and we've been told by our brother and colleagues other people on the court that if it's a few tile amendment we don't have to honor your here your situation all you want to do is add the two people who handcuffed oh no action which he had in the fact better but had failed to state as a cause of action and the judge has said i'm not going to allow you to proceed proceed with those cause of action because you didn't play them plus the two people who actually ha think now we look at what happened and what difference would that make or it's two different cases it's two one three but what difference not form but substance what difference would it make think there was no no motion there were no briefing never mentioned until the last day when the judge said let's hear about it notice you process anything i i'm sorry i don't remember what he did about qualified immunity because he just dismissed the case basically is what he did and that's another thing he threw fifty that qualified immunity would prevent this case from going further even if there were not qualified immunity the evidence here in terms of the other case is woefully inadequate if there's something less than well fully inadequate that they apply to this case no offense not i would say flabbergasted because i felt from the time that the law i'd be motion to amend the complaint that we were going through the motions were prevented from an admission meeting in evidence internal affairs reports and other documents that would apparently show things in your favor is that right yes and the first problem i had is i couldn't find those in the records are those are the records someplace the internals of fair affairs report  telling us they're not in the record we have no idea what's in them you have no idea what that and that's because you didn't put them in the record i was i was not allowed to put your you were you could've made an offer proof you know i like to lodge these with the courts i can preserve this right this point on something you want to do in a court what let you do it then you've got to indicate in the record precisely what it is so we can measure it on appeal you didn't do that even if the judge wanted that it is evidence he still i thought trial practice for years and i you know i taught my students  judge won't let it in and the judge is getting mad at you say your honored letter i'm going to submit this to the clerk of the court to preserve the record and then on appeal you can pull it out and you can argue it but we have no idea what you're that was true that how do we know it's how do we know it was prejudicial or relevant or anything else i think the best way i can describe it standing here today is the whole case was prejudicial from the from from day one so you're there's no way we can measure yes and if you measure it by the the in supreme court's work the culture or the circumstances when you have and i'll go to another when you have the testimony of the expert witness sitting on the witness stand who testified he took a retainer from both sides examined my private notes and my strategies in this case and then there's no rule twenty six report should be understand the first place but i love that because tiger knew his expertise worked when he went to medical evidence and the  you know trial lawyers do well to think ahead and have a check their records and this case stands out as something you would use in trial practice to illustrate failures of lawyers to protect their record this recognition trying to admitted and that's your responsibility as a trial and we see this multiple times a day for lawyers put things in the record that judges wouldn't want to be used in front of the fact finder i think there's a twenty six report then you had no objection  do you remember the record yes yeah i thought yeah what did she say about the fingerprint process that they put her up against a wall and her fingerprints were on the wall you never want to remember why she was appeared to reports nor have you argued even without anything in the record that the reports describe officer soandso admission that he really was to severe when he put on handcuffs or anything like that so clerks in the audience better be able to answer that question trial you just complain while they don't like they did a lot of reports and you don't even tell us what's in the report that's so exciting that you should win or be able to get past where you've got in this case was we of the main complaint in the court denied it and they violated and they did not comply with the with the process in full and you haven't been able to show us how that would make a difference and why we had to send it back to that if the district judge heard the evidence and found that the evidence was quote woefully sparse unquote to support a constitutional violation for excessive force it was appropriate to dismiss the case  hold did you oppose that our office did on what grounds we opposed it on the ground that it was belatedly offered that the plaintiff's counsel substituted in on september twenty ninth two thousand and four he chose to do discovery on the complaint as originally planned he took six depositions and he allowed the september thirtieth two thousand and four deadline to add parties  and then two months later on november twenty ninth two thousand and four he then made his first action to amend the complaint which was offering an ex party application for an order shortening time elapse of time that would be supported by the ninth circuit decisions in morongo versus rose and solomon versus north american wife by then the case had been discovered on the complaint  originally pled and there was no proffer by plaintiff's counsel that he met you know why the delay that there's no statement in this record or below that he met with his clients or there was something preventing him from meeting with his clients to find out whether the complaint has pled by his predecessor counsel was in some way inaccurate or incomplete the district court however you have no reason for denying the motion and all the other side asked for the