all right our second case for this morning is board of forensic document examiners against the american bar association and others so mr frank forgery usually as experts in a case in court the smaller border is on the plain of side it's called the board of forensic documenting sanders and there's only twelve examiner certified by the larger board is on the defense side it's called the american border forensic document examiners so the names of the same except for the word american and it has about one hundred fifty certified examiners as accredited boards in the first amended complaint in the second amended complaint which we sought leave to file which was the night we drop the qualifier credited to allege that there are two boards period whether  credited or otherwise but the district court seems to think you placed undue emphasis on the word board i mean there are other organizations where people do this kind of thing right there are other membership were going as ations but not other boards and the difference is not just it in the it in the name of a board or administers an exam and test the applica where does it say that i can think of countless organizations that call themselves boards and i don't know that administering examinations is necessarily part of it i don't know where we've aware of other well what's with certain features i mean it's actually never mentioned the board of friends a document sanders by name correct it mentions the american the american board of frantic document examiners i would appreciate if you would talk a little about the constitutional standard under the first amendment for treatment of statements of opinion because this does seem very much to be mr vast tricks opinion and power who judges are to listen to that's that's the gist of the article i can assure you the judges john always take such articles as commands or cos it's opinion he thinks that he likes his board he doesn't mention that he's a member of this board but he she says nice things about the american board well to begin with not all of the statements  language like i believe i think it's do you have to have that when the front of the journal says the opinions here are personal and when a sensible reading of of these things using the word appropriate or using the word well even if you think something is phrased as an opinion if it doesn't disclose the underlying facts then the reader can assume that the author actually has this  and chose not to disclose them if he can get into an example of a sentence because i am not sure about that i mean if i say you know in my opinion the board of forensic document examiners is the best source to go to i mean you know if you're an american board person you might not agree with me but it's not falsifiable or if i just without saying in my opinion if i said the board of forensic document examiners is the best place to go that's an opinion the issue is that the article does not just say the american border is the best it says be wary of others right a deck lazy stupid crap shooting chicken stealing idiot and you called all of those things opinion but this and we didn't say anything like the author said nothing and you're really that bad about organization i think the context of this article is important because if you look at the beginning article at the beginning of the article it talks about the two competing standards or whether that doesn't say that if it nonetheless alleges something tonight i have a can mark the concern that i have is very similar to the one that you're here from my colleagues i mean all of this also appears in this section of the article that says gate keeping tips from a practitioner so i think when i read it the fair import of it is what's its name mr glasser bastard just saying you know what based upon my experience in working in this space here some guidance that i offer to judges for what it's worth so keeping it is of course an allusion to the judge's role in deciding which experts get and which done right right the reason that's important and the reason why that helps our case is the import of what mr bastard is saying is not just the a t f the is the only word recognized and you know others are not  it's saying to the audience who includes lawyers if you're thinking about hiring an expert if you didn't use the a t f d e because we're the only ones recognize you know when you add those words were the only ones recognized that's what's not here it says that the a t f the is the only word recognized by their forensic community law enforcement and the courts of the legal community etc that's one of the statements that were challenging so close quite far so when you say that to an audience that includes lawyers who are potentially thinking about hiring an expert it's it has a added weight of it's not just recognized what it says is the only certification board recognized by the broader forensic science community and then a whole slew of people law enforcement courts for maintaining principles and training requirements con current with the published training standards be wary of other certifying body so clearly there are other certifying bodies saying that everybody thinks the american borders the best one it doesn't just say that the american board is the best one he puts down others because he's for maintaining principles and training requirements kankar and with the published training standards but then he says be wary of other certifying bodies that's surely an opinion be wary of his way of saying you probably don't want to use other certifying bodies or look at them with skepticism or something like that how can you creat under the first amendment statements of opinion are protected they're not subject to the law of libel and i don't know where particularly if you're in a bible per se context which you seem to be enzyme understanding there's an obligation to boil down your statements of opinion and list which underlying facts you're relying on for those opinions are completely unfamiliar with that will the issue in defamation per se is there are so than state substantive laws that apply here because of the choice issues if it's a really just two i mean you didn't argue anything but illinois law with the exception of the one man from new york and the judge applies new york law that man one of the concerning actually what this we it is to preserve a choice of what issue for appeal the party need only notified the district court in a timely manner of the applicability of another state's law but you didn't follow it up with anything i mean you cite illinois cases you don't i'm not sure the judge chang would had any reason to believe that you were asserting that there was a significant difference between the law of illinois and one of these other states and why you thought the result would be different well the to agreed that the other states law did in fact apply and what he said was just new york he didn't say the other five states california texas ohio north carolina applied he say that and what he said was he is applying the illinois cases because in his mind there was no conflict between the different states and that's where you had to jump in and say oh sorry your honor we think the law of california is in fact materially different here some manner but how do you put the court on notice if you don't file the law if you're citing ellen oyo law if you're not articulating why you think there are deference says how do you put the court on notice well in the case who so which is what this court the from the first circuit which this court relied on one it said that line in jar that's exactly what happened a party at some point earlier in the case for another issue said i think this state law applies then later on in post trial motions the other side cited the former law and the appealing party didn't even mention choice of law then lost then moved again on re consideration of this circuit said ok you've done what you have to do because earlier in the case even on a different issue you notify the court that another state law applies that's particularly difficult in a jurisdiction that fol pace because just because one law applies on one issue a different law may apply in a different issue well that was the case in georgia as well or there was a peculiar issue about texas to its wall where one of the things that the party neglected the opinion issue he looked at the context of the journal issue as a whole he looked at the context of the article as a whole and he examined the specific language in the signals within the within the article i don't think that clay gets really challenge the notion the up the legal principles involved the homan factors sometimes called th circumstances task to determine whether or not something's opinion they really just don't apply it they don't look at context they don't look at going language and i think here where first of all the issue as a whole every nearly every article there someone's offering some sort of theory or conjecture in this judge's journal you mean yeah right your honor and then in mr vast his in his article he says i as a practical practicing forensic document examiner would like to respectfully suggest ways to do differentiate between the true professional and the lesser qualified and he never reveals at that document examination and then he goes into the daubert factors and how this forensic science complies with that and it's really only at the end of his article that he's been delves into offering suggestions  think if you look at the statements that are filled with those types of signal words that indicate that he's expressing his opinion and appropriately through that what he said a forensic document examiner said no other program in the united states insists on the twenty four months either consecutive or over a period of time that would be wrong right that's falsifiable because the plaintiffs do have twenty four months of training it's just spread over four years rather than two years right around the i mean there are good leave the language does have an equi c aspect to it that he did not specifically callao but that wasn't his point the standard is a minimum standard and in his view the best training is somebody who's doing what if he had said number one and appropriately trained forensic document examiner will have completed a full time in residence training program as required  close where it says is the only certification for recognized by the drought or community and so forth since i take it the broader community realizes that the  but a list of people in this community and i think it's interesting if you read their complaint they say that most people are in the most doctors examiners who come out of the a d f the were trained in government positions so it's not surprising that people who are in law enforcement might have a higher regard because they're familiar with those people than people who say come out of a private training program the other thing to no you go to their website and you click on certification it's clear that their board issues the certification so so there are criteria that a person has to meet in order to be part of this national whatever they are yes your honor group but i think the point is here that in the larger context of his article he was making clear that there are other certifying bodies out there there's universities in name only there is gra logical societies what have you he happened to use the word bored small b but it wasn't i think it innocently construed in a way to be of one concerning a much larger group and certainly  in the context of the article it's not reasonable to say oh you're just referring to to the capital b board of forensic document how do you respond to mr frank's point about andrew so  is that respectfully mr sawyer contorts the actual language of the statement the actual language of the statement is i got to hear you talking about the member of the question document examiner a member of of the of the american academy of forensic sciences but not the question documents section ok that's the statement there are seven thousand members of academy this web site there are many sections are there there's like ten sections but among them are the criminal criminalistic section the jurisprudence section the general section and so it's feasible that questioned document section because that's the focus of the work they do and not just because they're a member of the american academy so but as mr saul are the only one who is a member of the american academy of forensic scientists and also not in the question back in that section no that's not true and in fact that's why he says i'm the only forensic document examiner who is a member of the academy but not in the question documents section so i think you have to focus on the statement at hand and not the statement that evolves or emanates from plaintiff's interpretation of what they want the statement to me analysis then you have to evaluate whether it's a conflict and under gape a side dish the only conflict was on this issue of whether or not you could offer extrinsic evidence to your point the question on the rolling stone case i don't think previous about who knows who's knowledge and who's association with thinking about it we need to look at people who knew mr so marriage we need to look at people who know about the organization what's the right focus that maybe people know mr solar happens for whatever odd reason to be the only forensic document examiner has done in that section well i think the standard is a tough one under that three amigos case out of new york and there there has to be only reasonable conclusion is that refers to mr songer and i think judge chan appropriately said wait a second you've got almost a daisy chain of information that someone would have to ferret out that you could only be in one section and th saunders and this one i'm not that one and so i think i couldn't judge chang look at it from the average reader's analogy as opposed to someone who would know mr solomon i think so and i think it's not necessarily referring to the group the board of forensic document examiners because there are members in there who do satisfy the two year twenty four month full time training period so the first point on that is that for mr sonner under new york law the standard is in fact people who know the plaintiffs so you can assume you don't have to go through this analysis of whether some  reasonable imaginary reasonable reader would be able to figure out that he's a person met the standard as a person you know and under how well do you have to know him i mean suppose you go to the same church as he does you might not really know the differences among these various boards and sections and well if you compare it to the rolling stone case where the second circuit applied new york law one of the examples where the lead plaintiff elias overcame this problem was he said you  people who know a subset of people who know me who had been to my fraternity house when i lived there knew that based on the description of the article and where the people travel i may go up a plate of stairs and happened to know that there was a keep head lock on a door so my room was the only one accessible that subset of people were able to figure out that it was me the second circuit applying new york law held that that was sufficient he got over the finish line so i would also sit under brady v ottaway if there's song reasonable construction where people might think it's him and is it's important to recognize that people audience here is judges and lawyers and take based on the context people who are scrutinising experts so when you emphasize that oh the training standard requires briefly punishment claims that it has to be two years residency and you leave out the fact that the equivalent over four years is ok again people audience