M first used his girl friend Sandra Ware to assist him with legal matters and during his employment with us even threatened some of our employees with legal action from her…and then an Albany attorney and then a New Jersey attorney and once we were successful and back in Oregon he hired a Portland law firm that left after our discovery and then another attorney who left after the depositions and then he sent a letter to Bill Crow asking for a postponement until he found another attorney…and within a very short time after that letter ended up with Linda Marshall, a former partner with Bill Crow. It’s a crazy world and recall that M could not quite remember how he and Sandra came by this Linda Marshall.
To give credit where credit is due, Linda did step in and handle the case well for Max. Linda is competent and like many, but not by any means all, some attorneys simply cross the line, dwelling in the area of and on the side of dishonestly. Why? Because Max’s claims were for $1 million dollars. And attorneys get away with these lies because our courts are not drawing a line between advocacy and dishonestly. Sanctions are rare. Court room antics are common, even in an arbitration. And sometimes they work. It does not make them truthful. It does not make them right. Again I can distinguish in my mind antics in criminal cases before a jury, but when done in front of an arbitrator or Judge in a bench trial, the attorney deploying these tactics has reached a conclusion about the arbitrator or judge…and it is that the trickery will work on them because they are weak-minded or will work on them because of some other influences in play. It is otherwise dangerous. If I were a judge I would be offended by them.
In Marshall’s opening, where she outlined their case, she spun quite a story, but I was taken aback by example after example of misinformation. Fact after fact was replaced with one partial or total lie after another, some of them blatant and some of them subtle.
One such example was the 120 gig hard drive, the one M claimed crashed, the one he used to store movies, music and in some case porn and the hard drive that he reformatted the day before he turned it over to us. We had never used that hard drive after M returned it to us. We did turn it over to a highly regarded professionally qualified forensic expert who made a forensic copy of the hard drive. A forensic copy of a hard drive is an exact image of the hard drive and that copy may be used again to make yet another forensic copy. A forensic copy is not the same as a mere copy. It requires special software and equipment even to make a forensic image. Along the way one of our attorneys misplaced the 120 gig hard drive. Amazingly enough after the arbitration it was found and returned to us.
In spite of the testimony of many experts on forensic images, all of whom testified that the forensic image made initially was an exact copy of the original 120 gig hard drive, Linda Marshall took a different position. Here’s what she had to say:
8 In one instance, the — the hard — the
9 120 gigabyte hard drive has been apparently lost
10 completely. And Mr. Max’s expert was forced to
11 accept a mirror image that had been prepared by Mr.
12 Rote’s expert on a used drive. Which is somewhat
13 like akin to taking blood and putting it into a used
There is not a fine line between advocacy and a lie to advance the interests of a client and an attorney’s economic gain. This was not a criminal trial. Forensic imaging is objectively verifiable. It is not voodoo science. To suggest otherwise, was and remains just a lie. Now the goal of that lie was to suggest that the evidence on the hard drive had been tainted and by inference that we had planted the movie, music and porn evidence on the hard drive. We had not touched it. But more importantly, we had not reformatted the hard drive, which M admitted to doing. All of the movie and other evidence of the hard drive had been saved, put on the hard drive, before it had been reformatted and while in Max’s possession.
We did not destroy anything, but M did. We were never given credit for being the honest party, the one that did not destroy evidence. By contrast M was not ever tarnished by the fact that M attempted to destroy the 120 gig hard drive use, did not turn over key documents, turned over only emails he chose to turn over, did not turn over company programs causing us to shut down, did not turn over his email files after the 60 gig hard drive was installed (they were on his personal computer), did not turn over his personal hard drives, nor any objective evidence of the source of any document he used to make his absurd claims. Prior attorneys left for a reason.
The case was a loser for them and M could not afford to pay his attorneys for his defense. So that leads us back to asking why then did Linda Marshall have an interest? Why would she take a chance? And the answer is…we will let you answer that.
More on Linda Marshall soon.
After the arbitration we filed a complaint against Linda Marshall and Bill Crow with the Oregon state Bar. We filed a new complaint a few days ago.