into a void just faded memories lost evidence or an absence of witness so why do we have a discovery role to promote fairness and to avoid playing preclusion before the famous even know even malpracti it talks about documents that were created the problem here is that they never created the document that should have been created which is the trust a nd trust a new trust for tom and that should have been done before the terminations the trust and that the lawyers did breach their obligation and let's assume that the trust should have said what she says she intended it should have said to create this life estate for ali why why shouldn't she have known that at the time either when she reviewed the trust agreements in the very beginning or even at at his death you know this but this was a long time after polly died yesterday that is between them testified it was my understanding that what i had asked to have done was done if it was done right the terms of that deal would not be in the trust written documents and that would not be the document that you know had to start so the question because it's an old mention versus culmination what is reasonable is a factual question was it reasonable for her to believe that because she asked for this to be done because he did not say anything else to her or raise the issue  then there weren't there would not have been any further agreements to be completed the breaking of the trust was the terminal range because after that she would have lost any leverage she had remember this was a request of tommies not  trust for tommy or discussing it with and that's what robin webster says a standard of care and if you had done that she would have had to see anything about that in the settlement b because of what he did not do the fact that she got a substantial economic benefit is only step one he got nd the nd step correct but he missed the st step and so i was there nothing in this agreement about understood your honor but as far as if you get into the issue of tackling damages you didn't need to be there all we need to know our experts are economic experts calculated that if you take the value of the disbursement and bring forth the present those in terms of organ wishers involvement they have made a suggestion that he was for private counsel this testimony d shows that you simply refer over to them but if they perceive that they have refused to take in the responsible of themselves even though they were hired to do this and i guess i would ask the court to focus on the affidavits of ronnie retched shows should have happened what should have happened he has incredible credentials they have acknowledged that he is a qualified expert and he sets forth before that should've happened the moment nestor and that's why they recognize there was a conflict and there's nothing should be argued about that they spend time in their grief talking as if maybe this really never happened yet we have an e mail from him that demonstrates he knew about this by actually filing and as soon as he knew it was in a that is when she expected there would be money left over what about will wouldn't tell you anything because the will would not have that information again if you set up a trust a trust as private that document would be would not be of any benefit in terms of giving a no is no reason and she had morning thank you but i think you're on the critical things here is that we have a series of dates between december for nine thousand and ninety eight and thomas and the end of thomas is estate being something other then the retaining agreement the documents that were sent to her that she had for over a year between her and mr we're sure the way the documents were probated through when she met with her brother and and the estate planning attorney and learned that he had no way although he had taken no action not when he signed as well in december comes to this much money and these activities and all along the way if we were lawyers we use a separate retaining agreement every time that's the undisputed has money when it comes to my car and went my testimony again and disputed is my client said he would never do anything if you even go to the complaint they allege that my client told thomas that he wasn't going to do his estate because he wasn't in montana lawyer my client identified very specifically what they were going to do and why there would be no consulate and also what what else could happen while it's entirely possible something else could have happened under someone else's  and judge that's i think the important thing we're allowed limited represent this is this is a circumstance where these two people had equal interest at the beginning and my client's representation and equal interest at the end and that didn't prevent either of them from having other lawyers do other things and if you look at her own e mail it was her belief in the e mail to my client at the very end when she went to her my it's very clear she said it was supposed to be in my brother's will and trust she never she never contemplated or expected this to be in the original document you know in their complaint that's sort of what's a l is that if there was something else that was supposed to a supposed to be done by my client that there would be some evidence you know that and when we talk about the experts you know we had a  judgment supported for any other reason and in the record there's extensive argument about whether either of their experts have missed will test and also whether or not we even have real evidence of this alleged promise i either in the conditional settlement settlement agreement which everybody seems to think would not have covered or in any other to actually learn it was not now practices just outside the scope of representatives that's one of the things i think that a document could have been crafted to do this and the other thing judge is this document that some like agreement did allow for written modifications by the parties but at the end of this document the end of my client's representation in two thousand his work was done and it and again this is this is not something he undertook to do for thomas he never undertook to do it for miss ruckelshaus he wasn't licensed to do the kind of work that they want to do if they were going to do those and the other states and as you pointed out there is no question that thomas is will and his his and his doesn't he trusts are all we're all spread of are they were sixty i'm sorry at least ten years of opportunity and documents to see that what she now said she won which again she used when i was to you i got to use the digs at it and we're talking about the objections to the to the expert's opinion but it also applies to this very promise you only evidence of this promise comes from ms ruckelshaus promise didn't write it down he didn't tell anybody i asked everybody my own client said no he didn't tell me one hundred percent of this the existence of the promise was made and i i don't think you can presume what with something doesn't exist from admissible evidence but even then again ordinary ordinary  diligence ordinary thinking miss ruckelshaus was a college graduate she made in our record we made clear she made lots of changes to her own estate planning documents she went with her brother to set up his estate planning documents which is in might is one of the great opportunities for her what to learn that no documents existed prior think about that if if if what mr nigh says is there was supposed to be something else and it really any we have no he has no will yes no tris he has no documents at that moment in ordinary conversation she would have learned nothing had happened that she now says she expected to happen in two  practices for his law for most of these documents i would have never found him because my client's file was destroyed the only the only documents my client had in his file when bettina came the rd time for a presentation those very witnesses and papers and testimony but but this is why we have summary judge earlier stenchy limitations like the only person who is still alive with all of this knowledge about this supposed tr agreement is miss ruckelshaus who is the person who says she should have benefited from these these these documents that we have the things that we have are very clear  to disregard all of the paperwork in order to get to what to the b team is e mail that says oh i don't want this to happen her own her own language explain what i'm sorry she was betrayed by her brother they had inadmissibility of the expert testimony that they have proffered their their own their economist who says i made these opinions about how much damages very specifically in his deposition he says anything i didn't know the number two what what if that were ordinary diligence right that a person like her should with some prominence where the action circumstances are out on the table be on notice that something's not what she want we expect all people we enforced mortgage foreclosures reinforced real estate contracts we enforced that it remains that are highly complex documents that often referred to other documents we enforce those an indiana as a matter of as a matter of course this core state courts what we have here are simple documents and we have repeated simple documents that that in written in all candor match they match each other the representation letter matches the work that was done the the the work that was not done was on the advice of gordon wisher no one's well but as far as conrad specific trust all the work was  exactly like the retention that the those documents were given to her and to her lawyers she said in her own got position she reviewed them with her personal lawyer that she expected him to say something if there was something out of line so even if you say miss ruckelshaus didn't have the the knowledge to read these documents which i quite disagree she she had more than one lawyer at hand and available to do that when it did to me if you really thought there was going to be some other part then how in the world do you go to this meeting with your brother's lawyer in two thousand and eight in sit down and review his estate planning documents with him and his lawyer and his lawyer said once he would have gladly given her a copy of the will or when he died and that very document is spread of records in  reading it it's quite clear even she says when she read it she knew she was out of luck she was mad because she didn't read it until after polly died but let's remember that it's not holly's promise if it was a promise it and that's why i think if you even if you want to give her the maximum benefit of the dollar and run it all the way and tell not just thomas dies but thomas is the stay close you're still years many documents that are too easy to read and she had too much help of vailable to her from other people that she either a did not use or quite candidly again when you when you read her very e mail it's hard it's hard to reconcile that e mail with the plaintiff's complaint because it seems to me she knew from day one it was all oral she says that she knows it was oral so she knows it wasn't written  i don't think there's any genuine issue of material fact and when we say well it's a question of fact because we use the word ordinary statute of limitations using these exact terms regularly cited by all of these courts and there is as the district court said we can't see any reason not to just apply the law here and i would ask this court to do the same not only on the question of have relied upon that because she said i understood that what i'd asked have been done was done if that's what should have had her if he had followed the stand of care why is that not within a factual question as to whether she exercised just ordinary diligence in the way she conducted herself this is a question of fact and should be decided by a jury not a court not a judge and to not do so d takes away her constitutional right to a jury trial we recognize a jury can go either way on these facts that's not the question the day the question is whether she will have that right present her case were a jury to ask her peers that i have reasonably one of the circumstances thank you all right thank you very much thanks to both