Ben Radford: Welcome to Squaring the Strange, the podcast that examines all manner of the mysterious and the mundane through a critical lens. So let’s square the strange.
Pascual Romero: Welcome to Squaring the Strange. This is episode 17.
BR: 17 already?
PR: We’ve already made it to 17 episodes. So this week I’m really excited. I know you’re excited. We’re going to be talking to Andrew Torres from the Opening Arguments podcast. It’s one of my personal favorite podcasts, so I’m really excited to have him on. And also, I just want to make a disclaimer here. You hear me saying Andrew Torres, and I know my father would have a heart attack if he heard me pronouncing a Spanish name like that, but that’s how he pronounces it, so I’m going to honor his pronunciation for now.
BR: And I will certainly not contradict that.

0:01:15
PR: But anyway, we should just get right into it. We have another special guest. This is like a twofer for us. Our content producer, Celeste Reward, is here in the studio.

Celestia Ward: Hi, I don’t think I’m a special guest quite anymore. You guys hear enough of me already.

PR: Oh, you’re special. We’re doing a special segment, which is especially cool because it’s fun to kind of mix it up once in a while.

0:01:38
And I think that we should get right into it. Celestia, do you want to walk us into this conversation?

CW: Well, one of the reasons I’m here is because I’m kind of out nerding both of you right now. We have a topic to discuss that involves Dr. Who. And I think I’m the only Whovian in the room.
PR: That is true, yes.

CW: Yeah, I have seen you.

BR: We’re losing listeners.

CW: I know.

0:02:00
PR: Sorry. I used to watch Dr. Who a lot when I was like a kid and a teenager and they were all the old 60s reruns on PBS, but I am by no means an expert on Doctor Who. So it’s going to be nice being schooled on this one and also giving the podcast a little cred after we both just admitted that we’re not very Who savvy.

CW: This involves a couple of things I’m familiar with. It involves Doctor Who. I’ve seen every episode since they rebooted it with Christopher Eccleston. It involves people with vaginas. I own one of those. And it involves internet outrage, which is a topic of skeptical interest.
PR: Yeah, I agree. I’m constantly outraged.

CW: They recently announced that the new Doctor Who will be a lovely actress, or I guess you should call her actor. We’re calling people who are female and do acting, we’re calling them actors, Jodi Whittaker, who is getting rave reviews all around. She was in a couple of other series and she’s going to be the new Doctor Who.
0:03:04
And outrage ensued. And I don’t know about your feed, but I started noticing the outrage about the outrage before I actually saw the outrage.

BR: Yeah, hold on, let me parse that. So you saw the outrage about the outrage prior to the outrage.

CW: Yes, it was like a pre-emptive outrage.

BR: Like a precognition outrage detection.

CW: Yes. Okay. Yes. I want to make sure I got that. And that could be an artifact of my feed. I don’t really have a whole lot of bros on my feed. And did you guys notice this too on your feeds?

BR: Yes.

PR: Yeah, certainly my Facebook feed was significantly more outraged about the outrage than anything. But like I’ve said before, I make it a point to just exist in an echo chamber on social media.

0:03:52
So, and I make no apologies for that. But originally, the first place I saw the announcement was on Reddit.

CW: Oh boy.

PR: I went to the Doctor Who Reddit.

BR: There’s your problem right there.

PR: So there’s a couple different, you know, and it really depends on where you are on Reddit because the subreddits really have their own cultures.

CW: Yes, they do, yeah.

PR: And the Doctor Who subreddit, pretty cool. Seemed like people were, you know, fine with it.

0:04:13
CW: That’s because all Doctor Who fans are awesome.

PR: So I was like perfectly happy to see that. But once it made its way into the, I think it was the TV subreddit, then all of a sudden you saw just a whole bunch of garbage that fortunately most of it was totally downvoted and you know was was just being smashed on but it was like you could see where people were really trying to jump in on that.

CW: Well see and journalists have always had a reputation for picking through garbage to find stories and I think they went right to the garbage sections of Reddit yeah and the first couple articles I read like five or six articles about this the day it happened and the first article I read, it basically said, a surprisingly good reaction for the decision of making Doctor Who a woman.

0:05:01
And reading through it, I was like, this journalist is really disappointed that she doesn’t have some really juicy, angry tweets to put in here. And she did post, I believe it was a female who wrote it, she did post a bunch of tweets and they were all positive. And one of them and one or two of them were like, all you people who can’t accept this need to just go jump in a lake. And it was preemptively antagonizing people that were unhappy with the decision. And that’s what I mean by preemptive outreach. Where at least that’s how I saw it through my filter.

0:05:32
And that was the first article I read. I have since read a bunch of other articles and I hopped on a friend’s feed and said, you know, because I had a lot of friends who posted outrage about the outrage. And I posted and I was like, where exactly is all this outrage? I’ve seen articles, I’ve read through, and I’ve seen a lot of positive reactions, and I haven’t read anything negative, but people are saying there’s this negative reaction. And oddly enough, somebody who was angry at the sexist reaction addressed me as well hey you just have to go down through the comments and I’m like you don’t do that for anything there’s no there’s never a reason to go to the bottom of the comments on any online story you could be talking about blueberry pie versus cherry pie and there’s somebody down the line that is talking about f****ing a pie oh you’re gonna have to delete that. I’m so sorry.

0:06:29
PR: That’s alright. You never dig through the bottom of the comments for a headline for your story. No. That’s not…

BR: Unless that’s your angle. Unless you’re intentionally distorting what’s out there for the sake of trying to get some clicks and manufacturing outright.

CW: Yeah. Speaking of distorting, I went a little further and I dug up, you know, where would you find data on the actual numbers for how many people are pleased or upset by this decision. And it’s not like Pew is conducting any polls about Doctor Who, but I did find an article from an online source called The Conversation. It was written by Matt Hills, who’s a media and film professor, and they canvassed the Gallifrey base, which is home for the Whovian fans, and they found 80% of them were in favor of the decision to bring on a female as a doctor and Radio Times did an online poll and they found that 85 percent were in favor now any decision you make if you change the formula of Diet Coke the odds of 100 percent of people being in favor of that change you’re not gonna get a hundred percent of people in favor of any change sure sure 80 and 85 is pretty gosh darn good.

BR: Well i have a question that what was how was the the question phrase was it was it a female doctor who was that was it this actor I know.

CW: Tt was just in favor of a female okay so they really that’s what I got from article and and they’ve been and that’s that’s another thing people were framing this as the fans are in an uproar. The die-hard Doctor Who fans are not going to accept this. And I’m like, okay, I’ve watched every single episode. If you’re a die-hard fan and you didn’t see this coming, then you’re in a coma.

BR: Or you’re not a die-hard fan.

CW: They have been foreshadowing this for seasons now. And I even found a quote from Tom Baker when he left the show in 1981. When he left the show he said, I wish the next doctor, whoever he or she might be, the best of luck.

0:08:39
BR: 81?

CW: Yes, from 1981. And did you see any outrageous… was Reddit in 1981 outraged? Were they carving it on the wall? And the doctor’s nemesis, a character called the Master, who’s even been played by six male actors, they regenerated him as a female two seasons ago.

0:08:52
PR: Okay.

CW: And the response has been great. She’s fantastic. She’s delightfully, kind of ambiguously evil and she calls herself a time lady instead of a time lord. And there was even some sexual tension there, you know, with Peter Capaldi. And yeah, there was a scene where Dr. Who, Peter Capaldi’s Dr. Who, was discussing how he knew the master. And he said, well, we go way back and I think, I believe, she was my first man crush. Well, at least I think I was a man back in those days. So he was clearly indicating, look, this is a universe where Time Lords can regenerate as Time Ladies.
0:09:30
And if you can accept the whole premise of time travel, you know.

BR: That’s what you get stuck on? Really?

CW: Which became a trope. People were saying, oh, you can accept the premise of a time-traveling alien with two hearts, but you can’t change to female. So yeah, I found a logical error with the fact that people were saying die-hard fans had problems with this. Or that they were blindsided by it and they had no idea it was coming. Because it was pretty clear it was coming. And even things that have leaked from behind the scenes. They had writers talking about this. They had actors saying it would be a good idea. One of the writers, Mark Gatiss, who was actually on Sherlock as well, he’s been calling for female doctors and said it would be fantastic.

0:10:13
In February, there was a big article in Digital Spy that named the top 10 guesses for who’s gonna play the female doctor. Back in February. Tilda Swinton was among the hopefuls and I was kinda hoping to have her.

PR: Oh, wow, that would have been a cool one.

CW: Yeah, they gave her like 33 to 1 odds though because she’s always in movies and doesn’t want to go back to TV.

PR: Yeah, that’s a tough one.

CW: But who knows.

0:10:35
PR: I’m now intrigued enough that I’d like to check it out when it comes out. And I don’t doubt that the people that marketed this show definitely grabbed on to the way the internet just kind of blew up about it. A controversial move in film and television is never really a bad move.

BR: I see much of it as basically a journalistic failure. We’re talking about headlines in news stories and blogs that are intentionally misleading. reporter journalist writes that all these fans are outraged, then I mean, that’s all well and good, but you have to include quantifiers. And that’s what good journalists do, is you help your audience to distinguish, is this a minority?

0:11:25
Is this a majority? Is it more than 50%? Is it one shut-in in his mom’s basement in Topeka? Is this tens of thousands of fans? Who is saying this? And that’s one thing that just frustrates me to no end, is these journalists who make little or no effort to quantify the outrage. And a lot of it strikes me as sort of the, you know how they say, they say?

0:11:59
They say that you should wait a half hour.

CW: You realize you just said, you know how they say, they say.

BR: That was intentional. Thank you, thank you. Glad you caught that. No, but they say you should wait a half hour after eating before swimming. They say X, they say Y, and I see this as just another form of they say.

CW: Which isn’t journalism.

0:12:22
BR: Which is not journalism, no.

CW: I had this archeological mindset as I went through some of these articles and saw What I kind of think of as the troll awards. Where people on reddit especially yeah segments of reddit – Yeah, I’m gonna. I’m gonna be one of those trolls Oh, there’s gonna be there’s gonna be journalists all over the place fishing for nasty tweets about this And so you got again the guy in his mother’s basement in Topeka, there were like certain top ten sexist tweets like, “nobody wants a TARDIS full of bras” and that was one of them.

0:12:58
And you saw ones that had a certain clever turn of phrase but were also sexist rose to the top of the pile and were quoted over and over again. And I can see this happening where people were just trying to sort of get their little 15 minutes of fame by playing the troll. And yeah, and when that’s held up, when it’s given as much attention as it is, you know, just dismiss it and say, most people are really thrilled about it. I’m sure there’s a few people that aren’t convinced. But yeah, why you got to elevate them to the level of news? There’s a boogeyman aspect to this.

0:13:35
And one of my friends said something that really struck me and that she she it was one of the comment on the thread and i had said something to the effect of where are all these trolls do they really exist and one of my friends said “oh i want them to exist because I want to pummel them” and that occurred to me this is like a if the trolls don’t really exist half of us want them to exist yeah so that we can pummel them.

PR: So maybe that’s how Trump got elected.

0:14:03
CW: Yes, kind of a whipping boy slash boogeyman. You’re the boogeyman expert, Ben. Do you think there’s a phantom aspect to this?

BR: I think there is. Part of it is, as skeptics and as researchers, the source matters. Who is saying X really matters. That’s not irrelevant. If let’s say there’s a, you know, somebody comes forward and says that they have information about North Korea having an imminent attack on us. Who’s saying that? Is it a North Korean defector? Is it a 14-year-old in San Bernardino? Who is saying this?

0:14:31
And any intelligence officer, anyone in the intelligence community, or really anyone else, can tell you that who’s saying this matters and there’s an obfuscation aspect here because it really, this goes back to in my mind a failure of journalism where journalists should care. Who is it that’s getting upset about that? Is it someone who’s influential? Is it a nobody? I remember a couple years back I wrote an article for Discovery News and the title, it’s actually one of my favorite titles of all time, let’s plug it, it was titled, Who Exactly is Calling Miley Cyrus Fat? And it was an outrage because somebody had called Miley Cyrus fat. It was a outrage, right? It was this big thing and then people were coming to her defense and Miley Cyrus’s friend and it was us and it’s like well and I dug in the store and was like hold on who exactly said she was fat? I mean I know – not that I care and I mean the fact is that that like in the real world nobody cares yeah no no no one cares no nobody cares whether anyone think I mean it’s just Miley Cyrus’s weight is not relevant to anybody!

CW: What people care in in at the fact that they want to rush in and rush to her defense yes mother defend all women from objectification and body shaming. So it again the the invented bogeyman of these trolls yet calling her fat or these trolls saying you know no bras in the TARDIS it really brings like it brings people out like I’m – it’s also form of slack division yeah it’s like I can see on my computer and say, people who aren’t accepting the new Doctor Who are just sexist and they should go blah blah and get a clue. And are you really changing anything by doing that? Or was there anything to change in the first place?

BR: Well, one of the problems is it amplifies those voices, right?

0:16:45
Look, I don’t doubt that out of 460 million Americans, one or two of them think that Miley Cyrus is fat. Frankly, no one cares. Second of all, why would you single them out, have a news story on CNN, ABC News that highlights to air, it just compounds the problem. The smart thing to do is just ignore them because no one cares.

CW: Isn’t this advice we were given in grade school? Hey, Jimmy in the back is saying I eat boogers.

0:17:12
Well, just ignore him, he wants the attention.

PR: You know instead of worrying about some asshole in a basement calling Miley Cyrus fat, maybe we should worry about a world leader who is fat shaming a beauty queen, you know, regardless of of whether she is or isn’t fat, it’s just the fact that he can’t even conduct himself professionally enough to not say something.

BR: You know, it strikes me as the the old false equivalence that that that we see in journalism and also in skepticism, right? It’s it’s it’s it goes back to you know People complaining about whether whether whether like scientists should debate pseudoscientists, right? Should Bill Nye Debate Ken Ham Yeah one of the arguments which I think has some some truth to it is that by putting by putting a actual scientist on a stage on par with a creationist pseudoscientist who’s just making stuff up, you’re presenting to the public, oh look, these are equivalent ideas, these have equal evidential weight.

0:18:14
And the same thing happens in these cases where, oh look, someone is outraged about this and it gives the impression that there’s a significant number of people, whereas of course if the answer is just, well no, we think there’s a few dozen trolls, well no one cares.

CW: That’s a very good point. I had not put together the Doctor Who outreach with climate change and climate change deniers, but you make a very good point that by elevating them in the public eye for the sake of clickbait, because it makes a better headline if you’re talking about something that rankles people, it does create this illusion of something that’s not really there.

0:18:53
Or certainly not there in any measurable way. And there’s a logic problem that I saw with, and this is like my last thing I have to say about it, but there’s a logic problem there that I think people kind of realize that it’s a small, small percentage of idiots who are raising the outrage because I saw people raising two separate points that were diametrically opposed and impossible to exist together. They were trying to use the language of both the oppressed and the victorious because they were saying, oh, these men have been trying to put us down. And there’s a big there’s a big history in sci-fi and geek culture of like women getting the shaft.

0:19:36
There’s a term called being boxed or put in the fridge where the female heroine only exists so that she can get chopped up and shoved in the fridge to anger the male hero who will then seek vengeance. She’s only a plot device. There’s a long history of that. So you have this, on the one hand, people who are complaining about the outrageous tweets are saying, well, we’re being oppressed by this large segment of men, by this huge population of sci-fi writers and creators and fans, and we’re being boxed. And then in the next breath they will say, but this is gonna make the show’s ratings go high, we’re gonna get all these women into it, we’re gonna, you know, it’s gonna, it’s so, okay, if you really believe that most men are, that most of the population or a huge segment of the Doctor Who fans are outraged by this and will stop watching the show, your concern should be, oh crap this is the end of the show they’re gonna cancel it because the viewership is gonna drop by half. But nobody, nobody was concerned about that. Everybody was like, we’ll show them.

0:20:41
It’s gonna be the best rated season ever. So what are you? Are you oppressed or are you about to be super victorious? Because you can’t claim that both things are going to happen.

BR: Hey Squaring and Strange fans, word around the campfire, that is, unconfirmed rumor, is that patrons are loving their Skepticrates. Well hold on, what’s a Skepticrate, Pascual?

PR: The Skepticrate is a special bonus gift our $5 and up patrons get once per month. And what are the details of the Skepti-Krate, Celestia?

CW: The rumors are true. People are loving their Skepti-Krates. For anybody subscribing at a $5 or over level, once a month we will send out to you a Skepti-Krate. Now it’s not actually a wooden crate containing live chupacabras or anything like that.

0:21:31
We can’t quite afford that yet. But we’ll send you at least three items that have something to do with skepticism, one of our recent episodes, or something from the personal collection of one of our lovely hosts. So keep an eye out for your goodies and sign up at patreon.com.

PR: So with us today is our first guest on Squaring the Strange, Andrew Torres, the co-host of Opening Arguments, one of my very favorite podcasts.

0:22:07
How are you doing, Andrew?

Andrew Torres: I am fantastic. Thank you very much for having me on the show. May I say you have excellent taste in podcasts.

PR: Thank you.

BR: Thank you.

AT: No, seriously, thanks for having me on. This is – I’m really looking forward to it.

PR: Great, great. So real quick, you want to just tell us a little about yourself and about the podcast for those listening who haven’t heard you before.

AT: Sure So I am a I’m a practicing attorney. I was at Big firms for almost 20 years and have been out on my own for three years now I do a show called opening arguments that airs twice a week my partner is Thomas Smith of Internet Podcasting fame and basically we take stories that have a legal component that are being misreported in the news, which if they’re being reported, they’re being misreported, and break them down. And Thomas is a non-lawyer, so he stops me like mid-sentence all the time to say, no wait, you have to explain what that means in English.

0:23:18
So yeah, so we have a lot of fun and I like to think we’re doing some good. I don’t know, but.

PR: No, I really think you guys are doing a lot of good. It’s been, in fact, if anything, listening to your show has really helped me with this show in being a little more skeptical of how legal cases and how legal stories are presented because our whole theme is skepticism and I think that skepticism and law are very, well, law can’t exist without skepticism.

AT: And I just gave a talk to a skeptics group in Lehigh Valley, Pennsylvania, but one of my sort of pet causes is taking people who consider themselves skeptics, want to be skeptics, and trying to convince them that it is worth being skeptical about the law as well.

0:24:18
Because you know, there are a lot of folks out there, I mean I can go into some of the stories if you want, but you know, there are a lot of folks out there who would never fall for, you know, the bacterial flagellum is irreducibly complex or it’s all a hoax that we went to the moon, but you know all of a sudden you see a post on Occupy Democrats about how we’re going to, you know, have a petition to revote the 2016 election and you know they’re retweeting it and sharing it out with their friends and everything else. We need to be skeptical in all areas of life. And so if I can add the legal part of that, I’m happy to do that.

BR: Yeah, I think that’s really important. It occurred to me when you were talking that in many ways I think science literacy is very much like legal literacy in that you have this field that is often arcane, they use special language that the lay person doesn’t necessarily understand, there’s nuances there.

0:25:22
And when we’re trying to educate people about science issues or skeptical issues, it sounds like there’s a lot of overlap with trying to educate people about legal issues because again, there’s things that aren’t necessarily intuitive about the law, just as things aren’t necessarily intuitive about science, and yet both, you know, of course, influence and affect our culture a lot.

AT: I think that’s an excellent example. It’s actually why I brought up the bacterial flagellum, because, look, I mean, I don’t know about the two of you, but I don’t, I haven’t had a biology class in decades, right?

0:25:56
So when I see, you know, the bacterial flagellum is a molecular motor and it can only have been designed by the hand of God, right? Like, the way in which I understand that, okay, like I can read some papers and stuff, but like, by and large, the way in which I evaluate that is by looking at the consensus of mainstream science and saying, okay, like, what are 99.9 percent of microbiologists telling me about the bacterial flagellum and they say oh look like it’s this neat interlocking series of proteins but like you know there are components of it that have other right like they’re there plausible evolutionary pathways and nobody really thinks that like you know God was intervening to make bacterial flagellum except like the three guys who were paid by the Discovery Institute to say that right right so so I what I try and get people to understand is there is a general consensus in the law as well right and so but but I don’t know if it’s because so many legal things have a political component to them or you know what I mean like it’s it’s harder to extrapolate back from you know sort of a position of having a null hypothesis.

0:27:17
People are much less willing to sort of accept like, no, no, this is the overwhelming consensus of mainstream legal thought in an area where skeptics are plenty able to say, oh, yeah, no, right, we defer to the consensus of mainstream scientific thought.

PR: And that’s, you know, that’s so that’s sort of my pet cause. And that kind of brings me to sort of my first question. You’ve got cases like the very famous McDonald’s hot coffee incident right here in Albuquerque where the official story as the media reported it was very slanted in favor of people who are kind of pushing tort reform and all these ideas and concepts that people frankly didn’t understand. And is that something that, there’s some cases you can think of right off the top of your head that really, that the public just really has the complete wrong idea about?

0:28:14
AT: Yeah, almost all of them. So let’s kind of put a pin in the McDonald’s case because I’m gonna rant about that in a minute. But a really, really good recent example where our own side, and I say our own side in the sense that I’m very publicly, kind of politically left of center. I think that’s a political viewpoint that’s probably shared on the show. And so I want you to remember back to the day that President Trump promulgated the first executive order that was the so-called Muslim ban. And procedurally what happened was the ACLU went to a United States District Court and got an injunction blocking a small portion of that ban.

0:29:15
And now look, there’s a couple different legal procedures that were implicated by that, but that night, I remember that that happened at like, I think it was a Thursday, but it happened on a weeknight at like 10.30 at night, right? Because this was the first inkling I got that my job was about to become much, much more difficult. And the ACLU, which again, let’s remember, right, the ACLU is a legal services organization. Their website said Court Strikes Down Trump’s Muslim Ban. And that wasn’t true at all. And as again, as as we know from, you know, sort of the status of the law now I get that it’s a challenge to try and report what you know the intricacies of legal procedures but but that like that headline wasn’t correct. No court I mean to date no court has ruled on the merits, you know, the underlying legality of Trump’s now, you know, second revised executive order. What there have been are fights about whether that can go into effect while the legality is being litigated, right? Because usually what happens with a case is, you know, what happens with legislation is the legislation goes into effect. You can challenge it as being, you know, violating constitutional rights or what, you know, not being being outside the authority of the legislature, whatever, you know, there are various mechanisms that you can use to challenge legislation. But the typical way it works is the law goes into effect first and then you bring your challenge and try and get it reversed. And what the ACLU was able to do was they were able to get a temporary restraining order blocking the executive order from going into effect, blocking a portion of it from going into effect. And like that matter… And so it matters whether you’ve said a court has determined with finality that this executive order violates the Constitution, or you’ve said, a court has ruled that on balance, the harm of letting this law go into effect while we determine whether it’s constitutional or not, right?

0:31:51
Like, those are two really, really different questions. And so, you know, that’s, that’s part of what we try and do on the show is, is, you know, parse that language so that people understand kind of exactly what’s happening. Now, the McDonald’s case, right? Why did the McDonald’s case happen the way it did? It happened the way it did because plaintiff’s trial lawyers and I should add, despite the fact that I’m a Democrat, right, I am a, I am principally a business lawyer and I typically work on the defense side of things, right? So I am not a plaintiff’s lawyer.

0:32:28
I don’t take cases on contingency. But the plaintiff’s bar is a political contributor to democratic causes. And so as a result of that, the Republicans have a political incentive to try and marginalize the plaintiff’s bar as much as possible. And that’s what tort reform is all about. And they picked the McDonald’s case because they thought that they could take certain elements of that case and litigate it in the court of public opinion and really embarrass plaintiff’s travelers. And they successfully did so. So it’s such that almost everything that anyone has ever said about that case up until recently is just complete nonsense and, you know, we went into it on the show, you’ve talked about it before.

0:33:18
So, you know, it’s probably not worth going into the substance. But like, I remain stunned by the number of sort of ordinary, you know, kind of working class folks who were like, you know, you go into McDonald’s and you spill coffee on yourself and you hit the jackpot. And, you know, they turn around and I say you do understand you are defending a multi-billion dollar corporation here that deliberately kept its coffee outside of the parameters that its own internal recommendations said it should be kept right like in other words How do you deter the only way you can deter a multi-billion dollar corporation from doing something is by making it pay money.

0:34:06
Despite what Mitt Romney has to say, corporations aren’t people. You can’t shame them, you can’t humiliate them, you can’t beg them to do stuff. They are profit centers and the only thing you can do is hit them in the profits. This dynamic where people identify with the billion-dollar corporation over the injured individual is just not something I understand.

BR: Well, part of it of course is that in the public’s mind that’s not what’s going on. In the public’s mind they are identifying with the underdog. You know, they’re like, hey…

0:34:43

AT: That scrappy underdog McDonald’s that’s trying to sell, you know, crappy coffee at octuple the Markup. I have a little bit of a sports law practice, and so I have some professional baseball players who are clients of mine as well. And this dynamic manifests itself whenever there is a labor stoppage in professional sports as well. and you get like, you know, the average Joe Six-Pack being like, those greedy players, I don’t understand, I would go play a game for money, and like, why are they doing it? And again, it’s the same dynamic where I pull people aside and I’m like, you do understand when you side against the players, you are siding with billionaire team owners who are trying to shave off their costs right and then I usually get a little bit of the like how have you thought about that but like you know it there’s this I don’t understand the psychological aspect of it but there’s this kind of like people feel like people in their shoes are kind of hitting an unjust lottery or something.

0:36:02
I don’t, again, if I fully understood it, I would at least know how to tackle it, but I don’t.

BR: You know, that reminds me of another question I was going to ask, which is about the gulf between the public’s perception, and you already sort of touched on this, but for example, there was a case a couple of months back, and I think it was a police officer involved shooting and the the officer it ended in a hung jury and I saw all this all this outrage in social media which is of course the purposes of social media is to be outraged and it was this like oh he got away with it you know and it was this big thing and it was it was all the narrative was clearly that the fact that 12 jurors couldn’t come to a unanimous decision to these people, it signified that America doesn’t care about these shootings.

0:37:02
And I was like, I don’t think that’s accurate. I think that it’s a bit more nuanced than that.

AT: Well, so a couple of things. Number one, a lot of juries in a lot of states no longer have a unanimity requirement, right? So many states will take a 9-3, 10-2 split jury and still, you know, they will go with the majority. So the sort of the 12 angry men days are over. U.S. v. Allen, that has led to a set, a pattern instruction that is called an Allen charge. And basically like as a jury remains deadlocked, typically it’s the prosecution that demands an Allen charge, will request that the judge read the form of this instruction that was approved in the Allen case.

0:38:03
And it basically, like, encourages the jurors who are holding out, who are in the minority, to reach a consensus, right? And it says, you know, you may have strong feelings about this, but, you know, we encourage you to, you know, listen to all of the evidence and take into account the deliberations of your fellow jurors and reach a result. And so it’s, you know, it’s designed to move people off the dime. And that is just sort of one of many tools that are available to kind of push jurors, push juries to reach verdicts rather than having hung juries result in mistrials. I should add parenthetically that like it’s weird how mistrials are covered in the press, right? Like some, particularly some movies and TV shows, sort of cover a mistrial like it’s an acquittal. It’s not, right? Like when you have a mistrial that is, you know, as we say on the show, like that’s a bad court thingy.

0:39:15
It undoes the process. And so right. So it doesn’t implicate double jeopardy, right? Like you can when when when a trial ends in a mistrial, if you are, you know, charged with secondary second degree murder and that case, that trial ends in a mistrial, you can then be charged with, you know, that that charge is still pending, you can be tried, and in many cases you are tried again. And so, you know, the idea that a mistrial means an acquittal is, I think, kind of a massive misconception. Now look, the longer it takes to go to a verdict, the harder it becomes to prosecute that case, right? Because evidence degrades, witnesses die, and you know, so there is some implication when you’re talking about a mistrial, but it does not automatically mean an acquittal, and oftentimes in the press, in public portrayals, it’s portrayed that way.

0:40:29
That’s a little weird. So I realize that wandered a little far afield. I try and stay away – I will say this, and I want to kind of repeat this story. One of the questions that I get a lot on opening arguments is I get questions about your legal rights when you are stopped by the police. And I have a policy of not answering those questions. And I don’t answer it for two reasons, right? The first is I’m not a criminal lawyer, but I answer other criminal law questions and stuff like that, you know, because I educate myself and I’m, you know, I’ve got a background and I, you know, I can make myself informed on some criminal issues, but the main reason that I don’t answer that question is because I never want to be in a position where I have described kind of technically what your rights are from a textbook perspective, and to have somebody left, to have a person’s estate trying to enforce those rights against the state because there’s been, the police have shot somebody.

0:41:50
So for example, I can tell you what your rights are to resist a search and seizure when you have been pulled over at a traffic stop, okay? But I’m not gonna do that because the reality is the difference between being an upper class white person who is pulled over at a traffic stop and being a young African American male who’s pulled over at a traffic stop is a world of difference that that you were and it it it does you very little good to say you have the right to refuse if the police officer has pulled his gun on you and you can see his fingers shaking right and that and that is I mean in my view that that that’s a massive problem I love I’ve told this story on on other podcasts but somebody who was a real mentor to me is a judge on the Fourth Circuit.

0:42:52
His name is Andre M. Davis. And he’s about 70 years old now. He was in the Maryland State Court system. He was a circuit court judge and he was on our intermediate appellate court, which is the Court of Special Appeals. Then he was appointed to the U.S. District Court for the District of Maryland, then elevated to the Fourth Circuit by Barack Obama. And he gave a speech before a group where I was on the board, and we had brought him in to talk to us.
0:43:26
And he described how, as an African-American in his late sixties, driving a luxury automobile, serving as a sitting judge, dressed seven days a week in a suit. You know, he put up a show of hands. He said, how often do you think I get pulled over when I’m driving down the road? And the answer was, more often than once a week.

0:43:55
And it was just, I mean, this was this speech and I, you know, I lack the ability to deliver it the way Judge Davis did. I mean this this there were folks in tears right and nobody was unmoved or nobody was not misty-eyed about it. It you know and the lesson was right you cannot be a more respected pillar of the community than Judge Davis and yet he faced treatment that you know you can’t understand if you’re white. So, I passed that on, but that really stuck with me. And so, I try and be aware of that privilege that I have when I’m answering those kind of questions. Definitely.

0:44:41
BR: I think it also just goes to the, of course, different people’s experiences, right? And so you have, you know, just as you said, one person’s experience as a white male lawyer is going to be different than a lot of others, even if other conditions are the same. And so it’s one thing that strikes me about the, again, the gulf of perceptions is when you have, say with acquittals you have the public getting outraged over a verdict and they sort of assume that they know more about the evidence that was presented than 12 people that were sequestered for three weeks spending eight hours a day over all these details and somehow they assume that whatever tidbits they glean from social media, well that’s all they need to know.

0:45:38
Clearly X is like, you weren’t there. You don’t know.

AT: Well, and, and, and let’s point to something that exacerbates that, right? Which is, there are a number of rules of evidence that exclude evidence from the jury, right? Like so, and the most common is the exclusionary rule, right? Like if the police conduct an illegal search and none of the exceptions apply, then like, you know, the fact that they’ve kicked in your door without a warrant and they find the bloody knife, you know, on your floor, like they can’t introduce that piece of evidence. And so, and then, and relatedly, I’ve talked about this on the show sometimes, there may be evidence that is somewhat probative, but if it is far more prejudicial than it is probative, then the courts will keep it out. So you might have a situation where that level of evidence is in fact selectively revealed in the media, but not conveyed to the jury.

0:46:41
And so I think that reinforces the problem that you know they they had the bloody knife right right and so you know it trying to figure that out very few people ask the next question which is why wasn’t the jury told about the bloody knife and you know one of the points I like to make is that there are very few instances in the law where something happens and when you ask why there isn’t a good answer for it. There are a couple, right? Like when I ask, you know, why is it that like the physical description of where a piece of property lies takes precedence over the laser instrument of a surveyor, the answer is because property law was affixed in the 13th century in Saxony and screw you. And that’s unbelievably stupid, but like property law, like real property law is a really tiny area.

0:47:53
And the number of times when the answer is, you know, because the 13th century Anglos felt this way, like is really, really low. People tend to think it’s much higher than it is.

BR: Right, right. That brings me to a question I have, which is, you know, how is the legal profession addressing the fact that in a lot of cases, particularly torts for example, only rich people can afford justice. I mean, you have a system set up and that, you know, it’s going to cost somebody, let’s say you’ve been wronged for some reason, and you go to a lawyer and the lawyer says this is going to cost you a hundred thousand dollars to sue this person.

0:48:34
It’s not the lawyers fault but just because the legal process is expensive it does tend, as I’m sure you agree, to exclude people who can’t afford it. What do you think about that?

AT: The answer to the question how does the legal system deal with that, is really, really, really, really badly. And so I’m gonna tell you two things here. So the first is, leave aside, and again, take this for whatever it’s worth, right?

0:49:05
I’m a lefty guy, so, you know, maybe tort reform is the answer, make America great again, go Trump, whatever. Forget tort reform. The reason why our courts are clogged right now is 100% the fault of gigantic transnational company A sues gigantic transnational company B. And both sides have multiple lawyers, multiple law firms, multiple partners brought in. I know because I did this stuff for almost 20 years, right? And so when I was at Covington & Burling, a hundred of the Fortune 500 companies used Covington & Burling as their law firm, right? And so I represented Microsoft, I represented Exxon in the Exxon Mobil merger, so now ExxonMobil, right? Like I represented Truly, I represented Bacardi, which is now Diageo, which is the largest beverage manufacturer worldwide, right?

0:50:13
Like these not just billion-dollar corporations, but multi-billion-dollar publicly traded corporations where the amount of wealth there is, you know, exceeds nations, right? When I went from Covington to Zuckerman Spader, my clients went down from, you know, Bacardi and Coca-Cola and Exxon and Microsoft to merely billion-dollar corporations. I represented for over a dozen years a run-off entity for Lloyd’s of London, right, the insurance market. And again, you know, doing these huge, you know, ten-figure cases. And that’s… what’s clogging up our legal system is not plaintiffs’ lawsuits, with one exception that I’m about to talk about in a minute. But what’s clogging up our legal system is when Microsoft sues Google, both sides lawyer up, everybody litigates every aspect of that down to the tiniest decimal point. And the reason is because they’re probably suing over a billion dollars and so if you have to pay your lawyers ten million dollars to do so, like that’s a hugely profitable proposition. And those cases can take the better part of a decade, right? They take forever because there’s no, you give up no opportunity to gain an advantage, you litigate literally every aspect of it, because again there’s a billion dollars at stake, so of course you do, right? And that’s where our judicial resources are going these days.

0:52:04
And nobody left or right, because it doesn’t quite align, is really telling that story that like, you know, that’s sort of the market inefficiency. So that’s kind of answer number one. The answer number two is we have a system in the United States that is both sides pay for their legal costs by and large right. The European model is largely a loser-pays model but I want to tell you a story about how applying just the loser-pays model can create kind of weird incentives that have their own problems. So we have no problem, you articulated very, very well the problem with everybody pays their own lawyer.

0:52:58
And the problem with everybody pays their own lawyer is lots of people can’t afford to pay their own lawyers, especially really good lawyers, cost a lot of money. And so you’re kind of left with contingency cases and the disequities that come into that. There are lots of problems with everybody pays their own lawyer, but there are problems with loser pays as well. One example of that is, I did a two-parter of this on opening arguments, I don’t know if you heard it, but it was on the Federal Fair Labor Standards Act, the federal statute that requires you to pay minimum wage and overtime. And the FLSA has a couple of provisions in it. Number one, they have a provision that basically imposes double the actual damages at trial. And number two, and far more importantly, if you win even a dollar at trial, you get the plaintiff, but it’s not a strict loser pays. It is just if the plaintiff prevails at trial, they get all of their attorney’s fees.

0:54:04
And because of rules that I can’t fully sort of go into, it would be a huge rabbit trail – you can’t argue at trial, hey, imposing it, you know, if you award even a dollar to the plaintiff, you are really giving them $100,001 because you’ll be paying their attorney’s fees. Like you are prohibited from making that argument at trial, right? And so the dynamic that happens is a dynamic like this, and this is a real case I had with a real client that runs a sushi restaurant, right? And he’d hired a dishwasher and paid the dishwasher a flat fee for washing dishes every week that amounted to between $10 and $12 an hour, which is a pretty decent salary for a dishwasher. And then the dishwasher was recruited by a very, very aggressive plaintiff’s FLSA firm to say, hey, did you ever work any overtime? And they went through and presented a claim.

0:55:11
And the way in which they presented the claim to us, and I’m changing the numbers a little bit but they basically said so based on my clients testimony he’s worked ten thousand dollars worth of potential overtime hours and again I would say that’s the you know – encouraged to get the bottom line number but but whatever let’s say that was correct so we’ll settle this case for $20,000. And in any normal universe, you’d be like, if your damage is $10,000, and you’re like, maybe you should start at $5,000, that’s what it means to compromise. They’re like, no, we’re going to start at $20,000. We’ll settle for $30,000. And the reason is because you’re going to file a piece of paper and we’re going to have to respond to it and we’re going to incur another $10,000 worth of legal fees. And as this case developed, the weaknesses of their case came out, right?

0:56:22
So their client was here illegally, and my guy was not the like bad actor of hiring illegals in the kitchen to wash the dishes, right? He required him to fill out an I-9 and this guy faked the papers and defrauded my employer and subjected him to potential liability. It was as one side of the scenario as you could possibly imagine. And there were no records and everything. And so we got to the end of discovery, and they were looking at their case, and the other side’s lawyers looked at me and said, You know, we understand our case is really, really bad, and we’re not really likely to get a lot out of this.

0:57:09
But you’ve got to put some money on the table here because we’re going to go to trial and if you think that a jury in Baltimore City is going to return a verdict for the defense of zero dollars, that we’re not going to be able to get them to believe, come on, he had to have worked at least one weekend off the clock, that of course the jury’s going to be like, why don’t we give this guy 500 bucks? Why don’t we give this guy a thousand bucks? And you’ve made us spend $70,000 to get to this point. So that’s where we are and you’ve got to put some money on the table. And eventually, you know, my client, and I talked to him about it and I had to say to my client, we have a great case.

0:57:58
I would love to try this case for you, if you want me to tell you on the basis of this great case, do we have a 100% chance of getting a verdict for the defense that you owe zero, I can’t tell you that. Because a jury very well may say, oh, come on, this guy’s rich, he owns a sushi restaurant, let’s give the poor dishwasher a couple hundred bucks. And the jury doesn’t realize by giving the dishwasher a couple hundred bucks, they’re giving $70,000 plus the cost of the trial. So that would be $125,000 and $500. And so my guy felt like he was being extorted. We settled for what I feel was a very, very small number. I’ve kept it secret. I mean, I can tell you it was on the close order of like $9,000 or $10,000. But my guy felt like he was being extorted, that his teeth were kicked in to give that $9,000.

0:59:00
And they were. That was the pitch. But I had to tell him, like, dude, if we can get him to go away for $9,000, let’s give him the $9,000. Because I don’t want you to face a verdict of a hundred and twenty five thousand dollars even if it’s even if it’s like that would be catastrophic that would put you out of business and you know so realize kind of a long story with respect to that hope that was fairly I hope there’s interesting notwithstanding but but that’s an example of how having the loser pays model can cause different kinds of inequities in the system.

0:59:37
So, you know, that is a super long-winded way of saying, I’m not sure entirely how to fix it.

BR: No, I found that fascinating. I appreciate that. I had no idea the nuances there.

CW: Hey Squares and hey strangers, Celestia here with another Skeptical Fortune Cookie. Let’s crack this one open. To think is to differ. This comes to us from Clarence Darrow, one of the most famous American trial lawyers, and it’s from his most famous case, one that H.L. Mencken nicknamed the Scopes Monkey Trial.

1:00:27
In 1925, schoolteacher John T. Scopes was arrested in Dayton, Tennessee for corrupting young minds with the ideas of evolution. Hearing that William Jennings Bryan had volunteered to prosecute and knowing that public opinion was strongly against Scopes, Darrow donated his services as defense attorney. This statement, to think is to differ, encapsulates his free-thinking approach to many things, including education and evolution. It’s a skeptical approach, one that encourages differing viewpoints and abhors censorship or condemnation of ideas. Clarence grew up the fifth child of eight in an actively abolitionist home that served as an underground railroad station. His father had graduated from theological seminary but lost his faith and refused to preach afterwards.

1:01:16
And though the Darrow children were still taken to church every Sunday, the family was scorned in the community for holding Atheistic views. In his early career, Clarence Darrow worked his way up to general attorney for the Chicago and Northwestern Railroad, but eventually resigned that corporate position and became involved in labor movements and representing high-profile defendants, including railroad labor organizer Eugene Debs, William “Big Bill” Haywood, the McNamara brothers, and thrill killers Leopold and Loeb. In the Ossian Sweet murder case, he successfully argued that black homeowners had the same right to protect their property as did white homeowners. His most famous case remains the Scopes Monkey Trial, which resulted in a conviction and a $100 fine for Scopes, a ruling that was eventually overturned by the state Supreme Court, with Darrow receiving a long ovation after his closing argument.

1:02:09
His legacy as a free thinker, orator, and advocate for civil liberties has been celebrated for generations, and many immediately picture Spencer Tracy’s performance in Inherit the Wind when they think of Darrow. His life has also been portrayed on stage by Kevin Spacey in a recent one-man show that opened off Broadway, and in Los Angeles, the great Tennessee Monkey Trial starred John De Lancie as Clarence Darrow, opposite Ed Asner playing his nemesis, William Jennings Bryan. Just last month, in July of 2017, some 92 years after the Scopes Monkey Trial, a crowd dressed in period clothing gathered in Dayton, Tennessee, to celebrate the unveiling of a new statue of Clarence Darrow by Pennsylvania sculptor and active humanist Zenos Frudakis. It now stands opposite the statue of Brian that was erected there in 2005. Now let’s get you back to Ben and Pascual.

1:03:02
BR: That made me think about the crossover between skepticism and law. For example, the legal professional obligation in some cases of a lawyer to sow doubt, particularly I’m thinking with defense attorneys. We certainly see this with skepticism where the question comes up, well, isn’t it possible? And we hear this all the time, well, isn’t it possible that aliens built the pyramids? Isn’t it possible that Bigfoot’s out there but just happens to vanish whenever they’re about to die or get hit, things like that. Isn’t it possible that homeopathy works despite violating laws of physics? And then that sort of takes me to a lot of legal cases where I’ve seen where the defense lawyer’s job is to say, okay, fine, maybe you found my client dripping in the victim’s blood, but isn’t it possible that someone made a mistake?

1:04:07
And so how do you sort of deal with that?

AT: Yeah, so and again, not a criminal lawyer so this is you know reading plus friends who are prosecutors friends who are defense attorneys kind of putting it all together but subject to that disclaimer one of the things that’s really really interesting I did a show on this is there is no fixed definition of what constitutes reasonable doubt. You can’t find it. You can find cases that in which the Supreme Court has said you can’t say reasonable doubt is X, Y, or Z. And most lawyers, right, like when when you’re in law school, they will describe the various burdens. So in a civil case, the burden is preponderance of the evidence. So that is 50.1 excuse me to 49.9 there was an intermediate standard for when you’re talking typically comes up in administrative hearings which is clear and convincing evidence and that is typically defined as about 75/25 right you know you gotta be gonna carry your burden that far and then when it comes to beyond a reasonable doubt which is a standard that the prosecution has to prove in criminal cases that will say it’s somewhere between 90 and 99 percent right and and and different lawyers will take a different crack at trying to explain what constitutes reasonable doubt to the jury but every prosecutor will say my burden is to prove ex-defendant guilty beyond a reasonable doubt. That does not mean beyond all doubt. That does not mean beyond unreasonable doubts. You can always raise any kind of doubt. You can always raise an unreasonable doubt.

1:06:14
Can I tell you with a hundred percent certainty that homeopathy doesn’t work? No, because of Hume’s problem of induction. But can I tell you to say I realize there’s no evidence, but maybe it works anyway, right? Like, that’s no longer in the realm of reasonable doubt, in my view. That is now in the realm of unreasonable doubt. And interestingly enough, I mean, this is kind of one of my recurring themes on opening arguments, judges and juries in particular have a really really strong sense of fairness. Think about the FLSA case that I was telling you about. Because they are deprived of the knowledge of knowing that a $500 verdict for the plaintiff is really a $125,000 verdict for the plaintiff, you can understand why so few juries, when the plaintiff says I’m owed $50,000 in unpaid overtime and the defense says he’s not owed anything.

1:07:19
You can understand why so many juries are like, let’s give him 500 bucks, let’s give him, I get it, I get he’s probably right, like he’s probably this but like, on the off chance, let’s give him 500, how much could that possibly hurt the restaurant, right? And now I realize, right, that’s not, I’ve slipped back over into the civil world. In the criminal world, you’re talking about, you know, a binary decision, right? Does OJ go to jail or does he not? And in those cases though, I mean, what I will say is, I don’t know, again, not a criminal lawyer, I’m sure if we brought on some of my criminal lawyer friends on either side of the aisle, prosecutors or defense attorneys, they might have examples at the ready. But I don’t know of cases where jurors have sort of come back and been like, well, you know, they’re just kind of all this sort of, like, usually when you have when you have somebody that the jurors think is is probably guilty but they have a reasonable doubt that they have a supervening reason that constitutes that reasonable doubt, right?

1:08:34
Like, so the OJ, and that’s why I brought that up, right? Like in the OJ double homicide case, right? The reasonable doubt was we listened to the fact that every single police officer who seemed to work this case seemed to be a gigantic racist and had ample opportunity and motive to falsify the evidence. And we’re not saying we think it is likely that Mark Furman planted the evidence, but what we did see was, my God, he’s a horrible racist, and okay, maybe that gives us enough that we constitute reasonable doubt. So in other words, right, it’s not just a like, let’s see what’s next. It is, there’s a compelling moral story. Now you could say, and again I think it is perfectly reasonable for somebody on the outside to say, thinking cops are racist is not a good reason to let somebody who’s almost certainly a double murderer go free. You can make that argument, but you at least understand how they got to the process. It’s not just sort of, is there random dissension and doubt that’s been sowed? Like usually in those cases, you gotta have a reason, right? You gotta have something that like sticks with the jurors that are like, yeah, this just stinks. Like why would we have?

1:10:00
BR: Well I can tell you that you know there’s so many times when I’ve done research on on you know human psychology and what people believe I’m just terrified of a jury of peers judging anything.

AT: Look that that happens right like so you know one of the the one of the things that is kind of a real back and forth, particularly in my world, you know, which are mostly civil cases, is which side benefits from having non expertise. And, and sometimes, right, sometimes it’s clear which side benefits, right. So for example, when I was doing insurance coverage cases for Lloyd’s of London, the policyholders knew it benefited them to so dissension and confusion and so i had to litigate for example billion-dollar coverage case regarding the remediation of every house in downtown cleveland for lead paint that was going to potentially cost my client a billion dollars uh… in the court of common pleas of Cuyahoga County uh… and i went in and literally the first case on the docket was a traffic accident and the second case was this billion-dollar coverage case with 75 lawyers on one side. And the judge refused to come out in the status conference. She sent her clerk out instead because this was just way outside of her bonds of experience and that case was scheduled – we settled – but that case was scheduled to go before a jury and the reason it was scheduled to go before a jury is because the plaintiffs knew they benefited from confusion right in a lot of cases particularly civil cases both sides will waive the right to a jury because they’re not sure right like if you have a complicated story if you have a business dispute between two companies you might say boy I don’t really know right like I really want to explain my story and I want to bench trial, right? I want to tell my story, I want the judge to be the finder of fact, because I want somebody who’s smart enough that I know is going to pay attention, that I know is going to follow this kind of difficult story that I want to tell. And the parties will agree to waive a trial by jury and try it in front of the judge instead. But yeah, but that’s a real thing.

1:12:28
It’s a real thing in criminal cases. It’s a real thing in civil cases where, you know, you’re trying to figure out who’s helped by, you know, having just 12 ordinary people, you know, six if it’s a federal jury, or, you know, ordinary people adjudicating this. And I think of the, like, this is delightfully elitist of me, so it’s a good way to kind of as we’re bringing the show to a close but but I think of that that great George Carlin line where he’s like I want you to think how stupid the average guy is and then I want you to realize that half of them are stupider than that.

BR: I was gonna ask about the use of police body cameras as you know it’s been particularly hot button issue over the past few months and few years.

1:13:15
There’s a high demand for them. There were, there were cases here in Albuquerque. There was a homeless man that was shot and killed. And of course others as well. And it’s interesting. A lot of people are immediately for, yes, we need police body cameras everywhere. And I can see that and I can see why that would be important, but it occurred to me that, and I was also watching a show on PBS talking about how there’s sort of there’s other hidden drawbacks. For example, there’s privacy issues, right? Let’s say that there’s police have body cameras and they’re called to domestic dispute.

1:13:51
Maybe, you know, people don’t want their the insides of their homes and other private issues being recorded and possibly broadcast. Can you talk a little bit about your opinion on that?

AT: Yeah, so briefly, bottom line, I am strongly pro-police body cameras, but I think you make an excellent point that they’re not a panacea, and that anything where there is the potential for video, like video doesn’t show you what’s inside of somebody’s head. And it can be highly misleading, you know, particularly when you do, you know, once something is in video format, right, you can frame by frame it, right, you can parse it out, you can do all sorts of stuff with it that that could be more misleading than it would be informative.

1:14:41
And let me give you a really obvious example. One of the things we just did, Thomas takes the bar exam question on the rape shield laws, right? And so, you know, one of the things that we exclude from the federal rules of evidence is you can’t introduce evidence of, oh, well, she was wearing a short skirt, right? She was wearing a low-cut blouse, right? Like, you get, that’s plainly out. You can’t introduce evidence of prior sexual history or whatever. Well, if you introduce the tape from the body cameras, and all of a sudden it has recorded those sorts of details, I could certainly see a prosecutor using the prejudicial aspects of it. You know right like all of a sudden now, you know I’m gonna cut and I’m gonna show the footage that shows you know this woman is in a you know a slinky outfit for whatever reason and I’m gonna play to that prejudice – You know with respect to the thing this is outside the realm of the like you know typically body cameras We think about that when we think about like you know the Philando Castile shooting right when we think about like And to be honest, right, like that’s the primary reason why I’m pro body cameras, because, you know, we have cops shooting young black men in this country, and I think that will cause less of that.

1:16:10
But, you know, like the story with the FLSA and fee shifting, right, like whenever you craft a rule in the law, there are going to be adverse consequences. There are going to be things that don’t fit nicely into the situation. And this is a case where, right, there are lots of visual cues that can be highly prejudicial and we’re going to need to figure out if we move to a regime that says, you know, let’s admit police body cameras, we’re going to have to figure out, you know, how to address the fact that sometimes visual evidence is more misleading or the prejudicial effect outweighs its probative effect. So that’s my take on that.

PR: So that about does it for this interview. I wish we could talk all day. This has been a really fascinating conversation.

1:17:04
And Andrew, thank you so much for being on. This has been a lot of fun for us.

BR: But yeah, this is great. I just want to thank you as well. This has been, I’ve always been fascinated by where, you know, skepticism and the law intersect, also including paranormal and eyewitnesses. There are so many aspects to skepticism science.

AT: There are a million topics we could have hit on. I like to say where skepticism and the law intersect is my practice.

BR: We’ll have you back on then.

1:17:33
PR: Yeah, we’d love to bring you back on.

AT: I would love to come back on. Pascual, Ben, thank you both very much for having me on. This was a lot of fun. I loved it.

PR: It was our pleasure. Where can everyone find you on the web and on the podcast?

AT: Yeah, wherever you get your podcasts, go to and look for Opening Arguments. It’s the spiffy blue logo. You’ll find it.

1:17:55
We’re on … Let’s see. You asked for the puppy to come back. There she is. We’re there. We’re on all the standard podcast delivery vehicles. If you can’t find that, you go to our website, which is openargs.com, or, you know, openargs on Twitter. Yeah, so we’re not hard to find. I deliberately picked, I occasionally get lawyers who ask me, why did you call it opening arguments, because you can’t give arguments in your opening statement.

1:18:24
And I’m like, right, that way, if somebody Googles opening arguments, they get me. So, so Google opening arguments. If this is the kind of thing you like, you will probably like hearing more of me.

PR: Yeah, absolutely. I am personally a big fan of the show. I’ve been listening for quite a while. I feel like I’m just about 100% caught up with you guys. I mean, I’ve been listening to all the new stuff, but I’ve been listening to back episodes as I’ve been going, but it’s been really fascinating and I think it has actually lent really well to doing this podcast because I think some of my perspectives on things particularly the current political climate have have really been changed a bit by by listening to your show and yeah, so everyone listening, please go check out opening arguments, and I’m sure you will enjoy it.

1:19:14
AT: Well, thank you very much. I appreciate it.

PR: I just wanted to give a long overdue shout out to Richard Saunders over at the Skeptic Zone podcast.

BR: You can find it over at skepticzone.tv.

CW: Richard’s podcast is one of the very first skeptic podcasts I ever listened to. He’s been on the air for over eight years now, and if you haven’t listened to his podcast yet, give it a try.

PR: Speaking of classing the place up, we still have Celestia, our content producer here, and we wanted to tease next week’s episode. What’s it going to be about, Celestia?

1:20:27
CW: Hi, I’m floating back in over the airwaves here to let you guys know that next week we’re going to get to discuss a new documentary about food technology. And believe it or not, it’s a documentary that doesn’t claim GMOs are evil and they’re going to kill everybody.

PR: Oh, so it’s full of fake news, right?

CW: Oh, yes. It’s hailed as a propaganda piece by none other than Mike Adams of Natural News. This documentary is called Food Evolution and I got to sneak in to one of the screenings in Las Vegas for the international meeting of the Institute of Food Technologists. And I’m going to talk to you guys about it and tell you what I thought of the film and talk about some GMO stuff on the side there.

BR: Awesome, can’t wait.

PR: Awesome, looking forward to it.

1:21:11
So until next week, we’ll see ya. Until next week, we’ll see ya!