search for meaningful review it's also inextricably intertwined the question then gets into how many other orders we raised some additional orders that we believe are also subject to review at this time and  that's where the parties part ways are the daubert order even assuming that we had penned a juristic sure that why would we exercise it when i don't perceive that you've made any argument as to why the district court erred on its stobart order yes for a while there were some space limitations that i ran into having to deal with an extra argument but i wasn't planning to argue so i did not argue specific lee why the sanctions order for example should be overturned or why or vacated why the deliberate order should be vacated one thing i would say about the dover order your honor there's actually two motion rely on his not an expert in an interpretive aerial photographs now so are you waiving both dalgard and sanctions since obviously they weren't mentioned i don't understand that what you mean by they weren't mentioned your are well i'm so sorry i thought that in response to judge heart of ins question about not pointing out what the error was you said because of time constraints you didn't mention error as it relates to dauber in your brief and you also said that as the sanctions did i not hear you correctly well i didn't i didn't expand upon it i did mention in a footnote exactly what i'm saying now and no really but we do have a president that says the just saying something in a footnote is not sufficient to preserve it but it's preserved your honor that the issue is whether or not it is actually a do well is still have to develop the argument it's not enough to just mention it in passing we've got a lot of case law that says that but i appreciate the space constraints and i don't want to suggest that you know you didn't put your best foot forward i thought your brief was very well presented but gee whiz your predecessor counsel did not cover himself in glory d and we're really sort of stuck here with this would appear to me to be sort of an abomination in the district court i mean the district court judge gave your predecessor a lot of leeway stringent about particularly following rules and i think there were rick there was extension after extension there were d admonitions to follow the rules and then you get nine thousand pages including several one hundred pages that are just duplicated i don't think it takes a stickler to object to a of a volume that has been to blame him and there's plenty of blame there but you have never disavowed your client's awareness of what was going on and i don't know that you could could you i mean your client maintained a website following all of this litigation so you're not claiming your client was was blissfully ignorant of of all that was going on that was protecting this and or filing at all are you do you have any basis in the record to make that assertion it was not relevant to what i was doing was just to figure out whether or not the district court satisfied the st element from the st factor polish the court didn't know either and one of the problems that i found with this case is that the court would mohnish in various contexts mr cogan for trying to relate the two cases like one hundred and ninety dollars case in the twenty seven dollars team case together and every time they would they would argue for example well the government's not prejudiced because they've had this named hank ingram i knew hank he died in two thousand and three so why a thirty year problem with the government should be used to say well you must know what your new lawyer is doing in terms  for you to agree with the proposition that there is well let me ask you this is there any basis to disturb the orders entered absent a review of the poulos determinations just merely strategic that it has to rise to the level of you know like like if you look at a lot of the cases where prejudice was relied on heavily it's the eve of trial disclosure somebody files pre hearing memo on for the st time an expert report of strong and and no one has an opportunity to respond to that that's not what was going on here what was going on well well that's that's a persuasive way of saying you know other cases there was more prejudiced and there was here but i'm not sure it's a persuasive way of saying there wasn't any prejudice to the government here but why wasn't the government prejudiced by having to file a motion after motion to deal with the obstreperous conduct of your predecessor like you know hours after he filed he filed one of the briefs literally hours after the deadline and then responded with a motion to strike one that's just a way of saying that the government was forced to chase everything down to to drag it out because of counsel's behavior you could characterize it as being forced or you could characterize it as taking an opportunity aren't let's talk about it than i would like to focus on something and i and here he didn't actually entered to fall judgment this was striking a brief and then considering the summary judgment on the merits of the government still had to satisfy its burden of proof isn't the holding of anchorage associates that in  motion is not tantamount to default judgment you know i find it interesting that the district raised anchorage and then immediately went to a polls for houses and i think the reason is because the court recognize case of flat out enter a default judgment and an anchorage kicks if we're thinking about whether we should extend the pool list modestly to to plighted this situation should we or shouldn't we i mean what would we do with factor five about lesser sanctions here because the district did take a somewhat lesser sanction than just flat out entering default judgment still held the government to its burden of proof i think we're mixing apples and oranges a little bit your honor what  associates applies to is whether or not a party truly fails to respond and there were two things that it dealt with number one is going to local rule be used to automatically enter judgment and number two is what happens when a party totally fails to respond and the reason it can't apply polish in that context is that you have no basis to evaluate the factors you don't know why for example the party didn't respond and that's that was one of the things that the court talked about in anchorage and so  here we know exactly why the summary judgment was honored should have followed everything being struck and all defenses off any response and so that's the sanction the triggers polis when you when you're talking about the  quidditch sanction to apply i advocated hard you know very strenuously in the briefs that i think this case was very well suited for financial sanctions early on and i don't know why the district court didn't go in that direction to affect someone it may have had the effect of correcting his bad behavior i'm not sure because frankly as i read of it everything i'm not sure mr cogan capable of representing someone adequately now we know that they were aware of mr codings conduct and so i think it would have had that effect as well so let's assume we agree with you that i think you rates of good arguments there about how a monetary section of the lawyer might have got this case back on track but if factor five and factor one go your way are you still on the short end when we look at factors because factor for because i think you also made a good argument that the record is that we should be somewhat agnostic about this or braces personal knowledge it's if i if i had to guess i think he might might have known but the record doesn't really tell us that so i think we ought to be cautious on that but isn't it the case that factor for asks whether the conduct by the party or the parties attorney was willful or performed a bad face so even if mr brace was completely unaware of the bad behavior factor for still this sort of a slam dunk conduct and what the court did with this one is in a footnote assumed the brace defendants were directing mr cogan because they wanted to continue farming the property taxes i thought when i read that that was frankly outrageous so one of the things that i did in my brief and that the court did not do and that the government didn't really do its way all the fact is that you know once you have all the factors you know you look at each one in isolation when you weigh them and if you page forty eight of the brief i pointed out have similar those cases to the hillebrand case number one the court trivialize the st polish factor in a footnote and had no evidence whatsoever to reach the conclusion  i'm not sure what your rejoinder is on the th factor isn't is it it is not repeatedly disregarding district court orders the definition of bad faith but if it were then we wouldn't have to figure out if there was that face you just look at the record be done with it but i think there is no i mean we look in order to determine whether the lawyer was acting in bad faith we look to the record we look to the evidence and what i'm suggesting here is the evidence in this case is that he repeatedly disregarded district court orders could repeatedly violated district court orders and i'm asking is that not bad faith i think it has to be willful and i don't know that it was i think right so it just wasn't it was just it it virtanen time and time and time again i mean that it seems i wouldn't i wouldn't go that far either i don't think it was inadvertent i think he's totally incompetent frankly i think you should be disbarred but the question is whether or not his incompetence should be visited on british defendants he did for providing he said look i'm  had co counsel coming in and signing pleadings etc it's just throwing up a cloud of excuses here i misrepresented his own practice carried us to the court that sounds like willful or bad faith  it i find it interesting that you know we can point to those examples of where he's willing to deceive people but we think at the same time that he's following the rules of professional conduct when it comes to forming mr brace of this mistake at the end of the day we're punishing a party for something that mr condit really that's the problem and i think there's there's sub truth to that but is that not inherent in the adversary system parties typically hire like i said if if you prevail on factor what in fact are five we still have the other factors to deal with and we have the ballots with the ballots all six factors right we have to weigh in and evaluate all six factors y know and i did that in the brief for the sixty one for example the court did not conduct a meritorious now since the court basically incorporated by reference the summary judgment analysis that was stripped of all defenses the whole point of a i taurus analysis is if if the sanction is not imposed are is there merit to the other side's case and she didn't do that what she did she said well we're going to strip all of the defenses away and then see whether or not the government has a prime official case and then we're going to use that for the meritorious analysis which you know so that one weighs again in favor of the british defendants and i've seen some cases  where you know if you have one or two factors that favor dismissal or reversal rather that you should do that because the one overriding theme is that the court has a strong preference to get to the merits and that's another thing that the district court didn't do in the opinion is she didn't discuss whether or not that that was even considered and if it which case it was that was the sole basis that the case was reversed because the court failed to do that and so you know these things because they're very factual obviously we don't have good facts we have a lousy record we have a docket but the docket entries we can see that and we have characterizations of mr that's what we have and in close cases whether it's hildebrand or scarborough those kinds of cases typically the court reverses so that they so that the case can be heard on the merits i think this case is more like that than the outrageous conduct that you see in some of the pro se cases and that sort of thing or you know there's a lot of nonprofit gazes pro se cases maybe you can see that no matter what you do the case is not going to get him you know it depends on you from what i think is a little bit different about this case too is it sort of foresman action against somebody this a lot of these cases deal with plaintiffs that bring cases and then don't do anything with and so it's you know pretty easy to understand well look if your doctor if you don't care about your case why should we this isn't the you know he's been enforced against by the government and so if you're weighing if we have some doubt a judge struck all of the affirmative defenses the st time around and that she did it the nd time around and so you know the whole case about we have this historic problem brace doesn't want to go down the same road he mean it's kind of outrageous when i look at it and then when you compound that with mr cogan would it mean it's just ridiculous it would be nice if if the british defendants could actually defend themselves on the merits with competent counsel i think that would a list we'd have to tweak factor five because this is a slightly lesser thinks them but wouldn't it help to structure district court consideration help to structure our appellate review if it just better to make them walk through the steps i think your friend's argument on the other side that supports which is in a classic default judgement case you just have nothing from the other side to review or to weigh why they didn't there what and here we have a assume that brace was responsible for the delay right though you have to have some proof or evidence that brace was responsible for the delay is it enough to have a hunch or a suspicion that he was responsible for the delay  factors though and it looks to me like an error was made a factor one factor five alternative sanctions that wasn't the there was there was no sort of progressive discipline here by the district court and then factor six you have conceded you know kudos for your candor you've conceded that there was error on factor six so it looks like we've got three factors going for brace and three factors for the government obviously dilatoriness opposing counsel conceded and goes for menacingly in favor of the government i think factor for those in favor of the government because of the attorney's bad point that here we don't have the typical pools case where we have an intransigent during competent plaintiff failing to prosecute the case we've got someone in a defensive posture it really i know this isn't a criminal case but it sort of has the feel of a of a criminal case where defense counsel is is engaging in ineffective assistance of counsel there is there is a not only was there a bad defense here there was no defense and the absence of defense the of defense counsel went a long way toward turning the court against the defendant so you know what's is there any good answer to that other than well you know that happens if you hire a bad lawyer and that's the nature of our adversary system and made a fire it would have been feasible for the district court to say look factor one works against mr brace because not only does he have this incompetent lawyer but he has these other lawyers and i'm going to find as a matter of fact that opposition so that if one had to deal with the situation head front and made a reasonable determination having you know told them exactly what they needed to do having them basically say we don't have to follow your and to suggest now that you know we had real time docket entries on a website i think is troubling because there's no evidence of that on the record also i i'm unaware of mr cogan ever saying to the court reprise ending to the court that you know we know that your prior words are that we're about to violate it but we disagree with them i don't recall seeing anything like that and so this kind of factual assertions that are really part of the record i think should be disregarded with respect to the issue that that keeps coming up but anchorage but the summary judgment order in this case is little different from a standard summary here because of the st part it was a sanction and it would basically struck everything and if you read anchorage as i said earlier what the court looked at is the reason why pulis did not apply is because the court had no basis to figure out the the district court had no basis to figure out why didn't they reply why didn't they file something so you can't really evaluate the post factors here we know why the brace defend instant replay because it was stricken and the court was you know figured this out which is why the court didn't pull this analysis because it was a sanction during a discussion it just occurred to the court point out that well we have three factors against three factors and this is a close call on that sort of thing i would remind the court that one of the central precepts is that when in doubt this court prefers to hear cases on the m must have said something to the braves defendants just because that there's other lawyers and you know that's what brought this turkey was correct there were a couple of other lawyers right it wasn't all about mr cogan that's correct but once again we don't have any record that they were you know following the case you know rather than this local council and i've been involved with local council matters before where you know i get hired because there's a matter that arises in theory when a western is pennsylvania in the lawyers that is doing the work out of texas or out of you know massachusetts why would why would we look why would we assume that local counsel would be so remarkably unhelpful as to not tell the client what was happening with all the missed ed lines with mr cogan that that seems very counter intuitive doesn't it it does but i would respond to that you shouldn't assume that nor should you assume they behave the other way should make any assumptions it really comes down to what the record reflects and so you know let's let's say for example that right but if we don't make assumptions of fact or what is a wash it doesn't help either side i disagree  credulity presumption that that the court derived based on well they've been litigating for thirty years so they must and i mean the whole thing doesn't make any sense and it violates the one rule that she had to talk about that other ca basically just like i did that just this one isn't important because i don't know the answer so i'm going to assume things and she did the same thing in a footnote ten on one of the other factors which i think is totally improper they'll think the government s there's a new case law that requires an evidentiary investigation we're not suggesting that the court needed to do an evidentiary investigation however in most of these cases there's usually some sort of conference that occurs where the parties present like where for example where what was the party that he decided he was going to show up for depositions well ok so if you're not showing up for depositions then you're aware of the dilatory conduct as you're participating in it we have nothing like that here  and rather than apply a presumption like that if you're really that in the dark about what they knew and when they knew it and have that you know about color be in for a summit conference and say you know we'll cross the table so you know where th where is really screwing this up but there was nothing like that which and that really gets to the financial sanctions you know polish itself says we prefer financial sanctions in early cases and say that has it it does two things number one it punishes offending party and it also gets to the knowledge of the party thing because in that context when when financial sanctions start to be imposed then then people have to start telling people things and so it forces the issue are you suggesting that  should vs financially sanctioning innocent parties who are let down by their counsel i think that would be preferred to the ultimate sanction yes of before you impose it all to sanction st i would start with a lawyer if that doesn't work then i would go to the  i think the record self a self evident but if it conclusion i just finish up by saying you know this is but it's a close case there are factors on both sides i think most of the cases like others where you have a close call on the court default to go to doing the remittance of the case can be heard on the merits and on this one in particular it is a government force in action you know you have no ability to defend yourself right now because of misconduct of a lawyer if it gets sent back it's not going to be mr karr going to can sure he's been fired and then you know the knox firm who's representing him in the district or proceeding will will take over and i'm sure that they would do much better job but and i totally agree with the government that that what was filed by mr tobin is unacceptable and i and i share the court's frustration unacceptable that won't happen again but to have judgment and against the braves defendants on a force in an action like this because of the clear misconduct of their then lead counsel i think is a lot fair thank you thank you thank you both counsel we