foundation or medical treatises a subset of the evidence instead of as a basis of expert opinion instead this was playing with fire and the defendants knew it there was a motion eliminate brought before the trial this case where marine bank acknowledged that admitting such evidence to show a pattern of taking risks was fair but that is precisely what occurred in this case it was obvious that it would be prejudicial to illicit facts that frank ballot was a man who of course illegally gambled a million dollars a year in last vegas why else hasn't been the rule since time immemorial that the wealth of the parties is not in this why else has united states premier court held that evidence of gambling is not admissible since the nineteenth century yet the defendants staked their entire case on admission of the scambling evidence they d not admissible to show that the party acted in conformity there with the seventh circuit says that such evidence is categorically inadmissible but this is precisely what the trial court in the excluding this evidence is not that it's not relevant but it is that it's too prejudicial and may over persuade the court that the jury the course says that in many cases most recently in a civil case powell versus dean foods how do we know that this evidence was admitted for an impermissible purpose as opposed to one of the legitimate exceptions we asked the question as the seventh circuit said in the united states military how does the prior bad act and not the gambling it's a bad act but too many people did it and it is prejudicial even though it is legal how does the bad acts suggest that the defendant did it because of a spat a hallway argument that mr balla and he had gotten in he had gotten into and he also said because of the fact of the size of the lending relationship well it was a possibly a response to the character evidence that your client initiated in the case regarding his charitable contributions and things that he did for the community in the community it may no your honor and not tell you why there is a doctrine which the supreme court so holds is the doctrine of curative admissibility and under that doctrine the other side is only permitted to introduce is only permitted to introduce evidence where where the plane to limited to those situations where it's in for haitian is deemed necessary to eradicate undue prejudicial influences that might otherwise ensued from the introduction of the wasn't relevant that a defendant should have a chapter to that when they go came in you know they can and i know they did and i think they didn't did not object to it for strategic reasons because they wanted to get in the gambling and they wanted to use that as one more rationale but i agree with you your honor i have to confess when i look i wasn't a trial attorney and when i looked at that transcript and i saw that when i was not please i've been on the other side of that but then event that evidence was not on the subs same subject matter as gambling and besides that from a strategic point of view the fact that it was introduced that mr valid engaged in charitable activities was probably more damaging than it was hopeful to the plaintiff because of the fact that all it went to show is that the plaintiff wealthy enough that he had money available to get lots to lots of charities to many jurors who are still struggling to get by that only made them more intimate rather than complementary so i don't see about the average man well i mean to be counsel speculations about what juries might might buy as something to do with jury selection after that you could go it if they want to gamble i don't care could i find a whole bunch of yours that would think that way through right but you also could find a whole bunch of jurors too that would think it was improper sinful etc i mean it is legal but there are many many people jurors who disapprove of gambling why else is has seen no family only recently been been made legal up until thirty years ago the only places where it was legal was out in las vegas and so there is indeed a societal recognition that gambling is problematic now  put there there are limits and that's the same limits that's why since time immemorial it's been known that the wealth our poverty of the parties is not admissible i mean obviously yes if you are a legislator right now you probably do have a black mark on you but that's on a voidable but some of these things like the wealth of the parties that's an added  success so it's already known to the jury or they know the bank would be dealing well that's true but the gambling aspect is above and beyond well i mean because many people do disapprove of it it's just a fact of life and the fact that and it clearly indicates the wrong inference in this case which is what the defendants are trying to raise is that well since he's willing to gamble for recreation he's also willing to gamble at business and it also means that it gives carte blanche to any defraud  because let's say we agree with you that this we have and should never on the other side your client but in evidence about transactions at the bank involving some bank examiner has you know has a role as as far as making sure that the judicial system follows the rules of evidence and that was that was made clear in the supreme court case of people people versus limbering that in fact the judicial the appellate courts have a duty to safeguard the integrity of the system but what about the concept that you can't later complain of something that you played a role in bringing about well i mean basically as you said everything came in both sides got a problem they wanted to throw and now the losing so to speak as to relate to the same issue and it has to create undue prejudicial inferences so for example the one case that the defendants cited on that issue of invited air that case it was to the the word l versus hers in ski case where the defendant said in his direct examination that the plaintiff was corrupt in a dishonest person ok that was the prejudicial information and that gave latitude to for the other side to call lawyers to indicate that the the plaintiff was indeed a upright person there he had a versus be exactly on the same point here this issue with regard to bank examiners and the like didn't have anything to do with with the plaintiff frank ballasts character none at all then the issue was of his charitable acts did but that evidence doesn't raise any undue prejudicial inferences because the fact that as as just disconnect point out that he's wealthy enough to be able to give to charity doesn't necessarily can know anything and so it's not the same thing where as gambling to many many many people and to legislators all across the country except last vegas until thirty years ago was regarded as sinful illegal and so that is totally a concept of a different matter as opposed to raising the inferences of you know charitable activities i agree it was wrong defendants shouldn't object if they didn't they strategically refused to object i think because of the fact that they wanted to get the gambling evidence and that is certainly something that should not be and don't buy this or finally i want to bring up  rule regarding post trial motions only a prize to jury issue and so it doesn't apply to the court try to issues the consumer fraud issues and furthermore the issue of even oh yes we have to confess it was waived with regard to the trial motion in the supreme court case dillon versus evanston hospital the court made clear that the rule of waiver is not a limitation on or else so that even if the parties didn't waver and you know one the consumer fraud counts that would offset for sure the issue on on the other it's so that's why it would be exceedingly helpful to get a new trial on on the consumer fraud it's because you can't have a more prejudicial letter and the trial court acknowledged that  that the witness can't tell the truth because of his mental illness it's devastating to the plaintiff's skates and so for all of the reasons that we've set forth in our brief we request that this case be set for a new trial in front of a different j start iran or because your honor noted some concern regarding daugherty bot of eyes water so i'll get to the the ambling evidence in a minute let me put it in full context just so the record is abundantly clear regarding how dr but the bottom  well this was a non disclosure of an expert witness which i think is is ludicrous cause of course we didn't disclose it as an expert witness who was in our expert witness they're the ones who went out and got to drop this on us five days before the problems started so i don't think that there's any issue regarding disclosure under the disclosure rules as far as getting it in because it was doctored by about his letter the only reason it would come in your honor is because mr fein on the stand basically took the letter as his own i didn't seek to introduce the letter until i ask mr fine did you know this letter went out did you see the letter did you ask dr to bob i did send a letter out was a sent out on your took it as his own biker asked a question i answered no i wanted to see what he said and then once he said i viewed it as basically this is now his statement it would be the same as if i had a witness who told me the day before mr fine told him i can't gambling evidence goes i want to put that in context this well and frankly i mean if if if i was the ruler of the universe i wouldn't this would have been a two day trial at most  was it was admissible for two reasons it was admissible for the reason that the bank did not address that or did not extend the loan and the reason that wasn't brought up in the motion eliminate your honor that particular reason was because frankly  i can't remember exactly what it was but sometime between the motion eliminate and the start of trial it became clear to me that attacking the banks the validity of the bank's decision to stop along was going to be part of their case and that was clear in the opening statement when they started talking about more and more what a great customer he was and he never missed a payment all that sort of thing and yes how was that and that was going to sack him if because of that claim is rightly relevant to just the factual scenario that the that the bank was faced with and that the the claims that we were having to defend that's really i think the only reason it was relevant case but for some reason and i don't know why even through the appellate briefs that are before this panel the plaintiff is still claiming that there was no economic reason to end the loan i agree with you as far as whether it was flawed or not as to well those other claims that's irrelevant for some reason the plaintiff made that a major point in their case and therefore bringing in all the reasons that the bank considered in asking him to move his business was there in order to rebut that information no your honor because i said because sometime between the motion eliminate and as we were getting ready for trial and i know it might have been i don't remember when it was what it was that clued be in it might have been an argument in the motion eliminate on the other motions i don't remember but it this i agree with what i did say that i went on to say however your honor that judge if you're going to win and all the stank examining stuff if you're going to allow this i don't put it this way but basically for going to allow free for for sport that this is not i agree your honor and that's why there should have been a request for a limited instruction because that would have been because the family evidence it was appropriate and relevant as code those two reasons it was therefore incumbent upon the plaintiff to ask for a limiting instruction now counsel was making reference to strategic decisions and i'm not going to agree that we made a strategic decision decision to let him go on with this terrible stuff because we want to get them back after them that's actually not the case but strategic decisions are made at trial and you're stuck with and you know trial lawyers all the time i know i've decided not to ask for a limited instruction when i feel entitled to one because i don't want to have the extra flag being waved singling out that evidence to point the jury's attention to it even more i presume that's with the decision that was made in this case by trial counsel for point is that they decided they didn't just let it go was quickly as possible don't have the judge calling attention to that evidence again but if you decide not to do that then you're stuck with the consequences you have and so really i think you're on with the proper really the proper ruling in my  proper way this would it would have gone had that tactical decision be better because i think it would have been proper to gambling evidence and to rebut the claim that we were throwing him out of the door for no reason at all and because of the very prejudicial evidence to say well no your honor i mean mr i asked mr valid his deposition i specifically asked him about one of the europe we had i think two hundred some odd thousand dollars loss and i asked him is that a significant significant three thousand dollars less than that and claiming that that was a material misstatement that if he had known otherwise he wouldn't have bought the boat out so i think when you have on the one hand a man saying hundred thousand dollars is no him out of that and is this do you know your honor i'm not suggesting that at all what i am suggesting however is whether the one quote misstatement is which obviously we deny that there was any such mistake but taking mr vallas claim as he laid it out if one were to assume that the that the jury is going to look at that it's then a jury question as to whether not only did he rely on the state but but was it a misstatement of material fact and we could look at you know we're lying to be drawn in the amount of money there is no bright line if it was fifty cents if the if instead of one hundred one point seven five million dollars it was one point seven five billion dollars minus fifty cents i seriously doubt any jury would find that that was immaterial to say that even if it was knowingly made sixty three thousand dollars they might find this material misstatement in spite of what mr vallas said but on the other hand they might not so it goes to the particular facts of this case you want to fraud i do want to make one one point about the whole wealth argument two points actually number one this is brought up for the first time actually in the reply there was no argument below laid out on the table before i ever or mr kaufman ever opened his mouth the court through the opening statement not only through the charitable contributions but talking about them multimillion dollar business that mr ballard grew in the tens of millions of dollars of trial unfortunately we don't always get those and question is was this a fair trial was the old decision of the jury and the core against the weight of the after so was it something that a reasonable jury taking out this other evidence that is allegedly an improper shouldn't got into in the answer obviously is not the main problem with the plaintiff's case was frankly plaintiff in his own testimony i'm not going to belabor it we go into it and trial that was all a doubter he was impeached numerous times on very important matters in front of the jury in his own test he was impeached by his deposition testimony while he was sitting on the stage he admitted that on the one hand he knew that the collar appraisal which was over two years old that the hotel was no longer worth what the collar appraisal said because of the lack of loss of goodwill it settled cetera but then in the same breath he saying yes but i relied on the coll appraisal three point three million in buying the hotel there's no way to trial is two things in front of the jury it was clear that the other two appraisals that he complained about didn't even exist when he signed the contract  one of them didn't even exist when the hotel was at was actually close and finally perhaps most importantly and this is what i spent my entire closing argument doing in fact i had my closing arm it was an hour long fifty five pages i mentioned the gambling evidence not once in my entire closing argument the word gambling casino vegas never came out of my mouth in closing argument what i did argue was the fact that mr vallas story did not line up with his own witness m the chronology the mr fein laid out and mr valor laid out they were completely incompatible and his story was contradicted by contemporaneous documentation that existed back in the day when the deal was actually going down so i recognize your your honour's consternation regarding some things that went on trial but at the end of the day the jury and the judge came to the right decision and at the end of the day although there was this room mate who was forced to take the fifth amendment about things that had nothing to do with this case and we had to do witness after witness after witness without loans that had nothing to do with this case of regardless of all that the jury was given the appropriate information about the deal at hand and they saw mr valla they were able to hear his various stories they were able to match it up with his other witness and they were able to look at the documentary evidence and they came to the right conclusion so even if the sport has some concern about how we got there the old amid the ruling of both the gambling evidence what's very important is that it was basically harmless air there was overwhelming evidence against  action for fraud and bear in mind course he has the burden of proof by fear the same evidence we brought out in the trial that he and making the purchase of a one point failed to consult an attorney or a c p a and heard concerning that transaction he didn't hire a hotel management company he allowed his inexperienced him and he failed to insist upon and i'm ization cause by by the bank so there was overwhelming evidence that he did not reasonably rely upon any alleged statements by my client or anybody from the back second point i want to make is that it took him eight bank told him to go find another bank for his future banking needs because his business was having trouble being paid by the state and they recognize the gambling issues you don't really know god statement i don't don't know you keep in mind to the scenario of the opening statements in the plaintiff in his opening statement which went on forty five minutes or my recollection covered charitable contributions so much that i actually put my pen down and stop keeping notes charitable contribution after charitable contribution and whatsoever your honor this was a two week trial we staked her case on the total lack of credibility of plaintiff testimony and the lack of proof that he had been fraud or damage because of any alleged ties a witness to testify at trial he was met with this letter unsolicited letter from this doctor and so plaintiff counsel reaction to that was to ask the court to allow the evidence deposition to be read the court tonight i know certainly did not initiate this letter didn't bring it forth it was done in spite of his requests with regard to the issue of extending the law being issued not known before trial that is disingenuous that was part of count five on this complaint defense counsel certainly knew that at the time of the motion with regard to the issue of a limiting instruction fence counsel it nets that would have been far more damaging than nothing at all in fact the rule is as the supreme court says that of several reasons the the an adventure in weight of the gambling was far less significant than the prejudicial impact with regard to the issue of before you go on that i don't understand why limiting instruction would let them at least somewhat helpful because of the fact that  the fact that it was done by motion in limine a and with regard to the other objections there was a continuing objection so it wasn't there it really wasn't brought out in front of the jury that the plaintiffs contended that this was inadmissible because of the way the court handled the the objection that was done by a continuing objection and it was done inside bars and so the jury wasn't really informed back there was a big issue as to the admissibility of this gambling so if it was i also want to mention with regard to the issue of whether it was reversible error or not there the supreme court clearly states that there is a different rule of reversible  should the error be overlooked here the fact that summary judgment was the night of the trial court denied motions for a directed verdict there was indeed evidence that misrepresentations were made you can't say the evidence was so overwhelming that no fact finder would find it a lie and therefore hundred people versus robinson and people