from what i can discern in that you know he'll say oh yeah everything's great this is fine and then he won't sign the agreement or i move to take this case for instance hundred heisman without argument he didn't object the court didn't allow my motion if he wasn't going to show up think it's somewhat unusual but i could be wrong that's why i'm asking the question as to what judge hogan his role was and how this came about that he should wind up i can understand how he wind up ones that mediating song i think that there was a mediated settlement or goes on the record and then the parties jointly agreed as i read the record that he would be determine or of whether or not the letter that you folks were supposed to submit was adequate and both the thing that was agreed to and then we went through this somewhat retracted process was there any discussion about the propriety of having the judge act in that capacity was that part of the negotiation or discussion or is it everything no there's nothing on the record to that effect i know of nothing to that effect it's an unusual circumstance and frankly  you know when the case came down upon which the appeal that's already going on in this case occurred that was really the first time that came up the parties were stimming and as you can see from the record mr cooper certainly was believing that judge hogan was going to be the guy who was going to role of a key decision maker exposing himself or herself to becoming a witness to the force of illness i don't although it just hogan in his testimony said he has had he didn't go into detail nor was he asked to but he's had other cases i the seventh circuit just made an interesting observation i was thinking the same thing kind of a weird arrangement you don't usually see this but he talked about the fact that litigants may negotiate with more confidence if they know an neutral third party namely the judge presiding over their case will look over the settlement agreement you know to any problems and be the arbiter of that now he was looking at it in a different circumstance but as you can see from the record comments from judge hogan and from the record reflecting mr co difficult individual and i think the parties here just thought that it would have more force in effect and it would be more likely that mr cooper would carry forward his stated intention for settlement if there was a federal judge the media beginning to emerge i think it is in this case it is an unusual circumstance but it's part of the garden and you get more leverage so to speak out of your settlement and hope that you never go to court but on the other hand the downside is if you don't get your way who's going to be the witness to talk about the terms of it so it's simply a bargain that parties can and in this case did hoopers testimony clearly reflects from the truck court that he accepted this agreement and then that was his understanding and his conduct also reflect that he called upon judge hogan multiple times to of course are to be the arbiter of the terms then and under the circumstances before the court of appeal decision previously to enforce the actual terms of it but bottom line in the context of this time a very for you however is that the court let in this testimony it's an abuse of discretion standard it really gets down to plaintiff wavenumber this argument in our view for a number of reasons but if you got down to the merits of it you give considerable deference to the trial judge in making that decision and can you say it was a use of discretion to let this very relevant witness with relevant testimony provide the insight that he had it's essentially a two party agreement with one guy who was there when they made it i mean it's it is the most relevant witness and a very neutral witness and while he was a powerful and again extremely relevant witness and we can understand that it probably hurt case not improperly so which i can make sure that so i couldn't find anything in the record to that effect because i look for that in the last couple of days but again i think you have to look at it in did he go forward and do anything what he read the transcript nothing was ever reduced to writing except in the sense of what went on in open court was reduced to writing he says satisfactory to me well is that to me in my capacity as a steering federal district judge or is it to me in my capacity as me and course he just says me now if it's in my capacity as a federal sitting federal district judge then i began to ask things like well is that depend upon your having s i'm here i'm looking like a judge but i'm not but there's an ambiguity here but you can't help me out i don't think the record provides that information but i think you look you know in this case of trial at the any inferences in a manner most favorable to the refusal issue again this is another issue of plaintiff when he doesn't get his way then the other person must have been biased or conspiratorial or otherwise having to judge hogan for conspiracy and other things now he wants this judge off without having asked her to get  off for impartiality the impartiality he's claiming simply stems from the case and that's not an appropriate basis upon which to require an impartiality in the event you are going to send it back we ask that you reverse the decision transferring the case