a case that comes closest to well that's just as well i don't think that's true if you look at union planters with union planters specifically held your honor is that since the courts and thirty claims were  tactical reasons that they didn't want to be in a position where they had both claim scope with a clear head entire section of bits of the opinion dedicated to this issue because it clearly held that both of them could have gone to the jury now not in the majority  duties may be bad but as a fact never that's a very rare case what normally happens in these legal malpractise cases particularly when there is not an agent letter is that there are blanket denials regarding what the scope of the engagement was what the repaints a turn is whether the standard of care required them to perform certain acts and whether the recently prudent attorney into the circus all of that goes into your election when you make it you can take your choice and tactically it's a rare occasion as you i think concede treats ah that a lawyer will live both good which are even if you can do so because of the  no obligation whatsoever to look into the zone had no obligation to take a look in determining whether or not this building could be built so that a tragedy is akin to these types of transactions simply don't delve into those matters the jury might have believed that communications between the loan officer and which we in the attorney with a loan offer specifically asked the attorney to perform specific tasks including need to ensure verify that the building can be built so this is a situation where your honor point where you have the possibility were a jury can come back and make a determination i guess a real estate attorney normally under this circumstance would have no obligation to look at this only because that is a fairly complex believed that there was an express contract in which the defendants agreed that yes we will verify that the building can be built and didn't do it you could very easily have different verdicts on the one hand they could believe the defense expert but say that that says as a general matter real estate attorneys aren't going to get into debt under the particular circumstances of this case because in fact the attorney did agree to do it because there was something expressed in writing saying we need you to verify the building can be built ok under this circumstance we're going to go ahead and find in favor of the plaintiff on contract not because they agreed to do it of course of as as you point out the the initial commissions so to speak  to the of turn his and his to step it up whether it's simply related to documentation or whether it even extends to something however let's let the cat out of the bag right now if there is a the trial i mean that one of the one of the major issues you but that is that it seems to me a key issue in this case and might as well be put on the table right well surely it is moving moving from you know the issue of whether or not  allowed to go to the jury on the contract claim as well as tort claim before you the summary judgment issue that the court ruled on you can look at the core read a s actually take issue with the course really from the standpoint of what the big expert testified to is that if you turn he's committed malpractise in the way that they drafted the documents failed to advise a client regarding the risk of the documents and what the that the construction loan you set up the procedures you advise the client regarding what the risks are but then when the money's actually goes up in the sets when dispersants the attorneys aren't part of that transaction the question was whether the different times the so you wouldn't you need an expert to say that but for the first improper initial dispersement the bank would never have made well other dispersants and therefore and i don't know that's because it's somewhat analogous to this past nichol's issue that justice be brought up brought up because there the court points out that the auditors well i mean the investments over a period of time they were actually being sued for dispersants without actually having the right to build the building that the bank would continue to lose money in the future yes i think that's absolutely foreseeable let's see where that leads us if we start other professional including a doctor or a lawyer correct op your opponents would seem to want to limit that to only two accountants but it seems to me that e and all the payments up a big effect of the matter is that up there is an intervening human agency here or what's sometimes referred to in legal to another lawyer that other lawyers negligence will supersede the first lawyers time and on that sense absolve the first lawyer from liability now here if you have experience bank we set the client on a course of action i would agree with you if the client then doesn't follow our advice strays from our advice rather than the provision of the attorney giving us the advice we do something look i don't see how i can come back and say listen it was your fault for getting into trouble to begin with you know that well then simply pastor is the argument that clearly has been defined in your br apply where the attorney's advice is not followed of an end and where the attorney could have could have prevented it heather his advice it wouldn't apply where the were the client so to speak ex totally irrational at the point where it gets a lawyer and the lawyer forgets to give an instruction that the client could be a within or bar or is the lame point and not just strategy one of his professional obligation but it's a professional obligation that is also totally som exercising any common sense in conforming their practices to avoid the risk of injury can they lay it all on the lawyers so to speak simply because  client initially getting involved in this loan transaction to begin with and even allowing it to get the loan committee or come out of the loan committee for approval there is an expert who was brought on specifically to testify to nothing else and a half million dollars dispersant yes it is and wouldn't vax or is there anything in the record as to follow up responsibilities by the bank to see how that were and a half million dollars inspections before our plant suspects to be completed because the various letting is needed to get that stuff done but at some point the bank would itself have its own professional responsibility to prevented had your theory as to what the lawyer was responsible for here in fully implemented but i have the same token i would also have been avoided it was forseeable but additional dispersions were going to be made even though this building was you can be constructed the defendants knew that additional money was going to have to be spent before you got that point in time and you know i don't want to forget on this expert issue that it is not i see them on the front end setting up the procedures drafting the documents all of that he did testify independently of that that the lawyers were brought back in in two different two different circumstances and they indivisible injury ok when when they when are that's a visible injuries when the injury is into visible then you look at who caused the injury and whether or not the plaintiffs contributed to it no wouldn't while with the lawyer be able to claim contributory negligence wouldn't that be analogous to someone who smokes all of his life and hires  in undertaking to lend money to these guys first place you're assuming that that's the only cause of history there that there's a similar injury with map or causes by multiple players and this is a similar transaction ok but this isn't that the reasoning apply prandin isn't that the same reasoning that would apply with regard to other professionals who won't who are retain let's move on let's let's assume that this court decides to apply the prison library to this case if you read if you read the cooper's case they rely heavily on the new jersey case regarding an insurance brokers in effect coun state case in his reply brief it's called in persons for oh ok and now we're going to injury i mean we're talking about inertia and we need to bar evidence and the issue here is evidence they haven't complained about the instruction there's nothing in the brief about instructions it's actually quote for quote from john co counsel even though there is a spring court rule two fifty two that discourages anybody from reading the arc but i don't think it goes torts quotes up at any rate th well that's that's an interesting question because you know i mean there's still there's still the question that the but jeff there's no case in illinois that says that you can take both counts the jury when they're to put it in negligence instruction which they have not raised on appeal they have not really an instruction on appeal that they've only raised the admission of evidence and all of the evidence you're seeing i th to understand the context of that you pass to understand exhibit fifty two which is the construction loan agreement ok now get the construction monogram and to understand how it plays into that motion i have to read section five point one and compare it to signed that agreement now well mr cayman said the expert he said that there was negligence with respect to the first closing and then when he was asked well what any other further distribution would require compliance with section five point one which means they had to have twenty first and they had to have sold now cribber distributions were not can were not  was not on the table at the time of the first loan council since we have a summary judgment case here i think we have the clearest possible on where the material issues of fact resign loan documents with the attorneys for the developers documenting the prince actually gathering a checklist full of needed documents and verifying the appropriate zoning wasn't place as well as handling the clothes now my first question was there an extra six submission by the plaintiff identifying these five items as  being the responsibility as as being the responsibility with which the attorneys were charge does the addition given these four or five other charges if they had extrinsic submissions to that effect procedure really can we hold the summary judgment in this yes one because this isn't there because it is a real issue of fact as to whether you were hired to document the lawn which you didn't do and they fill your the document along being years it in preparing the construction loan agreement and giving it to the bank and saying here is the outline for everything after the initial closing far of this and you will be protected house so that's all you're hanging hat on the damages other then the first four and a half million which which you you you have adequate protection against because of the insurance title insurance the march now let me ask you if that's your beef is there a reasonable inference to be drawn either way either in your favor that there was no  but they had the expert would testify that it was and that's why it was precluding that's why somebody testimony as your point on him points out doesn't it doesn't relate to the conduct of the attorneys it relates to areas of expertise some terms of the construction aspect of the case itself while under priced i think i think they have to have expert testimony but there's your second question foreseeability buy the court to look at but we're talking about judgment before it got to the jury where the court isolated the issues that could get to the jury up so that only one of  what but only once the damages that were never heard of the jury from hearing but that of the total damage well yes but they heard all the evidence regarding liability and they entered not guilty i mean your point would be very valid if they had entered a verdict for a million dollars or for five million dollars then i think we'd be arguing strenuously here but what we have is a verdict of not guilty and i expect the court to pick up the court precluded any evidence of anything other than e gathered that from your peers but the conduct leading up to that the initial dispersement is is ninety nine percent of the conduct that that was criticized i mean there's there's very little if any kind of after the initial closing the knew that there was no zoning for the first dispersement that or was it in the river contract that they signed but the president of the bank said he knew it and again i had the president of the bank so before ever closing i knew we did have plans and specifications i think there was another point i want to make and i can judge that was only meaningful when heard from the lose eight if you actually look at the line of questioning in the face president talks about how he was shocked to find out they didn't have a number of things he says i did understand the plans and specs were finished and then counsel defense counsel asked questions about well you can't hear the actual facts for that there is a plan to use develop so the idea is you go in you explain that the building knows of a certain size the certain square foot ratios you can get some tax breaks it you can you can get you can get additional up you can you can grab an additional area for example if you're on an alley that might boost your fleury ratios you can make a bigger building there's different things like that that come in but that doesn't challenges both my reason and my memory but i can be certain there is a case at least with allowed them to do with trouble but all that means that is all the defendants argued at that point is that the pla in and you then didn't follow their advice or you did something else but it doesn't that you do it happened here with the point to every single thing that the bank did carry everything hiring the attorneys and just say well you're that that is the start that not only did this creep that was the start of the case and that's the big hit again and again which has nothing to do with whether or not the client was actually been injured as a result of their not practice or not performing their conduct  on a piece of property worth three million dollars and they fail to find a match simple as that asylum or that these guys are funders you know they're all crooked to begin with they were going to try to do all these nasty horrible things but if at the end of the job because they were dealing with the crux thing with all information if the client had withheld that information from the lawyers i think it probably can come in because of the layers could've gone ahead and given advice then to the bring in the fact that it was a dumb idea to begin with to get in bed with these guys you know kind of to me it goes against the very nature of what we're hired to do you take your clients as you go except that there's a difference idea but in point of fact you hire lawyers in those instances of terms of one's own common sense to prevent the loophole in the future possible days specific duties explicitly