that at the trial court level the plaintiffs were successful in undoing various transactions between the defendants and the deceiving that occurred in the forty two days before the season's death those transactions were set aside by the trial court after the party said consented to submit in a previous trial credit transcript to ted judge for consideration this issue was not objected to by the defendants at the trial level and it was not raised by the arguments the precipitating case anderson burst koehler concerned whether or not a party due process rights allowed for a subsequent trial or a fact to consider prior trial transcript testimony without actually seeing the witnesses present live testimony the fourth district found that was justice thomas i would profit that there were certain disputes and i would also proffer that it was essentially undisputed that the defendants were fiduciary as a matter of fact and as matter of law riverview observe the witnesses their demeanor i believe in this particular case justice thomas a bit that is a situation that was best left to the parties meaning both the plaintiffs and the defendants had the opportunity to with their counsel and decide whether or not is credibility an issue and if it is an issue is a best that we proceed before the trial judge with a new trial or is it best that we proceed based on the trial transcript so that is correct and with that i think one could reasonably confer conclude or infer that the defendant deliberated over that decision in this instance we're dealing with a written consent it's not an instance where the trial judge suggested we proceed in this way or ordered that we proceed in this way but rather it was a circumstance where the parties voluntarily chose to proceed this way as evidenced by the written consent that the case should your side of the facts were not  where they were not in that instruction there was an objection that was precisely and i think that is a significant distinction that needs to be made that the fourth district failed to reach and its decision in this case and the andersen versus cold case i believe that it was the suggestion of the subsequent trier of fact that they use prior trial transcripts and in that instance one of the against was pro s here we do not have those discrepancies meaning the parties had the ability to make the decision with counsel there were no other aggravating circumstances so to speak week that would warrant the  second guess scene of the decision that the litigants made and this instance and justice fitzgerald if i chief justice if i could point out that the other case and ray narrative sorenson right cries did not have the same factual scenario that we have here and that case it was again the trial judge's idea it was a pro se litigant and there were public policy issues present meaning it would concern the custody of minor children none of those would make their credibility so simply put that's correct it really never got to did not discuss in the order in this case the validity or invalidity or the enforceability of the consent of the fourth district simply or even bergen away though the latter one can i don't choose to use the word bargain away because i think a person's make an informed and calculated decision when you have counsel have an opportunity to make that decision one could easily conclude that in this case the defendants thought about it and thought we could have a new trial or maybe the evidence came in well during the first bench trial and we're not going to present any better the second time or maybe th second judge is not going to find us credible and we'll have a bad appearance and we're better off submitting this case be a trial transcript to use your term bargain away yes i believe that from a party has that opportunity and it's well established  illinois that you can consent to submit a case on trial transcripts that was set forth in the case have been rated merit or fosh and it cited a minnesota supreme court case from one nine hundred thirty seven great northern  railway and it stated in that case that parties can consent to the submission of a case on trial transcripts to a subsequent trial or fact and one of the points of reasoning was that in the state of minnesota they allowed the use  depositions at the time of trial and we have the same reason illinois underspin court rule two to twelve feet parties can submit evidence depositions at the time of trial and under the pattern journey instructions that be given the same consideration as though that witness testified on the stand before the trial fact now granted that person cannot be evaluated mean they can't hear the tone of the person's voice or the expressions on their face but nonetheless it's up to the litigant to decide whether or not they want to deprive any aid the trial fact may get from those factors and the political concludes that we do want we don't want this particular witness to appear before the trial fact that's a litigant choice it's not for the appellate court or even the trial court to second guess that if it's up to the litigating may choose freely and voluntarily to do so then that decision is one they have to live with and they cannot be second guess there was a dispute as to what the standard of review was going to be and as much as the trial judge simply relied upon the trial transcripts and documentarian exhibits that were admitted to trial but nonetheless one can still readily ma credibility determinations on a trial transcript granted they don't have as i stated the tone of voice of the facial expressions but once can still make credibility determinations based upon a witness's testimony and conclusions they proffer and statements they make at that time and so while it is not the full gambit of one's credibility being measured that decisions can still be made and if i could utilize the supreme court rule to one to be analogy that i'd set forth in our argument if you have a medical negligence case and both parties agreed that they'll simply submit their experts evidence depositions and those depositions are read into the record as presented the jury trial that's a valid way of proceeding under the supreme court rules but the jury is going to only have the testimony as read to them they're not going to be able to make credibility determinations you suggest justice thomas but nonetheless they can still make a decision and make their verdict based upon the two battle of the expert opinions and so if that's the way the litigants want to proceed then they are allowed to do so under illinois law the public policy reasonings that are cited in the cases that the fourth district and the defendants rely upon aren't present in this case either meaning we do not have an instance where we have a pro s litigant or a litigant that is in a worse position meaning no attorney or we do not have an instance where we're dealing with third parties the cases of sorensen comes to mind where you're dealing with the interest of a minor child and i think that's sui generis meet killer case where we want to go out of our way to make sure the best interests of those children are met and in order to do so we need to make sure that all the credibility term nations are brought to bear at the trial court level the other issue that i would like to address this morning if i might is the issue of waiver i mean at no time did the defendants object to the proceedings and the manner in which they were held at the trial court in fact correctible show clearly that they attorney signed a consent to proceed in this fashion and that they submitted this case in the same manner the plaintiffs did for their i played the record will show that this was not an issue that they even raised in their appellate court brief rather it was only the fourth district that raised this to a sponsor and it's our position that in this instance when parties are represented by counsel and i've had the opportunity to deliberate the onus is justice raise issues but that is not in that instance in this case for the reasons that i have already stated here this morning your honor saddle for the questions i thank you for your interest in your consideration and i'll step aside from my today to understand that irony consider the position that my colleagues were put in almost two and a half coming up on three years ago and after spending two days in trial one of the plaintiffs witnesses came forward and suddenly realize that just maybe she had talked with the trial judge at a point when he had been the state's attorney prior to rising to the bench despite no recollection no notes no record of any contact whatsoever the judge did recuse himself in any way over my client's objection and i truly did put my clients in a tough position they either incur the expense of a new trial or they let a new trial judge decide the case without seeing a single party or a single witness and that's the route that ended up being taken they decided to agree on that latter option and here's the great irony part of the consideration was they thought it might be a bit more efficient way to get a favorable resolution to this matter now here we are one adverse judgment two appeals almost three years and untold legal fees later and we're still going and it's hard to say when we're going to see the end certainly not the result not the argument not the issue my clients had hoped for it was not initially race in the appellate court we felt and i still feel that we had a strong case for reversal on the merits it was an issue raised by the appellate court but perhaps this case can serve instead as a lesson why the fourth quarter fourth district decision in this case was correct when you start messing around with the proper roles of the courts you're just asking for trouble at the heart of all this fundamental level counsel why shouldn't  able to weave their right with the advice of counsel writing as was in this case i mean we've you do even if the due process right you can waive those in other circumstances why shouldn't that why shouldn't case was considered documentary evidence and therefore the deference that is normally given to the trial court because they were there on the front line observing the witnesses the the mannerisms the intonation that difference  so i had to get another bite and i don't think that will be the case here because the use of depositions that there are restrictions on doing so both discovery and evidence depositions under supreme court rule twelve there have to be underlying circumstances allowing the use of those depositions medical depositions or one example when there's a death or an infirmity that prevents a witness from appearing you look through to twelve and there has to be an underlying reason for the use of the deposition  we had a similar factual background the the court there found that the second judge who had considered transcripts was free to make whatever decision that judge thought proper but since that judge did not hear or see the witnesses he was in no better position to pass on the evidence than the reviewing court and so the court concluded they could make that same type of determination they could make an independent determination of the findings of fact after examining the record that was actually the argument we presented in the court below however the so in some case some of the language in that case i believe believed brings it to a new level and brings the issue before the court here today when there are critical determinations that hinge on the credibility of witnesses and sorenson court says at that point even a stipulation of the parties may not be sufficient the appellate court decision doesn't come right out and stated i believe the underlying concern the critical determination at issue there is the role of the judiciary and whether the appellate courts a review should be put into the business end of being centrally the primary trier of fact understand e again we the effect of having all of the testimony presented by transcripts and i think that's a distinction that maybe has been overlooked in the  briefs in the cases that are cited here in cases where there was a partial reliance on transcripts but partial live testimony there was some opportunity to make credibility determinations the courts have seemed to a trial judge initiate the discussion with the stipulation that's correct and then my next question is what does this case did the trial judge michele this or is it something that the parties came to the judge and said here's what we want to do i don't believe the record reflects that one way or another i believe of course that it was initiated by the initial judge judge everhart recusing himself but i don't believe he suggested this to the parties i believe it was  although not reflected in the record it was the parties who came forward and presented this as an option that first went to judge angries for consideration and he actually began his review of the transcripts and then he retired and so the case was assigned to judge feeney and he required the written stipulation before proceeding counsel there is also a substantive issue and in this case i want to know what the status of that  there but there is a there is a possibility here that that you are going to get an edge you could get an adverse ruling on the procedural issue for us you know i view it kind of as an invited area situation which is pretty difficult sometimes to get around appellate court and allow this to be reminded to the trial court for a new trial the third option within the power of this court i believe would be to go ahead and consider the merits although that's not an issue we raise before this court  correct and again that was i'm sure the court is well aware that was not the primary argument we presented in the appellate court our primary argument was that it was an error and entering the judgment in the trial court it should have been reversed and remanded with judgment entered in favor of the defendants however i believe there is merit to the appellate court's decision and the concern that was present there over the role of the judiciary and whether to apply this as a manifest weight of the evidence standard will be very noble standard of review or simply to say as the appellate court did this is not proper procedure it violates due process and for those reasons it has to go for a new trial court and i have nothing further unless the court has any further questions thank you a determination on the merits is much is that determination was not made in the immediate appeal from the trial court level that is not to say this court lacks authority to make a decision on the substantive merits you know with that being novo i believe manifest weight is appropriate even though it was only on the documentary evidence and the trial transcripts because one can still make a credibility determination based upon the deposition of the trial conclude that the latter is not a credible witness and the traffic would not have seen this person would not occur this person but the trier of fact could still make that credibility determination simply based upon reading the trial testimony is usually what what's the trier of fact in that case in a better position than a quarter review review exactly the same right answers i suppose that's a point well taken justice but at same time it's always been the standard testimony and give that advice that counsel as to whether this was an advantage just way to proceed and so you agree with your own and the record in this case from the trial  problem myself separating what's actually occurred from what's in the record so i apologize for my hesitance insane this what i think the record shows is that the parties who drafted the consent that the attorney for the parties signed that consent that it was filed in approved by judge seen i believe the record does suggest the judge sees some point actually required that the attorneys memorialized this agreement into writing yes about the conflict that was he was recusing over your objection with the other girls that was the other counsel i think there was concern about judge everhart took the evidence and after the two days he said he's going to recuse himself and the defense had paused because we've already tried the case and they want to go for the expense of another trial so they may have objected to him recusing himself at that point in time but on the record  your party objector we did not make any comment about the i don't recall but i can confidently say we did not object to the refusal with that being said we've asked the court to reverse the ruling of the fourth district court thank you thank you