interest of the decision it's a amazing up academic opportunity but to me we shouldn't lose sight that this isn't an academic exercise this isn't a lawsuit to make a statement  the it's not only to obtain justice for the plaintiffs and to have a determination from the court of what happened but there's actually a very practical impact which is that part of the judgment that we've  very small percentage of the compensatory damages you can collect you know that's not so the compensatory damages against the father know of anyone who has a judgment you know i mean against the father i mean  it didn't recover under five thousand but he does recover under five so what gives him access to this court is the foreign sovereign immunity sacked the case have appointed to that is the seventh circuit's decision in leibovich where exactly that i ue came up as long as somebody in the picture the victim or the family member seeking salacious damages is a u s citizen and then an action can be maintained on one that he and his his right to recover was dependent upon israeli law the measure of his damages was the damages right here so and you haven't made any argument that the district court misconstrued israeli law right so the well so the only thing we're arguing about is is we can exclude the father the million dollars that was awarded to know who i don't contend that the district court made a error of determining israeli law i contend that the district court's damages awards were insufficient and the case law that the court followed finds no substantial deviation between israeli law of damages in this type of a case and the a damages in this type of a case which is why typically when we have these cases with an israeli parent or a parent of some other citizenship and and american citizens the  s it actually matters very much what these compensatory damages are i know we brief the punitive damages i'm not going to talk about them i acknowledge their symbolic i think they should have been higher but i'm not going to dwell on that what is what we're keenly  looking to is these these compensatory damages which in the end of the day go into a pool and that victim's fund is prorated the distributions are prorated against the other three thousand people who have made claims to the fund and all those three thousand people have received their judgements in accordance with that hisor standard there are precious few deviations from that and accepted and one that i think would be wise to follow it but if the judge had if the district judge had an alternative methodology i would hear it the problem of that that we have with the judge's decision does she doesn't have a methodology you can scour her decision and scour her decision on the argument backwards and forwards you will not find how she reached these numbers she talks about the liability she talks about some extraneous facts which i'm going to tell you she should have been talking about and then she just says and therefore i or she doesn't say she doesn't engage in any looking at what's the past them and what's the future damage are too much she does point to a couple couple of factors which you correct correct it it was not like she said ok this person meant i'm going to give them you know fifty thousand dollars a day for the past and ten thousand dollars a day for the future and let's look at the life expectancy of projected out maybe discount the present value and that's how i'm going to come to a number she didn't do any of that she just she said well these people live in a dangerous neighborhood and therefore i give them one million dollars that's not a methodology judge edwards for calculating damage would suggest she created categories she said that she started talking about whether the plaintiff is a u s citizen who goes abroad to work or is the plaintiff a u s citizen and a dual citizen of  country who lives overseas and therefore based on being a dual citizen of another country she says you don't get as much as a u s citizen who is not a dual citizen residing in another country but merely there for business  recall shoes comparing if again she was comparing it to gates and it's an awful comparison because gates was a military contractor who went into a one absolute war zone which was extraordinarily high risk that baghdad in two thousand and four it was a hotbed of terrorism they had just burned and hung those blackwater contractors alive it was all over the news it was on the state department intense warning list for stay away from this place it's dangerous and dredged kolya made it look like well they were just some american contractors off working overseas you to let's let's assume that you have the courts here in attention process has gone through to calculate what are these people's actual damages now there's a conundrum this isn't like you lost an arm and as a result of losing an arm you can't work and as and then you can take your lost wages and you know come through some sort of a mathematical process when you're talking about salacious and you know what is this nightmare worth to a person what's what is the value of a mother losing her child going through that eighteen day period of want to merge how would you do it in a way that she didn't do it that you would say or she needs to talk about what she considered you britain every case every jury verdict sheet breaks down past damages future damages pain and suffering damages lost wages that are just there are categories of damages and you have to come to some kind of an award using a logical process now hisor is one process is it judge lambert looked at literally well when when he looked at he looked at a handful of cases but what we've had now following hisor especially with the peterson case there are literally hundreds of cases sixty five death cases in which there are plaintiffs some of them the peterson case has hundreds of plaintiffs in it he came up with a way of approximating those heart very hard to quantify damages if you're not going to follow highs or you still have to look at the damages and evaluate them not just say i give three point one million dollars to all these plaintiffs just how i didn't even differentiate in her initial decision between the mother and the children she just gave a lump sum to all of them what so you are correct at edwards it's a difficult process to go through  i mean it doesn't tell you anything in terms of calculation of started it doesn't tell you anything in terms of how to calculate the damages i mean she can say yes to pain and suffering for the half hour at this poor child that was  orrible and so it was a state you know we can do that and then we do this and then me considerably but that doesn't tell you anything about how you get to a number how you translate that into a monetary and now  that's why that's what was confronting judge lamberth when he wrote the highs a decision what when you take a look at this case this case is interesting because it has phases with different kinds of damages when the frankel's were naftali was kidnapped and then for eighteen days there was a search and the whole country of israel was involved i mean this was an amazing thing i don't know if you're aware of this was an international when this was going on this was an international event there were kids in jewish schools in the united states were gathering for prayer rallies for these three teenagers who was who were kidnapped my own children were coming home with their pictures i remember vividly and there were ups and downs they thought they had a clue there was no clue they had a recording of the of the nine one one call then they heard gunshots you don't know are they alive or are they dead maybe they were just wounded and then you have to fear maybe they're wounded and not getting medical care what's going to be with them imagine being a parent in that situation that is one period of time for which a certain amount of damage is needs to be reported then there's a period of time from when the bodies were discovered eaten by animals in a shallow grave to the funeral one hundred thousand people at the funeral prime minister speaking at the funeral the mourning period that is a period of time with another type of damages then you have the period after that up to the time of trial and from the time of trial for the rest of their life so judge edwards i was the judge and i for some reason didn't want to follow his or i would look at each of those periods and it would be a torture to figure out how you come to one number for each of those phases of time but you would have to struggle with that just in one sentence of the decision throwing a number out without any analysis about how you reached it number one makes it an reviewable i don't know how you reviewed you don't know what the judge a slow process was she made a decision that she wanted to disregard hisor or not probably i think you've made that good morning your honor erica hashimoto court appointed to meet guests and with the court's permission harry phillips the third year law student will be arguing th testimony here was you know what or what the experts back to but not necessarily what the family expected in fact the witnesses the family didn't expect something like this they did live their lives in that is a reason to put to you to increase damages because that kind of fact the anguish and grief that you feel and and am i reading in a district court opinion is that here because of the history of specific in a specific area and didn't the district court make a mistake in identifying the place of the kidnapping the district court in her opinion on reconsideration  and that in general attacks by hamas on israelis were increasing in recent years i don't know if there's anything specifically about the launch of a junction which is a mile down the road and is in the general  talks about how the the cruel and calculated public manner added to the plaintiff's damages and malice and political objectives increase those damages and so what she's saying is here there isn't the same she wasn't reducing relatives and you know what we're doing here is compensating relatives for their grief and distress and some of the relatives have seen the video and just the fact it was in general a very shocking attack and as we read gates those reasons those were reasons took interfax account the fact that she was ready to do you agree that if if if if we read the district court's opinion as using assumption of risk yes factor two  weigh into the damage from that that isn't is an error in this i heard you make the argument you were saying you don't really think assumption of risk was at work here let's say we disagree with you and we think no she actually was using court does not think this think that that was a proper factor because it went to the unexpectedness of the attack and therefore the measurement of damages relative to other attacks then then you're left with that naked claim of analysis in the exact same way as we are here and you know it's it's it's not a model of clarity in how in how these these facts are relevant to to the frankel's distress and so you know if this court thinks  arrives to different damages number isn't really the point because the district court is the one who is tasked with the calculation the damages that was and under the it the that they're usually default judgments that's true or not only have a very short time one of the members of the court asked about the framework that the judge the district judge followed and the answer was that she compared it to gates that actually only begs the question well what framework that she followed gates and if you look at gates she did the same thing that she did in this case she just throws a number out she did not have a principled analytical method of reaching a number she had the opportunity in this case to compare our facts to sixty four other cases from the d c district