Chapter 27 – There’s an Alarming Rise in Public Corruption Complaints

The FBI has identified that Public Corruption is “It’s …top priority among criminal investigations—and for good reason.”Public corruption poses a fundamental threat to our national security and way of life. It impacts everything from how well our borders are secured and our neighborhoods protected…to verdicts handed down in courts…to the quality of our roads, schools, and other government services. And it takes a significant toll on our pocketbooks, wasting billions in tax dollars every year. 

I have maintained for some time that the back in Chambers deal making that goes on is in the long term the silent partner to crime. Why? Because there is an absence of the checks and balances necessary to keep the human self serving factor from crossing the line from favoritism to all out protection of drug cartels, human trafficking, etc.

Here is a reprint of a New York Times article and its a single analysis. Nonetheless it is valuable to the overall analysis.Mark Fuller, Former Federal District Court Judge, Could Be Impeached – The New York Times

“Mark Fuller, Former Federal District Court Judge,
Could Be Impeached
By ALAN BLINDER SEPT. 18, 2015

A high level committee of federal judges told Congress this month that lawmakers had reason to consider impeaching Mark E. Fuller, a former Federal District Court judge in Alabama, even though he had already
resigned after being arrested and accused of striking his wife.
But legal ethicists and scholars said that the committee, the Judicial Conference of the United States, was sending a broader message to a sometimes skeptical Congress that the judiciary was willing to embrace a
hard line toward its own, even on matters of misbehavior outside the courtroom and even after a judge has left the bench. The action, experts said, suggested that some of the country’s leading judges wanted to use a
forceful demonstration of discipline to try to quell years of misgivings on Capitol Hill.

“They didn’t pull any punches,” said Arthur Hellman, a law professor at the University of Pittsburgh who specializes in judicial ethics. “They didn’t try to whitewash it in any way, and I think that’s part of the message they’re trying to convey: If a federal judge does something bad, the judiciary will take steps to force him off the bench.”

Mr. Fuller submitted his resignation letter on May 29, about a month after a committee filed a report that led the Judicial Conference to tell Congress that “substantial evidence” existed that Mr. Fuller physically
abused his wife, before and during their marriage, at least eight times. Mr. Fuller was also accused of committing perjury when he testified before a panel that investigated the circumstances of his August 2014
arrest.

A lawyer for Mr. Fuller, Barry Ragsdale, declined to comment on Friday.
Legal analysts say that Mr. Fuller, an appointee of President George W. Bush who faced allegations of partisanship during his handling of the corruption trial of former Gov. Don Siegelman of Alabama, a
Democrat, is unlikely to be impeached. Some lawyers questioned whether any proceedings would be constitutional because Mr. Fuller was no longer on the bench. But the Judicial Conference’s secretary, James
C. Duff, wrote that the judges had found that the “severity of the misconduct” justified the formal notice to Congress.

“In the event that the House of Representatives determines in its sound discretion that impeachment is not warranted, this certification may also serve as a public censure of Judge Fuller’s reprehensible conduct,
which has no doubt brought disrepute to the Judiciary and cannot constitute the ‘good behavior’ required of a federal judge,” Mr. Duff wrote.

Analysts said the judges may have felt compelled to respond so strongly because the accusations included both spousal abuse and perjury.

Speaker John A. Boehner referred the certification to the House Judiciary Committee, which would be responsible for starting impeachment proceedings.

But even if Mr. Fuller does not face discipline from Congress, the Judicial Conference’s move is expected to reverberate with judges nationwide.

“They want to use this as a teaching moment for the federal judiciary,” said Charles G. Geyh, a law professor at Indiana University who testified during impeachment proceedings against a different federal
judge.

Members of Congress have long voiced questions about judicial conduct, so much so that in 2004, Chief Justice William H. Rehnquist appointed a panel to evaluate the judicial branch’s approach.

Although the panel made recommendations in its public report, questions persisted, and Mr. Hellman said the Judicial Conference’s notice appeared to be a renewed effort to ease Congress’ worries about the effectiveness of judicial discipline.

Whether Congress will be satisfied is another question. In May, before Mr. Fuller announced his resignation, Senator Charles E. Grassley, Republican of Iowa, reintroduced a measure to establish an inspector general for the judiciary.

“The fact remains,” Mr. Grassley said then, “that the current practice of self regulation of judges with respect to ethics and the judicial code of conduct has time and again proven inadequate.”

On Friday, Mr. Grassley’s office did not respond to a message seeking comment. “

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Chapter 26 – The Unethical Paying of Witnesses

I’ve reviewed a number of documents providing wonderfully written detail on this topic. I would like to particularly reference an article written by MARCELLUS A. McRAE and KIM NORTMAN, which you can find here McRaeNortman-YourWitness.

Section 201(b)(3)of the federal antigratuity statute makes it a crime to corruptly give, offer, or promise anything of value to any person with intent to influence that person’s testimony under oath in a trial, hearing, or other proceeding. A person who violates this statute may be fined, imprisoned, or both.

Two of the witnesses we talked to have admitted that they were paid for call center consulting services as it applied to Dialer technology. Both also admitted that they followed a very specific script outlined by SVB counsel and the point of that script was to challenge the materiality of the “line to agent ratio” incorporated into our contract. In so far as Weishaupl needed that perjurious testimony to rewrite the contract, it stands to reason that SVB counsel was informed of the mandate before the trial began.

Sanctions
Parties and their counsel may be subject to civil and criminal sanctions for running afoulof the laws regulating the payment of fees to fact witnesses. Possible civil sanctions for paying a witness a fee for testifying or paying a witness an unreasonable amount span the full range available for discovery violations, including 1) the exclusion of the testimony of the witness who received improper payments, 2) an award of attorney’s fees and costs to the opposing party, 3) mistrial, and 4) disciplinary action by the state bar. In addition, federal and state law set out criminal sanctions.

In addition, Section 201(c)(2) makes it a crime to give, offer, or promise anything of value to any person, for testimony under oath. A person who violates Section 201(c)(2) “shall be fined under this title or imprisoned for not more than two years, or both.”

The American Bar Association also offers some guidance on this part by Promulgating Model Rules of Professional Conduct. Quoting from an article written by David R. Singh & Brenna L. Trout,”…From the language of these rules, it is clear that an attorney cannot engage in subordination of perjury or the creation of false evidence. However, neither the Model Rules nor the Restatement provides any specific guidance regarding when witness preparation crosses the ethical line. One gray area arises when the lawyer knows, under the applicable law, what testimony would be best from a witness, and must make a determination regarding how best to explain the law to the witness—can an explanation of the applicable law constitute counseling a witness to testify falsely? This dilemma, which attorneys frequently confront in fulfilling their professional obligation to prepare witnesses, but which is seldom discussed in case law because the details of witness preparation are generally not discussed publicly, is addressed in the next section.” ethical_witness_prep.authcheckdam

However as noted in a previous post there are perjury statutes for witnesses but essentially none for the attorneys advising them. My guess is the ABA Model of Professional Conduct is rarely followed. And although attorneys may be free to lie or coach their witnesses to lie with little risk of sanction, it is not the job of a Judge or Arbitrator to lap it up.

In our arbitration against M there was an alarming amount of intentionally misleading testimony by Marshal’s expert. At one point it was clear they were engaging in nothing more than hypothetical tampering of hard drives while intimating that we did that and later during cross examination admitting that there was no such evidence. When an attorney intentionally puts on false testimony and the expert is also knowingly engaging in this, they both are committing a crime. Why then did Crow lap this up?

Who was Crow doing a favor for, if not for himself? Was he trading this arbitration for beneficial treatment in other cases and for his firm, which at the time was Schwabe? Is this really what the judicial process has become? Do we want to fix it? I do.

I am happy to announce that the screen play based on this arbitration is in its final stage of editing. Soon this will have a larger voice. And as of right now there is both a fiction version and one based on a true story with no hedging on names, places and process.

Chapter 25 – Lets Recount the Evidence Arbitrator C did not consider

We are coming to the end of our analysis and need to now pause and summarize the evidence we presented and which C did not give weight to. And remember that in every case element we presented 3-4 witnesses compared to only M’s testimony.

First, my email & letter terminating M. If considered M has no case because he was terminated before the complaint. Two experts, the email, the computer on which it was sent, the forensic reports supporting the email sent date and three additional corroborating witnesses. C says no.

Second, M destroys his personal computer on which he received email. That’s considered spoliation of evidence and should have resulted in a conclusion that M did receive the email terminating him. C says that Rote it is not ok for you to destroy evidence, which we did not, but its ok for M. No negative inference.

Third, M claimed that his business emails from May 12, 2003 thru November 12, 2003 were on the 60 gig hard drive. Our experts and their expert disagreed and concluded M lied about that. That’s particularly important because of point two, destroying his personal computers. C says Rote you cannot lie but its ok for M to. Not considered.

Fourth, M claimed there was no Visual Foxpro executable files nor stored procedures on the 60 gig hard drive. None were found on the 60 gig hard drive. He claimed he recreated the programming every day. Such files were found on the 120 gig hard drive, and in an earlier zip file sent to me. Those files did not work and the 120 gig hard drive was reformatted. Three witnesses testified that he must have had programming to do his job daily. C says M did not withhold our property and therefore the damage caused when we went down was not his fault.

Fifth, M claimed that the 120 gig hard drive failed. However the experts agreed that is was fully functioning and was used to store movies, music and other personal property of M. C did not give any weight to M’s conversion of our property to his own personal use.

Sixth, M claimed that the 120 gig hard drive was stored in a fireproof safe and at some point he reformatted it to protect the sensitive data on it. Our experts concluded that there had been client sensitive information on it, but M was not protecting it. He was in fact using a share file site exposing confidential information to hackers. And he reformatted the hard drive the day before he gave it to me. Crow gave no weight to these lies told by M.

Seventh, during cross-examination M admitted that he never conveyed to his Albany attorney that he needed to assert we were engaged in criminal behavior, only inappropriate behavior. The essence of his lawsuit was that he was fired for filing a criminal complaint with the ODJ. He provided no evidence. The complaint was dropped.And of course her was fired before the complaint but before his last day on the job. His attorney admitted it was a complaint to allow him to keep his job. Crow gave no weight to that.

Eight, the very evidence he claimed to have received in an email supporting this claim of inappropriate behavior he likely created. He did not provide the email. And his computers he destroyed. And we had three witnesses testify that we knew nothing of the spreadsheet. The spreadsheet showed that we wrote off time, which we would do. Nonetheless the person he claimed created the spreadsheet did not testify and for a long time he refused to identify him. C treated the spreadsheet as credible, but discounted M’s testimony that he did not at any time claim we were engaged in criminal behavior. That’s plucking evidence to support C’s goal. This was so ridiculous.

Ninth, we presented evidence of ex-parte contact between C and Marshall, M’s attorney. And we filed a complaint with the Bar Association. It did not go anywhere. They rarely do.

And of course there is more. Much more like M setting up a competing business while our employee. How much longer were we really going to employ M after that? Well not much longer, but as it turns out it was too long.

In each and every category we provided evidence and in most cases expert testimony that M was lying, had destroyed evidence to meet his needs and ultimately admitted we did nothing warranting a complaint let alone a criminal complaint. And yet he prevailed. Or did C prevail? Or did someone else prevail?

So what does this tell us? Well there was a lot more going on behind the scenes apparently. This case was not decided on the evidence. It was rather decided on other unrelated things or so it appears. That speaks very poorly of Bill C and Schwabe and the Oregon State Bar. Bill C won an award just after he recused himself in our case. See it here.Schwabe’s Bill Crow Receives Owen Panner Professionalism Award.  As I have previously noted however this may well be a case where the forensics became confusing to him and he gave more weight to Marshall as a former partner than he did to us. That’s the danger when such a defined conflict is not disclosed. It’s completely feasible that even with factual acuity, the emotion of being challenged on the conflict carried more weight than the evidence. That makes arbitrator C a bad arbitrator, even though I believe he is a very good man.

The Rules of Evidence appeared to not be in play here. The Featured Image is of a 3 book series written by Robert E. Jones and others. Perhaps C needed to read this.

Don’t Arbitrate!

Chapter 24 -We were the Plaintiff…of Sorts

The 7 year arbitration of course started with M hiring an attorney and demanding his job back. Even if in a moment of stupidity we would have wanted to bring M back, by then he had through his girlfriend Sandra Ware induced an attorney in Albany Oregon to file a complaint with the Oregon Department of Justice. He managed to get the attorney to file the complaint with no corroborating evidence. There was no corroborating evidence. It was just an effort to try to rescind his termination. At that time he was still working for us. We had given him his notice of termination on October 2, 2003 but had set his last day of employment as November 15, 2003.

Again even by then it was clear that the other members of our IT staff had not the ability to generate reports or process the data we were required to process back then. At that time we had two other staff members that claimed to be using the Foxpro programs M had initially written. But that was not true. That was a lie and it was discovered even before M’s final day. Several weeks before M had turned over to us a zip file of Foxpro programs. However when our staff attempted to use them during test runs of reporting, data exporting and importing, they claimed the programs errored out. I should have made them show me. Sometime later we concluded that snippets of code were removed, queries were trying to extract data from incorrect fields, etc. The Foxpro programs did not work…period. And these program files were not on the 60 gig hard drive.

We were processing results on 10,000 live calls a day, more than 200,000 events a day, information deposited on a unix database associated with a proprietary dialer we purchased. The information created in the unix database M did not effect. It was dealing with all of this data that was the challenge and to meet that challenged we used stored procedures developed in Visual Foxpro. Those stored procedures allowed us to not have to write the code necessary to do our IT job of reporting and processing each and every day. Instead once the program of stored procedures were created the processing and reporting steps were reduced to a few hours of work a day. That is the goal of every IT department, to create the programs that are tested and produce accurate reports and other mandates without reinventing the wheel each day. I consider this a universally understood and accepted expectation of a company’s IT staff.

But those procedures turned over by M never worked. On his last day with us he turned over the business computer he used and the hard drive in use on that computer was what we referred to as the 60 gig hard drive. Upon getting that computer we went to work to find the Foxpro programs that comprised the executable files along with our stored procedures necessary to do the IT work daily. The program files provided by M weeks before did not work. The Foxpro files on the computer he just turned over were data files only, not the program code necessary to create the data files. Out two IT staff members were completely inept at being able to create the programming on their own even though their respective skill sets in this area had been verified by M. At first I was convinced the programming was there, just that our IT staff was not competent to handle it. I would later find out the code was not turned over.

Nonetheless the combination of out IT staff skills and the absence of programs (which we owned) resulted in us going down for a week, a loss of $50,000. Now recognizing that our staff could not be trusted to accomplish their primary directive, I hired a consultant to fly in and re-write the programs necessary for us to once again operate. He accomplished this in a matter of days after he arrived mid-week. The first thing he did of course was to search the 60 gig hard drive for Visual Foxpro or any other database programs. He found none.The programs Mr. Gedye created for us we used for years to come.

I think it would be helpful to include a bit of Gedye’s testimony on what Foxpro programming he tried to find on the 60 gig hard drive, starting on page 355 of the attached testimony transcript.ARBITRATION TAKEN ON 05-25-2010

3 Q. Okay. And what — what if anything did you

4 find on that machine in terms of Fox Pro programs?

5 A. Like I said I think we found some of the

6 sample outputs on there but we did not find any

7 actual code.

Realizing that M had not turned over the programming or worse that it was removed by one of our IT staff in concert with him, we filed a police report and then had forensic examinations done by forensic experts, to preserve the data and to find if the programs had been deleted while in our possession post M. No code was ever found on the 60 gig hard drive.

And so what can we say about the Foxpro programs, executables, stored procedures, etc. all designed around processing our reports and data without recreating the code to do so? Again, it was not there on the 60 gig hard drive. M did not provide it. His staff could not find it. His staff could not reproduce it. Our consultant could not find it, but did in a few days recreate it. There was a lot of cost to pay for that. And a lot of Revenue lost.

There is nothing more alarming to a growing business than to determine that the IT department has gone rogue and is trying to take over or control the company. But that’s what happened to us. Mutiny.

And why did Mr. Crow not consider this? We sought damages for the losses caused by M’s withholding of our programs, some $100,000 in damage. And yet Crow considered none of this, some how endorsing M’s destruction of our property. Three people testified on our behalf on this issue. Only M testified on the absence of programming code, claiming it never existed. For some reason Crow bought into that there was no programming code, no executables, no stored procedures ever created. Why would a seemingly intelligent arbitrator Crow believe this? I think we know Crow did not believe M. We know why now.

And yes we were the Plaintiff. And yes our programming code was gone.

Chapter 23 – Arbitrator Code of Ethics

It goes without saying that the standard for arbitrators would be close to the same as that for State & Federal Judges. Both parties to litigation are looking for an adjudicator and process free of corruption and ideally one that is efficient. The Max matter took seven years by the way.

The Arbitration Service of Portland site would not load today. Maybe they are no longer in business. I don’t know. But the American Arbitration Association Code of Ethics was readily available and for lack of a better solution we will go over their Code of Ethic’s very briefly.

CANON I: An arbitrator should uphold the integrity and fairness of the arbitration process.

CANON II: An arbitrator should disclose any interest or relationship likely to affect impartiality or which might create an appearance of partiality

CANON III: An arbitrator should avoid impropriety or the appearance of impropriety in communicating with parties.

CANON IV: An arbitrator should conduct the proceedings fairly and diligently.

CANON V: An arbitrator should make decisions in a just, independent and deliberate manner

CANON VI: An arbitrator should be faithful to the relationship of trust and confidentiality inherent in that office.

CANON VII: An arbitrator should adhere to standards of integrity and fairness when making arrangements for
compensation and reimbursement of expenses.

CANON VIII: An arbitrator may engage in advertising or promotion of arbitral services which is truthful and accurate.

CANON IX: Arbitrators appointed by one party have a duty to determine and disclose their status and to comply with this code, except as exempted by Canon X

CANON X: Exemptions for arbitrators appointed by one party who are not subject to rules of neutrality

You will note above that there are exemptions in Canon X to the rule or neutrality. Interesting. I suspect that the Arbitration Service of Portland’s Code of Ethics will not vary much from the above, but who knows. Maybe they do. Maybe there are a lot more exemptions to neutrality.

This is really beating a dead horse. Arbitrators need to be neutral and have an obligation to disclose throughout the arbitration and I quote… “The obligation to disclose interests or relationships described in paragraph A is a continuing duty which requires a person who accepts appointment as an arbitrator to disclose, as soon as practicable, at any stage of the arbitration, any such interests or relationships which may arise, or which are recalled or discovered.”

I really have no idea why this ethical boundary, this disclosure requirements and neutrality mandate, why this is so difficult for an attorney acting in a role of arbitrator. The foundation of our expectation is fairness and neutrality. Do they set that aside when one party is a business? It seems so. And Schwabe Williamson, the firm arbitrator C was a partner in at the time he was our arbitrator represents businesses…at least that is a large part of their practice. Somewhere in all of this those entering into arbitration must believe in the process. I don’t anymore.

These issue I have and will discuss are worthy of our consideration, but not the least of these is what recourse do we have if the arbitrator did not have the acuity or stamina to do his duty and was in the process exploited by one of the parties who had a relationship with the arbitrator. A prior relationship allows a disproportionate amount of influence far away from the facts. What can you do then if that’s the case. There does not appear to be a solution.

AAA Code of Ethics follow.Commercial_Code_of_Ethics_for_Arbitrators_2010_10_14

Chapter 22 – Perhaps more often than not our legacies are not what we wanted them to be.

Yesterday my attorney and friend received a call from the US Marshal’s Service. The Marshal contacted us because they received a call from Judge Jones office identifying the Title of this Chapter as a physical threat to Robert Jones.

When I wrote “Perhaps more often than not our legacies are not what we wanted them to be” I did not in any way mean this as a veiled physical threat. Even in the most jaded light I cannot see their concern. This blog is about using the pen, not the sword.

I called the U.S. Marshal. He was very pleasant and professional and I assured him I was not a violent threat to Judge Jones. That matter is closed.

My blog is examining the abuse of civil procedure, arbitration and even litigation itself, which may taint the legacy of all involved, including me. It’s the road we are on & it affects Bill Crow, Linda Marshall, M and Robert E. Jones. It has the opportunity to affect Judge Jones legacy because Bill Crow reviewed prior litigation we had been engaged in at the request of Linda Marshall but only one instance of that…the opinion written by Judge Jones…who at this point we can conclude is a friend of Bill Crow. Marshall appealed to Crow to consider past litigation, even though it had nothing to do with the M case or the M facts.

All this being true the question that comes out of this inquiry by the U.S. Marshal’s Service is who contacted Robert Jones to even notify him that I had published Chapter 19, which was just yesterday. I cannot imagine that Judge Jones’ office has been following my blog. But even if they are I cannot image they went looking for it. Someone with an agenda brought it to their attention. I’m not writing anything that would surprise them.

What I can imagine is that Linda Marshal contacted Judge Jones’ office and intimated there was a threat. And that raises yet another question of behind the scenes, backroom, unethical influence intended to advance their current litigation. Brazen, traceable, discoverable and unethical. Linda wants us to take the blog down and I have refused to do so. Instead then she is attacking it as a forum suggesting violence, which it clearly is not.

Wise Guys don’t blog Linda.

Chapter 21 – Code of Conduct for United States Judges Part 2

In our continuing discussion about our experience with Arbitrator Crow and the Max Z arbitration, it became apparent that we needed to spend some time with the Code of Ethics governing the numerous Judicial parties touching our case. The only reason to address the U.S. Judges Code of Conduct is because Linda Marshall has called on the Federal Magistrate in our ongoing litigation to set the facts aside and to punish us including me personally. The reason to set the facts aside is because we had a prior bad experience with a sitting Senior Federal Judge. Is there anything in the Code of Conduct condoning this requested behavior? So far we have not found it. But lets continue our search. After all if there is a mandate to set aside the facts in a case and award your favorite party then our collective expectation of Judicial fairness & integrity is already gone.

Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently
The duties of judicial office take precedence over all other activities. In performing the duties prescribed by law, the judge should adhere to the following standards:
A. Adjudicative Responsibilities.
(1)A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamor, or fear of criticism.
(2)A judge should hear and decide matters assigned, unless disqualified, and should maintain order and decorum in all judicial proceedings.
(3)A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity. A judge should require similar conduct of those subject to the judge’s control, including lawyers to the extent consistent with their role in the adversary process.
(4)A judge should accord to every person who has a legal interest in a proceeding, and that person’s lawyer, the full right to be heard according to law. Except as set out below, a judge should not initiate, permit, or consider ex parte communications or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers. If a judge receives an unauthorized ex parte communication bearing on the substance of a matter, the judge should promptly notify the parties of the subject matter of the communication and allow the parties an opportunity to respond, if requested. A judge may:
(a)initiate, permit, or consider ex parte communications as authorized by law;
(b)when circumstances require it, permit ex parte communication for scheduling, administrative, or emergency purposes, but only if the ex parte communication does not address substantive matters and the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication;
(c)obtain the written advice of a disinterested expert on the law, but only after giving advance notice to the parties of the person to be consulted and the subject matter of the advice and affording the parties reasonable opportunity to object and respond to the notice and to the advice received; or
(d)with the consent of the parties, confer separately with the parties and their counsel in an effort to mediate or settle pending matters.
(5)A judge should dispose promptly of the business of the court.
(6)A judge should not make public comment on the merits of a matter pending or impending in any court. A judge should require similar restraint by court personnel subject to the judge’s direction and control. The prohibition on public comment on the merits does not extend to public statements made in the course of the judge’s official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal education.

B. Administrative Responsibilities.
(1)A judge should diligently discharge administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court personnel.
(2)A judge should not direct court personnel to engage in conduct on the judge’s behalf or as the judge’s representative when that conduct would contravene the Code if undertaken by the judge.
(3)A judge should exercise the power of appointment fairly and only on the basis of merit, avoiding unnecessary appointments, nepotism, and favoritism. A judge should not approve compensation of appointees beyond the fair value of services rendered.
(4)A judge with supervisory authority over other judges should take reasonable measures to ensure that they perform their duties timely and effectively.
(5)A judge should take appropriate action upon learning of reliable evidence indicating the likelihood that a judge’s conduct contravened this Code or a lawyer violated applicable rules of professional conduct.

C. Disqualification.
(1)A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:
(a)the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b)the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or lawyer has been a material witness;
(c)the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;
Guide to Judiciary Policy, Vol. 2A, Ch. 2 Page 8
(d)the judge or the judge’s spouse, or a person related to either within the third degree of relationship, or the spouse of such a person is:
(i)a party to the proceeding, or an officer, director, or trustee of a party;
(ii)acting as a lawyer in the proceeding;
(iii) known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or
(iv) to the judge’s knowledge likely to be a material witness in the proceeding;
(e)the judge has served in governmental employment and in that capacity participated as a judge (in a previous judicial position), counsel, advisor, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy.

(2)A judge should keep informed about the judge’s personal and fiduciary financial interests and make a reasonable effort to keep informed about the personal financial interests of the judge’s spouse and minor children residing in the judge’s household.

(3)For the purposes of this section:
(a)the degree of relationship is calculated according to the civil law system; the following relatives are within the third degree of relationship: parent, child, grandparent, grandchild, great grandparent, great grandchild, sister, brother, aunt, uncle, niece, and nephew; the listed relatives include whole and half blood relatives and most step relatives;
(b)“fiduciary” includes such relationships as executor, administrator, trustee, and guardian;
(c)“financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, advisor, or other active participant in the affairs of a party, except that:
(i)ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such
securities unless the judge participates in the management of the fund;
(ii)an office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;
(iii) the proprietary interest of a policyholder in a mutual insurance company, or a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv) ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities;
(d)“proceeding” includes pretrial, trial, appellate review, or other stages of litigation.

(4)Notwithstanding the preceding provisions of this Canon, if a judge would be disqualified because of a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the judge (or the judge’s spouse or minor child) divests the interest that provides the grounds for disqualification.

D. Remittal of Disqualification. Instead of withdrawing from the proceeding, a judge disqualified by Canon 3C(1) may, except in the circumstances specifically set out in subsections (a) through (e), disclose on the record the basis of disqualification. The judge may participate in the proceeding if, after that disclosure, the parties and their lawyers have an opportunity to confer outside the presence of the judge, all agree in writing or on the record that the judge should not be disqualified, and the judge is then willing to participate. The agreement should be incorporated in the record of the proceeding.

COMMENTARY
Canon 3A(3). The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Courts can be efficient and businesslike while being patient and deliberate.
The duty under Canon 2 to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary applies to all the judge’s activities, including the discharge of the judge’s adjudicative and administrative responsibilities. The duty to be respectful includes the responsibility to avoid comment or behavior that could reasonably be interpreted as harassment, prejudice or bias.

Canon 3A(4). The restriction on ex parte communications concerning a proceeding includes communications from lawyers, law teachers, and others who are not participants in the proceeding. A judge may consult with other judges or with court personnel whose function is to aid the judge in carrying out adjudicative responsibilities. A judge should make reasonable efforts to ensure that law clerks and other court personnel comply with this provision.
A judge may encourage and seek to facilitate settlement but should not act in a manner that coerces any party into surrendering the right to have the controversy resolved by the courts.

Canon 3A(5). In disposing of matters promptly, efficiently, and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay. A judge should monitor and supervise cases to reduce or eliminate dilatory practices, avoidable delays, and unnecessary costs.
Prompt disposition of the court’s business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to take reasonable measures to ensure that court personnel, litigants, and their lawyers cooperate with the judge to that end.

Canon 3A(6). The admonition against public comment about the merits of a pending or impending matter continues until the appellate process is complete. If the public comment involves a case from the judge’s own court, the judge should take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality, which would violate Canon 2A. A judge may comment publicly on proceedings in which the judge is a litigant in a personal capacity, but not on mandamus proceedings when the judge is a litigant in an official capacity (but the judge may respond in accordance with Fed. R. App. P. 21(b)).

Canon 3B(3). A judge’s appointees include assigned counsel, officials such as referees, commissioners, special masters, receivers, guardians, and personnel such as law clerks, secretaries, and judicial assistants. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by this subsection.

Canon 3B(5). Appropriate action may include direct communication with the judge or lawyer, other direct action if available, reporting the conduct to the appropriate authorities, or, when the judge believes that a judge’s or lawyer’s conduct is caused by drugs, alcohol, or a medical condition, making a confidential referral to an assistance program. Appropriate action may also include responding to a subpoena to testify or otherwise participating in judicial or lawyer disciplinary proceedings; a judge should be candid and honest with disciplinary authorities.

Canon 3C. Recusal considerations applicable to a judge’s spouse should also be considered with respect to a person other than a spouse with whom the judge maintains both a household and an intimate relationship.

Canon 3C(1)(c). In a criminal proceeding, a victim entitled to restitution is not, within the meaning of this Canon, a party to the proceeding or the subject matter in controversy. A judge who has a financial interest in the victim of a crime is not required by Canon 3C(1)(c) to disqualify from the criminal proceeding, but the judge must do so if the judge’s impartiality might reasonably be questioned under Canon 3C(1) or if the judge has an interest that could be substantially affected by the outcome of the proceeding under Canon 3C(1)(d)(iii).

Canon 3C(1)(d)(ii). The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge. However, if “the judge’s impartiality might reasonably be questioned” under Canon 3C(1), or the relative is known by the judge to have an interest in the law firm that could be “substantially affected by the outcome of the proceeding” under Canon 3C(1)(d)(iii), the judge’s disqualification is required.

I don’t think we need go further. What Linda Marshall is attempting to do is to ask the Federal Court to turn her unsecured debt and judgment into a secured judgment and to further pierce the corporate veil, holding me personally responsible for this corporate debt. There is no evidence supporting her claims and so she is now attempting to accomplish this by appealing to the most base behavior of a Judge. If I were a Judge I would be offended by this tactic. While whether a Judge receives or considers certain evidence may be a matter or civil or criminal procedure, eventually we get to how much a Judge wants to bend to consider a bit of evidence to support an opinion.

But I am concerned that challenging a Judge’s ruling results in a lifetime indictment. I’m just a citizen of the United States, no more…no less.

Chapter 20 – Code of Conduct for United States Judges Part 1

Judges, Arbitrators & yes even Attorneys have a written and published Code of Ethics or Conduct. Before exploring the Arbitrator’s Code, I thought it would first be valuable to address the US Judges Code of Conduct. Why? Because Linda Marshall on more than two occasions has asked a Federal judge or Magistrate to set aside the facts and to compromise the Code of Conduct in order to find in her favor. The Canon’s are attached here.code of conduct

These are the Canons for US Judges:
Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary
Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities
Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently
Canon 4: A Judge May Engage in Extrajudicial Activities That Are Consistent with the Obligations of Judicial Office
Canon 5: A Judge Should Refrain from Political Activity

More on Canon 1: A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY

“An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

COMMENTARY
Deference to the judgments and rulings of courts depends on public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn on their acting without fear or favor. Although judges should be independent, they must comply with the law and should comply with this Code. Adherence to this responsibility helps to maintain public confidence in the impartiality of the judiciary. Conversely, violation of this Code diminishes public confidence in the judiciary and injures our system of government under law.

The Canons are rules of reason. They should be applied consistently with constitutional requirements, statutes, other court rules and decisional law, and in the context of all relevant circumstances. The Code is to be construed so it does not impinge on the essential independence of judges in making judicial decisions.

The Code is designed to provide guidance to judges and nominees for judicial office. It may also provide standards of conduct for application in proceedings under the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (28 U.S.C. §§ 332(d)(1), 351-364). Not every violation of the Code should lead to disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline, should be determined through a reasonable application of the text and should depend on such factors as the seriousness of the improper activity, the intent of the judge, whether there is a pattern of improper activity, and the effect of the improper activity on others or on the judicial system. Many of the restrictions in the Code are necessarily cast in general terms, and judges may reasonably differ in their interpretation. Furthermore, the Code is not designed or intended as a basis for civil liability or criminal prosecution. Finally, the Code is not intended to be used for tactical advantage.”

I have always been surprised when an attorney, like Marshall, asks a Judge in an unrelated matter to set aside the facts in order to punish me again for prior acts, which she interprets as a justified lashing and favor from the court. But the unabated truth is the Marshall is also asking the Judge to compromise his or her Integrity and Independence and Marshall has reason to believe it will be done.

I would never ask a Judge to do that. But I believe in the truth more than tactics and if the truth can no longer prevail, then we are in dire condition as a nation. It’s not just Oregon. I witnessed the same thing in Colorado. As a small business owner, you will be in and out of court in some form of litigation and more than once in your lifetime. If all litigation is decided based on your first result, if you cannot get a fair trial in that same court house in front of friends of that prior Judge, then what are we to do? Move? I don’t know.

More on Canon #2: A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES

“A. Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.
C. Nondiscriminatory Membership. A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.

COMMENTARY
Canon 2A. An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen. Because it is not practicable to list all prohibited acts, the prohibition is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules, or other specific provisions of this Code.

Canon 2B. Testimony as a character witness injects the prestige of the judicial office into the proceeding in which the judge testifies and may be perceived as an official testimonial. A judge should discourage a party from requiring the judge to testify as a character witness except in unusual circumstances when the demands of justice require. This Canon does not create a privilege against testifying in response to an official summons.
A judge should avoid lending the prestige of judicial office to advance the private interests of the judge or others. For example, a judge should not use the judge’s judicial position or title to gain advantage in litigation involving a friend or a member of the judge’s family. In contracts for publication of a judge’s writings, a judge should retain control over the advertising to avoid exploitation of the judge’s office.
A judge should be sensitive to possible abuse of the prestige of office. A judge should not initiate communications to a sentencing judge or a probation or corrections officer but may provide information to such persons in response to a formal request. Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees seeking names for consideration and by responding to official inquiries concerning a person being considered for a judgeship.

Canon 2C. Membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge’s impartiality is impaired. Canon 2C refers to the current practices of the organization. Whether an organization practices invidious discrimination is often a complex question to which judges should be sensitive. The answer cannot be determined from a mere examination of an organization’s current membership rolls but rather depends on how the organization selects members and other relevant factors, such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members, or that it is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited. See New York State Club Ass’n. Inc. v. City of New York, 487 U.S. 1, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 107 S. Ct. 1940, 95 L. Ed. 2d 474 (1987); Roberts v. United States Jaycees, 468
U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984). Other relevant factors include the size and nature of the organization and the diversity of persons in the locale who might reasonably be considered potential members. Thus the mere absence of diverse membership does not by itself demonstrate a violation unless reasonable persons with
knowledge of all the relevant circumstances would expect that the membership would be diverse in the absence of invidious discrimination. Absent such factors, an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex, or national origin persons who would otherwise be admitted to membership.

Although Canon 2C relates only to membership in organizations that invidiously discriminate on the basis of race, sex, religion or national origin, a judge’s membership in an organization that engages in any invidiously discriminatory membership practices prohibited by applicable law violates Canons 2 and 2A and gives the appearance of impropriety. In addition, it would be a violation of Canons 2 and 2A for a judge to arrange a meeting at a club that the judge knows practices invidious discrimination on the basis of race, sex, religion, or national origin in its membership or other policies, or for the judge to use such a club regularly. Moreover, public manifestation by a judge of the judge’s knowing approval of invidious discrimination on any basis gives the appearance of impropriety under Canon 2 and diminishes public confidence in the integrity and impartiality of the judiciary, in violation of Canon 2A.

When a judge determines that an organization to which the judge belongs engages in invidious discrimination that would preclude membership under Canon 2C or under Canons 2 and 2A, the judge is permitted, in lieu of resigning, to make immediate and continuous efforts to have the organization discontinue its invidiously discriminatory practices. If the organization fails to discontinue its invidiously discriminatory practices as promptly as possible (and in all events within two years of the judge’s first learning of the practices), the judge should resign immediately from the organization.”

These are broad and general rules and I believe that our Federal Judges work very hard to uphold them. Do not interpret my posts as a critique of the Court overall. But when an attorney essentially asks a Judge to violate the above Canons, you need to take notice. That suggests a prior relationship exists and the attorney believes the favor to be a valid request. Shocking.

More on Canon #3 in our next post.

Chapter 19 – Are Arbitrator’s Above The Law?

A discussion of THE “MANIFEST DISREGARD OF THE LAW” standard.

Quoting and citing the work of Michael Leroy, “Common law doctrines provide non-statutory avenues to prevent awards from becoming binding. This Article contemplates the role of courts when they review awards that “manifestly disregard the law”—a term that means the arbitrator knew the law but deliberately ignored it. When judges review awards too closely, they undermine finality. But when a judge confirms an award in which the arbitrator flouts the law, does the finality rule put the arbitrator above the law?” See more from Michael Leroy here.02_leroy

The discussion of many a legal scholar discusses, explores, and it appears universally conclude that as general concepts like “manifest disregard of the law (md)”, which have been developed over centuries of legal precedent and analysis, when these generalized but broad moral directives are codified into more specific guidelines of a review, that the broader concept can be lost. That appears to be the case for the Federal Arbitration Act, which has offered more specificity and guidance to the bench. But the interpretation of that guidance in the hands of any given Judge is that broader more concepts like md may be seen as in addition to the Act or in the alternative already considered by the ACT, precluding further consideration.

Consider this example. Lets say that an arbitrator refuses to allow evidence in and therefore is subject to having his ruling vacated. In the alternative arbitrators could allow the evidence to be presented, allow it to become part of the record and simply choose to ignore it. Reversing an arbitration award even when an arbitrator makes a mistake is not generally grounds enough for a Judge to vacate the award. Arbitrators make a lot of mistakes. However, a judge who believes that the Manifest Disregard of The Law standard is still available may choose to weigh the egregiousness of the arbitrator’s refusal to follow the law…and would perhaps Vacate the Award or Modify the Award.

And so lets consider this in context to the M arbitration.  Arbitrator C decided that M would not be penalized for knowingly destroying his computers, emails (that we owned), reformatting a hard drive we owned, withholding software programs written by him (which we owned) and otherwise destroying key evidence. By contrast M’s attorney demanded that we not destroy our hard dries, our computers, etc. and we did not destroy that evidence. But M did. How did Marshall know they would get away with that? The law would have required that M’s knowing destruction of the evidence he held would either require a dismissal of his case or an inference that the evidence he destroyed was damaging to him. Thus the evidence would have proven that he received the email sent to him terminating his employment and therefore his entire case fails and it fails because he was fired before he filed his false complaint to the Oregon Department of Justice. When we testified and presented forensically verifiable evidence that an email was sent and M was terminated before he filed the complaint, then M’s destroyed computers and emails infer agreement with our evidence. But C did not follow this law. It’s as if we did not present the evidence.

There is of course more. When M testified that he never did claim we were engaged in criminal activity, but rather inappropriate activity, he was saying that his attorney filed an incorrect complaint…that his attorney misinterpreted his intention. His case fails. But C did not follow this and it was M’s testimony supporting our position this time. If you recall M testified that he believed we were engaging in inappropriate behavior if we reduce a client’s invoice. We are all “inappropriate” when we buy at a discount. Childish. An arbitrator need not embrace childishness.

When a Judge uses judicial discretion, he does so recognizing that an Appeals Court is itching to reverse him…if there are other errors of significance. But the abuses by C were beyond judicial discretion. I can understand that he may have been angry, but the job requires putting the facts ahead of any form of bias. He did not do that.

I keep coming back to the get out of jail card Marshal submitted during arbitration. Doing this during a regular trial, in front of a real judge, may have been enough to cause a mistrial and loss of a jury. And yet C received it. The get out of jail card was a case summary where Robert E. Jones, U.S. Federal Judge, assisted a Plaintiff in an earlier trial before him. That Plaintiff was Sean Jones. I don’t think he was related to Judge Jones but it did not dawn on me to ask at that time. And the message is that Judge Jones did not like Rote (me) and you should set the facts aside to dislike him as well. As transparent as that was, and believe me I was surprised that she did it on the record, it may have had an impact. Is it code? Is it just one attorney’s knowledge that the system is broken and this is the road to a win. There is a disgusting inference to be drawn by Marshall putting the Jones case on the record. It’s sad and demeaning. But it’s Marshall & apparently C.

Mr. C I think you proved arbitrators are effectively above the Law. No one stopped you.  Your opinion was not easily appealable. And I suspect that you knew no one would. But this history, this written record of the arbitration, this blog and other work I hope points out that opportunity for abuse is real even if that was not the arbitrator’s mental state. And I don’t think it was his mental state. I think he was angry for being called out on the former work relationship. No doubt that someone with his background of integrity absolutely hates it when someone challenges his fundamental ethics. I know how that feels.

The Honorable Robert E. Jones is receiving a lifetime achievement award tomorrow night. The press will be there. Congratulations Judge Jones. Perhaps more often than not our legacies are not what we wanted them to be. [ Note that this paragraph was used by Marshall and Christiansen to contact Judge Jones Chamber and conveying all kinds of things supporting their opinion that I intended to hurt Judge Jones the night of his award. It was hard for me to anticipate the stupidity of their allegations, but apparently not hard for them to see some opportunity to garner sympathy if not support].

Chapter 18 – The Appeal

Borrowing a line from Arbitrator C, well Ms. Marshall where did we leave off. Ms. Marshall: “Mr. Cr, Mr. Rote was in the middle of his cross-examination of M.” Mr. C: “Hmm.”

Prior to Arbitrator C’s Final Opinion and Award we challenged his independence given his prior failure to disclose his past and working relationship with Linda Marshall. And now after the award we were left with one more opportunity to set the arbitration aside. That was to Appeal the award to the State or Federal Court.

The most dangerous aspect of arbitration is this last step, that is the very limited opportunity one has to appeal and set aside and arbitration award. Because arbitration was intended to be an alternative to court, our State and Federal laws have evolved to provide guidelines as to what a court may review and under what circumstance and award can be set aside. An erroneous interpretation of a law in its application to the case is not sufficient to set aside or vacate an arbitration award.

As discussed, there are limited opportunities to vacate an arbitration award. Under the Federal Arbitration Act, we had essentially 4 conceptual opportunities and chose to focus on 2 of those, “evident partiality” and “arbitrator misconduct”. Once we found out about Mr. C’s prior work relationship with Marshall, it was necessary to challenge his independence just to preserve our right to appeal the award under the “evident partiality” standard. But at the same time it incites the arbitrator so that the result very often is a Mr. C who then starts setting aside very clear and convincing evidence we provided in order to find in favor of M. We knew the risk. The best of our Judges and Arbitrators have thick skins and would not use this action by us as an invitation to hurt us. But many Judges and Arbitrators are not good.

And so we Appealed asking the court to vacate the award, focusing on “evident partiality” and “arbitrator misconduct”. Facts can easily fall into both of these categories. See a discussion of these and other opportunities to appeal.DispResJ

Evident partiality is intended to cover historical relationships that may indicate or result in bias. Quoting from a Dispute Resolution Journal…”More recently, the 11th Circuit fashioned a new, but less than “bright line” test for vacating an award due to evident partiality. This test requires either an actual conflict of interest or nondisclosure of information known by the arbitrator that would lead a reasonable person to believe that a potential conflict exists. The 11th Circuit’s test was predicated on the Supreme Court’s statement in Commonwealth Coatings that courts “should be even more scrupulous to safeguard the impartiality of arbitrators than judges, since the former have completely free rein to decide the law as well as the facts.”

Again recall that when challenges Arbitrator C did recuse himself, deciding to step down from the case. But when Linda Marshall challenged his right to step down, he capitulated. Naturally him not disclosing that he had worked with Linda Marshall met this standard. there was more though. I overheard a conversation between them when C asked about her health and had heard from other Miller Nash law firm alumni that Linda had health issues. I wont disclose what they are. More importantly though I found that C opening every morning asking Marshall where we left off was a very clear indication that we no longer had an unbiased and independent arbitrator. And lets not necessarily taint that with an intent by C to be dishonest an unbiased. Let’s say instead that the issues were going to be resolved by the evidence and much of that evidence was digital forensics. Marshall would know she has an edge if she confuses the issues enough with testimony from an expert. Even though we had 7 witnesses and they had but 2 and even though their forensic expert agreed with ours, twisting the conclusions of the reports created some confusion. And in umbrella of confusion, who would C believe.

We took a position that much of the testimony was fraudulent and that Marshall put this testimony on suggests that she knew that C would be confused and he would be influenced by his pat relationship with Marshall and that’s why arbitration’s are risky. Had the award been reached in court it would have been easily overturned. C’s refusal to associate a negative inference to M for his failure to provide his computers, for reformatting a hard drive a day before he turned it over to us, for refusing to provide the email source to the spreadsheet evidence and so forth. And most importantly because M retracted in his own testimony that he had filed a criminal complaint or ever intended to.

Beyond our challenges under “evident partiality, we also appealed under the “arbitrator misconduct” standard. That standard includes an arbitrator’s refusal to postpone the hearing without sufficient cause, an arbitrator refusal to hear evidence pertinent and material to the controversy and a catch-all for any other misbehavior by which the rights of any party have been prejudiced. With respect to a refusal to hear evidence, those cases are where evidence is not permitted to be presented. What happens though when evidence is on the record and is not considered by the arbitrator. All of our evidence had to be disregarded almost in its entirety to find in favor of M. All of our forensic evidence, the reports by our independent experts, the evidence of use by M, even the reports by their forensic expert was set aside to the extent it agreed with or experts. Setting aside evidence is not the same as not hearing the evidence and it is the prerogative of the arbitrator to do so, but it is an indicator that the arbitrator is not bias and otherwise engaged in misbehavior by which our rights had been prejudiced.

Our Appeal is attached. We did not prevail. I was slightly surprised. Again the Federal Court’s interest in reviewing and setting aside an award is not significant, but the Magistrate who considered the case was well prepared and I felt like we had a fair hearing. Nonetheless I think the Judge made the wrong decision, for no other reason than C recused himself and later withdrew that recusal. There was an acknowledgement that C and Marshall had worked together. Most of the evidence provided to you in this blog was not reviewed by the Judge. We had no opportunity to get it in. The Judges hands were effectively tied and his review limited. I suspect that he would have been happy to look further into the evidence, particularly the destruction of the evidence by M, our forensic reports establishing that I had terminated M before the complaint was filed and other supporting testimony. But under the standard of review he can’t review it.

Do not arbitrate. Our motion to vacate is attached. Read on. We will break this down a bit more in subsequent posts. See our Memorandum Support The Motion to Vacate here. Memorandum Supporting Motion to Vacate Award