good morning for a start the calendar i'm glad we were able to accommodate your schedule however when you wait that late it's not we're not like a trial court i am we have someone here from new mexico and we can like re as you know this is a malpractise negligence case that was brought because the attorney to not follow a brief in the ninth circuit and as a result the client lost their rights to have  on the underlying padding case which resulted in a judgment against her for six hundred thirty thousand dollars you know disagree with the proposition that in order for your client to win she had to legend prove that the food file opening brief was the proximate cause of her losing the case correct correct so the opening brief was proximate cause of the dismissal of the appeal have you ever heard it boil or this is a formulaic allegation of the elements of the cause of action without any facts that make the claim plausible and under our to ask for a default judgment you complete doesn't do that now what am i missing now your honor if if the test was a test yeah then the rabbit a would be for the court questions were we to be so gracious as to be manned to allow the district court to consider a leave to amend would you be in favor of amending your complaint i and then you would have to serve it on the thing that i would serve it again and then he would get notice and have a chance to come into court and he might do that he might do that ok with regard to the second  has a right to demand a jury trial we did make a demand for a jury trial the judge rejected it but at the end of the day this is a constitutional issue well then found that the alleged errors brought the attorney didn't filed a brief and why it's necessary to file briefs almost i would say per se negligent standards the jury be she should be someone to entertain that and she's substituting her review of the facts for the just suppose she heard the facts on the case right she heard the facts and the underlying yeah and said you're not you can't win right she well the that's the issue here is that she had already made a decision in the underlying banding case so she have a what i would say i would say a bit of a understanding of the case but it also influences her decision and making th any were raised in the underlying circuit proceedings for example if any are identified where can they be found on the record if none of the arguments were raised in the circuit proceeding we ordinarily deem those  presented at the trial or waived why would we have reversed the judgment against mr rowan grounds not presented to the district court in the circuit proceedings she did miss did she raise the dabur challenge to the city's expert in a circle a trial so if so where is that in the record but you know it's like you raise all of these things and you say we would have won but if they were if none of them were raised in the lower they're all they're all going to be waived that's well your honor if i have seen her problem it might be waived or lower but we don't know what the outcome would have been if well but if you don't raise issues in the district court and you raise some for the first time an appeal that's appeals went to one understood but that wasn't my appeal the appeal there was that deal that allen bought didn't file here is a negligence case where alan ball the lawyer didn't file appellate brief we can't thank you but you say in your open you say we're going to raise all of these things and as far as i can tell all the things that you want to raise that would mr alibi should've raised when he filed the opening brief in this court we don't know what panel what it would have heard those arguments and what decision that court would have made because and we can't predict with any certainty with what that outcome would have been that is the negligence of appellate counsel for not filing a brief obviously if appellate counsel doesn't file an opening brief and it's never heard by a court you're never going to get a decision about the underlying district court case because of that he will lost any possibility of having a reversal in the ninth circuit in the q and the  file we don't know what the outcome of that case would be there is a statistical probability that well but yes but it's not you have to show some proof you have to show proximate cause to the not filing to break right you have to be able to show that you at like mirror send a mirror point zero zero five percent chance that you might win isn't necessarily going to get you there right night give me there but i think we showed sufficient things of what alabama might have argued before the ninth circuit that could have at least that precisely i mean and it's a tricky problem because if the public council has really i would say one job to do with the very least and that is to file an opening brief otherwise you'll never hear that argument you can never make a decision ultimately might say it's if failed just like you said to me here are the points that were defective in your brief but i never got that chance with alan boss so in my view it's almost a negligence per se standard if you've got one job to do you should do it do you have any case law that says not filing the opening break his neck since per se on malpractise well it was that one case out of ohio where they dissenting opinion was critical of the critical or the majority opinion for these precise reasons