that as an element of our damages yes right but so why should you be allowed to complain that the court did exactly what you asked the court to do there are only  giving up my request for a jury instruction on on one front pad that was a p demand but the jury instructions to say the court i am not asking for front page any longer what i am asking for in this jury instruction is one that relates to my being promoted that's the relief i want ask for being promoted instead of getting front pay when did you first ask for after the break so he did not even if you said one point i up to the time they didn't that's called backpack right from pay is ok i didn't get it therefore i'm getting something else that's something else it appears to us that you asked for fifty thousand or money rather than being promoted for damages but you knew did you know that you couldn't get both front pay and an injunction for promotion yes around and knowing that you submitted proof relating to front pay and the jury relied on the proof and agree with your proof accepted your proof yes or other so why shouldn't we conclude that you made an election by how you tried your case and what proof you put in and what you asked the jury to do and you succeeded in getting the jury to do what you asked for and then as judge ambrose says it's then too late after the trial was over to say well i wish in hindsight that i had not put in if you were injured in some way as a result of some action by the university you are being compensated for that so it's called compensatory well that is not how it is defined exactly like me did because humiliation would be a loss of prestige or at least of a form of him of humiliation but if this jury found in your favor they are compensating you for that wrong they did find in your favor and they did give you compensation what what did they do what did the jury do wrong or what did the court do wrong in instructing the jury well firstly the quote confuse the jury about the importance to these other damages which i just read out what well why don't you say that it wasn't given equal importance because it was lower in the paragraph of instruction and the others well it was because the  would it need to well if it doesn't then you really would tend to think that emotional damage is a lot and far i'm not sure i can agree with that the jury is required to do everything the judge instructs and one of the things the judge instructed was an emotional damage  and you get a jury verdict there has to be something quite exceptional for a court on review to overturn that jury verdict  and the system played out i'm sure the university wasn't happy to have lost sounds like you're not happy with the amount you got or the relief you got but  my impression was that was really the the the only practical thing that was before the jury is that right that what happened some of this been stripped out prior to the trial the summary judge was some of the some of the only thing that was tried was retaliation on it so that the only religion ok if that's the only thing that's tried and you've got a instructions that i assume you don't have problems with the instructions that were given absolutely stated reason were not the true reason and i'm quoting and then cheating hall was motivated at least in part didn't he give a curative instruction on it and i will i will get to that the first thing he said was at provided that the jury could find for dr can't if the reasons proffered were not the true reasons and again i'm quoting that retaliation would more likely than not a determinative factor in the failure to promote and how that different then than what the titles that requires which is it's a determinative effect on the outcome of the process that is the proper instruction structure number two but how is it as wet that this is i can see a problem with the first instruction but i don't see university asked the event to also the determinative effect and jury charge eleven said that if it determined the doctor can't have been retaliated against in the early stages in other words by the department chair in the early stages that your honor is that whether or not the earlier evaluation that it in fact is not the correct legal standard the correct legal standard is whether or not retaliation has a determinant the effect on the promotion well why isn't a jury presumed to have understood the two instructions and interpreted eleven in light of what it had just been instructed in number ten i think that there is is a convergence here on day one you have them being told you only have to find that it is in part responsible on day two in instruction can't now it's changed determinative effect they had they had not begun their deliberation rest right is correct yes absolutely ok then the next one that they read doesn't talk about it from me to the fact it talks about impact yes but people why wouldn't they understand impact to equate to determine i the fact as the previous instruction very explicitly said judge i think that's pure conjecture and and i think in the university specifically asked that the that the impact be be amended just doing that there's a waiver problem i'm just asking why the jury wouldn't be thought to read impact ten eleven s carrying forward the concept from ten of determinative effect judge i think you also have to look at the jury verdict sheet in determining what did the jury what was a jury really decide a jury verdict sheet your honor question number one said it doctor did  is is not did the ultimate decision having him have have a target of effect but simply whether or not the vote from number one or number two had  contaminated the process why is yes it was and why isn't the problem for you the same that having been instructed clearly explicitly that determinative of fact was the standard day says ok determinative impact the next instruction as only impact and then when they're answering the question judge they never answer the question it have a determinant of impact judge the trial court never define contaminate when i look at these instructions i almost had the impression that this judge may have been surprised by the verdict and there were there were can't necessarily get tone on a piece of paper but looking through some of the language in the instructions it was as if there was a little tilting against mister rudd and in favor of the university i mean just just  just after the judge initially gave the wrong instruction you may conclude that retaliation had impact on the ultimate decision which was later later clarified or corrected and then the judge just in fact impact was not correct that wasn't corrected it was not what you asked what it was not to any case where we've ever reversed and remanded for a new trial based soley on an improperly worded verdict sheet i have not seen form questions deferential abuse of discretion that is absolutely correct however the review standard with respect to what is said of the instructions is not there  panic and i go back to my my argument your strongest argument is that the word contaminated in the verdict form could have been misunderstood or your honor and maybe that's right but but whether it's whether they're put have been better wording isn't the issue i don't think it looks to me like the issue is whether the choice of wording by the district judge was so good as to constitute an abuse of discretion judge again over all refer back to the miller signet and the woods that case there this court found it was an abuse of discretion not to use the words the program the effect as opposed trial judges are given considerable leeway in the choice of the precise wording of verdict form question and i absolutely agree with that obviously things but the fact is if you look at this and it's think this is a big difference in instructions because instructions are what the legal rules are the verdict form tees off the facts in the case but judging i don't think there can be any legitimate argument that just verdict luther any evidence that as to what the votes were in his three prior attempts to be promoting at the same time he asked that the vote of the department chair the missile and the court so voted for it correct absolutely and then something happened and it made him reconsider and he has a chance to explain why he now votes against him it would seem like you could make a pretty good argument at the trial counsel that this could be beneficial to the university as opposed to a detriment well but at the same time you could also argue two things you can argue number one this shows that dr dolls boat did not have a and subsequent evaluators they hadn't listened to in the past if the jury was aware that in the past all the subsequent people voted against dr not the jury may very well very tough to overturn a jury verdict because the juries sorts out the week from the chaff over a long process and it's got to be pretty significant for us for example on this issue let's say we  but maybe the jury didn't agree with with us as to what up us to those to dr dollars to why his testimony should be his prior votes should be in evidence and not in evidence that wasn't here is false whether they in this case it was given the day after the first when judge and your or your own points out it was before the charges but you also had in this case we were talking about one of the jury understand you also had in this case your honor the jury coming out asking a question and a juror asked a specific question about this the third question here and it was never answered he himself said it seems to be a conflict the jury question and that's in the record how do you respond to the point that was made that the it's clear that the jury instruction should have bred for instructional eleven that whatever was done in retaliation against you what's in case of the point being that under the these the members of ninety one you need to have a the instruction must be that the actions the retaliation  on what ultimately occurred not just a duck not just an effect but it had to in effect determine the outcome and you're saying ok for you to win obviously that you are have to say that the jury did make that determination that there what mr peraino said right now going back to and since he didn't really respond to anything you said your rebuttal was limited to that rice is there anything else that he said that you want to respond to