quite simple there was no opposition a trial there's no opposition on the appeal i think respectfully judge altera with several rules to consolidated my case and issue that had nothing to do with the claims that was set forth in the other earlier case where the clay case of retaliation it was similar in nature because the parties were the same other than that that's the end of it was independently brief serve answered and  time i'll be here arguing in front of the ninth circuit i've been here two times before once i was a plaintiff and once i was here watching the person who argued after we helped her with a moot court so i'm really happy to be here and get to argue i am the person who drafted this long complaint and i take full credit and full blame to the extent that blame is due but i believe no blame is due i went to hastings college of law where i took a class i'm not very authorities of our court there's a case that looks to me as though it's just right on all fours with this one and i'd like you to talk about how if at all you can distinguish mchenry versus ram eighty four after the levin seventy two it just seems to be exactly the same sort of thing and i frankly do not see the distinction so i need your help if there is one yes i can distinguish that  then what's in visioned is a whole panoply of discovery opportunities to lay out what the specifics are for them to decide for them to discover discover from you what it is you're really complaining about there's no need it's about nine pages long and just basically lays out the current retaliation you don't need to lay out you don't need to plead sixty five pages or whatever it was it's just under necessary the head you just simply laid out the claims you would be going forward here's my comment about that well the problem with your comment though your comment needs to be couched with the purposes of rule eight in mind not as a judge kleinfeld just said not based on what some teacher has told you or not something that you think is a good ideal way of pleading in federal court because it going to say is ninth circuit law and the law of all the circuits otherwise your honor i disagree and the reason i disagree with this mchenry talks about the problems with the complaint as being as i said that it was ar and it's all right to plead evidentiary fact if you look at the authorities like we did it what we said in mchenry was that when you do this sort of complaint you're in effect creating a secret complaint because the only way a judge can figure out what the complaint is is by making his own outline in chambers which counsel do not have so you're imposing a tremendous amount of time on the judge and then a great deal of time on the tense counsel the time you impose on the judge  figuring out what it is that you're suing for is taken away from other let against who follow the rule to make it short and plain and the time imposed on the defendant is not excusable so what we said there was look at the forms and the complaint should resemble the model of the forms your honor their forms right now back to the federal rules of civil procedure your honor there is no rule that requires people to follow those forms and what i was going to refer to is that page twenty one page twenty two library which is the authorities the treatises that people use when decide how they're going to plead their complaints that's right in miller federal practice and procedure and also shorts or federal civil procedure before trial the writer's group and the writer group is an excellent guide that many people use  say and that's why i began by talking about even jefferson patterson they say the same thing that he taught us which is that you may plead facts in order to do a number of things you please the facts to educate the judge about your case so that instead of the judge thinking this was just about someone who told he's been fired because he's black this is about somebody who worked in a place for eight years and who is your ass it's not really if you're really a cop the goal is to educate the judge you want the judge to read everything you've written actually you like the law clerks read everything and we also want the judge to read everything you've written this paper because i happen to read everything that usually is presented to me and the that what was eighty one pages with eliminating one defendant expanding the margins or remarrying them i guess was expanding the margins whatever it was and that was the response to the court now why would somebody do that i don't understand two things if i might if you'll give me the instance page one complaint i'll be happy because i do believe that the original decision that it should be dismissed for being too long on was incorrect and a rule and i do and i can  mchenry and i want to add on that one of the other reasons for making a complaint is not only to educate the judge and to educate the defendant and i'd like to say a little bit about that  hurd's trial attorney she was this trial attorney not i but she asked me to do this on a contract basis she had asked me previously to do a complaint for someone with a similar issue wrongful termination say you know file another complaint and what if you get what does he get the same thing you know and i'm not here to defend that i am here to say that that was a reason that she should have been sanctioned but not her didn't this prestige or fall of failing to file the charges because he just put him in a terrible situation isn't this plane of hurt by what was done with the second plane oh absolutely you think about that when you when you had an order from the judge to shorten it you didn't clear because let me explain my role in this whole case mr spence got to get mr hearns on as her client i did not work for her i was retired but she knew me and she asked me because she had been a d a for eighteen years you have very little civil experience i suggest if you go on with your other well that your but i think it's very important because i do not want you to think that i had anything to do with not shorten down and fact she was the only one who was ordered to reduce that with cares not about sanctions case against lawyers it's not a malpractise case against lawyers you're right it's not a malpractise case against her but what it is is a have nothing at this point really to do with rule eight except as an underlying issue he was really angry and i used to work regards to him and and his order was very circumspect but for him i can tell he was very upset with her because what had she done he gave for eighteen days leave to have men and it was dismissed without prejudice and she did not appear and then he issued an order to show cause which she ignored she did very suspicious about her client and unsworn statement which i've never seen an attorney do before very graciously gave her another eighteen days leave to amend the complaint and what did she do she not her she changed the margins to make it look like she had shortened it from point she took out a few words here and there she took out a defendant and that's all she did and in response to that hearing which was clearly intentional your he dismissed complaint with prejudice now who was that fault it was not mr hearns he was not a father he's got valid claims it was only his attorney and the decision to dismiss the complaint ordinar ordinarily underwent versus was best for quiet is bound by the conduct of his attorney ordinarily and it is only in the ninth circuit that rule sixty six applies and if you conclu that her conduct was egregious it was gross negligence and egregious misconduct you can save her clients from the result of her behavior and if you look at his record in this case what this woman was doing was more than just making a mistake this is where i come in because i thought we were on behalf of your client your honor i cannot sue her on behalf of him and the reason i cannot is i am a witness to what went on somebody else can sue her and you know what it's not so easy to find an attorney as you might think and so he has been representing himself he filed a malpractise complaint against her and i just got a letter about two weeks ago in which he has dismissed claim against him with the county staff so now let me let me dance back to something i've said before it didn't sound right to me so i checked on it and now i'm more confused you said that the case was not dismissed for failure to comply ruling but i'm looking at the judge's order page two sixty five of the excerpt and the judge says the court will therefore dismissed hearns first amended complaint with prejudice for farrier to obey the june twenty five he's talking about is how he brings up again the fact that she didn't file a first of many complaints at all that she didn't respond to the o s c that she claimed that she didn't get these my name is james autumn and i represent the defendants in the colonies in this case first of all i think it's important to point out that it's an abuse of discretion standard that the court has a point and i won't belabor what i think is pretty self evident  and there was a lot of what i would call monkey business after he issued that order where there was no response to judge him and did not act precipitously in fact he showed great restraint could couldn't the judge have said to multiple chances finally when she did file the first minute complaint it was a flagrant a flagrant violation of the court order the margins were changed essentially in the court goes through in his or in his  order of dismissal and analyzes it pretty carefully in addition your honor and we heard it just this morning plaintiff continually refuses to accept the fact that the complaint is not in the first when the complaint do not comply with rule eight i think that's pretty telling evidence that another sanction probably wouldn't have done any good we would still be we would have still been arguing about whether this sixty one page or eighty six page complaint complied with roy  so i think that's compelling evidence that other sanctions wouldn't work there is evidence in the record by the way that the plaintiff is not blameless in this there is the declaration of the new the titians got the first lawyer that says she she had to argue few minutes the community dental versus panic which is the case under rule sixty six sixty six it's been cited one of the things they point out is in giving that plaintiff relief that he was not at all involved are to blame lawyers conduct except in very very unusual situations there is a malpractise remedy that's available that if a lawyer but to me if a client didn't have to live with the consequences of the lawyers decision our system couldn't work i guess was common thing as a lawyer screws up misses the statute of limitations totalling up clients fall that's correct and there is a remedy to the client in that situation but our system wouldn't work if every time it was a bad result because of a lawyer decision the client come in so i'm not bound by that by the way on the community done over stanny case which is dealt with sixty six i would like to bring the court's attention to a later right circuit decision decided after this case was briefed called versus trainer worth paying for fifty two f third ten ninety seven which seems to restrict the townie case to default judgment situations so ten anything extremely narrowly construed by this court you know fact judge  now or even more because we technically only have this on a sixty six yes that's right playing now you know usually in my experience as a district court judge when when we invoked rule eight which is actually very rare to be honest with you first time i ever we don't do we don't do very often but it was antitrust complaint it was about fifty six pages long did oral copulation play some part in this case not not to my knowledge i couldn't figure out why it was in the complaint is it an eviden a little bit more leeway than an attorney this this and we talked about grandstanding and that sort of thing they did take the opportunity to send this image vapor news in the newspaper about to go bins and all that kind of stuff may be irrelevant i think it's outside the record but it does tie you know some layers tend to be more windy than other lawyers well windy is one thing and mr to by the way i agree with mr trills position on this appeal i don't think his case should have been dismissed mr true else complaint is a good example of it's a retaliation case on behalf of the same client against the same client but i don't know whether the twelve eight or nine pages or something like that less drastic than dismissal would work which indicates he considered them and then he says he gave her a chance that she gives this she said she didn't receive these things are to understand  know i understand that as a matter of just policy ordinarily you want to hear disputes on the merits but there's other judicial polls he's at issue here and of course an important place dealing with serious issues and all this stuff you look at the complaint looks like a pretty serious case yeah what i was going to say though is that the rules are there for people to fall so the courts can get to the cases and not have to have secret complaints and not clog up the court so the people that are obeying the rules can have their cases heard in by the way mr hearns is not out of court just or trial i've conceded he can go forward with his case and move will fight that one on the merits that if i if i had one thing to emphasize i think it's if use of discretion standard here maybe they would think judge him and could have done differently than he did but i don't think  reasonable court could say that he abused his discretion in doing what he did he gave them multiple choice multiple chances he was faced with what i think was a pretty egregious thumbing of of someone's him she didn't lie to him there's no evidence of that that's what ted he said affectively no representation obviously she didn't do a very good job but under our system you can't relieve a client from all the consequences of what his or her lawyer does the system wouldn't work otherwise and i think an appellate court should allow a district court judge who is there dealing with the situation to manage its docket and if people are go dismissed she didn't tell him that i was trying to get ahold him because i couldn't figure out why the case was dismissed she told me that she was going to put me in touch with him because he'd been sent to the reserves and i couldn't get a hold of him to find out what was going on she lied to him she lied to me and she had a reason because she knew what she did was wrong and she was afraid i'm sure that he was going to silver well in terms of these various standards i think my grief covers that and i hope you will give this gentleman relief from