because ok you've got on the i think you only have twenty minutes total so but obviously where you're an appellant you have rebuttal time and where you you don't so i would think how long do you think you're going to take on your abbott entry issues i would think ten to fifteen minutes all right well that doesn't leave too much time and effort and you want to case denied access steven bochco denied ever having to see that cast scripts and the best evidence that we had to contradict that even though we had other evidence but the best evidence we had were the statements of his was stricken the court only allowed one one statement and it was a statement of the key witness plan after all metcalf he testified that michael warren said that he intended to give the treatment sixteen page treatment to mr bochco that's the only piece of evidence that appears to have gotten in but he didn't get in right away at the time that that evidence was offered the court cracked he might he prevailed on the summary judgment he said when he took i think he had a declaration there he said something to the effect that yeah i took beasts and i told them that i was going to distribute them and i did in fact distribute them too and that's a williams and some other people as far as that correct so when he would testify in the trial did he admit that he told them he was going to try to distribute them to all these people but he didn't in fact distribute them to  i was willing to appear in the production and you know if you ever if mr mckee ever got it produced i was going to star in it i gave him the names of the few people who he might submit it to and that's all that's that was  admitted taking possession of it he did and he admitted to what else did he say you know i'm just trying to tell you i did that's what was going to do that what did he say that he was going to do with that at the trial he didn't say anything he was a couldn't we couldn't get in the evidence that he said he had delivered it in the box write it because that wasn't admissible into the human exception the only admissible was a statement of intention to deliver not that i had delivered it or that mr bochco received y and we are prepared to do that through three witnesses the only evidence that we've got in was as i say that last that last hour or that that one statement concerning the treatment it was done by mr bochco it was done by mr met testify to warn statements of intent the court said he was going to allow us to do we recalled mr metcalf twice the first time the court sustain objections to all four questions but this is after the court had we view trial counsel twice for trying to get that very same evidence in and only allowing at the very end of trial totally undermined the credibility of trial counsel on the issue where did allow any of this be able to bring in more space at the court said you got yourself into enough trouble and wouldn't let trial counsel bring in additional state it's important because the one statement related only to a treatment there were three works at issue in this case one was a sixteen page treatment two of them were full on screenplays which was the basis really the real basis of those copyright infringement points there was no evidence allowed that that he takes them and he also happens to star in one of them right if he does and and there are depending on how you view the verdict and what the jury found this because this guy you know there is testimony yeah he took he actually stuck starring in them and then they hear evidence of whether there's substantial similarity or just similarities but there are you know the jury hears all of that so that evidence certainly would seem to somehow bear on the issue of access in a circumstantial sense i mean i would certainly argue that if i were trying the case and we did argue the circumstantial evidence that was really  according to that theory the more evidence of access the lower the standard of substantial similarity well we have some one little piece of that one statement we were allowed to get in this other kind of weaker circumstantial evidence that we were able to point to this case by the ninth circuit relied upon and in part on the fact that there was so much evidence of access and it was relying specifically on the other ones that we weren't allowed to bring out of the trial so that affected the standard of substantial similarity as well as we only have this really sort of a week a sign i ask this because what was disallowed we could have had two independent witnesses testify to seven occasions where yes that's correct so you should save the rest of your time but i'm not going to make you on the other hand i'm thinking if you obviously want to hear what they have to say first right and then respond favor on all issues relevant to plaintiff's single cause of action for copyright infringement the eight members of the jury returned a unanimous verdict in favor of the defendants and against the plaintiffs on question i'm sorry your honor gets it's hard to hear here that's correct they were issued a general verdict in favor of the defendant this negative review in this case is also if you had a special verdict and they got over that access but their reason that they was ever at all by judge keller judge keller has been trying these cases for thirty five years knows the rules of evidence the rules of hearsay and is exceptions and apply them properly as a review of the record will show the reason that the said to him is what you're trying to say that mr warmings that when you gave him this document that he intended to give it to this debuchy go mr metcalf said yes that's what i'm saying and the judge at that time in that when the question specifically was within the fearsome suction out the other question in that i agree with you on that there were a couple of other witnesses to that now did they try to testify on the intent issue and you're saying that w or what you know they offered evidence their testimony was hearsay and it did not fall within the intent right and what did they try to say try to say mr warrants that you've given it or mr warren said he liked it but it was not within anything about m let's tell her listened to all of these questions when they were within the exception he admitted that when they were not within the exception they didn't the second part of your honest question related to whether or not supposing th judge kelliher made an error with regard to one of these rulings whether or not that ever would be prejudicial and i would submit it would not first of all evidence was it needed in this case and therefore the question is not exclusion of evidence but not only because it was inconsistent and factually impossible to a large degree but it also was overwhelmed by the circumstantial evidence of a lack of access and lack of copying that was admitted by the defendant the defendants witnesses all testified at length as to their independent creation of the of their work and they also supported that with documentary evidence showing their independent creation of the work and they also metcalf's testimony was limited on the issue of access to the statement that mr warren supposedly twelve to twenty years at some time twelve to twenty years before trial had made a statement that to your honor is the first one related to an oral request that he made at the pretrial conference to name an expert witness this is the first and only time he ever made the request he did not make the request  on a notice motion but only orally at the pretrial conference by the time of the pretrial conference it was well past the deadlines for a dozen of the experts even at the pretrial conference that mr health thing did w the matter was going to be the stansell similarity but he did not indicate that then nor what the witness was going to say the judge listened to his arguments about that was repaired just at the trial in the near future and denied the that he made before that the district court i don't believe any showing on appeal either other than indicating to your honor that the subject matter was going to be substantial similarity but he didn't do that to be president start right now and then the final finally he complains that the judge did not allow to use a revised chart in his closing argument to revise chart is not evidence and he did not disclose that he wanted to use this revised chart recordings with the local rules the judge to use the similar chart on the same topic before obama's use the same one again he did use the same one again he was not prevented from arguing anything that he wanted to argue in closing statement he was just not allowed to point to this chart that he had not disclosed and once with regard to the issue very briefly of because i do not want to impinge on my co counsels time but with regard to the issue of attorney's fees in this case the motion was made by my clients and denied by the court i believe that under the even that issue i will submit on the papers that were submitted on the attorneys to ask him to get more specific i'm sorry did you ask them to get more specific after he issued the ruling we did not thank you thank you do you do you want to do that now do you do you want to do that now or do you want to wait you question i asked for a description of the times when the evidence wasn't allowed in response to that council stated that all of judge kelleher's rulings were correct and he gave examples of two we of course don't claim that all of can i did several times i don't know whether in this particular time but we made numerous offers of proof and the issue had been briefed and emotional women a beforehand and the court knew exactly what we were going to testify to another testimony was stricken question was one of the truck council's questions did warren say anything about his intentions respecting your idea here's the objection sustained question did he ever discuss his intentions regarding the project hearsay and objection sustained didn't didn't say anything about his intentions with respect to this project at this meeting his court sustained objection now one of the long time ago of services distinguished jurist no one's making any kind of derogatory comments about the way he handled this however there simply were he simply did not have a grasp of this particular issue and i say that w let me just illustrate why he didn't seem to understand this at one point mr metcalf testified warrant told me if i could put something in writing get it to him he wouldn't deliver it  sustain the testimony stricken when you say i will do something i think he said he would do something that is a spate of intent you don't have to use the word i intend to do it if he says i'm going to do work  you know and i don't have much time for co counsel so i'm going to and let's see there are the judges want to question you further on this issue i'm going to ask to hear from nicole counsel unless you don't want them to talk no thank you good morning your honor i'm an honors my name is david snyder and i represent the appellant's in this case i'm going to speak on the s to the attorneys to be appeal issues there are two attorneys fee appeals before this court one is the appeal of michael warn from an order standard and what the parties have to show is that the trial court made a clear error in the fact or conclusions of law with in connection with the warrant appeal the mets have offered evidence of an error clear error in the findings of fact made by the court in connection with the bunch who appeal to me there was no showing of clear or whatsoever on the warrant appeal one we've got a summary judgment the other we've got a jury trial co right on the war in appeal which is the summary judgment of the court based theory was he was like a coconspirator right the theory was he was a coconspirator not even that it was contributory infringement but essentially that he was involved in the process of conveying scripts to be copied the court found in summary judgment concluding warrants favor saying that because the metcalf's authorized him to provide the scripts to two bochco he couldn't be contributory liable the flaw in that argument is that it seems that he was doing so innocently and in fact the treaties that the court cited the number of tricks he says the conduct has to be innocent and it's later in its ruling on summary judgment however the court found that a reasonable jury could innocent in his doing it that he was lying about it because he wanted to cover up his involvement so within the course only order are facts that show that it was him and only reasonable to conclude that his conduct was not innocent and looking at the facts in general  them they don't show any clear error on the part of the court what they do instead is they say that the court's order was insufficient and that there was no explanation and in fact as the court has pointed out there was some explanation the trial judge said that he considered the relevant factors which were briefed but even if it fails to give any explanation the appellate court can still sustain the order firmly order if there's any reasonable basis in the record to do so and clearly there is here if only based on the stern struggles of the court described it did so based on the conclusion that these were awarded will for the appeal and on the conclusion that there was no need for an exercise of discretion because there was no dispute as the amount of attorneys fees to be awarded here there is a dispute as to the amount that was raised and in the lower court and there is right i think we have your arguments on mine thank you that the award would have to great a burden on them or to or to affect them in a way that would put a chilling effect on other planes and essentially what the court found is that their decision appealable here has been made an issue when the court granted summary judgment for michael warren it wasn't simply on the issue of access the court for the purposes of granting summary judgment to mr w intent or statement by mr warren and although i apologize to your honor for not being able to find the ones i taste and i thought i was looking for there we did extensively go into that matter in the briefs themselves and i believe quite a lot of the questions and showed that as to a lot of the questions there may have been a question or two as to which the objection was and mr healthy might have followed up for example but did not or for which you might have made an intent when he first got here say a response and then the judge objected and he didn't follow up on that there's no reason to believe after a witness has testified as to what mr warren supposedly said and testified in a completely hearsay fashion that in response to a later question that might arguably fall within an exception that would this would suddenly change is testimony just in order to fall within an exception to the hearsay rule so i think the  suggestion that judge kelliher made all of these errors is not correct when you look at the record judge kelliher his rulings would be based upon whether there was hearsay or not whether it was offered for a limited purpose or not whether there was an offer of proof or not whether there was a follow up question and those kinds of things thank you thank you i'm just before i let the parties go since i held the parties rather closely to their time and i know we all had a lot of questions to either of my colleagues