last argument let me start with the standard of you know if the judge should use the proper factors it would be abuse of discretion but it is to know because he used improper factors and told us the somebody is taking a purse rippin drug legally from a doctor does not mean they're under the influence or that they admit being under the influence will count so i'm thinking back to the record in how that question was phrased to your client at the deposition how does that impact our inquiry here it doesn't because the witness answered what she was taking she was never asked the dosage i may not have it exactly right why were you under the influence of any drugs or medication or something like that in your client responded in the affirmative correct and then went on to state the fact drug that she had a prescription for and had taken the problem yes the problem is the words under the influence to a jury mean a high or drunk let's be straight about this when you tell a jury somebody is under the influence that something different than actually the question in a deposition and in answering the question she never followed up all the person said is i'm taking a perfectly legal prescription drug if attorney holder intended to really prove under the  waterings she would have subpoenaed a medical doctor she would have supplied true information that the dosage was too high or too low or that the person should have been driving with this drug so your basic position is that read person your client sandy yes i was under the influence that's not sufficient to present that to the jury because there is no expert testimony to actually prove that is that your point that is my point in part but even more counsel cites a case where a policeman was at the desk and somebody comes up and he sees weed wavering or weaving and smells of liquor and the court said well there you don't need an expert it seems fairly obvious somebody could testify that there's none of that here there's nobody that said she was doing that and let's look at the explanation that attorney holder did which by the way going to the standard even the trial judge said i don't buy this that it's simply  holder is not a doctor of law she's a doctor a lawyer not a doctor of medicine there is no evidence that this drug impairs reaction time on this record it might make it better i don't know because there's no evidence to that effect robot argument of no injury now let's think that through she says somebody is taking a prescription drug and i was saying what she was who under the influence and she was going to use that to rip up an argument knowing that is a statement wasn't true and that the admission wasn't true all she admitted was to taking a prescription drug in like your honor's question in a person to person question so of course it wasn't her once this happened the jury was irreparably prejudiced and i want to mention the cases are clear that talking about drug use or intoxication or he's so deeply prejudicial it can't be fixed in addition there's a case you cited when you say it in the opening say when the jury is particularly paying attention the rest of the trial is meaningless because nobody's paying attention to anything else now i realize we can't interview the gerber's but you certainly have circumstantial evidence they gave a verdict seventeen times the special damages and almost double what they even asked for if that's not an outrage jury that heard somebody was high or drunk i don't know what is i mean we're all practical people it i understand if the judge used the right standard there is an abuse of discretion standard but let me talk about what he did say during the hearing on the post trial he spent an enormous amount of time talking about the insurance policy but the lawyer was paid by insurance and they should have tendered the policy and this is their fault again what they'll do to disrespect to the trial judge that's now regis thing to say and it has nothing to do with the standard that this court disaster review and he never should have said it and it has nothing to do with whether there was a fair trial then he said well i hear all this and i would read a mistrial of the defense lawyer had a system that was the word to use in the alternative grand of the post trial for a new trial one of two the other thing is i think i cited a case that they did preserve their objection by making cash to ask for the trial so yes and here's why the trial just all put it did when he said to this holder on the record are you trying to cause a mistrial what is it you're doing the new and here's why it's awesome for if this had been the fifth day of a two week trial or with very little time and expense to the court system this was the opening bell of the trial not the last day so yes i think the judge should have done  hope misconduct didn't insist upon his rights in other words demanded this trail that moment switches the argument away from the person who's this conduct is that issue so the lawyer for the defense would i tried the case the same way probably not but i don't think miss holder would have done this with me i wouldn't have tolerated it was outrageous third there was no clear period of instruction given i don't think you could give one and that's one of the cases we  think that's fission but it was given career yes like i want to one was given but that's not sufficient to take care of something this far outside of where we're supposed to be there are certain statements that people say about other people criminal convictions being drunk or under the influence or intoxicated that are so clearly prejudicial under the law that they can't be cured and i think what so outrageous  to justify there is no way a jury could have interpreted the words under the influence and it needing to be under the influence except that this lady by clan was drunk or high and where we had a recent case where a judge declared a mistrial to a spot that nobody was happy the party that was offended by the conduct or could have been damaged or prejudiced by the  didn't want to struggle so skip it or not getting to the post trial aspect of your contention is this state is creature that he got to do it even if and right at the beginning rather than waiting to see how the case is going to turn out as a result they're having to back your mind is the trial judge i can take care of that's exactly right and here's why the trial judge is just that you to just stand independent of people strategy independent of the parties but as a guardian of a fair trial party did not receive a fair trial because of the emphasis on drink so all the issue is your honor stated he is did the party receive a fair trial and the judge at the beginning of the case s w that that wasn't possible and hot to follow up your question just this way how could we give a curative instruction we would have to tell the jury that the statement she was on the air force was untrue or this statement that she admitted to being on the deal points was untrue and the attorney didn't tell the truth and that's to that that also goes into bigger issues that it's not possible to cure this kind of statement in the beginning as your honor state there was nothing t balance if this is been the six day i could see were a court would say we've invested a lot of time the other thing is on the sixth or seventh day the jury has an impression of the lawyer is the judge of the witnesses and this is one part of the on the first day there's nothing else to impress because she said what she sat and it's so deeply prejudicial because it is two things both criminal convictions and drinking or in drugs that are so deeply prejudicial that it can't be cured and i think the judge should have credit in this trial whether the parties are happy or not because the fact is his job is to preside over a fair trial and that was prevented by be the disadvantage to the defendant in asking the court to instruct the jury that the defendant here was taking a prescribed lawful medication and there's we expect no evidence to be presented regarding that affecting her faculties and she's admitting fault because she reached for a cell phone or whatever her reason why i think that is a possibility somebody could have said that  i think though that entering into the issue of taking a prescription drug in combination after what miss holder said but that would have been my if i were trying the case with all due respect i wouldn't have done it because my attitude as a trial lawyer is none of this should be before the jury on last there's evidence that taking the prescription drug affected what she did and even with that instruction that curative i think average people would say wow she's taking a prescription drug she's not paying but let's just say she had said that that's a less malicious statement to make but by saying under the influence i don't know how that can be cured except to tell the jury she didn't tell the truth and the judge obviously most judges are not going to do that because i think that also would require a mistrial and that's way there was no balance at this especially because the fourth year it just finished and it was the statements i try cases we all have where you go on for days and days and there are mistakes and judges say oh for god's sakes this is a minor issue let's move on this wasn't a minor issue and what is i think most of is the explanation she gave because the explanations are oh preachers they have nothing whatever to do with what's going on if he had tied together and taken to thirteen thousand discovery and said this dosage was inappropriate or you're not supposed to be driving with this prescription drug then this would be an entirely different case but one of the other things that she said  the defense counsel should have known this testimony was possible and should have brought them over the limit no lawyer and bring a motion in limine to prevent all misconduct before it happens why would the defense lawyer of manch little lawyer would the whole trial that lady is drunk or high that was what she intended and she succeeded because we look at the verdict it's seventeen times the special damages it's double what she asked for what other of the legal standard that the judge used his i've indicated i think he for unknown reasons spend most of the time talking about insurers to follow up but just this next question he also said well what about very little else to add the misconduct here was intentional it was malicious it was unfair this was not a fair trial and for that reason at least the post row should have been granted and we ask you to  this was not a perfect trial but it was certainly a fair trial there's one thing lacking and prevailing throughout all of that briefing in this case and that is any case law that learned about being under the influence every single one of those cases talks about intoxication not under the books every single one of those cases deals with a situation where motions in limine there were five and then five without a motion in limine a filed at all it's almost impossible to put on from this holder any type of  whatever reason the drugs that were take it would have slowed reaction time that's where she was going to go now there was an objection made and it was sustained and then it was never brought up again like  don't really understand why is there do they need to even get into reaction time out this if the person has admitted liability it's simply about what damages were incurred that's correct in this case liability as it says that the record was a d the day of the truck first of all sakit lee there was a strong defense that was going to be made that this was a low impact allision big time in which somebody grapes the time that they have to apply the brakes showing what occurred rather than something speculative about the action well guess what i'm thinking about counsel is did his holder have what was necessary to tie the sap i mean we just have this very damaging prejudicial statement and nothing to back it up in terms of what opposing counsel is saying and demonstrating the delves that she was taking what effect if any this dose would have on her driving should she be trying taking that medication i mean there just seems to be clearly unsupported well the that is where the dichotomy between intoxication and under the end of it i'm saying there is case law in illinois that we pointed out of our br morgan alcohol whatever else you could be under the influence so what if this statement was a fish because there was an objection and there is some doubt as to whether the proper objection was even made here because the jeff it was not a specific objection depression was so a general objection preserves relevance not prejudice there's a lot of other issues there are fault with whether or not we should even instruction they didn't offer a not i p i instruction that they liked they didn't raise this until the appeal the only objection that was made during the course of this entire process was a single objection on a general she was under the influence under the influence the objection came in she immediately stopped and you know it's pretty clear the court knows what giffords and bob mean that's demonstrated it beginning in demonstrat the i think the who court may have known with the objection was about but as far as preserving the records to come up out of he'll there are certain things that you need to do it there was just saying in a you know it's almost review judge jones specifically articulate the exact issues that he's determined and then for eight pages of transcripts goes over all of the facts goes over every reason why he made the decision that he made it it's clear that the abuse of discretion standard applies here so whether or not we're in this holder's trial tactics or  what she was going to try to prove with speed all of that is secondary to deciding whether or not judge jones abused his discretion in deciding the way he did so so yes  case law that says intoxication is prejudicial but there is a difference between two she didn't say the evidence will show th not giving her that opportunity to address taking that prescription and why any effect it had on her it was even more prejudicial because she simply said she admitted she was under the an influence and that is where the judge at his discretion determined that sustaining the object should was the proper course and that is where as he says in his in his well reasoned hold it that he can't boyer for the of discretion is if defense counsel had wanted a further explanation to the juror as judge jones reasons in his opinion he could have asked for judge jones would have given it in fact he said roughly what he would have said but all that would have done in judge jones is is putting more weight on this issue now was the statement from my opinion from our kenyan from what we're looking at it could be construed as a mistake we don't have to agree with the underpinnings of the logic of why those words came out of the mouth and yes it was intentional you can't accidentally speak it wasn't like she shot so yes it was intentional she meant to talk i agree with that but as far as bad faith is concerned it is nearly impossible to put on that statement bad faith when there is no violation of a motion in limine a we have no case law that's even remotely close to the situation but it's only one of the reasons it's not remotely close in your mind is because the state can you make it tween intoxication and influence anderson in the presence of the motion element in the other case right those are the two primary reasons that distinguish this matter from from the us and say let's say we disagree with you on if we say under the influence a say you lose i still don't think that we lose because the question isn't whether or not the the the substantial prejudiced yeah so it's far it is far as that's concerned we don't have to agree with what went down we don't have to say this was a perfect trial it clearly wasn't because we're here all we have to do is determined that for the forty six pages of reasoning that judge jones laid out he didn't abuse his discretion he waived this issue properly he looked at the prejudicial value of the statement he waited against the tactics that the defense attorney was were paraded throughout this trial and he reached a decision so it comes down to this notion that there is a difference at the end of the day between intoxication and under the and that's a legal difference it's outlined by the courts in the state and who the way that he be a power wants to sort of paint in broad strokes that any mention of the term under the influence is going to set the jury off well as as you point out in his argument we have no way of knowing what the jury yes there's a large murkier those commercials about drinking and driving and teen drinking says keep them under your influence i mean we know him francis from that well that and that's true and i but i cannot and the court cannot and nor do we need to decide this case put ourselves in the mind of the jury likely be impacted by this injury for the rest of her life and that she was active before and now she can't be and that her husband has to pick up a great deal of slack it just goes to post a great way to say yes this is a large verdict but we have medical test that shows she was severely impact so can we really split the kitten and say the only reason for this large verdict is because way back in opening the term under the influence which mentioned and then corrected i very briefly counsel acknowledged the judge jones said that if he had tried to give a curative instruction it would have made the situation worse council admits that it's not fixable because this was a disaster made by his holder second your question justice white when you look at the record she said the defendant was under the influence that it needed to being under the words she said bowl and i think the record on that is clear counsel against th relates to low impact or high impact as your honor stated it has nothing to do with that if she was high as a kite that would have nothing to do with how the impact was one way or the  there is no medical evidence to tie this drug or the prescription or the dosage to any of her conduct and miss holder never had any such evidence she never did a discovery because she never intended to introduce it if she had done discovery that would be a different story she never intended to introduce it she intended to give out innuendo to the jury that this person was under the influence or intoxicated that's what she intended and that's what she got away with and it's in a fortunate thing but she shouldn't be rewarded for finally judged in terms of the side bar at the time of the objection they went back her side well there wasn't recorded during the whole trial judge jones repeated