before the court made please the court i have reserved three minutes of rebuttal time and you know obviously there are two global issues before the court today that one is jurisdictional and we have that divided into a cloud or doctor and the potential alternative of a mandamus the second of course is whether there was a clearly erroneous basis for the sanctions order and not simply as a matter of fact but substantively under nine hundred twenty seven whether it met the standard which ever of the standards the six circuit will it here to and if it was procedurally in appropriately imposed again and the amount of the sanction and the way it was imposed without an evidentiary hearing but only on paper and without access to the documents so first the jurisdictional argument it seems to me the city of akron has us has a  we also know of course in judge boxes helped us the rule thirty seven sanctions are excluded from the collateral order doc and they're not into lock it too early appealable if we look at the continuum and we've got on the one hand we've got these criminal contempt sanctions on the other and we've got rule thirty seven i submit to you that rule of levon fits near and closer on the continuum to the rule thirty seven but the inherent power of the court and particularly the nine hundred twenty seven sanction resembles most the criminal sanction let's look at it for a second vexatious on reasonable amount of publicity it's aimed personally at the merits as you know this circuit in both published on published opinions has said on several occasions you can't appeal a sanction until an amount is set and that she is used other panels have used the words collateral and they've used it in the context of collateral to the merits i thought i think when members of this court used the word collateral to the merits they know in the back of the minds are talking about the credible order doctorate but each one of those cases because of sanction up and said it didn't even meet the first aspect of the cohen doctrine the cloud of water doctrine it wasn't conclusive that had been said but here you've got several from the merits we know that as you know we court supplemental story which shows that the back pay amount has already been sent the judge did refer were one to these sanctions are what went on before it was able to in a very clear cut opinion figure out what the back pay should be using by the way the witness called as the first witness by the plaintiffs we've got effectively unreviewable you have first of all the ethical problem this been denounced by a federal district court as engaging in such behavior and you've also got the way this feeds into other litigation i supplied the city of akron a few weeks ago with the brief that was filed in new haven connecticut firefighters case they specialize in firefighters and other types of cases of this well how for city of akron is it keep on giving for the other side unless they can get it before this court and either by way of not effect a reviewable then you go over to mandamus not correctable on appeal they're basically making the same point which is a for going to wait for an appeal of this then the harm that will be done transcends what could be corrected by a reversal later on and the reason why that's important is because as we know from rule thirty seven and as i and want to concede for now the real lesson those issues merge into the merits so of course they can be reviewed upon appeal they're naturally and best reviewed at the end of the case piecemeal fashion when you have a separate respected fact finding they gauge in a bait and switch and it's just that the clear air here is so outrageous the crime ology is so straightforward they started they gave up these front pay for bad pay for emotional damages they get the post at the depositions the emotional damages are examined and what's the first switch that occurs in this case i know it's here for you the firefighters abandon the emotional damage is quiet so first of all they reduced their claim right away after those depositions then that next comes the issue of from pay after the depositions after the depositions the court says you know what if they're going to be appointments and city record needs firefighters these plaintiffs pretty much been waited around for forty five six years and states them that gets rid of the front pay so now they reduced again the calculations finally we get to the back pay it gets reduced further to which is very end before the original schedule trial it gets reduced to a two year and four year period along the way the reviewable well i don't have a case that says that except in the following sense in starker which becomes cunningham there were arguments about reputation and reputation alone will not suffice in other words start we have the record and we're talking about what happened at a trial doesn't make some practical sense for the same panel that has to assess the whole trial to assess this piece of the trial in the night now this panel has the issue of sanctions which are clearly separate will from the merits and then another panel is going to have the issue of whether the back pay was calculated appropriately not wit transactions that led to the calculation of the amount absolutely the events in this case relate to this case but that cannot be that that's what makes it effective we haven't reviewable or affected review because whatever happens in the case relates in some way to what happens in the case and the difficulty i know you put money aside but i do want to be clear these are prevailing plaintiffs i came to this case the same as you three after the fact how in the world could be very pious by the way to a damages hearing has sucked against them ninety seven thousand plus and sanctions it just didn't make any sense until you look at the chronology and the judge's open expression of his frustration with the original trial and the damages that caused what he essentially rules a mistrial but if they are hit with this at some point it's going to affect their ability to continue as plain of civil rights lawyers these are contingent cases i know firefighters make money but they have bills to and these are taken to continue to see they've been paid their interim fees but it's been many years now this litigation has gone on and what we say to you in the briefs and what the needle of make this brief tried to point out was that there's a reason for the policy under christians for government of not having reverse examination got firefighter captain carded to say i'm not sure of the date i much of the day but i was on vacation until the thirteenth and then of course it happened after the order the judge says why don't i  don't think you misspoke i think you knew ahead of time what the judge is going to rule on the thirteen point number two the legitimate reason for this is absolutely clear from the record chronology sequence of events don't lie the plaintiffs calculations were disclosed in may thirty first there were depositions then from june first june fourteenth and june fifteenth the plaintiffs have been asking please give us your calculations calculations that we now have next week no third we know forthwith friday before the originally scheduled date afternoon and they get the calculations the calculations he no legitimate reason to do what to change there's plenty of legitimate reason to change when there's no longer front page when you eliminate emotional distress damages when back pa old by two years now there is one other point the judge thinks it is illegitimate to change in response to deposition questions the judge is wrong about that deposition questions elicit and expose shortcomings lawyers and their clients work to overcome their shortcomings before they go to trial what the judge thought was illegitimate was that if you say in deposition i didn't look at these didn't notify them all along the way did they say we're going to spray find more information the problem was they kept on providing more it wasn't it they did provide them enough it was a pride in too much because what happened after the first set of depositions was that the comparative model which could no longer be yours that was firefighter snyder right so yes but before the car actually got started captain car went ahead and figured out after the depositions let's see what a the court my name's irene keith walker i'm here on behalf of the city of akron just to clarify the last point although i don't think the merits are properly before this court judge gilman that's absolutely right it was not informing the city of this change in calculation from a comparative method to a gross up method and affirmatively hiding it from the city because on the last day of discovery after they had to put those mr karr in mr karr said yeah i i have a different method of doing all this but they rejected my method they're going with the snyder method they then on the last day of scope discovery sent a whole package of exhibits of car calculations with a cover letter that says these are not intended to supplant or replace the snyder calculations they are merely a supplement to them so counsel thought well he referred to car referred to these during the deposition so obviously they were just given to me so i have them they then continue to give snyder exhibits as fair trial exhibits and to say in their trial brief that they're going to do the snyder calculations and have snyder testify it was him until counsel started questioning on or in opening statement made reference to this different calculation method completely different calculation method but the city said whoa wait a minute this is now the third calculation method and i deposed twenty three people on the sniper method not only because they told me that snyder method was what they were using but also they told me that every single plaintiff was going to calculate their own damages which would also falls it turned out that snyder calculated it calculated from everybody in car calculated from everybody a classic situation not only of circumventing court orders that said you shall not use current snyder is expert you shall not have an expert  have the plaintiffs individually testified but also is this court held in red carpet studio versus they all this was a situation about counsel who has taken action in the face of an obvious with that it would increase the cost of the other side twenty three depositions that never needed to be taken without advancing the litigation that's what nine hundred twenty seven sanctions are for and nine hundred twenty seven well you want to first of all the city did supply the pay or records within the time period after the request for discovery was made for them those payroll records were used for the snyder and car calculations and then what happens if you read the first two days of testimony july twenty fifth and july twenty sixth you'll see that the first from me it's the fault was a city employee mr macleod and they started questioning him this issue of this the calculations came up the court at that point brought car to the stand questioned him decided that there had been a switch in methodology and said i'm going to exclude this and at that point the pla the clout on the stand on the fly with a calculator to make a damages case that they no longer had that's how the c b whose prejudice your honor they now have prepared for case for snyder they have been presented with a car and now the court ended up actually saying the only relevant evidence i'm going to listen to is this that is on the fly on a bench trial with a calculator in hand b soon after soon as mr macleod went up the stand they brought mr snyder on and they started asking him about i forget the name of life tables again and and other things that were not part of  testimony was not part and what would have required expert testimony in the court said no you can't get into that they continued to try to inject expert type of testimony for their inflated  because your honor the entire work that the city of akron did for this retrial of damages was a waste preparing for for first the calculation that they would use during the first trial which they have banned and then a few days two days before the depositions of the individual plaintiffs which were only schedule because the plaintiffs cite each each plaintiff is going to calculate its own damages only two days before that do they get the snyder calculations so then they depose all of the plaintiffs on the snyder calculation then are told yes these are our calculations a car method was was rejected and then take it to trial and it turns out what the judge actually hears is a simple mathematical calculation from the city witness that if they come to us in the first time and said ok we agree with you compare each person to him or herself none of that hours an hours and hours of depositions preparation analysis of the snyder method slee inflated have to depose every plaintiff because they're going to calculate their own damages none of that would have been  reasons at one point they said well we were just going to do the car and the smiter calculations to show there wasn't much difference at one point they said as you heard well we were adapting to the city's cross examination during depositions at one point they said well when this court changed the date then we had to use a different method but our himself when he was born dear by the judge said no it wasn't the change of day this court that made us change the method it was to promotion of the of ficers which happened july which was ordered july seventh much earlier and you still have the the fact that the call our exhibits were sent to the city and done it back in june but what's critical was at that time they said these were abandoned and they never said to the city on july thirteenth or any time up until july twenty eighth we can't use night or any more we have to use car now it was that deception that the court found on to be vexatious and render all of the prior testimony and work of the city useless but i do want to get back to the fact that these questions are exactly the kind of practical questions that will come up on the merits of the the award and the evidence presented and all of the out and i better for that and it is jurisdictional question that no circuit in the united states has held but nine hundred twenty seven thanks meet the collateral source doctrine and numerous circuits including those relied on this by this court in the starter decision have held just the opposite the key is the click versus abilene national bank i was in one thousand nine hundred eighty seven that circuit decision that was cited by this court in starch or along those of the line of cases and it says right in there there is no difference between wall eleven thirty seven and section nine hundred twenty seven sanction for purposes of none of them meet the collateral order doctrine called they do not meet the three prongs of the classical order doctrine this court cited that decision in star church starch or was affirmed by the united states supreme court in cunningham versus hamilton county i think we list four other circuits since coming ham that had expressly looked at the question of whether nine hundred twenty seven sanctions are any different from inherent court sanctions or discovery sanctions under thirty seven for purposes of the collateral order doctrine and they've all said no second circuit i think for circuit this court has not explicitly s but the plaintiffs say is well we we have cases where the sixth circuit has said there is no jurisdiction on a nine hundred twenty seven sanction or any other sanction or you haven't put a monetary amount assange all that means is that we don't even have to consider the collateral order dr because you don't even have a complete judgment yet nothing in those decisions would suggest that this court is deviating from  clicks what this court said in starch or what the u s supreme court has said which is all of these cases are better suited for decisions after final order and the c may hear in our power the court make a doctor and that would render that order final unworkable as a practical matter unwise as a policy matter and contrary to the efficient resolution of the i mean that's exactly what happened here there were constellation of factors it wasn't just the chronology it wasn't just one thing or another one of them it was the fact that the court because fifty thousand dollars because i thought that you had an undue burden and now i found out what you really would be doing was wasting the city's time with twenty three depositions of people who really couldn't calculate their own damages in a method that you abandon the never told the city  those are the kinds of things that are better what's going to happen now when we have injunction hearings when we have attorney figuring are they going to come up and say well you know we think that you we have attorneys speeds for doing the second part of the trial i mean the court all of these issues are better decided at the end of the case and the starter case expressly says these are reputational matters and the importance no matter how important the underlying suit is or the underlying issues are whether it's a civil rights action or something else we have to give the courts the discretion for deterrence as well as punishment to be able to maintain control in the efficient management of the lawsuit and if we allow counsel to buy when they don't walk you tory appeal every time a sanction is water we're going to have a situation where we're interrupting the court and people are going to use that as a litigation strategy that's why the cunningham court says we issue the idea that we look at a case by case basis of whether it's in twined with the merits of the case we categori donna there is no categorical rule that all sections are in a lock a tory be on the iraq story appeal we know that some sections are there's been much made in this about what was done in terms of misleading  simply an unfair reading of the record to think of it that way first of all exhibits well they had all these in the exhibit yes i want to be clear the firefighters do not concede that the two thousand and seven date is the right date they they need to have that evidence in the record they said the trial brief was filed and in the brief the city of akron files they said the trouble brief was filed and yet it didn't say anything about the two thousand and seven date look at when the trial brief was filed it was filed nearly four hours before on july thirteenth that the judge's order nearly four hours before the judge's order on changing that talk about the completely different method that's been covered you can't be comparative method anymore when the judge changes that given the step increases that just would have been wrong for the lawyers to continue after the judge changed the formula each plaintiff is going to testify actually that's not what was said if you recall they said we won't do an expert we're going to rely on several things including the plaintiff's testimony and at that time they were seeking emotional distress damages each plaintiff has to testify promotional stress but at least in my four decades of doing this i've never heard that each plaintiff has to testify about mathematical and let's be clear the district court said in the back pay water this was math a magical captain carr we've put for you in the briefs the volunteer i think sometimes think lawyers don't like judges ever to ask questions of lay witnesses we don't mind experts they have themselves there's a reason for that it isn't because they want to hide the truth it's because  this is the do very well what a judge ask questions they are prepared for and they get dates and other matters confuse the judge question with already figured look at his testimony he says i'm not sure the date he says i know is after my vacation after his vacation and of course it whose testimony the judge relied none of these issues with before any appeal on the backpay this is strictly a retrospective question of the behavior which we believe never happened and should not have been sanctioned the way it was or in the