two minutes reserve two minutes for robot all yes ok thank you on your own is relative to the rule sixty eight issue the background is basically this defendant city of lawrence sent a clear unambiguous rule sixty eight offer judgment to my client ms love here for three hundred thousand dollars the next day the city tried to withdraw it with no explanation and two days after that city center new offer of judgment calling it an amended offer by allowing the city to change its offer three days after it was made the court effectively ramps up rule sixty eight finally to balance in favor of the defendant it gives the defendant defendant of their responsibility to try carefully when drafting will sixty eight offers of judgment and it certainly does not get into litigation which is one of the bases in reasons for it will sixty eight offer of judgment truly consider will sixty eight offer of judgment with any certainty if it can be changed at any time three acceptance instead of play to put have to be scrutinizing every word or imagining what the draft a really intended is that it was the real hundred and that you still have a right to two attorneys yesterday because yes indeed and because on the face of the offer it had no language suggestive of didn't include the words in cos it didn't include the words in attorney's fees and i think the obvious pretty well settled since one thousand nine hundred five in america versus chesney that when you have a case that's proper soon to an underlying statute that provides for an award of attorney's fees and defines attorney's fees are wielding this kind of a tool it is not it's an owner that's the one that your mate is that because they made no mention of costs that we here were not interpreted three hundred is a complete proof settlement which would include not defeat the argument that the order before acceptance was an incomplete order in the sense that it didn't spell out what was going to happen on costs and journeys fees and because they changed because they clarified it before  original offer made incomplete or use the word ambiguous if you want because it left a question open and if that is the case then the rule is that before clarify if in fact that was an incomplete offer your honor and i would suggest that it was not there may be an opportunity to complete the offer but that offer was complete it was complete in that it did not it clearly did not include attorney fees or cost recovery list of what the city intended that is not a plaintiff's job to determine when they get an offer in front of them because it's not an offer a settlement it is an offer of judgment that has them really onerous express would take up because these is an incomplete offer or incomplete offer of judgment and if they amend to make it complete you spell out one way or the other how costs and fees will be would would not help you in the past year in which case the evil comes up to us no well your honor if there were but but i post this your honor if i am not when i get an offer i don't know whether or not they intended to be i'm looking at the plain language of the document that says we're going to offer three hundred thousand dollars very detailed on how it's going to be three hundred thousand one hundred upon signature one hundred upon the passing of the two thousand sixteen budget one hundred upon the passing of the seventeen budget we want all defendants dismissed we will accept a judgment very clear no mention of attorneys fees i have every right to rely on merit ferocious chesney that says they didn't mention fees and cost therefore i have the right to move for fees and costs i don't know when i look at it that it's incomplete or that it's a mistake let me see if i understand the scope of the argument is so if there were some other term not relating to costs that wasn't verses you suppose i disagree with you on that ok that are you making a specific argument that in light of merrick's construction of a rule six the the particular offer that speaks to cost with respect to that issue the only options that the drafter of the offer has is to spell it out or not if you don't spell it out we know what your offer is it's clear and then it goes on to say and costs will include attorney's fees in cases where a statute defines attorney's fees as part of a workable costs there are the law they have to say if they don't say it is a complete offer i mean title to rely on it i would argue oh my client what are you and the fact that i can't sit back and worry about every word and it's not the plaintiff responsibility when i get an offer did they know what they meant did they read the law did they understand that this excludes it did i have a right now to go forward with the issue of whether or not they amended it after as your honor i think is also inappropriate because absent an ambiguity on its face and there wasn't when he would in its face there's morning your honor is for the record attorney recount oh no for the city of florence on speaking to the parole sixty eight offer and some of the questions that were asked by judges to the plaintiffs that is correct that the city had intended that that offer was that the offer of judgment with came on september fifth and on the first business day afterwards it was an amended offer of judgment was given so it wasn't that the plaintiff had thirteen days to contemplate what they believed was one offer and then at the eleventh hour the city came and put the wall out from under their eyes this was an offer was given at five o'clock on the fifth and on the next business day at nine am a new offer an amended offer was given to the plaintiffs the plaintiff had not yet accepted that offer and still at that time had plenty of time to still determine whether or not to accept the amended rule sixty eight offer so that's how i would differentiate that is whether it's the eleventh hour or right on the heels as the rocky court has already stated that  well you are and i think that's why we did the a minute offer judgment because you can see from all the negotiations prior to that that there was an anticipation that that the fire settlement in el while it was a settlement an offer of judgment would include the attorney see it and you could see from the e mails going back and forth t plaintiff is aware that the amount she's offering to settle is an amount that the city does not have and that she at one point does make the comment that what the city's original offer a few hundred thousand dollars barely even covers the legal fees so the legal fees have been ant part of the settlement only we only know that only care about that if the first offer wasn't a complete offer that's correct but the only argument you're making as to why it wasn't a completed offer is because it did not reference attorneys fees but i  understand the argument that the plaintiff is making it's a completed offer precisely because it did not mention attorney's fees because under american most sixty eight since we know what happens to the plane if they refuse or either party if they refuse the offer of judgment they're going to have to bear the costs it's quite reasonable to read the rule to say that since that's the case when you make your offer unless you specify that the costs are included in it we're going to assume that you're making an offer of judgment to pay not including the cost well you know what's what why does not make a lot of sense it seems a lot of litigation it best preserves the fourteen day window on an issue that's going to be recurrent in every single one of these offers right the issue of who pays the costs comes up every single times it's right in the rule ok so why would we tre that as a completed offer and if you want to specify one way or the other do that in the offer it's no less complete or not it's just got an extra terminal well you're on it for two reasons i think one of the rule actually doesn't end capsulate d that costs are attorneys he's need to be put in a rule sixty offer judgment into that all the case law regarding through all sixty eight has to do with what did the plaintiffs know at our offer reno at the time that they accepted the offer of judgment and this is exactly the case where the offering the plaintiffs knew exactly by the time she accepted it on september ninth that the city did intend for it attorneys that i don't know their status and because we're supposed to measure that based on what they know about  completed on if the first offer is a completed offer we know what they knew we wouldn't go to look at the other material i mean that's the argument from in this case which is it doesn't matter other stuff so it's because what we care about is what did you know about the completed offer they have fourteen days to accept that and their contention is they got it completed offer was one that made clear in light of merrick that you were sense that if the city at that prior to that point i think i do not have five the city doesn't have five hundred thousand dollars but why don't we enter judgment against the city and then i'm still going to be liable for five hundred thousand dollars because i've given another three hundred thousand plus one hundred times because this counsel on the on the question of what is or is not a complete offer the phone you're saying what is not a complete offer is an offer which does not state what was in the offer or is that's left something that the offer or should have and would have put in we are as opposing counsel saying when an offer is made that is understandable on its face and there is a legal rule that says under these circumstances counsel fee cost and fees will be added that is a complete offer the difference is between you i think you're saying the criterion is what was in the offer was mine in the other side thing the criterion is do we have a  clear answer to what happens when the offer what ever expressed will or evil is made is that the difference between it is your honor and just to take that a step further is that once the city the amended offer then both parties at that point have can have a meeting of the minds should that offer be accepted and i know that i only have one minute left so if i could just move over to the color of law argument in the tourney other questions with respect to the color of law argument the city is at this point arguing that officer sledge during the time of this incident was not acting under the color of law there are several first circuit cases that deal with color of law and i know one of the things that the plaintiff alone are not enough and i believe that where the line is sometimes drawn at the first circuit is at during the incident complain of what is their actual pretense of the use of authority or any kind of use that authority i think that's what this case is differentiated between all the other and do what he did that at that point the color of law had ceased there was nothing at that point during the incident where he threatened to arrest her or used his badge or he handcuffed her even if the jury could really find that by the  time he the jury could conclude his appearing as an officer saying i are you safe i'll take you back to the station would be enough to say that he was acting under color of law at that moment as i was in a district court what you seem to be saying now we're supposed to block that out and then consider the quote incident which is what happens in the car if a jury were to conclude that by the time she's in the car at that moment she's not in a position to be able to resist or get out of the situation because of her state at that time wouldn't that suggest that the jury could conclude the officer using color of law did everything he needed to do to be in a position to commit the assault you know your honor because we're not asking that you the station is right why i think you can separate it has during that there is actually no show of authority i think that's where the first circuit has drawn the line there are instances where during the incident that they are doesn't need to show authority at that incident that's my question why couldn't a jury reasonably conclude the show of authority did everything that the call of the law acting under color of law the pretense of being an officer trying to help her got him to the position that he didn't commit the insult all of that got to that point why do we denigrate the chain at the moment of the incident given that her state at the time according to the record well that her state had nothing to do with the police after some thought he put her in that particular state so it's not i don't know what you're referring to he's a dear he he knows he's in the jury could certainly conclude that he knew that and so he's using his business as an officer to take a person who's in that they get them in a position where they won't be able to get out of it and then we're supposed to say that went well now he's no longer under color of law well i actually don't think that the inference would be that he knew that she was in that he when he saw her i think the record shows that she was walking she was talking and she had been with these other people i think that once she gets in the car i think her state dramatically changes the law this is says to the friend who shows she's sleeping it off obviously still loose she was in the know that's what i'm saying that once she gets in the car which is what the city is arguing is that that break in the sequence that's when her and the jury could conclude reasonably that he might have had a gas that was going to be the case station and that's why this is to be argued that there is a break at some point in the color of law and that's when she he does get it's nothing in the record suggests anything happened or in that would have led her to become more intoxicated upon entering the car than she was before she got no the from the fact that she was intoxicated once a month or that that would have been manifest to the officer when he approached her i just don't think that that that's a reasonable inference given given the facts i think that once she's in the car in the private vehicle and taken to it is a private lot regardless that it's in you know adjacent to the station it is still a private lot and that there's no interest at that point of any kind of a show of authority then that's what differentiates this case and that's why i think it's in line with the pre burgos case i'm in those cases the first circuit would say that that the colorful argument can change at a certain point where it becomes something that was done under color of law and then something purely personal if the court has no further questions i would rest on every thinking briefly on all sixty eight first the amended offer came three days after the original offer so there is more than just an overnight period of time i think it's something that you had to chance and had said what's the  is fourteen days thirteen days when would it be ok or not ok to amend this one came three days later the second issue was they rely heavily on rick eki for decade there was a clear ambiguity the plaintiff's attorney even said when i got this offer i didn't even know if it included cost so there was an ambiguity that was found with regard to the color of lawyer on the record is that officer sledge approached my client said you're too drunk and too pretty to be out on your own i'll take you to the station so he clearly understood her  her status there is no evidence nothing in the record that indicates that that was a private lot it's just a lot of jason to the station where everybody parks in your honor he did order her into the car not only did he tell her he was taken to the station when she went to talk to her friends on the record reflects this who had given her a ride earlier saying she was going to be leaving officer sledges yelled her twice get in the car we're leaving get in the car we're leaving and she left those friends who had given her a ride her a ride earlier and went with him so there was a continuing issue of authority if nothing else thank you