Chapter 83 – The Scorpion and The Frog: Exploiting an Elder Statesman

“A scorpion asks a frog to carry him over a river. The frog is afraid of being stung, but the scorpion argues that if it did so, both would sink and the scorpion would drown. The frog then agrees, but midway across the river the scorpion does indeed sting the frog, dooming them both. When asked why, the scorpion points out that this is its nature.”

–Fable of the Scorpion and the Frog

Having referred the defendant to Linda Marshall, the arbitrator in all likelihood became committed to the position espoused by her. I don’t think that was his goal or plan.

Every day the arbitrator asked Linda Marshall where we left off. I was surprised by this and it did not dawn on me at the time that Mr. C  may not have had the stamina to and cognitive skills to deal with a lot of the evidence, especially the forensics data. I presume this is why both Marshall and Christiansen do not want the forensic reports published.

So, what if the referral was innocent enough at the time but by the time the hearings began the arbitrator’s cognitive skills were not up to par. Couple this with my decision to proceed in the later half of the arbitration without counsel and you may just have a perfect opportunity to exploit a former colleague, the arbitrator. My decision to proceed without counsel was based on our overwhelming evidence , part of which we got in while still represented by counsel. The second reason, however, spun on finding out that Marshall worked with the arbitrator and was a former partner. I did not know that when we started. And an admission by our former counsel that he received a call from a Judge slamming me personally, which again was not shared until late into the process, was enough for me to proceed without counsel, which you can do in an arbitration.

There was an event that I have not covered yet. Part way through the arbitration we finally noticed that the defendant had a recording device in the hearing and it remained on while we occupied the room at break talking about case, strategy, etc. It was stopped after we raised the issue, but wow.

Lets identify the kep parts of our  position and lace in the arguments for and against. Those key arguments or events are (1) the shut down caused by M, (2) the termination date supported by the email evidence and witness testimony and (3) their position that M was fired because of his complaint (and evidence) to the ODJ.

The shut down was caused by M’s withholding and destroying of our software programs designed to process data and generate reports for our clients from the 100,000 bits of data we generated every day.  After the shutdown we hired an expert in our field to fly out and regenerate the programs. It took him four days. He also looked for the programs with the help of our IT department and found nothing on our servers nor on the computer hard drive returned by M. He testified on that issue. A forensic expert testified and produced a report of these very programs on a 2nd hard drive provided by M, but that hard drive had been reformatted. At the time the 2nd hard drive  was provided to us we were told by M that this hard drive was still not functioning, that it was broken. That turned out to not be the case. It was functioning and it’s where M had kept his music, videos and eBay files.

M testified that there were no programs, that he simply wrote code every day to generate the reports. Now on average each of our clients had three unique daily reports and we haad about 6 clients. The data we created daily was in a databas e run on a Unix operating system. That string of data had to be extracted, converted and moved to database tables. Back then M used Foxpro to generate the reports. We didn’t buy a package of reports. We had to write the code to do all of this and its hundreds of lines of code over multiple operating systems to accomplish this. We had 5 people testify on our behalf, which included the Foxpro and forensic experts. M’s group had only his testimony. The arbitrator was silent in his opinion about the shutdown, which was necessary for M’s claims to survive and our damages to be denied. It is hard to imagine that anyone would believe M on his point that he just wrote the code daily, when he could have saved and stored the code. But apparently the arbitrator chose to. believe M.

The second body of proof we offered was that M had been fired on October 2nd, well before he filed his complaint on October 27th.  We retained the email firing him. We retained the computer on which the email was sent. Forensic reports by our group confirmed the email was sent on October 2nd. A forensic report by M’s expert confirmed the email was sent on October 2nd. M claimed he didn’t get the email or letter terminating him, but we didn’t have to. We had forensics and the testimony of 3 other people versus M’s sole testimony. Also remember that M destroyed his computers on which he maintained his outlook email account. We were entitled to an inference that the receipt of the email is what M destroyed.

M’s position was that he did not receive an email or letter terminating him. He admitted to destroying his computers. He maintained that he kept his email on the computer hard drive he returned; however the forensic reports show that the only email account on that computer was created the day before M returned the computer and there were no emails attributable to him while the computer was in his possession. M also pointed out that I had refused to fire him 4 days earlier when he was attempting to hold us hostage for a raise in order to process data 5 months over due. I did days before but once he caught up on the data and I had a chance to talk to my IT staff, I fired him…on October 2nd.

I can’t explain the arbitrator’s rejection of the forensic evidence, even M’s forensic experts opinion, except to say that it has to fall into one of the three conclusions. The first is that his cognitive skills were bad enough that he was not able to discern the credibility of the evidence. The second is that he was benefitting somehow. The third was that he was angry after his recusal and bent over backwards to simply punish. I’m opting for failing cognitive skills.  Knowing that his cognitive skills had deteriorated, M and Marshall put on false evidence to give the arbitrator something to hold onto. Exploiting the elderly is based on something similar.

I am not an attorney but it strikes me as very dangerous to put on false evidence and to engage in false testimony. The degree to which M and Marshall did this however was startling. There is a tremendous record, which they don’t want us to publish, but that’s too bad. The truth lives in the light, not the darkness.

The third category of evidence was of course the existence of the spreadsheet which M and Marshall maintained showed over-billing. To the arbitrator’s credit he had already found that there was no evidence of over-billing. He did that before his recusal. We put on evidence that the spreadsheet was fabricated. M claimed that he had received it via email, but did not produce the email and of course destroyed his computers. The spreadsheet showed time being written off, which M claimed was inappropriate. Most importantly M testified that none of it was criminal, just inappropriate. His complaint to the ODJ however alleged criminal activity, which he retracted. He did not produce the spreadsheet to the ODJ and the file was closed. The spreadsheet was not corroborated by M. He did not call witnesses. He produced no admissions from anyone on the spreadsheet. He did no forensics work on the computer from which he claimed the spreadsheet was created (and we looked and it could not be found). Nada.

With the rejection of the shutdown and rejection of the termination date, the arbitrator still had to find that M relied on the spreadsheet evidence in good faith and was terminated because of his complaint. And that’s what he did.

The arbitrators cognitive skill deterioration was an issue brought to my attention before the hearing began, by one of my attorneys. He had been told this by a member of the arbitrator’s law firm. I know who that is.

I am going to presume that because of the vast amount of fraudulent testimony and evidence offered by M and Marshall, that Marshall knew of the arbitrator’s condition and exploited it. Left alone and without the benefit of a clerk to help, arbitrator C was overwhelmed and confused. He therefore worked backwards. First he was angry about being called out on a conflicts issue and decided to punish. In the absence of cognitive deterioration, he would not have done that. He was getting pressure to punish and he did. Once he decided how much to punish, the opinion became a stepping stone of justifications to eliminate our overwhelming evidence.

There is nothing that the Oregon State Bar or the Court has done to reverse this tragedy of errors. Quite the opposite, they have done everything they can to assist in covering it up. No one wants to make fun or embarrass arbitrator C, except for M and Marshall…who made that decision some time ago.  However, covering it up does not make the truth go away. Joel’s new lawsuit does not make the truth go away.

In the fable, the scorpion convinces the frog to take the scorpion across the pond. In this case Marshall is the scorpion. She knew the arbitrator was in need of guidance to allow him to render a judgment consistent with the evidence and the truth. Mr. C’s reliance was not well placed. He did not know me. He did know her. And she stung him just like she stung me and her profession.

My attorney’s were guilty of not dispensing of this case 6 years sooner. I hold both Scott Cliff and Jeff Edelson responsible for that.  They were also guilty of not replacing the arbitrator when they learned of the cognitive impairment. There is no one at the Oregon State Bar dealing with cognitive impairment of practicing attorneys until such time a complaint is filed in some form. By then someone is hurt.

The scorpion survives. A lot of people got stung.

There are numerous studies on the cognitive issues in senior judges. I refer you here to one piece titled “Inside the Judicial Mind.”inside-the-judicial-mind.

 

 

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