couple i would like to emphasize this morning the first is this your honors when we were here before you last time the issue was whether west publishing company could ignore the contract rights that showed his hand under his contract with bancroft whitney in order to advance their own corporate economic agenda and the court held that it could not do so and that it had no right to terminate the publishing contract merely because it felt like doing so or t the matter back for trial on the question of damages at the new trial west was up to its old tricks i am sure your honour's have watched those cartoons where they breached the contract it's now settled that so this was entitle to recover in quantum marilyn it's now settled that he's entitled to restitution on what we insist in our jury trial argument are equitable principles but the measure of damages should be not what it cost him but what we would have been willing to pay when you translate west's open market theory and by the way it is pay some other author to write a book like this now the test is not what they would have been willing to pay some other author to write some other book that seems to be your honour's is what it cost so it's to write the book at their request in maglica which is the most recent california case on the subject of quantum mar is clearly say said that the value or the benefits of the defendant is irrelevant in measuring quantum aaron and that is true whether the benefits of the defendant is very great or very small think your honour's very remember that in that case the question of the value of the plate of services was to be measured by what those services would bring in the open market every worker is worthy of his hire mill work is as dignified as legal office ship but the fact is that no workers like people at the union hall perform tasks which can readily be performed by others and there is a market for the labor of mill workers ten dollars an hour twenty dollars an hour whatever it may be there is no market for your honour's and their west own expert witness conceded that there is no market where practicing lawyers sell their services in writing books to legal book publishers at hourly rates that's because lawyers earn four hundred dollars an hour publishers want to pay twenty five dollars an hour no one agreed to write a book and a practicing lawyer whose time can be sold for four hundred dollars an hour will never read or write a book for twenty five dollars an hour and less would never agree to pay a lawyer four hundred dollars an hour to write a book because hundred and fifty thousand dollars and that is incorrect your honour's so dismissed told that bancroft whitney expected to sell about a million dollars worth of this book out of which he would have made fifteen percent loyalties plus referrals and if your honour's will do the arithmetic it's pretty simple in order to sell a million dollars worth of the book they would have had to sell about six or seven thousand  book sells for one hundred seventy five dollars if some one thousand copies of this book have been placed in law offices law libraries university law libraries county law libraries around the state and around the country i promise you that showed us would have had a referral business worth millions and millions of dollars trust me when i tell you that it is possible to make millions of marketing engine like west publishing company out selling your book you are going to get some referrals this is the only book in the world and a lot of the only systematic book on the  chauvinists is an expert and he deserves to have lethal and barbary testify obviously lawyers don't practicing lawyers don't write books either by the hour well just for the royalties they do so in the hope of enhancing their reputations and obtaining referral business but the problem is your honor if i can now focus on your question the issue is not what showed as expected to get from a contract they breached the contract and so he cannot get what he expects it to get from the contract because it's just too speculative and so what this court held last time is he has to receive not what he expected to get from  contract which is contract damages but the value of the time and effort he reasonably invested in writing the man you spent his time and effort your honour's is worth four hundred dollars an hour he sells it for four hundred dollars now he testified at the trial that he may mean if you think you're going to fifteen hundred hours in a year and use all that time for four hundred dollars that's six hundred thousand dollars feel testified that he had made over six hundred thousand dollars a year for many years before he started writing the book and he made more than six hundred thousand dollars a year after he stopped writing the book but he didn't make it while he was writing the book because he spent that much time writing that's what it cost him and what what he might might have gotten or what he expected to get from a contract is not important it's not relevant in fact i offered to bring copies of the book  company probably has ninety percent of lawyers in the country as customers on their mailing list and west publishing company can put this once into more marcus's in an hour  very publishing power and strength at the very last minute after he wrote the book exactly as they asked him to do they change their minds now they need to make him who dollars because she designed the flashlight that made this company the courts said the benefits of the defendant is irrelevant the question is what does it take to make the pla now sometimes that's more than the benefits of a defendant sometimes that's what you remember in your heart versus low the situation was that the plaintiffs had been some improvements on t adjoining parcels of property one belonged to the defendant and the other belonged to some third party when he sued in quanah maryland the defendant said i didn't get any benefit from the party built on the adjoining land it's not my land i don't get any use out those of the people to whom he sells his billable hours in other words a person only has so many out if you spend your hours writing a book for bancroft whitney you don't get to spend spend them doing whatever else you  unable to do that while i was writing the book if i hadn't been writing the book i could have sold him a client and made four hundred dollars an hour and why should the west now be able to breach the contract and then end up paying rent deal not only not what they promised them but twenty five dollars an hour that they would say to some guy who writes by the character sixty dollars for twenty five hundred characters as though all books w requested instruction that the judge of course did did you agree to open market now you're not going to appeal on the basis that open market falls on fair if you know here's what happened rest requested an open market instruction the judge said she was going to went through all of that and then the judge came out with a parent issue and handed it out earlier and i hadn't seen it because i've been busy cross examine the witness and it was something even more unfavorable and i asked her to give the open market instruction she had previously said she was going to get rather than a new one and i told her that i would not complain that she gave the open market instruction from earlier in the i can answer your question this way the instruction that should gave to the jury was in determining the reasonable value of the services you can consider what his services might have brought in the open that it's structured standing alone i don't consider because raphael services bring one hundred dollars an hour into the open market where he operates which is the open market for lawyers services what happened was we got into the argument and the supplemental argument and west was saying the only market you can consider is an open market for offer services and i pointed out to the jury and to the judge there is no open market for offer services by practicing lawyers other than a market where they get royalties and a chance referrals that deal was taken off the table i told the jury there is no open market where lawyers like raphael will sell their services for twenty five dollars an hour because they won't take that and publishers won't pay four hundred dollars an hour so there is no open market but i said of the judge gave him this instruction because what's best for him and then the judge became irritated and told the jury i didn't give it because west asked for it i gave it because it's the law giving that instruction at that stage of the trial in the middle of the deliberations after the elements and after the closing argument affectively told the jury they should ignore  legal problem and sent them to see and he got a little smoke and they now found themselves in a position where after ten hours of deliberation and four questions to the court and the admonition that i just described t because that's the value of the time and effort he invested in writing the manuscript to him there is no basis for three hundred thousand out it is strictly a compromise where it's as though we had a case where there's a plane crash the judge tells the jury under the watch box invention the plaintiff gets seventy five thousand dollars under california law it gets a million dollars you may consider both of these the very comes in with three hundred thousand dollars if that does whether or not there was any rules to pull error but instead what we see in the plaintiff's papers and in the argument is a continuation of the closing argument all of the issues they have raised were presented to the jury they made their and that's not correct the record shows otherwise we have a general verdict of three hundred thousand dollars here it's very unsurprising it's exactly double the hundred fifty thousand dollars expectation damages going into the ca the three hundred thousand dollars verdict is a we were here last time and the ninth circuit in its opinion stated that it did not express any opinion how restitution should be calculated in this case nor do we and so made any suggestion as to the appropriate amount of stuff recovered the law on the recover about architects also a profession there's no reason to say that this case is any different and it requires deviation from the established law the instruction given to the jury starts point four four million under that clause and there was no mistake on the record he argued repeatedly for one point four four million everyone knows that the court then went on to add an additional  in this case under this claim because the plaintiff advanced the claim in one thousand nine hundred nine we were pursuing breach of express contract and that changed when the plaintiff amended complaint the plaintiff went that direction to try to get his one point four four million because it was the law though and it permits consideration of the open market on the issue of the jury's verdict being supported by whom very similar writes a book not because he wants the royalty that you're going to get  theory under which you can recover more than what you would've received had the contract manana well i believe there's a couple of concepts there one is theoretically the plaintiff could have provided evidence that court in a different court that what persons in that position get paid include a component of enhanced reputation leading to referral there was no such evidence from the play when it or an expert so if that were to under the macula to jury instruction no that would not be recoverable from the defendant because the focus is what it would have cost the defendant to obtain the services plaintiff provided from another person so the question was is there any way to recover that if you agree to write a book for a minimal amount because of the benefit you game when you do it and then the contracts peached you can yes under breach of contract or is there any and weave briefs that the plaintiff never complied with federal civil procedure or fifty and the plaintiff did not include in his records the portion of the transcripts that support the verdict sunny briefly outline tho hours were for computer programming the plaintiff presented his computer program in court but could not get it to work the jury saw the plane just filled in the village with a computer program is questions whether he ought to receive a very high rate or a different rate he is needed in his testimony that some of the time he's claiming was for while he was driving or practicing type she or exercising and he conceded that there were many times when he was not working on a manuscript and there was a two month period he never worked on his manuscript because his brain was as he said scrambled and he was unable to stick with it there was plenty of testimony questioning was there actually thirty six hundred hours or not our expert testified that with his thirty three years of legal publishing experience he believed that fifteen hundred hours is what should reasonably be required to write this manuscript and he stated that based upon his personal experience in writing as well over ten years over viewing other writers work and years of supervising large groups of lawyers and editors he's a witness who manages ninety people in legal writing the evidence on the four hundred dollar an hour issue about the open market ivan and the jury were to three hundred thousand so clearly they did not even follow west of events about the open market so that could not leave a reversible error west presented and request that the jury follow the per unit basis and work sixty seven thousand two hundred dollars the question on substantial evidence is the verdict monstrous well it may be but that's not what's here or should the verdict have been sixty seven thousand two hundred on this record or should the verdict have been one hundred fifty thousand dollars on this record maybe we're not you're complaining about that but it cannot be said on an appeal that it's monstrous and it should be higher next for guarding the district court's comments on the law this is the point during the deliberations it was nothing other than a statement of what the law is that is within the province of the judge and it is the obligation of the judge she did not comment on the  judges or even allowed to comment on the other dentists and find out evidence that may be material it was nothing other than informing the jury that this was the law and mr choate was invited this comment first last was against the supplemental closings mr with regard to the conditional appeal may i present argument on that at this time al regarding the judge jury issue i think it comes down to this court's interpretation of this court's prior ruling when it sends this to trial and looking at footnote twelve in that opinion when it was a legal issue is that ensure persuasive legal versus factual for summary judgment or legal versus equity for restitution we went to trial for the i quit all remedy of restitution and it was our position that that th under the law under federal law which governs this jury charge judge question that it should have been a judge trial soley in the event that there was a reversal on shabbos appeal we would request that if there was a reversal that it be reversed with instructions for there to be offense trial but under no circumstances would we suggest that this court would even have the ability to increase the verdicts when we have all of the evidence presented on both sides and the verdicts came in within the range of the two parties in conclusion the ericsson court was presented with a similar situation and the sales person making the claim there ad list author trying to write as an author for the marketplace for authors thank you thought he was an expert on the law for the jury duty heard that testimony answer i did and you understand don't you that the motivation of attaining prominence and obtaining referrals is a major part of the motivation of all practicing lawyers who write of some royalty basis that's the idea answer i think it is certainly a substantial part of it i would agree so there was no secret on that topic the second point i wan perhaps i should have brought it up when judge would last me the question a little earlier your honour's i haven't cited them but i have no doubt you will agree that i could readily find you five hundred cases in california and in the ninth circuit where lawyers suing quantum merriment for the reasonable value of their services and receive are awarded three hundred four hundred five hundred dollars an hour it's routine those of course are cases where they are suing for the reasonable value of their time and effort as lawyers one west is really saying here is we wanted a practicing lawyer who would have demanded and whom we would have had to pay four hundred dollars an hour to do this on an hourly basis but we weren't willing to do that because it didn't that's the problem it's the nature of this contract he wanted the chance it's just like suing you for a million dollars on the lottery ticket that you thought before they announced the winner i can't prove that i would have won i don't honour's now that we've exposed this issue i'll return and i'll close with this the proper measure of damages a method of measuring damages is a legal question and they put on about you know he wasn't thinking while he was doing side seat he wasn't thinking while he was driving the car and the jury had awarded three hundred thousand dollars on that instruction i wouldn't be here but they didn't award three hundred