electronically recorded for posterity to mediately it's no longer red tape you can as a matter of fact today if you wish after all argument go back go right to the supreme court site and summing up the case and universe so don't simply assume that if if there is a factual nuance that were totally aware of it at the time you want to discuss it without first alerting us thank so i understand that since i've got such a short time let me just quickly skip to the heart of the matter and i believe that there are two critical issues that require this court to remain and the case to the trial court with instructions to reinstate a jury verdict in the amount of four million dollars the first reason is i believe that it is absolutely clear from the record that the trial judge jed certainly on the right got a tremendous amount of respect for he conducted well i thought it was a great trial however he admitted during the past track proceeding said he's not always correct and if you were at risk correct he would put this panel out of a job risk of throwing a wrench in th serious i'll defend across appear now that and that's the second point that i was going to raise the remember chair eric i believe the most critical issue on the cross appeared relates to i think to what justice hoffman a said in the case and what justice murray said in the suppressed case they don't appear to rule blanket we rule out the award of damages not economic damages for emotional distress however i think there's a consensus in all three of those cases that such damages will not be forthcoming with the a which is gone through some degree of expansion by the courts but they asked me something more special amat i'll be for the such damages would be a college id any legal malpracti and basically because of the floodgates problem in other words the fagots problem always fun to emotional distress cases that see the extent that the ghosts were exercise an attorney basically to protect your rights or to assert your rights so as not to sustain emotional distress he in fact fails in bath and he can't otherwise be there can be no recovery then in that particular case there is no way of controlling that attorney through compare and sation and the only way would be through  his level if it's conduct reached a level of impropriety so as to be disciplined by the air d c or by his by his peers so that you know the words if you hire at the time that he was the lawyer requested and the judge denied that request based upon the lawyer i understand where the immigration s eight yes which would not permit this is that how the judge ruled yes all right now your expert on this other issue about immigration law did not practice in the notice for the reason that if there wasn't a medical malpractise case and there was a question as to whether a doctor committed now in practice you bring in expert witnesses and the jury has an source of knowledge that he has available to him to determine for all including recruiting the lawyers so that this isn't really a matter of presenting odds of three or in evidence it's a matter of middle ground which is the same that the doors are not totally sealed against you words such and i just but there has to be something extraordinary about the events that  retained his lawyer that when he retained his lawyer his lawyer made some overt efforts to get him back and then that his lawyer was retained  january twenty ninth and was discharged then june the seventh so he was there for only four months off and bet he's claiming recovery for two twenty five months when it could have been cured by other lawyers that the question of whether it was curable or not is oh my god it's not it's ok qt it's not but the front of the indictment claimed it was a class four felony which it apparently was i've ritual of the two years sentence of which all but four days were spam dead odd that the suspension did not necessarily terminate the imprisonment but that the imprisonment according to various cases are supportive of the fact that even where the deemed to terminate on the date that the actual entire period expires so that you don't really have in this case a dramatic instance months would have brought on this particular state of mind although that is an issue that i'm certainly not closing the door of in discussing whether the court was right in  the remember her but odd but it is clear that you rejected the notion that that state of mind could have been brought out in by four days because that's what was raised originally and use it for days isn't enough so evidently it's not a matter of events without with in disregard of the chronological duration chronological duration has meaning it was through home with him for months there is some and a minute and then because we have to hear from mr guy who is at the cases this morning we really have to move on line i apologize apologize i'm just going to quickly say that i believe that there is a foundation upon which this pork and can take it yes a little step further into that rationale in the thinking in those cases here and if this court does not do that then this court is going to yeah i try to use immigration attorneys one volume eighteen page two hundred the discussion with our expert was after you've argued your case to judge serbia and judge serby finally makes his ruling should you continue to argue or take an appeal in good advice most of all in the circuit court normally through while you've argued your sole purpose of maintaining a legal position which would do only one perform only one function basically to give you peace of mind which is another way of saying the function would be to overt the emotional distress that the failure of that attorney to perform competen emotional distress is that what you said i would i would say there is no cause of action for a motion of the stress under the facts of this case i want to dress not in i'm asking here were a general question that's not you're s given us what a lawyer malpractise action is and what the recoverable injuries are i would say yes i'm saying that but there if we were so i wish we could if we were here debating a case where the lawyer had wrongfully failed to defend a criminal and the criminal was wrongfully incarcerated deprived of his liberty interest and so on and so forth we could have a heck of a debate but as it's just this big price already brought forth this case isn't anything like that i claimed didn't cause the particular probation sorry file well then we look we look at the conduct as you is i think you mentioned in your discussions with mr stone we're talking about intentional conduct willful and wanton conduct i think you make that point  longer need work but we look to the nature of the distress so that it all it meant is that he had to walk spend a night in jail that's one thing but if he spends four months in jail and  without any promise of alternate redemption ah that's another should that be a judge should the judge be deciding that our ship jury said well again i think you have to take in is one of the interesting things that occurred here in mr stone alluded to it was just before this case went to the jury there was this rather arcane discussion among the lawyers about who ought to decide the issue of proximate cause whether it was a legal question or whether it freeh which basically summed up this way he said that if the immigration judge had been provided with all of the information he should have been provided with by the attorney he would have granted now mr stone immediately realized he had a problem there because if you submit that question to the jury they have to die decide what to charge or would do when he was granting a bond so he said oh well maybe we should let the  particular drug but that goes against the trend and i know whereof i speak because i didn't sign off on upjohn with some kind of suitable essence and see when i did it but that doesn't mean that i would necessarily sign off on the lack of expertise in this case where he has the general education and teaches the course does he have to have experience in every single set of that discipline before you before discuss the money is a lo whether or not a judge would grant is that question of law first of all how a judge will rule on a given issue i think the only case we've got squarely on point is  foreign law which took the federal regulations probably can be categorized as being then issues of law are really issues of fact that's the general principle when you're dealing with co immigration case could have been granted isn't it your position that the the the statute provide thirty nine herman resident alien convicted of a felony is not eligible to be released on bond if it's if that incarceration occurred after october of ninety nine that was the rule that was in effect at the time of this case that was a two year rule if it about whether he might have been legally entitled to a break it was a whole there was some subject the fact is the serby had to take into consideration real right like is he a bad guy here now that was off the record but i know all but the point is is that how can any expert witness every established in this case based on the expert testimony of m aeration illegal i asked attention isn't an economic that's not going to be a case we're going to stretch what about us what about the contention that he should have done something in the end how clear is it that just because it involves going back and viewing with the courts in indiana that he is under no obligation to do that because he's not nice and still practice and what about the rule what kind of la is there about an attorney quarterbacking that it's even if it involves delegating down certain tasks to others that may be essential to ultimately retained to get this guy well she chic the testimony from the girlfriend was that he was retained two or three immigration hearings she said he never said he would do anything in indiana when he told me he is going to indiana and trying to get the conviction set aside would be a good thing to do but it would take a long and his judgment if you wanted to get him out in a suit or period of time and it obviously took eighteen months when somebody undertook to do with what he said was says i talked to the district director he's wrong that's not the case we're going to have a statute that it that your honor has already referred to which says any reference to a term of imprisonment or a sentence with respect one often says deemed to include the period  supreme court case we say good and he understood that it seems to me that under the spencer is starts with an s it it seems to me that under the the rationale of that case there's a real issue here as to whether you can come up on a and record volume twenty three and fifteen was a final order has been answered there really isn't any bond available period unquestionably they have him there with no right to buy that takes care to matters that thinks care of the judge was wrong in assuming that bond was continually perpetually available and when you when you read that section of her testimony it is patently were the jury and then if fifty terminals that proximate cause that the failure to find or that the court should have given by then you could get to the jury on the damages but there's a serious question here whether the trial judge in this case and whether you as the wires agreed to it or not is not the question because it was improper for the judge not to rule  out the issue of fine in the first instance then there's an error the judge committed that neither of you have talked about any and it still hasn't been tonight whether this issue should have never gone to the jury in the first instance i