american dream and part of the law in washington is that we have the washroom on the discrimination in title seven that allows me to come to this court and act as a private attorney general and help somebody like mr conti regardless of his economics regardless of his social status and give him excellent representation and part of what the case law says is an order to make sure that mr conti as a same type representation as these corporations he needs to have his counsel compensated the same way an employer's lawyer would in a case like this and in this  case an address the issue of fees first and in this case mr conti provided substantial evidence supporting his fee in cost petition you provided testimony from eight of the best seattle lawyers representing both both employees and employers and they opined on the reasonableness of the rates results the time on the hours and as well as the reasonable mr the thirty five thousand dollars in costs and marino versus city of sacramento your case your honor holds that the defendant's lawyer must shoulder most of the burden in support of reduction of fees and that's because that lawyer typically has the motive attorney leon did not come close to meeting the rip the burden of rebuttal she relied on hearsay information it lacked foundation she did not come to the case until late in the game a couple months before the trial and she did not provide the court with a record to do what the court did the court discounted the fees by fifty four percent based on what the district court said was limited success in excess of work but the evidence doesn't support that indeed there were errors of law in interpreting forty nine sixty that should be reviewed to nose or use proving both limited success and excessive work but that are disputing both limits to success and excessive work i am ok so you got everything for your client i guess the only thing i guess i didn't get from my client would be punitive damages but these are alternative theories damages whether or not it was age discrimination retaliation or or what we wanted which was race or national origin their alternative so as far as success believe that it was successful and the courts idea of reducing fees based on the amount of the dollars ignores a fundamental issue here in fact that the district court did not cite to a single wall ad case and did not even mention one word about the social value not saying that we didn't get everything we asked for in fact we improved the position that mr conti had that he was willing to accept in a mediation with a blind offer i mean initially i tried to get him rehired he improved his position i think we asked the jury for maybe three hundred thousand and he got very close to that but what i'm what i am but we left it up to the jury and what i'm saying is mr conti received his full measure of compensatory damages regardless of if that terminations or that p court where there was one of four that that is a complete success as to the dollar amount what i'm saying is the court didn't take into consideration the social value of these claims as well like the court said of martinez citing the us supreme court in rivera and city of riverside that you know it's not adequate measure the money is not an adequate measure or an adequate adequate yardstick threesome etching that is the district court relied on the amount of damages to say lack of success the district court relied on alternative theories to basically reduce the amount of damages in the law doesn't support that and the court cuts need to be based on the need to be clearly articulated the reasoning does and backed up with admissible evidence in the courts cuts based on the amount of damages is not supported by the case any any cuts that were done by because of reducing fees based on not winning on age are retaliation is also not supported by the law and as as you your honor s in overturning the district court rare indeed is the litigant in doesn't lose from skirmishers on the way to winning the war lawsuits usually involve many reasonable disputed issues and a lawyer who takes on only those battles he's certain of winning is probably not serving his client vigorous enough losing is part of winning and if you i believe if you look at the docket look at our summary judgment the district court didn't read what the district court s no separate preparation or research done for the unsuccessful retaliation each discrimination claims little little there that was not the there were pattern instructions on all that and it's ad age ad race and that was not you know for example the reason they made sense is because you have somebody who was sixty five who was basically removed from them from the microsoft group and everybody else was a lot younger that didn't take a lot of work this concept that the defendants argue that that there was a separate time for that isn't significant really it's an alternative theory with the same adverse reactions under the tort reform intentional torch don't apply especially when you have an indivisible harm like this one but don't you have to show that mr leon was involved in all the adverse decisions against mr county the record supports that he that he went ahead and bust other what he did or he didn't do but i don't think it's about it's about collections it's not about what he's liable for if you look at the scott paper case that's about what someone can be liable for joins up a liability goes to collect made please the court andrew kinsler scuse me here on behalf of c s t and mr jay leon a point of clarification does the court all allow rebuttal time on the cross appeal or in my limited to one presentation thank you roger i'd like to start with the issue of joining several liability it is the it is the plaintiff's contention that r c w chapter four point two two our tort base d comparative fault joint several liability statute applies to a discrimination claim the the the essential problem one of the essential problems with that argument is that there is no comparative fault in discrimination claims there is no comparative fault you don't have on the verdict form that was the plaintiff comparatively at fault for the discrimination against the plaintiff so it's this case a discrimination claim does not fall within the comparative fault statute at all and there is no washington case which has said four point two two applies to a discrimination case and so that takes us that doesn't answer the question is there is there not joint several liability and i think we both cited the same case which is the c first shoreline concrete case which is the pre existing law or the law that exists outside of four point two two which was a tort reform statute so under the sea first versus shoreline concrete case there is joint and several liability if there's indivisible harm and each defendant caused that harm so then we look at this case and we say was there and a visible harm and each defendant caused that harm well the jury was asked the question what harm did mr leon cause and they answered the question and they gave a dollar amount so they thought it was divisible they gave a decision with respect to that and so we don't have joint and several liability with respect to but that's that's a completely illogical statement because there were many many employees acting on behalf of c s g that were talked about in this case and and c s t is liable for all of them and so the fact that the court then says well what portion is mr leon responsible for that doesn't make it in the visible makes it visible the jury found it to be divisible and argument that  the visible doesn't get us anywhere doesn't agree with the jury verdict that they want to have stand so there is no drop in several liability in this case i would also a liability for ten thousand dollars you're making in a very strong argument for something that in the scheme of things are fairly small amount of money ok so i'm not communicating well what the what the plaintiff wants is to recover the entire hundred ninety two thousand dollars verdict against mr leon that's where the joint several liability comes in that's where it comes in it's not the it's not about the ten thousand dollars it's it's about one hundred ninety two thousand that's why it's important and then they want joint several liability for the attorney fees as well which is obviously the thing that they're most concerned about here and so they want mr mr leon to motion to amend or alter a judgment and no such motion was made after the judgment was entered the plaintiff has been there was never a deadline for any objections as well that was even shorter there was you know and no interaction was made none was made in it didn't come until but forty days later on a sixty b motion correct and it was fifty days later i'm going to turn to the same decision defen e i think it's a fascinating legal issue we have this question of was there was national origin discrimination a substantial factor in the in the decision  to offer mr conti a lower paying job than the one he was than he was being offered than the one he was working up before and of course we all know that as to the title seven claim the jury said that the same decision would have been made in the absence of discrimination which means there's no damages recoverable under federal law no bill of the to get reinstatement but there is could be some other injunctive relief and there can be attorney fees that can be awarded under those circumstances no other injunctive relief was sought no relief was sought that i'm aware of under the federal law once the jury made that decision so then we go to the washing law against discrimination we have basically the same standard but does the same decision defense apply or not and we have a number of washing cases that we've cited sense the davis case which have said that if the defendant would have made the same decision then the plaintiff fails in their causation analysis it's basically a shifting of the burden of proof that the question interstate lho was not asked was it to the jury that's correct it was not asked and it are you saying that the burden of proof  the standard is the same and both yes i am yes i am and that's why i'm saying as a matter of law we get to the same result now the argument from the defense is that the same decision defense i'm from the plaintiff is the same decision defen under the old davis case back from one nine hundred eighty was the same decision has to be proven with clear cogent convincing evidence that standard was not presented so if if there right that that's washington law that you have to prove the same decision defense with clear cogent and convincing evidence then there's no finding on that and there's no finding on that because there was no jury instruction to that effect with that burden of proof i understand that and so why wasn't there such a because it would have been your advantage to have it maybe in less that's not the standard because it's our position that the standard is the same what if i conclude that they are different standards which i am i confess i'm tempted to conclude well i think that if you're tempted to conclude that then then there's no jury instruction was was proposed with respect to that issue i would just suggest that the world has moved on from the clear cogent convincing standard federal law has moved on from it all other state courts have moved on from it and it has not been addressed in washington so it's an unknown issue in you know i i think that this court is going to give a lot of deference to judge jones is analysis that he went through this very carefully we we were we disagree with the amount of the fees that were awarded they were substantial but judge jones went through a careful analysis he was the one on the firing lines who heard all of the testimony he knows what was successful and what wasn't successful he knows what was excessive and what was not excessive in the trial court so i think that this court is going to give judge jones a lot of deference i think this court should give judge jones a lot of deference i think that if the court agrees that the issue as judge jones teed it up the issue of the same decision defense if if were right that it's a preponderance of the evidence standard then it's just a legal if the jury's decision is the same for the washing logons discrimination as it was under title seven and that the should be no damages awarded that changes everything and would require a remained for redetermination as to whether even any a fees at all are appropriate because there would be no damages and no relief was sought other than damages and so i think that would require remain and i would ask the court to consider the points and authorities that we've raised with respect to the amount of the fees but i think that that i have a lot of respect for judge jones and i think he clearly understood the importance of the case and i think he clearly understands the value of  plaintiffs bringing cases where they believe there's been a discrimination and i think he applied the analysis as in an appropriate manner what about the plaintiff's argument that the retaliation and age discrimination claims are really part of the same common core of facts that they were just alternatives with only slightly more work involved in preparing them and like your reaction to that i find that in an incredible statement i really don't think that's a credible argument the whole idea of his wife's illness and going to his wife's hospital room and as i mean it took up a lot of time a trial talking about this whole issue which was all about the retaliate in question and i just think that that that is contrary to the evidence in the case ok thank you very much most of the language so yes you are you can't hold back on a supposedly critical legal issue and try to use it as a free pass when you lose a trial that's why we have rule fifty one where the ninth circuit basically is one of the strict just adhere to that rule and here they didn't propose an instruction they did not object to the verdict form which allowed the exact result that the jury did you under the verdict form you could find a you know what if they're not coextensive you could find for the state discrimination there was no affirmative defense the jury jade with the jury was understood it should do  so and you know in the end in this young case the court basically held that even when it was just the same thing with the verdict form where you had a state discrimination claim that lost on substantial one on motivating that the fact that that wasn't put in the verdict form was waiver the verdict form allowed for the result that we had and sight if the jury found  if the same action the same conduct i think you've got a lot of the cases which we should be talking about not what someone could have done or what the court may have done which they're saying it would have evolved to something there is we've got basically if you look at substantial factor  the language that was unique to the to the state claim said substantial factor does not mean the only factor or the main factor in the challenge act substantial factor also does not mean the decision would not have been made but for his race national origin or age and the way judge jones interpreted that i think correctly is what that would mean is that you could basically still have fired somebody but if if somebody is protect status becomes part of the decision in washington that is discrimination it's actionable so you've got the language and stansell factor basically rejecting the same decision language and allison in these cases judge ma justice madsen said as much said there goes the same decision defense when we adopted the substantial factor in allison she said that in reference to mckay so i don't think that there is a same decision defense in washington and if we're going to say it still exists it's not part of the pattern instructions and it would be clear and convincing and would be it would be an offense to liability it would be a back to back pay at best as to us not asking for injunctive relief it's because mr leon sold his business for millions and basically there was no business we tried to move to get successor liability and and there was no party that conti could have gone to work for we would have asked for injunctive relief and we did win under that part of the statute you may have just answered in part the question i had i flipped by flip the parties by mistake so you're trying to get  silver a liability for mr leon for the entire amount above ten thousand dollars why do you care so much is it because you're worried that the defendant is judgment proof of some fashion i think the defendant i mean we've seen i'm doing this mainly for principle i mean leon his declared bankruptcy we  that information services went under and then came back alive when they filed their appeal so i mean the best we can really hope for here probably is to take this judgment and try to get successor liability judge jones didn't give it because mr we on like they're worried about leon mostly and so when the court found the damages were not in divisible and senate deadline for objections you didn't meet that deadline and had to come back with a motion a different kind of motion forty days later why why why didn't you object right away i don't think it really occurred to us right away i mean if you look at the transcript trying leon is basically saying to the judge is this a subset of the same damages or is it and the judge basically said you know i disagreed with her i don't think it really occurred to me intel i really saw that it was a collections issue and then really looked at what does he mean when he says ten thousand of the of the one ninety the reason i think it's indefensible though it's the same but it would be different if it was ten thousand over and above what are you going to that you would have to show extraordinary circumstances to reopen a judgment when should yes and i think pretty extraordinary circumstance was also i was i was i basically was dealing with another appeal in another case and i had a very sick associate and the time just kind of lapsed we were trying to figure out the the trying to figure out the injunctive relief portion of  that but as to the joints so i don't i think is that i don't think it needs to get certified to the supreme court as much as i would think that would be very interesting in the sense that you can't get past rule fifty one you can't get past the seventh the man amendment in the sense that this  jong and also in groves there basically says we must accept any reasonable interpretation of the jury's actions reconciling the jury's finding by exodus if necessary i mean the jury the case speculating about what it should have been it just basically sets creates a situation where somebody can completely just sandbag and that's what they said and jong the american jump seafood you can't i don't think they thought of this issue at the time where they would have made that decision so the other thing i want to talk about with the judge's order your time this morning oh my out of time ok all right you thank you very much