parties are saying they're two separate judgments and the jury verdict was two million one hundred sixty thousand dollars and the district court here in mind this was the third time this case had been tried the first two times  six performance call for the delivery of something that was also undisputed three hundred thirty seven thousand five hundred shares of stock following an initial public offering there's also no dispute that that obligation was breached that stock on the date of the breach may the fifteenth one thousand nine hundred ninety six and the testimony was simple and straightforward on that our principal witness was an expert john mayne who's from the bay area he said  the damages are easy i've been in these transactions for twenty five years you he could have sold that stock in one of two ways he could have dumped it all on the market which in which event he would have taken a twenty five percent discount or he could have leaked it out about two million seven putting it all on the market at once would have been about two million to the jury came back and said two million one hundred sixty thousand dollars the district court however said that because evidence had to be presented at trial as to the precise amount of the damage there was no way to know or ascertain the value the stock i e the amount of damages  you can't have pre judgment interest on that now put aside for the moment the fact that you get award pre judgment interest the first few times the case was tried but that decision as to the applicable l amount you can have an obligation which is a certain obligation and the fact that you have to go to trial to prove exactly what the amount of the obligation is doesn't mean you're not the stock appraised and what the what the district court did was according to statute appointed three of praise each of those crazy as was instructed to do an appraisal utilizing the three most common means of appraising fair value so you have three appraisers doing it three ways the report went to the district court so in essence you had three appraisals with using nine or nine separate methodology there is a date certain that the obligation or the performance was due and if the value of that obligation or the value of the performance is ascertainable by resort to market data or market information then you're said and and that was the value of the of the stock and what we have what the expert did if you can see from the from the excerpts of record the expert said well three hundred thirty seven thousand five hundred and there were some offsets what does embrace eagle tell the evidence of what the what the trades had been what the price of the stock was in the market you mean really the absence of market information and market data and we put it on through an expert witness who said look this is what it is and this is every obligation requiring you to do something on a certain date and we sure can't tell what the damages are by looking at them at market data because you know market data about the impact of an anchor tenant leaving a particular shopping center the other one is the g  parameters of the doctrine which the supreme court has said repeatedly if you have a performance obligation date certain you know what the interest rate is and the value of that obligation is after taina bill from from market data then the fact that you have to present evidence at trial to precisely calculate that the value of that obligation does not mean that you cannot get prejudgment interest so there is life south and stock and ship cases are they really fall well without while outside the doctrine and so with respect to the pre judgment interest we think that issues real simple real straightforward we're fortunate that we have a string of nevada it's we we have used may fifteenth ok that's the date that delivery that he would have had the stock so theoretically if it had been delivered the goods sold immediately or but that's the date with use throughout now one other thing too there was a there was a one year holding period alleged saying this was a stock that an insider had received cetera et cetera so the we're talking about the value of the stock on that day may fifteenth of ninety six are experts that i will assume you could start selling one year from that date you start selling doesn't affect the value because still as a value on that day it's just that you couldn't made the first sale for a the principle to apply was cited by this court in november of two thousand and two when we were here for the second time the district court had said that mr hart to me and even though he had been discharged would be entitled to thirty three percent of everything entire time that he's been in the case proper it's not proper because under the first contingency fee agreement when the judgment was paid after the first trial which was about seven hundred thirty two thousand dollars mr harkins took his contingency of one hundred  didn't actually recover on the first i mean he did it your honor because the judgment was paid the seven hundred thirty two thousand was paid right but i am your eyes the return line but you know that it wasn't on paid because mr the first contract therefore we breached this with that first contract was fully performed paid and superseded by the second contract and that  died it was treated as a credit and an offset in the second trial so what in this regard and ended up doing was the judge went back and arm did the first contingency fee agreement which had been fully performed and didn't do that this court three did that agreement as having been performed paid and superseded the only issue was what was mr hart tony and get under his second contingency fee agreement and this court the question is not if he if he approved him obviously he was there and he never said who was this but who has to pay for him he may approve him being there when mr hart and mr hart phonying writes a letter saying paying him is my interest when the money is when the money is due and what the amount is the rate is simple that stated in the statute when the money and do is do the court looks at performance when performances do the third factor is the amount it sets out a specific formula that you must use to determine the amount and to do that you've got to look at the contract except for the last factor the first is the some certain in the contract that's not it is true here the percent of whatever post one hundred fifty thousand that was for the stock your honor yes but not for some certain dollars the second is if it's performance the performance must be stated in dollars that's not in our contract and in dollars ye southdown case your honor i would explain as a three to result oriented opinion and let me tell you was no it's just that we still are there by the time we do but let me tell you why it's easily distinguished from this from the case we have in southdown it was a stock merger and under nevada's corporate statutes at that time the two paradise factors the performance and the amount that supreme court look to know that is corporate statute and they said we will be determined that through the corporate statute that gives us the amount we get the appraisers we hire them it goes through the courts that was the formula had nothing to do with the contract which is what the paradise case requires for the performance they did the same thing they went in they went to nevada's corporate statutes and they said this is the date of performance the date of the merger is the date that you became a creditor there or that was the dat performance but now they were stuck they had nowhere to go to find the right the only place they could go back to ninety nine zero four zero and they said well here's a rate of interest in that so we'll go use the corporate statues in this part and then we'll find the right over in this statute i don't think that southdown other than it is the stock in that case has any bearing on what happened in this case and the same if you move through the show case a careful reading of the show case show comply with paris if you look at that show was a predecessor an interest or was he came into the contract after another person party there were people in that contract and the court was looking at the history of that contract it was a rent contract if you look at footnote three of the showcase it says in there but show argued part of his pre judgment interest should be on the six month lump sum payment that's how we wanted it calculated from the rent contract and there's no discussion of how the court came to that but based upon those inferences clearly the court had something within the four corners of that contract to say if it's within paradise and prejudgment tell you what's odd here is that in many other states pre judgment interest would be construed as strictly as you would like to see it and that is probably right out of the traditional rule i will say  paradise and that's exactly what happened here so i'm still having trouble distinguishing anything that happened here from any of those cases where your honor in those cases have a formula to get the amount of stock in the contract but that has to be reduced to dollar damages as you know it's immaterial the jury has to reduce it to the dollar figure immaterial that's their word not mine but then if you if you read that case and you want to say that southdown if you want to try and fit it into paradise and you look at the statute and you say there was a formula for the statute it came from the statute the appellant argues that th expert said he could sell it in a block which he could restricted stock you couldn't sell it on the market but if you check the record to ninety six record on appeal at seventy nine when their expert was testifying about what the discount would be and that his words are it's impossible to really tell now let's look at the other way they tried to get a market price and established market price on that stock mr kennedy very careful use the word market data that's not what paradise ho paradise home says you need an established market price before you can get pre judgment interest the second way they got the established market price was they had their expert testified if you slowly leaked it out he would wait  hundred seven he would make over one hundred fifty small sales over a two year period and the figure he came out with at the end of the day on that calculation which six hundred thousand dollars more than what the jury came back with i submit when our own expert says one method it's impossible to tell and when another is off six hundred thousand dollars that does not connote that there is an established market price out there this gets us through the nevada case the janessa case dealt with two partners in an oral agreement it was a rent contract they did not know what the damages were until the trial established them now the new performance stage because they went back and they could see the rent every that deals with this this entire area john noonan wrote a decision talking about paradise and all the rest of this and allowed something very similar to what we have here you're not familiar with a race or you know you're on on the nevada law under the paradise factors you need all three the right again which is statute the amount which is at issue in this case and again the only way of helen to said they determine the amount is relying on stablished market prices not the i guess here's the thing is that even though it's a little unfair because you don't have siegel in front of you but basically the argument made in single was the same one here we where parties in a single case it was exactly the same argument that was made and so boils down to whether the fact that you need the jury to come up with the amount in case we've got a four sentence contract that's the difference if there's a formula in the contract the parties may differ on how to factor in that formula but the contract as a formula why isn't there a formula again i'm not i'm just not following  right there is four and a half percent of x plus y equals a formula your honor there is a formula for the shares of stock but i guess you became reducing the stock to damages we paid the stock the appellant did not want to take it we paid the first judgment the appellant hurt that and now he's warning on all of this time prejudgment interest but the formula goes through the stock and just as the ninth circuit said in its earlier email and order the court should not have stopped and they are the formula should have kept going through the damages issue and to say that the damages were based upon established market value would be to ignore the language of the ninth circuit's remained in the last case of the items that needed to be found and it would also be to ignore the necessity of a two day jury trial to establish the value of the stock if this is taken in a different context if we had a personal injury case here we would  well you know i'm going to get this prejudgment interest because we don't know you know it's not there's no way to determine what pain and suffering was on the date of the injury maybe i'm lost wages that were not on pain and suffering and here they basically tell you on the question you get four and a half percent of the final evaluation of the commons so the only thing that's missing there is is the figure to which to play the four and a half percent if if i'm following following you correctly you are saying that you take the formula and the formula gives you a multiple and that gives you where you come out with the three thirty seven five hundred and then we are missing the extra time else to multiply first payment what they're saying is that the amount i was in one thousand nine hundred seventy after that that tentative recovery which was later reversed paid me for my time spent up until that time but that's just plainly wro what i was paid at that time was pursuant to a percentage agreement which was later found i think but the percentage of green at that time called me to get a certain percentage of any amounts recovered and of course the economy played a percentage recovery of the final recovery and then i was paid that amount because the amount recovered was x and i get twenty five percent of it if i had if we had become a ten million balance and i had only put in a thousand hours i would still get that much of free or if the amount was ten thousand dollars and i put in ten thousand hours i would still have gotten the agreed percentage so the idea that i was paid at that time for the time and work and services that  are simply wrong when their agreement was later terminated by the client there was no other way for the for the court to do a quantum erowid determination and to look at the whole case incidentally i suggested that the court oranges to say that this recovery here marks the time when we're going to ignore all the time spent before that as a matter of fact as i pointed out in the brief time spent before the first recovery didn't just produce that time so for that reason you cannot really separate one piece of the work of a case for among other in deciding how much contributed to the final result and so it's pretty clear that although we the district judge for several things his methodology was correct in taking the whole case and looking at deciding how much the total value of the services was and then subtract the amount which i had previously receive i'm a question of outside lawyers there is no rule no case no statute nothing anywhere that her business the lawyer from hiring outside counsel lawyer it was my expense alone because i was working under contention crack and he would have had no responsibility for doul the second thing is even now in retrospect now that it's a lodestar method of the term in the value of all the services it still doesn't increase the cost to him because the lawyers whom i hired had all really rates lower than mine had i done the work instead of them it would have been hired that way instead of  nothing to do with this question nothing whatever let me give an example suppose a client comes to me as it was the case fair and i sign an agreement with them i don't have to walk that client around to every employee in my  do they hire lawyers they are in the firm well i was what i was going to suggest is that the analogy is so close that the answer is that the lawyers verse that with judgment about who he's going to use to help him in most cases there will be employees of history and as a matter of fact if after the clients times the agreement i then hire a new lawyer someone never contemplated by anybody and that ruler comes into the forum i don't have to get an agreement between the client and that no lawyer i can parcel out work to him and that's because they hired well correct and it's because he hired me and gave me the discretion to do things like this for example he gave as a lawyer must must be entrusted to the judges to the lawyers judgment who is going to hire to prepare exhibits who's going to hire as the next group witness all these various things that are entrusted to the lawyers judgment who client doesn't have he doesn't have the expertise to take part in that and so the idea of hiring an out so lawyer and handing in this case over one hundred thousand dollars of services that he should get f expense of mr jones or the value of his services i don't know where but none of the others and the other workers who include my own employee lineberger and my former partner bradtke and those other three lawyers that i was the former district judge and one is a former clerk of this court and others in office associate of my consulting about the idea of possibly waiving the remained after the first trial all of that time the judge refused to compensate me when it comes to over one hundred thousand dollars and that's just completely wrong because the client does indeed go for that and i can't help but make it sound like i'm sticking my nose in somebody else's business but he owes me pre chosen interest for that and i made a point of with respect to what mr hart tuning in said about hiring other a boy is to help him and having some sort of inherent authority to do so the can't one place that we cited and i think it's called handelman involves a lawyer who did that and was disappointed by his bar association because he didn't have the client's consent to do that and the discipline in that case said you can't go out and hire someone else to divulge your client's secrets to them matters that you're supposed to keep as confidential and allow other people to work on and what you have is and that that cuts right to the heart of the problem you have an original contingency fee agreement you retain a firm on a thirty three percent contingency fee and that's paid and then the firm says oh by the way we have our least charge can fill out a little form and tell us where to look in the record for mr bradley is the partner mr berger is an employee because i don't think any of that is in the record or was argued to the district court to get this far on these issues we don't know who these people are more they fit into the picture well that wasn't that was not my burden i simply responded to the the request for these people by saying in essence who are they my client mr rakesh the never agreed to hire them and has no idea who these people are that he's getting paid who are there and my client has no idea who they are but that's in our research in our opposition to the the motion i don't have in front of me but i'll provide the other side saying when you say who are they that's not record i don't believe that they rakesh knew who they were had agreed to hire them or precisely who their status was the argument that was made in the brief was if there was a citation to c j s and a couple of old cases that predate the adoption of the model evidence there's no evidence to support them what we said was and i obviously paraphrase it who are they we never agreed to their hiring and that's in this harassment affidavit that is attached to our opposition we go through the record we're going to find that was made by a w i that somehow there is a formula in the south down case that was simply followed there's no formula in that case what the district court did was appointed three appraisers and said go out and do appraisals now that's pretty close to what we did here my final point the characterization of john mccain's testimony which which was something that john mccain was our expert on valuation which it was characterized as something well i really can't say i really don't know if you look at excerpts of record t ninety six at page eighty beginning at lying and you will see my question where i say ok if he had done that if he had just dumped it all in the first day that he got it or he was supposed to receive it did you do that calculation answer i did i don't have that number committed to memory so if you're going to ask me for that you better give me that number but it's close to this number question it's three hundred thirty seven thousand six point seven five that's correct and  he says ok and i happen to have done that calculation i'll have to read it two million two hundred seventy eight thousand one hundred twenty five dollars i mean he doesn't say i don't know or i'm guessing he just as there it is i've done the calculation and that was mr maine's testimony thank you counsel thank you