the honorable the judges of the united states court of appeals for the four circuit made please the court the district court in this contract case give a jury instruction that contradicts what ginia law mutual sent will leave defendant can solve approving its affirmative defense of unilateral misty and improperly shifted the plaintiff gasket the burden of proving an additional element as part of its that did not belong in its presentation namely the absence of consult before the stake given the reasonable probability that each of the instructional errors independently affected  any one of them alone warrants reversal additionally a new trial is required by consulting misconduct which obstructed gaskins case and prevented the admission of evidence fundamentally inconsistent with consoles claims from discovery solve its case on representations on arguments about its contracting practices that contradict its own contract that its counsel possessed but with help from castro during discovery that contract contradicts consoles theory of the case it's claimed mistake and it's mutual assent arguments consoles misconduct that's prevented the jury from learning the truth and makes it an equitable for to consult retain the benefit of the burdens turning first to the instructional  first and most straightforward error in the instructions is that the district court fail to instruct the jury that mutual sent must be evaluated exclusively based on the party's communications at the time of contract it can't be disputed that the virginia supreme court has error in the chore no it would not this is an independent problem and there were additional problems with the instruction like the injection of the mistake into the mutuals an increase that's a separate issue that would not have been resolved the consult consult argue in its closing that there was no mutual sent based on events that happened after the contract was signed at twenty seven to consult argued about bids that happened after the contract was signed consolingly had arguments that j twenty seventy six to seventy seven about invoices and gas was monthly billing practices and the invoice that was ultimately sent a year later and it also argued that j twenty sixty one about a letter written quote a year after the contract was allegedly entered into to argue that those  post contract evidence bears on mutuals and is inconsistent with the supreme court of virginia's dentist and just last year there one of the plaintiffs arguments was that he did not have access to a price list which was a material term in the agreement he asked the hospital for the price list after that he had signed the contract and the hospital refused and he argued to those virginia supreme court that that was a material term that was missing from the contract the virginia supreme court said that the hospitals refusal to provide the price list after the contract was signed quote was not relevant to the expressions of us that at the time of contract the other way in which consoles closing argument ran afoul of this rule is that console argued that gas goes internal meetings and internal communications also mutual you can see that a j twenty seventy five to seventy seven in the mormon case the virginia supreme court made clear that is error to evaluate mutual sent based on communications quote among the members of one party that's it six sixty one south the second for ten to eleven but that's exactly what this instruction allowed consulted do this rule about the universe of evidence that's relevant to mutual sent is critical to contractual cert once a party signed a contract they need to know and it was not purporting to opine on how a jury should be instructed on the law virginia and usual sense that issue of injecting a mistake into mutual assent is what the virginia supreme court said last year in venice that's another issue that was addressed in ven is wrong mutual sent is a formation doctrine the plaintiff bears the burden of proof by a preponderance of the evidence unilateral mistake is a defense the defendant must prove it by clear and convincing evidence that it must prove fraud in addition to proving the mistake in dennis the trial court had found that the the defendant patient was objective lee into us he was quote agitated tearful illogical less than normally coherent and fearful thought he was going to die he was lying on a gurney in a hospital he said he didn't read the contract he signed it because he understood that was the only way treatment and the virginia supreme court reversed and said that the in finding them which will sent the circuit court relied on factors that have no bearing on whether utterly ignores that footnote which makes that crystal clear yet that's exactly what happened here the jury instruction did not tell the jury anything about an affirmative defense of mistake and instead injected the issue of mistake into mutual assent and console admitted as much before this court's opinion its proposed jury instruction for mutual sent did not mention mistake did not mention knew or should have known it unilateral mistake defense have both of those statements after this court's opinion console was very transparent it told the district court that j for forty four footnote two we are not submitting a unilateral mistake instruction because of what the fourth circuit said in its opinion and it took the or should have known language about a mistake out of its defense of instruction put it into its mutual assent instruction and it dropped a mistake defense altogether and that is exactly what the virginia when you read the language you're complaining about which is a quote from our earlier opinion and the mutual assent instruction which is immediately before that it seems to me that the jury could only  instructed on the notion that there has to be mutual assent a meeting of the minds based on what a reasonable person would have been screwed from the objective evidence and i don't follow your characterizations point is you're not allowing the full instruction to be considered that read the paragraph of war and that paragraph together and i think you can only come to one real conclusion so you are what i would  the district court if you look in the middle of this instruction it says a meeting of the minds may be shown by direct evidence of intent on j five sixty three the district court defined for the jury direct evidence is the direct proof of the facts such as testimony of an eyewitness so this jury was told a meeting of the minds may be shown by eyewitness testimony of intent that is not consistent with an objective instruction and a lay jury is going to be confused by that says if a person's words or actions warrant reasonable  look at a word or conduct mean minds may be shown by direct evidence or intent or by indirect evidence of facts which imply intent and then the court says if parties words or actions warrant a reasonable person into believing that's an objective standard that part of it is objective but it conflicts with the prior sentence so in the recent but that's an independent issue the xcuse the foia all that was your main issue you opened up the argument with your are in the brief we did the but the first two issues the failure to instruct on the exclusivity evil that's an independent problem and injecting them the state defense into mutual sat is an independent problem this jury was basically told if you think console made a mistake assent is where you resolve that issue and that is wrong regina supreme court it said if you made a mistake so as they did not intent to enter into the contract what it says if if either party knew or should have known the other made a mistake with respect to the alleged agreement then there was no meeting of the minds and no contract that's exactly what happened and dennis mistake just like the rest is an affirmative defense that requires proof except you locked up first part is that if your client knew  mistake if and then tried to take advantage of it there was no meeting of minds and not is an accurate statement of mutual assent it's not your are not in virginia if you read the word to use the word case makes it very clear or argued that he and his wife work mistake doesn't make it fatal the question is your address in the mutual intent of the parties and if i know you made a mistake and i'm taking advantage of it i know you did not intend to enter into this contract it goes to whether i know your intended whether we have mutual intent and there was evidence in this case to suggest that you ask oh may i didn't know that this was a mistake as early as december two thousand and ten and here i would simply submit that's not the wall virginia you read the work case in the dennis case now in the time i've looked at like the turn of the misconduct issue and there consoles false claims about its purported mistake and its contracting practices fundamentally change the nature of this case consoles argument all along was the mistake was sending the addendum it said if you look at the title of the document it's an addendum to a contract purchase order drilling contracts are not contract purchase orders and are mistake sending the said denham out to a drilling contract consults hold the the district court that the terminology matters because it explains what's a mistake was that consolidate and how it happened it's a thirteen thirty one thirty two and that mistake fit right into consoles mutual sent arguments as it argued in the state was the predicate for the mutual sent argument but the no or contract purchase order shows that all of that was for drilling contracts can be contract purchased the terminology does not explain the mistake or how it happened sending the agendum was lives knew that no our clients never knew that it was exclusive contract we saw it in discovery and sol never turned it over and to the contrary consult repeatedly made false representations about its practices throughout the case it argued t jury drilling contracts must be bid out that no one contractor sort of was not bid out the done contract was not that that was a misleading argument to make and it's fundamentally changed the case there's no more contract purchase order had a twelve thirty one ninety order have that same validity and so this fundamentally changes the nature of mutual sent analysis these contracts are similar a reasonable person could think this was a real agreement more importantly this changes the nature of the mistake once cons mistake is failing to see to read the contract that it signed that's a fundamentally different mistake virginia law as in the sympathy for that kind of mistake and the jury is not going to be sympathetic to that kind of mistake it fundamentally changes what the case is about if had been honest from the beginning of this case about what that contract was that they had recognized what it was ethically they could not have made the arguments that they did and so your honour's we submit that the the misconduct it's all committed with respect to arguments to the jury the thirty six deposition the false statements in their in their arguments they said things like contract purchasers have nothing to do with drilling contracts drilling contracts were not handled through contract purchase orders they told the jury every other drilling contract we ever had was a contract that went out for competitive bid and all of those statements were false thank you  please the court michael finnie on behalf consolingly energy i'll be addressing the mutual assent jury instruction arguments miss monday monica monday will be arguing the issues surrounding the two thousand and twelve no on contract in the first appeal real agreement in the first appeal this court applied lucy quoting this very language and held that it gaskell knew or should have known that console made a mistake there was no mutual assent and thus no contract that holding was a correct statement of virginia law applied and it was applied to the circumstances of this case moreover when gaskell failed to seek rehearing on that legal standard it became law of this case which governed not only the proceedings remand but also the subsequent appeal there's no doubt that the mutual assent standard was squarely at issue in the first appeal hardy's argued about it extensively gatto urged the court that mutual assent should only be looked at very the only thing that could possibly be relevant is the event no four and the parties communications in june two thousand and eleven based on lucy can solve our view that the issue is whether a reasonable company in gas shoes at the time couldn't believe that console intended a real agreement to make that determination context obviously matter in its opinion the court explicitly agreed with consoles free meaning of the mutual sent in and then it went on to consider all of the evidence that had been produced in the first trial before gas go rest given that nixon avenues the court concluded that a recent jury should have the right to pass on the mutual sending but it did set the terms of what that standard would be and that is a holding of the first opinion judge what i believe you asked that question to be to decide whether judgment as a matter of law was proper or not the court first ha to ascertain the legal standard the parties argued about it vigorously the court had to make a made a ruling first this is the legal standard that applies to this case review the evidence and determined that judgment as to matter of law was improper but it was the correct statement of the law there is no reason to disturb the court's decision on this issue and the law of the case doctrine should be followed that is what the jury instructions did and there's no exception applies neal  will on case the four circuit said there are three exceptions that could disturb the law of the case one is a subsequent trial produces substantially different evidence i don't believe that's even at issue here second is whether a controlling authority have nothing to do with the mutual sent inquiry primarily it was that mr dennis who was there in the hospital to seek medical treatment believed he was having a heart attack and objectively believe that there was no emphasis on what the hospital the other contracting party would have understood or reasonably believed about his manifestations it was all focused on mr dense and whether he was objective we are reasonable in believing he had a heart attack moreover there is no dispute that in dennis mr dennis actually did intend to sign a contract he was in the hospital he thought he was dying he wanted to receive medical treatment he was he knew he was signing an agreement about medical treatment he intended to sign that agreement he just didn't care what was in the agreement because of his circumstances so in short venice is not a lucy case and is no inconsistent with lucy nor this court's decision the third exception would be if the prior decision was clearly correct statement of what i wanted to talk also just about the standard for review of jury instructions for a moment no the court is well familiar with it but it is a it is a heavy burden for gaskets jemison abuse of discretion standard trial courts have wide discretion in selecting a jury charge the if the question is are the instructions adequate construed as a whole in informing the jury about the controlling legal principles without misleading or confusing the jury prejudice the challenging party's case and that cannot be established here it was gasket who injected that legal standard into this case from the jury in opening statement before the first time the parties c if you find that console did make a mistake then gasket still wins unless you also find that guess who knew or should have known about the mistake it's on j thirteen sixty nine this was days before the court had distributed draft instructions these before a charging conference without argument was consistent with our prior decision and it absolutely is other words there is the notion of unilateral mistake but that's wasn't being invoked here the question is whether a party made a mistake and the other party knew it and tried to advantage or that them it goes to mutual assent yes and as you stated in your questions the word mistake is not some magic signal that now or in the affirmative defense doctrine and we're we can't be neutral accent mistaken have a lot of different forms in a lot of context in this case the fact of a mistake that the a denim form was sent in error and therefore as as your honor's question to reveal console fundamentally lacked an intent to enter into the contract that is squarely a mutual assent inquiry so the so the notion of a mistake being part of a mutual sent inquiry that is perfectly fine if the gassho cannot say they were prejudiced in its case because it volunteered to the jury this is the legal issue that will this is a legal issue that will define the inquiry at that point you know at that point go sought to exclude evidence of themselves mistake and evidence that guest of knew or should have known of the mistake said well it would have been futile to argue it again that was a motion in limine a it was not about the jury instructions by gas goes own argument you shouldn't ask his own argument they cannot presume that language in an opinion would find itself in a dream structure instead they made the tactical choice to tell the jury for trial purposes this is going to be the issue on the case and that choice has consequence on appeal in addition to the invited error doctrines it's also they're not going to they would never be able to show prejudice by the court instructing consistent with what good volunteer would also like to just point out to the court's attention that the jury instruction charges a whole instruction number nine which has not been objected to challenge on appeal the issues instruction it does define what the mistake was in this case which is a lack of intent it was the mistake was sending the the addendum to gas going air gas code new console contends that gascon knew or should have know the adenomas sent an error and not intended to it please the court good morning i will address the issues relating to the two thousand and twelve no horn contract the district court did not abuse its discretion in denying gas goes motion for new trial both the misconduct and it  sixty analysis that contract did not prevent casco from fully trying its case and under a for three analysis any slight relevance was substantially outweighed by the gains or of unfair prejudice  danger of confusing the issues therefore the district court did not abuse its discretion now as this court has previously held the central question in this case is whether gasp it was warranted in believing the console intended a real agreement or whether it should have known that and saul had made a mistake the very contract that we're talking about the two thousand and twelve no horn contract vasco didn't even know about it when they received the agenda and the reason is because they didn't even exist the no horn contract executed six months after the a done in question could not have borne on that issue now in addition to the temporal disconnect that we have with this document it's also simply out of the blue and doesn't relate to an existing contract like the no one horned it now on the excuse me but the thing that was scuse me similar i thought was that your position was the the most appropriate way which is that the issue that was relevant in this case as it related to consoles contracting practices which is what we're talking about the terminology and whether you have drilling contracts or c p s that related to what happened and eleven during the evergreen process and the relevancy of a document that was executed in issue six months later had minimal relevancy on that point the relevancy concerned what happened at that time and  and i think i understand your position but their position was that you had made a big your side to necessarily that your side and made a big distinction between these two types of contracts and here they're your valuate the relevancy of this document versus of course the unfair prejudice as well and and this document arrived as a surprise to consult on the third day of trial and the district court of value added that not to two hadn't seen it material issues in this case which is what gastro knew or should have known and whether we made a mistake it had only minimal relevance as a related to gasket in fact what it did was it actually bolstered our claim of mistake for the very reasons that i just emphasized because this was a we you know the denim was a take or pay contract it overlapped with some of the geographic areas that get gas go you know says it's covered by the agenda the start date was inconsistent they already you know gas already i'm sorry no horn already had an existing contract with with console and so why would console have entered into a exclusive contract with no horn when it was already guaranteeing payment to gas to go under the agenda so in truth when on balance this document actually document was received and in glasgow's possession several days before the trial they did not disclose this to us until the third day of trial there was unfair surprise on that the in the court even even after the trial so the court addressed it at trial and said this is an unfair surprise they did not know about it and the problem was that we really couldn't identify at that moment in the heat of the litigation what it was and what it meant  now even after the trial during the post trauma oceans the district court had an opportunity in a reflective moment to evaluate everything in context everything that happened at trial that you tally of the evidence and the circumstances and to determine you know whether there was in fact unfair surprise and what that documents relevance was to the entire case and i believe it is it j ten thirty nine they just report said that it's still even this document arrives you know midway through the second trial and the district court was uniquely positioned in this case to appreciate and understand the conduct of counsel counsel of the li and i understand the relevance of this document in the in the scheme of the entire case and based upon that the district court correctly found that there was no misconduct that warranted a new trial and that on balance as as the  when we weigh on balance the interests in finale and the interests in justice that the scales tipped in favor of banality on this record i think you're honest with respect to the misconduct we dispute a number of things first of all the claim that this contract is that no more contract purchases are somehow relevant because it was signed months later that ignores all the similarities and the practices that were the same with spector these contracts they were in consulted database at the same time they were signed by the same department a department that consulted the jury couldn't sign drilling contracts they had the same validity date on them they had a very similar a den them i'm sorry evergreen language in console represented to the district court that the that its practices had changed it did that let me ask you what you did i thought your iraq authority did not ask for that document but rather the earlier document so we is that is that correct but we had an interactive tory that asked about their basis for claiming casper knew or should have known or you referred to the relevant documents i think and there was a witness list had be prepared pretrial i mean but not a witness exhibit list but at bottom that court didn't think that was very relevant to the whole trial he he characterization of its mistake as sending the document was the predicate for its mutual assent args and this document goes directly to what was the nature of the mistake because consoles claim was that a mistake was sending a contract purchase order can't be for a drawing contract but this document shows that's fundamentally false except say that goes to the unilateral mistake issue and the real issue wasn't unilateral mistake the real issue was whether you knew asco no unilateral mistake and that's what the jury had to had to decide because otherwise the burden then goes as a heavy burden to show unilateral mistake as you know and  that the intermingling of those issues comes up again because it's a fundamental problem there isn't a problem it's it's a reality it seems to me that if you know they made a mistake and you take advantage of it there's the virginia supreme court has never said that i'm asking you is that which you understood the most we set and your honor you didn't say any case for that proposition do you think that's wrong if you read the ward as a matter of law i think that's where you're representing to us that that's wrong issue and that came after the normal talking about the one that was just quoted by your colleagues here they said you open the jury argument saying that this was a mistake that purportedly you knew about and took advantage of that's the issue in this case well what we said is that there is a second issue apart from mutual assent that the district court had already held was in this case whether gaskin knew or should have known that was a holding that the disagreement to be just as a common sense proposition i don't quite understand it may turn out that this is the whole case here are you suggesting that if some party knows the opposing party made a mistake in entering into a contract and took what it says about virginia law and virginia law has never made that pronouncement so yes we can sit here and say that as a principle matter that doesn't mean there should be mutual sent well written into law can't cover every factual circumstance that provides assent earlier you said that's a network well your honor what i'm what my organ is coming from the dennis case which makes very clear that principles of an affirmative defense do not belong in mutual a sense not an affirmative defense that's mutual assent we're not talking about the pro proving a unilateral mistake by a party we're talking about a situation where the one party knows of the other party's mistake and takes advantage of it and the one thing i'd say in response rather is that in this case where gas co signed  contract second i just want to know is that a correct proposition along yes and what when gas goes signs a contract second after confirming which contract you want to sign yes you can't possibly know that can saw has not read its own contract that's a critical part of the facts that often get overlooked here guess who confirmed what contract console want to read you presented all that to the jury yes but what i'm saying is gastro can't know there's been a mistake one console signed second and so i'm that's at the jury argument there are a lot of facts that pointed to your knowledge of mistakes and how you handle your range with the attorney and who knew about it and the e mails and you build yeah these types of things there's a lot of evidence that the jury had to consider and as we said before this was a fact or the jury did resolve and the jury did resolve against you now you're not arguing that there was not substantial evidence to support the jury verdict you're arguing that as a matter of law the district court misstated the law when it stated the proposition we've been debating here and a lot of the evidence that you are just mentioned runs afoul of the first point i made which is that you look exclusively at the parties communications with each other at the time a contract that's under spewed if you have disputed here today and if you can find the evidence to that appropriate universe which regina has repeatedly said over and over that all those things about castro's billing practices and what it talked to its attorney an internal meetings with account those are not part of the mutual scenting you're not arguing you haven't argued in your briefing you're not arguing now are you that the jury didn't have the sufficient facts to make its finding we're arguing that the jury was not told the correct universe of evidence two about each will said they're not talking about universal evidence they were told the lucy standard it was quoted verbatim from lucy and our prior opinion which basically said if one party knows the other party is making a mistake and takes advantage of it then that party can assume understand that there's mutual assent and what i'm saying is there's an independent problem which was the failure to tell the jury in the instruction that you can only look at the parties communications at the time of contract and it's that is rigid in ways that more not having been debating it in our previous absolutely and it's the first argument i made this morning that all this evidence is from the beginning is ongoing there's a lot of context i mean you knew you lost your contract in two thousand ten you knew that the next contracts were not going to have the standby arrangement you knew that no horn had the contract and was operating and then you have th consulate with the attorney and the e mails and the exchanges and your honor heard it all and you're out of the hospital in the dentist case knew that the man was having a heart attack on a gurney and thought he was going to die that doesn't matter you look at what did they manifest about the agreement at the time of contracting our position your honor has been console says this is a mistake case and it should have to prove its mistake defense thank you all right will come down a gre councilman proceed on to the 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