to try to anticipate problems that might arise about the extent to which operative contracts can be discussed here today reprise fairly marked in the in the brakes you mark legal argument again and you shouldn't be doing that and the question is can you fix it can you remove the confidentiality markings and file them up with briefs yes your honor we can do that will give you two weeks to do it and here on the start with the merits mr rosenthal is whether when a breach of contract action is tried in federal court and attorneys fees are claimed as an element of damages is it fatal to the plaintiff's case that an seems to me is that on summary judgment you didn't put in positions of the summary judgment motion proof of the reasonable cause but that was not the issue that was presented to the court at the time that the two issues that were raised on s judgment by the other side were number one you haven't tabulated you haven't totaled up your invoices to give us or calculate your computation of damages and number two you blew the deadline for designating experts and therefore you debt they did not say the evidence that you've given us in the form of all of your billing records is somehow insufficient or is not reasonable all this it was a purely procedural point and so we responded by saying well here's  cases give examples of extremely scant testimony by attorneys about to the effect that you know this is the disease that i normally charge for this sort of work or comparable work this is the sort of fees you've given the complexity of the of the action roe sort of my reasonable normal way of handling the issue and i don't think i'd call that expert testimony within the meaning of rule seven zero two is something that can't be reconciled with the fifth circuit's case and the american home surance decision so there we had a situation where an attorney was ready to give testimony about reasonableness there was a motion in limine and that prevented that particular aspect of the testimony coming in but it's undisputed that the attorney in that case had not been designated as an expert under seven o two and yet so if if the federal if if the rule in this case had been applied in that case then the case would have been over but instead of a fifth circuit said what you need to do is go back and put in testimony about recently this from your attorney who's not been designated as an expert and that's not all that unusual i think for example if the court will look at consider the advisory committees notes to federal rule of evidence and i won a talks about lay opinion about things that might at first blush appear to require expert testimony for example a business owner or the officer of a corporation can talk about the value of the business or the expected profitability to business without being an expert in valuation or rounds of counting for you you're emphasizing a right from the start you said in a federal case emphasizing that this is the federal court as relying on language in an american home where the court said is there an expert or the claimants attorney but leaving and resolved at least on the face of it the question of whether that claimants attorney had to be an expert as law are you taking a different position now and saying that texas law isn't really what governs it really is a question of federal rules of evidence well what i'm saying is that we accept that under texas law as as our response to the question earlier from judge strike there has to be testimony of reasonableness from an attorney but whether also except under that under texas law setting aside section thirty eight point zero zero one of the damages require experts either in the form of an expert or an attorney expert designated as an expert i understood from your brief you did not accept that proposition that is correct i do not accept the proposition but i don't know that it's necessary to result of the question of what texas courts think that's where i'm going with my question because it sounds to me like you're walking away from the that owned by the texas law on this in other words if we were decide to decide in this case that texas law is very clear you need to have an attorney expert and in texas courts if you don't disclosure attorney expert at the time that you're supposed to disclose experts you lose i think there's a case among the cases cited here less a car which has exactly those facts do you accept that that texas law if that's the texas law if we conclude that you would lose this case you know you're on top because i think this is exactly the sort of the trick that the other side is trying to play here they're trying to use texas substantive law about expert yes thank you your honor so i think that we agree that there has to be attorney testimony on reasonable notice the question is is it appropriate to identify the attorney's going to give that that testimony at the time of tr is it necessary to designate them formally as an expert under rule seventy two at the time that expert reports are exchanged and our point is that under the american home surance case that's not the rule it's not the case that a failure to name an attorney as an that the strongest statement of that rule in texas is probably the e f hutton against young but case where the texas supreme court effectively said and as your honor it said you didn't identify the expert in time and therefore you're precluded but the facts of that case of chris were that the witness had not been identified as an expert at all and then the attorney stood up at trial and said owen your honor i'm going to tell you about why my fees are reasonable and the texas court said no that's too late right that's declaration nash to the question that we're looking at right now on the contrary the fifth circuit expressly and explicitly address the question we're talking about right now the record is clear that the attorney in question was not designated as an expert under seventy two and the that the attorney and it's found on page four ninety of the opinion they offer the testimony of its chief counsel in the harsher action michael live and it did not designate him as an expert nor did it off doesn't get it as an expert in the federal court so i think i think although it is true that an attorney has to testify i don't think that that deep failure to designate the attorney as an expert at the time th other expert reports or exchanges fail to to the concert and once again to which i know you may have already answered this but i just want to make sure that you don't disagree do you that under texas law if we were in texas state court then the failure to designate the the expert at the attorney as an expert would be fail your honor i think that the answer is a little more complicated than that for a couple of reasons first of all the texas cases are not uniformly clear on exactly whether the  but i don't see anything in the texas cases that helps you is there a single texas case that you can point to and say well it really isn't necessary for the attorney to be characterized as an expert about what i can say about the texas cases like this let me get the answer to that disclosure rule and then even in cases where there is no good cause the district court has the ability to allow undisclosed experts to testify subject to russia and it is so that's the so it's not a mover in the way that that district  unseemly to designate trial counsel as an expert on the reasonableness of their own freeze at that seemed like an odd thing to do all that we were certainly prepared to have counsel or or counsel who work for the client talk about the work that was done whether it was texas cases the rule that is the rule that the texas cases are concerned about is avoiding trial by ambush and avoiding witnesses who are not designated as witnesses at all stand up and start giving testimony on reasonable  and i think that again it may be that they call that expert testimony but i think it is it's also clear that you know however that testimony gets put in and it doesn't to perhaps we can start with six fifty four this is from the original motion for summary judgment one damage was come from an expert twenty days later they repeated the same statement in a supplemental rule twenty six disclosure we will provide the computation of images evidence via an expert a year later in september of kone about what views my point is that until their response they have always said we're going to our most our evidence will be an expert they did not provide an x and at the response we said you told the court you're going to own lawyer the question is whether under federal procedure that person had to be designated as an expert you know i respectfully disagree that's not the question the question is was there in the summary judgment evidence before the trial court as to reasonable and necessary turning space and there was not that is what the judge ruled asking that question i'm sorry passing that question this issue as to whether you argue that or not ok let's put that aside there is that also appears to be an argument as to whether the testimony of the lawyer that the company's own lawyer was expert testimony that was fired an expert designation your honor attorney was not qualified as an expert it was not disclosed timely as an expert but the court seems to say that that wouldn't necessarily matter that wouldn't necessarily be fatal in the language  reply on the summary judgment motion it was too late for them to put anything in and i don't know whether the northern district uses the sarah bottle system or what but what what options at that point that you raised this issue in reply having seen their evidence in the opposition and pointing out what you regarded as the insufficiency of it what could they have gotten further that would have been acceptable to judge can  district is certainly to allow a motion for leave or to allow a star reply or to otherwise bring to the attention of the trial court ok now we get it we as they do in the brief here we have knowledge we need a declaration methodology and a complication of damages and yet doesn't call the expert to back up that we port i mean that there was evidence here there was invoices and there was that's reasonable that's because there was no expert you cannot the court could not make the determination of reasons because there was no evidence from a lawyer of any sort us two reasons of the things the employer says which were even attacked they were were evidence from anyone certainly not an expert to be required if i may i'd like to turn to the question of affiliate in your honor the the issue g p l is not a determine the intent of the parties in the mean and in this case although the trial court acknowledge and said there is a security settlement agreement and further there is a license agreement which gives meaning to it the court went outside the documents to consult wacks one of many possible veterinary definitions as to affiliate and based on the outside extrinsic evidence determined as a matter of law that a parent subsequent par affiliate for purposes of this contract and your honor it's very important to understand the context this is a settlement in which at which securus is granting a license to p c s and its affiliate agent on those products those into these products and that's it they're doing the end of the licensed products and without a doubt that license would not extend to g p l even they're now saying that although we have many more products and much more activity because we bought the company we now can enjoy the protection from suit not because we're in the shoes of peach of p c s but because as a parent we enjoy the full covenant as to everything we own a practice that your art would frustrate the purpose of this well so we started a lot of cases and i would encourage you to look at those the courts always look for the context in some context for example to the effort to remove or to create diversity jurisdiction there's a certain we don't want abuse we're going to take a certain view of what means an affiliate and in terms of fraud transfers to for trough fraud it may mean something else and terms of the natural gases and commentary or pipelines it may mean something else every time you look at when the courts dealing with the issue of what is a affiliate it looks at the context and then determines given what the context the intent of the agreement or the statutory scheme is it's either brought up as in blacks or it's more narrow and we've we've listed those i think a great discussion of the various and  meanings is in the magic contracts with the court goes through and says all of these things all of these are possible definitions and from the pleadings the four corners of the agreement itself we can't tell what the part but of course the time of the supposed back with this is was not until much later in the case and i think following up on your point just like i think you can search the record below in vain for a suggestion that we needed to put in an attorney declaration in order to overcome summary judgment the district court's own opinion in addressing the summary judgment motions talks about the two questions it was asked to resolve those can be found in the joint  seven of the joint appendix the court sets forth the questions he thought it was being asked to answer and it was whether it had we have whether we had properly responded to discovery requests regarding the calculation amount of damages and second did not designate an attorney expert to testify so again that the problem that we have here is that we put in evidence of the calculation we were entitled later to designate an attorney a trial to talk about the reasonableness of the calculation and then they came in in reply and said you know aha you've given us a bunch of on off and it hearsay well if if they had said at the outset you haven't given us your calculation and the only invoice you've given u