morning morning your honest mate please the court generally long for talents your honour's this is a one of a kind unique case that merits a unique sanction this is the only federal case to present such clear evidence of intent to abuse the judicial process indeed this case was setting example for current and future litigants if this court allows the district court's order to remain undisturbed it will send a message to the world that they should try this because they have very little to lose and much to gain he has got a bigger verdict from the first which was wiped away and he didn't get  trial and in fact wiping that when he went to the second trial the witness your he still was yes but he won by he won less than a six of the original damages that the original jury awarded and that is our point that by setting aside the original judgment and granting him a new trial just report put thomas back at square one his analysis was ineligible to get attorney's fees from the first from well as a matter of sanctions your honor first of all i don't i don't think the statute comp contemplates a situation like this where someone enters a contract to let you take those that are viewing party can get attorney fees on the plaintiff the prevailing party so the kind of exercise not to give fees for the first trial but in doing so it misconstrue the purpose of sanctions which is to offer deterrence and to that you were awarded and that decision merely plays thomas at square one when he decided to enter this contract with merrill what was his cost benefit analysis it was that i potentially could win the sum or i could bargain with this witness make her an investor in my suit have her testify more forcefully to meet for me so i can make a bigger reach a bigger award for myself and that that suggests that she lied she would she did as well it was illegal to pay a witness to testify to tell the truth but any event here there were minor inconsistency between it's illegal to pay a witness your honor even to tell the of the case law that we saw in our brief but here there are inconsistencies between her deposition and her trial testimony she didn't say that she was she was she was much more emotional at trial the district or such she cried crocodile attorney's fees but i'm not going to allow you to through his fees for the first trial because of this misconduct and that was insufficient to first of all two points to first make the city whole the city still had to carry its an exorbitant cost of the first court to give the sanction that you're saying it should have given would you have any authority from any place whatsoever that the district court was compelled to give this bigger sanction rather than the rather than than what the district court did was to say i'm not giving the attorney from the clear principles from some of the from the supreme court and the score is that where there is a clear intentional misconduct and here in the district found egregious intentional misconduct clear underhanded dealing they made the discrete made those clear findings and based on those findings the law the legal standard says that sanctions are necessary to deter not only thomas these were were abused i mean any one of us sanctions instance that what he said was the merits are better tried by a jury but merits do not play into the sanctions case off we look at the case law it's about deterrence it's about remedy it's not about the merits and this is it here's an example of exactly why marriage should not  i can i can try that right about dice and see what i get and this is this type of deter what the district court did is not sufficient simply not sufficient to deter this type of devious conduct that is really difficult and cover i'm through argument is that the district apply the wrong legal standard position or make clear findings of a grievous underhanded dealing here and simply did not offer a deterrence for thomas or the general public he ensure that thomas is not benefit from that misconduct yes but he did not offer any sort of deterrence to future litigants to to prevent them from rolling the dice again and again i will say i like the sanctions case law that we have that exist which would involve refusal to comply with court orders this type of conduct is very devious and very difficult to uncover we do not know whether in fact thomas had engaged in those contracts multiple contracts like those in the suit and it will be very said that the the district court should have imposed a bigger sanction that if he were vacating because it was abuse of discretion not to impose a bigger sanction no but that's because this is the first case of its kind  a one of a kind case and i'm here again i would use her there are cases in which there are cases in which a plaintiff which a plaintiff in which whatever side it is commits some kind of misconduct in the course of error is you know not complying with discovery orders delaying the priest to the prosecution of the case here at this type of contract again is we didn't find out about the son so we had been appealing the verdict that this type of contract is incredibly difficult to uncover and all the more important that this court use its inherent power to sanction thomas thank you more contracts between mr thomas and other parties in the case secondly the lower court did not abuse its discretion the court first to your point judge lavelle said that is the ultimate it is the ultimate outcome of the case not the interim outcome in the case that is determinative of the parties in title meant to for you to a few word here and what the city's attempt with the defendants rather are attempting to do is argue to this court that the mandate of the civil rights act to entitle subordinate to a rule sixty b violation and the plaintiffs admits that that's incorrect first of all as a matter of law under federal law the agreement to compensate a fact witness is not illegal as has been indicated here it is a basis for impeachment of the witness in the case of new york versus solving a chemical for example which is cited in the brief witness have been paid a fact witness had been paid as a consultant and had testified falsely  deposition they had no business relationship with the other defendants and the attorneys for the defendants sat silent during the deposition when the agreement was discovered the court the district court directed that the agreement be turned over there was no sanction there  in the case of golden door where lloyd's of london compensated or witnesses to testify favorably it seven hundred fifty three thousand dollars there was no sanction of dismissal in goldstein a request had been made to strike a parties pleading for entering into an agreement to compensate a witness and the court declined that and said that impeachment was the proper remedy it is the non disclosure that gave rise to the sixty big violation not the agreement to compensate witness i respectfully submit but the non disclosure was of cumulative impeachment evidence at the first trial the jury knew the plaintiff and miss merrow live together the jury knew that she had a benefit her testimony that the district court took issue with was a page twelve forty two of the record and as it turns out her testimony was correct she was asked that if plaintiff won a verdict in his favor would she benefit from it and she said i can't speak to what he's going to do and she was right he refused to comply with this agreement he never thought he should have had to pay her and he did not as he testified in the second trial know that the courts have subpoena power to ensure someone's presence a trial the district court said that he should have known that he testified he did not and so this was non disclosure of cumulative impeachment evidence we submit and we part ways with the district court to this court that it did not substantially interfere with the verdict in cases where the substantial interference with the verdict we're talking about testimony that involves fabrication or a change something that would have changed the theory of liability now the city that the appellant's have been cited in the evidence that the sanction that they're seeking here a dismissal and a fear ward to them is supported by the law i'd submit to you that the case of pope for example cited in the brief is a political here in pope a witness the plaintiff i believe it was had falsified a document or for testimony false testimony based on the false document with the knowledge of counsel or rule eleven application was made and the sanction there was dismissal and the fee board because it affected the material issues of liability this court in p m c versus atomic genic believe i got that right there the opposing party had sought a remedy because an expert they wanted to impeach an expert  had previously lied about his credentials this court said quote there was no close nexus close quote to the issues in the case it was collateral now that i'm not condoning what mr thomas did but the point here is that th did not substantially interfere with the verdict another case for the court to look at is abramson in abramson the defendant took the stand and with the knowledge of his attorney testified about the way a particular accident happened and there was no disclosure of a prior inconsistent statement by the defendant that he had fallen asleep at the wheel at the time of the accident after the verdict when that statement was discovered that resulted in a sanction of the type that is being sought here so i would submit to  this case has not full within the substantial body of case law concerning the concealment or the non disclosure of information because it related to collateral impeachment proof the other point i'd like to make here is that we're talking about a rule sixty b sanction we must consider the financial ability of the of the of the point of the individual defendants who are the appellant's on this case weren't paying for their legal fees no matter what libel or not li we have an individual plaintiff here and the city through the appellant's is suggesting that the plaintiff forfeit his one hundred thousand dollars verdict and be held liable to the city for five hundred nineteen thousand dollars for the fees from the first trial no statement is made about these individual defendants being liable to the city for the fees on the second trial they ultimately did use excessive force assault plaintiff and break his hand and while my client did commit a sixty violation i would submit to you that under the civil rights act these defendants should be preyed bearing the greater burden here the greater penalty with respect to instances or cases in which this court has impose the fear ward the sanction or the fees should be reduced to something commensurate with the individual's ability to pay and i'd submit to you that what the district court here did was try to make the best of a difficult situation the cortright could not conclude the court concluded that there was a substantial interference because of the credibility issues and the court did not believe that it could several rounds the impact of merrill's testimony on the verdict and determined to hold a second trial we submit that that it was easier than that because the district court in denying the defendants post trial motion said that the testimony was not entirely dependent upon marrow as a matter of fact in the post trial motions  secretary even when the jury knew about the first one he had correct and one of the reasons you know we're talking about the impact of merrill's testimony of her absence on the second trial certainly there was an impact but we also have to remember that going to place everybody magically back into a position that they would have been bought for this agreement and by no means is plaintiff asking that this court you know conclude that he did the right thing here he certainly did not he did not cross appeal here even though it is his position that at the end of the day the agreement did not substantially interfere with the verdict unless the court has questions a dearth of thank you is  why contrary to what my colleague suggests the district court made it clear finding that marrow testimony made a difference in this case in granting her motion for a new trial the disquiet said credibility at the very heart of this case stepped on the stand with a straight face and a concealed illegal contract and testified over the equally plausible tales of the officers there are no hard facts here clearly  testimony said that to the to the extent that it matters for sanctions made a difference and we are in terms of the damages we're asking for an offset thomas received over five hundred eighty thousand dollars in goes to the integrity of the process by which thomas of suit was tried initially goes the integrity of the process by which any case is tried and we do not dispute the importance of one thousand and three suits we do not dispute the prop the importance of  know excessive force suits and that makes it all the more crucial to preserve the integrity of the process by which each verdict is reached not just in this case but in all other cases and for that reason we ask that you reverse the district court's order thank you thank you thank you both