and if we could we'd like to split the opening argument about eight minutes each and then have four minutes from about the try our best to keep that schedule you're honest i think we need to take a step back and let the happen in this defense in this case filed two motions eliminate before trial one to keep out post complaint anecdotes and one to keep out pretty complaint actors censure they try to form the entire focus of the trial consistently also permit testimony to come in from eighty eight to ninety four but at times require that it be within the likely time for the next thing that happened was that in the defense case in chief they presented six witnesses who are all very high level employees of the c h p and the very highest level the deputy commissioner the assistant to city commissioners to testify about their entire ranking and their tire promotional history start as an officer that's to it in a normal case i would agree with your honor that would be fair that on evidence that in a case where you have a pattern and practice of discrimination in promotions you have a very different scenario in that case as the courts  so i would say in this case we the pattern practice failure a class action failure to promote it's really not fair and those witnesses really were not brought up to say anything else their entire purpose of the testimony was what their pattern of promotions had been and their special assignments the court compounded this problem by excluding plaintiff's own evidence that went after the fact there were many witnesses the plaintiffs attempted to get to minority offices houses and told them what the answers were going to be that they could in fact give them help and this also shows that the process was not so ironclad that it couldn't be fooled around with and the court excluded that evidence and it's that two had well i mean that really resulted in the prejudicial error in this case if directly if neither side had gotten into it you might have a different scenario or both sides have gotten into it but here you had has reversed a trial because of the inclusion of this very prejudicial our so it it rises to important level not just some kind of harmless discretionary ruling that the court made on the pre liability evidence individual cases but when you have a pattern and practice case it's critical to have evidence before the liability period that can help to show intent the court said in haynes versus caruso again this evidence is critical because the player has the burden of showing that you must disbelieve the employer's own motives so they have to show that what the employer is claiming about why they promoted as they did is not true my impression is the judge did allow some they pointed to that i can find in the records that was allowed in were promotional history which is the the how long it took them to get to sergeant how long it took them to get to the tent that was permitted back regularly by both sides really make a for three holding the court ruling on any of these judgment calls she kept saying it's outside the relevant time let's move to more relevant time period was really really the bottom line without you know articulating her thought process but that's basically what she's ruling isn't and well i would say two things one she would ask the question for example quite likely she was all set to allow the testimony to come in about what a gun is a decision maker made about hispanics and then she said i'll let you have that test when i come in what time period was it well he retired in one thousand nine hundred two it's not going to come in so i heard her ruling were really pin to the time frame and i would take either one of these would be grounds for reversal but that combination of the district court committed three errors and it's written decision on places disparate impact case first and most fundamentally the court apply the wrong legal standard in evaluating plaintiff's statistical evidence in evaluating stickle evidence of disparate impact the district court incorrectly require the far greater showing of disparity that's appropriate for disparate treatment plan court did so by citing through this court's case and gave the waiter's which was intentional discrimination case in which the cart court expressed the court's to be cautious in drawing inferences of discrimination intentional discriminate where standard deviation showed disparities in the range of one to three now it's ironic that the court in fact cited to the standard articulated and gay because in that opinion this court took great pains to distinguish the standard of proof between disparate impact cases in which the fundamental claim is that the selection procedure causes of this parity in the statistical proof of the disparity is direct proof of the claim and disparate treatment cases in which the claim is discriminatory intent and proof of a disparity is only circumstantial evidence of that in town and indeed in the section of  that is not cited in the briefs directly the court rejected the waiter's argument that the two standard deviations threshold this is the testable significance that is accepted by social scientists in both experts in this case sufficient for intentional discrimination reasoning that the waiter's made an error in quote taking a quantitative approach to the question of inferring discriminatory intent from statistical evidence they're purely statistical analysis would almost completely blur the distinction between impact and intent that's eliminate the legal difference between disparate impact and disparate treatment lawsuits this would be both improper and unwise but this is exactly what the district court did hear the importance of this is twofold first of all if this court were to affirm the district court and repeat the application of the disparate treatment standard and gave to the disparate impact evidence it would destroy the careful distinction that court in gay is since to follow between disparate impact and disparate treatment it would create confusion in the courts between the standards of proof in certainly disparate impact and arguably both of those cases second of under a correct standard it's a very different thing to evaluate statistical evidence and the other courts other concerns under the standard of eldridge and boman and even contrary where two standard deviations is taken as sufficient proof of a prime official case of disparate impact unless additional factors undercut that on the one hand from the evaluation under the disparate treatment where the courts regard with caution disparities and one to three standard deviations even if she were wrong about the significance of the of the standard deviations i get the impression from her ruling she didn't get a whole lot of stock and your experts methodology is she is the trier of fact entitled to say i don't i don't buy it even if i bought it it doesn't measure up ok you're well i will concede that one but we did the first hurdle first that's absolutely correct your honor that there were additional factors that the court just relied on but when plaintiffs made a motion to amend the judgment the findings of fact inclusions of law to reflect the proper standard the court here to that standard it explicitly did not say well even if i evaluated under the standard you're asking for i would have reached the same result and it's exactly sorry the calculations and underlying data indeed that's the the court rejected the testimony of both experts defense and plaintiffs on that ground was there to do both to discount the data for both experts it was what the district court did and in had used different data points and so she felt the need for that to see this data in ultimately because neither one of them did it within this is another wrong application of the law because experts aren't required to do that have had come concerns from the data that i'll get to in a second the rule that she imposed by requiring introduction of data if this court were to affirm that it would create a rule that your honor suggest is rightly does not exist that experts must always introduce always contested in any rigorously litigated cases if you're smart you'll prove it especially if you know your judge i mean just like just like when you call your expert witness you don't have to stablish their credentials but you do because it makes them more probative i mean if you don't introduce the date and especially she sent out an order saying i want the data well there are two points there first of all it's exactly that the problem here is exactly that it wasn't probative neither side suggest that the data was probative the order that the court sent out asked for references in the record to the data because they hadn't been disputed out certain flaws in the data both sides interpreted that as a request for references to what did have been used for particular calculations not an invitation to submit additional fifty eight testified that an erroneous showing of one hundred percent pass rate wouldn't create a disparity the disparities created by different pass rates for different minority groups and therefore a error that shows one hundred provided multiple analyses for the individual sergeant's written examinations which showed disparate impact in the range of two for the two the three for the individual examinations in the range of four for the combined examinations from eighty eight to ninety four performed the single poor and that methodology is outdated and has been rejected by the profession it's bad science and that's what dr war testified if you go to a surgeon and you need knee surgery you better hope that he's not going to apply to proceed or that was used fifteen years ago from the from the surgery it's like any other science like to go back unless the court wants to stand the impact claim to the treatment cla judge made numerous evidentiary rules throughout the trial prior to the trial she communicated to the parties the ground rules because what she said was if you're going to come forward with evidence outside of that time frame i'm going to be analyzed on a case by case basis those were the rules of the road and those rules were applied witnesses and snippets of their testimony and they've argued that somehow district judge marshall abused her discretion on these evidence rulings quite to the contrary quite to the contrary most of the points made me regarding our testimony was not objected to i think it's quite clear from the parameters and she consistently applied those parameters that is the role of the district court judge we didn't like a lot of it i can tell you that but those were the rul on the witness took the witness stand they talked about their employment history at the california highway patrol the trial was in two thousand and three the liability period hannigan testified the testimony was not objected to there was no abuse of discretion the core listening to the evidence she listened to the arguments of counsel she weighed the evidence she weighed the pride to potential prejudice and she made didn't prove a prime aphasia case correct but if i'm wrong about that i find that the defendant didn't rebut the case correct this is the the burden shifting thing i think that word was asking about are you saying that that was error on her part are not reliable you can show that the expert witness is not credible it can disparage the statistics through briefing or argument we get all three so that's the re that the defendant has an opportunity to present now if that's unsuccessful in an impact case then the burden of proof shifts to the defendant to show job related as in other words you've now demonstrated that there was a specific employment practice that had a disparate impact you've done that through statistical evidence the defendant has been unable to show that that's just little evidence should be rejected for any reason this court has addressed it and numerous occasions of course the supreme court has addressed it in watson and other cases that's the paradigm i think that's what she was doing i'm fairly certain that's what she was doing because this has been briefed numerous times and  and the oral component the surgeon and the lieutenant's test him to pieces and there was a written test if you passed the written test you then went to the to the oral interviews if you didn't pass the written test that was the end of it you didn't go to the real interview that was the end of the process so there was a two step process for the sergeants examinations and lieutenants the captain deputy chief and assistant chief tried to combine those the two point one he goes to eight examination total examinations that bedell analyzed and for their analysis use the single pool method it also fails title seven because in an impact claim it's the plaintiff's burden to identify the specific employment practice that's caused the alleged impact when you have a combination of eight separate missing race information he used some test where everybody was shown to have passed doesn't really matter whether because everybody passed everybody was it was treated equally under the point is the salient point is that statistics were bad it was bad science and it was bad statistics she evaluated the testimony all of what she heard dr ward gay and for that she's taking the statistics that they're deviations and showing how they and relaying them to cause asian as opposed to we gave them accurate information back in the ninety's nine hundred ninety seven i believe for whatever reason he didn't use it and cross examination he admitted he didn't use so that's why she discarded it and that's why she the you know what's good for the goose good for the candor doesn't really work here because if that's uncontested i don't think there is a need to put in the underlying data or even the underlying analyses have a doctor ward is not with any of his underlying data is with the fact that he used some information that was after the filing a lawsuit and by the way that was entirely appropriate because all the dr ward did was he looked at the ten the plaintiff didn't know what their witnesses were going to testify about when joseph farah testified about his promotions he went through all of his promotions to the present day without giving a timeframe and then finally said plaintiffs said i would often objection s six fifteen people could testify about what happened to them subsequently they just couldn't tie it to the lawsuit and that again is where the error was compounded once the testimony had gotten in surely at that point cannot make errors of law and in the wrong standard was what exactly the wrong standard was the standard this court articulated in gate where standard deviations in the range of one to three are treated with extreme caution that's a very different standard implying that in less it's supported by other certainly important but if you look at the record if you look at the recitations in the district court's order there were two point nine standard deviations for the one thousand nine hundred britons two point three nine standard deviations this is multiple story this is not aggr finally with respect to the issue of of this erroneous data and particularly the issue of the others this isn't an error of law i think it requires a little explanation when we first received that in one thousand nine hundred four that data did have errors mr biddle records of the impact this election procedures have on differing races and while those of uniform guidelines aren't binding law the supreme court in wards twelve was very careful to rely and relied heavily on the existence of uniform guidelines and those obligations in placing on plaintiffs the burden to prove statistically that there was a disparate impact and for this court to find that a failure in attendance record keeping can lead to an