i intend to proceed this way to discuss hair and giving instructions number eight and number fifteen it contains the overriding justification defense and move on to the error that we claim  right and i agree on and i resent affirmative defense i'm the one who advocated that position in the jurisdiction conference however it's not an instruction that should be given in every case and it's up to the court t they said no other case has the employer offered an interesting counterbalance the public policy the playing fast forward that alone not to tell you that all of those cases decided  your question i think just we found because they took the test and they said you know this is a summary judgment but we're going to reorder the test one little bit and we're going to go with affirmative defense before causation well you know i think that's what thomson percent media says but that's kind of a loose language talking about the burden of production and not the burden of persuasion on and i don't think there a that the point came up and this is important as the defense prevailed on the section one hundred eighty three claim free speech and that in necessarily involve one of two findings by  the category of for an overriding just case and then it should have gone to the jury to ask you for help was actually the motive in the terminations well we've already got that we have the result from the jury as law that all of these things that the city believed that plaintiff was doing wrong losing track of public funds losing track of people's real money risking people's arrest for tickets that had already paid if not getting them in in those elements are incorrectly stated there is no doubt that these four elements in the state of washington and there's not a single instruction by the plaintiff that sets out those four elements for alan clarity jeopardy causation and lack of overriding justification that's in the loose case and it's in every case it's been decided since then and there's not a single instruction from the pla that lays those out and i believe it's a fundamental of jury instructions cases it's not enough to simply attack the instruction of the other side offered if your instruction is it's also incorrect you don't get any instruction which we started drafting three weeks prior to the trial the defense and this is that also have a need for the defense proposed jury instruction number twenty defendant has to step forward with proof of an overriding justification for the termination and linker and what's important about this case is how parallel is to say this this was a employee of the washington none of us instruction was sufficient because it was sufficient to allow the jury to evaluate the reasonable list of the ws v a s justification for its decision regarding this important now what is this  participating her attitude had a negative effect on morale within the department now that was sufficient to allow the court to let the defense present the firm in defense of  different language and we wanted to make sure we covered the burden shifting all aspects of well my life in that it's still because lewis said we haven't changed a lot and there's well my saying the defense were not poured into a single form of partly because of that language lou is that we haven't changed anything and we were trying to incorporate what thompson said about the employer can step forward with a reason that contradicts with the justification in washington if the the fence comes forward with an overriding reason it doesn't change whether the fact motive reaches  justification for the termination with some other legitimate justification other than the at will employment that tipped the scales back in the favor of the employer and that's why in the blink of case the effect on and so quick i want to point out hubbard which we talk about extensively here is the elements in hubbard that are the overriding powerful justification the court says  there with the expectation that we have to submit all of this to the jury and here's what's important what i'm saying about the plaintiff never submitted a different proposal and to now step forward and you read the transcript in what i think there are cases showing very not every justification is legitimate not every offer justification is a legitimate point an employer concern and those are the cases that the the issue that was argued before the court