is strong only if we can prove no set of facts to win should that motion have been granted i think we can boil this case down there are several allegations of negligence but you can really boil this case down to the principle count the client mr nelson walks into his lawyers office in two thousand and five and he says i've got this notice of exercise of an option under an old sixteen year old contract i had which granted stock options under those notice he's saying i hereby demand to purchase one hundred ninety three shares here's the old contract he gives it to his lawyer the contract says you have an option to purchase two thousand and nine shares and there was a second option the numbers were also off what does the lawyer do what's the first thing he does he says well let me take a look at the law any good lawyer doesn't have and his head most of us wouldn't have it memorized you look at the illinois case law and it's clear in order to exercise an option you must that here precisely to the terms no matter what those terms are you got to do it exactly and the seven circuit says the same thing we cite the cases at page nineteen nobody den doesn't deny that that was an ironclad defense we allege that had that defense to the exercise of the options been argued when mr nelson said what can you get me out of these options that it would have won we a legit it's not contested there's no argument nobody challenges the law on options and our braced and if he would have won there obviously would have been a specific performance order entered against mr nelson to sell the stock that's what caused the harm because when that stock got sold pending appeal because there was no say mr kuria ruined the dealership he loaded it up with millions of dollars of debt and it was already at that point too late to undo the orals never has argued in this case never denies that are completely failed to raise this argument they don't make a claim that there was favorite they brought race that has a legal right defense but they haven't said what the immunity is based on that's the problem with this case on the record that's here on of on the complaint we allege there was no advantage to disbanding it there was no judgment to be made there is no illinois case they cite goldstein which was a combined six fifteen six nineteen motion i have found and they have found no pure six fifteen motion in which you can decide at least on facts like this that there was a judgment made and therefore they're entitled to immunity you have to know what the facts are now maybe on discovery and all these cases that deal with judgment on you know what you know there's a factual record but doesn't really rely on two six four one five on whether there is sufficient facts lead to allow you to be able to prevail under some set of this defense was not raised period there's not even any indication in the complaint i was that we don't know that they even thought about this defense suppose all the facts came out in this case and discovering that it never occurred to them they never looked at the law they never found these cases they just were ignorant of it and didn't research and that would not be an error of judgment that would be negligence and we don't know that at this point and they've not they could on could have had a six nineteen motion where they brought in a memo saying look we consider this we maybe it was dumb but we made a judgment but they didn't choose to do that so we're stuck we don't get any discovery you could never have a malpractise complaint on a failure to raise a defense look if i actually get side which we cite the defendant was found liable for a million dollars in attorney at the attorney's fees sherri the lawyer never raised the argument that she wasn't even covered by the fee shifting agreement he just let it go they sued it was a six fifteen and six fifteen was granted in this court overturned quite the same a defendant runs a red light hits a pedestrian gets sued for damages comes to a lawyer to defend him in the case the lawyer gets the fax he's got to fax a the statute of limitations has run on the plaintiff flying but b i got an eyewitness who says the light was red not green the lawyer let's say thinks about it and says i tell you what i'm going to do i'm going to waive the statute of limitations sure fire winner and let's go to trial because i think the jury will believe our witness go to trial the jury doesn't believe the witness the defendant loses the case if the lawyer if that client answers a lawyer and says you committed negligence for failing to raise the statute of limitations do we need to know any more to say that that state's a claim i mean the standard as and it's considered a factual question and we raise it in our complaint your honor whether a matter is an  judgment is a question of fact usually decided by expert testimony that's what all the cases cite so the only way you can decide this it's sort it's not unlike a medical malpractise case where we allegedly have the same thing i mean doctors could use this to get out of trial free every day that week every time we tell you could get facts they always they always say i made a judgment the question is was it a judgment that was consistent with what a reasonably careful attorney would do so at this stage  you know the trial judge said i assume this was not a lack of preparation and in fact but that's not in the complaint and even if you want to to extrapolate you know quarrel says an air brake well every lawyer everything involves a judgment but to six fifteen so you can draw inferences pull things out of the complaint that are there in favor of the defendant to six fifteen said you got to drop reasonable inferences from the facts pled in favor of the plaintiff and we allege they didn't raise it and that they that there was no reason not to race that's what we left and we incorporated by reference expert opinion i think it's true it's not normally done but to emphasize what we're trying to talk about we thought and he said just not calling them was a professional judgment and the this court said no that's a question for expert testimony and in that case there were two expert affidavit and i thought i could try to demonstrate to the trial judge why this case was like joseph and by the way this is not an area even if you went beyond this is not an area where the laws unsettled or close to the law on options and we cited in a briefing again they don't even argue every it's black letter rule so this is not one where the larsa gee i'm not sure if those cases apply that law is is well settled crystal clear it's not a fine point that nobody knows how a court would rule on it  behalf of the defendant made to do so and the argument that they made to do so as is in the record and is recognized by judge reinhardt when he ruled on the summary judgment was that paragraph five of the ninety three modification says any future purchases of additional shares shall being based on terms subsequently agreed to by the purchase so what the record shows now is standing the argument is that we had a one nine hundred ninety three modification that changed the capital structure of the corporation because of a mutual mistake it's in the exhibit to the complaint and that's what corals and great was presented isn't that mr cracow really an issue of fact for a jury to determine whether or not it using the phrase judgment of munity which other states have used and you argue with in your br whether that was something done with a reasonable interpretation maybe that was the strategy that best serve the client or whether it not raising other things that it was negligence and it isn't really the issue here whether as a matter of law at this stage based upon the complaint that was filed it was appropriate to say there is no set of facts available that would allow a jury to make the determination in favor of the point your honor i suspect that there is a case but that's not this case and here is why all right first based on that one thousand nine hundred three modification agreement and in particular paragraph five was a reasonable argument to make to defeat the goal they said we should have undertaken which was to defeat the exercise of the eighty nine options and in a two six fifteen motion a trial judge as judge hogan did twice as judge lawrence did twice is uniquely capable of deciding that as to whether or not one of all to several alternative arguments was appropriate and what's important here the argument that they say we should have made is inconsistent with the argument that was about that section five or paragraph five of the ninety three modification control so unless a lawyer is obligated to raise every a number of circumstances that would allow for a court or a trial or a fact making a factual determination is the one aspect is that even if you were to decide that i think that both of these briefs have done that at some point where even if you believe this here's another reason why we should when and again we go back to he the stage of the before anything is further developed and that frankly is what what troubles me is you can probably appreciate i'd like to address that your honor because as i understand it mr overmen argued the gelsomino case he's also cited the case really says that basically no matter what happened this person was going to lose because he was in breach of his agreement in the first place was  dictum which which is entitle to much weight and should be followed so and i respectfully don't agree that this is dictum because it was a holding i had to sit fifteen what's important on the fex just is the scenario case and that would would create in my mind some trouble even if what you said was so let me submit something to your honor let's assume for a moment that  very didn't attack and try to defeat the exercise of the eighty nine the eighty nine options they went ahead and some completely different way but it's undisputed that they did they just quarrel with the argument that was made to do so so under those circumstances sure there's a judgment between two different approaches there is no dispute here as to what the goal was to defeat the exercise of the eighty nine options but if you rely on judgment on the unity or reasonableness of the decision i think there's there's grounds to argue that if the facts show that the lawyers had considered all of these options  would either mutually exclusive so he couldn't be raised to the altar never found some reason decision that would preclude them from raising both of them you might be in a different position then he would be the stage where we really don't know what mental process seasons were followed by the way years at the time the decision to raise the value of human was made and that's that's where we get back to the stage of the pleadings issue that i frankly find troublesome i appreciate that your honor and in terms of that though when you look at the stage of the pleadings look what's in the third amended complaint entire history is there the  ninety agreement is attached the one nine hundred ninety three modification is attached and from that regardless of the characterizations the court and it is in the record of the what the the district court did that a reason and what  seventh circuit found a reasonable argument was made and going to mr over ms analogy and your concern about alternatives he used the idea of a negligence case in the daily center today there's a defense lawyer that's going to make a decision in front of  say i'm going to attack this case on the basis of no breach of duty or no causation and it's not going to argue damages because arguing the damages dilutes and detract from the credibility and the strength of the argument it conveys to the court before the jury that you're not serious about it and if that argument is made by that boy or girl history and it's our success and if the party represented he means to sue the lawyer for the argument that maybe then the lawyer can explain why he did what he did and that can be judged but the problem is at this point as a matter of law determining that there are no sense of facts that could prove that is what causes me pause i mean even if i were to say reversed and reman i would not be saying and the lawyers of corals and brady clearly made a mistake we're just not there yet and that what i would respond to your honor is that on the face of those those are exhibits attached to the amended complaint manifestly reasonable argument was made that had it been successful would have completely defeated the exercise of the one nine hundred eighty nine options and in doing so was simply just what they're saying we should have made inconsistent argument and there were lawyers trial judges or lawyers and this isn't a statue of limitations only law says when the schedule limitations is blown you don't even need expert testimony for it so this is the actual imitations argument an analogy doesn't make sense here making an inconsistent argument that the tracks necessarily you know it's a reasonable inference from what's before the court on the third amended complaint and the exhibits attached there too and nothing and i'm not suggesting that the seven circuits idea is supplants this court's i don't but as recognized by the seventh circuit i think this court as judge laurence and judge hogan did that the argument that was made was reasonable and to address your concerns justice levin about in a medical malpractise case this would be a get out of jail free card just because someone it the argument that was made was reasonable and unless that reasonable argument can be held to be beneath the standard of practice and going back to the medical malpractise situation suppose there were a patient has a cancer and a stir to ways to extirpate the tumor and the both within the standard of care both within the standard of practice two arguments and the in the physician chose one that's an instance your honor where it would be a just judgment and appropriate judgment is recognized by the l seventeen of the third amended complaint the plaintiff here never alleges the cross and prayed didn't exercise any judgment they allege that there was quote no judgment to be exercised and it's a material difference it's a material difference and therefore there was quote no judgement to be exercised and to answer your honor's point that makes a material difference on the pleading that's before this and they don't allege we didn't do it and in that instance just as the trial court did based on what i would submit is controlling precedent and goldstein determined on the section two dish six fifteen that have most what we have is a hindsight criticism of a course of conduct that the lawyer recommended one that was reasonable but wasn't successful so if you are you there's an argument suggest that you would conceive the act they made that occasion that there was a judgement but it wasn't made because they didn't consider this that we would have a different case what if you assume for a moment as we must because it was alleged that the argument wasn't made in the district court ok that agreement sets any future sales of shares shelby upon the terms subsequently agreed to that defeats the eighty nine option now defective judge writer chose differently doesn't make that argument so i do understand your honour's concerns i think here under the circumstances taking into consideration that eighty nine option agreement with the ninety three modification that the plaintiff is studiously avoiding those with those are the facts presented and the argument that was special and was made was one that takes into consideration both of those documents and doesn't ignore one versus the up when you look at those you'll see that in that one nine hundred eighty nine option  they changed the capital structure when they did the ninety three modification but it was clear based on those documents that there was an idea that mr furia could get up to forty nine percent of the shares and that second exercise when he attempted to exercise i think it was one hundred seventy six chairs that got him to the forty nine percent so the plaintiff's construct here i would suggest is manifestly on reasonable because it reads out the one nine hundred ninety three modification and they're seeking to hold argument making about detracting the credibility of lawyer who goes to a court and tries to convince the court of an argument while ignoring an operative transaction document i think would in effect is just detract from the the argument is your argument suggest that one could never go liable for failing to argue alternative though i'm not to which facts a plot had that's not what we have here so i am not suggesting that a bright line rule that every time a lawyer makes a judgement they cannot be second guessed on the judgment and i apologize for the use of the word second guess they cannot be responsible for the judgment but i'm saying here is when the lawyer takes a path and makes an argument in an attempt to achieve the goal that the plaintiff says we should have done which was to defeat the eighty nine options and the path the lawyer takes is based on plain language of the documents that are in front of that where and it's a manifestly reasonable argument when you look at that paragraph i'm saying under those circumstances on a section two dish six fifteen a trial judge is a lawyer is presented with a complex set of facts that that would bring some judgment to bear on what to do and what to argue and it would be a different case if we were seeking the same goal that is the defeat of the eighty nine options if there's a mr oberman didn't address the issues of ambiguity here the two thousand and four agreement as with respect to the issue of ambiguity i touched on it briefly simply the fact that there was you know this was in the paragraph i going which appropriate with respect to the two thousand and four agreement we kept again you can't ignore the ninety three modifications the importance is in paragraph that it says that any any transfer has to be based on condition upon the written approval of the manufacturers thank i thought at the outset of mr tacos i grant we were on the same case but by the time he finished he was arguing a case that was never briefed he must have said ten times that the argument that we say was left out negligently was inconsistent and detracted from the other argument in other words it was a trade off you will not find any mention of that in any brief in this court or in the trial court he's never raised that argument before we could never have met it was never inappropriate to now come in here an oral argument say oh well there was a tradeoff there was a strategic reason there was a tactical decision it's not in the complaint and it's not in any breach so i strongly object to that even being in this case i don't know how this court could evaluate it just on the basis of this you'd have to go back and research and study those documents yourself and see if what he says even makes sense and i would only say that even if you put some weight on what he says saying well you should saying to judge reinhardt you look at the ninety three thing about agreed to and based on future agreements but even if you don't agree you can't get an option for a hundred ninety three shares on an option that gave you a right to purchase two thousand and nine that that defeats it by itself that's ok say but i really really think that not going to respond because i'm not even prepared to go into what he and other paragraphs they didn't think about it how could we say that you'd have a real one thirty seven problem for coming here and say that why didn't think i don't know what he thought about till i depose him we say there was no thinking involved here because it that this court essentially sad it was not an error that mr lustig made the correct decision i eat it doesn't make any difference what you do you're go so that there wasn't even an error in the judgment that was alleged to have been made so it's a completely different case on the facts and of course there was a pretty thorough factual record in that case but as any further questions thank you for your time you're going to take a short recess