knew of what would be an overbroad application of the dead man zach is a distinctive my distinctly minority view wouldn't you say just look at paragraph three four and five with your affidavit paragraph five i observed if a traffic controls like facing eastbound traffic on fifty fifth street was of view so clearly could be refuted number one and number two given this occurrence happened on march ninth of the year yes so isn't there a question about what the trees what kind of vision people would gas terminal which are things that we can pretty much assume that the deceit and wouldn't have seen but when you're talking about the accident itself within the realm of that you perhaps so we know that they're in the scene we're all at at the point of collision right and we know that they're in the same presence at some point before the collision don't know exactly how long it is right we know that each street has access to the street light from each angle for and if they could see if it happened to be looking at it if it time the color of the street light facing them we know that if the expert yes we went to the same and at this point he played the finest i was a desirable from this point no you either intentionally or unintentionally you didn't answer my question ok if your premise is that you're like your clients like was green and presumably that other bands like with the seeds light was red how is that something occurring in the so they bring forth no evidence whatsoever ben is the coalition and no one can be proved to be a fall because you're only focus is on the impact between the two cars what causes someone to be at fault is the actions that occur beforehand that occasion the coalition correct right so if you if if you're trying to convince us that we're supposed to be able to asking the question could open the door to this type of waiver but but here you have a situation where all they've done is  they've filed an affirmative defense they haven't introduced any evidence at all they haven't sought to produce any evidence at all in support of that and in stead of doing anything else in now after your client die your affirmative defenses made factual assertions correct that's correct  various affirmative defenses i believe that they were based upon conversations with the seat son who had a second head knowledge of yes was there ever an examination of how we could possibly prove what you were serving  s well no at that time we didn't want to preclude that argument if other witnesses came to light through the stock so it was an aspirational pleading rather than a factual believing it was  fact yes there are times when it's just the prudent thing to say that we made a mistake like this  one of those times  i don't think so i think that's the affirmative defenses were based on an understanding of how the accident occurred at the time they were filed that it wasn't certain or it wasn't clear  those allegations could be proved that trial i agree but i don't know that that means that filing them with an understanding that they were true was a mistake you  could so testify at that time that's correct right why we're back with all the whole we that you had the ability to then as you just said prove these things at trial otherwise you wouldn't have stated them as affirmative facts why does that not reliable is affirmative defense which means we say we have a reasonable expectation of being able to provide this evidence at trial you're saying next to the other side you're saying next to the court and if the same time saying that those assertions of fact which you made in your affirmative defense dealing with the self same issues having to do with matters occurring in the presence of your deceased client somehow doesn't waive the the act no i don't believe that we as yet i think two separate issues different defenses were filed based upon an understanding of how the accident occurred beds act is a separate issue what were the circumstances in which waiver what was the basis of weight isn't it isn't it that the people who would otherwise be protected say no we want to discuss these things that happened in the presence of our class and isn't the assertion that you are going to prove for example who was speeding if something that would have happened in the presence of your deceased yes they all would piece the plaintiff aside it all the cases that i'm aware of however only show a waiver of the dead man's act when the deceased for the defendant to see to defend it offers evidence in support of their case in the groping case that but isn't it clear that this hasn't been addressed course by any court in this jurisdiction before i think that's probably true and so we really to the point where we're trying to interpret the act and this is the interpretation that really is consistent throughout that you can't have it both ways you can't both present testimony or evidence of things that happened in the presence of the deceased and then claim that the that the other side ca yes i would say that by filing different defense together presented evidence we've presented a possible defense based upon our understanding at the time those were filed which is the initial handling of the suit so if you were because of the trees and because of the medium between the two vehicles that are used because that a scene presumably could not see the plainest vehicle that he's not in the presence and therefore should be barred pursuant to the that the actions of him drives the but clearly the scene could see the color of the light and could see the intersection that he was approaching entering immediately prior to the occurrence just because he couldn't see the plainest car has nothing to do with his ability to observe it refute testimony offered by plaintiff regarding the light at the intersection so may take a few weeks before he gets a chance to look at thank you for all your bible sites thank you very much