proceed thank you and good morning your honor smallest a murky petro sun behalf of the defendant apollo and steven rogers as justice hartmann wrote in his dissent in kruger v lewis the problem here is not the application of privilege but rather deficient pleadings which precludes consideration of all related issues plaintiff here quite simply did not plead defamation per se with the specificity and  particularity that has long been required in this state and the appellate court's opinion to the contrary is not a proper statement of the law on pleading defamation per se in illinois it's well established here that a claim for defamation per se needs to be played with specificity and particularity and that the court in making that to suss mit is to determine three criteria whether the statement has a precise and readily understood meaning whether the statement is verifiable and finally whether the statements literary or social context signals factual content here we submit that plaintiff's first amended complaint fails on all three point first the statements here are the alleged statements do not have a precise and readily understood meaning the allegations of the complaint as we discussed at length in our brief are played on information and belief only with such phrases as on or about i note initially the plaintiff nowhere even states in his brief how he found out about the alleged statements in the first place and presumably this is something that must be uniquely within his knowledge he does allege in the complaint that he was not present at c h l board meetings so i guess somebody who was there are at one or both meetings said something to the plaintiff about what defendant may have said but again plaintiff has no allegations in the complaint as to who told him about the alleged statements when did that person say something to him right to that person or persons say plaintive does not identify the specific words allegedly  aren't or the specific types of abuse or misconduct and indeed the appellate court specifically noted that the statements were not precise in their meaning and that there could be varying levels of abuse or misconduct although the apollo court then ignored the import to that of its own observation again and you know the statements are made on information and belief excuse me the allegations are made on information and belief and they really are summaries of what the pla knowledge that he wasn't there so the question i think comes how much can reasonably a court require and specificity if he wasn't there and is then later you referred to who told presumably the plane to the plane if you somehow found out that defendant said something about him but again he his complaint does not say who told him that defendant said this when what did that person repeat to point why did that person say to plaintiff about when defending made a statement or what defendant said so yes he wasn't there but he must know how he found out about these things in the first place and that's a glaring deficiency from his complaint and i would point out this is his first amended complaint when judge calander in the circuit court dismissed the first amended complaint he did so without prejudice he invited the plaintiff to repleat and to be more specific plaintiff chose not to do that demonstrating that he's got nothing more specific to say the statements are not realistically subpoena of all the c h l all board members and the c h l board itself seeking information twenty eight different kinds of documents relating back to i think january of two thousand he did issue those judge those subpoenas a gun without prejudice primarily because plaintiffs counsel acknowledged at the hearing on the motion to wreak i believe it was the motion to reconsider the order question the subpoenas that he sought this discovery to deter because he believes that other defamatory statements had been made about plaintiffs by the other board members and so he wanted this discovery essentially to see if there were any other causes of action that he might be able to discovery request at that time had been questioned by the trial court again on the grounds that plaintiff's counsel said i'm looking for more statements made by more people that we made were just rather silly of these looking for other plaintiff's counsel and the transcripts are pretty clear on this and we have them cited in our brief but i can't give you the page numbers forbade him he's very clear that he never argued i if i if you give me the discovery charge i can get more information about what to fundi out roger said if you give me the discovery i can better respond to this motion to dismiss he says nothing of the kind he simply says we think all these other people maybe said bad things about plaintiff too and i want to see if i can sue them as well and that's and judge was pretty firm and said you were not going to do that here and if you think you need something with respect to the defendant then that's fine you come back and we'll go from there but we're not going to use this as a fishing expedition to look for additional  him as i mentioned the statements here are not realistically verifiable plaintiff was a volunteer in the little league for four seasons the two thousand through two thousand and four seasons and he has urged his only argument for verifiability is that one could speak with everyone with whom he interacted in the little league over a period of four years that elapsed five years ago and thereby gather information as to whether these statements of abuse alleged abuse or misconduct could be verified this is precisely the endless inquiry that the first district in rose rejected as fruitless given the vague nature of the allegations in the complaint and i think the rose analysis is particularly persuasive on this point certainly under plaintiff's theory i suppose one would ask every player parents  coach who was involved in the little league for a period of four years about the plaintiffs to mean i'm not really sure what you would ask whether a plaintiff abused them or committed some kinds of misconduct people could have very different ideas of what those things would mean again that harkens back to the overall basis and lack of specificity that we have here finally these statements contacts does not signal factual content here we have to look at the complaint as a whole and here the appellate court really focused on the allegations with respect to these statements being made on information and belief at little league board meetings the court did not look at the remaining allegations of the complaint nor did it properly assess the exhibits that were attached to the complaint and incorporated into the pleading although the appellate court's talks about the exhibits in its factual description it when you get to the legal analysis they focus only on two paragraphs and don't look at anything else when you look at the other allegations of the complaint when you look at the whole complaint what you see i think is a picture of a a somewhat contentious relationship between the plaintiff and the defending and before the alleged statements were even made there are allegations with respect to  posting a score are the little league websites where defending an apparently accuse the plaintiff of violating hitchen protocols and call them a cheater and you wouldn't post the score and plaintiff was you know upset about that  in the e mail those are allegations of the complaint which interestingly are not played on information and belief unlike the statements regarding this the defeat amatory statements sorry the allegation is regarding the def statements and when you look at the e mails and the quote the correspondence that went back and forth again you don't signal these things don't signal a factual contacts they don't square the e mail correspondence does not square with a man such as to funding and saying you know i don't think plaintiff should be a coach because he abuses kids and player in umpires and so on and he commits misconduct when you look at the e mails you have  look we've decided that we don't want you to be a coach but we want to work with you we'll put your child on the team of your choice we encourage you to work with your son's coach to serve as an informal assistant to help  practices to help it games all these things all these activities that the defendant was encouraging after the formal coaching decision was made would certainly have brought plaintiff into contact with little league players coaches and on pyres and so it doesn't make sense that the funding was saying in writing you know you should help us doing by doing these things by serving as an informal codes etc et and then turn around and say well no this guy you know shouldn't be a coach because they dissolve these terrible things but you don't make sense guess who's the intended audience statements that we should be looking at the statements to which we are the only intended audience i believe of the board meeting statements would actually be other board members the record is not entirely clear as to you know the protocol that the l uses and in picking its coaches but it is clear that it's the board members who set and review these applications to service coaches and they are the ones who make the decision so any statements made w complaint the first e mail that defendant sent to a point of saying you know we decided not to accept your application to coach that was sent only from descending into point of supply if would have been the only it was the only intended audience for that particular statement plaintiff thing comes back with a letter which he copies he writes a letter to defend the copies the c h l board people with in the little league hierarchy in indianapolis and some others  kind of invokes all these other folks and then defendants remaining email correspondence he did copy again though only other c h l board members never anybody outside of the little league organiz would you know if i can tell you just personally i don't know i would presume that they're open only to board meetings but that is that raises an interesting point because in his complaint or these statements were made on information and belief at a board meeting and again on information and belief the board hard and then he says other identified residents of clarendon halls  i guess he doesn't say in his complaint you know who are these people even by description why would other residents of clarendon hold out a board meeting of the little league where the little league was selecting coaches  position of village trustee of clarendon hells he says in the complaint that his two running mates told him they had been told by a village a different village trustee and a resident of clearing in hell's the plane it had been kicked out of the little league because of his temper and he says also and this is a quote defendant was the source of those statements now again we there is so much there that we don't know first of all we don't really know again played it doesn't say these are the exact words that my running mate told me now one would think he would at least know precisely what his running mates told him about this incident but it doesn't that appears nowhere in the complaint we don't know defending on himself make these stupid statements to the resident and the trustee did they hear it from somebody else did that who that person hear it from i mean there's just there's so many winks in that chain and to simply say well you know my running mates told me this and defend it was the source without connecting it out even by not quoting this is the precise statement my running mate told abuse or misconduct with children because of the image because of the nature yes that is our position these e mails set forth very clearly that the fund dance was repeatedly inviting and encouraging the plaintiff to participate in the little league actively although not in the capacity that plaintiff himself specifically desired but that he was encouraging active participation and he was encouraging the plaintiff to be involved in his son's team to be involved with his son's teammates his son's coach the umpires that cetera that's that's exactly right that the two just do not match at all five allegations there's no attachments to the complaint regarding the feb zero six allegations which are similarly vague but i don't recall they all fall within a matter of days uses children's a few weeks i believe the first e mail is defendant telling plaintiff that his application is not accepted i believe that was march fourth of zero five and the rest of the correspondence is within the seven to ten day range so it was all very  get if you look at the timeline apparently if you believe the allegations plaintiff is asserting that on march third or fourth defendant said plaintiff abuse this kids and does these terrible things and then in the subsequent seven to ten days saying in writing you know we want to work with you we want to help you we want you to help out with your son's team we want you to do all these things and so on and so back to a justice thomas said the two simply simply don't square thank you pattern of misconduct with children and that he has players coaches and umpires in the c h l and this is all statements of objective verifiable fact you can go there just as you would in any case take discovery take written discovery see if there was any kind of complaints made against there was no kind of disciplinary action there's no kind of a complaints about any kind kinds of actions like this that these are all things that can be discovered and we believe if we're if we're allowed to proceed will be able to disprove in this case and i guess what i'm getting at is that this  court was right in that there cannot be any reasonable innocent construction of this you know as a case law says a court is not required to bend over backwards to make any kind of innocence defined in the second struction and allegations in this day and age of misconduct with children and abuse of children that just are not capable of any kind of innocent construction i went on the internet yesterday as i was preparing and just did a google search on those specific phrases and i went through pages and pages of hyperlink various sites none of which gave any kind of innocent construction to that language well again and i'm not debating then if we had a national statement it seems and that's why i asked some questions about standing on the first amendment complaining and getting some discovery because it does appear that the allegations are not so much with the time it actually said as what defendants listeners most of her seat would you agree w is this is a case where it was the statements were verbal they weren't written they were made outside of the defendant the plaintiff's presence so that's why that played out information and belief but we believe that they're played with specificity correct that the discovery related to them was an effort to find more defendants rather than to nail down the state with all due respect to opposing counsel that's not correct in the in the in the trial court we filed a motion to consider and in that motion we said as a lawyer as want to do that we feel that we already stated a claim but that this discovery will allow us to strengthen the claim against mr rogers that we did it was not just as they try and presented a fishing expedition for other listeners included after hearing the state without any specifics of what those statements were and i'm not saying there isn't difficulty in getting the actual state  words and i respectfully suggest that we have played it with specificity because the purpose of the specificity is so that the defendant can answer the complaint and assert any affirmative defenses and that's exactly what's happened here  was able to analyze the situation there was enough specificity to see there whether the incident constructional prize or not so we believe that there is specific and that requiring anything more of a oral i know it is like this outside of your  jones both of those are highly regulated profession this is a high but high ethical standards it's a statute that involves the dentistry profession there is obviously ethical canons for attorneys just as there are for judges defamation action is that musicality case that was the northern district of illinois case but applied illinois all and said that there's no requirement for you to be actually paid for something to be one of your professions and the plaintiff in this case it was not just a one off information police like the closing counsel said because they're obviously written things in our possession so we don't have to allege those on information and belief like we do with these horrible statements but but more importantly they don't contradict because the standard is your way for a motion like ither way does not refute the fact that he made these statements to the board members so in that sense they're not relevant at all for that and these are things that were made after the fact after mr green raised an issue with what happened strongly into the analysis as it is the three factors which that there's still a technology case set for set forth that have to be considered the third one is the literary social context of the statements and this is not a situation where it was set forth in an advertisement between competitors was was just loose and figurative language this was done in a board and meeting where the purpose of the board meeting was to determine who would be allowed to coach the next year so these at the very least statements are intended to convey that he has factual background factual support for this and they do and they're intended for the other board members to rely on them which they did in denying i'm sticking the right to manage the following here so i think the fact that these are at this board meeting it's actually very highly relevant is it going to be going this is going back a little bit but you know it's an instruction analysis were to give the allegedly defamatory words or natural and obvious meaning and interpret them as they appeared to have been used and these are the actual words and the step forward in our complaint they have to be taken as true for purposes of this motion so the analysis name can and should be made about what what the reason the interpretation of somebody who's engaged in a long pattern of misconduct with reasonable when an innocent construction of that and it's not just the word was misconduct it's a long pattern of misconduct which which denotes some sort of serial behavior of wrongful activities with children so there is this is an analysis  would just like to briefly address some of the points opposing counsel made first of all our primary argument throughout this litigation has always been that the complaint is not played with the rock was that specificity the alternative we did plead in the alternative that if a court were to find that this was adequately specific then the innocent construction or first amendment defenses would apply but by pleading alternative affirmative defenses we certainly has in no way conceded that this complaint is adequate and specific under the laws of clearing which are applicable to death of nation per se because it is quite simply not with respect to the statement about volunteer coaching coun court made no finding as to his allegation that the statements imputed his ability to serve as a coach in fact the appellate court found that those statements were subject to an innocent construction there were three delegates sions abuse misconduct and  i guess a bad coach and the appellate court says turning to the third alleged statement that the plaintiff was unfit to be assigned as a coach we hold that it is not to see amatory per se because it does not prejudice the impute a lack of ability in his profession it is capable of an innocent construction and the court goes on to say that it's capable of an innocent construction because it could mean nothing more than that the plaintiff did not fit in with the board members of innocent construction as we discussed in our brief and cited the harrison opinion from the first district that's simply not the water of the state the innocent construction defense is viable when statements involve children and again you know abuse can mean it could mean something like yelling it could mean something like shouting it could mean getting it could mean anything and in fact i think that illustrative of that point was the article which we  from the chicago sun times regarding the chicago public schools new rule prohibiting displays of temper among coaches and as we discussed in our reply brief all of the coaches who were interviewed said you know i don't know  display of temper is if i yalit a kid to you know shoot a basket is that a display of temper my going to get in trouble you know standing on the side it's easy to look at a coach who's very volatile and say oh that's an abusive person but it's not always necessarily so and that is why we need specificity in pleading these these cases and i would stress defamation per se damages are presume to point it doesn't have to prove them and that's an enormous done sherry gift to the plaintiff and this court to made very clear into it that that gift comes at a price and the price is specificity bare minimum plaintiff has got to be able to prove how he found out about these things in the first place he's had two shots he still hasn't done that his counsel stood here today and was not able to say how plaintiff found out about this this belief that he has in the first place and  that's that's a huge gap and you know norm out of discovery can cure that particular gap either knows why he believes this or he doesn't know and if he if he has specifics and that if should has been in the complaint twice should have been in the complaint with respect to the discovery issue it's at pages four thirteen and for fourteen of the record this is the hearing on plaintiff's motion to reconsider the discovery order which preceded the court's granted the motion to dismiss and i can just read a brief quote plaintiff's counsel says to the judge we believe in explaining why he wants the discovery and why he's urging reconsideration  we believe that there are other publications that were made by other third parties that will be revealed in the records we subpoenaed the court we will go in an orderly course in this case i am not concerned about other defendants if you have information other defendants file additional suits i am not interested in you using this case while i have said what i intend to say i am not going to bake a the protected order at this time so again it's clear that he he was looking  in large part for material with which to file additional suits against additional board members and judge cooley and are rightly said that that's not the purpose of discovery with respect to the innocent construction rule again i would just stress what this court held as recently as two it you know when you have multiple possible interpretations if there is any reasonable construction that is the one that sticks and this goes back to the fact that damages are presumed he doesn't have to plead and so we must know exactly what was said or something very close to it and you know even in cases where we do know the actual words such as rose where it was all that all the allegations of the family story statements were in an e mail we knew who said them who they were said to and when they were said the court still said you know what that is not that's not specific enough to be and to proceed along that path he needs to provide specifics which he hasn't done and the appellate court simply misstated the law in the state its opinion cannot stand thank you