me in or tried cases against me or had an opportunity to learn a great deal from i'm here today complaining about miscarriage of justice in a civil case which i imagine is rare but does occur from time to time and in this particular case the case was tried upside down the court granted a partial summary judgment on costs only never granted summary judgment with respect to the tribal issues in the case yet later on at the urging of the plaintiff the court behaved as though the court had granted summary judgment on the principle issues to be tried in front of a jury which we were entitled to constitutionally and what happened was that the summary judgment ruling which tonight summary judgment doc did a contract which existed between a party it wasn't in the case and one that was in there were a total of six agreements between lawyer and client here but there were four entities legal entities partnerships law firms which were the contracting party so three of those were not in front of the ninety nine contract the law firm had been dissolved and if anyone didn't know it they sure knew it when this court decided the city colleges case because the court announced in its findings of fact in the opinion of this court that that law firm had been dissolved in two thousand  and a new farm had been created in two thousand that took over so this trial court in the middle of the end summary judgment was advanced that the instigation of the plaintiff before discovery been complete before  answering period had completely run because a number of the original complaints were contested and so we around i believe the second amended complaint when the court was granted summary judgment and the answer still was not d in addition we were dealing with the problem of the defendant always complained that the contract was applicable was a fee limitation contract in other words a capped letter now i think you can search the jurisprudence of our state long and hard to find a case where you're going to find a fee capped letter in the literature of the law that we have in our state and we'll even see it in terms of the a and force one of the rules of the court a professional responsibility there are no cases my feet kept letters so this is a unique invention in this particular case by the lawyer who is representing the client who is now on the sixth agreement or memorandum constrain the question of fees for wish to do sure responsibilities kick in because once the lawyer has one contract with the client after that the lawyer has to say well you know if you want advice about this contract you've got to go find somebody else and talk to them reputation evidence admitted of any kind i think that argument stands for itself in the brief and you know you could use it it's historic in illinois that people get confronted on the reputation for truth commission in the trial courts even a criminal defendant gets confront d you know and so it to me the most principal argument is the summary judgment one does that answer your question ok the nine hundred ninety nine contract being enforced ignored the fact that there were three subsequent law firms in time and there is no instrument brought into the record transferring the time track to any of the subsequent law firms so that there was no assignment of rights under that contract to a subsequent law firm for enforcement and actually all the fees under that have been paid one of the judge's findings were that all the bills prior to april had been paid april thirtieth and paid so that of two thousand and five so there was no way to enforce prior contracts and even if there were it came to a crashing one who could legally enforced claims so even if you know you were to say well he could bring the contract for it from free different firms it hit a brick wall the moment that the trial court in chicago worded everything to mr clinics ne instruction the jury was instructed on the one nine hundred ninety nine agreement because the trial judge admitted that into evidence during the trial or question directly the judge had in our filings had the agreement of april thirtieth two thousand and two the letter where plaintiff wrote the defendant stating a new retention agreement would be sent that's the notice to admit you can find that is where you can locate those in the record so i knew you would ask and i know this when i make sure you understood the trial judge knew because she had already noticed to admit filed with her and from the beginning we always argued that that nine hundred ninety nine agreement did not control the relations between the parties that the fee cap letter was the controlling document and the whole thing to fight her decision to fines rodrick in this respect if you charge fees most clients only care about the hourly rate you know they don't care about the rest of the boiling point and you know if you signed a contract with a client know the client looks very closely at the hourly rate the one third contingency agreement that's what they will get if they don't bother to read that if i if you  move through in my vacation you'll have to pay a cancellation fees that to them it just goes right over their head they don't pay attention but what this client and every claim paid attention to was the hourly rate but then that's followed up with the checks but i feel like was incorporating the proper agreement she would have taken that from the notice to admit and incorporated that agreement and said well now i'm supplying the hourly term from the two thousand and two agreement but we're not going all the way back in one thousand nine hundred ninety because hundred ninety or pay one hundred dollars less an hour or two hundred or whatever the number was ok the other thing that you can tell is that these agreements changed over time as there's no attorney's fees provision after nine hundred ninety nine and that's very significant because this court decided a case called in really the marriage oath that they have to look it up here for you but there is a marital case that the mark about that you couldn't force attorneys fees against the client because  relationship and the presumption of unfairness involved and i cited in the book i parted broken shoulder and the drugs you take where it wipes out a good portion of the memory so but my memory about what happened here was we were complaining that you can't enforce the old contract because of the cap letter and that the camp letter put several changes into the agreement innovated the agreement and it limited money to stages and that's one of the fascinating things about this case you have stage one stage two no trial stage two that's getting prepared for trial stage three the money kitchen for trial stage four hours of the trial last more than a month stage fine is what happens and post judgment time there was no kind of doubt area for settlement and as we all know settlement kind of could any minute in any case at any time we could settle this case in the hall after we walk out here but the case settled without a jury trial and we kept on saying to trial judge well you have fee kept here he could only be paid his fellow she could only be paid the amount of money that was entitled to by stage two the case never advanced beyond that  the trial judge made the mistake of focusing on the one nine hundred ninety nine letter with a all she had to do was look at the plaintiff on the top of the case and then turn to the name on the top of the letterhead this other than the costs which were not in contest and a trial judge in illinois not a federal judge who gets to make fact findings at the summary judgment stage the judge makes the fact finding that there's no contested issue of fact that's the fact finding not all these facts are discrete and this is going to govern the case from here on down which is a big difference between the federal rules and the state rules that are applicable so it's my position that leading case on their city colleges which is their case and city college just said it doesn't have to be signed because the board of the city college with mr headley in sign the letter but the bit the board approved the paychecks and the paychecks transferred from the city lawyer alleviated the requirement of a signature because the conduct of the parties during the course of the transaction indicated an adoption of that program and so your case the city colleges case which was the decision of this court with the identical party here the city at the table and the identical lawyer who argued that case everybody had to know that even if they can't find the signature page of mr thrush and the burden at the summary judgment the city colleges case i believe justice gallagher answers your question because it goes to the heart of the matter the trial judge said they were paid for april thirtieth what were they paid out it had to be on the hourly rate the hour a rate got them paid through that six months before april thirtieth right so they're paying under the feet they have to in conjunction with the freak out that came in and there's no question both parties signed that and that that was negotiated between the parties connection with the client and there is not a scintilla of evidence in the record that he told the client to go to another lawyer if he wanted to while he's negotiating the fee cap there's not a scintilla of evidence that with respect to the  letter where the new retention agreement comes out if there's any suggestion they should go to another trial judge says yeah i that's that's the correct standard clearing convincing evidence that there hasn't been an overreaching here is required but then the trial judge went on to say i can't decide whether this is against what would a reasonable jury would do but we suspect we suspect that that's not the law in illinois in illinois the trial judge has screwed nice the record to see whether each and every element required by law is in the record at the moment you ask for a directed verdict and if one of the elements is not there then the trial judge has to say sorry directed by the granite or i'm going to allow you to reopen your case for you to put in the missing elements well mr alderman never asked the trial judge to reopen the motion was never made made a ruling was made based on the record as it existed at that moment and so consequently we have a decision concerning mr headman who agrees on the witness stand that he's a fiduciary to the client at the time that these agreements are negotiated so i didn't mind to bring that forward too to that particular point  i think i probably exhausted your patience on summary judgments of i can move on to something else but this is you know you got to say why are you confronted with maybe three hundred four hundred pages of reading in this case it's because the rulings don't match the record if you count are you not granted directed verdict if you don't have evidence on a point how do you in a summary judgment matter plugging a party whose name isn't on the face of the complaint you know i mean these are legitimate complaints about the fairness of the process the jury instruction and i think this is something that you could really publish a great opinion on if you decide to publish and that's what what is the right instruction where a judge decides that the contract on its face and her ruling was ambiguous it was subject in her mind it was subject to two interpretations and she said two reasonable interpretations so that the thrush companies had one reasonable interpretation that each stage of that contract had a cap and they had to pay no more money unless an advance to the next stage of the headland camp sees that very same contract as being the entire budget for the case and i get three hundred twenty five thousand dollars no matter what i do this is the case by june and i'm going to get three twenty five and when i find suspicious hears both in city colleges and in this case the final number of claims from the party that doesn't wan pay is three hundred thousand dollars in both cases and seems to be that's the number in that case he was entitled to a bonus for good performance in this case it's for several months now we all know if you don't call  jury i mean if we look at the cases historically since the marshall court the supreme court martial a jury trial doesn't begin until the robot first journalists we went and we have a sworn witness sit in the courtroom that's in the criminal side even if we relax juror has to be sworn to have a jury trial start in a on a civil side you know we had no jurors you can call down to the courtroom judge or brian took them into the back and started a settlement conference which we're all familiar with because we've all tried cases the judge says come on limited to the amount of money he earned by preparing for trial for that day one hundred some thousand dollars not any more the jury instruction phase i would like you that because this is an area any judge ever known has ever given if and only if you cannot determine the meaning of the language intended by the parties after seeing the factors listed in the previous instruction then as quote a last resort and only as a last resort the contractors to be interpreted guess the party that wrote the contract now we all know from the first hour we were in law school that anyone who writes a contract the draft or the want turfs against the draft that's been the law and even they teach that business lot of people who don't go to law school guess a really commonly well known concept jury would understand that if they had any kind of business law in their background from a high school college or the course might have been taught we on the other hand offered another instruction and it and we'd like you to approve this if it's possible in the way that you see the case at the point you do a provision in a contract is ambiguous when it's of sceptical to more than one interpretation the court has concluded the contract is subject to more than one reasonable interpretation in considering the evidence in this case it is for you to determine the intent of the parties in entering into the contract if the evidence in this case for a fails to resolve the ambiguities of the contract you must construe the terms of the contract against the party responsible for drafting it and in favor of the party who did not draft it now that clearly sets forth what i consider to be something of a reasonable jury and you know when we teach cross students i'm sure you've been out lecturing yourself we say that the average intelligence of a joy is somewhere between twelfth grade college when we talk to a jury so the reason the i p i came into existence was to make it understandable to people who had a college education or a less than a college education a throw off grade level and as we look at all the right the i p i committee has done its spending make these jury instructions understandable effective the judges so own description of the skull and crossbones instruction sets when she did it was to deny the client i client the opportunity for this jury to resolve the case on the law as it stands in illinois very good i'm the only thing i think really bothered me here was not being able to confront the witness on the opinion or on the opinion for reputation of somebody who's testifying and if the jury is deciding who's telling the truth it really is critical for the jury to hear opinions about what people think as we call it reputation evidence in the community for truthfulness and mr holloway adams who was an employee of the plaintiff was on the witness stand and mr adams was offering his opinion of the truthfulness of the plaintiff himself mr headland and the trial judge refused to follow the illinois water which has been here since eighteen eighteen which is you can confront a witness at any time in any case about the reputation of that witness for  confused and it's i mean that's a judge's discretionary all you well discretionary in the sense that extrinsic evidence of what you call the trial within the trial within the trial is permit but the three questions are usually permitted as in the community where you work and live have you heard the reputation of mr so and so are you familiar with the reputation of mr so and so for the character trait of truthfulness what is your knowledge of the character trait and then that person tells the community opinion of the character trait i think in a civil case that would be a very i'm like unusual discretionary thing to do while information and the offer of proof that you're in the record shows you that what he was going to testify to in response to that question now she cut me off before i was able to do that and i don't know that judges are allowed to cut you off unless you're getting you know i'm going to take the court's admonishment says i struggled with the same question justice o'bryant on where to start and where to finish because there are so many issues raised in the race and i think on most of them we can stand on our briefs but i would obviously you'll tell me what you need to hear from a bit outside a let me try to talk about some of the questions that were court was interested in here with mr  a stack of papers it wasn't a plaintiff who turned it into a sack of papers this case went on and on and on in the trial judge made that very clear some are ruling stores the end of the case was  we filed a summary judgment as we are in talks about it being premature statute could not be more clear and file a motion for summary judgment when the time for the defendant to answer we filed a motion i've been told mr comey i called and said we're going to which is a collection case  he managed to avoid filing an answer in this complaint for eighteen months eighteen months on a collection case and a contract repeated motions to dismiss and so forth he asked for time for discovery to respond to the summary judgment motion and the trial judge gave him as much time as he wanted he has in his brace we were deprived discovery he never was deprived of discovery he took the depositions of the lawyers mr headland and the other two lawyers worked on the case i took the deposition of mr thrush he had all the time in the world now what was the summary judgment about we filed a verified complaint mr adams affidavit and here's  some other names there was never a change in the original fee agreement of march nineteenth during any of that time there's no writing nobody suggested mr headlines affidavit for s wanted to deal with this question of the well let me answer that specifically mr thrush file an affidavit and what he said in his affidavit is if that's not the contract only the september two thousand and four letter is the contract that's all he said the march eighteenth letter does not provide the terms of the contract which controls this allegation it is the understanding of the if i had that september fourth is the controlling contract that's a legal conclusion and we cited cases for example and i took mr thrush just opposition mr thrush never said mr headland is wrong we did not agree to continue operating under the march eighteenth agreement he never said that and he was asked but what he said w his answer was hey i didn't insist on getting a new agreement signed and b i don't remember those were his answers repeatedly and i quoted that in it so it was put directly in issue in front of the trial judge at summary judgment and they could have and they never did and if you look at their summary judgment brief you're on it on page eight which is at page one zero four by one or four by five and i decided it in were in their summary judgment this is  minimally it's dealt in about ten lines there they say yes there was the if you remember summary judgment procedure we put in an affidavit saying there was an agreement between the parties to continue operating under the march eighteenth the greater it's a very explicit statement under summary judgment law it becomes their obligation to controvert that fact is what they set and this is all that they said the agreement the theory of notation would apply to the september fourteenth that's all they said this a tender fourteenth agreement there was a no vacation of the prior agreement they never said anything else they never said we did not continue under march eighteenth they never said some other letter like the may sixteenth letter came into it just we ignored it so that's all the judge had in front of her that's all she thought the issue was and as i pointed out in the brief for that and this thing about the rates it says the hourly rates may be adjusted from time to time with your approval and over the course of the of ninety nine two thousand two thousand one hundred the whole thing the rates went billed and he paid them and the affidavit of mr headland and summary judgment says the parties agreed and did operate under the march eighteenth agreement with these adjusted rates so it's all right were genuine you know which were actual pieces of paper but on summary judgment you can't just stick under a judge's nose or his slew of documents i find an issue of fact they never in their brief mention the may sixteenth letter not once and by the way in terms of when they mention the may sixteenth letter if you look at the time frame in this case we file for my summary judgment in january of zero six mr comey got until the fall to he eventually got to continue till december of zero seven not run time that mr comey ever asked the court to look at the may sixteenth letter he never came back and said you missed that he actually filed a motion to revise the summary at the actual notice to admit the one he says was in front of them in summary judgment and he told you where it was a number in the record i didn't have the number in front of me you'll see that after the may sixteenth letter it's not just a question  if you look at his letters in july he writes mr heaven back and says we need to have further discussions on a figure great and then he writes him back again jai twenty six and he says no no i want to different deal and then mr heaven right say well whoever wrote it loses first of all you look at the extrinsic evidence but you don't ever get to this rule if the extrinsic evidence answers the question and she felt an s s will in a trial judge's discretion i guess this is if there's anything that's evidence and then then go to the rules you have to and she came up with the idea and i thought it was really you know nobody likes this when you're grafting jury instructions but i think she had a very clear idea to make sure the jury did it right she said i want to special iraq tours i want to ask the jury were you able to figure out what the price intended from the evidence to if you were not did you have to use the last resort instruction and we know what the jury did the jury answered those interactions we were able to decide from the evidence and we decided with the cat and we didn't use the last word so even if there was something wrong with the wording of this instruction and i actually about the one thing i think i would agree with mr comey about is i'd like to too rough to deal with the cross appeal we had a very very long procedure it lasted for sixteen months and what the proper fee of work should be and interestingly enough they and you've only seen part of it but you've got a flavor of it in these breaks about every argument we're dealing so their expert witness challenge about one hundred fifty some of my hours the judge accepted some of those and reached a conclusion and made i think in a in a normal appropriate way how to decide how to side with a reasonable fia's and she decided that a reasonable fee when you add the trial time in the for the fees after the trial to three hundred thirty three thousand i think nine hundred dollars in the briefing point pointed out and the defendants and this is quite significant they do not challenge that that's the reasonable fee they've conceded that point the judge  and i didn't challenge openly on appeal i'm not challenging her reduction i think that's right you know up table twenty first obviously there's been time but in sense that the trial judge then said and mr comey never argued this mr pulled pulled out a form you know that we normally use all those and say just but mr haven't made it clear this was one contradicted that his agreement with me was that that was a way of setting a minimum fee that we all knew there was a fee shifting clause and that the fee was either his understanding either going to be the minimum or the fee shifting award and that there was no double recovery here i'm not going to get both that could not be more clear so now the question is what do we do with this were incurred and so i went back to the case law and i cited all this in the briefs it's very clear in illinois and contractual fee shifting cases that the contingent fee conceptual cases whether the plaintiff lawyers that could could change a fee is one factor now there's some there are a number and actually it was the trial judge who asked us to say look there are no i cases that i've ever actually have unanimously when confronted said it's not a cap or a ceiling it's a factor and it depends on the facts of the case in illinois the closest you get by two cases one is the collins case and the collins case said two things which i think are uncontested principles it said and attorney feet cannot be based solely on an amount necessary to satisfy so we don't know they never had to come in and say but they certainly established the principle that it must be reasonable in the annus case the language was also fees and courage and in that case they did confront it because the foundation is there for the court to say it isn't a cap even with the word incurred because of the overriding mandate that the fee has to be reasonable and look at this case if there was ever a case where you were going to have to say what what would be a reasonable feat here's somebody with a two hundred eighty six thousand dollar collection case and the defendant turns it into world war three and runs up actually i think at this point in time and as i have over five hundred thousand dollars in love star in this case i know i'm never going to see all of that but is this what we want to say to say well you can go merrily down the street i know there's a cap over here and he's got this on a contingent and we'll just make this into the most on economic good maybe they will eventually go away you know if i had entered into an hourly fee agreement w we wouldn't be having this argument because the fees incurred would be the hours but mr heben would not be in court because i'm not a saint i think i have an obligation and i don't think i can walk away with it but at some point on the two hundred eighty six thousand dollar case when your hourly rates have gone over three four hundred thousand are we were not required to be in the charity best seller and and these people knew it this wasn't an accident there were many discussions about this the trial judge we had them off the record what are you doing here there's a fee shifting here this was a conscious effort and the trial judge talked about you know not to take my word she talked about it she said they went out of their way and i quoted it to make this is complicated and it's expensive as possible now under this when you look at the equities is this one where the contract should be construed to put this kind of artificial limit on it i don't think so they're still doing it in the appellate court in terms of all the briefing and the delay your panel didn't have to deal with all of the contested motions on how wrong they had took to file the record and i've asked for sanctions that they're not asked for sanctions by the way in this case as well and rebuttal let me say we deny the validity of the one nine hundred ninety nine contract and the answer to the motion for summary judgment and mr thrushes affidavit attached said that he entered into fee agreements every time the law firm changed so there's no doubt that at the moment the judge read that affidavit the judge was aware that before separate fee agreements because every time the law firm changed there was a new retention agreement and that's contained in the affidavit the law of summary judgment as affidavits must be liberally construed in favor of the nonmoving party we were the non movie party in that circumstance so mr thrushes affidavit should have been considered more liberally as opposed to the plaintiff's affidavit which was to be strictly construed on motions for s there was friday argument over the effect of the fee cap letter and clearly that is a change in conditions that existed between the law firm and the client when it's adopt it because no lawyer wants a fee ca letter i mean let's talk about it that's the equivalent of toxic shock to a lawyer you're now are limited it's almost as if there's a cap on what you do and you're going to be donating time if you go beyond the limits imposed and so clearly that argument mr oberman made about donation of time on a one third contingency also applies when you're in a cap situation because you are going to go beyond what you know you know when you get signed that document there will be additional time that will never be compensated if you go beyond the particular limits so clearly there had to be innovation of the agreement at that moment that had to be a change in prior contracts that existed at the moment that that agreement signed in september the court found the cap whether ambiguous once the judge issued those words the the court had no business adopting any part of the plaintiff theory of the case for summary judgment at the moment the judge says there are two reasonable interpretation the court simply stops and says i cannot grant summary judgment it doesn't need to go on and say well what portions of the plaintiff's theory of the case are convenient to include here it should come to an end underfeed petition  appeal i disagree with my colleague statement i think you decided this case and career concepts versus synergy the just describing i'm glad i can say not the late justice crown but a living person just the post of the pantheon in the hall the of that case along with you to your colleagues justice cunningham and justice carney says and in that particular case the trial court was confronted with the plaintiff doing the very same thing mr alterman there did down in the trial court and that was abandoning the one third contingency fee agreement at the stage that the trial judge is being called upon to make a decision on where you got attorney's fees and the trial judge in that particular case granted what was called a reasonable attorney's fees that was in excess of the one th unilaterally waive his contingency fee agreement in favor of the court's own award of reasonable fees and that's exactly what mr obama is asking you to do he and mr headland agreed on what was a reasonable fee in order to obtain the money that he was claimed owed by the last law firm here in the yellow sea corporation then he goes into the trial court and he asked for almost three hundred fifty thousand dollars in fees beyond what was agreed to and he was limited to a one third contingency of what the jury verdict returned or actually we took a position in the trial court it was what he actually collected and he never first of all we say he didn't present that to the jury the jury was never asked to award attorneys fees and beyond or cost well at the cross reasonable cost of litigation we were having a jury trial we had a judgment they made that judgment final with real final four findings they then come in after that and say ok in addition we want to trace these now do we want to trace fish we want in addition to i want third we want every single hour we spent on this case in excess of the fee contract that we've entered into and we want to abandon that but when mr headley was on the witness stand i asked him if you will mr oberman one dime beyond the one third contingency answer no there is no legal obligation for mr headwinds rock for him to pay mr olbermann one dime more than one third so that was the basis of that argument that we have had a trial cour ok a statement that wasn't correct by mr rove in the heat of argument but we hired two experts mr gillis and mr reed they filed affidavits the summary judgment stage they were there called in to make decisions on what was reasonable this is the fees mr overman is grossly mistaken because they were there and i mr gillis was alive at the date of the trial just this read it passed away but just mr gillis was called to the witness stand and he was there to provide a testimony and the judge granted the action for sanctions small point and i'm sure the court knows a section ten over five and i to say we're talking about summary judgment clearly as the as the trial court authorized to make binding factual determinations even though they're short of writing summary judgment mr komi in his brief cites and one thousand nine hundred two case called shift staff or something like that which says it isn't the same as federal summary judgment procedure and it was after that that the legislature change the law to make it the court awarded the fee and the court said we have to worry about excessive fees and so in this case we're saying it's only going to get the third judge from grass was quite cognizant of that and she even said and i think it's quoted in the br here we have the opposite if we only award forty percent it will be an under reasonable is the opposite of career concept of the cases easily decide only career concept to say we have some rule in illinois that that's in sure staff if you go to the end the same argument was made that the jury was not asked for the fee shifting award and this court said you don't have to ask the jury for the fish shifting award that's for the trial court after the verdict comes in so th