and that's exactly the point your honor they can so they can raise what they want to however it is not i think the facts overstates it because that counsel for the seller could not have said you didn't check box three twenty four it boxy twenty four  proposed agreement that results in a l to litigation i'm not suggesting that that happens every time i suggest that that happens according to the standard rules of negligence principles which is it wasn't foreseeable that that result could occur where there are reasons agreement that it spells out the financing contingency and as a result of those omissions that the client is subjected to a claim yes i'd very much believe that the call that the lawyer has liability if you're saying that the teaching of of a broker and we and i don't know that i have anything that said specifically avoid any ambiguity i would suggest though that most certainly that if that if any buyer says put in the correct i believe yes i believe we did your honor i believe number one that with regard to the standard of care that we believe first of all that we had if nothing else the testimony of the summer's broker who handwritten language that the broker had carefully inserted in the thought it said by way of a mortgage acceptable to the buyers i mean what in just plain english does that mean other than the buyers have got to get a mortgage that's acceptable to them because that is the way by by which two million dollars the cash component is going to be our update your honor i would suggest there is a huge huge difference and one which sellers counsel f took full advantage of it was entitle to take more than a job between language which says we're not changing our earlier offer where we said this was subject to our ability to gain this financing and instead we're going to put in languages that the fire is that the to get the financing that's acceptable to them that's a very different term and that taking out of the subject to language was recognized and i believe properly so by the district court as creating the problem in this case and that was a huge failure to check see twenty four unfortunately parents got subjected to a double whammy here they got subjected to the fact that that subject to language was taken out and the boxes were not properly checked so whatever basically what you're saying is the the real problem was the the the the change in writing and here you're right i think that there is that whatever but if the handwriting stinks think then you can see that there's no all and saying this is a fine it's a contingency is pretty clearly a big problem for the forseeable rest deviated from standard of care i think that i probably would take the position yes that was a breach in enough itself that sufficient i don't have to in this case rely upon that alone because we also have the subject to language being pulled out of that which the district court immediately recognized as being a problem and they tried to get around that issue by analyzing from the point of view with at the end of the day after you argued all the way through if there had been litigation that cult of the plea the palace would have won and our point in this of this appeal was that that's the wrong standard that's not the point danger the damage that was done was the subjecting of the a balance to the increased risk of litigation to a claim that could have been avoided that's exactly the point in the efforts to get around that this is a very very very interesting theory because in in the three cases at least as i read them that you rely on the nonwhite cases there was clear negligence on the part of the graft  danger and the lawyer had a clear and obvious way of guarding against that danger in fact he put in the guard against that danger in an earlier draft and then when we negotiating the redrafting if you left it out then i think want to just emphasize that in that case i think it is very instructive on the issues here there you had a band that had dismissed one of its members the member then sued for claiming that there was trademark infringement and the  tendered that case to its insurer and they discovered to their dismay that the insurer was claiming it's not covered there's an explosion they also found out that had a different level of insurance been obtained arizona missions insurance that that claim would have been made they sued their broker they sued the business manager said you should have gone this is coverage this cost us three million dollars to litigate and so on and the court trial court looking at it said no there really was a duty to defend here and said that we that insurance policy was sufficient and therefore threw out the case and the court of appeal said no that's not the standard the point is that had the insurance broker and the business manager obtained this clearer coverage then there wouldn't even have been this dispute this case is very important number one it goes exactly along the s once as we've been talking about and just as importantly it is a non legal malpractise case with which is something which the valley makes me represented while these three cases that a palace of a side of her just legal malpractise cases with trial consistent with respect to all of these cases is that there was a sole cause of negligence in the legal malpractise cases there was a mission by the attorney in the third  there was a mission by the insurance broker those were clear and sole causes of missions which created the underlining dispute between the between the client and between a third party but here the district court found that there was an ambiguity in the country yes sir didn't the broker have a duty not to create an ambiguous contract to get him into this fix to begin with often ten and i'll submit your honor that there was no ambiguity if you look at the total point she had they had to hire a lawyer i'm not sure that they had to hire a lawyer i think that the lawyer on that for the sellers was just i'm sorry i mean that goes to her damage maybe but i mean she got there her theory is that because the real estate broker created an ambiguity which the district court even recognized she's a she's in the middle of a lawsuit and she had to go in defending well i think the seller's attorney was crafty enough to pose that situation however also not to the court that it was not the intention of the the buyers the appellant's in any situation in any case to go forward i mean to exercise the financial contingency on which we look at the se mary that you wanted to cancel that transaction at that time the response was no i asked him let me let me be more specific prior to issuing this prior to issuing this june thirtieth two thousand and two letter did you  mary that you wanted to invoke your financing contingency and cancel the transaction at that time the response was i can't recall i asked my follow up question to that was do you recall informing this world that if possible you wanted to keep the transaction open and possibly still proceed with a response yes well that was your desire yes in lieu of canceling it yes so i submit that notwithstanding the status of the financing contingency as raised by the argument that when you have a specific instruction from a client list of whether subjecting a client to the risk of litigation in other circumstances should or shouldn't honor is that in fact it was handled correctly yes there was an omission with respect to the check marks but when we look at the entire document and these the subsequent connor offer which said that the first two million dollars first mortgage by terms acceptable by the buyers that in itself creates a condition secondly when we look at the terms contained on the second page of the counteroffer there's a direct reference to reference to see twenty five whereby the buyers are amending the deadline for when their final approval must be submitted now why would they have done that unless for the fact that they're under the there are creating they are creating a financing contingency and relying on the financing contingency we look at twenty five and we have to look at it together with twenty four of the g r away and see twenty four provides that there be a buyer's financing contingency now it was up to the lawyer butlers the appellant's at that prior to the expiration of the june thirtieth two thousand and two expiration of the financing contingency to exercise their right to cancel based on mr lloyd butler's testimony that was not their intent i think in order to reach the question of whether or not a standard professional standard of care was breached i think we have to first examine as did magistrate judge to occur and to first examine whether or not there was a binding financial financing contingency contained within the d r away and the counteroffer as judge current found as we have argued there was no ambiguity  sorry that there was a financing contingency and in his eyes although i disagree with him that there was no and that there was an ambiguity that in fact in applying wholly contract construction law we look at the extrinsic evidence and the intent of the party and they're clearly kathy george the seller's broker testified at her deposition that that the seller and she understood after reviewing both the d r o and the counteroffer that there was in fact a financing convention contingency actually the entire basis of their their claim is that there was not a financing contingency submitted earlier whether there was or was not a financing contingency appears to have been a red herring in light of the fact that mr lloyd butler has stated that they would not have cancelled the transaction it wasn't his intent to transfer the transaction and in fact they tried to proceed with the transaction renegotiate the terms of the transaction so that there would be a first right of refusal and due to the fact thank you and i wish to speak quickly to a couple of the points that were raised one in particular this discussion of the idea that the that the parents weren't intending to  transaction or something of that sort really i believe misstates the record i'm sure i was surprised when i heard that i took a look at what the declarations in support of the motion for summary judgment say i would simply point out that it page nine of our opening week we go through the facts of  what led to the terminations and that in particular after consultation mr lloyd butler talked with a broker said let's run and then in consultation they said let's write a letter saying we have this problem let's see if they'll go along with the idea of substituting a right of first refusal there's a chance of salvaging something out of the our out of the situation i don't think that in any way affects what the point that's being made here the point is is that the lloyd bottlers didn't get the financing contingency that they needed that they requested that they expected and that should have been there and that they had been told was there with regard to the issue of standard of care we believe if that if there had been litigation would have resulted we think that having found the first step it had made the necessary finding for the determination of liability at that stage i would also want to call the court's attention one thing that i mention before we have you in here with the completion of eight state approved form contract this wasn't some kind of contract which required anything more then checking of certain boxes according to a standardized practice order to where in order to achieve just check my notes oh yes and the idea that the cases that we cited do not represent the majority