honor may please the court i would like to reserve four minutes for rebuttal very well go ahead sir andrew simpson on behalf of just a couple taste primary issue presented to the court today is ascertaining what is the virgin islands law regarding legal malpractise how is that to be proven there are two ways that the court can i think go about doing that one is as we have moved to refer the matter through a certified question to the version of the supreme court and the other is to perform the bank's analysis that the virgin islands supreme court has set out as the method for ascertaining that law with respect to that bank's analysis and ascertain the law the key issue in all of that is what is the best policy cited the first two elements of that analysis is their version i was logged discussing that's what is the majority rule but then did not discuss the most important part about it which is what is to send this rule for the virgin islands did it why did it need to discuss that because it identified the very theory that courts use and i think you advocated or to use to prove the case and then the court basically said in the record seems to bear out that other than the case within the keith approach the record would have supported these alternative theories like you know use of settlement value for example because there was no expert offered or shifting the burden and usually that only applies if the lawyer who gauge the malpractise think needs to some behavior that  made it difficult for the plaintiff to prove their case there was none of that in the records so how could we say the district court heard when the record would have supported these other theories to begin with well let's start with the last comment about the adverse impact that the malpracti ok to begin with the evidence establish that discovery was not conducted in the case below because the defendant in that case refused to engage in discovery while the motion to dismiss on special occasions ground was pending there was evidence in the record  subpoenaed the refinery and the employer for records and received in return on the subpoena with nothing no no records available but how is that the fall of  the counsel for the for your client at the time of the personal injury action if they didn't have any response of records and isn't that part because the bus was was controlled by some other entity and they were honored first of all as a matter of law it was a subpoenaed fourteen years after the malpractise or fourteen years after the cause of action thing in the record that tells us that the passage of time causes and is to no longer have rock have records nothing if not i didn't see anything in the record that there was any representation the absence of those records was due to the time no there certainly there's certainly i would agree with you nothing specifically in the record stablish in the reason why fourteen years after the incident the records no longer existed but i talking about it that's standard practices but remember we're reading the trial court record and so was there anything developed in the record that said there were records tension policies that existed and because the passage of time occur we have no records existing there is no evidence in the record of right relating to the record retention practices to this all goes back to why it is that the district court heard what it considered these arguments look at the record in front of her honor and made a decision that these other of course you're but you're saying that we should criticize the district court for not adopting a particular theory in a case in which that theory could have never been presented you could never proceed on the burden shift if you didn't have any evidence a destruction of evidence or a loss as a result of the now these instant counsel i think the evidence is there to establish that i don't think you have to have evidence of the corporate retention policy i understand that but i'm asking because i think how can you say the district court when she considered your or you're saying that you your argument is different because you first said the district court failed on the third point of banks because it didn't consider these other theories and which one would be in the best interests of the virgin islands to adopt and so my question to you was why would the discord ever have to reach that if these other potential theories would have never had the legs in in your case right and so why how can we say that my point is how do the district court by not taking a theory that you couldn't support well first of all and support this case within a case in this case ok so first of all we were told by the sound this rule that for the virgin islands and that is not case dependent and so now you're at net so you're going further and saying in this particular case the court didn't that alone is a loss like and is actual damages and in fact they say i keeps calling it alexandria's arlington i apologize they actually say arlington suffered an injury when the statute of limitations lapsed did you the you tried to present evidence of the actual loss or injury yes your honor and there is evidence in the record of of the of the injury that my client suffered as a result of the malpractise which she was not permitted to recover from of based upon the theory without the by the court as well the theory that almost every jurisdiction adopts which is the case and with  case approach which says you've still got to satisfy you no duty breach proximate cause and damages and they didn't find that the damages she sustained were caused by the the legal malpractise by inference they didn't think that the whole vent and cost her any injury so you're asking us to read out a causal connection between the lawyers conduct and injuries i'm asking that i think what this really boils down to is plaintiff should be allowed to prove to present their case and the manner they choose in a discrimination case a plaintiff may pursue a disparate impact theory they may pursue a direct evidence of that discrimination theory art one of my theories is that the settlement value of this case was damaged by the malpractise suits and again but make that our argument the settlement this which is one of the issues on appeal obviously not really for weight kind of the birds that argument doesn't i disagree as we've explained that in the brief that that's a very narrow still under the arlington case there is prison presumed actual are not even presumed actual damages there is actual damages i have a loss of the right and there was an emotional distress damage that flows from that loss of right and there was testimony in in the transcript as to that i believe it was appendix pages five twenty five five twenty four in the right and there abouts if i'm wrong i'll submit a twenty eight j letter on that but she described the district how she was distraught how she was upset at the loss of her right and that is compensable the supreme court says you lose your case by statute limitations you have suffered an injury she that's injury right there that's nominal damages and on top of that which entitle you to turn his feet and on top of that you've got actual damages in the form of emotional distress like jurisdiction has accepted that not an addict of actually has accepted him as a whol he's saying is that even if even if mr have teased had settled the case with the refinery after the malpractise she would still have a cause of action for malpractise because that settlement if you follow that thought this is really a worker's compensation case if true then that would be the case but then so that there is a theory for ownership of liability based upon ownership that was the original if you say join disputed testimony as to the nature of that that was sponsibility and again that goes into the whole shifting of the you know if the burden of proof is shifted which we think is one method that the version of the supreme court could adopt that would be you know that would not automatically mean that the the defendant would have won in that case of course if this is a worker's compensation case the import of that settlement letters of no consequence is if if at the end of the day they were able to prove that jacobs owned the or should jacobs had all control and prevention had nothing to do with it i would agree with you that has not been the pattern in practice of cases in the virgin islands where an employee of a contractor is suing have been sent home oh vic the cases are legion where over it was found liable in situations where clint claim that someone else had control so you know if the jury had answered that specific question but again you know you come back to it was even it was disputed whether or not that was even a part of the case because the the affirmative defense that it was because this ray got the information well knew it was the next of test and it was it was disputed because the event sent her home ec and she's may hope it answered the complaint it admitted prove that jacob stead and when the complaint the complaint the answer to the complaint got entered into evidence and we establish that opec had admitted that it own the vehicle then we face the changing theory that oh no it's jacobs controls it so that and again this demonstrates the prejudice that occurs when we're trying to prove a case within a case against the attorney who originally represented my client has access to her confidential information it's actually your client's confidential information right that's all you're so you that you can only say that because you can say give me my client's file right ye immediately the defendant needs to prove that he didn't cause an injury you want to kind of turn upside down traditional negligence principle i think that's i think that's one way of proving it but i really think needs to really think the ru it should be is that the plaintiffs controls the case and presents it in the theory that they want to present it at malpractise has so many different permutations to it you obviously can't apply a case within a case  years came out with a decision that says a plaintiff's testimony as to their injuries is sufficient to establish a cause of sabbaths the damages and there was ample evidence of the damages she sustained we stop trying to argue for damages after a particular time i think of around two thousand and nine because she had a confounding injury and we didn't want to confuse that but she testified as to the her immediate injury and her ongoing problems and her efforts to get  help for those problems so all of that is is in the case that's in the record or maybe you succeeded i've not seen it anyway and i think it's because the the way that  and what the case within the case method method that the district court employed did was basically act as if that my practice never happened and it gave back tease her chance to prove her underlying case before a jury and that jury heard the case as if it was hope ends up that was a defendant in the case and the jury determined that there was no liability on the part of hope ends up let me ask you this question so subpoenas what happened was there was no further action taken on the part of plaintiffs and if it was the case that there was no answer from jacobs i am see or have venza there's a procedure we follow in court it's called an order to show cause why this entity should not be held in contempt of court there was nothing done with regard to trying to ensure that those entities responded to those subpoenas so as this as part of the case within the case  words we're putting the plaintive back in the position she would have been had the statue of limitations never been met and and the jury heard all of the evidence against hope and that was presented by the plaintiff and presented by the defendant attorney in this case attorney wrote because the had no liability in other words there was no speculation this whole expert get it and then there were no experts to create in this case at all which is a fundamental reason why the district court didn't even entertain those other theories because her her statement was you have you have this close no such experts therefore how can i permit you to pursue that theory and not only were the experts not this close there was no request for an extension of time to the schools these experts there was none of that in the record i guess it was just the reason to go into damages but yeah there was little i've heard mr simpson say we didn't get a chance introduce is that this this there was a jury trial against who ends up as if none of this malpractise ever happened and the jury determined there was no liability on the part of the vendor and that's critically important here because specifically in the context of these cases where the statute of limitations was missed it's an easy case to apply the case within the case method because you just ignore them all practice having a day in court which to the plaintiff in this case was able to do and with regard to the shifting of the burdens of proof the questioning is had that has been presented to the appellant so far is correct there was zero evidence developed in the record that there was any witnesses that could not have been found and so was not going to offer a dime because they realized that they did not control the bus and therefore they were had they had no liability in this case you can't just speculate as to what the case would have settle when there's evidence from the attorney for four home runs about said we weren't going to settle anyways because we knew we did there was no evidence to support our liability if you had to fight and during the course of the trial the defendants attack action fast for however many years fourteen years later we're trying to malpractise case that same lawyer now is presumably through its advocate and perhaps through testimony saying actually that hey that case was not a valid cause of action to bring  going to turn over anything to you so the idea that attorney roan would have information as to exactly workings of a lease agreement you wouldn't have that document before you file you're going to go on your plaintiff's representation of what occurred file your case and then discovery will flush out what's going to happen here but the point is this with regard to you know rule eleven obligations every time you file you're making a good faith representation because based on what you've just said you'd say well that's a snapshot in time very early in the case then inevitably despite the fact that i gauged legal malpractise you know i didn't think so of the case later on you know i have this concern as well when you have your ruhleben obligations you try to comply with those and then it seems that you're able to under the case by case case with any case you know essentially run away or you know hold yourself separate from that representation that you made at the beginning of the case doesn't speak to why  maybe one of the alternatives suggested by counsel should be used your honor how many cases are filed in court every day where representation is are made by the attorney in the pleading and there's a jury finding that there is no liability what you're seeing therefore is that what you file at the beginning of the case can undermine an ultimate jury finding that there was no liability that can't happen because then why would you why would a tourney take on the liability of you know filing a pleading in the case right if it's going to end up being used against you to undermine a jury finding that there was no liability people file cases all the time and they lose cases that's the point of using the case within the case method to permit you the opportunity to try your case as if the practice never happened as she did was there any cross examination on the subject that  are asking about why didn't you sign a plea in the third this case had legs i don't i don't believe there was and if there actually i believe the the district court allow the testimony i turn your own stated that she was going under presentations of her client over and over again because that's what you do so cynically where you're under the gun for s o l issue and you don't have all of the you won't have corporate documents at your disposal before you file percentages that led to the filing of that complaint didn't actually clear out that's the difference here and i don't see how we can just substitute a jury verdict finding that there's no hope the viability based on the pleading that was filed in two thousand to which would be governed by rule of and standards which would be sanctions or some other mechanism versus oh you're now liable for malpractise that can't be the way the law is with regard to the loss of the right to sue issues that counsel discussed based on the arlington funding case the loss of the right to sue is an alternate claim of liability that was never pled it was never planned in this case not only was it not pled they were not experts to establish what the loss of a right to sue that's just pure speculation if you want to determine what the loss of a right to sue is you would need to experts to establish no this is the last of our of a right to sue and and a claim on a case where there was no liability and if the court on this is any other questions that you have from with regard to the settlement the man letter i believe our position is very clear that the court did not abuse its discretion in excluding that i think the rule for which is crystal clear that you cannot use that as your basis of damages thank you thank you several points made i like to respond to the page ninety one of the appendix in the footnote there is a direct statement about the subpoena response the fact that there were no response served fourteen years after the case was dismissed after the incident there's a couple of things that were different about this case that would have happened in the actual trial against events i think i think she should have i would prove the wason value over case which along with that includes the damage caused by the malpractise itself another words i think the arlington funding case makes very clear that she has a stablished malpractise and damages by the loss of her case to this nationally taishan she testified as to her damages and i was correct pages five twenty five five twenty six and five twenty nine but she  able to prove to do it in the partner who then says she was able to prove like any ordinary personal injury case that she was injured in the nature of what where where were you where was the case  prejudice she was forced to try to cross examine her own former attorney that was evidence that when the been in the underlying case against haven't had to proceed without malpractise fourteen years earlier  case would not be a very effective advocate i think that would be a major mistake to want to have that happened in terms of having her testifying as to how the underlying case would have gone and tested cross defending her about  she was entitled to that she was entitled to a judgment saying her attorney committed malpractise she wasn't given that she was entitled to prove the damages that flowed from the loss of that cause of action and that evidence is in the record that the actually she never admitted malpractise because of the way the case is presented but you don't get the jury doesn't even get to answer that question if you don't present the case with the if you don't prevail and under th case everybody in that courtroom in this she misses statute of no no question about it but she doesn't have a judgment she doesn't have a judgment for that because under the case within the case the court said we don't even get an answer to that if you don't prove  the problem with your keep your theory that this person should be able to simply say because the statue of limitations was missed i was unable to recover presumes there was a cognize of a cause of action for which recovery would have action it was never dismissed on grounds that it failed to state a claim she had a cognizable cause of action and the supreme court of the virgin islands said in arlington funding the loss of that right she lost her lost her litigious right when that happened