just part comparing them to a suicide bomber is beyond the pale i apologize for the rhetoric your honor it was trying to make a point which is critical to our argument that mr mar multiple multiple occasions deceive the client by saying facts that weren't true making representations that weren't true the client relied on those and ended up in a terrible predicament because it did rely on those  that was my point i'm sorry for the rhetoric your honor i apologize to the court going back to the the board's errors of law in addition to completely ignoring the rule sixty b six it applied the wrong standard to sixty if you want it stated that there was an extraordinary grammar of the requiring exceptional circumstances which is simply wrong it also refused to acknowledge that was in fact a default judgment when the choke cause order pacifically says it was and that has policy implications in terms of the remedial nature of rule sixty with respect to the full judgments and the  in the l a l versus california case in the ninth circuit that was a failure to prosecute the court pointed out that that's merely the converse of a default that the defendant happens to be the plaintiff in that case it is essentially the fault for not proceeding the other cases that we rely on involved a multitude of event failure to reply to a motion for summary judgment failure to reply to a motion to strike from performing or injunction failure to report to the court on settlement negotiations failure to attend hearing see how that that differs your honor now the board went through the pioneer practice with your mom one was in favor of excusable neglect the other was against and then the third actions by the various attorneys and effectively abandoned his client by not doing the various things that are numerous work exceptional circumstances and and determined sixty six relief was appropriate i would submit your honor that logically a similar analysis would apply under sixty one because you first decide under the case law here which there isn't really anything to the contrary that w that's explained very well and the supreme court decision that we pointed out to the court that was cited in the recent poll versus warren case decided last month in the eastern district of michigan that one  perfectly our bad they articulate a point that it was inexcusable but that very circumstance means there's no agency relationship you can no longer attribute his sins to the client you've got to look at what the client did and in has already told you you've missed one deadline tommy you know in another thirty days why should i you know dismiss your case if you know he's not doing your job even though he says he's joining it don't you make sure that you get   was pointed out in the trademark case but it's it's a two person operation they make saddles that make bridles they make boots for for pokemon and i'm sure they're very good at that but they're not experienced business to be able they don't have i mean french legal people they don't have an in house legal department they don't engage in legal business like an insurance company or a bank would they're selling this this whole over here the attorney that they chose is also not some guy they picked off the street or got off of and useless he's someone that was not only recommended to them but they'd be used for a number of years he was a senior partner in the firm that they left it was supposedly very experienced they trusted and your honor there were lay people trusting their attorney i think under our system of representation you ought to be entitled to trust your attorney particularly when you have that to begin with i don't think i mean in each of the cases that we cited that the plaintiffs were slated for defendants were relying on their counsel and were getting misrepresentations and in those cases the court found that was an extraordinary circumstance under rule sixty six that it was an exceptional circumstance and it wasn't really much different than what we have here all the deadlines that were missed in those cases in this case  just that is the policy and what you describe it seems to me if you're a member of the same bar as him and if your description is accurate you may have an ethical obligation to report him to his state or for his of the court of the t t p is reversed then this may be a no harm no foul situation and will go on to the merits of the case which is the policy of of the law and and particularly in the fall judgment said let's get the doing it on the merits we've got three registrations at issue in this case there's a host of dozens more that are being affected by this case those proceedings have been suspended by the t t v on the basis of this appeal i'm not sure that's entirely logical but that's what they're doing p r else already signaled that it's going to be because these were with prejudiced used is under an issue preclusion a claim preclusion basis to affect those other cases and it has a whole ripple effect but it all depends on what what we have for very clear areas of law where the court was using the wrong standard it's hard to reach the right result when you start out with the wrong standard and you don't you don't look at sixty six you start out with this idea that you have to have exceptional circumstances for sixty one you don't acknowledge that you've got a default judgment with the policy implications of that and you get this attorney client relationship and higher leap backwards where no less than the supreme court your had actual notice understood what some statements in mr feller's declarations notwithstanding i understood that there were some potentially significant consequences for missing those deadlines and received facts i first thought did they say there were eighteen or twenty emails that said there are eighteen or twenty communications of which these six were from mr mariani and those are documented in the bullet points in pages three four and five through january twenty first so that there is documentary evidence to back up what my client is saying and in terms of those the first one says yeah use my new address obviously the next one from just mine insist specifically he was going to be filing the appearance of counsel this week that's that's that's in an e mail from him another e mail from him deals with the preparation of the evidence why would you be doing that if you weren't representing representing the client another going over the affidavit and making the affidavit to mr feller's of this was in preparation for also his deposition their e mail from mr mariani january saying he's going to be speaking to the client that afternoon there's the e mail on january twentieth just refresh language obviously means revive indicating explaining these notices we're getting is basically bureaucratic error the t t a b that wasn't keeping up with the actual facts on the final point on the prejudice there's nothing in the record with respect to the death of this witness wasn't before the board the board found no prejudice and i will if we're talking about points out of the records the only support for that is a rule twenty six disclosure that lists that witness of one of five witnesses saying the same