[00:00:01] Speaker 00:
Good morning.

[00:00:01] Speaker 00:
May it please the court.

[00:00:03] Speaker 00:
My name is Jesse Linden.

[00:00:04] Speaker 00:
I'm here on behalf of the appellant, Thomas Cattell, in this matter.

[00:00:08] Speaker 00:
I'd like to reserve three minutes for rebuttal.

[00:00:15] Speaker 00:
Your Honor, though there's been an extensive briefing on this matter, and there's a lot of issues in this matter, I just want to touch on some of the most, what I think are the most significant issues for the court.

[00:00:28] Speaker 00:
The panel should really grant a new trial to Mr. Cattell as to either one or both of the major abuses of discretion, which is the motion to continue, and the motion for a new trial for several reasons.

[00:00:43] Speaker 00:
The headline is that with regard to the motion to continue,

[00:00:48] Speaker 00:
If it is not an abuse of discretion to deny a short continuance to let new trial counsel for an autistic man get up to speed in a complex bankruptcy trial after its previous counsel had to withdraw due to malpractice, it would be very unclear to judges in this circuit what an abuse of discretion looks like.

[00:01:12] Speaker 01:
Can you run me through the timeline?

[00:01:14] Speaker 01:
At what point did his prior counsel retire?

[00:01:18] Speaker 01:
Withdraw.

[00:01:20] Speaker 00:
I'm sorry, you're on.

[00:01:20] Speaker 00:
I could not hear you.

[00:01:22] Speaker 01:
I'm looking for the timeline.

[00:01:23] Speaker 01:
So at what month did his prior counsel withdraw?

[00:01:27] Speaker 00:
The prior counsel withdrew, um, like, about three months or so, um, before the trial date.

[00:01:36] Speaker 00:
Okay.

[00:01:37] Speaker 00:
And the trial date was?

[00:01:39] Speaker 00:
Uh, it was, oh, I don't have it exactly in front of me.

[00:01:41] Speaker 00:
It's, it's in December, in early December.

[00:01:44] Speaker 00:
And so it was in July, very early July, uh, July, I guess September.

[00:01:48] Speaker 00:
Yeah.

[00:01:49] Speaker 00:
When the, uh, when the attorney had to withdraw.

[00:01:52] Speaker 01:
So he withdrew in July.

[00:01:55] Speaker 01:
Um, and was the trial date set at that point?

[00:01:57] Speaker 00:
The trial date was set at that point, Your Honor.

[00:01:59] Speaker 01:
So at that point, he had six months.

[00:02:02] Speaker 00:
It was four months.

[00:02:03] Speaker 00:
So I've got the trial date wrong.

[00:02:04] Speaker 00:
I know the court said four months, for sure, in its analysis.

[00:02:08] Speaker 01:
But he knew what the deadline was at that point.

[00:02:13] Speaker 00:
I'm sorry, Your Honor.

[00:02:14] Speaker 01:
He knew what the deadline was at that point.

[00:02:16] Speaker 01:
He knew when his trial date was.

[00:02:17] Speaker 00:
He didn't know what his trial date was at that point.

[00:02:20] Speaker 00:
And again, he tried immediately to try to find new counsel.

[00:02:24] Speaker 00:
I think what is why the court's ruling is implausible and illogical is that you have to consider

[00:02:34] Speaker 00:
the in terms of diligence, if that's what your honor is getting to in terms of diligence, you have to not you have to look at the context of the person who you're asking to do the diligence.

[00:02:45] Speaker 00:
In this particular instance, you're talking about this, an autistic man during COVID, trying to find a bankruptcy adversary proceeding trial attorney in Eugene, Oregon.

[00:02:57] Speaker 00:
The market for that is very, very difficult.

[00:03:00] Speaker 00:
And he did not sit around, Your Honor.

[00:03:02] Speaker 00:
He immediately went and tried to find counsel.

[00:03:05] Speaker 00:
It's very difficult.

[00:03:07] Speaker 00:
The trial was coming up pretty quick.

[00:03:08] Speaker 00:
He found somebody, Mr. Corazon, to kind of bridge the gap a little bit while he continued to look.

[00:03:14] Speaker 00:
He immediately got somebody to step in.

[00:03:16] Speaker 00:
So at least on diligence, Your Honor, I think that's what's going on.

[00:03:20] Speaker 00:
Is there something in the record?

[00:03:21] Speaker 05:
I know the record says he reached out to four attorneys and they ultimately all said no.

[00:03:27] Speaker 05:
I couldn't find him.

[00:03:27] Speaker 05:
Is there anything in the record that shows the timing?

[00:03:29] Speaker 05:
You know, he sought out someone in September or October.

[00:03:32] Speaker 05:
Is there anything in the record that shows the timing?

[00:03:36] Speaker 00:
There's nothing specific in the record where the

[00:03:43] Speaker 00:
where Mr. Cattell said exactly which dates he contacted the attorney, but the record does show that he contacted, have some specifics about contacting attorneys.

[00:03:53] Speaker 00:
And what they told him was basically, oh, you got 500, 600 docket entries and you want me to go to trial on a bankruptcy matter in a couple of months?

[00:04:06] Speaker 00:
No, I'm too busy.

[00:04:08] Speaker 00:
So I think, Your Honor, what we have here in this case, I think this one, what I would say is that ultimately, this case arises in a pattern.

[00:04:22] Speaker 00:
I think what's most important is that the judge essentially abused his discretion, made clearly erroneous rulings when it disregarded the evidence on Mr. Cattell's autism, despite medical expertise.

[00:04:35] Speaker 05:
I know your brief repeatedly mentions that, but I mean,

[00:04:38] Speaker 05:
Unless you're severely autistic and maybe you're non-verbal, there are many people who are autistic and functional.

[00:04:44] Speaker 05:
And it seems like Mr. Cattell seems to have done, had a job, saved money by buying properties.

[00:04:49] Speaker 05:
I don't think that's really relevant.

[00:04:51] Speaker 05:
But can you focus more on here the prejudice?

[00:04:54] Speaker 05:
What is the actual prejudice?

[00:04:56] Speaker 05:
Can you cite to certain types of evidence or certain things that

[00:05:00] Speaker 05:
wasn't introduced or didn't go well because he was pro se in a bankruptcy case.

[00:05:06] Speaker 00:
Yes, your honor.

[00:05:07] Speaker 00:
What I would like to say first, at least on that issue of the issue of prejudice, is that

[00:05:18] Speaker 00:
The case law does not require, I'll just say, evidence of specific prejudice.

[00:05:24] Speaker 00:
So – but I can give some in any case.

[00:05:27] Speaker 00:
For example, the cases that underlie Mitchell, which is the case that deals with this issue of prejudice, the cases that underlie those – for example, I think a good example is United States v. Clevenger, 733 FQD 1356.

[00:05:45] Speaker 00:
and also Long, which is 706F2D, F21044.

[00:05:52] Speaker 00:
Underneath those cases, everything that Mitchell has built is a case like Gideon v. Wainwright, 372 U.S.

[00:06:00] Speaker 00:
335.

[00:06:02] Speaker 01:
Those are criminal cases, counsel.

[00:06:04] Speaker 01:
Do you have any civil cases?

[00:06:06] Speaker 00:
Those are all criminal cases, Your Honor, but the fundamental case that goes off for prejudice under the standard we have in the circuit is in fact itself a criminal case, Mitchell.

[00:06:18] Speaker 01:
And I understand... Isn't there a different set of considerations?

[00:06:22] Speaker 01:
You have a right to counsel in a criminal case.

[00:06:25] Speaker 01:
You don't have a right to counsel in a civil case.

[00:06:28] Speaker 00:
totally understand that your honor you're totally correct that that what is happening in the case law in the circuit with Mitchell because it is in fact being applied to civil cases the the analysis isn't exact isn't exactly the same but nonetheless that's how it's applied for example in Gideon

[00:06:48] Speaker 00:
A failure to – it was automatic new trial if someone is not given an attorney.

[00:06:55] Speaker 00:
I understand that that's in a criminal context, but there's no other case law.

[00:06:58] Speaker 01:
Doesn't really – I don't really think that helps you here very much.

[00:07:00] Speaker 01:
I really would like you to go ahead and give us the specifics to Judge Lee's question as to what is the prejudice that your client suffered in this case.

[00:07:08] Speaker 00:
Okay, assuming that Mr. Cattell needs to prove some specific prejudice in this case, not having an attorney in itself seems like it's evidently prejudice, but as to the specifics, for example, Mr. Cattell was not able to call witnesses that he needed to call, key witnesses, expert witnesses, as to value.

[00:07:33] Speaker 00:
He wasn't able to do a pre-trial.

[00:07:37] Speaker 03:
inability to call the expert that he wanted had to do with his former lawyer not properly disclosing the expert.

[00:07:43] Speaker 00:
I'm sorry, Your Honor, I heard the second part.

[00:07:46] Speaker 03:
My understanding was that he wasn't allowed to present the expert he wanted to because his former lawyer failed to disclose the expert.

[00:07:55] Speaker 00:
That's not all, though, Your Honor.

[00:07:57] Speaker 00:
That is correct that his former lawyer did fail to disclose one specific expert, I suppose.

[00:08:04] Speaker 00:
But Mr. Cattell didn't have any idea how to call even, for example, the opposing parties, as his witness.

[00:08:16] Speaker 03:
He didn't know how to the case shows clearly that he didn't know how to so then let's get more specific about that So he wasn't he didn't understand how to call the opposing party.

[00:08:25] Speaker 03:
That's fair He's a pro se litigant, but what we do know from the record is that he presented a witness list So he figured that out she wasn't on it And we also know that I mean it seems fairly clear to me looking at the transcript that

[00:08:39] Speaker 03:
or looking at the record that the judge was fairly patient in terms of making sure that your client had the chance to say whatever you wanted to say.

[00:08:49] Speaker 03:
So I come back to Judge Lee's question.

[00:08:52] Speaker 03:
What specific evidence, facts, didn't get in the record because your client was pro se?

[00:08:59] Speaker 00:
Well, Your Honor, again, specifically, he wasn't able to get evidence, for example, because he didn't know how to do a pretrial statement as an example.

[00:09:10] Speaker 00:
He wasn't able to get in most all of his claims as far as the avoidance powers that happened to him.

[00:09:17] Speaker 00:
He wasn't able to get in the evidence, for example, of anything that he could have gotten from those witnesses because he didn't know how to put the opposing party on his witness list.

[00:09:28] Speaker 03:
He didn't... But he was able to question the opposing party.

[00:09:32] Speaker 03:
I thought the argument was he didn't get to cross her... No, he didn't get to direct her because he couldn't figure out how to get her as a witness in his own case, but he did get to cross-examine her.

[00:09:43] Speaker 00:
Yes, Your Honor.

[00:09:44] Speaker 00:
He got to cross-examine her in a manner that a pro se knows how to cross-examine.

[00:09:48] Speaker 03:
That comes back to he's just pro se, and I think you're going to have to set that aside because I'm not sure the law just says you automatically prove prejudice because you have to proceed without a lawyer.

[00:09:57] Speaker 03:
So you set that aside, and we come back to what are the facts that didn't get in the record?

[00:10:03] Speaker 00:
Well, again, Your Honor, I think one of the key facts for him, again, was that he was, okay, so facts that he couldn't get in the record.

[00:10:11] Speaker 00:
I mean, he wasn't able to get any of the facts on the record.

[00:10:14] Speaker 00:
For example, with regard to the theft from him, the way he characterized it, he just was not able, I guess the best way to say it is, he just was not able to articulate

[00:10:32] Speaker 00:
the facts that he needed to get in.

[00:10:34] Speaker 00:
I wouldn't say that to the extent that he got facts in, Your Honor, he was simply dumping documents on the court without the ability to actually explain or pull out the particular facts in the case.

[00:10:45] Speaker 00:
And that includes, again, on value.

[00:10:48] Speaker 00:
That was very key.

[00:10:49] Speaker 00:
And it wasn't just because his attorney didn't get that expert on the witness list.

[00:10:54] Speaker 00:
I think what's also important is that

[00:10:58] Speaker 00:
to highlight is that the judge bending over backwards or giving more time or wide latitude, that doesn't cure the prejudice.

[00:11:07] Speaker 00:
Because to say that Mr. Cattell had ample time to say whatever he wanted to say,

[00:11:16] Speaker 00:
It isn't really helpful because it's not what a pro se wants to say that matters.

[00:11:22] Speaker 00:
A pro se can say whatever they want, but what's important is what they need to say.

[00:11:26] Speaker 00:
That's what they're not able to do without an attorney.

[00:11:28] Speaker 01:
Your argument, if we, gets us very, very close to the criminal position, that you are entitled to a lawyer and that the court cannot proceed if your client doesn't have a lawyer.

[00:11:42] Speaker 01:
And I don't know that there's any basis for that in our law, is there?

[00:11:47] Speaker 00:
Again, Your Honor, I do believe there is a basis for that.

[00:11:50] Speaker 01:
But your standard for abuse of discretion all comes back to the fact that he was not as effective as a lawyer would have been.

[00:11:57] Speaker 01:
And if that's the position, if that's the standard for abuse of discretion, then a district court is going to have to delay the start of any trial

[00:12:06] Speaker 01:
in order to accommodate somebody who has not been able to find counsel in a timely fashion.

[00:12:11] Speaker 00:
Your Honor, you said that there was no case law in this.

[00:12:14] Speaker 00:
I think there is.

[00:12:15] Speaker 00:
I think after Mitchell, there's a split.

[00:12:20] Speaker 00:
Mitchell doesn't say what type of evidence you need.

[00:12:22] Speaker 00:
There are two classes of cases, Your Honor.

[00:12:24] Speaker 00:
There's a class of case which I'll call the I have an attorney case.

[00:12:31] Speaker 00:
like Mitchell was an I have an attorney case and several others that we cited are we have an attorney cases.

[00:12:39] Speaker 00:
But there's an entirely other set of cases under Mitchell that are I don't have an attorney.

[00:12:46] Speaker 00:
types of cases.

[00:12:47] Speaker 00:
They're analyzed completely differently.

[00:12:49] Speaker 00:
Under the I have an attorney type of cases, we're asking questions like, well, what exact evidence didn't they get in and what could he have done had he had, you know, this and that.

[00:13:00] Speaker 00:
Under the set of cases after Mitchell, I'll give you an example here that we have in our brief.

[00:13:07] Speaker 00:
Let's see, what's the most obvious one?

[00:13:13] Speaker 00:
So we got, I think we have a Gharaman in our brief.

[00:13:22] Speaker 00:
In that case, what this court required showing was just that the person was unable to understand.

[00:13:31] Speaker 00:
not what specific evidence did they get in or they could not get in, what if they had prepped or they hadn't prepped.

[00:13:38] Speaker 00:
That wasn't the standard.

[00:13:39] Speaker 01:
And isn't that a judgment that can be made by the district judge who's got your client in front of him?

[00:13:43] Speaker 01:
We don't have your client in front of us.

[00:13:45] Speaker 01:
You've got a district judge who is senior client and understands something about him and has made a judgment about that.

[00:13:54] Speaker 01:
Do we owe the district judge some deference on that point?

[00:13:57] Speaker 00:
don't believe so your honor not as to make that judgment on a cold record that your client is unable to defend himself i believe you can do that your honor under the mind of the analysis of clear error on the facts i think this case falls clearly under the under the law i think it should be clear from the law for the case law even in this circuit

[00:14:20] Speaker 00:
if someone is not provided with an attorney under those circumstances, it doesn't matter what the judge knew or didn't know, especially if they've got medical testimony in front of them.

[00:14:32] Speaker 00:
As a matter of law, I think that should be the standard.

[00:14:35] Speaker 00:
If you've got this kind of situation, that should just be an abuse of discretion.

[00:14:42] Speaker 00:
I see my time's about up.

[00:14:44] Speaker 00:
I'll just touch really briefly on one other case that goes to that for your honor's consideration.

[00:14:52] Speaker 00:
So even United States versus Greenwich, 675, F second, 1126.

[00:14:59] Speaker 00:
That's another case where clearly failure to appoint counsel is just reversible error.

[00:15:05] Speaker 00:
And that's where I think the standard should be.

[00:15:08] Speaker 04:
Thank you.

[00:15:09] Speaker 04:
You're out of time, but we'll give you two extra minutes for rebuttal.

[00:15:12] Speaker 04:
i'm sorry i think you're out of time but we'll give you two extra minutes for rebuttal

[00:15:27] Speaker 02:
Good morning.

[00:15:28] Speaker 02:
Excuse me.

[00:15:30] Speaker 02:
Good morning, and may it please the court.

[00:15:31] Speaker 02:
My name is Jean Sinnott, and I'm here on behalf of the Pellies.

[00:15:36] Speaker 02:
I won't go through all of the different arguments in this case.

[00:15:39] Speaker 02:
I do want to focus on what you judges have brought up here.

[00:15:42] Speaker 02:
And that is prejudice.

[00:15:48] Speaker 02:
Appellant has been unable to articulate either to the BAP or to this court what specific evidence he was unable to get admitted that caused him prejudice.

[00:16:00] Speaker 02:
I'm very concerned.

[00:16:01] Speaker 02:
I was at the 15-day trial.

[00:16:05] Speaker 02:
the only lawyer sitting here who was there.

[00:16:08] Speaker 02:
And there have been some misstatements in the record and some omissions that this court needs to be aware of.

[00:16:14] Speaker 02:
Evaluation expert was at trial.

[00:16:19] Speaker 02:
He was entitled to present his valuation expert.

[00:16:23] Speaker 02:
The motion in Lumine to exclude that expert was only related to Ms.

[00:16:28] Speaker 02:
Deeks.

[00:16:29] Speaker 02:
But my client, Mr. Welch, got added later, and so the case scheduling order didn't apply to him.

[00:16:35] Speaker 02:
Therefore, Mr. Catello was able to call that witness.

[00:16:40] Speaker 02:
The witness even provided a rebuttal report to my valuation expert witness.

[00:16:45] Speaker 02:
So the BAP's opinion assumed that he never called this expert because the record provided was incomplete, the appellate record, and it still is.

[00:16:58] Speaker 02:
And so we put in our supplemental excerpt of record a full listing of all the exhibits that were entered in this case.

[00:17:05] Speaker 02:
And Planev entered hundreds of exhibits.

[00:17:08] Speaker 02:
He was able to call his expert witnesses

[00:17:11] Speaker 02:
The appellant's counsel has not pointed to any evidence or witness that should have been called that wasn't.

[00:17:19] Speaker 05:
I guess the one difference here is, live these cases involving prejudice, the evidence is overwhelming.

[00:17:24] Speaker 05:
So it makes it very easy for the court to say no prejudice, because if the evidence was so overwhelming, it doesn't matter.

[00:17:30] Speaker 05:
You could have the world's greatest lawyer

[00:17:31] Speaker 05:
he or she would have lost.

[00:17:33] Speaker 05:
Here, looking at the record, I have no idea who should have won.

[00:17:36] Speaker 05:
I don't know.

[00:17:37] Speaker 05:
Maybe the bankruptcy job was right.

[00:17:40] Speaker 05:
Maybe not.

[00:17:40] Speaker 05:
I don't know.

[00:17:41] Speaker 05:
So in that way, we have some case law saying the type of presentation that a party is able to do potentially makes a difference here.

[00:17:52] Speaker 05:
And here, he wasn't able to present Ms.

[00:17:55] Speaker 05:
Deeks as, in his case in chief, he had to cross-examine her.

[00:17:59] Speaker 05:
Would that made a difference?

[00:18:01] Speaker 05:
Possibly, in this case?

[00:18:03] Speaker 02:
You know, when I was preparing for this hearing, I was going through all of these records again, and it reminded me that the facts dictate the outcome of a case.

[00:18:12] Speaker 02:
You could have the best lawyer in the world, but if you have bad facts, you're not going to win.

[00:18:18] Speaker 02:
And what matters here is whether the facts got into the record.

[00:18:21] Speaker 02:
And one of the hardest jobs of a trial lawyer is getting facts into the record.

[00:18:26] Speaker 02:
You have to deal with rules of evidence.

[00:18:27] Speaker 02:
You have to deal with foundation.

[00:18:28] Speaker 02:
In this case,

[00:18:31] Speaker 02:
There were very few objections.

[00:18:33] Speaker 02:
The judge bent over backwards to accommodate Mr. Cattell.

[00:18:38] Speaker 02:
The lawyers did not object to nearly all of his exhibits.

[00:18:44] Speaker 02:
He was provided.

[00:18:46] Speaker 02:
Days upon days upon days of tedious testimony, he was permitted to submit all of the facts of his case.

[00:18:58] Speaker 02:
The problem was that the facts did not result in him winning.

[00:19:03] Speaker 03:
So the one thing that's not the one thing, but one of the things that is puzzling about this case is you mentioned the judge bent over backwards for Mr. Cattell.

[00:19:13] Speaker 03:
That may be true at the hearing, but not at the time of the motion for continuance.

[00:19:18] Speaker 03:
And so I'm sort of like searching in the record for what was the motivator for why the judge took a very hard line and was like, no, we're going to trial, even though you don't have a lawyer.

[00:19:27] Speaker 03:
Can you explain that?

[00:19:28] Speaker 02:
Well, I can't.

[00:19:29] Speaker 02:
I wasn't in the mind of Judge Hersher, but I can tell you I was there for the proceedings.

[00:19:35] Speaker 02:
And I think what happened was Mr. Cattell had an attorney.

[00:19:41] Speaker 02:
He withdrew in July of 2021.

[00:19:44] Speaker 02:
There's been some discussion about he was forced to withdraw.

[00:19:50] Speaker 02:
No, he was terminated.

[00:19:51] Speaker 02:
And Mr. Cattell also had bankruptcy counsel, very competent bankruptcy counsel who actually handled the summary judgment hearing and won.

[00:20:00] Speaker 02:
That occurred after his trial lawyer withdrew months later.

[00:20:05] Speaker 02:
So we get to the eve of trial.

[00:20:07] Speaker 02:
We have multiple parties.

[00:20:09] Speaker 02:
We have years of litigation, not only in the bankruptcy court, in the lower courts.

[00:20:15] Speaker 02:
Ms.

[00:20:15] Speaker 02:
Deeks is the former romantic partner of Mr. Cattell.

[00:20:18] Speaker 02:
She's been dealing with this for years.

[00:20:21] Speaker 02:
My client is just an innocent purchaser of real estate.

[00:20:24] Speaker 02:
who got dragged into this dispute.

[00:20:27] Speaker 02:
And you get on the eve of trial, and he's saying, oh, no, I need more time to get a lawyer.

[00:20:33] Speaker 02:
Well, he had a lawyer.

[00:20:34] Speaker 02:
The lawyer filed a limited appearance to get the continuance.

[00:20:39] Speaker 02:
But he said that he only spoke with four different lawyers.

[00:20:44] Speaker 02:
Mr. London has said earlier in his opening,

[00:20:48] Speaker 02:
Oh, you know, there were 600 docket entries, this and that.

[00:20:51] Speaker 02:
Nothing in the record provides anything about what any of the other lawyers said or did.

[00:20:56] Speaker 02:
That's not in the record whatsoever.

[00:20:58] Speaker 05:
But here, this wasn't just an open-ended request of give me more time to find a lawyer.

[00:21:02] Speaker 05:
Mr. London came in and said,

[00:21:04] Speaker 05:
this trial set for December, give me two months and I'm prepared to take this case to trial.

[00:21:09] Speaker 05:
So the judge could have just said, all right, let's wait two months.

[00:21:11] Speaker 05:
And you look at these four Flint factors, and I think three of the four really actually favor Mr. Cattell.

[00:21:19] Speaker 05:
The prejudice is the close call one.

[00:21:22] Speaker 05:
And if you're supposed to look at this, I don't agree with your

[00:21:27] Speaker 05:
friend's argument that somehow not having a council is per se prejudice, but for this multi-factor test, even if prejudice is minimal, but all these three other factors seem to favor Mr. Cattell here.

[00:21:38] Speaker 05:
I mean, it just doesn't seem to make any sense when

[00:21:43] Speaker 05:
His original lawyer has to resign because of malpractice, basically.

[00:21:48] Speaker 05:
And he tries to find some lawyers.

[00:21:50] Speaker 05:
It's bankruptcy.

[00:21:51] Speaker 05:
And again, this is a type of bankruptcy case.

[00:21:53] Speaker 05:
This isn't the easy case where a pro se lawyer can do this, really, in a good way.

[00:21:59] Speaker 05:
And he comes up with a lawyer, and the lawyer says, give me two months, because I need to prepare for this.

[00:22:05] Speaker 05:
I have other obligations.

[00:22:06] Speaker 05:
And I can then try this case.

[00:22:08] Speaker 05:
Why not continue it then?

[00:22:10] Speaker 05:
It makes no sense to me.

[00:22:11] Speaker 05:
It seems like an abuse of discretion.

[00:22:15] Speaker 02:
Let me correct one thing.

[00:22:17] Speaker 02:
This wasn't a complicated bankruptcy case.

[00:22:20] Speaker 02:
This was a case, it was an adversary proceeding in bankruptcy court.

[00:22:24] Speaker 02:
But the reason why it was even there is that Mr. Cattell

[00:22:27] Speaker 05:
I mean, there are a lot of facts.

[00:22:29] Speaker 05:
There are a lot of facts, a lot of documents, dispute of facts.

[00:22:32] Speaker 05:
It's not a simple case of, it's a theft case.

[00:22:34] Speaker 05:
I didn't do it.

[00:22:35] Speaker 05:
I mean, compared to a lot of some other pro se cases, it's a pretty complex case for a pro se person to present.

[00:22:41] Speaker 02:
Well, I mean, he had litigated the case into Shoots County and lost.

[00:22:44] Speaker 02:
And then he filed bankruptcy and removed the case.

[00:22:47] Speaker 05:
But I'm just going to the, I mean, what basis, I mean, I'm trying to understand what rationale of the Banks of the Court not to continue for two months.

[00:22:54] Speaker 05:
It's the holiday season anyway, it's in December, it's Christmas time.

[00:22:58] Speaker 05:
I mean, just delay it two months and they'll have a lawyer.

[00:23:01] Speaker 02:
Well, Your Honor, I will tell you, it was,

[00:23:06] Speaker 02:
Hindsight is probably 20-20, but sitting in this... I mean, it's obvious.

[00:23:09] Speaker 05:
I mean, it's not even hindsight.

[00:23:11] Speaker 05:
I mean, it's just... This isn't the open-ended... This isn't a open-ended give me more time.

[00:23:15] Speaker 05:
It's I have a lawyer.

[00:23:16] Speaker 05:
The lawyer comes to the judge and says, I can try this case in two months.

[00:23:20] Speaker 05:
Give me time so I can learn the facts and I have other obligations.

[00:23:24] Speaker 05:
I mean, why say no?

[00:23:26] Speaker 05:
It makes no sense.

[00:23:27] Speaker 05:
No one's offered an explanation for the judge's decision.

[00:23:30] Speaker 02:
Well, the court did review the factors of 2.61 acres.

[00:23:35] Speaker 02:
Diligence and we've discussed that he he determined that mr. Cattell was not diligent.

[00:23:40] Speaker 05:
So that was one factor He got a lawyer that that to me.

[00:23:43] Speaker 02:
So he got the lawyer you know, but that's I think we need to be careful with that because Mr. Linden filed a limited appearance and there was no commitment to

[00:23:56] Speaker 02:
that he was absolutely going to represent him.

[00:23:59] Speaker 05:
I mean, he just said, give me two months.

[00:24:01] Speaker 05:
I can't do it.

[00:24:02] Speaker 05:
Give me until February, preferably March, but February I can do the case.

[00:24:06] Speaker 05:
I'll have time.

[00:24:07] Speaker 05:
I can do it.

[00:24:08] Speaker 05:
And then the inconvenience, can you go to the inconvenience factor?

[00:24:11] Speaker 05:
I mean that seems, what was the real major inconvenience here?

[00:24:14] Speaker 02:
So the convenience was Ms.

[00:24:15] Speaker 02:
Deeks is a nurse and she had to arrange her work schedule.

[00:24:20] Speaker 02:
She lived out of the city, you know, she lives in Bend so had to travel up.

[00:24:25] Speaker 02:
We had all of our expert witnesses lined up.

[00:24:27] Speaker 02:
We had people, you know,

[00:24:29] Speaker 02:
who needed to take time off work.

[00:24:32] Speaker 02:
The judge found that.

[00:24:32] Speaker 02:
Oh, I'm sorry.

[00:24:33] Speaker 03:
I thought this was a remote proceeding.

[00:24:35] Speaker 03:
Was there travel?

[00:24:35] Speaker 02:
It was.

[00:24:36] Speaker 02:
I'm sorry.

[00:24:36] Speaker 02:
Was there travel if this was a remote proceeding?

[00:24:39] Speaker 02:
No, and you're right.

[00:24:40] Speaker 02:
Yeah, you're right.

[00:24:40] Speaker 02:
So that doesn't matter.

[00:24:41] Speaker 02:
The judge's rationale is in his opinion.

[00:24:47] Speaker 02:
He did go through all four of the factors.

[00:24:50] Speaker 02:
I do think that this court really needs to focus on the prejudice factor.

[00:24:58] Speaker 02:
Look at what has not been said here today, which is what evidence or facts would have changed the outcome.

[00:25:06] Speaker 02:
What evidence would have changed the outcome?

[00:25:08] Speaker 05:
I guess his point is the presentation.

[00:25:11] Speaker 05:
So for example, if you were able to present the main witness, Ms.

[00:25:16] Speaker 05:
Deeks and his case in chief, you would have been able to present evidence in a more effective way than in a cross.

[00:25:23] Speaker 05:
I mean, that's one of the strategies, obviously, that trial lawyers engage in, and whether you present a witness in cross and chief or you have to cross examine them.

[00:25:32] Speaker 02:
Yeah, but a lot of this, excuse me, a lot of this case was based on documentary evidence.

[00:25:36] Speaker 02:
I mean, that was the crux of it.

[00:25:38] Speaker 02:
Who owned the property?

[00:25:39] Speaker 02:
That was, I mean, that was one of the most important parts of it because he was seeking to avoid the transfer of property and the court found he did not have standing to do so.

[00:25:50] Speaker 02:
And that was based on deed.

[00:25:51] Speaker 02:
I mean, that was a deed record showing the owner was Ms.

[00:25:55] Speaker 02:
Deeks.

[00:25:56] Speaker 02:
And under 11 USC 548, which is the transfer provision of the bankruptcy code, the transfer of property of the debtor can be set aside.

[00:26:10] Speaker 02:
You don't need to present that evidence in any other way than to just say, here's a deed.

[00:26:15] Speaker 02:
I mean, the deed was in the record.

[00:26:17] Speaker 02:
So you could be the worst lawyer in the world.

[00:26:20] Speaker 02:
and still win if you were actually the owner, the debtor owned it, but he didn't.

[00:26:25] Speaker 02:
And that's the same for the Oregon Partnership Statute.

[00:26:28] Speaker 02:
The partnership, so Ms.

[00:26:30] Speaker 02:
Deeks, the court did find that they had a partnership, but Ms.

[00:26:34] Speaker 02:
Deeks was the title owner.

[00:26:35] Speaker 02:
As such, she was empowered

[00:26:37] Speaker 02:
or she was able to transfer title of that property.

[00:26:41] Speaker 02:
And my client, Mr. Welch, was entitled to rely on that.

[00:26:45] Speaker 02:
And the only entity that would have standing to set that aside would be the partnership.

[00:26:53] Speaker 02:
The partnership was not the plaintiff.

[00:26:56] Speaker 02:
So that's just, I mean, there's no presentation of evidence that's going to change how that outcome, what the outcome is for those claims.

[00:27:07] Speaker 02:
It's documentary evidence.

[00:27:10] Speaker 02:
The court never even considered valuation, because it didn't get to whether there was reasonably equivalent value, because it didn't think it needed to.

[00:27:17] Speaker 02:
So there was expert witnesses.

[00:27:20] Speaker 02:
Whether Mr. Cattell could examine his witness in an effective manner didn't even come into play in the court's decision, because it wasn't even considered.

[00:27:32] Speaker 02:
Mr. Cattell was able to call his doctor as a witness and put on evidence of whether he was a vulnerable person.

[00:27:42] Speaker 02:
And the court didn't agree with that.

[00:27:47] Speaker 02:
And that was based on Mr. Cattell's testimony and documentary evidence showing his familiarity with QuickBooks.

[00:27:55] Speaker 02:
He had bought and sold companies.

[00:27:57] Speaker 02:
He had developed property.

[00:28:01] Speaker 02:
Can I grab my water?

[00:28:07] Speaker 02:
He had developed property.

[00:28:08] Speaker 02:
There were, you know, Judge Herscher, as we've said in our brief, there's really no replacement for you all to look at what this judge, you know, sitting there for 15 days.

[00:28:25] Speaker 02:
I was there for 15 days.

[00:28:27] Speaker 02:
Mr. Cattell was able to put on his case.

[00:28:30] Speaker 02:
He was able to present all of the facts of his case.

[00:28:34] Speaker 02:
There were not complicated legal issue arguments.

[00:28:38] Speaker 02:
There just weren't.

[00:28:40] Speaker 02:
And the court, as the fact finder, is entitled to, I mean, you could only reverse that if there was clear error.

[00:28:48] Speaker 02:
And there really is, I mean, there's not.

[00:28:50] Speaker 02:
If you look at the supplemental excerpt record, just review all of those exhibits that were admitted.

[00:28:56] Speaker 02:
And hundreds were from plaintiff.

[00:29:00] Speaker 02:
So I don't know if I really answered your question on, you know, the motion to continue.

[00:29:09] Speaker 02:
Oh, I guess one other thing is this trial went on over the course of months.

[00:29:14] Speaker 02:
So we would have a few days and then we would break for weeks.

[00:29:18] Speaker 05:
Which again then goes to why didn't he continue it?

[00:29:21] Speaker 05:
Well, to me, it's one of these things, you know, I'm sure you feel the same way.

[00:29:24] Speaker 05:
I felt the same way when I was in private practice.

[00:29:27] Speaker 05:
You know, the worst thing is, you know, you may disagree with the judge, but it is what it is.

[00:29:31] Speaker 05:
But if the judge just acts in a tyrannical way, no reason almost might makes right.

[00:29:36] Speaker 05:
Just not going to give a reason, just acts that way.

[00:29:38] Speaker 05:
It's frustrating.

[00:29:39] Speaker 05:
You can disagree with reasoning.

[00:29:40] Speaker 05:
And here, I just don't see why the judge just didn't continue this.

[00:29:46] Speaker 02:
Well, I guess my point, though, in saying that was,

[00:29:49] Speaker 02:
There were large breaks in the trials.

[00:29:52] Speaker 02:
So I mean he could have gone back to mr. London and said look here's what's going on Can you now come in we have you know a two-week break?

[00:30:00] Speaker 05:
This is what's going on, you know, and he didn't do that and I wouldn't say judge Herrscher has ever been tyrannical I mean, yeah, I don't know but it's just I'm looking at the record of I just don't see any why that wasn't you know, why is why isn't that an abuse of discretion if you can show a little bit of prejudice and we have to consider four factors if you can show a little bit of prejudice and

[00:30:19] Speaker 05:
Given all these other factors, no one seems to have come to reason why it didn't make any sense, judicial management.

[00:30:25] Speaker 05:
Look, sometimes judges do that because they want to force a settlement.

[00:30:28] Speaker 05:
But usually you have two lawyers so they can work a settlement.

[00:30:30] Speaker 05:
So judges do that all the time to force a settlement.

[00:30:33] Speaker 05:
But one side doesn't have a lawyer and just acts this way and there's no reason not to continue it.

[00:30:43] Speaker 02:
Well, I guess, again, not to repeat myself, but his reasons were set forth in his ruling.

[00:30:48] Speaker 02:
And he went through the four factors.

[00:30:51] Speaker 02:
And in his judgment, he found that it was- Because when he continued it, he doesn't really know the prejudice factors, right?

[00:30:58] Speaker 05:
I mean, at that point, before the trial.

[00:31:00] Speaker 05:
So that, to me, is one of these things he won't know.

[00:31:02] Speaker 05:
And when we review, we look at prejudice after the fact.

[00:31:05] Speaker 05:
But before the trial, he won't really know the prejudice.

[00:31:07] Speaker 05:
And he seems to suggest that you will be kind of prejudiced because you don't have a lawyer.

[00:31:10] Speaker 05:
So you look at those three factors and all those three factors.

[00:31:13] Speaker 02:
Well again, I just there there really wasn't prejudice because he was as I've said all of his You know his he was able to present all the facts that he needed to for his claims so You know even if we went back and redid this and he had a great lawyer the facts don't change and those facts were in the record So I think I'm over time so great.

[00:31:39] Speaker 02:
Thank you.

[00:31:39] Speaker 02:
Thank you.

[00:31:40] Speaker 02:
I

[00:31:50] Speaker 00:
Your honor, I just want to address one or two things.

[00:31:53] Speaker 00:
I think what's important that we didn't say before is that prejudice is just one of those factors.

[00:32:00] Speaker 05:
But it's a mandatory factor.

[00:32:01] Speaker 00:
And it's not dispositive.

[00:32:02] Speaker 00:
None of the particular factors are dispositive.

[00:32:06] Speaker 05:
And I will mention that the judge... You have to show prejudice, though.

[00:32:09] Speaker 00:
You have to show prejudice, but I will mention that, and I didn't say it before, my understanding is that on that factor, what the judge did was say, I assume that there will be prejudice, because he doesn't have a lawyer.

[00:32:20] Speaker 00:
Stop.

[00:32:21] Speaker 00:
He didn't say how much prejudice, a little bit, a lot, how it weighed.

[00:32:25] Speaker 00:
He didn't really weigh the factors in his analysis.

[00:32:29] Speaker 00:
There's not a lot of detailed findings on it.

[00:32:31] Speaker 00:
But it is important to say that at least the judge, in his determination, said, I assume there will be prejudice.

[00:32:36] Speaker 01:
When we look at after the fact we have to look at the prejudice that yeah after the vaccine what happened Exactly, but even in his ruling he said I assume that prejudice so I think that's important So when the quench wouldn't the question of prejudice because it has to be determined after the determination on the continuance Has been made wouldn't that be more relevant to the question of granting a new trial after you've seen the trial that you got and

[00:32:58] Speaker 00:
I don't know, Your Honor, that I agree that you can't foresee the prejudice.

[00:33:03] Speaker 01:
Well, you might be able to anticipate some prejudice, but then, again, this is a judgment by the judge who's got the people in front of him at that moment.

[00:33:11] Speaker 01:
He can see your client.

[00:33:13] Speaker 01:
He can see how competent he is.

[00:33:14] Speaker 01:
He can see what he's done, what he hasn't done.

[00:33:16] Speaker 01:
and make some assessment as to how he's going to be able to handle the case.

[00:33:20] Speaker 01:
He also has to make some assessment as to how complex the case is.

[00:33:25] Speaker 01:
But the prejudice, he really isn't going to be able to assess that.

[00:33:29] Speaker 01:
It's a prediction.

[00:33:30] Speaker 01:
But at the end of the trial, you now know whether there has been prejudice.

[00:33:36] Speaker 01:
That would go then to the question as to whether he should have granted a new trial because he thought that your client had been prejudiced.

[00:33:41] Speaker 00:
What I would say, Your Honor, is all we needed to do was find some prejudice, look at 2.61 acres, focus on usefulness, which you did not do, and that's an abuse of discretion every day of the week.

[00:33:52] Speaker 00:
Thank you, Your Honors.

[00:33:53] Speaker 05:
Great.

[00:33:54] Speaker 05:
Thank you both for the helpful argument.

[00:33:55] Speaker 05:
The case has been submitted, and we are adjourned for the day.

[00:34:00] Speaker 00:
All rise.