practicing lawyer since one thousand nine hundred sixty seven always not currently practicing law made the other side in cross examination attempt to impeach the credibility of that key fact witness by pointing out that the state supreme court has recently in two separate occasions suspended that former practicing attorney from the practice of law based upon a pattern of misrepresentations multiple misrepresentations and a pattern of dishonesty you can't ask him about the consequences of what he did because that will involve us in the trial of the trial before you have to take his answer ship yes you do have to take his answer and the problem here your honor is the answer to the realizing that he had the authority to say yes the ninth circuit what what makes you think he didn't think you have the authority you say yes at the excerpt of record both at one page one thirty six and at seventy  seventy six at long's twenty to twenty four i don't think the law allows that i don't think the sanction of supervision is appropriate under the law it's a principle subject matter to go into under the law and therein lies the problem the trial judge did not perform a four or three balance and peste he erroneous lete concluded he misunderstood the law had an inappropriate view of the law but felt that his hands were tied and that all could allow is questioning about the underlying act he did not realize and did not accept but the ninth circuit the fourth circuit in the seventh circuit of all previously said it is totally appropriate to ask this witness to introduce himself as a lawyer whether or not he has been disbarred or suspended based upon misrepresentations and the why wasn't enough that they could be cross examined with regard to the finding of prejudicial than probative but that would be up to the trial judge to decide if the child did leave the other that's a question that was not the finding the trial judge made and frankly as we see from statements from the fourth circuit the second even the ninth it has been very common it is very on in the us to allow that type of credibility in the reason why is because when a witness says that he's been a lawyer for more than thirty five years that witness is imbued with a certain credibility before the jury that is appropriate to response to my pointing out that he has been sanctioned and suspended because of misrepresentations and a pattern until my notes indicate an amoebe run correctly from that court allowed cross examination as to the clued as to whether he had been found to have been dishonest in quote proceedings unquote without designating what proceedings those the offer of proof with the court discussed what questions would be allowed to administer oath and if you were a notary the witness said no the court allowed me to refresh his recollection with a question with a well wasn't there a finding in an earlier proceeding right that you had indeed made that representation there wouldn't be any substantial difference the dummy was saying had you been found guilty of dishonesty in an earlier proceeding and had you been found guilty of the psalms three in a bar proceeding with all due respect your honor i disagree and here's why if i would have asked may i refresh your recollection mr witness wasn't there a finding in an earlier proceeding where you had been found the witness would have answered or most likely would have answered yes but i disagreed with that conclusion that would basically be relatively unhelpful to me in comparison to what the law allowed me to ask namely weren't you suspended from the practice of law based on that finding and i made the d and based upon my reading of the cases including fourth ninth and second circuit precedent i don't believe the judge would have excluded that under for a three because other courts have specifically said that it is a perfectly appropriate line of cross examination of an attorney witness to ask weren't you just borrow suspended from the practice of law based upon a pattern of practice of dishonesty or multiple representations that has been perfectly well approved so i don't believe that and there's nothing in the record to show that the judge would have come out in that conclusion with a for a three analysis have the judge not made the mistake in thinking that he didn't even have the discretion to allow that line of question but you see what he allowed you to ask e r one ten a level which is was the refining in an earlier proceeding that you were dishonest doesn't quite square with your his legal limit is saying you can't use the name of the proceeding you can't use the name organ supreme court and you can't say the nature of the sanction namely suspension from the practice of law you can ask him was there some other proceeding that had this finding and that the judge errored in realizing that he really was allowed in his discretion to allow me to ask about the nature of the sanction or the nature of the other proceeding and  organ supreme court and i concluded that the modest amount that the judge allowed me to ask simply was insufficient to take the risk of creating a reversible error on that point because my opposing counsel was arguing that they couldn't even ask that type of question and so the modest benefit of being able to ask what the judge was allowing me to do i concluded was of so slight significance that when i couldn't get what i really wanted and that is to be able to ask were you suspended based upon a pattern of suspended by the bar and when you're suspended because of multiple misrepresentations of the pattern of dishonesty the judge believes he did not have the legal authority to allow that and i decided not to ask for that but the judge did clearly say that both sides can perhaps preserve this issue for hill now the important point of this judge's misunderstanding of the law is now is this reversible error or not thousand and five white clearly resolve that ambiguity of that controversy by saying when reviewing the effect of erroneous evidentiary rulings we begin with a presumption of prejudice and that it then becomes the burden of the other side the side that benefited from the erroneous legal ruling to show by a preponderance of the evidence that had the evidence been admitted it would have been result would have been the same and here i submit it is quite clear that had the evidence been admitted namely had i been able to ask mr couey whether or not he had been suspended by the practice a law on two separate instances recently by the oregon supreme court based upon multiple misrepresentations a pattern of dishonesty i submit it's quite clear he wouldn't have been believed by the jury he would have answered yes i believe about what i don't know that it is that's why i have much to do with the bottom line it did in two respects the this is a breach of contract case where my client expressly reserve the right to modify the contract and one of our defenses july but the bottom line is that the jury decided the modification was my that's correct and here's and here's where the problem comes in your honor in the jury instruction it s t r one hundred one of the elements of modification is that it has to be done in good  this coming year two thousand mr povey said no he never said that it was two thousand and one in addition mr quinn said and we gave them an opportunity to reduce any harmful effect or harsh effect of this i said you can go past the close date mr quinn said that you are one quinn and in a mess as mr clue get on key critical points of the harshness and the timing of the a rate change would directly go through whether or not the act acted in good faith if they're lying about what they said please the court i'm leslie roberts played it and with respect to the the appeal i want to start out by correcting what i think is an error that mr simon made with regard to characterizing the only two points of difference between this dick lugar's testimony and that of mr quinn mr quinn was a low level employee who had simply been delegated more or less the last minute to deliver a powerpoint presentation of the change or the new plan that was being imposed by decks after most of the performance or over half of the performance that occurred in the year nine hundred ninety nine there is no issue at all about what was said in that presentation that was on july twenty second one nine hundred ninety nine and there can be and there wasn't any dispute about it because it was the power point present presentation was there before the jury and  points in this plan many aspects to it many details and he admitted that he was quite untrue mill year with the commission program and he was aware that there was some thought about reconsidering elements of the plan mr quinn said that in his conversation with mr kirby he did say that there were elements that might be reconsidered but mr quinn testified that the elements that might be reconsidered didn't extend to the timing of the change in commissions mr coogee was under the impression that mr quinn was saying that the possibility of reconsideration was a little bit more extensive but mr quinn called him back of the commission's scale which was the breach of contract there was no dispute about when that was communicated it was communicated on july twenty second the only variation in the memories of these two people was whether quinn expressed that there might still be another reversal in other words that's might reconsider its refuted ation for three whole weeks that was not a point that the jury had to decide and in fact mr simon in his argument to the jury told the jury forget about that just take august excise the use august twenty third just take august twenty third as  date that they knew that this was written and done so he told the jury don't worry about that discrepancy you don't even have to think about which was right that's what he told them now he's telling you that that was now the br says that was an issue the jury had to decide why why would the jury have to decide whether it was august thirty on this twelfth or july twenty second that hope died for and for n s about whether dax would reconsider its repudiation which everybody agreed took place on july twenty second it leads nowhere and there really isn't an argument in the brief that it does lea anywhere and the only the only other discrepancy suppose discrepancy really isn't a discrepancy mr quinn said i knew that sometimes it was possible in some books that's what it would allow late submission of advertising and this strictly said he and tell me that it's not that it's not a dispute about the evidence it doesn't doesn't that and it doesn't matter because the the performance by all the witnesses that looks close ordinarily what's done is done you can't submit additional advertising now  employer could have a contract to pay you ten dollars an hour after you performed you says well you know i've decided i'm going to pay seven dollars an hour but guess what you can work overtime and you can get to that same final point that that d anywhere or doesn't have any bearing on whether breached the contract by changing the rates that does have a bearing on damages because everyone agreed that the damages were going to be the difference between fifteen percent commission on what they actually sold and twenty one percent commission of the actually  an issue of credibility and i wrote down what mr simon said he said he'd have to shoot a few fact witness on controverted facts and the only controverted facts are whether it took three weeks or not requires a credibility question and the other controversy hundred facts is this question of whether whether in some unspecified books as a plea possible they might have run twice as facts fast to get back to where they should have been under the under the contract with thomas those are really what i call yellow tie issues that is to say if what what this just time is actually arguing yes if mr quinn said i was writing yellow tie and e could change of course of the trial because according to the yes according to to the argument here if a low level employee is disbelieved about the color of his time then a rational jury could infer that when impact or an irrelevant reason is it was hard to avoid but it's there and that's right you did you really say that if this information was have or had not been kept in the jury there might not have been some impact on the on the verdict there would have been a possibility of an unfair prejudicial impact on the jury and that is exactly what the rules of evidence exist to prevent your and that was how counsel point is that the judge never made that delicate balancing point of four three so i think well yes it is relevant but it's more prejudicial and it is relevant he says a judge was under the misapprehension that the finding by the state bar later by the oregon supreme court was not within his power to allow him that is what the what he has argued in the brief however to inquire into the fact that there had been a previous adjudication that their witness was dishonest and statements that had been had previous misrepresent that i was a notary and in fact he said that he testified no i didn't say i was a notary when i wasn't then mr simon was permitted to say there was a finding an earlier proceeding that had occurred and i'm reading from our one one twelfth the court says i would let it go so far to be that there was a finding in an earlier proceeding that that had occurred simon has great handedly told the court that he made a strategic decision not to go into the existence of that earlier finding having made that strategic decision and now finding  t his client is unhappy with the result he now wishes the court to imagine that he had asked what he decided not to ask and that it still gone that way and authority to allow cross examination on the state bar finding and the supreme court finding it would have been an error right no i don't question have the judge said i cannot allow questioning on the hearsay determination of the state bar and of the oregon supreme court bad act for example six away deeper his counsel for mentioning of the witness was suspended or disciplined for the conduct that is the federal government pietschmann when that conduct is over only to prove the character of the witness if he had said i cannot allow inquiry into the opinions of the lawyers on the advisory and that are the opinion expressed by the judge makes reference to united states versus davis which also in which is a third circuit case also makes the point that reliance on the conclusions reached by another tribunals allow is a backhanded way of allowing the opinions of third parties not present to comment on facts in issue i i would like pointed out that what has not been ever determined is that it is an error for the court to do to shape the testimony in the narrative that the court did hear the court here actually went further than allowing exploration of the fact that there were other findings by a by a previous her body without naming without without naming it as  further to say that he could bring in the fact of the previous adjudication without giving it the emphasis of the luster of the oregon supreme court and without then going on to talk about the penalties which were imposed on the witness as a result of those actions and as a result of other actions and we argued we argued the presidential attacked of such evidence in that the penalty in a creek prejudgment interest runs only from the time the money is paid we're going to win that way your honor if we're talking about the money being paid and we're talking about when the commissions for pay the commissions were paid by a debts that the jury should be told that we that decks didn't owe any commissions until we paid them because we have no there was no evidence to wendy and voices were paid but the evidence of this particular contractual relationship and the gist of what the jury found by finding that contract reached by underpaying that of the conditions was that in this contractual relationship they agreed to pay us and the second circuit and fourth record opinions those in council presented the two thousand and three advisory comment and that is what prompted the judge to make an in an inappropriate or erroneous conclusion of law that he could not have the opinion committee comments and frankly its limitations judge posner writing for the seventh circuit in united states versus dawson we discussed in our brief four thirty four and thirty nine five six at page nine five nine explains that this advisory committee no two thousand and three really had nothing even to do with the amendments that took place in two thousand and three it was most an act meant commentary being added and what he really wanted to observe there is that six the way they simply deals with the concept of extrinsic evidence that is all and to the extent that the advisory committee comments somehow implies does is just give caution to the judge that there may be other issues besides extrinsic evidence but the judge should consider no we have to go further than you then i guess you'd like us to go if the judge makes a statement trial judge here misunderstood and misapplied that comment and judge posner would explain then that the reason i'm smiling is because i know and you know why you wanted to get in i don't know but i can suspect why you w that the judge could make that decision if they did the fourth rebalancing but i know still more than possible probable no i don't think on the reason why is because i look at the second circuit and weicker when they say it is quite common when impeaching an attorney witness question that he was asking would have had some bearing on the outcome yes and here's the answer to that and i disagree with my learned counsel the key is x it's good faith we have to show good faith modification and by pointing out this infancy distance between what mr quinn said he was the one interacting with the client and with what mr cooke you said enabled them to argue that deck's was not acting in good faith and therefore we did not in good