r the basic issue here is that when we look at what the jury necessarily found in reaching its verdict we're able to apply a lot to those facts that make it impossible for the verdict against officer parker to stand with the jury necessarily found that there was a reasonable ca to use it was objective really reasonable for force to be used during this incident not necessarily i don't think so i think the jury could have concluded the forest wasn't necessary period that the problem that i have with that is then how can you possibly reconcile whining like that with the defense verdict in favor of officer coke or his force wasn't excessive but then that then states m for your argument but i gotta say i think it's based on a faulty premise i think a jury could come out with a result that said that the force wasn't necessary theoretically because nothing was necessary the application of any forces by definition have to beat that the jury is not required to sign on isn't baseball obligation arbitration we've got to take his version of his version the jury's allowed to sit there and mix it all up and make internal compromises that that maybe aren't logical to those  sitting outside their own but they can come up with all sorts of things and the argument seems premised on something that i think is actually not necessarily the case and i didn't see any legal support for the proposition era loud to derive those kind of inferences and build a whole case on it i mean you're you're like part of the you don't like part of the verdict i don't think you can take the part you like and use that to impeach the part you don't like i don't think that's what we're trying to do i think the whole point was we were trying to reconcile the verdict to explain both parts and not say we like this we don't like this but what is the logical basis on which the jury could have reached both elements but you know we've got case law that says inconsistent verdicts stand so i think you'll do better if you just tell us why the evidence from the on the facts location front of us don't produce a verdict so what you're complaining  i don't mean to sound flippant but i really don't feel comfortable simply abandoning this without at least taking it a little further stay out of our surely you're not persuaded at least one  really i don't think you do it legally you know that you do it factually so so tell me why it is my factual scenario can't fit why the jury couldn't have decided that that their force wasn't necessary but the force applied by officer cutler wasn't excessive because he didn't hurt anything but that the plaintiff's own testimony is that he was injured by the the flap laying on the ground sure he doesn't have to believe every part of any given witness jury can pick and choose evidence shows the koger put handcuffs on mr wakefield correct yes it also the evidence was that he was part of the group of man that was on top of him and wrestling him into submission that's everybody's testimony and there's the then and faced with obviously is if we take the facts as being there's no appropriate use of force permitted at all then it doesn't really matter whether it's a taser a baton a shotgun anything excessive force i agree and that's and maybe maybe i'm not presenting my my argument well and i do apologize i think actually i think it's a clever crime struck but ultimately you've got to go back to the question of did the evidence that your clients use of force was excessive and all of the arguments that you've offered up trying to build on the premise that you draw out of the verdict that you're the same same stuff let's focus on that evidence and not try use the verdict to say well it must have been concluded that some force was necessary it might well about that we have to face the question of ok what is your client's use of force excessive to the evidence compel the picture if this was a one on one whatever you take the evidence and life's most favorable to the verdict which would be the plaintiff's testimony and the plaintiff's testimony again is basically no force was appropriate under any circumstances at all and which brings me back to the it doesn't matter well the first testimony is not legal conclusions please testimony has the following things happened  got many cases to talk about the potential dangers involved in that broken bones scrapes bruises concussions the plane of himself testimony testified that as a result of this incident he did suffer scrapes bruises  injuries it's not necessary to compare the use of force that officer parker use which was the taser and as officer parker testified from his perspective if he was going to use any force at all he had and all the other people were doing was excessive as in comparison to that the only testimony the only evidence that was used is that the use of the taser itself are you know where the language that plane is counsel used was a different order of magnitude you know pepper spray that would have a thirty minute impact that might be a different order of magnitude of aaton that my crush a skull break a bone that might be a different order of magnitude threats let me let me ask you this what was the rationale for not just putting him up taking him off the board letting him out  the testimony from the various defense witnesses were two fold one they didn't know what was happening and they were concerned about him and trying to to get him under control so that he wouldn't hurt himself the other aspect was that he there again is no dispute that officer parker wasn't over there he wasn't part of the group that was tending medically to mr wakefield that was trapping him in or that was dealing with his reaction to  strapped in whatever may have precipitated that he was by every account off elsewhere doing i think it was using a roll attempting to measure the the the point of impact for the auto accident that it brought everybody there he was involved by the time he became aware of anything there was a struggle going on he didn't know how that happened whether the firefighters the paramedics should have simply backed off and let mr wakefield up is a different issue but they warrant the verdict wasn't entered against and i think they were even defendants at that point the so the question is given the information that officer parker had which was he turns around and sees a struggle going on including his op one of his his partner or fellow officer attempting apparently to subdue a restless person he doesn't know what happened did it suddenly turn out that the whitfield's testimony is that the grappling occurred before officer parker got involved with testimony as i understand it is he says to parker i'm reeling claustrophobic i would like to be let up officer parker says but again if if the jury is not that the same argument would apply to officer kobler we're back to that well put but i'm not sure how we can avoid that it may be that the jury was wrong as to officer coker being part that's a little bit of a misnomer because what the the law as i understand it requires that you try to harmonize the verdict before you come to the conclusion that it's truly inconsistent and if you take that first step is there a way to harmonize what the jury presumably found factually that would support both the you don't really want to harmonize the verdict because you want to find something out of the verdict provided to cover that undermines the verdict as regard to parker i think they can be harmonised but even if you say they can't it doesn't give us any reason to believe that a verdict if your client was one it was wrong and should be set aside well no but i've not saying that i mean my i'm saying the verdict is wrong it's office park as a matter of the law not because it's internally inconsistent leave it factually from the jury's perspective if you harmonize the verdict the way i'm neither party is hwang in that sense the jury valuated the evidence and came to the conclusion it came to and different part of our argument explained why they may have come to that but if the if the jury concluded that some use of force was appropriate and therefore and the use by that used by officer kobler was not excessive that doesn't say that's that part of the decision is wrong if then follows logically that the jury concluded that while some use of force may have been appropriate officer parker's use of force that met the manner in which he used the force that that in a global sense was appropriate was that there's nothing could be they decided he was a late comer that that ogre and the people standing with him had to do something but by the time parker shows up you don't need somebody else piling on in some fashion i mean while it's true the jury may come up with anything that comes up with the perhaps it's a legal fiction but if the fiction is that the jury takes the actual evidence and we just conclusions based on the actual evidence as opposed to just saying well we're going to ignore everything and imagine what happened that may be what actually happens but of course there is a test or that that is to say if the verdict is simply not supportable by the evidence we can point to one side or the judgment of the one side and when you make a motion as a matter of law i mean we we can deal with that exactly and that's not just case right well i guess my my my issue is that as far as i can see the only the only way that it i consistent with the evidence that was presented and even just you know it is is to say that the jury had to have concluded that some use of force looking now i think we're familiar with this argument we've taken you officer parker as opposed to officer calder it's not dependent on that the bottom line is here is here were questions of the significant nature given as as your honour's have pointed out the issue here is the  whether the force used was excessive that suggests that the reversed and that frankly i think that's a very plausible explanation for why the jury distinguished between the two that doesn't necessarily mean the evidentiary ruling was of discretion well given that there was literally no evidence put on before or after to support the the assertion that there were death taser and its minimal level of impact on a person and here was the suggestion that no officer parker is you know soft soft pedaling this thing it's actually a lethal weapon but he's he's saying you know you can use these things in there if we can use him because they're safe and so why can't he then be cross examined about whether they really are safe or not because it's the questions that were asked are the the legal look while the equivalent of when did you stop beating your wife they presume that these deaths occurred in this and his testimony was he had no personal knowledge it's one thing to act to test his knowledge are you know officer parker are you aware of whether or not there have been more severe injuries are you aware of the potential scope of injury and that explains why he thought it was ok to to use it under the circumstances but thought it would do  it wasn't fact information that contradicted his they were they were leading questions but they were leaving that without any foundation without any suggestion of well they were leaving with some i mean if you look and you found out there was no such thing my guess is you would have you would be telling us here and i asked an officer has there been a taser death in a nearby police department in the recent past i think that's within the fair a boundary of questioning balance in zealous representation of their client to invade the proper province of the jury the jury certainly had more than substantial evidence to find that  evidence in support of the verdict because there we have mr wakefield's testimony that he's not resisting he is asking not to be shot again and nonetheless  officer parker tasers him the second time i think that the way to reconcile these verdicts is that the jury believed mr mr wakefield who was again not a criminal that was being subdued by the police to be arrested that somebody who was rear ended in a car accident and then i think is an important fact to consider when evaluating the appropriateness of the force to be used and i believe all of the the issues such as the right to refuse medical treatment have been raised by the court and be happy to address any further concerns or questions on that point the the fact is that one of the paramedics testified that is clearly a very painful experience officer harker testified that it is clearly a very painful experience in fact his description is that your it's like your whole body experiencing  now and that was his son had one of the effects of the taser with regard to my questioning on his awareness of other you know incidents with  responses that the jury considered as the evidence in the case and not the questions of the result a point at which questioning can't be justified because questioning is a way to communicate information to the jury because  an objection at that time is the right yes i believe i had the x or yes and was there ever any subsequent requests to strike after the  believe everything story i don't believe everything i read in the papers in the sometimes say things in the media sometimes says things that they kind of blow out of proportion so and i have no i mean i have no i don't think would be a higher standard the i think has to be a higher standard or we would find automatically that every time every time there's an overriding or qualified immunity events you're automatically entitled punitive i say your hon the way i understand the difference there is the difference between intentional versus is a y c ok and that's because of course qualified immunity is not it is objective rather than specific to the individual wakefield states that he is not resisting and he is asking begging not to be shot again and officer parker  his testimony is in direct contradiction but i think we have the jury favoring mr wakefield's view and he fires a taser a second time and that i think is  doesn't get to address the question that's right and we stipulated that she would be the fact finder let me make up one i'm confused there i saw that in your reply brief and fried to figure out and now it's clear at least the form disposition was in granting the rule fifty motion right that's all the arguments for and then you mention in the brazen mention now that you stipulated less or simply decide is the finder of fact yes you're not asking us to review that is it goes back to the go back to her as the finder of fact i think one of the first issues we have to address is whether or not that stipulation was a pain and remains and that he'd meant well why wouldn't it i mean if you  said this if she gets to decide it now she could have decided against you based upon matter of law which you did or if she'd said you know ok in front of me i don't decide as a matter of law but i'm the fact finder  i'm entitled to say no so she says no it should never go back to her i suspect she's going to say no again although if you go back to her saying you can't do it on summary judgment she'll say ok is not summary judgment i now find as a matter of fact a but i don't have that at the the actual testimony he does not indicate any knowledge that the use of the taser caused it and that was the implication as as we put it in the question not that he didn't know that somebody died in connection but not that there's necessarily a link which is what makes it a lethal weapon and so i to the extent i made that unclear and suggested it was a more definitive statement that it was i do  argument but the turning to the cross appeal i think is quickly to say that in terms of the stipulation i don't believe that it's really possible for the judge to come to a different factual conclusion because her legal that the evidence supports that his conduct rules to that level his conduct certainly the jury believes in this and i'll certainly seems to believe was wrong and an inappropriate response to the situation  me ask you a question and i on emphasize that your answer the question if you even know the answer to the question has no bearing on my decision in this case it's rather a matter of curiosity  and i teach some of the stuff in an abstract way qualified immunity and so on i read in the academic literature particularly by dean jeffries of the university of virginia who does a lot of teaching of police officers and so on and in ask this question repeatedly in geoffrey's he says that in talking to police officers his uniform the uniform answer gets to this question when officers are sued successfully