i feel that it is somewhat like the person who is in the on the tracks trying to tell the only russian brain that it shouldn't have left the round house we have the here are  can be known legal malpractise case before all of the elements which are required for the plaintiff are present and that includes the essential element of actual damage to an intangible property right they call in the flow as a result of any injury to the client which is both damages are the net damages not the gross the damages i met damages they are those losses that kleinian has actually in which the courts say are on a recovery by eve plaintive regarding until the cash for the side that there has been an actual judgment for the tax liability and the same thing in the her consolidation case where the issue was the mechanics of media and how much lost there was for the failure to properly file the in perfect the mechanics liam and the court said that lozenge going to be measured as the net another cardinal an effect of actual damages is th credit bank versus gamble for twenty two years ago this core hill that the fact that the client claims that he would not have mortgaged his mother's farm following which he believes that he may be liable to the a nephew who is to inherit the far the claim was dismissed on the ple underage two six one five motion because the last itself had not been sustained and the court clearly held that there can be no legal malpracti the existence of actual damage stating gamble speculation that grier may at some point bring a cause of action against him is only speculation actions in legal malpractise must be over the course of wait a minute you do not have actual damages until that case is resolved and resolved adversely to the court then went on to articulate four fundamental public policy principles which apply to this case and each case where actual damages is a no first of all you don't want a multiplicity of suits if you cannot avoid them you don't want there to be a legal malpractise case while the underlying case is still unresolved so accurately which is a corollary to the first you don't want to have conflicting out columns based upon some one of the same facts are you doing the want to incur the cost and the time both judicial time and attorneys time don't want to have a conflict in lifted you strategies involving the two cases where one case flows over and affect the strategy in resolving the other case and those four rules apply and those for public policies are pay and whether the legal malpractise case arises because of the attorney missions in litigation or because of the advice of the attorneys underlying case as we have just pointed out the legal malpractise case because of the actual damages rule is the one s it cannot proceed and it cannot go in tandem with or at the same time is the underlying case because the element of actual damages is not present they argue and the argument is also made that the attorney is really nothing more than a joint or these are along with the persons who are liable in the underlying they features but one additional thing as it relates to this case we know from looking at the complaints in the underlying case which seek the identical argument is made that they have sustained and actually injury despite the fact that there is no net loss because the underlying cases have not been the include the nature of loss under winter versus a rape the court imposed the supreme court recognized the imposition of a constructive trust and a constructive trust applies to the use of fractals in other words the fruits of the benefit of keeping the assets so they provide for a total and complete recovery the bottom line here is that given the nature of the underlying cases and the actual damages rule if the underlying pieces are trying and cohen for vale's then there will be no actual damages that could support a claim of any agreement using force then there isn't any basis for a legal malpractise claim there either but the key here is that it is pure whole cost speculation to say that there is any actual loss here before the underlying cases are resolved and the actual loss crucible has been uniformly and consistently apply i submit as i did at the trial or the level that there are no  proceeded before the underlying case resolved the issue of whether or not there are in fact any actual damages  complicated legal documents and as a result counts containing millions of dollars in cash and securities the plate of one one so are no longer owned by him and other assets worth millions of dollars that he o a joint interest in are no longer owned by him this is not a case where the plaintiff was injured before he walks into the lawyers office and says mr lawyer i would like you to help me recover from this third party cause my injuries that is the type of case primarily you cited and in those sorts of cases the courts have said well that case where the plate of the seeking to recover from the third party has to be concluded before you can sue the lawyer for malpractise in the handling of the case this isn't like that my client was not injured at the time he walked into the defendant's office we have alleged that it was  defendants for just the plan and my client and his wife both head for marriages they both had children by former marriages she had five children by her former marriage my client had two children like his former marriage they had no no children together and they had a taxable estate of approximately fifty million dollars so the defendants on their computer system and a form conflict disclosure letter to be given to the state planning to marry couples in this sort of situation and the form letter in form would have informed that married couple that hey your interest might not be the same you both might have different ideas about what things should happen here and if you each and that your home or your you would have a lawyer to give you independent legal advice and you advocate your interests and if you continue with me jointly i will be obligated to tell anything either one of you tells me to the other spouse and then the form letter had a place on there for the husband and wife to sign off on if they want to know where to go for other defendants in this case did not give that letter to my clients my clients my client never signed any sort of waiver of the conflict in this situation and never formally read to a joint representation based on all of that information so then what the evidence discloses their firm has produced approximately nine thousand pages of documents estate planning that was going up and early on those e mails i disclosed that my client's wife told the defense that we want  and she says well all of the good assets are those lost many of our houses are that way and she told the defendants that my client only wanted this farm and his family business to go to his children so my husband's children i'm worried that after i'm gone and she had cancer i'm worried after i'm gone that won't happen that's not this conflict for the poor me she's telling the lawyer there's some disagreements here i'm not sure he's going to do what i'm want do and the defendants email her back and say well we'll put it all into a trust you put the acids in and we'll make the joint trust so it cannot be modified while you are alive without her consent and after you're gone it can't be modified it all in fourteen hours putting together a joint trust the next day might fly into his wife were going to st louis they anticipated she would have brain surgery on her cancer for her cancer day there's a building in the defendant's billing statements from one half hour real time or defendants come out get this document this joint document joint trust documents sign the a half hour and the schedule for that commits fifty million dollars of my client's property and there were many other emails it was fast there motion for summary judgment we put the other forty pages a forty page brief going through these e mails for the trial judge it's planing ways in which we believe they breached their duties to him and in response to that the trial judge denied their motion a summary judgment and found that there were material issues of fact with respect to their fiduciary duties to my client that conflicts of interest and we have the whole we put forth the transcript in the in our brief and they say no we don't want that we want everything to stay the the trial stops a trial is not set but they waive their right to have the today and if the trial is going continue you have to prepare for the trial they can't you don't give up the offer to have a trial stay and then complain that the trial judge is allowing us to prepare for trial so we think they waived but even if they didn't wave this entire issue you know they have to show by clearing convincing evidence that the state outweighs the potential harm to our to my client and here pose a lot of other people put together what happened at the pows other people in his office his staff his brother who was his partner we're going to have to because these people he was e mailing my my  my particular witness some questions you could not i don't know i mean i think certainly if they were not there if the defendant's attorneys were not there in a deposition that's part of it so there would be a lot of duplicative discovery in that situation the but if there's if there's we believe there's really only one case you need to look here in order to determine whether we've sustained a present injury and that is the supreme court's two thousand and eleven decision it's night or behind over in that case a husband and wife went to a lawyer for estate plan in the husband died in two thousand and seven to ten years and in that case the court said that the plaintiff will say well my injury didn't occur until my husband died and in the statute of recover and the lawyer messed up the case against the third party and what they say is that he said to be completely resolved before we know you know the company that the other ones are a boy who has given advice  telling the client's ok to do something the clinic is out does it and then get sued and in those cases the courts have said you're not they wish to tell that other cases finally resolved because you may win it and baseless has missed the mark we're not here arguing about the underlying facts i have much to say regarding those facts but that's not the point of this appeal the point of this appeal here's the actual damages rule which says that there is no cause of action as long as there is the whole attentional direct cover the exact same damages for which recovery is sought from the attorney in this case as we have pointed out there has been no actual laws because if they are correct and prevail in the underlying case it is a construct a thief trust and they have received the assets held in the constructive trust for their benefit together with the use of frauds on those as pending to recover the exact same amount there is no loss there are no actual damages until there was a curb if as council would have it we're going to simply throw everybody into the same hopper then we are going to be saying that the courts if they are in fact courts are concurrent and these cases can proceed together which of course they cannot there is not one case that he has the same cause of action going on after the same time whether it is  barren rock i am never to be placed in the position of a house and joyless counsel i'm not going to give you what you are entitled to but i will give you something last and say to your well you'd better take it don't accept something that is worse or less than what your client is entitle to based upon the law that is not a principle and that is not the rule a in this case and also it is interesting as i pointed out if we will look at the pleadings in the underlying they are saying that they are entitled to recover letters cones in total to recover because of a confidential relationship between cohen and his their wife and also because she was cases before anybody can say that the plaintiff in this case now sustain any actual damage and we submit that the actual damages a rule exists neither versus idol berger has