good afternoon may please the court my name is lukian i represent the plaintiff and appellant in this matter mr dennis yooper with the court's permission i'd like to reserve two minutes for rebuttal and i don't have to keep track of your own time unfair surprise correct that's correct your honor and fair surprise based on two grounds first which was first grounds essentially that prior to trial deputy pink of the file the declaration that the district court found was materially fa the day of trial there was a contradiction between his pretrial testimony and the trial testimony on the day of trial was a deposition in between them correct that is correct your honor and i would concede in what took place at that deposition mr hooper conducted the deposition of deputy think of and i would concede that there were references to prior conversations that occurred within the jackson county sheriff's office but i would like to point was there any was there any doubt at that deposition that the officer was changing changed changed his story between what he was testifying at the deposition what he put in this country will your honor i would note that there's a line of cases that stand for the proposition that just because a defense is raised in a deposition that doesn't necessarily mean that it would be used as a defense at the here so i would point out to stern versus clarke equipment co in the citation for that it's five four seven one four four and that in your papers mishap and the defense was actually sees me the expert witness was questioned however on the day of trial and even though this had been brought up the district court found that it wasn't proper for that defense to be submitted for the court and the district court actually said that discretion it doesn't necessarily help to say that a different judge exercise discretion in the opposite direction that is one could write it in and one judge could keep it out and we might not reverse either one of them so why what is so significant about the discrepancy if any between the deposition testimony and the trial testimony that a new trial is required respect your honor i would submit that the district court erred by not factoring in the surprise and the element of unfair prejudice the surprise created by that that's right the testimony at trial as i understand it is essentially the same as the deposition testimony so i have a hard time seeing surprise wells so that's why i'm asking you specifically what was different between the deposition testimony and the trial testimony that was so significant n the positions transcript on page four at the very outset the counsel for the defense states that the only question is the claim against ip point which boils down to the question whether or not it was reasonable for an officer to rely on information that plaintiff's license was suspended two and a half years ago prior to the incident in question and then he goes on to say that everything in the deposition is with then those goalposts but then on the day of trial the goalposts have suddenly been moved the deposition was framed as solely being about the two thousand and nine encounters later on i believe it's on  deposition at one point mr hooper begins to question that peeping cov about the operating procedures and mr chertoff the defense counsel at that time again states that this is beyond the scope and that they're not there to litigator he's asking about standard operating procedures which doesn't really turn out to be terribly relevant one way or the other is first are can recall but keep going oh help essentially your honor mr chertoff goes and he frames the issue once again once mr hooper is asking these questions about the scope and what the actual grounds for probable causes defense counsel steps in and sort of curtails this questioning and they say it's outside of the scope so based on this deposition transcript she's made based on the testimony that was raised in the deposition as well as the pretrial briefings which at the district court noted made no reference to the traffic tickets made no reference to these  conversations it would have been reasonable for office excuse me from mr hooper to suspect that this would be an issue at trial and i would actually submit there's actually policy reasons for that as well that a deposition all sorts of possible defenses or issues could be raised i'm sure correct or on right he used that i would say that what was is the judge graber is trying to point out what was surprising about that when we got when he got to trial i mean well you could have used that testimony in the deposition to impeach but once again during this entire deposition there are several times where deputies or excuse me where the deputies defense attorney says that any questions beyond what happened in two thousand and nine and these are the two stops one of them is realistic related to a domestic issue both times on multiple occasions he shepherds mr hooper and says well this is outside of the scope and as the case that i cited to earlier that stern versus clark equipment company said if this defense was actually going to be raised at trial the defense counsel should have taken the time to disclose a theory and pretrial briefings when all of these theories were noticeably absent and this was especially difficult for mr hooper given the fact that this deposition and all of this didn't really happen in a vacuum as b just recording  so that's why i'm focused on what was done at the deposition so even though the court was surprised that doesn't necessarily mean your client is correct i suppose that's cloth or correct your honor but at the same time mr hooper would have had no indication that this was going to be the line of questioning that this is going to be the theory and there's a long line of cases that stand for the proposition that a substantial change in a defense theory on the day of trial and those are cited to in my your discretion in denying the motion for a new trial does make a difference to mr hooper was pro se i've thought a lot about that i don't think it dies the ninth circuit i think he understood what was going on of the deposition i think suggesting that he initially he thought that there may have been some undue advantage taking place at the trial i think that i am not here to defend the conduct of mr chernoff our counsel on this case i don't believe he behave he likely did not understand all the subtleties that's why people use counsel however i don't think that there was any unfair surprise resulting in prejudice to mr hooper he now if prior counsel objected at the deposition to examination other than certain episodes would be surprising to me at least that mr hooper might not understand that the objection wasn't like a solid wall that he couldn't go into those questions and so he gets to trial maybe he thinks that objection that's where the the county has built the wall so none of the stuff on the other side of the wall should be relevant and suddenly a trial is hearing testimony about some things that happened beyond that the episodes that that prior counsel said should be what this case is limited to wouldn't wouldn't that be unfair surprise i don't know that that would be unfair surprise at trial however i would point out that i don't believe any of those objections preceded it the surprising testimony concerning these discussions in the sheriff's office there weren't objections to that testimony additionally on numerous occasions defense counsel instructs klein to answer following his objection and so i believe there's only one instance where he was  manner but he did a lot to try to answer would you answer from your perspective the question i asked opposing counsel which is in your view were there any material discrepancies between the into mr hooper wherein he determined that his organ driving privileges were suspended the parking citations themselves were not the basis for that suspension mr hooper's residence in oregon was the basis for that suspension additionally place that the parking citations issue comes in is through tenant clarke's testimony an excerpt of record pages one twenty five and one twenty six and utena clarke was mr cooper's own witness so there was no obligation to disclose what his testimony would be from the defense additionally although it is absent from the briefing both before the district court and from this court for reasons that i cannot begin to understand the witness statements of deputy  docket number sixty eight and one hundred paragraph two most instances do disclose the conversation from the sheriff's office and those witness statements combined with the deposition testimony could have left no doubt  for mr hooper as to the fact that this issue would be brought up at trial and as the court noted there was plenty of notice regarding the deposition that took place over six months before trial defense from deputy prime cava was his personal knowledge that mr hooper's organ driving privileges were suspended that was the case from summary judgment through trial at no point in time to that theory of probabl to change it's not like deputy prime congress showed up and said you know in fact i notice that you didn't use your turn signal it strictly had to do with his personal knowledge regarding mr hooper's driving status and  what was his personal knowledge correct i believe it i believe it was yes if you look at the trial transcript it appears that mr hooper and spent more than the allotted amount of time before getting his organ driving privileges what happened to the charge i don't think the record adequately reflects what took place with that i don't know personally but it's not entirely clear i imagine that there was one understand he wasn't mr hooper was not subsequently convicted of the charge so in some fashion it was resolved other than by conviction that isn't what it appears took place based on the transcript and again i don't have any documents demonstrating that one way or another in the record however i would note obviously that there is a different standard at trial on those citations than there is for probable cause additionally the record seems to suggest that mr hooper may have told both the circuit court and to justice court that he was a georgia resident which would contradict his fi his other cases related to win your case and if that testimony that he was a georgia resident was on contradicted on which again i don't know that could form the basis for the dismissal of those charges and surprise based on the fact that the agent had been deposed prior to trial and the attorney had the ability to impeach them at trial and argue about it in this case the district court found that there wasn't surprise what what what difference does it make here well i think that if you look at the trial testimony there's a lot of spots or a lot there's portions of the trial where it might seem obvious to someone with a legal education that they should have objected or they should have the district court statements where it references an overly aggressive defense counsel a cavalier attitude attempts to portray mr hooper as a overall bad person and vexatious litigant what is your response to opposing have reasonable suspicion to stop so i would submit that there was in fact a major change in theory because the central to whether or not there was probable cause for the august eleventh stop was whether or not this probable cause and a reasonable suspicion was based on just encounters occurred in two thousand he ought to at issue is the same what did he know and when did he know it right but it's his state of mind that's always been the issue well your honor i notice i'm out of time and respectfully request they please please answer well sum up i think that whether or not that's the case the theory behind probable cause was what mr hooper prepared for and up until the day of trial the theory behind this probable cause and a result of suspicion was essentially that it was based on two thousand and nine encounters and so the prejudice comes from preparing for this argument and then on the day of trial the sudden