honor when i learned of the assignment to your honors i learned that the three of you are extraordinary really familiar with rule sixty you have long histories with rule sixty and i'm a little bit at a loss as to what i can tell you today that will be new to you but i'll give it a shot i proposed to cover two issues today one is the application of equity in resolving issues that arise under rule sixty including the trial court error and leaving that mr quiz could have read obtained relief in the underlying trial  pursuant to civil rule washington civil rule sixty b th which has a counterpart of course has federal rules of procedure sixty six and secondly i'll hope to impress upon you the importance of viewing the dilemma faced by a client such as mr quest when confronted with the malpractise of their attorney and trying to do under the pioneer investment case your honor equity properly plays a role in determining whether neglect is excusable within the meaning of rule sixty and that's the bateman case that we cited in our materials  s chin vs xenon pictures another night circuit case under washington law if sixty if civil rule sixty allows any relief from a judgement based upon the ordinary negligence of the client's lawyer it must be under sixty b one as excusable neglect because excusable to neglect or mistake by a party's auditor an exception for if for extraordinary circumstances and so opposing counsel argues that they were opposing that there were extraordinary circumstances here so the trial court and i think that's what th looked at it and this of course is in the context of default judgment now that's even a more liberal application of rule sixty then the kind of situation we have here where it's not argues that my guards lead gross negligence constitutes an extraordinary circumstances that stands merit in relief under sixty b six and you your honor goes on to say that right that well yes but that's only if the attorneys negligence was gross negligence that's the only time sixty b six comes into play if the attorneys negligence was gross negligence and therefore it is not attributed to the client under the pioneer investment analysis and that case was filed now that was a default judgment and the court said no sixty b six does not apply and then that was followed a couple of years later a few years later by a case called lal l a l versus the state of california in which the court wrote this was in the context of a client saying that the attorney had entered into a rule sixty a settlement here you're giving us federal law are you saying that washington courts follow the there are federal decisions and the federal rules are and so they upon federal court decisions on the rule sixty and have said so explicitly so yes i would suggest to you and but this is why we filed a motion to certify i mean if there's any doubt about it let's let the washington supreme court bit one of the problems with legal malpractise cases is the temptation of everybody involved including the new sets of lawyers and the judges to go back and say well gee this is how it should happen which may be what we've seen here from the district court but i start asking questions myself too and i look for example when the when the state court denied the rule sixty motion without prejudice and your opening brief inserts a parent that it go for reasons unexplained a sort of scratch my head and say well what happened after that because it wasn't entirely unexplained and the court gave a handwritten direction as to what he's looking for to be able to deal with this motion because the denial was explicitly without prejudice so what happened or why didn't something happen after that well that goes to our our request to amend the complaint if we needed to allege that which i don't believe we did but that goes to the issue of whether we should have been allowed to amend what happened and it's reflected in the declaration mr quest which was submitted to the district court is that mr bilby there upon finally noticed his conflict of interest which he had from the beginning and withdrew she retained replacement counsel she spent thirteen thousand dollars and change on replacement counts she almost didn't if she almost got tagged for the her ex husband who was dying he died shortly after that and it was all being brought sixty b eleven why did he only reference sixty be eleven because he knew sixty one dollars he couldn't come within the one year limit and there was no basis for equitable towing and so she retained replacement coun now under a couple of washington cases city of seattle versus bloom which is watch in supreme court decision and flip vs heart which is the appeal level decision when a client's and bowler which is another appellate decision when a client's faced had advised by replacement counts and in this case the clients faced with spending tens of one thousand dollars to continue litigating this matter costs of appeal the potential explored not potential but the exposure to the opposing parties attorney fees the risk that she cannot succeed and she could not have succeeded as a matter of law but the risk that she could not succeed  and in that situation the client has to make a decision what should i do must i appeal how far must i appeal if i appeal to division one in washington state courts of appeal must i then a seek a petition for review in the supreme court if i lose i'm really not trying to do to get you does yet speak to maybe probably should be the question where does the last fall but what happens here is that the train goes slightly off the rails only the judge sort of says what i'm waiting to see i want to hear from from the ex husband's prior counsel to confirm that what you've told me is true and instead of getting that back on the rails the train falls off the bridge and down into the canyon it got just a whole lot worse now there there are good questions maybe to be answered but i'm still trying to figure out how come it didn't get put back on the rails at the beginning because the the attorney the replacement attorneys advised the client that she could not win ok and she followed their advice and that's that's a mitigation issue which is an issue for the jury and there's no you're saying that if i said was that she couldn't go in because there were no extraordinary stevie eleven motion to succeed is is that your position yes your honor this would not have warranted be eleven relief and of course be one and be eleven or exclusive and if the one applied which it does and it washed in law then you can't use b eleven to circumvent the one because then you've thrown out the one your time limit totally eviscerated the one your time limit now i did i believe i was talking a little bit about the the issue of gross negligence versus ordinary negligence now i have to tell you and there is a case cold war your honor i believe you were in the dissent on wolf i read that a number of times and i don't know what it means to this case and so i'm not going to try to talk about will because i i just didn't get it but there's no suggestion say oh yes my client's negligence was gross negligence he abandoned that client he you know i don't think he's going to do that so we're talking about ordinary negligence and ordinary  and under the th circuit law comes under sixty one dollars you had the negligence of the attorneys attributed to the client she could not qualify for relief under sixty one dollars because it had been two and a half years and i take it one step further let's assume sixty b eleven did apply she couldn't got relief anyway two and a half years your honor and i will refer to burton versus spokane police department norwood versus vance both of which were opinions that you your honor were were involved in and even sixty one dollars relief the one year is the equipment for months after the judgement was was barred by latches even though it was within the one year time period th circuit case meadows versus dominican republic  have i presume i have a minute and a half left here i do i'll save my time for rebuttal right that's the time if you keep talking you're using your rebuttal time oh so that i thought i thought this was on my ten minutes that's your total time oh lord ok well your honor thank you very much for listening so carefully asking me some questions please give mr rosenberg the same attention thank you american justice is great doesn't matter how big or small you are  thank your honour's mark rosenberg here on behalf of ted billie and his law firm and i think it's important to keep in mind your honour's that this is a case brought in diversity because there are some very unique here so what can we do i like federal court because i like the caliber of the judges i like being able to look at their written opinions and recites their words back to them there's a whole host of reasons i prefer federal court  but regardless of which court where in in this court it is a case brought in diversity and therefore we do look to washington law and keep that in mind so the position is  argument about washington rule sixty being the same as federal rule sixty it is not starting at page twenty five of our brief i think we have three pages of different cases in which the courts have recognized that sixty b one could have applied it was passed the one year and the court still listen to your vetoes apparently offer the opportunity to take up an appeal presum washington state court of appeal where that argument might have had some traction but it appears that he didn't do that he didn't take up that offers i correct my client had already been substituted out for another counsel and as i understand the record the plaintive offered to him the opportunity at his expense to proceed with an appeal well she had her own who were not to let that time and the the client controls the litigation clearly on the side that you're currently advocating might not have been so clear i would disagree with that your honor as counsel said there was a conflict he got she got another lawyer the lawyer and she was represented she was well represented well i mean that's a question that can we delved into later are we ever getting to an answer to the question i posed which is why would your client not be interested in financing an appeal if you're that confident that the washington state court of appeals would have ruled in favor of this request well again i believe that's outside of the sixty b record in the issues of law we're dealing with here so you don't have an answer the  reason is that it kind of screams out if if it's really so clear under the law that should be the result then why doesn't he take up that offer to solve the problem i don't think we can make assumptions as to what he was thinking or why he would have been given an alternative explanation read withdrew because of a conflict of question wasn't whether he personally would represent her as i understand it the offer was that he could undertake to finance an appeal that wouldn't have been a conflict he apparently did not take up that offer why not you haven't given me an answer other than i maybe he wasn't so clear that that position was going to win the answer is not in the record your honor and it because we've been dealing with issues of law and we're on issues of law because it's a motion to dismiss how can this issue be resolved on a motion to dismiss what is implausible about plaintiff's claim well it can be dismissed on a motion to dismissed for the reasons set forth the evidence you're talking just telling me that you can't answer questions because it's not in the record the records never demand developed because there's a motion to dismiss the evidence you're talking about your honor was in plaintiff motion for partial summary judgment it was not something under consideration sixty b motion in the sixty b motion we're looking at paradise orchards and nelson vi's an hour carlson in the nelson case i mean you also have a attorney who there's no dispute had an error he erred in regard to the statute of limitations while actually paradise orchard sounds like it wasn't according to the nd court it wasn't the lawyer that aired it was the st court that aired well in both in paradise orchards that's right the argument in this case is well the argument is in this case is there any doubt but that your client erred in drafting the document and that seems to be the given that the whole case starts from there was with it was good faith and so on and so forth but the problem is that the document that was entered wasn't reflective of the agreement that was reached there was a scrivener's error there's no dispute about that but the state court could have and should have corrected that and the question is with that in mind did ms setter quest use those avenues to correct that that were available to her well let's start at the beginning because once your client withdrew that obligated our current plaintiffs so obtain new counsel with some expense so why isn't that expense automatically even if if the problem gets fixed why isn't that an expense of direct injury as a result of the scriveners error for which your client is responsible well i have two answers for that your honor st of all fees paid to a lawyer for the work they're doing in the underlying case are are not an injury they may be considered so in the legal malpractise case but the focus is or one career where how could it not be an injury for the legal malpractise clime if none of this has to happen but for the scrivener's error how does that not qualify as damages for legal malpractise well again if you look at the nelson vi's and how or carlson case the lawyer did make a mistake it led to additional litigation the plaintiffs eventually settled out for half a one million dollars less than they were awarded the st time around claiming that they were worried about losing the appeal because the matter was appealed based on the statute of limitations error the lawyer thought it was a three year late medical malpractise statute when in fact it was a two year tort claims act error statute of limitation so clearly in that case the cost might have been higher because the lawyers error but the cost but the damage sought could have been avoided by permitting the court to proceed and come up with the right decision if there was an answer to my question what you just told me i have missed it i don't understand how that answers my question well just because something is more expensive doesn't mean it's a damage one lawyer not one lawyer might take one hour to write a brief and another lawyer might take three hours to write a brief end of the brief and doesn't have to be written but for the scrivener's error how can that be considered not something for which the scriveners there cause damage all i'm your honor as the client pays for two hours more for the same brief but that doesn't make them negligent simply because they ended up paying more in attorney's again i don't hear any answer to my question what you just said so maybe you need to translate well your honor for the scriveners there nothing else happens now you can quarrel over how much more has to happen but but for the scriveners air she never goes your client never appears in court in the real sixty to begin with and she never has to go and hire another lawyer after your client withdrew if none about happens how was the expense of that not all legitimate injury for which damages can be claimed resulting from legal malpractise that is not quite accurate your honor in that my client did bring the st six c r sixty motion outright and we didn't have to hot and presumably she didn't pay him fees for that she didn't encourage damages until after your client with through which may have been perfectly appropriate i'm not arguing for that but i'm saying how can the additional expense that resulted because of the scriveners there not be damages for the scriveners there for the same reason your honor that the additional work done in the nelson b eisenhower case wasn't considered damage in that case it was an expense of the litigation it was more perhaps than it might have been but isn't set up qwest could have continued the litigation she was a client in control of the litigation how did she proceeded in the litigation v court could have corrected this error in any number of situations i mean in the rule sixteen the court did deny without prejudice it wanted to see the opposing lawyers declaration had that been provided to the court more than a year passed and the court found it equitable to hear the case even though more than a year had passed and even though it could have been brought as a c r sixty be one or not there so my recollection is that there  agreement both parties agreed to it there should be no question but that this was the intent of the parties then down the road one of the parties denies that that was the agreement they made but the party barden said request doesn't even submit his own declaration there's a declaration signed by somebody else saying they have power of attorney there's no power of attorney in there the court wants to see  decree the amount of the decree is changed back well i think that extraordinary well i mean you have an individual who is untitled through equity and of course the dissolution court is a court in equity  not getting the benefit of a bargain that was agreed to and you have someone who isn't even the other party denying that the back bar the bargain was entered into i mean that's very unusual so i want to go back to something that judge clifton was racing before you get an order from the judge saying i'm denying this without prejudice because i want to in effect hear from the other side i'm told she spells it out i'm told we can't win but if you think otherwise you pay the costs of getting me a new attorney to take the appeal you know response to that that that is in effect turned down by science then you're arguing now oh if an appeal had been taken there would have  stopped your honor the client and again we're talking about something relevant to the plaintiff's summary judgment motion not us the twelve b six motion here but the plaintiff mr quest  had a lawyer she could have proceeded in regard to either the sixty b motion the revision of the final order or an appeal and she had control of her litigation at that point but if you the person who made the or disagree and think it can be fix you should pay for it well look i think that's a damages there and there's of course four elements to legal malpractise i don't think you get to the damage calculation unless you can show legal causation and the legal causation element is not met if the plaintive does not proceed with correcting the trial court so client opted not to proceed or not  to the point of had control of her litigation at that point and she offered to let your client finance an appeal and offer to use whatever appellate attorney your client ponied up and your client didn't respond she had her own lawyer at that point who was ready they then told her that she can't win and she tells that to your client well if where does your client step up and take responsibility for anything are you saying that a little an attorney who is no longer the  representing lawyer or someone else's represented still has a duty to go easy being made an offer to cut this and to mitigate these damages again this is it damages so convinced that you're going to win on appeal why didn't they elect to take that offer again this is a damages issue your honor there's four elements to legal malpractise not a damages issue because you're saying you haven't established legal causation but he won't take up the appeal that would answer what you say has to be done to answer the legal causation question he has a lawyer that that has to act on what she wants her to do now her lawyer may say i don't think we can win but she stood if she may have a lawsuit against her successor council but she has a duty as as the party in that case to make the decision to move forward and she can do that and i am and who was responsible for these dominoes starting to fall has no responsibility at all under bill we did not have to do the appeal in self and i also think you should think of the attorney who would be filing that appeal who would be subject to potential frivolous appeal remedies if they filed that appeal  she either had to get a replacement attorney or he would withdraw and she'd have to represent herself your honour's i ask that you reverse the the trial court decision