thank your honour's and please the court jonathan franklin for the pallid kenneth feld in my limited time i would like to focus on the district court's error and granted summary judgment on the question of contract formation despite the existence of material disputes of fact as to whether or not the parties did ingrid agreed the district court found that an oral agreement that potentially was and it up being worth more than two million dollars was entered into in a single phone call between mr kirk who is f i c's representative and his new who is a law firm associate working on mr phelps case but the parties to that conversation the only two parties gave materially different testimony as to what was said during that call the district court essentially credited mr curtis rendition holding that the oral agreement was reached when ms mewe allegedly either proposed higher rates than the ones that mr kirkwood initially suggested or asked whether mr kirk could do so and then mr kerr allegedly either accepted her counterproposal or made a new offer that she then accepted but in you're on i wish i was going to address the oral agreement first but i but if you're out i would like to meet or to go to that i will i would just say and the oral agreement ms mused testimony was unequivocal she never proposed different rates she said when mr k proposed rates that he wanted she just said nothing she said she never asked that mr she never indicated mr feld want to different rates to apply she was a junior member of the felt team and simply understood her role as conveying information to kirk about the case and listening to what he had to say and conveying it to the rest of the team to get to the alternative argument there was no unequivocal evidence of a written agreement as one would expect for undertaking of this magnitude to begin with and i'll get to the agreement shortly of that the budget document surely but mr kurtz october fourth e mail which he reported some memorialize their conversation did not refer didn't say we have agreed in our call you agreed that this is what he never said that and what the next language he uses any any amount in excess will be the insured responsibility and he testified clearly that that was the language that he said he used when no agreement had been reached and the reason he used that is that what he was what he was trying to do is negotiate every tension agreement with fulbright to be  to get to the budget document so the district court alternatively held that the budget document which was sent more than three weeks later after that email was the acceptance of a contractual offer but not a seven that size fireman's fund that defense has most agree on the program hourly rate yes so just to take the argument against you for just one moment that this letter sat as we want from you agreed upon rate this is what we say the agreed upon rate should be and we want it within forty five days response then than j five thirty four is a response which includes a budget which includes a budget the numbers yes the hourly rates that they post in the f but i think that was a separate document the budget was separate from the other sorts of j five thirty five which comes after just for the four as that's the budget yes the budget i believe there was a separate what i'm saying is i think there was a separate communication from expenses that actually will be incurred in the matter we ultimately will be guided by our professional judgment to use the time the resources necessary doesn't touch rates at all it i think the very least at the very least this is a very poorly worded well again we we are on this if you if your goal is to say we don't have an agreement as to rates it doesn't say that express leave here we are in summary judgment your honor in a page seven ninety case says quite clearly that where the documents that are alleged to constitute the agreement are themselves have set the bill to multiple interpretation we're somewhere rates appearing here has a susceptible to nothing  a budget that's based on the rates yes and she says now you know this is this this is not binding regarding fees and expenses that actually will be incurred because we get to research how much time you've spent on this  think there's a clear good reason why we got yuri could determine this and that is mr kirk has said this is the most ethical as he's willing to pay how much is it going to cost us and she says well you've said the most you're willing to pay here's what it's going to cost you at that rate if your rates are used i think it's entirely reasonable to be helpful to mr kerr in deciding what it might cost him at what he has said is the most that he's willing to pay it does not mean that that fulbright agreed and there's no statement here any offer there's no statement of any acceptance and there's no statement here of any binding intent so i think it's clear that's why lisa my view why if icing ever raise this on summary judgment what they said in summary judgment is that this budget document somehow confirmed the earlier oral agreement see she used the rates we must have had an agreement i don't think you can look at this document we think frankly it can't even reasonably be interpreted as an acceptance  contractual offer and if i might also add again what mr kirk was trying to do here was to negotiate i see i'm close to my rebuttal time if i can he go ahead appreciated what mr kirk was trying to do here was to negotiate every tension agreement with his chosen counsel what would be his chosen counsel and that agreement even if you were to look just at this is as just except for the purposes of argument that this is an agreement on rates there were numerous other and it's not there were numerous other terms that were left on result things that i noticed that are going in the briefs because the court doesn't appear to address and when you raise below the argument that there are a lot of any hours more than four hours in the case we're going to need prior approval fit in that and those are jek to two in the december heat letter but nothing said about really well the december i'm just saying now i'm moving on to an argument that is even if you want to assume joiner letter what that jury could conclude there and what her understanding i think clearly was was we're that's the current payment but he hasn't surance that he's bought we already have a contract for insurance and we will deal with that and we did deal with that later we filed the lawsuit here but it's not an agreement the question is here for the district court and for this court is where is the agreement where is the intent to be balanced as to all material terms and we submit you cannot reasonably much less unambiguous we look at the budget document as constituting that intent  basically the context is very important here the budget didn't come out of the budget came after a couple of conversations which were memorialized by mr kirk and then carolyn you sent the budget  she was described by mr franklin as a junior associate but she didn't send it on her own volition this budget was sent after five other individuals at fulbright looked at it and after it was sent to mr feld twice and that's evident from the privilege document that is in the record showing that this was a document and also what is the purpose of a budget the purpose of a budget is to let a party know how much money it is anticipated will be spent on undertaking this undertaking was events of a single point of mr feld sister personal injury action and the budget was designed to indicate to give fireman's fund i think it's pretty obvious to anybody dealing with a budget and idea of how much would in fact be spent not how much would be spent on some hypothetical but how much would be spent on the actual fees and costs that would be charged in this case in that context it's crystal clear that this was an acceptance and is as your honor  noted there was nothing in this cover letter despite much noise made to suggest for a second that hourly rates were not as agreed and the deed that never shows up until two years at later after the underlying trial is done and apparently at that time we had buyer's remorse kick in and there was an attempt to to dispute the rates charged for the first time and that is the discrete agreement we're dealing with and our leave rate agreement how much fulbright's attorneys would charge for their hours of time it was about how many hours it was about cost per se it was about any other aspect of it the agreement we're talking about is the hourly rate agreement other aspects of this case that might have involved other aspects of the billing guidelines are not before the court they were resolved very early on in this the context of well they were resolved in the underlying action before this appeal and before we had a final order in that case what is your best evidence  did i think judge bates said that the budget was the at the latest when the agreement was reached because that was the time the best evidence is the budget being sent back that is the offer is the email that mr kirk sends to ms mew indicating what rates they discussed and what yes that that's that's the offer your honor frankly in the in the light most favorable to fulbright in this case and felt that there is an argument i think  case more because shuls the ambiguity you've now flipped back to the original conversation i guess that's versus original conversation which certainly doesn't look like an agreement to me so i'm not sure that's the first thing i'm trying to figure out is where do you think this is an offer it doesn't look like anything i learn law school so i don't yet before we have an acceptance you can have acceptance and blue it's got to be to an offer if i think that we are a conversation just doesn't doesn't give you the foundation want then you really don't have the offering you are saying i thought you were saying you're resting when i think it's very soft ground you're saying the prior conversation is critical to your again what your theory is ok where your answer is to my question which was five minutes ago what's the offer which you think you are pointing to which confirms the contractual arrangement because  not i don't need to be glib we want we all went to law school and we knew it offers an acceptance we're this isn't even close to the part that doesn't mean the paradigm's the only way but it's not close on my getting what you're talking about  i understand your point your honor i think for purposes of this argument j a five twenty one is the offer and the budget coming back is the exception let me also  i think we've gone through the context pretty thoroughly in the briefing and almost spare the court going through that again and unless your honour's have any additional questions i'll end my argument at that point bit but all the memoranda are not in the joint appendix in their entirety but i do have the page right now is page six fifty seven of the joint appendix where we were in our summary judgment motion and we phrase it in terms of the offer we said even if f o c has made an offer the material terms of any such offer were never stated and i think that goes to the point here that there was not a meeting of the minds of all the material terms of the proposed arrangement and that does go somewhat to judge edwards questioning about an offer there was not an understanding on the part of fulbright that this was an offer this was simply f if i see stated was the most you would be willing to pay ker use the language that he used when there was no agreement and that is that the access will be the client's responsibility there departed simply had not agreed on anything at that time and then of course we have the subsequent correspondence tha even the district court said was a mixed bag i think if you look at all the cases that we've cited strauss kramer case the other cases most of which were bench trials by the way there just simply isn't a way for the courts to say this is undisputed issue of fact there were too many things that were left up in the air we think frankly the most reasonable interpretation is that there was simply no agreement the rates were left with f i see paying what it agreed what it bought was going to be the most that it would pay if we agreed with you what happens to this case with some extent the next step i submit would be a trial on the remaining issues if the court agrees with us on this agreement  contract yes yes and if you want that would that get yes i think that ultimately no matter how the court resolves it unfortunately but when the trial be over the meaning of reasonable costs reasonable rates a reasonable rate fees reasonable rates yeah yes it would involve that as well and that that i think is unfortunately for i'd love to say we can get out of this entirely but i think that any of that that was a reserve issue no matter what so if the court says that as i think we should that the question of an agreement is up in the air then the also the next question would be what's if the jury finds no agreement which we think they shouldn't what are the reasonable and we think we would prevail on that because our rates that the rights rates were reasonable for the market in