the main case today and in addressing that case we submit your honour's that mr daly is entitle to a new trial for all of the reasons that we sidled decided and discussed in our briefs which were many i would like to focus our attention this morning on three of those rounds first that the trial judge abused his discretion by imposing and enforcing an arbitrary and very rigid time limit on each side solely because he wanted to go on a personal vacation and without any regard to ensuring a fair trial secondly the trial judge refused at the beginning of the trial in response to a motion in limine he refused to allow admiral michael kramer to testify on behalf of mr daly admiral kramer was the dailies commanding officer at the time of the laser attack and third the trial judge at the conclusion of the thing at the time limit the city enforced on our case he refused to allow this record may impose reasonable time limits on each side during the trial to ensure the efficiency of the trial and to prevent undue delay or waste of time or needless presentation of cumulative evidence th court has recognized that rigid time limits on trials are disapproved and this court has stated on occasions that the courts must not and here rigidly to time limits and sacrificing the interest of justice here it is it is undisputed that the trial judge imposed and here to this this favored rigid time limit for the sole purpose of his going on a personal vacation which would have gone beyond our time for reasons for  one in which was the principal one of us i don't know if it was the one he first raised when when be when we when we first raised the issue before lunch he said where when we stated that he was a rebuttal witness the judges first statement was when is he going to be here and when when we found out that it was going to be three o'clock in the afternoon it was lunch was at noon he said we're not waiting on him after lunch after he had an hour or so to figure out what he wanted to do briefs we curtail the cross examination of defense witnesses we we thought we actually before we went cross examination on one on one of their witnesses we had to cut back on on the direct examination of several of patient really have nothing to do with it that's not what he said on the record your honor he stated here's what i'm worried about i want to make sure that we get the case argued in for the jury next week because i leave the country on saturday morning  stated in in chambers was that he was leaving the country he was going on a personal vacation we had no idea of what the evidence was going to be how long it was going to take that's not a fear assessment at that point in time of how long is going to take the trial before you engage in any discovery before trial he did what every judge does you have a i mean not just four days of testimony and cross examination we get charged with with the time that it took dislike the jury will get charged with with all sorts of things that that he wanted to charge us with and he also which we thought on the on the next business day after after we discovered that we had omitted his name from the witness the last we took we stated that he would testify as to his personal knowledge of the following facts not opinions but fact the fact that russian intelligence agencies used fast go on vessels and the captain manifesto own vessel for intelligence gathering purposes against the united states and in and among other things monitoring the movements of our nuclear powered submarines that is a fact he would also testify as to his personal knowledge of the fact that the opinion the fact that russian intelligence agencies had used lasers as weapons against u knowledge of intelligence that the captain man had deviated from its its normal course and it deviated from its time and arrival its arrival and departure times based on intelligence that that had been gathered in reviewed and that's the same thing that admiral kramer that's the same basis for his personal knowledge at that particular event which company could yes and cramer would have testified as yes now we did make an argument at the time and that he was an expert witness but the judge didn't didn't get he was interested in moving on with the trial and and it's just sort of hard to tell from admitted but but there was no basis to to exclude his testimony entirely these are clearly facts that he was going to testify to what we were alleging had been done in this case that there was a laser attack on u s intelligence gathering that it injured commuter daily and claims testimony if it had then allowed in and admitted would cooperated that the circumstantial evidence in this case that the captain managed fired a laser on him lastly your honor i would like to focus on the refusal to admit and to allow senator smith to testify  witness again here the the standard is an abuse of discretion and we have to go back to the supreme court's u s supreme court statement many years ago that that it just recorder trial courts discretion should be tempered greatly where the probative value of the of the proffered evidence is high and where such evidence even though it may have been admissible in the case in chief was unnecessary for the plaintiff to establish his case in chief now senator smith was offered so we as a rebuttal witness are as a rebuttal witness only for impeachment purposes to impeach the testimony of festival witnesses regarding the village or the of the investigation conducted by was at the time he's no longer a senator he was at the time the chairman of the senate armed services committee and in the course of of his committee actions walled they didn't refuse to come up and testify they refused to say in so many words what they had done they were deceptive that was the point i think it was that you can't cross examine these people on that very point right that that not only were they not answering the questions at the time of trial but that they were they were deceiving the united states senate they were stonewalling and deceptive that that time this was a course of conduct by the i when i in  covering up the entire incident here it was very important that the jury understand how deceptive though and i had then in doctoring this particular piece of evidence that not only would they not tell the jury you look at the foot if you take the time to look at the photograph you'll see it was doctored if you to take the time to read the testimony of our experts photographic expert he testified that it was deceptive and doctored no question that they did  t and he also senator smith also would have testified that when i had told him contrary to what they stated in their report that they could not determine whether or not because his testimony related to the validity of the i when i investigation that somehow or other was the subject of our case in chief well this rationale fails for for three reasons first we didn't offer any evidence concerning the o and i investigation during our case in chief most telling of course is that his ruling was totally at odds his ruling like senator smith is totally at odds with the fact that he allowed a laser expert in our photographic expert to give rebuttal testimony on matters i similar matters to rebut testimony elicited by sasco concerning the allen i investigation split that they are playing politics with this find out reopening the case and now of course he's blaming the trial judge for the result of a jury verdict that came in after four hours after an eight day trial adverse to appellant i'll probably just limit my that originally the parties did request a total of seven days for the trial that would be three half days each that was that the judge to an hour's free trial scheduling conference about a year before the case just shortly before the trial when we got together for another conference which is the one that mr curly was referring to the plaintiff indicated that he would like to five days the court indicated that he was not inclined to do that and then mr  as one of his counsel recommended or proposed four days and the judge said that he would agree with that in four days was the amount of time that was allowed to both sides for the presentation of their case and this is very similar to the  the course general signal corporation decision where a specific number of hours were granted to each side the court throughout the trial reminded the parties that they had a certain number of hours left so they keep track of that and the next circuit found that there was no of discretion and in the court managing it's it's trial schedule according to this clear greed time limit there was a failure to object we feel during the trial to the number of hours that were allowed repeatedly the judge would remind counsel of the remaining time there are references in the brief that we've submitted where talents counsel would acknowledge that they realize they had a limited amount of time they would live by those limits there was never any specific request for an additional amount of time the only the only witness so the only piece of evidence that was obvious to the court that possibly was affected by the time limit was senator smith and as the court has realized and recognized there were many other reasons for not allowing the senator smith testified only one of which was the time limit the only time that there was any objection to the time limit by the appellant was objecting to the court's calculation of the time that was a lot of but never an objection to the the number of hours the or the number of days the four days it was a lot of each side and i'd like to point out that the pelleas my clients had the same limitation on their case we had the same number of witnesses to present in fact some of our witnesses are russian nationals so it was required either to have an interpreter or to receive more slowly with the examination which took up more time and we were able to get our case in within those a lot of time so we feel that the time was within the course discretion we also feel that the appellant waived his right to go to object to those now because there was no request for further time during the trial itself is the main rationale here i don't think that's a very strong argument for us i think i would say you did agree that if the only reason was the just name inadvertently was left off it would be an it was never disclosed to us before the trial in the in the initial disclosures of what admiral kramer would testify to he was described as testifying to facts and circumstances surrounding surveillance mission period y of what they alleged the spine activity of serialized activity of the soviet union and russia word during the last decade that was the period that was the subject matter and there was no request well your honor can we at least provide him for just getting the details of the surveillance mission that i think the court picked up on the fact that the the broad range of topics that he was being proposed to testify to could not pelleas vessels for intelligence gathering and the alleged use of lasers by intelligence agencies of russia and the former soviet union and i suppose what he really was going to testify to this we don't know i can't it was never proffered was  i think the important thing is here that admiral kramer's the range of his just annoying that they were proposing to use and for it was never disclosed to the teles until the time of trial or the three amended pretrial order when then they tr office of naval intelligence was investigation and testing was flawed well this was an issue that was well known and well discussed throughout the discovery period and also during the  our rebuttal witnesses quote the necessity of whose testimony cannot reasonably be anticipated before trial in court that was clearly not the case here the veracity of the o and i report was hotly debated during throughout the discovery period and during the trial itself in fact as i pointed out in our brief the majority of courts that have considered the situation held that even though  witness and of course that makes sense because otherwise a plaintiff could maneuver a case so that they would introduce surprise witnesses just by avoiding grading up a topic during their case in chief even though they know math and they said that was the that was the allegation that he arrived in the afternoon sometime on thursday and if he had allowed that for all he knew we could have had a problem that has to change because it's very kind of taken longer than in that that would be handled by another judge that that wasn't didn't seem to be a concern here as far as when the jury would finish its deliberations conferences all of those are explained in our brief and and certainly did not rise to the level of this court has stated is needed for misconduct upon by the trial court most of those comments i would point out that it was not a terribly light hearted moment during the trial and the trial judge derisively mocked the canadian accent of one of our witnesses you make a motion we get to you and in that motion make a profit at that point about that means he was not an end of history but he was not an expert witness so if he is not an expert witness he should be allowed to testify in on a question by question basis if he has evidence that is not admissible and then he this is this cooperated the circumstantial evidence which we presented in our case it was very relevant to the case the subject of his testimony was and was not general related to the soviet union over over a decade it was statement of his testimony this was very keyed very specifically to the circumstantial evidence that we were presenting in our kids and the exclusion of this evidence was greatly prejudicial to daley this was his commanding officer this was the highest ranking intelligence officer in the united states navy at the time and he would have given this information he would have given this testimony this factual testimony now is standing that is oh when i investigation had concluded through