rest all right so that's it for the attorneys we're going to allow we shied practically fifteen minutes for presentations have you to extraordinary what in my view is most extraordinary is the significance and consequences of the trial court's areas and the intertwined conduct of the court appointed g a o and the court appointed  lawyers and because it's so significant the relief that we're requesting which is that this all go back the orders before didn't essentially it be returned to the status it was before the lawyers were filed fire is the appropriate relief maybe that the most helpful place for you to start as far as i'm concerned is to hear your responses to the  issues raised regarding the waiver on the sidelines in response to the announced settlement hear anything from mr bush i don't believe the judge said that although they had been made clear in so many ways from so many statements leading up to that i would also point out that the trial judge announced a week before that hearing that he was approving the settlement so it was a done deal with that point but it would be you know mr question was out he had no at that point no right to say anything and he wouldn't was clear that he would go he had no right that there were several points in the record where were george had said he's going to hear from anybody who wants to say anything that's true so it wasn't a situation where if like happened in front of prior judges when other people tried to speak that he was in danger of being caught off or not listened to you know hands isn't that right he was not in danger of being cut off was he in danger of not being listened to i mean he was going to be heard he was going to be listened to in that sense but it was very clear from everything that had transpired up to that point they at he had his whatever rights he had to be there whatever i could to see judge had afforded him was purely a courtesy and not in his right as a party to be present and to be heard in that capacity and i would submit that you know it's fine for the judge to say i hear from anybody in the courtroom but that doesn't mean that anybody in the courtroom said has anything that's going to be taken seriously or a good is even going to have in the judge's mind any legal capacity the only things i would point out about the settlement conference and first of all all the conferences that lead up to it mr cushing was not allowed to attend so well how how do you characterize or how do you look at the statement that mr cushing made if the act hope or twenty seventh two thousand and nine he ring before a judge of talent with which he said if truly the parties are close to settling the counsel at that point he was given to understand that in fact a settlement was close at hand how how how soon after that what time frame are we looking at well mr cushing indicated how soon he you know i was represented if you think you guys can settle this case i don't need to attend as this particular one he will he was not making a blanket statement that i don't want to or intend to attend any other role sixty three conferences after this it was just the notion that that mr cushing was out because underworld sixty three if you're going to have all the settlement conferences with various parties alone and so forth you're supposed to get the consent of the parties to do it of all the parties his consent was never s didn't even know about all of them so i don't think it would be a proper to say that he waived appearances or waived objecting to the settlements or any of the rest of that because he truly was excluded and it's also worth mentioning i think that when the settlement agreements were finally signed it was not his signature line on there it was the judge signed on behalf of the estate he was never shown the settlement agreements before they were executed and only found out and i don't even think he saw the totally received a copy sometime past the date that they were executed so i would argue that there was no waiver at all because once he was excluded he really was not let back in the occasional shashi regarding the substitution of judge motion raised by the applebee's forgive me but i'm not sure what basically it's that failing to include the substitution of judge record we apologize point i don't know why it factum it's not in the record we didn't exclude anything from the record when we had it prepared it was i think there's a hundred to i believe volumes so i think more than me and so until they pointed out we had no idea that it was not in there i would point out however that all of the arguments in their motion or the arguments which appear in judge i'm not sure but either way we have a situation where there is a granting of an s i just the i'm not sure what at this point is that really alive in light of everything and we have a judge who granted that who's retired i mean it would never go back to the judge although it you know i don't know where it would go but i'm not sure i understand the viability of this if i it should not go back to dutch head i think that judge said entirely different right situation to go back to judge which well i would submit that it should for a couple of reasons well i don't know that there's any authority anywhere for this court to be assigning cases to any particular judge i've seen cases where we've had a request not to have a case go back to a particular judge because of the rulings that the court that judge had made but i don't know of any authority or cases suggest that we would send this or directed to go to the judge that was you know where the court improperly granted a motion to substitute so we would send it back to judge the general authority of rule i think of three sixty six which allows the court to do to create the relief that a particular case may require but yes no specific authority that set him up even if you were to even if you were to persuade us that this isn't on the substitution of judge motion was in error are we absent anything else to presume that it would go to a competent judge and had there was no real prejudice or harm from it being removed from one presumably competent judge to another presumably competent judge i appreciate the point and here's what i would say to that there certainly is  really in terms of justice considering how long this case has been in the system and where it is which was before all of what i would call the shenanigans mr cushing's lawyer stepped up and said we're ready for trial and there if it goes back there might still be an issue about getting christina the minor psychological evaluation of whether she could testify or not but the one judge who rob this stuff from the judge swick judge pierce has been involved at some point or been judge why did webber in federal court their bid there's been a judge in colorado i mean nobody knows everything that happened in this case which is candidly one of the reasons why it got to be such an unholy mess in the first place because while lawyers were bouncing all over the place there was no single judge who knew everything that was going on at all times so why don't we concern ourselves with other issues let me first ask a point that if you were able to persuade this panel that the sentiment should be voided what impact would that have on the colorado case it's a good question and i suspect this from what i understand about it i checked the status of the case and i think oral argument on the appeal is set for some time in march i may be wrong but it's coming up my understanding also is that one of the reasons those cases were dismissed was based on the settlement here in co county that awarded some money to mr klein and then was used sort of to make a race through the kind of argument in colorado so oh i don't represent mr klein personally my understanding is that if that reasoning is removed if the settlement if i'm gone then mr klein doesn't have that impediment in colorado not what the court out there will do i don't know but i would suspect there be other impediments in colorado don't know in the fact that there are two wrongful death cases going on or work going on involving one death i don't know what other legal impediments there would be to that i mean the as i understand colorado klein sake is that again if i understand that all of the discovery about mr klein's damages took place in the colorado case in other words bring home to discover respect to him in colorado so whatever it ends up being in colorado if this gets overturned greyhound and mr klein will have to deal with that but whatever those consequences i don't think it should change the fact that the settlements here should not be allowed to stand both because in the illinois case might my understanding of it again is probably not because he didn't have any claims against greyhound you know about his claims as i understand it in illinois were against him c i not against was ninety thousand and mr klein got one hundred thousand it seems to me that the point of that was to make certain that mr klein got enough money that greyhound could then use that to claim race to the condo in colorado and that really doesn't seem appropriate when he didn't have primary position of course is that because mr question was excluded it's void and i'm there really depending on how you look at it i know there was some concern about m p being appointed but run appointed was in effect his replacement they did a lousy job and it was still inappropriate but but the real point i think is even if you get past that if you get past voidness and you look at this possibly have been in the best interests of the minor if that's the appropriate standard and i would submit to you that based on what was in front of the trial court what the trial court knew it couldn't possibly be the case let me just point out a couple of things all of  occurred before the settlement you know before it was agreed to or before it was finalized so mr cushing had been removed his lawyers had been removed there'd been a special administrator improperly appointed there were real conflicts of interest one of the things that concerns had chad properly was conflicts and he was concerned about conflicts between mr klein and the minor christina but mr oversell skee who was the court real conflict not a potential conflict the in addition that something was amiss about all this was pretty clear greyhounds lawyer earlier in the case had gone over enjoying mr oversell ski and in fact eventually filed i think at least two pieces of paper one in the trial court and one before this court of the all seven six eight appeal on behalf of christina they have never checked into that  oversell scheme before he had been appointed as the lawyer for the a state or for christina claimed in the federal court filing with the defendants have agreed to meet and discuss settlement and compromise of plaintiff's cause of  competent he wasn't even in the case yet he filed these malpractise and abuse cases which serves only to undermine christina's case and also the state's case by undermining friskiness credibility and eventually ultimately were to testify that undermined christina's emotional distress damages by blaming it on something else and undermined her credibility you had more years and the court appointed cio who in open court in front of defense claims dismissed because she wouldn't testify so it was sort of wholesale abandonment of the child's interests in the whole process leaving aside the numbers and i would suggest the court doesn't even need to consider the numbers themselves the amounts even though those of course were considerably less than they were by two respected selman charges really are the numbers they were considering when christina still was not going to be allowed to testify in those numbers  contributory negligence which could have made a big difference because the whole point it seemed to be from mr cupples presentation was that this was a contributory negligence case but it really was of and so they kind of approach to it in the failure to understand this you know you're not going to as the computer folks say garbage in garbage out and i think that's what we ended up with here in terms of the settlement so i would suggest the numbers don't make and apparently not known by the g a o and council were there were witnesses regarding survival it was a survival count and the presentation suggested there was no evidence of survival well in fact there was evidence of survival  there was no discussion i don't think of the drivers history of bad conduct similar bad contact with in the past couple of days greyhounds only reports claim the driver has a stack of evidence that simply minutes thank you thank you cushing did not have a lawyer and so was a mover to participate in me settlement conferences in the supplemental record by him six starting at page one three two nine cushing was in a discussion with churchill kaylin the attorneys yes to who should participate in the settlement conference that was going to be held in the fall of two thousand and nine involving insurance adjusters and all that and there's a question that you know you want to get in a fight with plain i believe i could have someone here but again i think that i don't know how betts going to foster the possibility of a settlement at this moment in charge of keller says i understand you know really what's happened is that in in june of two thousand and ten great home put money on the table put two million dollars on the table how that money got on the table in other words if it was mr if it's negotiation with mr dobbins if there was a negotiation with mr cushing if it's just a matter of graham waking up one morning and said i'm sick of this case i'm paying too much money here's two million dollars at explain is this your the probate court appointed mr cushing is the supervisor administrator of the estate of claudia that appointment had never had never been wraps had never been change what would happen here was judge said adding we you know this is the first appeal you know judge head and said you know what i think we needed someone who's going to be willing to hold this money if this case settles and he put he put the financial in not expecting reporting no money to settle this case but wait isn't this your position as you've asserted in colorado that this was a global settlement of the higher universe were raised during the context of the case so this is a this is it's the participation in the representation of parties in the settlement creation and we haven't even gotten to the issue which i want to talk about about the removal of the plaintiff lawyers under these circumstances but tell me why we should in a sense ignore put whatever we won but you took the position that not only was the miners case people but also mr klein's case was settled and that spacetime will well let's then move our discussion to will would you agree that the position you're taking now mr esposito justified or unjustified is an expansion of the will in the  decision in the sense that the facts under which both of those decisions were rendered were when a an interested party that is a potential beneficiary or family member or was standing in the way of or objecting to a settlement and the court appointed someone as a neutral to make a determination and represent the minor in what was and asserted a recommendation to the court whether the settlement was or was not in the interest of the interested part this case is different because here there was a neutral already in place mr caution and in this situation the basically the people who were appointed were appointed to represent the interests of he individual potential beneficiaries decide right away do with the settlement offer in will says i tell you what you do with it you hold a hearing in which you're looking at the positions of the parties you're looking at the desires of the parties you're looking at the strengths and weaknesses the case you're looking at the value of the case you're looking at the probabilities of the of the success and you're just citing is accepting that number or rejecting that number in the best interest of the money you don't see this is an expansion whatsoever of w it's not about the powers of the guardian i mean those those things come up but what this case is about is whether the judge who we have to remember the truth here was was the cour put two million dollars on the table and i asked sure and i'm related question to that point you would some point your client asserted a conflict of interest or one of probate court pleading and when they rewrite is that he had signed it the pleading was withdrawn that wasn't there wasn't any bar doing we're not seeing what you're doing but wouldn't it follow that if you were concerned a potential conflicts of attorneys that that would raise some type of a i mean tend to say well you know i'm top of any other conflicts we think exist here's a good one who represented our client for five years and now we signing pleadings on behalf of the plaintiff well to the extent that we even knew about you or i don't experience the i don't see that anywhere close to a tell me where my thinking is wrong i'm here i'm sure you have an opinion on that and i genuinely want to hear it there's a circumstance where you have a for example a five year plus long litigation and you have clients and lawyers and the lawyers are going to have i'm going contact with their clients over those circumstance that happens in literally every case sure and so there will always be a position where the lawyer w have gained insight and knowledge as to the physical condition the mental condition of their client during the course of the case obviously they're not conflicted because of that nor are they subject to having their deposition taken on that in essence what is this disqualification races is that if i'm top of having conversations and spending hours and hours and hours with their clients over the course of a live a geisha if the client for a period of time resides with a lawyer somehow the rules that would protect the lawyer from becoming a witness disqualified and being deposed is lost that is essence what the disqualification was based on is there any authority for that a belief the authority is comes from the friend th by putting yourself in that position when you really are put yourself in the position she can become a material witness in what was the with the personal observations not from any professional attorney client standpoint but from a roofing arrangement taking care of the taking care of the child at home heating her food getting there to school doing odd things that a mother would do for a child of a father would do for a child you know change the entire nature of the relationship in him so she becomes a church know with all sorts of know  the opposing lawyer based upon knowledge gleaned from the contact that she has had with her client over a period of time would be frivolous but for what you at some point either just because the child moved in with her or at some point during the period of time the fifth child was living with her we should find this a matter of  million on the table and it i mean that's not really the new all pretty trial conference settlement discussion where you put up your two mill and it ends up never changes two months three months later it's all done nice in a package where the seven percent went to the attorney's fees for no way or the seven went to the minor and a mr fine forty three went through all the fees and the  costs that that was it but you know you can't say you can change your bacon back in november of zero night again before mr cushing was out of the case there were settlement discussions i believe greyhound withdrew at that point there was zero on the table but we have a nother unusual situation in that the lawyer not and not from here from your firm but from another firm had been against them who's left are we just so you quite understand we said the quote was prejudice after we've learned information that was supporting our position bad bad and stephen should be removed and we brought it to the attention of the cork in a motion to reconsider at that point judge swift wrote in the ping in saying   say something on the record or off the record says judge who would listen to me i'm going to tell you who to listen to and we would have listened to him great on him two million dollars on this table and a case that  sick and tired of paying huge amounts of money for we would have listened to every single word he said in the hopes that we can you explain to mr cushing ride the seven russian with best interests of the right he should go wrong with that we were deprived of yes ma'am ask if if you believe i'm sure legal fees are always a concern but in this particular case why was it that the greyhound opposed i wish someone would have been there to see that mr klein buy out something without thirty he wasn't executors you know it was in this state open that you know and someone i wish would have been there to say this case no we shouldn't be in colorado of any one individual lawyer the plaintiff defendant or judge this is just an incredible series of events that created one of to take the bus away to start a station to get the bus service the route to where they were where they were going in and the evidence would be that she had been told it twice in the witnesses who confirmed that story so he was leaving by a bankruptcy and the only money that would be available to any of the claimants the state or or the miners estate would be from insurance policies that were in effect at the time of the incident those insurance additionally there be set off for any any money that would be obtained from greyhound sold for example if we look at this situation only for m c i if greyhound settles prior to trial for whatever money  estate or the minor state would have to exceed the sum total of that in order to get any of those insurance proceeds and how does that figure respect to how does that figure into the issues that are before us at this well i think it goes into  the justification for the amount of the settlement rather you know there's some amount as ninety thousand dollars i think just to make sure that that's not in order low that that case into account the fact that if ground settlement two million was dollars it's just strikes one as being rather low if that's why and secondly the second issue why why it is always because the nature of the claims the product liability claims against it yes  a series of talks between you know one time to release him span over a period of time number number of different sessions but but isn't it true though that the the two million i'm not talking about your nine  the two million was announced that we are using the terms on the table in the field and then you're saying there were you know discussions ongoing in ongoing and then a few months later there's i don't know you know the date that you came up with in ninety and i'm not really talking about m c i but i'm talking about the two million so these discussions but what were the what were they doing that they went from two the barring the testimony of the minor due to not compliance and a failure to just sit for a deposition or was that on the the one count regarding the emotional distress yes or now that that that did not significantly change our our our position in fact we you know and quite frankly and during the settlement conference following that think that was a factor taken into consideration but because of that our offer did not go down but that also occurred in the in the interim well since you raise  didn't it seem that to use that there was maybe due to the issues related to shall we say competing plaintiff's lawyers  that the initial response of the plaintiff's lawyers were before we have pursued for a deposition we want to have a current evaluation by a medical professional as to whether that would be too damaging to her as a minor to have to be asked to re live that and that apparently saw this whole issue as some type of an intimation that she was suffering from some mental illness and not that  whether it would be harmful for her to be asked to relive the circumstances of the deposition and somehow the request for a  evaluation became seen as a refusal to produce or under any circumstances for the deposition by the judge to enter the sanction isn't that a fair representation of i don't believe so you are at least that's that's perhaps how the plaintiff would like the court to well to put it tell me where it's wrong please i believe every opportunity was afforded to the minor to have an evaluation and there is a failure to obtain that evaluation and that's that's where the judge finally said enough is enough you i'm what i'm pointing out is the fact that there was no final evaluation done there were opportunities to have that of a relation thought it was a failure to by the plaintiff to afford to  was there to suggest that if the only the only testimony that had or rather reports standing was that of an expert saying that this would not be you know professionally advisable or medically icicle or this i know a lot what changed other than the judge in your viewing the young woman well that was poor predated that by again because at the time i don't have th the number of years that that last report pretended that that decision but that that came well before and there was again a temp set times to obtain a deposition which removed this settlement i agree and i would suggest to the court that because mr cushing was excluded that's right and that is by definition an abus discretion let me it and i want to come back with us for a second because of something mr esposito said which i think is kind of critical to this what he said was well mr cushing was still appointed responsibilities doesn't mean you can't be sidelined in the raw division case but if you think about that what they're really saying is of course you have a right to attend the summit conferences we're just not going to tell you when they are and that sort of like this where the judge pointed the lawyers as opposed to perhaps you know after discharging the lawyers and then the actual parties would mate and search out right right i agree i think that was a serious problem in effect the judge was firing parties lawyers and he was hiring party for years and i don't think that's a problem appropriate it's certainly not a pill certainly unusual i'm not commenting in the way about it's the propriety yes at this point but i'm just it is it is absolutely unusual web if nothing else makes it inappropriate it's doing it without notices in hearings and not paternity to be heard i mean that really if a party's entitled to his or her own lawyers well if mr if mr cushing truly was still him then wouldn't it have been  brought a motion to have him fired and see if that could be done which didn't happen so i agree i think that's exactly i think that sort of reinforces the point that he was out well i'm not making any and i don't want to see just any opinions about this case i'm just asking questions about you know it's certainly something i don't think we see very often but we also don't see the overturning of settlement unfair because of the whole process and who was doing what in their case that we're not sure what it was neglected by the year of the original attorney you have got to the cell and so on so forth so there's not a lot of it but there is some precedent for it  s i i was really one in a court of million not two million so that the number that you would have had to get to to actually get a recovery with graham's contribution would not have been four but would have been somewhat less  but it does change the value yes i agree but it doesn't eliminate the value of two other points i met with respect to the removal of the attorneys the timing so the first thing happened was essential the next business day he fired the lawyers there were no interim hearings there was nothing else that took place the very first thing he did after that case got back to him was to fire the lawyers and finally sort of on behalf of c and i'm sure all the lawyers in the parties in the case do as well one of the thing about the worries of the deposition of misty vince and so forth i think we really telling factor here is that once she was removed greyhound never made an effort in the six eight months or whatever until they settled never made an effort to take her deposition and that suggests to me that the removal was not because she really would have been an important witness if she would have been it would have acted on it finally with respect to christina's evaluation she really didn't have opportunities what to do that what happened was that in her there was a push for her to have her deposition taken and her probate appointed g a o l that when douglas had asked the trial court well at least let's get her evaluated before you issue orders about her deposition trial court did not issue an order  deposition without that was improper but she really wasn't given that opportunity or certainly wasn't ordered to do it by the court and if the court has more questions for me all i would say in conclusion is that yeah this case is kind of a mess i