tell she said a few of the factors she said these factors weigh in favor of award of solution damages and she ended the discussion there was no meat to a discussion of factors as i'm sure your honour's know better than i the flyers a presentation of what are the facts that are relevant to this factor are they strong are they weak are they stronger or weaker than the way those factors are or the way that factor is a raid in other cases compare this case to some other situ i shouldn't say this one of those played more heavily this one in this case  no i don't think you have it when we were here before the argument was that the highs are case which had been relied on by so many and had incorporated some of the cases that came before it which right i tried to persuade you that it created a precedent even though it wasn't from this court it was from other district courts but i said the high desert was crazy i buying and your honor said no it's not binding and you said to the lower court that you have to  has to consider the issue of damages in light of the flayed tell factors now i will agree with you on that there are ways that you can't analyze damages in many cases without looking at prior cases you know i'll give you a simple example if you're talking about lost wages you don't have to look and say somebody who lost a leg in a previous case how much did he get for lost wages and let's give the same amount here for that you can say he had lost w made so much an hour his work life expectancy was such and such he was such and such years old he would have expected so many raises you can do a calculation there's many kinds of damages many kinds of factors that you can analyze in the abstract reference to things that came before but how do you take something like the emotional impact that losing your son had on you and analyze that in the abstract there's no math that you can do there's no table you can look at there's no book you can look at other than looking at what did courts do with similar things in the past or if it were a jury trial you know the jury looks at it in terms of the arguments that are made that are based on real life human analysis the difference is that the jury doesn't have to explain how it got there whereas the cases that we cite are pending the other cases eureka say that a district court analyzing damages has to explain how it got there it's not enough to say that here is five factors eleven factor seven factors however many factors and to recite that a few of them quote way in favor of solution damages and then end the analysis at that the court needed to go through how did she weigh those factors to come up with a number it's not enough to say that this factor weighs in favor of salacious damages and on the facts of this case i pick a number out of the air and give you x dollars which happens to be an increase of what i gave you before when i considered impermissible factors and i'm not even going to explain to you the analysis that i did to back out the impermissible factors so dr griffin it's not binding it's not precedent but i don't know what else you could look at the sides of prior cases prior jury verdicts in the outside of the court if we were evaluating a case we would look at jury verdict reporters we would look at prior decisions would look at sustained decisions on damages that's what lawyers and judges and insurance companies that's what people look at to assess the sustainable amount of damages in for nonphysical are not accountable and it makes the award in this case look like more of an outlier potentially more arbitrary right there on the other hand the very the of those awards may give each one of that the has a case was not the first case where those numbers came up if you read the highs a case judge lamberth looked back at many other cases and tried to make a decision to spot the trends try to see where those cases are go i think he was motivated tremendously by the idea of fairness that where the cases are not so distinguishable they should be treated similarly although his approach did involve the idea of upward and downward departures when we can put cases where particularly egregious of the damages were particularly severe you know for example a case for somebody dies in a terror attack and this killed instantly i hear the question and i think it's something that you know when i first got involved in these cases fifteen years ago i wondered about i said you know what iran should do is they should come in to try one of these cases they in the cases we've brought under the  a very large case it had a very large it was six it six or seven attacks i had some involvement in it although i didn't try the case it went to verdict it was ultimately on appeal this missed for lack of jurisdiction under the at home line of cases but it went all the way to a verdict in a full heavily litigated adversarial trial and wouldn't you know if the jury verdicts on the it so when i saw that i said about these cases do have a little bit but still as a matter of procedure sure church collier didn't have had to show how she got to the numbers that she picked it is not enough just to say because you deserve so lation damages i give you one million dollars not a little you know it could have been you know and and i mean and recognize this is a very surreal and tragic kind of analysis to even be i mean the comparative that there's something that feels very comparative are for the way that they stitched together a little bit here and a little bit there but it's not an accurate statement to say that judge collier conducted any analysis she recited some facts  now it's a different number and why does she insist on using the gates case which ok it's her personal favorite she wrote it it's that it must have made it i'm sure it made a great impression on her  because it was tried in front of her but you couldn't think of a case i mean it's coming coincidentally also a foreign sovereign immunity state terrorism exception case but you couldn't think of a case that was more dissimilar in terms of the facts of the case there are so many other cases that are right on point a teenage a teenager killed in a bombing or an execution or a kidnapping there's unfortunately dozens of cases like that to compare to take the gates case which was a military contractor were working a u s military contractor working in iraq who was beheaded and and say ok we're going to start with that case but now going to show you how completely different it is from this case and then say and therefore i'm given a certain dollar amount without showing what the calculation is and without saying w she doesn't want to regard what other just a bit other judges of her court have done it has binding precedent but why ignore the why not said why not why start with your own case that's just similar and go through a long discussion of why it's the similar and why we have to give less here and it and completely ignore the other cases that have facts much more similar how many the deceit into similar the family is similar you know in the gates case the parents were the the surviving family were much older this was a he wasn't a teenager that was killed it was an adult man working in iraq as a as a military contractor so even just the idea of how many years is the solution damages awarded supposed to compensate you for an older person has fewer years of life expectancy that compared it's really comparing apples to oranges picking any of these other cases the hirschfeld case that it was a high school student was killed in a terrorist attack when a gunman burst into a you shoot even jerusalem and and killed a bunch of teenagers the family was similar younger parents younger siblings it's on all fours with our case the waxman case same thing bought that was killed in any in an explosion in the public and a public mall and in jerusalem also a teenager these cases are so much similar and i would respect if such a collar said look i looked at this but i think that those damages were excessive and here's why is previously we gave your pitch that the high what we call the highs or standard is binding that didn't fly your honor said it's not binding however district courts have to follow slate binding but it gives us information about what the court might have considered and again i can say this i can't emphasize this enough if judge collier had followed some other method of analysis that would be fine she doesn't have to start with other cases and say and reason that this one is more this one is less but in the absence of any other form of weighing and balancing and discussion what she did was picking a number out of the air i would challenge advocates to be beyond just reciting some facts finally one word in the decision that the district court wrote that could be described as analyzing those factors towards a calculation of damages that relies on something other than i know it when i see it so every other case besides gates and this case that's ever been has had substantially higher damages awards for this family what they've been through to be the theoretical example of well it's just the course the frankel family has suffered an unimaginable tragedy the continues to back them to this day that this report was faced with the extremely difficult task of quantifying this mental anguish on another district court may have of the things that it found relevant to this goes through how the family suffer in not knowing whether they are sibling in their child was this dead or not how they are affected to this day with p t s d and  taking into account all of the facts in this case used through the flat our now that's a conclusion but who's who now we are where did he say because of this factor of the amount should be district court opinions are written in a fairly similar manner to this where there are numbers given for each relevant factor all of the factors are gone through and as long as they are done in depth and looking at the entire record the court of discretion but we don't see that here this is a lower world war that has been given in other cases but it's not so wildly out of proportion it's only two million dollars less than the amount given in gates and there was still a substantial amount giving eight point five million dollars total this case is lower but it's not totally outside the stratosphere above what is standard particularly considering that over two thirds of these cases have been decided by just two judges who both used the h reasoning i think everybody recognizes an hour or rests rested it's her holding on the recognition that one district court determinations not binding on another but it also seems clear that especially in an area like this where there are so few guideposts that once there is a body of decision that it becomes part of the fabric of what's relevant for decision making unless the court explains in some way why it shouldn't be and one of the things that defy me many things very difficult about this case but the judge in her reconsideration opinion before the appeal directly to other other colleagues decisions and said i've already made it clear i'm not following those i respect those other judges and she says it's true that my compensatory damages words are inconsistent with those  others yeah they've used a framework they've they've all kind of moved around something i'm doing something different does she though explain why what's your sense and what would you point us to that explains why that's a that's an arbitrary choice on her part well i can't get into the desert or its head but it seems like she used to be the numbers that have been given in other cases are too high and through that has given awards days and this case that are lower than the highs are there and in that the numbers may be lower  but we don't believe this required to look at the body of these other cases this court previously held in the frankel case that the purpose is not required to use the highs or it wasn't required to look at generally what is the standard for incoming to it it's of actual war the court goes through many different ones that some my view although in some cases and in others in different cases and this court required the district court to use those considerations in coming to an awar with and then go up and down so under that understanding it would be wholly reasonable for the district court to go through the flash now analysis and fully fulfill this court's mandate and still come to an award that is and in your view did the court explain or how close to the core come to explaining why when it talks about awards happy based on their backs i just record explained how it got to it it didn't explain why it may have had a thought about general ward's being higher or lower down than the general body of case law but we don't believe that that was a necessary  to fail for it not to abuse of discretion the fact alone that it went through the five how considerations is mandated by this court and came to eventually war with a legitimate reasoning in of itself seems to be enough to satisfy the didn't even really go through flatow she said i'm not going to look at this plato and then there's this other case that condensed plato and a look at the other case plato you know it was the first and it really represented they really did what the judge district judge here should have done which is say how are we going to come up with numbers that's a dent of by these factors and let's weigh them and let's  each of the factors and relate them to a number it was struggling in a field where nobody had ever been there before it was not vacating that cross the antarctic with no  from from the from the district the district of columbia but i repeat there could be other ways to skin the cat but you have to have a wise based on some kind of signposts and kind of analysis and judge florida and have you referred to that reconsideration decision where judge collier actually said that the court believes that difficult cases like this one require difficult and particular analyses of the facts and injuries and she said that and i'm looking for it it's not here