morning morning thank you judge jacobs as you know this case comes before the court on our appeal of the district court's dismissal of all five counts  of an action for legal malpractise brought by a louisiana corporation and its affiliate delaware corporation i want to spend my time with you this morning focusing primarily on two of those specific counts because i think i can be helpful to the court and explaining exactly why we think the district court in effect assumed away and presumed away the critical factual disputes that relate to both of those counts let me briefly if i may first of all say that we've we've obviously briefed at length the issue of the applicability and interpretation of the new york borrowing statute but for purposes of today's argument i'm going to assume solely for purposes of this argument that louisiana law does apply and i'm going to address myself to that if you simply for the purposes of this argument there are going to be too many other purposes well we'd like to just submit that on the briefs we fully briefed it and we think our position on that is is clear it's essentially an issue that's never been resolved by this court of the new york court of appeals and so we submit that on the brief and would like to focus if we can on the of louisiana law that's correct so let me say judge jacobs first of all i think it's important to understand the lands through which the court must view the dismissal of these five counts and it's if you will it's a kind of a hybrid of rule twelve law with which this court is of course closely familiar this court has said in the beis case in the beno case that if you will you do not dismiss  under rule twelve on limitations grounds without giving the defendant excuse me the plaintiff a fair shot at showing that there are factual disputes that relate to the limitations defenses counsel arguably conceded with respect to counts two four and five so you're going to focus on i as you know our position is it's very debatable whether we conceded anything in the framework of the ambiguous cross examination that took place at the hearing on the motion to dismiss but again i'm going to address myself to counts one and three which by no stretch of the imagination w honor it so the second if you will the second prong if you will the second lens through which this matter must be viewed is the applicable louisiana law of prescription and  as you know it's well established that under the borrowing statute when you borrow a foreign statute of limitations you borrow it lock stock and barrel you don't just borrow the limitations period you borrowed tolling doctrines suspension doctrines and in the case of louisiana you borrow the steep uphill climb that any defendant must achieve in order to achieve dismissal of a complaint without a factual hearing actually virtually all proceedings of this kind in louisiana which are called an exceptional prescription are resolved only after a trial an evidentiary hearing and if the court looks at essentially all of the cases that are cited on both sides you will see that there's been an evidentiary hearing to determine whether or not the facts justify a a ruling if you will that what if it just boils down to two facts which is that april twenty twelfth there was a repose but i think that's a that's a very good example judge shakeups for the following reason and that is that we don't know as we stand here today whether that was a hard discovery cut off whether or not there were subsequent discussions and events between counsel for my client and counsel for the for the lawyers who are defendants in this case to simply identify one opportunity if you will on which there may have been  some may have been some act or remission of malpractise doesn't in any way obviate an inquiry into all of the subsequent events that took place with respect to this count one which is what you're referring to when a judge sets a deadline is supposed to do things by that deadline i mean well in this particular case there were in fact if you miss a deadline you're hearing it's not going to be very that was submitted in opposition to the to the motion to dismiss the amended complaint you'll see that there are multiple factual issues relating to the communications between outside counsel and inside counsel what outside counsel told inside counsel and in fact there are also multiple factual issues relating to the time when our client and counsel discovered that this particular product was in play if you will that again the court simply assume that a way yes that's right in other words there there is a serious factual issue as to when the offending product honor the lawsuit was filed as i recall in two thousand and ten shortly after the lawsuit was filed it is undisputed that our client withdrew the complaint relating to the so called explora line because it had been advised by opposing counsel that the particular line of products did not include the patented valve in question for the  brecht later later in the progression of events and again the time when it emerged and who knew what or factual issues that remain to be resolved which are hotly disputed between both sides as a record reveals later it emerged that that cup indeed incorporated the offending valve and the issue with respect to this count one is whether these defendants properly included that product line once everyone involved became aware that that particular patented valve was in fact included contrary to what had been thought when it was initially dropped from the litigation and when was that i think it's unclear from the record at this point because the record has never been developed on the point the case was dismissed on on a rule twelve motion i don't think it's clear when the you know there are contentions that it emerged in the course of an expert deposition  in the case but again that's a factual issue that had been resolved it was such an expert deposition there was and it emerged i mean it's if it's in that deposition or putting it another way if it  communications were between these parties the court said well you had inside counsel who is an experienced lawyer in the court said well this particular pleading was filed on a particular date and it surely put you on notice that there had been a malpractise well the the  critical contention that my client makes it's been alleged in many different ways in this record is that they were told repeatedly by their counsel that these problems could be fixed that the explora line could be fixed by a subsequent lawsuit and that the attorney's fee bungle if you will could be could be fixed in fact these these these attorneys filed opposition a reply if you will in and fourteen to the to the royal king opposition to attorneys fees in which they said there was nothing wrong with the filing that it was timely the present might have been made that an estimate had been given to the other side and nothing changed there's nothing not a word in this record to suggest that after that motion was filed by the defendants in this case that they ever communicated anything to the point if that suggested that there was a problem with the motion in fact if you look at page forty nine of their brief they are contending to this day that there was nothing wrong with that filing so the question is how how could my clients be put on notice to file a malpractise case against these defendants when the defendants were contending at all times that they'd done nothing wrong and malpractise case you'll always have that i mean you know i didn't do anything wrong but if i did because the notice was required under louisiana law texas law access law to be given before before you initiate make perfect sense i don't think that's so if you do twenty ten and twenty fifth dean i think you're more than arithmetic well first of all i don't think it's at all clear that the two thousand and ten deadline that the filing of the lawsuit is the cutoff point under texas law for making presentment of a demand for attorney fees in fact that's exactly what what my colleagues here argued in their opposition in their reply to the opposition to attorney's fees they argue that we're perfectly timely in making present everything we did us call it a warning bell of malpractise at the same time as the parties are continuing to allege that their position is well founded the difference is that if you look at the louisiana cases they do not resolve as a matter of law scuse me without an evidentiary hearing as was done here that particular combination of facts the cases in louisiana that resolve these matters on exceptions typically do so when there's been an admission of a mistake the lawyer contacts the client and says i made a mistake or there's a document that shows unequivocally that happens yes it does i made a mistake yes absolutely or at the basis york well in any event it happens and that again the point is the framework in louisiana which was fundamentally misunderstood by the district court is one that says you do not good morning your honor may please the court i'd like to address first just the background is very quickly and it's important to keep in mind the context goldberg and one for trials in a row for l and c in one of those seeking eight point four million dollars goldberg cohen secured a jury verdict of ten million dollars more than they were even asking for if you are going to argue their clients are grateful you carried the day thank you  thank you the moving now to the merits there were as your honor had mentioned they conceded counts two foreign five at the district court level the remaining counts are counts one and three as your honor noted the cutoff for the jackal case amendment was nothing in the record at the district court level in the jackal case suggest it was ever extended and furthermore at trial there arguing it wasn't presented that trial date is also outside the statue of limitations that trial date was in january of two thousand and thirteen also outside the statute of limitations of louisiana so even assuming that they could have gotten extension the extension would have been after trial clearly at trial it would have had been presented it wasn't presented and as a result there let the alleged error is way outside the limitations with respect to the you can see that there was an error no we matter of curiosity no we don't in fact in a related case loving care has itself conceded that they did the error in a case that they filed against jackal in texas their in house counsel told the court that they made a mistake that was before we were ever involved in the case the record reflects that the error if there was one was there were deliberate voluntarily decision we didn't make that decision we abided by their this determination of what they had  jacqueline what they could sort of to be of disclosure with respect to the second issue with respect to role king that also as far outside the statute of limitations as your honor noted present it was required by november of two thousand and ten this case was filed in two thousand and fifteen the three year absolute deadline would have been two thousand and thirteen at the very latest they raised this issue in their complaint this is a different lawsuit than any of the others right  two thousand and thirteen and in addition to that addition to the fact that the presentment error which was an error was beyond the deadline this error was also raised in briefs by rol king the alleged error because it wasn't but then even even assuming their version of the facts  was raised by rol king in briefs that is filed in april of two thousand and fourteen not only were they fully aware of those briefs not only were they fully aware of the issue their in house counsel submitted a declaration in opposition arguing king's position he was aware of the issue and he argued against it that's in the record it a three thirty eight mr greer at eight thirty eight is arguing against the particular arguments that rule king is making so at the very latest in april of two thousand presentment is already gone that's three years in addition the standard under louisiana law is whether they're on constructive notice it is enough to form inquiry there more than construct neuros they have actual noticed as a potential issue that a date was was missed  judgment so we were timely in fact i checked the record in the texas case yesterday as of yesterday there is still no final judgment technically could fall a motion for attorney's fees today it would not be untimely but in any event even assuming the worst case scenario you know assuming their position which sky contrary to the law as set forth in a three thirty one there were an increased notice of these issues in april of two thousand and fourteen they had one year to raise this before the court in a lawsuit in louisiana they were here and they did not do so their way beyond their statue of limitations those are the two issues in terms of count one and count three if there are any other issues that your owners would like me to address i'm happy to do so but those are the only two that they raised i know a cruel and if i can just say quickly the accrual issue louisiana law i think it's clear under global finance and under the other case law that these claims accrued in louisiana it's clear that they conceded at the district court level that under louisiana law they were untimely for one two and five they conceded that for counts one and three the facts that we mentioned the april two thousand and twelve deadline and so forth in addition with respect to the various particular facts they conceded that we fall under nine louisiana statute nine five six zero five which provides the deadlines that i indicated likewise with respect to what cruel global finance is very clear as to the law with regard to cruel they don't they're not our briefs are clear on it as well were playing to first at the time and place a plaintive could a first brought suit claim as a crude there is no dispute here that they could have sued us in louisiana if they had wanted within their deadlines as a result and that's why the global finance case chooses residence to make it a clear indication certainty uniformity as opposed to grouping of contacts and so forth that they try to use here that the court rejected in the global finance case if there are any further questions i'm happy to address them thank you thank you your  white like first of all the deposition date was in june of twenty eleven again however who said what to who and what reassurances we receive from counsel about whether the product should be included or shouldn't be included you know these are factual issues that have never been developed in this record let me let me let me go if i may first of all i want to mention that the application of louisiana so called paramus in statute for legal malpractise nine fifty six zero five i think the district court's application of that statute given the plain wording of the statute giving the the overwhelming louisiana authority to the contrary frankly i think it was plainly iranian to simple as that that statute does not apply here is tortured construction of the of the statute thinking you know only protects squarely a louisiana appellate case which squarely refuses to apply that statute to individual lawyers whatever can be said about whether it applies to the defendants entity there is absolutely no authority suggesting that the statute applies to individual attorneys other than the district court simple one line assertion that it does period end of story so i want to make that point clear and it makes a difference in the case not only with respect to the applicability of the three year period that the court has has question me about it also could make a very big difference in these defendants pending action to recover their fees that pending before the dicey things authorized  to to practice law and louisiana i am i guess that's correct so are you saying that you that the the defendant law firm practice law in louisiana without authority yes i'm saying that it failed to undertake the provisions provided by louisiana law for the qualification of a foreign entity and or a law firm to practice law in louisiana that not an authorized in this case does not mean authorized and no louisiana one louisiana court has held the evidence cases tell that to be the case what you mean by not unauthorized does not mean authorize well essentially the north and it's a double negative then they're authorized not necessarily within the meaning of the statute authorized we contend within the meaning of the statute me and means that they jump through the required legal hoops to become authorized to practice law in louisiana on an ongoing affirmative basis as for example was we say in our brief the proskauer firm and many other out of state law firms done exactly that they didn't do it but again the point your honor is even if they did do it the statute by its plain terms doesn't apply to any individual lawyer who is not quote duly admitted to the practice of law and wheezing out by the way it also doesn't apply to partnerships who are unless they are comprised of duly admitted lawyers everybody has to be duly admitted louisiana for to to  to receive the advantage of this particular unusual statute otherwise general principles of louisiana prescription apply let me if i may if i conclude with what i think is again the critical point it may be the case in some jurisdictions including new york that receipt of bad news in a lawsuit is enough to begin the limitations period running in terms of legal malpractise that is distinctly not the law in louisiana in louisiana the teague case in particular louisiana supreme court case and other cases we cite say that the potential legal malpractise point if must not only have received if you will a bad result it must have been appreciably damaged and it must reasonably be able to connect the bad result with legal malpractise and again just using count three as an example what what in this record conceivably suggests that as of april of tw fourteen when royal king was opposing attorney's fees in our attorneys were saying that their opposition was groundless what connected it to malpractise nothing in the scranton case which we cite in our brief is a very good example of that in the scranton case there was a failure if you will by an attorney to properly protect his client's rights with respect to a mineral lease and he kept telling him everything was ok which is