our third case for this morning is dan davies against carla and then the next will give just a minute for people to get settled roberts morning on it got a little bit of a different type of case in the first two for us something a little bit more concrete more centered in chicago the plaintiff here is asking this court to reverse the  court's entry of judgment following a jury trial based on two evidentiary errors that occurred below one the admission of a prior lawsuit brought by the plaintiff against chicago police department that was successful and the second the admission of the fact that certain items were recovered contraband items recovered during the search that led up to the injury to the plaintiff so let me ask you about this first one because  there are two things about it that i would like to see some discussion on one of them is the way this prior lawsuit came up i could imagine a situation not this case where the defendant wants to introduce evidence that the plaintiff had filed a prior lawsuit against a chicago police officer of course it's a matter of public record that sort of thing could happen and it seems to me that point you would certainly have a serious four zero four b discussion and maybe it does come in maybe doesn't come in but that's scenario number one and her you know her too is this case where it seems to be mr himself who's shouting out at the time of this incident that he's filed a lawsuit before and he knows how to do it and so it's a more contemporaneous thing so i wonder whether we're really analyzing it properly to think of it as a forum for b kind of situation as opposed to just part of the chaos that leads to this incident which he he either is pulled out of or falls out of the wheelchair fell so that's one thing and the other is is i mean obviously we've got a harmless error concerns to think about and so maybe i'll just ask you to focus on the not since he's since he's shouting this so and the other and i keep going and forgetting the other point i want to make that it is anyway he's he's yelling about this and so why isn't that something that can come in well it's completely irrelevant and it's completely prejudicial to the jury in the evidence in this case oh i know regardless he also says and all of the evidence is that he won so why is this support an inference that it was a frivolous or bad safe lawsuit if he won it why would the jury think that well the only way that that's the only conclusion the jury really could come to  right well if i may your honor the fact that he also made his money that way the key issue in this case as was presented to the jury was whether dan davies was punched after making an inappropriate comment to an officer and goes out of his wheelchair and breaks his leg or two whether he bought some self he's a paraplegic out of the chair and breaks his own like in an effort to get monetary gain that's clearly the issue that's the way it broke down that's what the jury was presented could i just so you know i mean in light of the other evidence the jury might have thought that he pushed himself out of the wheelchair just thinking that he was going to get bruised but he wasn't appreciating that he's got  because of his paraplegic condition there's medical testimony to that effect so he may not have realized that he was as fragile as he was and that the femur was going to break i'm not positive but i think that there was evidence that he did know that your honor but i would i would not want to mislead asked the court to check that we can file a supplemental letter but i believe there was evidence that he knew that but regardless the the idea that someone who is in a medically compromise position for twenty some odd years would wind up risking themselves a potential injury because he was merely upset just just strange credulity now what you have here is and i want to get back to the core of this the idea this suit the jury's only potential inference and we disagree with me on this is that it was a fraudulent suit they were given it in a vacuum they don't know anything they know that mr davies was saying i want to sue i want to sue videotaped this so forth and so on he's presented as a litigious individual there's no need to bring in a prior suit i would love to bring in every prior suit of every chicago police department defendant under the theory of oh you know what they know they know what they know the litigation process oh they know you know what they could get sued for monetary damages you know what that gives them a motive to lie let me bring it in every single case and in every single case i can guarantee you that would never be allowed and that's exactly what happened in this case in the reverse you know there are very few class of people  plaintiff's attorneys and the plaintiffs the people have sent a kind of natural reaction like oh you're looking for money and you know overcoming that is tough and what this case did was allowing this prior suit to wife i mean again i could imagine all of those arguments being great arguments for keeping it out if it hadn't been part of the arrest scene but you're saying that you know some of the things he yells during the course of this encounter police that afternoon are inadmissible and some of them might be admissible you know get out of my apartment or or whatever i want i i think there's a huge distinction between what was said about what was going on then and what concerned the prior inappropriate material the lawsuit regardless of what and you think that we can't contested i would say that i would say that we have to assume that it happened for these purposes well i think that there's there's certainly evidence in the record i understand judge hamilton your point the fact that there was never put in any police report even if that allusion was made the fact that something comes out of a party's mouth doesn't necessarily make that admissible for all three four or four still apply and you still have to perform that type of analysis so then i would ask you are you if it's if it's i'm thinking four of four isn't really the right framework and we're under four o three then we're reviewing on a pretty generous abuse of discretion standard for the way the four zero three balance goes i don't want to i don't want to abrogate four or four i think that's a very strong argument i think if you look at the case longer for all four it's been difficult he says unless there is proof that the prior lawsuit was fraudulent and in this case it wasn't only  i'm sure a lot of the concerns are already been raised i'm not quite sure why you don't embrace the fact that yeah i was wrong by the city before and i know how to stand up for my rights and in fact provide a little bit of the  detail i understand you chose not to do that but but i'm troubled by the idea that the district judge has to slice and dice the evidence of the core event here and say this is not you're not allowed to talk about what this incidents all the time that's what they have to do in dealing they have an enormous discretion in doing it right and there are very few if any instances where a prior lawsuit involving and the result would be relevant in any any way particularly this one now but the the excited comments of the central character in the incident about motivations about goals sound like they are the center to think it would be a completely improper inference in the sense that we're dealing with different officers a completely different incident and would require us to bring in that entire prior lawsuit and relate that to the jury you could do it in a few sentences well  i think that either way it would be completely collateral but in that situation the jury was presented with this case as this is the way he makes his money and when you put it in the context  important and this goes to the harmless error concerns you raise your honor this was the lens this was the rubric this was the framework this is how it was color whether he bought some self out of his chair to intentionally interim self in order to get money which is the police chicago theory or whether he was punched in went out it goes to his credibility it goes to the core issue and what we have here is a tainted inference one that never should have been allowed in any prior lawsuit should have been completely excluded let alone the fact that he won the prior lawsuit and that's how he made his money and the jury it was interesting for the jury came up with an ass on their own collateral source really came back one day not during deliberations but in between days and said hey that medicaid paid for all those they obviously were aware that mr davies was of lower income  davies did not pay for this and they're asking that type of question i mean that certainly plays into this idea that he is some type of conmen and that's the picture they are allowed to portray started warming comes in could you stay close to the is laying on the ground as well you know you broke your leg i think you're paralyzed it doesn't hurt you know everything is consistent with the theory that he is somehow faking this injury or or he called intentionally cause the injury in order to get money what you're asking us to do if you're telling us today in essence then that the district judge should have granted a mistrial while i think beyond never should have let the evidence in to begin with and then especially when it came out question about how many times that was fraud it kyle it comes up in officer wilensky testimony and it comes up a couple times in a row there there's an extensive sidebar on  right now that the trial of those trial judge was not that clear about it least as i read the transcript about what could come in and what could stay out and then we get just in that but she strikes and they move on there's a very brief allusion in individual set him up is that's how he makes his money what you're doing is you're ringing that felt each time and the whole thing was done with is the plane of credit that's their entire closing argument and what they did is they made him incredible by letting in improper evidence  understand what she's told my predecessor but then when it comes up to officer ben benedict they go directly back to it directly back to it after the judge says i can't be any more clear no result comes these the court i'd like to address the evidence regarding the prior lawsuit with respect to the items the evidence regarding the items that were recovered in the home and that's the court has any questions on that issue we rest and everything but with respect to the  lawsuit the district court probably needed this testimony because it was relevant to show that mr davies had experience using the legal process and why was there just translate into he has a propensity to sue who ever he can get his hands on it's different it's different in that it doesn't speak to any sort of character trait it's only that he has this experience as a litigant before why is that relevant at all that he's an experienced litigant me the attorney general the united states  experience living going to she's in every immigration case but i don't see why the obviously undergone is you've got to have relevance before you have anything else and the question whether he falls out of his wheelchair or whether he's pulled it speaks to his motive for acting the way that the defendant submitted that he did and during the interaction in question counsel if i understand what you're telling us it is that this evidence should i've i've done this my for of the exact words but i've done this before i've sued before that's how i make my money right that's correct so our theory is that mr davies acted consistent with the narrative to generate a lawsuit and so the fact that he had what you're saying is this evidence appropriately came in because the officers were testifying about what he said in the midst of this rather chaotic scene and it's part of the relevant events it reflects on his motives etc i understand that argument if what you're saying is even without that testimony we're allowed to bring in testimony about this prior lawsuit because we think it shows his motive which sounds to me like a propensity to sue the city that's a very different question that's the one much closer to the second circuit and jokes his opinion for the second circuit was discussed in the breeze which is it that you're human it's a little bit of both iran or the fact that mr davy said these words during the time in question do you think it's fair then for  plaintiffs in such cases to bring out the defendant officers prior litigation experience you know i research in civilian complaint experience not clear to me how that would that type of evidence would be relevant to any issue in the case that sounds an advocating well in this particular case we have a defense theory that mr davies acted consistent with his particular motive and in that sense what we have here is similar to the point every where the defense of marriage a theory of suicide by cop it was allowed to present evidence that the that the deceiving ted previously sued because it showed that that person had experience bringing claims too much any time you're playing if you bring a lawsuit for damages you could get money from a lawsuit so i just don't see a limiting principle at all and i'm surprised that you think we even need to reach the more general question on the facts of this case unless i mean i don't know i still haven't heard why it's relevant to anything if it were just past history suppose he didn't say a word during the whole incident and your position is it still comes in as as something as his propensity to bring lawsuits against the city of chicago to get money but that's too what's the difference between propensity on the one hand not permitted by four for b and you know motos operandi or motive for you know specific intent or the various other things that and this evidence regarding the prior lawsuit shows that he has experience in these types of claimants and that it only theory and so so he likes to bring lawsuits to get money respectfully that's experience with the prior lawsuit shows for example that he knows how to retain a lawyer he knows with the litigation process and that's brings in every chicago police officers priors with litigation to they know how to beat the rap they you know they were sued twenty five times and they were found innocent some other number and we respectfully disagree because it's that type of evidence would not show it would not roll over the credibility so in the same kind of theory well our theories a bit different here we are trying to explain mr davies no you were acting in the way that he did during the time in question it's not an attack on its credibility by itself it's was entitled to explain to the jury what his motive for doing that would have been so for that reason the evidence had a permit permissible use under rule for four it did not time in the cook county jail at some point and he he brings to an inhumane conditions in the jail case that come in i believe that would be a certainly more similar type of lawsuit so that says that it adds to the probative value of that evidence but of course it would be at the discretion of the district court judge well in any event just to balance the probative value versus the risk of unfair prejudice and furthermore the risk of unfair prejudice here was not existant because the evidence only came in in the form of the officer's testimony about mr davies own words during the camp time in question well that that's different but i don't know that at a broader level we can say so confidently that this is harmless although there is some question about how well that was developed his briefs that the jury was being asked to believe something quite counter intuitive that a paraplegic would somehow vault him self out of his wheelchair with such force as to break his femur the biggest bone in the body and you know that's is going the jury to believe that some very strange behavior took place and the jury might be disinclined to believe that unless there was some reason to override normal human behavior and we would agree with in mistakenly then it almost certainly affect the verdict i don't feel confident saying almost certainly your honor it's hard to get inside the mind of the jury in that regard but with respect to the risk of unfair prejudice instruction beyond that to the extent that the jury did consider the outcome of the prior lawsuit the fact that it was apparently successful in no way suggests that mr davy said it's a propensity to commit fraud by allowing this testimony to be made was harmless because mr davies has never disputed did not try to keep out testimony that he perspectively threatened to sue and so he now complains that the testimony about the prior lawsuit anything seen claim minded but the perspective threat to sue did that anyway and so the jury would have reached the same conclusion regardless and if the court has any other situation that their sole justification for admitting this evidence is inherent every single lawsuit brought by any plaintiff that they're looking for money and that they are in some way biased because of that there's absolutely no justification for that the credibility in this case was at the core of this case you have that with the second issue as well you have an army of sworn police officers on one side and just can't davies on the other the difference between the prior lawsuit and his hits just threaten to sue in this case is this regardless of whether he screamed ten fifteen times i'm going to sue i'm going to sue that's inherent a lawsuit jury knows that because he said that the plaintiff's table when you take it into the second r inadmissible or it would be i mean would be admissible to get in or those cases where it's oh i'm sorry may just finish finish your thought are those cases where the huge modus operandi or some type of indication of fraud because that's the only way can be relevant and that's just