domingo you're going to have to raise the level of your voice that's mostly a recording instrument there all right thank you her i'll try and do that ok the first thing i should i should say is i do have a hearing problem and if the court asks questions of me i may have to ask you to repeat the question several times because i might not get it what i thought i would do this morning is to talk about some of the factors or aspects of this case which ma the proper context go ahead i thank you and once i talk about some of the novel or different aspects of this case then i can talk about some of the legal issues involved first of all many  i decided after greentree foundered over the lack of of what the costs were what the real cost of arbitration were and that's probably because many of the litigants before the courts and later appeals provided proof to the trial court the possible cost of a seven day arbitration being in excess of twenty thousand dollars for my client and it's broken down in various categories including the flying of witnesses and herself and her counsel from hawaii to california where arbitration is required under the arbitration agreement so i think the proof is before the court it was before the trial court and ameriquest has made no objections to that her financial situation wealth of those subjects are covered a second aspect which is different in this case than most other cases is how the trial judge dealt with the unfair what we regard as the unfair provisions of the arbitration agreement we do not have a situation action greentree where there was silence on the issue of who pays what instead what other provisions in addition to deal with that you know very different way than in most situations she asked americans to stipulate that's the oral argument in the trial court that it would pay all agreement on this part reform that ameriquest this may all the costs now our problem with that is that there are those the costs that you refer to at pages eight and nine of your grief yes they are my correct in understanding that domingo contacted you before the one year statute had run yes but that you did not file thought after that had run i'm not agreeing that it was in effect a statute but the one you're called for in the agreement that's right and you did not file because your client could not come up with the cost of the arbitration that's right i asked her deposit five thousand dollars six thousand dollars in my trust account and until she did that we did not file now you were representing her yes i was at that time yes and we had letters going to america west making initial inquiries into the facts and asking for documents and so forth and she had written a eight page letter she was suspended in her outlining her various reasons for testing what was going on and america was the illegal in transactions i was not as if americans didn't know about what was coming and they did i must tell you that there's just you know we don't confer before we come in here on the merits of the cases just as one judge and i am extremely troubled by the fact that you would undertake a representation but not do what was necessary to at least try to protect your client's interests judge ordered the other side to cover these fees is that correct the judge ordered the other side to cover the costs yes cost that's right because when the issue between your in your client was not theses right it was these c make to cover anticipated litigation costs bracket not fees cause brackets in order for her case to be filed yet what were those what was it what were the litigation cost described in your brief it was my estimate of what it would require to pay her expert witnesses and take depositions at the time i set that requirement of six thousand dollars in my trust account i did not know about all these various rules concerning the arbitration had it been and not just the contract would it be all right to tell your client i represent you but i will let the statute of limitations run unless you pay some money into my trust account you know  that ought to be disclosed to the court you're saying should my insurance company be before the court no but shouldn't let judges know whether your insurance company has an interest in the outcome of the case so that we can determine whether we  if they say the contract as a whole was determined to be unconscionable but the statute of limitations provision itself was not determined to be unconscionable would you apply the statute of limitations provision in the pendant lee even though the contract was determined to be unconscionable well i certainly hope not and that's why i'm here my position is the full whole arbitration agreement is was unfair provisions as i believe it is you know you don't say you wouldn't say it several in other words once once you decide the contract as a whole is unconscionable then no part of it would be enforceable of limitations would fall with the rest of the contract it's not because there's permeation because there's a failure of the primary purpose to provide a fair playing field i think the authorities justify no severance one of the issues that we deal with which may be somewhat different from other cases is the question of the applicable law ameriquest has raised a big fuss about that in their briefs by saying and judging what way said that she was limited to simply looking at a law was and i made a point to try to suggest that's not so because we deal with whether litigation or arbitration is more costly which is more costly in the opening brief i suggest that we've been dealing with statements from courts early on in the arbitration business saying  all know that litigation is far more expensive and i have suggested the paradigm for that is when both sides are large law firms billing on the hourly basis and charging their clients as they go that paradigm does not hold have asked my client to pay the costs and so you have to look at what the real expenses are to a litigant who was required to arbitrate and what those costs really are and with the understanding th client is going to have to pay those costs of the morrison case in the six circuit just a few months ago when one of those i cited in my letter to the court talked about contingency litigation is the only case i've seen which does that with your client's claim right any time after november thirty nine hundred ninety nine when she was terminated and what you what your was your client's claim right at any time after november thirty ninety nine certainly and so at any time in the next day or the next week at any time within a year after november thirty nine hundred ninety nine you could have gone to district court in hawaii and did exactly what you did after june twenty eighth two thousand and one yes of course and the only thing that impeded you from doing that was your concern reflected by your requirement of your client that she deposit money for the cost of arbitration in your trust fund right yes your travel to i depositions and the like yes yes that's exactly what you were trying to avoid by going to district co in exactly what you want this court to saying right now you want us to tell judge moore way that this arbitration agreement should not be enforced right that's right because it's unconscionable and one of the aspects of it there's the one year statute of limitations that your position isn't yesterday and you don't think you're prejudiced you put your client in any kind of jeopardy by waiting until june twenty eighth two thousand and one to file yes i did appearing this morning on behalf of the defendant ameriquest mortgage company with a law firm by culture name or field and younger first of all i want to thank mr smith for his his point and for allowing me to be here this morning most of the issues have been briefed in fact all of them as far as i can see have been briefed with the exception of some of mr smith's points regarding subsequent case law which most of which i find to be irrelevant the only disagree that it's appropriate at times to look to other states or other circuits in order to determine whether there's an appropriate or an applicable case however when you have state law that applies clearly in this case the contract provides and also this court i make of it well should we make of it i don't think you need to make anything of it i think the triple way has its own rules and guidelines that it follows that the aaa is an organization that doesn't have any binding authority in this particular instance and certainly in the united states would you agree i would agree your honor and and ordinarily they're happy to have parties say on matters to them for arbitration right absolutely and since they depend upon business being referred to them isn't it a bit of an oddity for them to say no we want to take this well your honor i don't think it's necessarily an oddity i think they took away as being careful these days in light of the just rulings that we see lately in this issue with condition of the mingles employment correct well that's one of the reasons yeah and because it narrowed the agreement purported to narrow hawaii's two year statute bringing kate of this kind to one year well yes your honor and we would we certainly are reserving that right and would probably make that decision at that at the appropriate time and if you are successful in that regard to mingle would have no claim that's correct and we must assume if we do that you will make you must assume that you will exercise your rights if we give them to you right i don't mean give them if we affirm that you have them i think that's right but i think it's important for us to focus on the fact that what we're looking at is whether the agreement is in force and that is all and i and you know what california placed an obligation upon lawyers to report ethical misconduct occurring within their eyesight i believe it does your honor if you reported on your opponent i have not  you think you sure that i might i don't i haven't really you know for me to report an opponent on an ethical violation would take a lot of thought free thought and i haven't yet gone through that process because i was dealing primarily with what was going to happen with the case the rules are different from state to state but i will tell you in my home state in arizona it is the ethical violation to do not do that in other words lawyers have been all right anyway i was speaking about the question of what what law applies i think it's clear that hawaii law plies and we look at hawaii law we have a case called brown versus kentucky fried chicken it's a wrongful termination it's right on point and it provides brown case the facts were a little bit less favorable even then they are here and in what i'm saying is that that in that particular case the arbitration clause was embedded in a job application form that was only signed by the plaintiff and the kentucky fried  or do we look at it in the light of the concessions that ameriquest attempted to make well i think what we're looking at is whether or not to affirm judge mal always ruling and judgment always ruling looked at the agreement as a whole in light of ameriquest concessions with regard to the fees splitting provision and venue provision and i don't know she didn't her order didn't say she was severing those but the district court has great discretion in terminating how to rule on these things and she really said that because ameriquest would offer to concede on those issues that they were moved for purposes of what she was doing in addition to which again hawaii law controls in this issue and why a lot of case stands for the proposition that severance is appropriate and why as long as you can sever out an offensive provision without doing quote violence to the underlying objectives of the agreement which is a standard that is far more lenient than the standard even you can here in california the arm and dart case which we all now know me like the judge accepted the offer to waive certain parts of it and made a decision based upon that in your part of me hard put to be a stop that's pretty tough to choose the one the company employees that you might want to find out what they're going to say knowing full well that if you find out they're not going to hurt you the company has a half a that he can enforce parts of the agreement and not and for sports that are offensive that would be the type of thing that in california would make you know an enforceable well i think the carving in looking at the agreements and you look at a provision that's on its face it appears disadvantageous to the employee like the limited discovery do you weigh that in the balance when looking at the unconscious ability on the assumption that the arbitrator can do something right to relieve the employee of the adverse effects of that or you just take it as it's written no i think what you do is you look at the agreement as a whole and with regard to offensive provisions arbitration you know the parties have a right to a contract they signed a contract for storage is that right you then give it over to the arbitration or all authority and tribunals and and you let the chips fall in that form the district court sever the limited discovery i mean i don't find it to be unconscionable i think that that there's authority that would uphold that provision in fact it's actually less advantageous to ameriquest then it is to the plaintiffs because  well there's one more issue that counsel didn't necessarily raise during his opening argument but i think it's an important one and it comes to mind when anybody with a reasonable mind looks at this agreement and that is whether or not the carve out provision has any negative effect on the way in her decision that it wasn't an issue because it's just not on the table of americans how to counter claim against mr ringold for unfair competition or for americans who brought a separate case against him is doing though then i think it would have something to talk about but again arbitrate or the agreement as long as there's an important interest motivating it's present in the green mint and in that case the court forced the agreement notwithstanding the carve out and in the underlying papers that we filed with the district court we provided a declaration of ginger crawford who is the human resources director of the company setting forth the quote business realities that justify the need for that carve out although again it's not an issue in this particular case because we aren't bringing any current claim against provisions as long as we can do so without doing violence to the contract essential object all right all right i think that's all i have your honour's are there any other questions i guess mark thank you all right thank you very much you have a couple minutes left i believe writing of the agreement that any effort by ameriquest to change the terms of the arbitration coming after all of the events post or execution modification you object to they are giving your client that break yes we did get and we do that on the record you object to their making the agreement more favorable to your client to accept the post  about allowing review of the contract after severing the noxious provisions no i don't agree i don't disagree on the holding of back case i'm just saying it was totally in apple because it's a twenty year old and i trust case it doesn't can you hear me on your flight back to hawaii you need to ask yourself this question would i be better off reporting this to the hawaii state bar myself or having someone else do it