the bakery machinery case from this course that rule is actually if there is an attorney in the picture somewhere it's your own damn fault and you should face the consequences you know and what's wrong with that rule that is you pretty much articulated the seventh circuit rule and you're asking us to overrule i should say at least a dozen cases you're wrong with the rule that if your attorney drops the ball the remedy is against the attorney w engaged in your practice there's at least three things wrong with applying that rule to this case first our motion was under rule sixty b one maker machinery and the rule that apply applied to sixty be six extraordinary circumstance and the second thing wrong with that is that even though it is our fault the supreme court in the pioneer case you can be at fault and still get a default judgment vacated if it depends on it anyway which in the supreme court opinion is excusable neglect where there is no ambiguity in the wall right or when there's no confusing order entered by a court an attorney who just doesn't do it he's not engaged in excusable what it actually funny or said that very  well that's in a case your honour's over the attorney is actually in front of the court already in this case there was no relationship whatsoever between the court and mr o'farrell the attorney that we asked to retain that we asked to appear and defend us so we don't every time we knew that we needed to do something when the action was required we did it that same day so there are certainly diligence on our part we asked mr luttrell to appear in the front us that choice was excusable neglect as well in other words i now under baker machinery and sixty six it's too late to raise that as an excuse because the attorney had already appeared in the court and it gauged in conduct before the court that was nothing that this court the district court was even aware of so there's no need to protect the sank the administration of justice in the court involved here what we have is  secondarily as it is that he never actually was our agent he never became our attorney arse the scope of his job in this case was to appear and defend we didn't give him the discretion to fuck this is a violation of the duty to the client quickly it's instructions call it's trust all right but on if that were excusable neglect then don't practice would always be a grant for restarting  know assuming there is a client attorney relationship to begin with vitiate that agency authority or agency relationship so those cases i think are the months that apply to this case where he didn't even begin don't would you think is the proper remedy if somebody who believes he is a victim of a tort hires a what are the tort works off what the statute of limitations is and then just misses it doesn't mail a complaint i'm not saying that we don't have a cause or actually look look what is going to happen in that case is the judge going to say well we're just going to overlook the failure to file the complaint on time the litigation you seem to be saying that where the lawyer who engages in the milk practice who's representing the defendant think should be treated differently from when the lawyer who doesn't file is representing plaintiff and i don't see why not well i'm trying to draw distinction between federal hockey league's relationship with mr i'm not asking about federal hockey lee i asked the general question about parity between what lawyer drops the ball for a player and a lawyer drops a ball for a defense there is no difference there's a malpractise action there we have a potential now so your it your argument necessarily entails the proposition that if a warrior by malpractise misses the statute of limitations the defendant can't plead the stud to the limitations and the suit will be treated as timely even though it is no because you're bringing an a for party here in the defendant in the case there is always a third party there's the quiet  or there's the other side of the litigation and the argument in each of these cases your argument here is that the other side will litigation has to put up with more litigation and get less or no recovery or in the court case more because go boy or mess things up there's a difference between the effect of the lawyers in action in our case and the case that you're the hypothetical you're giving in our case the lawyers in action does not do the my attorney misstep to imitation but in this case that the relationship there was no relationship between the plaintiff mochi or the court and mr le farley never entered into the picture his inaction never did anything morning may it please the court my name is dean charisse and i represent the plaintiff appellee kyler moji with respect to whether or not there's anything wrong with the rule from baker in machine bakery machinery  i'm going to suggest that this is absolutely positively nothing wrong with that rule what so ever we know what its status is what the status of that issue is in other circuits are we excusable neglect on the part of the party's lawyer and in this case judge ellis was presented with absolutely no evidence whatsoever of excusable neglect on the part of attorney look far the defendants had every case we have total abandonment of the client by the lawyer bolstered by fraud and lying to the client about what a lawyer has not done that that's what good job so he has no reason to doubt that before oh i won't do it you know of a decent job and he particularly has no reason to think that the far off little l but there was nothing more that she could do about that because there was no explanation from mr le far or mr karan and then his affidavit why that was so with respect to complicity of the client that's up in the air there was no and they had every opportunity to say that you know he wasn't complicit he knew nothing about this he even admitted that the other defendant had contacted him and asked him why an appearance had been filed his behalf so he knew and he knew for an extended period of time so with respect to his complicity i think the record is silent and i think that the defendants had every opportunity to provide judge alice with evidence of that and failed to do so and that's how i think it's different from pioneer and pioneer was very clear that you have to you have to look at both the neglect of the defendant and of their attorney and in this case unfortunately they chose not to give any evidence regarding the f president didn't give notice to the insurance carrier until after the default judgment was entered a judge ellis took note of that as well in evaluating the equities here and i don't know anything about that i never had an opportunity to take this gentleman's deposition or mr far as deposition and no declaratory judgment action has been filed by the insurance company in this case so with respect to that we'll have to wait and see it's very possible he insurance agent or the insurance company that was included it in brief i think that judge alice did exactly what she should have done when faced with the motion that was presented to her in the manner it was presented to her and that her ruling should be history of dealings with or about his apparent or you know qualifications experiences so on you know given there's substantial we had eighteen years of experience with them and we had no reason to find anything than an honest and competent attorney in addition to that i'm sorry if i didn't answer your question that the point here is they have the impact of this and coverage is there is no liability insurance i think that that's clear enough to the court to take judicial notice that when you first give notice to that's why we're here and that's why those circumstances ought to be taken into account beyond the elements considered in bakery machinery because it's all about justice to everybody concerned including the plaintiff if the effect of keeping there is no d j yet no malpractise action yet is because this case has to be resolved first we have to show that we took an appeal that we couldn't get a default judgment vacated if that's going to be a ruling i'm hoping it's not but if it is that answers that issue