may please the court house will scotch mccrone behalf of national union gary oldman and donald down embezzling money from american airlines by inducing it to issue checks to fish as vendors and efficiently i don't need to mean to argue that in our determination of the admission of the testimony is he did know who standard of review or whether that's an abuse of discretion that  discretionary that wasn't the position you took in your brief however i apologize for that your honor that was not our intent least from our perspective we brought this action for failure to exercise ordinary care in opening an account that claim was supported a trial by really two main prongs testimony of the bank itself and testimony of an expert witness the testimony of the bank or the testimony of the expert whether it's one of the other was sufficient to create a tribal question position is first of all it was error not to allow mr potter to give his opinions and secondly even if that was not an error that the there was sufficient other evidence to be able to go to the jury on the issue of the liability of the bank correct your honor my position is really founded on a line of precedent this that this court has in the los amigos supermarket versus mercantile bank case which says that even in a professional liability what the banks practices was if the jury could find a violation of those practices alone he didn't have to go any further into expert testimony in order to satisfy the standard of care several times you and so it isn't that that's what their policy is to do but that's what they try to do now that that was you argue it as if that's a mission that it's something excuse me that was the follow up question to the question that's on the record page eleven o nine well i asked her would you agree with me that result banking practices require a policy of identifying the person opening an account yes right here and saying i'd like to open an account on behalf of microsoft the person opening the account the customer in that instance is microsoft because it's a sole proprietorship under the circumstances and that's really you know whether you attach personal or anything to your interpretation of what it is this is what this is the the difficulty i'm having a they established that the person was who he said he was all right b they got an address from him a real address as well as a post office address are you contending that they were in addition requiring to do a site visit of his business or to see the catalog of what what items they offered for sale or to place an order to see if if the order was was honored and who actually cast something from this business if it's a start up business for example or something that there that hasn't yet gone forward the fact that he has it out of his home what one what are you really saying that the bank had to do you keep calling this a fictitious entity but if you create the entity before you open for business aren't you in exactly the same situation how could this have affected anything well it could affected things in many ways you don't we can't speculate as to what mr downer might or might not have done he shows up at the bank he testifies this in itself with nothing to demonstrate that the entities existed and the question of the question the bank the bank  testified there's a direct correlation to how the account is opened and what checks can go into that account that and that's consistent with the law which says you can't take a business check and put it in a personal account discords address that courts around the country of address that but that presumes that this is a personal account but in order to move the success of the fraud he moved on the opening of the account there's no question the bank testifies the trial and they've never fought i think the success of the of the of the fraud hinges on the fact that united airlines issued a number of checks over a period of several years the amount of one million dollars which they never looked at the sea whether this was a real vendor or not well you know that's not in the record and i would say to you we would contest that characterization of for this american but americans procedures but to the point you're making which is really a causation point the code adopts a very broad standard of causation it's not compare it's not proximate caus it's not direct causation it's contributed and if you look at the comments and you rick it was in summer is kind of the recognised treatise in the code you're talking about an extraordinarily broad standard of causation but all i have to do is prove that there are any link in the chain of events leading to the loss to get to jury and well your honor i could argue the facts isn't that a question fact of the jury but let's get back to the question of what are you saying name certificate either they got an application for one but never got the certificate so gillooly it's very easy to verify whether or not a deal exists this is not you know you have to produce something you've got to call and you've got to go to the house you got to knock on the door we would point to various and consistencies and what they were given the how his story that they did not jive with the documents they sat in front of them putting aside all those inconsistency is in illinois at least in cook county and in the collar counties this is not a complicated process this is actually an extraordinarily easy process and when talking about letting somebody into the banking system letting them in this is not that much of a burden to ask somebody to come in and give you one sheet of paper current is no burden whatsoever and that's really what mr potter was going to say and in our minds mr pollard twenty years of banking experience serving on national committees comparing policies across the nation in our mind we qualified now the reason he was excluded is whether or not he could offer an opinion to how each specific bank of the specific size does business that's not in the code the code doesn't require banks of comparable size  we you can argue the facts and i think the bank has done that in their brief argue the facts at the end of the day seven at least testimony combined with the potter could say and is qualified to say certainly raises a tribal question fact for the jury to resolve if the jury wants to give more weight to one expert than the other that's the jury's decision but to reach a directed verdict will always francis have to be drawn in favor of facts have to be assumed is true in our minds is reversible  it rings true to me that you know that's something that you can consider size but it's not necessarily despised and certainly if you applied the illinois law on the interpretation of a statute it was spent in court is clear you took the statute as it's written you don't go outside of nowhere in the statute and they highlight this in the subsequent case does it ever say it has to be a bank of comparable size it says in the same geographic region and so when a witness comes in and he says i know about banking practice twenty years worth and i've harris bank quintessential chicago regional bank you know part of your brief where you were talking about the failure to allow the basis it was of post conviction not hearing the facts that that judge would have had to consider to form the discretion in fact the court said that the court was denying itself the data which it required in order to exercise and informed discretion that's clearly not the case here because the trial judge's ruling admissability would not have been changed one iota by allowing the opinion to come in and the issue was a foundational issue which the judge it is not directly on all fours if you will but the analogy we're drawing here is that mr potter was excluded and verdict was directed prior to the end of the case in chief and prior to the end of his testimony in fact if you read the excerpt it's quite clear exclude witness in our minds is the equivalent is the equivalent and here's why there's no harm there's no prejudice in allowing the testimony to come in allowing this gentleman to offer his opinions for us to lay in our minds with the testimony should be he can reach the very same conclusion ten minutes later i will concede but in our minds the the standard should be or it is depending on your perspective i guess should be or is that it least on a directed verdict testimony if you believe that the proper foundation hasn't been laid for the opinion to be received and we're not dealing with the propriety of that decision at this point but that the attorneys offering this witness have to be permitted to spend those two or three or four days to allow all the opinions to come in that the judge says it hasn't had a foundation laid for because then basically because there are this isn't this in fact though the nature of any offer proof is that you're going to be allowed to put in the testimony that would come in regardless of the length of time and there's no way the only case ever saying if you offer proof takes a day get it if it takes two days you don't get it and so it seems to me that if the stand if you grew to rectify it and the with you will be whether or not the court has made the proper decision in directing a verdict then it seems to me that you have to live in the testimony hear the case for she felt that  was keeping out i'm foundation grounds the opinion of the expert and be that without the expert that the case could not be proved now i recognize that you take exception with the second point and i'm a green with you but if you were to presume back that was the correct basis from the judge's point of view that there was no foundation i don't think there's any requirement that the judge allows this has to mony to go off of proof can be presented and you know variety of ways including with a summary of what the opinions were out of band and maybe that would have run into the problems that council talks about in her brief about whether these were disclosed opinions or not but you know it's a different issue but it but you're trying to do to do that very same thing in the alternative way asking the court for an opportunity expert we couldn't proceed and that mr potter could not testify our position is that in order to avoid some of the many arguments that the bank has now made in terms of offer proof or lack of foundation that we should have been provided that opportunity that said i think the and you see see defines this standard of care it's the observance of reasonable commercial standards prevailing in the area in which the person is located with respect to the business in which the person is engaged small banks may be engaged in different business than large banks banks that her a neighborhood bank may be engaged in a different business than banks that have a large commercial base the u c c recognizes this  it and what he what he came in to testify to he did not have any background in account opening procedures she said he was not qualified to opine about first american banks or counterweight is that wait i mean the room you have you have a witness here who has plenty of experience maybe it's not the kind of experience that you think the jury out here but it's got plenty of experience and he testifies that he knows what's going on in the midwest and maybe you want to hone calls and then cross examination maybe you would have won the case and cross examination but it seems like there was enough of a foundation laid that he had to her well let's talk about his experience because they took a long time to talk about what he actually did for chemical bank in new york you know he started out in computers he advance to the mergers and acquisitions team because they had to integrate the new banks but they were acquiring into their system he never opened an account you never testified that he opened account never testified that he supervised any opening accounts he never testified that he saw implemented any account opening that because he he testified that he when asked how did you get knowledge about account open and specifically how did you get knowledge about account opening he said we get knowledge about account opening i the life of me look at this record and understand why the court didn't allow you to just tear into this guy because he actually had no basis he says his only basis for understand knowing what account opening procedures even were came f participation in this committee and he said this committee was formed for the purpose of trying to find ways to combat fraud and he said the first thing that they did forming this in this time period which if you read it carefully  little bit but he was saying and it was formed after these accounts were opened the first thing they did was try and come up with some common nomenclature for fraud so they could gather statistics and then figure out how to deal with for this this one would fit within that with these two  mers coming in and opening up accounts for businesses that don't exist cashing the checks taking the money spending the money going to the racetrack and solicitors i cried to me if they ever got it if there was one chicago area bank involved in this committee he might have gotten  second hand knowledge about what practices were at that one chicago begun to seriously you're not seriously defending that they you know that the way they allowed this to be opened was compliant with ordinary care are you yes really but they could that's correct that's correct i mean and we had a witness who was employed by the bank for any a many many many many years including this here seven out and she said when an individual walks into the bank same procedures apply for personal and for these accounts so they didn't ask for employee benefits number they got a social security number for this person they got a social security dress and there was no test most of our number and this guy so they treated it like a person like they treated the same procedures for personal accounts applied for sole proprietorship and something like how did they allow corporate checks to go into a personal account but this was not a personal oh wait you want to eat your cake and have it too no no no no no no no this same procedure supplied because what do they have to go on when a person comes in and there they are opening a sole proprietorship these are exactly the points of justice that i've seen pointed out that so that they they are an individual they're declaring i'm going into business no i mean it seems like you have what you would you got in this case was an opportunity by the judge to you know you get the case thrown out even though the evidence is that your practice is sort of winking that it it's like no no no no no no this is these these procedures were the procedures that were in place at the time were to identify the individual that walks into the county now because they don't know if it'd been a corporate account you would have had an entirely into personal accounts that is correct corporate checks and these accounts were opened up in the name of any surprise and addison business plan now the one thing that their expert might have testified to had this testimony been allowed in is that american bank should ask donald down for an assumed name certificate now the assuming there was an assumed name certainly he testified the first american bank actually did ask him for an assumed name certificate on the second account and he testified that he went to the county clerk  a depository bank can be liable if its failure to exercise ordinary care and assuming there was a failure to exercise ordinary care substantially contributes to the was there was nothing about this assumes certificate that contributing appears in that in that statute and we when we quoted white and summers explaining that that's a hurdle that's a big hurdle to get over to get to that question a fact that goes to the jury and actually writing summer said judges who would have  judgment in a contributory negligence regime to a bank that was only slightly negligent must now feel compelled to give those cases to the jury under a comparative negligence scheme those judges would be wrong now as under the  bank's negligence becomes relevant only if it substantially contributes to the loss if it did not substantially contribute to why he shouldn't go to the jury when i look at it can i ask you about a rather troubling aspect of your brief to me ok starts on page twelve where you say under ordinary standard of care of the u c c you use the sentence this definition in research on this issue i have a problem with the failure to discuss several illinois cases that are arguably as relevant of that as that for example had been cool versus united blood services which is where our supreme court listed for example a number of professions for which expert testimony is required to establish the standard fair listing attorneys physicians practitioners dentists accountants and social workers and leaving out banks but more directly than that an opinion offered by justice  soy capital bank in trust from two thousand and twelve which says and i quote a bank is not a professional and thus there is no professional relationship and quote  the argument that even in a context where there is a professional standard there are also circumstances in which there are and this really wasn't argued suit case which is cited in the in the briefs the supreme court basically distinguished between professional negligence and institutional negligence in the medical context and they found th standard of care of an institutional negligence case may be proved hope may be proved by a number of evidential resources including but not limited to hospital by law statutes accreditation standards custom and community practice but th your sole citation of the california case we haven't don't believe that there is a could in the case of his two should be proved by other sources and that bangsa did express they of ordinary care under the u c c it requires that degree of specialized knowledge that that's attendant to a professional negligence standard so you know we aren't i could go on and on about those that distinction but when it comes right down to it they didn't have anybody to testify as to what was the standard of ordinary care here and the fact of the matter is that even if mr potter had testified he could not overcome that substantially contributing what you know i'm still troubled by the premise which you thought important enough to include the race should be it can only be proved by  high expert witness and then in the case of an institution the negligence of which you were asserting that there is no other way to prove it which is really the second point that mr smoker was making of the issue of the did spend a significant amount of time talking about the the the evidence that national union was going to present on whether or not there was any negligence and whether there was a breach of the standard of ordinary care what was that standard of ordinary care there was no it was never going to be any testimony that they had to go out the first american bank had to go out and investigate this entity and they use terms like verify the existence  legitimacy and that comes down to the assumed name certificate again i hate to repeat myself but i like your defense i just wish you were able to present it to a jury i really think you should have been i think the plaintiffs of this case are and i think you would have done a spectacular job defending it but i think that the jury should have heard just seems well mazie to me that on the basis of the foundation that was presented that that expert wasn't allowed to testify number one and number two there was enough evidence of just ordinary negligence confusing practices with personal accounts of corporate accounts that it ought to have gone to the jury not that it was the most persuasive case in the world will there really was the confusion was really created by the use of the terminology what the first american banks said very consistency consistently was our procedure was always identify the individual who opened the accounts they did the same thing with corporate accounts by the way they did it with sole proprietorship accounts they  it with individual accounts they may have asked for more things with respect to corporate accounts at that time their procedure was not to ask for an assumed name certificate with respect to sole proprietorship account but the assumed name certificate  didn't it the point of the statute is if the bank could have detected that fraud through the exercise of ordinary care and could have prevented the loss then the bank may potentially be liable there is nothing that the bank could have done with this isu name certificate there's nothing that would real way way w e i g h t agosta way and it just wasn't allowed to be considered by a fact finder i agree i agree with it really wasn't did mr potter have a foundation to say that there were banks other banks in this area who were stomper called the first american bank who were acquiring assumed name certificates at that time know he he was involved in industry committee and he may have learned second hand about some bank that was never demonstrated to be comparable in any respect to first american that there's a basic level of foundation that has to be established before the expert gets to due respect and well you know it would be it be encouraging to know that somebody is going to to look at what this expert's base of knowledge is and determine whether he has any basis to say boy that  it wrong i think i tried cases for twenty seven year i sexperts all the time i understand i understand  i only have two points i'd like to make and rebuttal i mean i think the first point the court has pointed out there is enough evidence here that it's treated like a personal account but it's opened in the name of the business can't take a business check and put it into a personal account mr potter did have experience working on committees afaik that he wrote that were there in the policies and procedures he compared it certainly based on everything that was presented and more importantly could have been presented that day it should have gone to the jury just to weigh the evidence and render a verdict regardless of how to quickly feel about the strength of the case that's ultimately for the jury to decide thank you people thank you for a very interesting appeal and we will take it under consideration and your picture here directly we are