the answer to that question is trial counsel did not specifically request that instruction but that instruction should have been given in any event oh wait a minute well instrument i've been around long enough to know that lawyers aren't they don't a should the judge have been we have to two questions one should the judge of or reduce the award at all and if so to what love on the question of reducing the award of all the supreme court statements is that few awards if seating single digits multipliers to a significant degree will withstand constitutional muster and the question is what is significant a gre and several reasons to that your honner number one we are dealing with physical injury as well as the other reprehensible but the fact is the evidence that's by study is the goal and yes he did he testified to being in the hospital for clear by reason of the loss of income and emotional distress that he suffered during the course of the of the fraud and he was in the hospital several times and i believe you testified to further one doesn't usually first of all certain things were not put in writing correct your honor but this is not the kind of you don't normally put fraudulent representations in writing the fact that  smiley who was telling us that all of mr matched transactions always close to his huge office in the middle in the middle wall and building this is a this is a money manager who said he control discovered the pride in one thousand nine hundred he said by the way that the fraud was i have twenty two million dollars i'll get twenty three million dollars if in fact the put the defendant had said you know i'm very wealthy i'm going to use all of my best effort to get the two the two million dollars i'll do everything i can i think i can do it i can't i can't guarantee but i think i can get there be no case here whatsoever there would be no case here whatsoever your honor because mr converse would never have entered into the transaction he so testified if you didn't enter into the transaction if you will go back to how grim this must sound to everybody in this room he would have to go back to the practice of law and he'd have to earn his income like every other unfortunate lawyer out there who have to earn their living that's what would have happened and so that what the judge what the jury did which i put actually in my view was very very smart and said look he spent so much time on this project was going to be compensated a particular way that we're going to give him because he lost that money but he lost considerably more than that because he would not have started into this venture without the agreement for a pocket he lost though he was there he was out of pocket as the jury found for that period of time but your argument is he lost the benefit of the bargain and that's where we started this discussion that in addition to other he proved out of the mouth of the defendant's expert even though i don't believe he told police that the defendant's expert should have been allowed to talk but he proved out of the mouth of the defendant's expert that if the defendants had performed as represented i wish to i wish to get back to the reprehensible of the factors for a moment there certainly no doubt that there was trickery there was no doubt that there was long term trickery which carried over both into the issue that the defendant apps could have out but did not get the point of an opportunity to fix the problem and mitigated damages by having told the plaint the truth in august of ninety ninety five when he had the opportunity or was presented with the proper tune ready to return to the company he built one which had suffered that contra proxy fight and the new board represented a new board came to him and said we want you to come back and contemplate running the company and when the defense learned of that fact they blew up at him and said you can't do that you have to bring the company to us who is in a better position to judge want to turn for a moment however to the question of even assuming that the ratio the ratio of fugitive damages determination this court is really reviewing not the determination of the trial judge so much as the determination of the jury and can examine that determination based on all of the reprehensible  excuse me your honor that was stated in the very recent case in the third circuit the will in case which was provided to the court in the supplemental love authorities are given there are other such cases  not make that appeal we did not make that a feeling we are not making it at this time we are willing to accept the five to one ratio that the trial court found in this case and i think that ratio is very comfortably in line right there with question sort of how support go about doing that and i don't think and i think it's the supreme court said there's no particular bright line test you can't it's not like the sentencing guidelines where you can  where the trial court than i as a new trial motion the do novo review is very important the issues that go to the trial court under state farm and other gore are sometimes issues that don't go to the jury you you wouldn't necessarily put in the jury twenty two to one to five to one it would seem that when you've actually heard the trial when you've seen the people when you have a sense that you know how damaged someone was and that you you would just absolutely our honor and i think that in a case like this where judge mathis did sit through the entire trial and you know the judge may ask did apply the various tests for the state farm and in gore and actually looked at the reprehensible  the factor as it been demonstrated by you haven't looked at whether there was any physical injury which i'd like to get to before i close look at the relative vulnerability or non vulnerability of the look at the trial court's determination look at the problem for three duction and say well if i for one is right maybe it's five point three to one well i mean in terms of when you're assessing vulnerability whether someone's you know the sharpest knife in the drawer or whether you know they're sophisticated are you get a sense of those things when you're around people when you have an opportunity to see them testifying or see how they react i agree your honor so long as it's jury in his closing argument it's also very as i said very comfortably within the other cases that have come in but of course now when he thought the damages would be a lot more than two hundred thousand dollars well he could have clarified that to the jury or hon people are dying and the court said five to one or approximately five to one so i don't think here there's any cause to question the trial court's determination it's also worth much worth noting to the extent that we're going to give findings as we do that the jury found there was no oppression and no malice in this case which in my experience is an unusual finding where the jury determines that there is going to be punitive damages the  sort of enron that the plaintiff tries to do around that is to say well ok the jury may have come up with two hundred fifteen thousand but the real number should have been ten million and there i think the real problem the point of has is that he's arguing his case is if you were arguing it back to damages should be a real problem is that the jury didn't buy the jury ultimately found that it would award him for his time and that it was appropriate to do so and it worded him fifty thousand dollars in emotional distress damages but  believe that that's an appropriate determination from this record from this record where you have expert testimony that the that the enterprise was doomed to failure in this case where you don't have a good articulation of any sort of getting the money into fraud at all the investors who just put in twenty two million dollars but even there there was no evidence as to what the life the you side of the house looked like so i think where we really are here is that the profit was exactly right of a situation where there is no physical injury even in the context of a fraud there has to be substantial evidence of a lasting and severe emotional distress here isn't that right it isn't that it is pretty good thing for a jury to hear i in light of how he was treated here are not of that not of that might be far fetched in the sense that a jury could believe it i agree with that but is that enough to satisfy burke i think i think bill it down to the fifty thousand dollars worth they come fifty thousand dollars see my time is running and i would like to give mr rosen an opportunity to discuss his issues so if the court has further questions of me i'd be happy to answer them otherwise i will see the podium elector thank you there was discussion in the questioning of mr ship about the vulnerability of mr condit's i think it's important to be very specific about that he's not just an attorney he's a smiley and his partners because of it no matter what if the deal turns out to be terrible if the deal turns out to be absolutely improved risky reckless would destroy my reputation with my clients i still get you twenty two million dollars remember it's clearly understood that mr matters not have the money it has to come from his clients the people who form the basis of his entire career the people  waste the time arguing about the jury's resolution of conflicting testimony when you can use a lot of words committed what they're saying is irrevocably for ever when the money has to be there it's going to be there even if i think this is going to be the their clients they're required by law to do that they are liable if they don't do it in fact that's one of those matters to fight a trial if i proposed i told my clients they should invest i would have been sued by my clients he said it would months before the they propose the financial transaction went to the public letting most writer i'm going to give you the money even if after during those eleven months it turns out that they're absolutely dreadful deal has nobody understand your position and you have by the testimony was summarized as too much money equivocal commitments a commitment that he had discretionary counts and he had the power and control to deliver the funds which is more than sufficient for not only clients but it doesn't take anything new trial was remade it was improper we deny this court can consider all of the harm to the defense to the point of in dealing with the ratios in this case including for three years that here experts who would have been able to