i'll use my time this morning to put a finer point on two key issues the rich restatement in front page remedies in the lack of mitigation of those remedies now with respect to reinstatement that may be a preferred equitable remedy in the law but it has to be feasible and it cannot be contrary to any factual findings previously made by the jury what evidence was put into the record by the association that suggested this is not situation that you just addressed one is was there a same or similar position available in this case the evidence before the district court was that many of the tasks which are had previously handled were now handled by outside counsel who were employees now can i just jump in i thought that the district court ruled that you were your client rather were on time you had been on primary is the money not evidence and so the boat wasn't going to consider that am i wrong on the i was you just mentioned in response to dismiss question there was an objection made to a declaration that had been submitted by mr dropped the dealt with that issue but there was no ruling by the court that it was untimely there were objections that were made it was never rejected by the district court and we don't know if the court relied on it or not i think what was it submitted after the ruling it was submitted after the court already determined this issue it was submitted after the hearing but at the before the judgment had been entered but had the court when you said judgment had been actually made those findings if you look at the fourteen lines of analysis that the courts applies with respect to this issue it does nothing more than simply state the standards so there is no finding with respect to the availability of a same or similar position irrespective of the time the ness of the drive declaration in with respect to the hostility issue let me say this you have a jury here that found intentional retaliate or a conduct malice in assessed punitive damages you had a district court judge who separately made a finding of retaliatory animus this is a case where malice was found to exist it's dripping wet with hostility  with about malice was found or they're not there anymore right well but this is where we're left to get in the absence of any findings made by the district court on this issue this court should not guess whether the that you can have the in statement but again you have to have these predicate findings that are made before a court can order reinstatement now before we get to reinstatement we have to also recognize that we have a jury finding in this case with respect to the amount of damages twenty or came before this jury and said as to my backpay in as to my future pay here is my claim and this jury was instructed specifically at jury instruction number nine to consider all of the evidence to determine what terms may call damages would be and part of that finding was a predicate finding that it had to be had to be made with respect to whether the jury believed it would be reasonably certain that his employment would have continued but the general verdict though wasn't that strong so we are left to speculate what the jury fair question it certainly would be easier if the special verdict form all the parties agreed on this general verdict form but what we know is this going into this case twitter claimed somewhere in the range of about one point six to one point nine million in compensatory losses that's past compensatory damages and future compensatory damages now we don't need to reverse engineer the jury's verdict to know that this jury awarded torture less than what he claimed in terms of those compensatory losses they made a determination as is their sole province to say look we think you're made whole by this four hundred fifty seven thousand dollar amount now one could argue from that that they said we're just going to give you half lost earnings and we're not going to give you any future earnings and if that's the case then clearly the district court judge sitting in equity cannot disregard that factual finding why because it's predicated on exactly what the jury was asked to do and that is to make a determination whether twitter would have been continued his employment with continued with r s a do you think that he essentially elected a remedy by a submitting that question to the jury without objecting to the that submission i think that's the effect of it in let me let me give a contrast to the court where you could see where you could have a situation where you could have the jury make a determination as to back pay and then the judge separately make a determination with respect different pay if the court looked at the smith case which we cited the tenth circuit case and the case that was a federal claim under the family leave act ok and in that case the issue went before the jury with respect to the back pay in the jury came up with a back page amount then the judge made a separate determination with respect to front page ok compare that to our case these are state law claims the state law claims allow for the award of future earnings and so what we have here is a situation where we have twitter sensually pursuing his future lost earnings as a component of the state law claims and the jury asked to make that determination the end of what's going on here is that we have these stay our claims that overlap but there is a claims which usually we don't have because people argue that the state claims are preempted but it seems like you never argued these claims were preempted and i'm wondering why  i don't have that answer i don't know that was an issue that was raised before but to the extent that there are these two remedies that we're talking about here there certainly is this overlap in this potential for overlap the consequence of which is if the jury made the determination as it was asked to make under the jury instruction nine twitter would not have a reason it wasn't reasonably certain that he would have continued his employment in the future then they fixed that amount of damages at that point in time the judge can't under the seventh amendment give a different remedy under an equitable claim under a recess statute if let's say the jury made a determination that yes we think twitter would have remained employed but for a limited period of time then any additional front pay that's awarded goes beyond what the jury determined in that amount of front pay that was awarded overlaps with the jury's determination so the jury here has already made its determinations of what the complete  damages are for torture and what you have here is a court that says we says and i'm going to give you additional from pay for in a limited period of time there's no scope in time of the order sides well here here's the here's the conflict i think that creates without a finding by the judge that reinstatement was possible without making those two predicate findings that this position was available and that there was no hostility without those finding what we have is a judge saying we're going to have this front pavia bridge until reinstatement can occur because the judge believes that reinstatement is possible doesn't make those findings but believe that so in that situation this can go on indefinitely and if the jury has already found by way of its by way of its compensatory verdict that torture isn't what would not have continued his employment with r s a it wasn't reasonably certain that what is he being reinstate to a job a jury already said that he would not have continued to work at now on the other hand if what the court meant by this is i don't think that reinstatement is possible in under pollard i'm going to award from pay as an alternative to that he has to make that awarded if reinstatement is appropriate but is that what you're referring to that section well i think that what tracks are says in what it means to say there is if you are going to award front pay you have to make a finding we don't want to say well you have to say whether it's possible or not well what it says is if if front pay is awarded you only do that if reinstatement is inappropriate that's not what happened here the district judge found that reinstatement was appropriate and as an incentive said we're going to have front page and you know you're reinstated i think that what let's not what tracks are talking about is it well i think what what's implicit draw from what the court said you're not saying that the court said i think that i separately brief that issue and as i stand here that track to track her case was the only case that i could recall i believe that that's been included in my briefs but i think also what tracks are saying is if you're going to order reinstatement you have to make a determination whether it's feasible or not if you if you make what i've that's what i'm not seeing what it talks about here is you don't you don't order front if you if the court concludes that reinstate inappropriate i see that right at the opposite well in order to conclude that it's inappropriate to have to consider those two factors now would it not but it did find it was inappropriate here what you're saying is that the court has to find that reinstatement was possible and left that out and i'm not seeing that those are the two well again and and i as i stand here i can't give you another citation i know that i cited this in my brief but the idea is that the court has to consider those two factors the the availability of a therefore i can't think that it's reasonable to conclude that the jury awarded future losses when in fact after all many because they were told to write so if they didn't why don't we assume that they decided the future los and why shouldn't we assume that your client elected to have a front page remedy by giving that question to the jury i think in fact it probably did include losses and so why or why isn't the court bound by that i mean under dairy queen and all the other seven years and you should have a job paying this much i run into that and so many of my trials where they say you know you're making less but you should be making more at this point you should have gotten back on track in your career we're not going to give you any future losses reinstatement doesn't have  defense reinstatement merely said hey you're supposed to be in that job and we're going to put you back in that job is because reinstatement is actually a stronger remedy than from damages because it's designed for both a detrimental effect and also to encourage people to make these types of claims if companies believe that they can get out of that can terminate somebody they have to reinstate them that's a lesson that humans then if they know they have but it can someone get front page and reinstatement i mean is that ever possible i think those are inconsistent right you can't be reinstated and get the front pay you would also get to that job and i agree if we wouldn't be here we would have taken one or the other remedy but we didn't get paid from the jury right so we cou we're talking about really a hybrid the judge ordered real estate and said that until that occurred there was going to be from what my colleague i think is saying you can't contemporaneously front and reinstate t or is it just a bridge or a gap until the moment that they put them back in into the position and i do i see the point there that yes if it's reinstatement and friends pay the two things are  can't have both front pay and reinstatement let's treat what the district court did here in the equitable part as reinstatement let's say they actually did reinstate him in response to this you had already submitted to the jury the issue up front and the jury made a determination now you don't like that determination but that determination included front pay as it was instructed to the jury so how can you have front pay and reinstatement that's what you have here  same trial and he makes his determinations the fact that he didn't make it it was on the same day as the jury doesn't mean that it wasn't done in the same trial but was there any indication prior to the jury determination that the jury determination would be advisory rather than binding no i just assume the court is going to do what the court does in a legal and equitable manner so i don't we have a lot of seventh amendment cases saying that the jury determination need to be made first and then the because i mean if you thought there were different offenses then shouldn't you have said the jury should only do back pay because we have these equitable issues and we don't want to be bound by the jury determination so it doesn't make sense to give the front page of the jury here we could have done that we back for the district court to order the amount produced by the by your clients current salary or whatever salary he was getting under cas you know and the fact that that seem indisputable that you're not entitled to get a f for the full salary if you're actually working another job i'll be making west but then you have to subtract out that different don't we have to let you do that i don't think so certainly the other way i feel like in this instance why do you why is your unemployment isn't deducted from it it's i think what you have to look at is was this designed to make him whole is that why the judge did that or was this designed as a deterrent effect to make sure that they put him back in the position because if you think about what if he went on to get another job made the same amount or more money but you like that job you really would rather be back at the job that he was asked well if that's the case there would be absolutely no damages in the incentive for the company to put them back into the position from another job that just doesn't sound right as going into the matter but you have a case that says that that's ok no i don't have a case i'm just using let me ask you let me ask you this in addition what bothers me about the issue courts award i think you're just wrong time but we now know that there is not going to be reinstated that that position no longer exists and they're not going to put your client back into that position so they just spoke to him you know i would say just even it would only be the difference between whatever he's currently damages and nothing has been done so we don't we can't make the conclusion or the assumption that the position is not available i believe they changed i won't say what i believe is that what happened because it's just not in evidence in front of this court there's never been a case out there that says that they have to make that lay on the record i'll tell you if there's no evidence to the contrary certainly you can't go after a judge's ruling when there's his ruling on something where there was no they want to make a showing hey look you know we've closed shop we're not even in business anymore you know that would make sense so i don't dispute that got any other questions and i'll reserve whatever of his likelihood of future employment in they came up with a number and therefore there is a seventh amendment issue there so there's no issue to send this back on any remaining with respect to the front page because she wasn't entitled to show him your perspective what happened you don't send it back you just avoid the whole words or if you're suggesting that's correct because a jury has spoken under the seventh amendment if it if there if the court disagrees and there isn't an issue of mitigation here we we agree that there is front page as a hammer to force reinstate i don't know of another case where it said that's ok typically these are alternative remedies as the court mentioned that they seem inconsistent you can't have been stated and front pa e it's not a temporary bridge until lepas issue can can come up and it's a way of forcing aristide to reinstate the stuff now with respect to the crossville i guess since my time is limited also made on the briefs but i would like to say this ultimately time why didn't you try to intervene to file a cross claim against your former client and could you still if we think you just messed this up and you feared the defendants when you should have sued the plaintiff because you have a contract with the plaintiff and it was you know there would have been supplemental jurisdiction over that i'm not sure why you didn't do that and if we think that's what you should have done can you still if we re banned i don't want to why not  because i understood that while i had an absolute mandate to get out of the case i didn't have a legal mandate or in my mind or right to try to deprive mr