issue the order also disregards the existence of other damages of the arbitration panel not award not because they were not reasonable but because they weren't covered under the policy at all those include  self serving testimony isn't something that can prevent the entry of summary judgment under rule fifty six and we contend that's exactly what the district or did the district court looked at the evidence on the record and said this is nothing but self serving speculative testimony there are two problems with that one it's contrary to stein as i mentioned into it ignores other evidence in the record you have here more than just the parties testimony about existence of the damages there's trouble getting evidence in the record in the form of the actual amounts that these folks had to spend the amounts and the returns on the investments they were making we also know about their investment history we also know about the way these damages remeasure back the experts that were hired by both sides agree on the way that should be measured so i think our main point of contention on the last prophet issues is just that testimony speaks to that but it's certainly not not clear happens contention that clients were lost or that issue existed as a result of having to divert resources away the intention is that work was done slower and ultimately these fees the time that was spent incurred on this matter could have been put toward billing hourly clients that would have earned some rate of return toso let me let me ask a question about that so i was a little bit confused about that so the the award for the arbitrator gave you credit if i'm wrong i thought it gave you the money that  basic gave you attorneys fees and it was it was a law firm and you know so i mean basically gave you attorneys fees so it doesn't seem like you have lost any money there because you've got that and then on the lost profits it seemed like your argument was mainly well you would have used money that you would have made from collecting fees for and that's what opportunities but instead you you know you didn't have the money because of the terms company dollars of the little over two million dollars of the actually spent and this money was actually spent so our contention is that those that the delta there between what they were awarded and what they actually spent  s under the contract or time the firm had to spend attempting to prevent itself from being added as a party in the case that's a bucket of about one hundred and forty thousand dollars or so out of almost six hundred thousand dollars and i'm the arms of it's own time arbitration panel awarded about one hundred thousand so when it comes to lost profits the contention is that had those those monies been available either to mr capital could be you should have gotten a turn i mean this is your argument i understand there's an argument that you should have gotten the money basically as attorneys fees in the arbitration that's one way to think about it the other way to think about it is as a lost profits way well we spent all this time doing this work but we could have done work for paying clients that's kind of a lost profits analysis look at it both ways i guess yeah there's i think we look at it's two buckets you have the actual explanation exactly the breakdowns that these different types of damages and how they were calculated on a true law like and what i kind of consider the true lost profits as you which is the idea that  partners spent money did not make money would have invested that money would have profited off that once what's the evidence in the record that establishes that there's some certainty as to what those which we know the returns those estimates were earning and we know the time periods when this happened would have had the money to invest but didn't so that's that's sort of the benchmark  invested and so in this is this is what i'm trying to figure out so it seems like the strongest case would be if for example i make a ten percent contribution to my four hundred and one k you know every month out of my paycheck and then i stop making those contributions because i've got something going on right that seems like the strongest case it doesn't seem like we have a case here other than the self serving testimony mr kaplan or mr silverman and your ass expert who saw he bases his report on the assumptions that what they say is true that they would have made these investments in the past and they had a track record of returns on those investments however there's not a shred of evidence and as judge brasher next and what you need here is an investment plan and that's what we learn from the nestor case in the sure with case you need an investment plan and an indication that it would have been followed such as what judge brasher said you need evidence that ten percent of my paycheck went out or into my four a one k or these investment portfolios that they were investing in and then it stopped because they had to fund this defense that's what we don't have here all we have is these two gentlemen looking back in time saying oh wow i had this extra money i will it added another one hundred thousand in  something that in a regular basis on with the on a regular basis consistently with regard to what they would have invested and how much they would have invested in the how they would have invested it the timing of when they would have invested it and if we don't have those we cannot possibly have the rate of return because as we all know investments change every day and if you and i'm glad mr weaver brought up the expert testimony because i think it's crucial to this case if you look at what the experts s didn't remember kaplan investor an l l c and superman investment l l c those halsey's include family members and their spouses so that their expert elkan he never looked at their own personal accounts he never determined if they had other moneys in their own personal accounts with which to invest so for all we know kaplan and superman could have been sitting on a ton of other money and never use it to invest it all sort of sit here and say oh had i had this one million bucks that nonis didn't fund the factors or or what investments they would have made but they also are saying had we had this money we would have invested more in these other funds but that doesn't rule out that they didn't have that money and if they investment vehicles to see if they could even have been bested him at that time and that includes a ride in for a ride in six so he never even determine if kaplan had the money this is for kaplan only not so over if he had had the money if the investments would have accepted it he also never determined again for kaplan only coast to coast and domestic funding they were raising money in the time period that cap and said he didn't have the money available to him but he doesn't know that they would accept that extra money and these are funds that they go out and they asked for investors to pay them money to do certain things so they money they may have been popped out i mean out of except that the money so without knowing any of that information it's rank speculation of somebody looking back saying had i had this money available to me that's what i would have done and judge ago i respect we believe that it is a winning argument to show well he didn't have this money available he had a bunch of other money available he invest with that shows that that wasn't his intent he would have happened said he would have done that simply not enough in judge wilson we do know that they did certain things in the past it doesn't mean they're going to do in the future that doesn't mean they were able to do in the future or they could have done in the best elkins get testimony in his report are key there's nothing in this record absolutely nothing other than them saying looking back in time saying this is what i would have done the case law is clear and you know i ask you the master question about that as i have to me i think that's a really important point and it goes back to a question the judge will have asked is this a credibility issue so they said they've come in and they said we would have done this in the past is that a credibility issue or is it a sufficiency of the evidence issue whereas i mean i don't think you're arguing that they're liars i think you're arguing that it's just insufficient evidence to prove  this with the certainty required by law boss profits to just say we would have done this in the past without sort of a record of doing it so that it could be certain which is the legal requirement there's brashly are one hundred percent correct  thank you for clarifying that it was unclear it's an insufficiency of the evidence issue in fact that's what the district court said in its order a clean two self serving assertion is precisely the type of evidence that is insufficient to establish lost profits and i want to address that point again because mr weaver brought up the stein case and he said oh under the stein case you can't just dismiss somebody's statements as self serving because that's weighing the evidence and that's making  reasonable certainty and reasonable certainty is not someone saying i would have done this we were not sure it would have been done that's not reasonable certainty for the law for lost profits and  they they must show that there was an investment plan and they had an opportunity to follow that plan and they didn't follow that in because of something my client did let me have a hypothetical it goes to this i think so if  the plane had come in and said in an affidavit completely self serving affidavit i follow investment plan for the last fifty years of my life i have invested ten percent of my monthly income have here is self serving testimony and the key is the next step is it was on years and that's one of the things that i respect we state that mr weaver made a mistake on in his reply brief the reasonable for c ability is the damages that you have an opportunity to obtain under the statute you still must it's a reason most certainly still certainly standard that the court looks at and the district court did look at and kind of segue into your question and judge rashers question the district court didn't say oh this has to self serving and dismissing it cases cited by mr reeve in reply brief including the spine case was just i was self serving we're not considering it i'm granting some objection that's absolutely not what occurred here the district court wrote a twenty eight page order in this case it was a very detailed order he went through all the investments he named the type of investments i mean he didn't want me as any set forth but was missing it was the you know and nine hundred pound gorilla in the room that was missing anything else other than the self serving custom it was all absolutely that part of the case it's clear that we believe the district court should be affirmed there is not a scintilla of evidence supporting this other than them saying this is what i would have done had i had this money and under the messer case in our brief that the district court cited that simply not enough you can't award loss profits which are to and in on a party taking action that is unclear that would have been take the other part of the case is the last monies to the firm judge wilson i believe you addressed that sufficiently your question to mr weevil was that this would be for what i would say is that they're saying that the firm lost profits because they had to spend this money and  didn't really read review their grows pot profit margin he didn't read review their tax returns he didn't review their profit and loss statements he didn't review their balance sheets they never lost any work they never had to refer cases out they didn't turn away business didn't miss court deadlines it was not one scintilla of evidence that there was any loss profit to the firm because they had to take some of their lawyers and put them over here and have them work on the court alex not one piece invested in when in terms of the investment statements and the returns so it's just wrong to say that there's nothing more in the record than the testimony of the people with personal knowledge about the what about what they would  and you know judge will go into it to one of your questions i think it's absolutely correct for purposes of summary judgment the other side spin on our evidence to relevant agree with that one hundred percent  haven't talked much about collateral estoppel and spent some brief time on it there has never been a case other than this district court's order that bars a plaintiff in a bad faith case seeking damages it did not recover in the contract case the arbitration panel awarded damages based upon the contract language after the four supreme court's opinion in manor house which came down on january st of this year there is no longer any dispute under florida law reasonable for c ability which is the standard under the statute is not the measure of damages under an insurance contract so the question the jury would be asked in this case is was it reasonably forseeable as a result of a statutory violations that this this unrecovered money needed to be spent by my clients not not was not was the money that already recovered reasonable that issue's already been decided by the and you know issues of weather the defendant would have known about the exact scope of the damage are the names of the damages are irrelevant under that framework very briefly i want to talk about the nebula glass  case it's i think the leading case on the issue of lost profits the only testimony that supported a jury verdict in awarded last profit damages in that case was the testimony of the plaintiff the owner of the business corroborated by two customers