unborn, the the law sees that child as a human. Correct? Then wouldn't abortion be negligent homicide in the least? So I guess we've sort of answered Paul's question. We'll get to your follow-up in a second. But we sort of answered Paul's question, because it it it there there is a way that it is negligent homicide for Paul or for the, other car, the driver, the person charged, could be charged with the negligent homicide of the unborn child. But the woman who is is, getting an abortion for herself under the definition could not. Mhmm. And now in Ohio, we've got the constitutional law that protects it.

Troy Hendrickson [00:19:09]:

So my follow-up question on Paul is here is imagine I get in a in a rage, my ex girlfriend, I I get all mad at her and I decide to shoot her. Right? I didn't know she was pregnant. Am I still wrapped up on double homicide or am I going to because I didn't know she was pregnant? Am I gonna get hit with something less for the, like

Steve Palmer [00:19:29]:

No. Probably not. So here's the thing. It's a great question. Because in in criminal law, you've learned this in your criminal law class your 1st year. In common law times, go way back to, like, the Normans and the Norman Conquest and and the development of our western system of criminal justice. You needed 2 things. You needed the mens rea, which is, like, the mental element.

Steve Palmer [00:19:53]:

What's going on in your head. So you had to have some sort of criminal intent. Yeah. And then you needed an actus reus, which is the act. In other words, you have to have an act. In some very limited circumstance, you have a duty to act, and you didn't act. But let's just take the act. So I have to have the mental element, and then I have to have the actual physical side of it.

Steve Palmer [00:20:11]:

So the example I always gave people is that I may have even told this example. If I borrow your pen and, forget to return it, have I committed theft? Well, in modern times, we define theft as, purposely depriving another of his property without consent. I mean, I've made that up, but, generally, that's what it is. And and the element, the mens rea element or the mental element is I did it on purpose. Mhmm. And the act is I took your property. I deprived you of your property. I took it.

Steve Palmer [00:20:38]:

Mhmm. So if I did it with something less than purpose, I did it maybe accidentally, I haven't committed theft. Now if if the law said it's a negligent theft, then I did do that. Okay. But anyway, what was your now it's at let's get back to your question.

Troy Hendrickson [00:20:54]:

So I had the purpose intent. I understand I have the mens rea for why I killed her. That's right. But I don't have I don't have the purpose for killing the feast because I didn't know it was there. Is that then more like involuntary manslaughter we're thinking?

Steve Palmer [00:21:07]:

So let's look here. No person shall purposely, with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy. So the argument we would be making at trial for my client, if you were if you were charged with purposely murdering your girlfriend and you didn't know that her she was also pregnant, we would be arguing to the jury to apply that purpose to the unborn child because you didn't know. You didn't do that on purpose. You killed her on purpose maybe, but not the unborn child on purpose. As a practical matter, you're going to prison probably for life, 20 Yeah. 15 to life anyway. Yeah.

Steve Palmer [00:21:45]:

But but leave that aside. But it's a great academic question. But it doesn't the the other side is gonna be saying, look. You the act is what is purposeful.

Troy Hendrickson [00:21:57]:

Mhmm.

Steve Palmer [00:21:57]:

The act of killing is what is personable Purposeful. The causing is not. Now we're gonna say, no. The the the mental element applies to all of it. But so you could you could act in such a way. So if I if I throw my fist on knowingly and I hit you in the jaw and, you know, I it's it's the I knowingly threw my fist with the understanding of it'll have certain consequences. So there may be a defense if you didn't know your girlfriend was pregnant. But there's another let's let's take it back to the negligence.

Steve Palmer [00:22:33]:

Maybe you should have known, or maybe maybe you disregarded a known fact, and you did it sort of recklessly because she's your maybe girlfriend said, hey. Look. I'm late.

Troy Hendrickson [00:22:42]:

Okay.

Steve Palmer [00:22:43]:

So maybe you should have known. And then you'd be maybe another a lesser mental element might apply.

Troy Hendrickson [00:22:49]:

Okay.

Steve Palmer [00:22:50]:

So, like, also like, lots of legal questions, it all depends.

Troy Hendrickson [00:22:53]:

Yeah. I was thinking, like, a tort law, eggshell skull, like, in my head, too bad, too sad, too sad, like, you didn't know she was pregnant. We're still gonna slam you with it.

Steve Palmer [00:23:02]:

Great. No. It's great. So in torts so the difference between torts and criminal law. Criminal law is you you've committed a crime. You can go to prison. You can go to jail. There's a consequence, and it's the state of Ohio or the state or the Commonwealth or the people versus you.

Steve Palmer [00:23:17]:

A tort is where I sue somebody. And, look, this it took me I didn't understand this the day I entered law school. I figured it out. But I like, most people I I don't wanna say most people. I didn't quite understand what the difference was. It's similar but different. Right? It's not the plaintiff in a tort, in a civil lawsuit is you if you sue somebody. The defendant in a civil lawsuit is the person you're suing.

Steve Palmer [00:23:42]:

The plaintiff in a crime is the government, the state of Ohio, the United States government, the city of Columbus. That's the plaintiff in a criminal case. Alright. So a tort is a little bit different. It's you don't have constitutional rights, so you don't have a right to counsel if you're sued. You don't have a right to make them prove their case beyond a reasonable doubt if you're sued. The other side has a burden, and the burden is depends on what it is, but, you know, it's a little bit different. So, if you hit somebody and they sue you, the individual you hit sues you, because they happen to have a blood clot in their brain that, caused let's say, it became, incapacitated as a result, and, actually, they've got a guardian that's now suing you.

Steve Palmer [00:24:27]:

It didn't doesn't matter then that you knew or didn't know that, they had an eggshell skull because the eggshell skull is like the the sort of the vernacular you use in law school to say, right. This person was fragile. I didn't know this person was fragile. They should have just they should have been able to take that little light slap I gave them, but this individual had an eggshell skull. Or this person I hit in my car, I didn't know they were pregnant. Therefore, it shouldn't be I shouldn't be responsible for that or I should be responsible for that. It's different depending on whether you're dealing with criminal law or whether you're dealing with civil law.

Troy Hendrickson [00:24:58]:

Okay. So criminal wise, we're not we're not applying it. But on the on on the the civil lawsuit side, I'm getting hit with 2.

Steve Palmer [00:25:06]:

You're probably gonna be hit with the dam yes. You'll be hit with 2. That would go into the damage section of the tort, in all likelihood. And even on the criminal side, it's not like we're not going to, but in order to figure out if you can, it's a little bit different. You have to go check out the elements of the offense and see if they apply. And if they don't apply, then the answer is no. If they do apply, then watch out. You could be convicted of that too, assuming the state proves their case beyond a reasonable doubt.

Troy Hendrickson [00:25:29]:

Okay. Alright.

Steve Palmer [00:25:30]:

So they didn't teach any of that crap at law school. I didn't know they taught me that. I didn't even know where this is just stuff that requires, maybe this is what's great about law school, a law school education. You they give you an analytical framework to deal with issues in a nonemotional way. You know, I can look at the abortion decision and separate my morality from it one way or another. And I think and those who don't, well, they suffer. Their analysis suffers. If I, as a lawyer, get too far ingrained emotionally or personally into an issue, then I probably shouldn't be grappling with the legalities of it.

Steve Palmer [00:26:10]:

I should be able to look at it like a computer. And this is why people hate lawyers, and I always say this. I hate lawyers because because we're trained to do this. And it's like like, I I don't care about your feelings here, dude. It is what it is.

Troy Hendrickson [00:26:22]:

Shawshank Redemption calls lawyers a bunch of ball washing bastards.

Steve Palmer [00:26:25]:

A bunch of ball washing bastards. And who am I to disagree with that? But it's like, look, we are trained to deal with these things in an analytical way, not an emotional way. And when the emotion gets in the way of that, the analysis suffers. So whether it's abortion or whether it's widgets, I would treat this the same. Now it's it's not lost on me that the consequences of what we're figuring out, the consequences of the the the decisions that are being made, whether it's by the government or whether it's by the the Supreme Court, whatever it would be. I mean, it's it's it's huge. It it impacts morality, but you shouldn't analyze them with morality. I'm sure there's gonna be lots of you out there that disagree with me.

Steve Palmer [00:27:04]:

I I but that's how I look at this. I'm not I'm not unsympathetic to all this stuff outside the legal analysis. But inside the legal analysis, if we start baking into our assessment, the emotional considerations, then the outcome will suffer. And we are gonna legislate and create law that is un or or that leads to absurd applications beyond the scope of what we're trying to do. Yeah. In other words, in in logic, they used to call that reductio ad absurdum. It gets reduced to absurdity. Like, if you carry it to its extreme, it it it results in unintended consequences.

Steve Palmer [00:27:44]:

Yeah. That's why we have to be careful creating constitutional amendments or making new laws or just saying this is wrong or this is right. We have to look at the definitions. So, look, do I agree or disagree with this? Yeah. Maybe we can have that discussion. But, analytically, I can understand why this law, doesn't apply in this scenario necessarily that we're discussing. So it's not abortion. This doesn't prohibit abortion because it says unlawful termination of another's pregnancy.

Steve Palmer [00:28:10]:

Look. The definitions matter. Yeah. And I they do teach you that in law school, but they don't necessarily teach you the ramifications in the real world and how it gets applied. So look. That was a that was a great question. And, Paul, thank you for your question because it does. These are the things it it's actually a lot like law school, isn't it? Yeah.

Steve Palmer [00:28:28]:

That this, that kind of question is like, well, yeah, but what if? Mhmm. What about?

Troy Hendrickson [00:28:32]:

I will say, though, in law school, there are some people who go on the what if train for half the class, and I'm like, hey, man. We can we can paint every scenario possible. We all know it depends. Like, why are we going if you wanna go case by case, pull out pull out Lexus, pull out Westlaw. Start figure like, figure out yourself here. Like, it's I don't know. That that is one thing that bothers me in law school.

Steve Palmer [00:28:50]:

So look, law school, they used to say, it feels like somebody it feels like you showed up for the game and somebody's hiding the ball. Like, you don't even know where the ball is. You don't know what like and and really what they're saying is what you're getting at is there is no right answer often. There's sometimes the best answer, But really, the right answer is there's multiple answers, which is a simple the simple way to say that is it all depends. Mhmm. It all depends. If you define the charge this way, then this is the outcome. If you defined it this way, then that's the outcome.

Steve Palmer [00:29:18]:

It all depends. You just have to understand that. And, you know, at the end of the analysis, it never gets to a complete perfect point, but it gets you close. And then that's where the play in the joints happens.

Troy Hendrickson [00:29:29]:

I think one of the things I really noticed the 1st year last year was there was a handful of people who would take a side that this is the right side. This is the for sure side that's gonna win and the other side's completely wrong. All those people failed out or dropped out. Mhmm.

Steve Palmer [00:29:42]:

If you're looking for a right answer, you're wrong. Yeah.

Troy Hendrickson [00:29:44]:

I was like and I would always tell them, like, you understand that this case was 50 years ago. The reason we are still talking about today is because you can go either side. You can make amazing arguments on both sides. The if you're gonna shut out the complete other side, you're you're not you're not here for the right you don't understand what's going on here.

Steve Palmer [00:29:59]:

So here's the tip for you folks entering or taking law school exams, the the traditional, handwritten or you probably type them now.

Troy Hendrickson [00:30:07]:

We type them now.

Steve Palmer [00:30:08]:

Yeah. The typewritten, essay questions, the professor will give you, a factual scenario Yeah. Not unlike what we've talked about. No. And then they'll ask, can so and so be prosecuted for this? And your answer is, it all depends. And what the professor is looking for, whether he's telling you this in law school in advance or not, what they're looking for is your analysis of that. Well, side a will argue x y z. Side b will argue something else, and maybe there's a side c or a small minority that will say something totally different.

Steve Palmer [00:30:42]:

And and then, only then, can you say how you would resolve the conflict. Mhmm. And the that answer doesn't matter. No. And if it does to your professor, your professor is not doing your justice. They are they are making the mistake that I talked about, like, entering into this emotional, I think the decision should be this. So anybody who says differently, what you're getting is d. Yeah.

Steve Palmer [00:31:04]:

The the real question is, how did you get there?

Troy Hendrickson [00:31:06]:

Yeah. The if you look at the grading rubric, your essay will be a 100 points. One point of it is your conclusion. They just wanna see that you put a conclusion. Like, I think so and so should win. That's all you gotta write. All they care about 99% of it is how you argued both sides. And people really struggle with that.

Troy Hendrickson [00:31:22]:

And it just doesn't make sense to me. Like, that's the whole reason we're here.

Steve Palmer [00:31:25]:

So everybody says, like, the not everybody. There there is this idea that a lot of, like, the engineer type mind would be a great law student. It's not true. It's not true. You you have to think abstractly because engineers look for answers. And, look, it's I'm not saying engineers can't do this, but let's let's take it out of the engineer realm. I didn't mean to insult engineers because I I know quite a few. In fact, I almost was one.

Troy Hendrickson [00:31:49]:

My roommate will will have some issues with you saying. I'm sorry. Yeah. I'll let him know.

Steve Palmer [00:31:52]:

But the I I'm using I'm using as an analogy the folks who think that there's a bright line answer to these questions, and they're so sure that they're right. There's a great and and maybe even they are, but that doesn't make you a good lawyer. In fact, maybe the opposite. You have to see the other side, and you have to understand that there is no right answer. There is no perfect answer. Maybe only the best one. And sometimes the best one is only marginally better than the second best. And sometimes it's the same, and it's just your opinion.

Steve Palmer [00:32:23]:

But as long as you say that, you get an a. Yeah. It's it's really easy.

Troy Hendrickson [00:32:28]:

And people still struggle with it.

Steve Palmer [00:32:29]:

What I learned early on in law school, and for you budding young law students out there, you read how many cases a week?

Troy Hendrickson [00:32:37]:

Oh, a week? I would I would go over under, like, in in the classroom setting, like, 35, not kinda what like I do here at work.

Steve Palmer [00:32:44]:

Yeah. And then at work, you read another 35.

Troy Hendrickson [00:32:46]:

Right? Yeah.

Steve Palmer [00:32:48]:

Now you understand, like, you have you have learned the rhythm to appellate court decisions. Mhmm. They say what the facts are. They talk about the what the person's arguing. They analyze that argument from both sides, and they reach a conclusion. They say, well, look and the analysis could be as simple as, like, yeah. I get I know what he's trying to say or what this defendant or this, litigant's trying to say, but other courts and I have already decided this a 100 times over, and it really means this. Their argument is this, but the other courts have already decided this.

Steve Palmer [00:33:16]:

So therefore, we hold with the other courts, and that's that. Or if it's a new issue, then the court will simply give an analysis. The state's arguing this. The defendant's arguing this. Even though this is a case of first impression, meaning we've never heard it before, we're gonna conclude this, and, that's that. If you follow that format and you read 70 cases a week or 30 cases a week, follow that format in your exams. You'll get an a Yeah. If you recognize the issue correctly.

Steve Palmer [00:33:42]:

Yeah. So alright. Well, they don't teach you this stuff in law school. I know that because I was in law school, and you're in law school, and you say so too. Look, Paul, thank you for your question. It's a great question. I love this kind of thought provoking discussion. I think we took it in a place maybe you didn't attend, but that's okay.

Steve Palmer [00:33:56]:

Yeah. It's my podcast. Right? So, anyway, lawyer talk off the record on the air. Law school, they don't teach you that in law school edition. Each are we doing it a week? Yeah. Each and every week, at least until now.