court in the united states with with a reported case to ever construe the term which ever is greater that appears in contingency fee contracts that have a statutory provision do not refer to the greater of the contingent sifi amount or to the or to the statutory fee amount no case has ever done that and as we cited in our brief all of the corners including one thirty and pony the city of los angeles ninth circuit two thousand and six and the other cases we cite in palin's brief page forty two at no twenty all involve whichever is greater the statutory fees or the or the or the contingency fees if you just a bottom line question if we were to rule in your favor on this particular component of the case what what would happen what would what would your client get what he would get one point two million dollars so just his one third share of the what was it three point eight million yeah that's what you're out that's what your client is trying to capture back yes ok counsel it is like a slightly different question which i also intend to ask opposing opposing counsel how is it that a dispute between your client and his former lawyers is here before us the lawyer the lawyer the lambert firm is not a party they're listed here is an  filed a brief but they didn't intervene in this suit i'm not sure your honor you took you took an appeal we took some ad from an adverse judgment in favor of somebody who wasn't a party we took that appeal  parties and i don't think it's great to the parties elaborate firm is not a party this is a this is a contract dispute between your client and his former attorneys that was not the subject of the false claims act that was united states gave the district court continuing jurisdiction to adjudicate any feed dispute between mr lambert and and his attorney so that was that that was completely reserved  in the agreements and other than your honor asking that question no one has ever asked that question no one has ever argued that well so can i just the reason i think the reason i was asking the question i was is that this is a fight over who should get the money that the district court itself awarded right yes i mean that's that's why i think that district court probably thought ok maybe i need to step in because you're saying that hey this record that three point eight million i'm entitle to share but obviously your opponents say no it's all ours and it seems like that would kind of go hand in hand with whatever the district courts feel or it did and we filed of course we're here on a specific declaratory relief filing so we actually filed pleadings but this before the court the court accepted the pleadings the court accepted the specific but titian for declaratory relief and i gather that it was it was a bechtel that paid the money and they've already paid it to the first yes so they're just holding it in escrow until this dispute is the the one point  that the the one point two as well as a disputed amount of whatever is a reasonable fee amount it's two point three or so is is in a trust account now and in the  law firms why is the larger sum sitting there why isn't it just the one point two that your client is after because we had two claims for relief into motions one is just just under the contract we should get the one point two million which is share and also that the fees themselves were excess of it and and and that the court be to decide irrespective of how the one point to it if you look at the total amount of fee that's what i that's why i asked the first question i did because i did not understand why there was even a second issue in play here so if but if we were to ruin your client's favor on this first issue i gather that there is no can touch in that the overall fee would be unreasonable at that point  right or is there some additional argument you've got that you should capture back even more money than the one point two that's why i asked the first question i did i wanted to know in total what is it that you want to get out of this in terms of really for your client well what i can realistically  mean if all they were to get was the thirty three and a third i just don't like how could that be a reason yes it would be it would be difficult ok to make money of course the contract we have here  ambiguity in a contingency contract is construed against a lawyer with a lawyer here the law law firm is saying is that we want both statutory fees and contingency fees and how easy it would have simply been to brief ignore this is that ms jeff caught who was with the firm at the time supplied a declaration and her declaration says i told i told mr i told mr bronson that the that the four million dollars that the attorney for the portion of that was going to essentially go into the amount recovered and the and and lambert firms thirty three and a third would come out of that so no matter how you look at it so this is an extremely unique construction and the district court was able to and was able to reach that it did really for five reasons number one is the district court did not mention the rule of construction which is how ambiguity is construed against a law firm number two the district court apply the nonexistent rule of grammar that gives some significance to whether or not a word is used uppercase or lowercase and there's without any citation we can find knows that whatsoever number three the district court applied public policy saying that the more money that lawyer that these lawyers get than the more available there are going to be lawyers which is then extraneous to what everybody agrees is an issue of  and you're just looking to the objective language of the contract but you would admit that if i mean there really should have been a comma after the word here and right i mean if you're going to do this in a grammatically correct way cording to have your interpreter there would have been a comma there you'd know that i must say that that was my initial feeling and if as as counsel pointed out actually when i typed it up with the column in there but it turns out that i'm completely wrong that under the rules of grammar that comma would have made things difficult for us is precisely because there is no comma the only calm of that that comes in is the comma the big comma which ever is greater the the the difficult the one of the big difficulties with the cases is there is deducted but once the doc did as part of the calculation there is absolutely nothing in the retainer agreement that says that the step that those fees then go to the lambert firm there's nothing in there and the  years and it's interesting that the argument just before mine today was about a false claims act case and it it kind of points out how difficult they are and they  times spokane about that yes book out of work and then we went to d c and worked with the justice department there and and spent eight lawyers four and a half years and came out with what i thought was a magnificent result and so did the court one hundred twenty five million dollars is nothing to sneeze at and what happened was firm's performance and we were lead in this in this case and along comes the money and when the money shows up as pointed out in both of the orders by and not even listening to the explanation that you asked all you in particular judge white for that the how is it supposed to be if you when the construction is in a record document there's several pages one eighty five one eighty eight has more discussion in it judge shay where he points out or i point out to him that if we did it the way the contract actually specified you'd add  four million dollars which was attorneys fees and costs gross to twenty five million you get twenty nine million you take a third you take thirty three and a third of the twenty nine million dollar amount that makes no sense that's what the judge  right you have never been never drafted a contingency fee agreement that says that right well what we did was in the case of the attorneys fees and cost provision whichever is greater the reason that's there is because we've handle a lot of plain false claims cases and mass tort cases over the years and sometimes they don't work out very well and when they end up in a settlement sometimes the cost of defense settlement the costs can be much greater than the fee and so what we are what you want to make sure i understand what if you want you want you want one third of the twenty five million dollars that came from came from the government twenty five twenty percent of the hundred twenty five million  you're asking that's correct ok and they and that's what the district court for ok and the and bronson is suggesting that you should have the four million to the twenty five come up with twenty nine and that you did up with nine point six six is that about right right plus then when then what you would do is back out from the from the attorneys fees i'm totally confused i thought what was going on here was that you're saying we drafted this so we got one third of the twenty five plus one hundred percent of whatever the district court awarded in attorney's fees under the statute we drafted it your honor so that we would get to the as emily jeff got pointed out her interpretation was you add it to the gross based on the contract language you in other words you add it to the twenty percent twenty five plus four and then do the math which includes subtracting that from what the relator skit and then adding to it i'm sorry subtracting from the relator is portion the greater of either the attorneys fees or cost that we get under the supplemental agreement or under the statutory provision i have the numbers but but the way that you calculate it you get one you get one hundred percent of the roughly four million dollars that came from back to that's why i pointed your honor to the language  record document and it's of the judges hearing on the twenty first number to eighty eight to eighty eight because that's what the judge said thought the interpretation of the contract was based on his reading of the language which included the comma his taking of the context of the thirty three and a third percent in our negotiations with the clients over how that should work because we said it was going to be a contingency fee on the main about and we said we would receive then the the greater  of the attorneys fees or costs whatever it came out to be and that's the way the judge interpreted it and he said so what you would be entitled to would be the  one third of the twenty five million and the attorney's fees and then the he went through why isn't the amount paid by bechtel just sort of a credit i'm sorry why isn't the amount paid by bechtel in settlement to roughly four million dollars  government gets another reza government got one hundred twenty five million dollars the government then gets their share of that in the relator to get twenty percent so that's the twenty five million the other four million which includes one hundred fifty four thousand in costs comes from a negotiation between our firm and the defendants the government's not right to side bar a recipient they're not a  recipient of that and so that leads to our receiving or at least that they're related to receiving the benefit of the hundred fifty four thousand that was the cost that was no risk to them whatsoever and we get the attorney's fees that's the way the judge saw it and he saw it because of not only the contract language but the context of the negotiations which included a second agreement a second country actual agreement between the relator themselves where they all said we get a third each in the language in that document also says after a deduction of attorney fees and costs so that whole thing taken together led to after a hearing before a judge shea his ruling we paid the five million five hundred fifty five thousand and fifty five cents to each of the related years good question judge watford why we had to agree to an escrow of over two million we did because we wanted the money to get dispersed we were finished with this case we done our work for four and a half years we had the judge rule in our favor in terms of the argument brought up by mr gardner why mr gardner was involved i don't know except to say that he has been very diligent in his efforts to recover part of that four million dollars because he gets a third of what he has no know i mean i got to say i don't think your reading of the contract is right at all it doesn't make any sense to me what i read this as saying is that you're going to get one third of the settlement amount  you're going to calculate that one third amount before and you expect any costs are deducted from the twenty five million dollars pot so you get that full one third but it says you're not going to get any portion of the statutory attorneys fees award unless that amount is ends up being greater than the the settlement well and so what i understood what i understood and i'm going to ask when he comes back i understood your point to say he doesn't think you should be entitled to any portion of that three point eight million but ruling and also understood our position with regard to the supplemental agreement which we negotiated and also our position with regard to the attorneys fees in other words that the attorneys fees are what they say they are their attorneys fees they don't come from the relator is recovery to the government that recovery is separate from the supplemental agreement and the statutory fee which includes the return of cost which is to the benefit of the clients they paid none and the and the attorney's fees goes to us as sort of a we didn't charge any any attorney's fees for four and a half years the relator contracts with their lawyers all included upfront costs a contingency fee and in some cases an hourly fee so the way i understood our relationship with our clients and they understood it as well the other two that didn't join was that we were entitle to our portion of the recovery from the government they got the benefit of the costs that we got back and we got the hourly rate that we got from don't don't don't misunderstand me there's nothing wrong with that striking that agreement and in fact in most the language and sure client here my authorizes attorneys to retain as compensation for the legal services number one i added the number one number one normally more than a no less than thirty three percent of such amount could prior to within the meaning of this agreement they were to go she added between us and the defendants so how do they fit within this agreement at all i'm not sure your honor but i could i can say that in terms of the way i read the paragraph you just read it that's the key paragraph right it is it definitely is and it also from the gross amount of settlement judgment claims or payment received by the attorneys fees on behalf of client as a result of the efforts made by the attorney in this matter client here by the  compensation for their legal service is no more no less than a thirty three to thirty percent of any such him out prior to any deduction for costs and expenses as outlined here in and or the amount of attorney's fees ordered by the court which ever is greater in other words one of those two things gets deducted from the relator portion when you do it that way the relator get one point three million dollars negotiate but apparently there's nothing awarded by the court that come that it's triggered by this is that correct i don't think so your honor because you don't think so am i correct or not correct i'm done trying to figure out the normal negative well i know an award of one hundred and four thousand dollars less then the attorney's fees portion of the concern of the contractual agreement that was reach us and the defendants in other words at the end of that you were going to you used to get more under the thirty three percent clause than you did if the district court awarded you statutory  fees you had to you had two measures here and you said we're going to get the greater of one or two one of them is we have thirty three percent of anything you collect anything we collect for you we get one third of it or we get we get the  fees awarded by the court whichever one is greater and the fees and that could be awarded by the court turned out to be less than the fees that you would that you would get applying the thirty three percent judge by the i don't think that's correct in what what i think that in this is the difficulty in the wording and agreed it's difficult that that's the reason why the judge went through his analysis of what is the what is the document look like from  think subject to review for clear error because not let me ask a different question so what are the what is the amount of attorneys fees that the court thought that where these are these are fees that would be awarded under the statute right correct ok how much did the district court how much did you claim before the district court that what did the just a court think it could ward the district court and they should have nothing to do with the thirty three percent factor ok this is this is this is ours lodestar right and  district court awarded least without even thinking about what bechtel contributed to this you were you are going to start with we're either going to get a little less than four million dollars because that's what the district court could award under the statute or we can get we can get one third of twenty five million dollars and which of those are you going to choose well obviously if that was the choice you take the thirty three percent that's correct but that's not what the contract says i don't believe your honor because well i think i don't i don't know how you get anything different out of this well now so ok so now the question is what do we do with the four million dollars now what you want to do is say well we get all the four million dollars because that's what bechtel was giving us for attorney's fees and therefore we get one third of the twenty five million correct that's eight point three three or roughly eight point three three plus the four million dollars which gives us something in excess of twelve million dollars in fees correct or that's what you want correct me why isn't the four million dollars in settlement from from bechtel part of the gross amount of any settlement judgment claim and or payment received by attorneys and therefore you add the four to the twenty five million to say we did good work for you we recovered twenty nine million dollars for you twenty five million dollars came through the settlement with the government which the government gave us twenty percent to twenty five million and we got another four million dollars from bechtel on the side we got twenty five million dollars for twenty nine million dollars in total we apply the thirty three percent to that and that gives us just under ten million dollars about nine point six six right numbers i understand what you're what you're saying your honor but you're ignoring the next paragraph in the contract which says from after that calculation which is when you when you do the gross calculation and i have that paper here someplace i just need you want to count for cost and expenses you didn't get up from appliance portion either the attorneys fees or cost whichever is greater and the greater amount of that is the attorney's fees which is the three point eight in other words your honor if you take the twenty nine million and you subtract from it the gross which is nine million six six six six six six then the balance is nineteen million three three three three three three three three point three three then you subtract the attorneys fees because it's the greater of attorney's fees and cost which is what the contract says when the commas in the correct place i don't think that makes any sense at all well that then then you get to fifteen million for eighty eight zero nine nine point eight and the and that's what you're looking for is fifteen million know what we did was the judge said judge she said he didn't think that that interpretation of the contract was correct which is why i go back to the literal interpretation from from the standpoint of where commas are then he looked at it  five four less one hundred four thousand dollars so that it goes back to the other factor that the judge mentioned over and over judge shay and his in both orders that he said that he rendered and that is that we took a tremendous risk had we been able to resolve this case by settlement our firm would have probably been subject to double digit millions of dollars in costs from the attorneys that represented in your house over a period of four and a half years that was not in the contract as a lot of villainy on the part of the clients they didn't want it we understood that and that's why it was one third and then in addition to the one third as the judge pointed out normally there would be a fifty forty or fifty percent contingency fee contract we didn't have that we had  fees and cost it didn't work out so that there was a great amount of cost in the case so when i discussed this matter with the relator as all three of them who were represented i explained to him we weren't going to do it that way we were going to do it as the attorneys fees on the amount received by the government in other words one hundred twenty five million less twenty percent and then they were going to get credit for the cost of have to pay anything and then we were going to take the attorney's fees which was the hourly rate that had been negotiated by us separately with back dylan u r s judge shay looked at all those factors including public policy and said that he thought that was a reasonable way to go and ordered us to distribute the money in that manner which we did the only thing that's left to distribute  from my standpoint i think is the one hundred four thousand dollars that the judge asked us subtracted from our lodestar amount now and all of that sounds to me language that we've been parsing well that was that that was the agreement between us that are related and that's the way they all understood it when the case was finished now that was the agreement you i've got in the language  that you entered into later well i mean what am i supposed to be construing some some some agreement that i don't have in front of me or the no nearly so there's no there in front of you your honor the the the agreement that i'm referring to right now is a supplemental settlement judgment claim or payment related to the repetition described here in less attorney's fees and case expenses which as described which as described in paragraph two and thr t two and three of the original agreement are deducted prior to the division of any settlement judgment claim or payment so it's a second document that was executed in february of two thousand and thirteen after all three clients had separately contracted with us with the contract that your honor is reading and it further describes what i believe to if you if you read it the way that it it it's written and you know i'm an engineer by education so maybe i'm not as good a draftsman as as i should be but the way it reads from what i think is that the gross amount of the settlement would be twenty nine million a third of that would mean nine million six hundred thousand of any mout prior to any deduction of costs and expenses as outlined here and above in the amount of attorney's fees awarded by the court whatever is greater in other words either the cost of the attorney's fees whichever is greater what i'm asking is that judge shays ruling in in two instances where he indicated that the that the that the contract itself read in a way which was a little confusing to him but taken in context in terms of the one third attorney's fees and the cost and attorney's fees provisions being separately negotiated by our firm with the government that that all taken together should lead our receiving the attorney's fees portion of that supplemental agreement or the statutory feel war and that was less than the way i calculated it ours gave the client one point or three point i'm sorry five point one something million and he said five point five we said that sounds fine we distributed the money years ago and and we've had two million dollars plus wrapped up for a long time it's also disturbing to me and i know up my times way over that  that this whole thing iran arouse arose in the context of mr geir advising his client that we've done a bad job that he had in mr  bush's declaration you'll see had some disagreement with her over a fee after the fee had been awarded and before distribution and then also that he mr guy had misrepresented things to november when we were trying to put this very complex case together ok thank you thank you you don't it in amazes me that we have all of this is gushing all over the board so many things externals of the contract bad guy are is a bad man and he created all of this problem oh we work so hard and in these cases we work with the government all the time is to guard you've only got two minutes why don't you tell me how much you think you think should be paid to the lambert firm the lambert firm should get only the contingency amount ok good tell me how you calculate that what does it include that's one third of one third of the twenty five million one third twenty five point three and the four million just goes to your clients that well the four million goes to all three of the clients so it is as well as one why isn't the four million covered by the first sentence of the first part of paragraph two it is part of the gross amount of any settlement judgment claim and or payment received by attorneys on behalf of that would be the alternative view and that was mrs contract you agreed that whatever whatever good work for lambert for did on behalf of your clients they would get one third of the settlement why isn't that four million dollars from bechtel and twenty five million dollars that came from the settlement that the government  that's twenty nine million dollars one third of twenty nine million nine point six x why isn't that why isn't that just easy it is easy it's just but it would it wouldn't be consistent with the law the law what the law the law is going tell us of the parties can't contract for f statutory fee it was a reserved specifically reserved by the united states government as a statutory fee the judge of the district court under took as a statutory fee the district court found that the statutory fee was actually excess of an order lambert firm to give back to back one hundred eight thousand dollars the district court adopted that fee as a statutory fee now this would be a very slippery slope to go down for the court to be able to say a statutory fede no matter how it were no matter how you do think thank you i see one last thing you're on just please just one less of the these the it's not just my client it's doeth of those other clients are also entitle to that they should be  submitted thank you both next and last alaska pretrial detainees for the end of unwanted courtroom shackling versus johnson and monica