well here the first case of the only versus providence investment verdict that we received at the trial in this case that verdict should not have been disturbed the twenty to thirty percent range was well established at trial it was repeated it the jury received  information but not for the person from the person who's from recruiter your honor there is nothing to support the conclusion that it's any different there was that the testimony and to support the conclusion that it's the same your honor i believe there is what is it essentially if i were going to if i were to so there's no case law on this that says it's something different if i were to go to a store for example and go to buy a candy bar and you said no no i'll buy it for you know i'm going to change the price this is the value of what it is that she got evidence in the of record that it is a marketplace convention and that that the applicant pays or what an applicant pains your honor what happened in the situation is that mr jeffrey stepped in and said he would pay that doesn't change the value of the services he volunteered to pay because he was desperate to get this deal so it was what value of the services is  to the recruiter versus the stupid one party versus the other may be quite different also there are considerations of what if any  tax benefits one party may be able to claim that the other while in truth there are a whole range of questions here that you didn't attempt to answer for your honor in terms of tax benefits it was  jeffrey that received the tax benefit because what they did is they tried to hide some of the benefit that they received from this deal the five hundred thousand dollars in excess of five hundred thousand dollars a year i'm not making myself clear whether the pain meant of the  he could be treated as an expense or not i think is it reached results in different answers depending on who's paying this fee well who would have paid this fee is very clear would have been province investment management it wouldn't have been jeffery the deal was she was engaged by product providence investment management not jeffrey directly have you shown what the value is what what someone in this position would have paid for it that's concern i believe that we have there is significant evidence to support the twenty to thirty percent range it was received through exhibit one sixty nine which is more than fifty executive search contracts in addition  to get a hundred fifty thousand well he got it from using the twenty to thirty percent range he applied the thirty percent range to a reduced amount because what he did was each skloot had the bonus of mr jeffrey any excluded pym team he shouldn't have done either we established at trial that the pimp eem certainly was recruited and ms ms vo he was responsible for that in a number of different ways that was quite the contrary on that point for you i arrange for the interviews there were no interviews conducted because a cas wasn't interested in interviews what they were interested in was record the record of this team and who provided them with the information of the record of the team that would be she first introduced these people to a cast through their biographies which she helped at it and she provided to a cast in addition like i said there were no interviews whatsoever what they wanted was the performance record the person that provided a cast with the performance record cast with the mechanism to compare that performance record against performance records of other teams so she is individually responsible she actually perform services that a typical recruiter could not do and what is probably most important about that is that testimony of ms names that which relied on the fact that there was no interviews or that the interviews were not arranged by my client she didn't even know no interviews were conducted she was asked that question specifically a trial and she had no team member the team leader who brings other members of his team to the hiring institution that's not a circumstance where the recruiter gets a percentage of all of their salaries but that's not what happened here on what happened was ms v only was provided with the materials and she edited and provided the biographies of each of these people she actually introduced them she arranged the meeting she introduced all these people all the team members to a guest  jeffries right and he sent her materials and then she's passed them on that that's not true what i'm i'm not see there were a number of members of the team there actually and then in an initial meeting with a cast it wasn't just ms of the only mr jeffrey there were some members not the entire team win is she didn't put the team together mr jeffries did and that's what i understood was she deals with the team leader he brings along his teen that gets her the benefit of his salary not everybody else your honor the jury specifically asked to have ms and name six cross read back and specifically highlighted the fact that the exhibit one sixty nine were the it were the biographies of these people she didn't just provide them she helped write them why shouldn't they pay part of it rather than just one of them they should your honor that's our position that the team hire all of them should be be responsible for it in what happened when this situation will defend they're not all defendants but what happened in this situation is that a cast paid all of their wages for pin so they continued to do the same job they were doing before and work for a cast at the same time a cast then paid their wages so the benefit for that actually was to address your question was for pim they got the benefit of free labor out of this deal they didn't pay bonuses they didn't pay wages after out out of this deal we tried to provide that information the jury and judge crony would not permit us to who should pay the  and should be paying the providence investment management in jeffrey because those are the jeffery it has one hundred percent control over pam and pym receive the benefit of free labor and free rent through over three hundred twenty thousand dollars in free rent  contingent and i thought that was the basis of the district court excluding that that was well it's not clear exactly what the jury did your honor there's the a number of different ways that you can look at how the jury reached their conclusion if they included the bonuses than the only awarded is the only twenty two percent if they did they could also add reached their seven hundred fifty thousand dollar number by including jeffries based jeffries bonus and just the base of the of the of the team members and that would have gotten them to thirty one percent which is within the range and actually within the range of the of the contracts that were submitted in in exit in the exhibit i believe it was one sixty nine which is the all of the contracts but for if it is if if the court concludes that this is important information then preclusion should have never occurred the the case on preclusion is very preclusion should be only a last resort and lesser remedy should always be considered there's no doubt that this was an act of malpractise my predecessor got it done in oregon in order didn't follow the order because he assumed by filing a met a writ of mandamus with this court that the case was stayed which wasn't he then not until he found out from my opposing counsel that the case wasn't stayed then he takes the expert witness there was a real problem and that's part and parcel and can't be separated from the malpractise so mr mr kerry did nothing to prepare this case for trial at the last three days before his insurance company that ought to be paying your honour's was that we got the opportunity to review his name six report for an extended period of time and there was going to be additional cost the the expert testified that he never saw the report this this report that he prepared was based upon what mr kerry provided to him and that's it he didn't read it he says he didn't sign it mean never saw his names or report the remedy i'm sorry the ahead finish the remedy that was available and would have satisfied everything was to entitle to some compensation on a qualitative value of one marilyn but instead the only charge that was given was on marketplace conventions and you did not object that or seek a qualitative value theory charge so i'm not sure how we could say that you're entitled to the full amount on a qualitative value theory when that's not you argue that he excluded evidence and we can decide whether that was not whether that was error or not but if we don't find that in your favor how can you are just to affirm this verdict  or to uphold the verdict on qualitative value theory when you didn't submit it to the jury on that theory well we wouldn't we weren't permitted to go too far into any qualitative value but i can tell you that there was evidence of quality to  value the evidence of the quality go to the jury on that but theory but i'm confident your honor that the jury considered that they considered the fact that the jeffrey and pim were desperate for this deal they considered the extensive work that ms b only did she made t introductions to point introduction she arranged for the cut teleconference and the meetings should have to go over this again you're telling me that you think even without a charge it can be upheld on a holiday to value i believe so because mr jeffrey  tens and tens and tens of millions of dollars off this and judge kranti decided it's nothing to do with what the value of her services were your honor judge crotty decided that nothing with respect to the quality of her services or the quantity of her service should be considered by the jury and i was i was also submit to you that my adversary descript tried to discuss or did discuss on his opening in that during the trial and in the closing and we were prevented from putting evidence it please the court neal klausner from davis and gilbert with me today are my colleagues jaclyn smith and david greenberg and i would also like to introduce you to russell and rich jeffrey who are with us behind me two defendants remaining in the case from the word about diversity yes sure at the outset of the case there were as i have the complaint in front of me there were three l l c s n l l c has the citizenship of all of its ten years ms v only had the opportunity to develop the reasonable value of her services based on a quantum erowid theory there was no agreements between the parties to compensate her for this despoiled down to a reasonable value which the case law says for the most part is an hourly rate times the amount of time somebody provides the services however there is an exception if the plaintiff couldn't establish by quote clear and accepted market place conventions that the defendant would normally compensate the plaintiff for the service provided on a different type of basis then she can opt to to pursue that theory of damages and that's what miss vi only did this case she never she never offered evidence of the number of hours she wore or the reasonable value of her time i guess that's that's correct your honor she certainly had the opportunity to do that and she did she did not pursue that american capital as well as mr jeffrey and province mismanagement and she did seek the same compensation from the hiring institution for the placement of mr jeffrey and his colleagues when that when that party was dismissed from the lawsuit she pursued that type of compensation for mr jeffrey private previously she had been suing mr jeffrey primarily for what was called a marketing fee on the misunderstanding that  jeffrey having agreed that she would be paid and a court having found a sufficient factual basis to allow that finding that she that the parties expected that she would be paid that it's a reasonable conclusion that she would be paid by whomever what the market generally compensated for this so yes the compensation usually comes from the hiring party rather than the applicant but where the applicant says while pay you the expectation would be that they pay what the market provides that a hiring person would pay why why should we allow that conclusion just to control well several responses first the assumption of that question is that there was an agreement to pay and there was no agreement that breach of contract case was dismissed from the outset provided to mr jeffrey and she said i could i intend to do that based upon clear and accepted marketplace conventions of what a candidate would pay a recruiter in this situation and i'm going to be able to do that she said through my own testimony through the testimony of defendant's expert witness and through documents that i'm going to introduce in this trial her own testimony never materialized while she said she was going to talk about her own experience being paid by others that she had placed during her career she never did testify about that she she she she mentioned that she had one one encounter with another person in the financial services industry who she got a job for but she never said whether she was paid for that or so what the amount was the documents that were just cited about these executive recruitment contracts came out of american capitals files and they were american capitals contracts with recruiters which said american capital the hiring institution alone would pay the recruiter they called on their of ferment of case the director of h r at american capital and she said in no circumstance would a candidate ever pay and never did pay under any of these contracts and finally and perhaps most importantly the only expert witness who testified at the trial jill nim sec twenty years in this in as as an executive recruiter in the financial services business it's been involved with thousands of of hirings and placements of candidates not she testified not a single instance in her career has a candidate ever paid that the marketplace convention put aside that there was no clear and accepted marketplace convention for a candidate to pay the clear and accepted marketplace convention is that the hiring institution would would would pay there there was there was no evidence in the record of any case where a candidate paid none whatsoever there is an absence of of any evidence not not just not a single document and no testimony that a candidate would ever pay so this is an equitable remedy the the jury  certainly found that she deserved something and why shouldn't a court of equity be be required to to consider the overall fairness of it and let a jury me how's this different from what is a broken arm worth or a lost i well that's that's not the way the kid this case was presented to the jury it was presented as a case where under marketplace conventions the candidate ought to compensate the recruiter it was never presented based upon and some sort of general equity and i am not aware of any case law that would give the jury that type of discretion without any type of charge or evidence as to how they would make that conclusion if i understood the start of your argument suggesting is that if he wanted that relief he had put in the hourly rate and something that would have suggested what the value of her work was regardless of who was paying is that is that what you're saying that you wouldn't be able to dispute the equity of awarding her some kind of our right i said t hardy based upon the assumption that this court determines that a candidate would pay the same amount as a hiring institution and reversed his his holding otherwise if the case was reversed on that basis and sent back to him he found that the only evidence in the case of what the hiring institution would pay is the a percentage of the first year salary of the candidate  proximately thirty percent of his five hundred thousand dollars that's where that number comes from and i'm right in understanding that one of your arguments albeit in the alternative is to affirm the district court order given the choice between trial right well that sure i mean our our our our primary our good argument on this appeal is that you ought to affirm judge judgment as a matter of law and he as he is required to do when he grants that motion he also decided in the alternative that he would grant a new trial due to a miscarriage of justice to hear from our questions that value theory she she didn't show what the conventional market price by an applicant would be you have any way to assuage that disquiet several responses your honor one as we've been saying from the outset american capital if there was a party that should be paying her it was american capital and that party was dismissed based on a statute of frauds basis but they were the hiring institution that should have paid her for her time to as judge sachs suggested there is a remedy against the prior lawyer if she feels there was malpractise in the way she presented her case here and she has in fact filed that lawsuit and has been prosecuting it for five or six months  all the opportunity to do that and she she did not achieve she she defeated our motion for summary judgment on the basis that she was going to do that through certain evidence that just never materialized the trial if there is a  sure the as i just described i think judge judge crotty his calculation of one hundred fifty thousand dollars is accurate we think we think the jury's verdict was was a substantial miscarriage of justice as as judge precluding an expert on the patterson factors about how to determine whether preclusion under rule thirty seven is is ok and the lack of a reasonable explanation explanation for missing a deadline  importance of the testimony and the prejudice to my client and the continuance of trial for a ten year old case he analyzed properly about why preclusion would be appropriate in this case but moreover as as the briefs already lay out in  detail the the expert who was precluded here never actually prepared or signed an expert report and for that basis alone the witness should not have been permitted to testify and i think  papers and before this court acknowledges that that witness would have been on salvageable was was her language thank you your honors thank you we'll hear the rebutt klausner referred to their motion for summary judgment that was a summary judgment motion number three that was briefed within to within a week before trial and we were handicapped because we had no expert  were handicapped in this trial with no expert we would eagerly receive as a remedy a new trial with an expert and if we had a trial with an expert we wouldn't be here before this court he that's all part of the mt practice this this eternal concern it is a concern based upon the case law of the case law suggests that if it's an attorney's error the remedy or the sanction should not be imposed upon innocent plaintiff and this is a case practice is not a grounds for error in the trial that gets he would new trial we didn't get an expert at the trial because of the mt practice that occurred before the trial what precedent allows us to reverse a pre trial issue we raised this issue in multiple motions we requested that we apply the patterson factors that if you fly apply the patterson factors we would have had an expert at trial the only cases that  there was a motion to preclude them and this is all part it was malpractise to withdraw them as watcher so i know was malpractise to have them submitted what mr kerry did is the day it centrally the day the friday before the monday that these were d he realized that he had committed malpractise and thought the case was stayed he then prepared three expert reports and submitted them on a timely basis unfortunately two of them were not responsive to the original expert report and one of them wasn't signed wasn't read and then expert report that he was responding to he testified that he never saw it that's all the malpractise but i just want to i want to address rivera quickly their argument you make in your brief and i'm now looking at page forty as you're saying  fendant would not have suffered prejudice if the district court had allowed plaintiff's experts correct and so the error you're complaining about is preclusion not now practice the district court's pre and in light of what your adversary has said what preclusion was eroni is here the expert testimony could you have off your honor when we got into the case which was about a month before trial we made a motion for an extension of time to submit an expert recognizing the mr kerry had had committed malpractise that was denied on february second two thousand and seventeen the judge we renewed that application judge carry lots of discretion about that it did and you don't you don't complain about not getting an extension i'm asking you what expert you could have put forward that you were precluded from putting because that's the error you complain about in your brief your honor we could have put forward mr warren but he would have he would have reviewed the expert report before was it in short you hadn't complied with the rules of civil procedure on on that my predecessor did not because he mistakenly thought the case or in the days of your predecessor here your to the extent you're complaining of district court i want to know where you think the district court heard in not allowing you to put on an expert because the district court can't of heard if you didn't comply or your predecessor didn't comply with the rules certainly your honor and this court has has ruled number of times that the district court abused  discretion by not giving an extension when it was the attorneys problem and sloppiness not to brief you complain about an extension where because as i said i'm i'm bread i'm just really read pages forty eight and forty nine about experts your honor if you look at the reply brief it specifically i specifically address the issue of these these decisions  i'm asking this question because it wasn't apparent to me and it that that was the argument that that was the error on which you were seeking relief and if it was raised for the first time in a reply brief or not required to consider it i don't want to hold affirmative expert reports after her prior tourney missed the deadline as a result of malpractise that's right and this is then argued in what point because i thought that it was only point the paint point of page forty eight i'm willing to see that it's somewhere there will allow you to rebut piece of yellow paper that's been floating in front of your face now for five minutes i'm sorry my my co counsel wants me to make sure that i point out that my client and this is at odds with the decisions of the second circuit is being punished for her attorney's mistakes i think you've made that point