i'm sorry ricky diamond your honor this case comes from the district court's decision in maryland to grant summary judgment in favor of the teles on the issue of contributory negligence it is going to be our position that a well settled law in this district in the circuit that summary judgment is typically not granted on issues of contributory negligence and that contributory negligence is traditionally a matter for the trier of fact and we will also argue your honor that the facts in this case would certainly honour's in this case though i think you'll find by examination of the record that there is no contributory negligence and i would just as a nuance to respond to your honor i would say that while you do have to weigh contributory negligence in the minds of what a reasonable problem is they they they you follow a complaint was it verified the complaint in this case i'm not sure i understand the question verified did they swear to the complaint was a complaint that was filed in this case was it a verified complaint yes under affidavit and and so as i understood the complaint stated that they had been advised that that a concession is made in the complaint that they were advised that's because the pro forma form which they signed that was a statement i'm trying that that's critical right there seems to me if if if your class you said it was ver i've i'm just i'm just going to typically the complaint can be verified which means that everything in it you swearing will send in a complaint to be true i guess is like an admission once you once you verified a complaint you saying it is a that conflict there is you know there's more than one way to distribute it but they tell you you need to get tax advice we're going to clarify and we did this in our brief your honor what that meant in the complaint when they were advised to get tax advice is that they were presented with a pro forma form which is five to six pages long which is lincoln financial the annuity company's requirement that you sign this form and make an election as to how you want to get the money in think a reasonable person who'd been investing the largest state of their money had been working with a financial advisor whose advertise on workers morgan stanley's website as someone who goes in teaches c c p a's on tax consequences and that's part of the record as well they're believing that he has knowledge about the product that he sold to their grandmother they're believing when he says to them oh you only have one choice here it's kind of like if you go to a guest if you go to a restaurant which is fish and chips and you say i want the chips so sarge only have fish today you know but i want the chips it doesn't matter there's only fish they're presented with this form that has a number of choices that they can make they can have the money paid out over time they can transfer it they can take a lump sum distribution and the expert the man they've trusted with their financial planning the man their grandmother invested with for all these years mother and grandmother the man who's held up by morgan stanley and he's found to be one of the top one thousand financial planners in the country he's held out as someone who noted low i'm sorry i think your other i mean again i haven't gotten to know this particular pelly i think you're on exactly correct i think he meant well you just made a mistake that mistake cost my client two hundred thousand dollars the question though is your honor that when your financial planner comes to you and says hey now that your mother or grandmother has passed away because it was in the state and it's an annuity and not your personal account you only have one choice for election and they asked him that's in the affidavit your honor from my clients that they all inquired as to whether there were other options of how to take this money and he says no there's only one option i would also point out your honor you'll note in the record that they came to the sure the house that is the house of mourning after grandma passed away all all the kids are sitting there and they sick and he secures the signatures there at that time to suggest that everyone you  can't even imagine the broad scope of the decision against my client in this case would bring basically you go to a c p a to have your taxes done and he files your taxes and makes a mistake on your return that costs you one hundred eighty thousand dollars well guess what you're contribute charlie negligent because you didn't go to a second c p a and get advice that's the ramifications of the decision against my client he's working with late certified financial planner he's working with someone with years of is that in the four states that still maintain contributory negligence it is not an issue to be decided on summary judgment there are by definition nuance and inferences that have to be drawn during the time of trial which are critical and it's not the place  the issue about whether you actually made a timely demand for a jury result because it looks like you wave cheer jury trial that's correct how well they and the trial and concluded that my clients were contributory negligence we wouldn't have much to be here for the problem is there was no trial there was no hearing and we have those trials in those hearings for a reason because the judge then has an opportunity to first of all that's an assumption i think the fact of the matter is if there's a sort of subset of this it is pretty much to say but i don't i don't think that's a fair assumption i think a trial in a hearing where the judge has opportunity to hear witnesses in person makes a difference the fact of the matter is there was no hearing in this case and that's why the case law in maryland says it's really presumptively improper for a judge to take a case at the summary judgment point and find contributory negligence because there was no opportunity to weigh the  if he was right when we go to get a medical opinion granted some insurance companies and many smart people will get a second opinion because they want to make sure that they're getting good treatment but it's not a requirement for professional negligence when someone holds themsel sophisticated they are your honor started this and inquire inquiry by saying your clients are not run of the mill people they have a certain level of sophistication they go to go astray and prove they are of a below people the judge made this very hard to do the judge may infer from what they hear and hearing the case on summary judgment made the inference that they should know better without having met them without having hearing them just because they own a business or have a certain amount of money my client said in her affidavit that she relies on professionals cush she's a musician she doesn't know much about business and science what else would she say on the stand then if she said it in her affidavit so again your honor there are nuances and inferences which can be drawn from more than eight lines in an affidavit the fact of the matter is that rule they didn't heed to the warning when they get on the witness stand and say we had conversations i asked multiple times and he told me this is the only option it's very easy to look at a form and say hey it says right here that you should consult tax  i did consult tax advice i spoke to my financial planner that's very different than the way it comes across in an affidavit when you say i asked for financial advice ok i asked where there are other options even in the deposition testimony it becomes somewhat more clear than we get into an affidavit but it's not the same as the judge hearing the evidence and weighing the inference is that can be drawn and your honor again the critical point is that in states like maryland where there is contributory negligen they have this broad principle that i see my time is up finished that answer they have this broad principle that it should be considered by the trier of fact into response a judge that we just want to judge when his point what i think should happen here is that a  about the advice or the instruction to get independent advice the record in front of this court and the record in front of the trial word was that this was not want to form yes the lincoln form said you may need to seek tax advice but where the issue gets confused no worries it's apparent that it's confused is that the complaint filed by the appellants paragraph eight said morgan stanley said to get tax advice there is no reference in the complaint about a form in the opposition to the motion for summary judgment there was no reference to a form it was always clear it was always you can do it there's nothing else you can do let me see if i can respond just not true that's the problem that's not true and they told them that from beginning that that's the only way you can do it is take a look and if you've got a financial expert who tells you that and what is a tax guy going to tell you different than you than that i mean if that's supposed to be true if that supposed to be true let me let me answer that question and i'll do it  affidavit says that he told them to get independent advice and use the example my child says to me dad can i use the car and i said sure you can he told them to get independent tax  for itself he never said in his affidavit that i said the only way you can do it is to get is to take a lump sum distribution if you want your money now and that's part of why this case is is is is kind of interesting these are three individual did the plaintiff say that that he said that no but he said that and the affidavit what did they say reference he said trust that they had in mr lennox but that's not an issue will concede that they trust him the issue is that when he had an opportunity to go look at what they had up to to go get advice from others now you know you shift to the good you shift in the question the question is do you did the plaintiffs say that they were told that that's the only way they could do it as be fully some period where they said did the players say that they want your money now and that that's understood if i can put this in a different perspective so that's a dispute of fact i don't know studds know or the one says the only way to get it is lump sum bill says the only one has absolutely one way to get the other one is one way to get it what the condition the condition preceding is you have to want to get it now if you to get it now and that is the only way to get it now that's quite different then no i don't care what your wishes are the only way to get it is lump sum you tell me that's not a dispute that is a dispute but that's what that's what you said was we're talking about it as it is so you have to expect that every inference is at this point and all those factions been resolved for the plane to watch and that's and that's exactly what the trial or why we wasted all this time and wins question you should have just said up front yes they were told that the only way to as always you can get it that's not a is how is that a legal question it's a limit of what you said if you have a legal tax question you need to go to a lawyer but you go to a lawyer if the example if there's something to talk to a lawyer about was there can try try again if there was one percent i know that i'm let's think i'm a virginia lawyer i know what i know contributory negligence and i've practiced law for twenty years i know exactly what could have done it was and i know virginia has balance too because you can't get they didn't get a second opinion that's one of them said the second point is they did not read the documents before signing it what would the documents have told the doctors perhaps simply told them that they had more than one option how's of it just talked about withholding that no no no no no not the forms list and every option that was potentially available to them and that's exactly what the trial court found had they looked at the documents the documents spoke for themselves could do anything other than finance this with me right and use it but that's a that's not a legal question that's a question of fact it's a product that i know some a new a new it is when you die your family cannot receive it anyway other then lump sum as a product he sell the product you told him so why is that as amount of law i'm contributory and that was it when i say well you sold a product you smart person you're well known and you say this product no matter what it says his options there is only one option that's a fact that's not a pinion if he gave an opinion like well you know you could take this to go see independent tax if a legal advice or tax advice but that's not an opinion i guess if someone gives you an opinion about something yes you should see him and the countenance and a lawyer but that's not an opinion that's a statement of fact this product does not give you that option you can bring your own perri mason matlock anybody you want to bring is not going to change you know lies like the old joke about the waiter with the butter no rich guy sa want to in a way to says listen i'm in charge of the butter you know by just one pack he was in john to the butter i don't care how many options is there is i'm telling you there's only one that is not an opinion as a fact about the that's that's not what i'm saying you know what i'm saying what i'm saying is that when mr delaney told them to get independent it's it's obvious that he was not sure about what he was talking about it was obvious and he says you need to go get page that if that was the law you say well the earth is on you does it it's a reasonable person a reasonable person if you trust somebody and you see and you ask them a question and they say you know what i think you expose do what you say is only one option but you know if if i'm wrong about an option you can that's not the context it may be that no that's it and that is a general statement about tax going to come to the same no you know it's not if you send this back that trial judge is going to do what he or she is swore to god and all a symbol is to listen to all of the evidence presented or attendance as well there are numerous cases that say that and judge and says well actually tom people can see their case better on evidence the judge judge in this opinion was very thorough it was very thorough she went through every element of the plane and she went through the elements of contributory negligence and unless her findings are clearly erroneous and i don't think that you can find her decisions were clearly erroneous yet much stand stand is not clearly erroneous or no you got the wrong standard that's never drawn from me but you but you don't need that inference soley to conclude contributory negligence there were other factors that the judge or a lot of fun like would like they didn't read the form but they didn't contact you know what he companies like even after even after the case was filed plaintiff birken felt wrote common and said hey can i reverse this decision that i made to take a lump sum distribution and this is in the record and they sent him the forms to complete and he never sent them back never sent them back so there are a number of factors that the judge or a lot of fun and i thought that she was very very articulate in laying out all of the reasons why do you have any evidence that's that's where the record that's where the record was also about his wife but basically what you're saying is that you could absolve yourself of all fault and all wrong as a financial planner about saying you know they should have gone back and talked to somebody you the did it and you say this here i'm taking your version there the son said no he didn't say that he did say yeah you can take the car but you know then later he said you know you know you know if you go on a highway you got to be careful but you know what your honor should really go get tax advice that's not something that my clients in the record all they do say that in their complaint that morgan stanley advised them although in their depositions it became clear that what they're saying is morgan stanley and len it presented them form did opposing counsel said that your clients you didn't reply to their listing of undisputed facts is that accurate no i don't think it's accurate at all for example wou so for example on page six forty six of the record mr lenat was contacted by my clients six months after he told them that this was your only option some time around six months to eight months later my clients are going to do their taxes and their accountant tells them why on earth did you do this because the adviser told us that was our only choice so here your honor again page six forty six of the record mr  lly responds with an e mail and he says oh the lump sum option was your only choice you didn't say anything about if you wanted to get it all now which is an inference which the district court includes that in it it if we do we said ok that's a true that's true that's what happened he gave a bad barry's that you could only do it some that establish some negligence on his to own it but it's the judge is look at that something you sit in that complaint judge and your summary judgment stage and you then put forth an affidavit if you think that complaint is accurate affidavits and it's in their depositions in the deposition mysie and specifically says if i had been told that i had other options or if i had been told that i needed to get other tax advice i would have done it she says it's in our record as part of the deposition  of the record judge in this was the second judge who had an opportunity look at this case judge monts had this case in front of him on summary john a motion to dismiss and judgments went through exactly like chosen accident they said different it was a different standard but his findings weren't any different and his findings were very specific it's again page ninety four the record judge says they were certainly entitled to rely on their professional financial planners advise that this was their only option they were that's exactly the point that i want to make not only can reasonable people differ different judges that every view this case have come to different conclusions judgments didn't just say that for the purpose o confirmed himself in an e mail without any nuance and your honour's the question is again simple what would a reasonable person do and again we have judge not saying that a reasonable person could certainly have relied on their tax advisors this a reasonable person may not have looked at the form in face of the fact but let's look at those forms again for your set for a second which your honour's questions about these are forms which lincoln financial provides to everyone who's distributing it annuity half of those options never to anyone they specifically rely on their financial planner did sell though there are options on there there are five there are options on there and if your honor if you look at page five thirty one of the record one of those forms is right at the beginning it specifically on those forms if it happens to be that one of these people is a minor and got it got enough all these things that may have plugged you know this is important information please read carefully instructions may be required if the beneficiary is an estate or if it's trust or if it's a guardian or corporation if you're not one of those things then some of these things don't apply you get to first page and lincolns telling you this applies to everything that we've money over time will you do so this form tells you that there's a lot of choices you have to make and then it goes on and tells you that half of them are going to apply to you if you're a guardian if you're for peroration you have to know which boxes to check and that's what you rely on your advisor for it's not like this is a form given to somebody who's looking at a lunch menu and said do you want to talk today or do you want to hamburger it's not like that ages it's only six pages i und and money was involved about about a million dollars six pages i think i would read it for a million now and they did read it but again their financial planners telling them that these options live too in a state like getting that senate you advice does that or say should go that fall what was your point being is that in this particular case relieve them of the need to do to undertake that duty because this is this i said leave them a duty to do it they know and that is the standard of what professional negligence is when you seek out a professional and they give you advice you're entitled to rely on that advice otherwise as i said the broader ramifications of an adverse decision is that every one of those to an accountant or a lawyer or a tax or a financial planner they're now not permitted to accept their advice there is no higher standard of professional negligence is this court ready to tell all the professionals that they now have that extra protection of insulation that even if you give wrong advice even if you give bad advice that you're wrong about you're not going to be held to it because everyone had the option of getting a second opinion thank you carol but we asked t