trial court in the first instance it's our view that the court erred in allowing the commission to introduce into evidence testimony natural treasures corporation which my client had then the had there had been no declaration of any intent to call an expert witness at the trial and mr silver did not have any expert the there was not sufficient funds available in the corporation for that money when unaccounted for it went to valid disbursements and operations of the company throughout that time period mr savva never actually received those funds but the trial judge made the statement that well you can cross examine this witness you have counsel as to what items are there and that is true but the ability to cross examine an expert is one thing that's not the same as having your own expert to counter that expert and that's i w make the reason why it's required that there be noticed if an expert is going to be called as a witness at trial did you ask for continuous we did ask for a continuance and the judge gave us i think one day to look over the bit which had been prepared and submitted to was only a couple days before trial which was the totals that mr merrill testified went to silver or disbursed to silver but that did not provide us ample time for us all we had no way to get an expert of our own to say that the totals didn't go to sell or that there was no you know nothing in the corporate records or bank accounts that have been reviewed to show he ever actually received that money and most is maybe monies that were not properly accounted for may not have been properly seated where they should have been perhaps did try to put it just over and two to go through the items but it was very difficult for him and he did not have we were not prepared to counter that kind of evidence to show that he didn't get this money or that show that all these monies could actually be explained by specific receipts and so forth and so it was kind of downhill from there we were thrown totally on the defensive and and everything that went forward after that we feel was very much a prejudicial to mr silver concern about what the line between  page that shows who endorse the check there might only been a name typed on the check we don't know who actually got the money when they went to the bank if it was if it was paid cash withdrawal or cash just burst meant there was a lot of testimony at the trial that these people were the process of building out an empty warehouse structure into a facility manufacturing facility and they paid for a lot of items deliberately in cash because they were very cash short and you want to get the lowest prices and that's how you do it and so it was there were a lot of petty cash issues in the case  rely on some hearsay matters and trash receipts and so forth and i've looked at that are in my opinion none of this money actually went to mr silver it all went for valid expenses of the company had we had a witness like that the trial i believe would have had quite a bit different implications than silver but the problem we had is that we had not anticipated and experts that he's found so that forced us then to try to reduce an explanation on his part to show that he didn't get them but we didn't have a lot of the receipts and so forth we were not in any position to to probably authenticate them you know if you got us in jail lumber company you know and so on how do you get that into evidence and so we wanted to live with evidentiary problems and mr silver the judge would not allow mr silver to refresh his recollection from documents that he from there and we were after after you cross examine mr mero any time after that or before you started presenting your client's case that you asked the district court for an additional continuance to find retain and prepare an expert witness i don't i can't represent that we did do that i know there was a lot quite a great deal of discussion and argument back and forth and repeated objections and  substance of the testimony i was unprepared for but now i would look like an additional continuance before we start the defense case to find routine and prepare an expert witness and i think that you could not do that i don't believe i actually stated that but i do other and that's being that mr silver received these funds and that's what she was testifying to and the answer is no i am not if you proceed what they do you know that was for forty seven in ta the twenty five question and you're not expressing any opinion on that one way or the other the answer on the next page is no i am not if you proceed to page four the question on line one is in the case of checks to cash did you ever determine the most cases who received that cash you can answer is no i did not in down it line in my eight wasn't important to the f t c to know who got that forty two thousand they're talking about specific check whose account it went into answer the purpose of the schedule is just to schedule out the receipts and disbursements into the count if you proceed down to line twenty four mr silver a well in advance the day prior to trial yet the exhibits themselves they had been produced in a different format previously and the substance as i said the substance of the information was given to mr port during discovery everybody regarding the summary exhibits when more they prepared that was rushed into the trial i'm sorry when we're exhibits eighty four and three eighty nine prepared in relation to the detroit i believe that they were prepared shortly before trial there have been versions of this that mr merrill was working on during the investigation and then during the preparation for a trial but i believe the final version was done argument i would say that i think there's a confusion here between and this arise i think from a reading of the the heart case doesn't mean that you're testifying as an expert if you are testifying regarding laying the foundation for summary exhibit evidence of those assumptions itself in heart the problem there was both if he was that the record evidence there was no record evidence except for the expert testimony in that case it was the expert testimony  of the summary witness here however there were no assumptions made by mr romero as i read to you she was meaning that she wasn't testifying regarding the ultimate conclusions she was just laying a foundation for the mathematics done to establish this this exhibit i'm not saying that he actually received this money but it looks like you paid for with his own american express yeah i mean we're talking about producing it earlier but on the other hand i can tell you after doing this kind of thing for twenty five years that you learn that you don't have surprises and civil litigation you get the stuff you know that's how you avoid that problem maybe when you go back and talk to the people who try these cases you could tell them that i wouldn't be spending the time on this if you disclosed in advance well it would have been a nonissue i will certainly talked in forcefully and ask them to  got it i don't believe so i think that would not have been admissible because i don't believe that's an expert witness is per view i don't believe that's a fact witness i believe mr silver was the perfect person to stand there and say i didn't get this thirty nine it showed four hundred eighty seven thousand dollars in transactions that we flagged the the court only only found him responsible for two hundred thousand of those for discordant if you look at exhibit eighty four which is the american express accounts he's traced every penny of these amounts and he will demonstrate to the court that none of this money ever went to mr silver and you telling me the district court would say that's irrelevant i would say that the experts have no basis for a binding as such there's no day continues to go over this would be prepared and he turned it down he absolutely did he started the cross examination that dan your honor and so i i have trouble seeing that give over the actual summary for trial cases that we've tried in our brief and i don't i didn't seem to support come up with anything contrary that all you need to know to have is that the underlying documents themselves i could have sworn in your opening argument you told the tale that you got a day's continuance and used it did i miss something you know that's that's my recall of the trial is that we i did start cross examine her on some issues romero on some issues and but the recall the court gave us more time because i know i think i recall going back with my client and trying to make sense out of what they had given us so i did cross examine generally issues then but i asked for more time and the judge said i'll give you more time to prepare to cross examine her and he did do that was that there was definitely some kind of a continuance of the least like over a weekend or another day and you were able to get on the record actual trial testimony page for twenty three i'm directing it said would you please describe what this document is this schedule summarizes disbursements that went through michael stiller from amazon national correct but not everything now on the question of when did we get this information the complaint alleged number of things in the press and the complaint was that silver got some monies even though he said he wasn't taking any salary the commission did give us a list of certain cash items that they regarded as matters initially you know in response to our request for discovery or interactive tori's finally and we did get that sometime just before the close us governor right around the close of discovery but that was a different exhibit than the one romeo testify from completely different if the when she testified was all scrambled was in a completely different order it did not track we could not make sense out of that we from and then went into evidence that said this christmas the silver was given to us at most the friday before the trial started monday but it may have been the friday before we did not get it months in advance in discovery they had disclosed certain cache items that they regarded an issue but bear in mind it's one thing to say there's cashier that's not properly accounted for and you're responsible for your head of the company and they're going to say that you received these money and when you talk about the ability to cross examine expert as i said before it's one thing to cross examine her and challenge here and try to knock out points and i'm not a few out but that's not the same as having your own expert to come back and give your side of the story takes an expert to be an expert any clout will tell you that you can cross examine all you want to but you're not going to be a professional c p a an auditor for the  part of the basis of their complaint but they were in different order they were not set up the same and there's substantial discrepancies between that and this exhibit so we had some advance notice that they were challenging certain cash transactions we did not have romero we did i mean your own it would have been great to have we had a great deal but we had very little money to fight this is most of the cases mostly done nothing we could hardly afford to get depo transcripts and they didn't notice an expert so we were thankful that they didn't so we didn't know what had they noticed an expert that was we recall i have the general questions i want to do with restroom air and i thought we might as well get those done since we were there we asked for more time to study the exhibit and the judge did give us the day i think it was the day to figure out and try to