this case obviously focuses on what you can and can't do with a written power of attorney and the law in the state of washington was handed down in one nine hundred ninety four by the case of bryant versus bryant which is the solution action and in that case they describe the state of the law essentially based on the solution to duties with the use of the power of attorney and the question was whether or not the power of attorney much can't contain are you we are doing the same thing that you are giving back in two thousand two i am arguing your honor that the law of the case should not be followed in this instance because gift can be made with the power of attorney provided that the attorney in fact bears the heavy burden of proving that occurred by clear cogent and convincing evidence has the state of when and versus when and with two thousand  gave four different criteria under which this court had the discretion not to follow the prior decision and there was a decision by the russians supreme court in august two thousand and two approximately a month after this family rule called the whole of five case where in the court is looking at the issue of whether or not you have the power to change beneficiary designations and the court said the washing supreme court said you didn't have the authority to do that natural objects of affection for anything like that the issue of gifts between family members just doesn't even rise well what i would be good because it doesn't arise the only reason i make reference to all of mine is it is the washing supreme have there been evidence of specific authorization unless there was it's going to be improper but they didn't address the issue because it's all the dead man statute in that case didn't allow access to that information so it was part i can see some sense to your argument that the panel the solution is the room is because of that phrase in the statute that the power to make a gift has to be in the document but i have trouble even if even if i think it may have decision i mean it could be wrong but it looks with all due respect park and i have trouble saying that it's clearly erroneous to follow the most closely and point decision of the state of washington with all due respect your honor that  that that thing is extremely out of line with the public policy behind this statute and the obligations of the fiduciary to their principal what that that decision is it's followed and i don't believe it will be were on the washington form of appeals i might get the sense that in the state of planet i don't know i might of but i'm not and i can't and what i have to do to go your way is to say that the national decision and then there's the i called distinction which is western district of washington involving a bankruptcy it's called so i don't know i don't have that with what it does and i believe i cited in my brief it's thirty trouble with that and why i sorted out the incinerator case rich families as a matter of the state planning like to give a lot of interview both gifts in america it's done to avoid estate taxes and everywhere in the world it's done to make sure that the parents money goes where they want and the parents things go where they want it or be both gifts you're just a really efficient technique if you're dealing with somebody that's going to happen do a lot of paperwork in a distant state let alone this thing country and attorney in fact is just real convenient for everybody to avoid running that it goes and do it access all the time stuff so if it just seems like a pretty natural thing to give it seems like a huge amount of money to the small part of the state to and to what was a daughter and the son in law something like that it was done and so now his and to use the attorney in fact to make it easy it just seems like what parents aging parents with a lot of money would do and i guess that the jury must have thought that well at will and when and goes for that it seems so natural that it seems like well yeah i can see washington stretching the tourney in fact statute to allow the power of attorney doesn't set forth that power just to serve the function you're talking about and a law review article i cited to you about granting the power to steal words expressing the opinion that oh where you as you know we were here once before they use that usually winds up with family feuds yes yes your honor unfortunately we were here before and we got specific instructions from a panel of the sport as to what the law was nick and we tried the case based upon that law and there's no dispute that the instructions given to the jury were in compliance with the ninth circuit's directive and there's also no dispute that the burden of and judge last make health that the dead man statute has been wait now if he hadn't reached that decision the result might have been quite different because a lot of the evidence that came in would not have come in but the one in case your honor  well let me just if i can get to that by first giving you just the one sentence description are one sentence holding that i think is critical that this court made in the case which was quote specifically authorized anna maria to make a gift to herself r c w eleven nine four zero five zero does not render the given valid and that your honor was a correct interpretation of lennon because  zero five zero does prevent a power of attorney from making gifts unless it's specifically placed in the power of attorney and this is a quote from that case unless he can introduce evidence that elsie who was the gran therefore had no authority to write the christmas checks unless you can introduce that evidence that elsley specifically instructed him to do so that's doesn't that recur to the language of the statute which says it must be specifically provided in a written document no your honor and the reason for that is the court then went on to explain that there was no evidence that roger could rely on to meet that burden translates well i guess i would just agree with that you're on to respectfully i think that what the court was saying was that if he could prove if he had presented evidence  at the trial court that his mother and had in fact instructed him to write those christmas checks then the decision would have been different but he couldn't  the power of attorney and the reason for that outside the written language of the proud side of the written language and the reason for that is you want to protect the grants for from the attorney in fact from taking actually are outside what he was provided  amount of evidence that the grand jury had a different intent then he can still make the gift in other words you can't you aren't prevented from making a gift merely because you signed a form power of attorney from a bank  strict construction of powers of attorney but the cases are also landed in this court and the other there are some other cases your honor that has held that if you can show that a grand jury had a different intent when you don't know what his intent was and the problem in most of the cases you've got a dead man statute and it's very difficult to meet that high burden where you don't have the person to testify about what happened we were  certain not the bind you agree we can do this i agree that you can do that under two very narrow exceptions to the law of the case doctrine and i i think your honor the well it seems pretty clear to me that neither of those exceptions would apply and the court has gone through some of those with mr g wall but the two it subsumes are you know reading controlling authority and still a stretch to say that the prior panel was clearly erroneous maybe the case could be read a couple ways and maybe if we were up here for the first time it would be a different result but we're here under the umbrella of the law of the case doctrine and there and there are  this was a very very wealthy man there wasn't any dispute about that he's got a daughter that lives on the other side of the world he's sending money to her well he's very very ill in that some of the transcript that we cited he had d that he never told them to change the ownership of the corporation there was evidence that he had had a few communications with the career was about buying this warehouse for two and a half million dollars there wasn't even a deal on the warehouse yet they had just talked about it briefly there was no offer there was no title report there was no nothing and the next thing that happens is two and a half million dollars is wired to that  account both testified and they were allowed to because of the way with a dead man statute that they had telephone conversations with mr it with anything in writing just for the cruise or was it just that the jury believed them and it didn't believe the other states with well course i don't know what the jury ultimately thought your honor but they're the only writings where the letters back and forth but there was nothing there was not a specific letter from mr year a or agreement that sa evidence in itself would be enough for a reasonable jury to come to that conclusion after deciding if my clients were credible people are not this language right in line and right will bear th took was something that is grand for his mother had authorized him to do they were talking about whether roger would have enough or whether roger had enough evidence to show that his mother intended him to write those that's that's true your honor but there was also another dispute about the checks i want you to help me some language  and what the let in case said and i think what the prior ninth circuit court meant was that when there is this high level of evidence that the grant for had and inten this and before the money was sent in regards to the warehouse they were reported on different options one of which was purpose one of which was purchased of this and then he sent the amount of money they asked for to buy that roosevelt else this was this evidence this written evidence created by them was absolutely inconsistent with their testimony and what about that test that testimony that your adversary referred to  it's different we wouldn't do that unless we met on the floor i would put it in my son's name because i know if i turned to my son and i said well this investment for me my son would give me the shares back when i asked him for it and you wouldn't treat investments for me supervise these investments for me on my behalf i think it's crystal ball and human nature to say they would respond accordingly but here up until the time of the death they never told anybody else and yes your honor and they were very credible witnesses i don't deny that and but i also say that there isn't a reasonable dispute about the burden of proof under the andersen vs liberty lobby case which i cited  the determination whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that applied in the case and that case it was clear and convincing in our case it's clearly convincing that you've got to have a shilling of