I want to credit the Yale Law Journal and author Stratos Pahis for his article “Corruption in Our Courts: What It Looks Like and Where It Is Hidden.” You can find that article here Stratos-Pahis-Yale-2009.
However, the brazen abuses identified by Pahis is not what I want to address here today. Yes they are serious. Yes we need more oversight. No, the BAR Association will not play a role in protecting your interests in a credible judiciary. All true.
Exposure is necessary as is a call for recourse. The opportunity for judicial abuse is real.
What I want to address today are issues of bias and in particular bias by the judiciary against business. Why is it more frequent? Because most of our Judges do not ascend to judiciary positions through private practice. Most ascend through government service and most of these candidates through a District Attorney’s or U.S. Attorneys office. They have little experience with how difficult it is to build and sustain a business. They are not learned in economics, marketing, sales and finance.
While the DA office experience may be particularly relevant and in deed helpful in criminal trials, it does little to prepare the Judge for adjudicating business contract and wrongful termination lawsuits. In fact Judges coming through a DA’s office often see business executives as unjustly enriched through their business relationship and a worthy target to redistribute the wealth to those less fortunate. Not only is the enrichment assumption often invalid, but is patently irrelevant. And yet irrelevant is alive and well.
I was in a court room one time observing a case and heard one of my county Judges take a position contrary to the way a statute was interpreted and applied by the department of justice. The Judge claimed she knew the legislator who sponsored the bill and his intent in writing it. Now a lot happens to a bill before it becomes law. It is revised in committee, passed with testimony as to its meaning and intent, regulations issued on how to implement and case law on how to interpret it. This Judge set all of that aside to assist someone with whom she identified. That was 20 years ago and I have seen it many times since.
The American Bar Association Canon on Judicial Ethics can be found here. Consider this Canon that “Courts exist to promote justice, and thus to serve the public interest. Their administration should be speedy and careful. Every judge should at all times be alert in his rulings and in the conduct of the business of the court, so far as he can, to make it useful to litigants and to the community. He should avoid unconsciously falling into the attitude of mind that the litigants are made for the courts instead of the courts for the litigants. ”
Judges are human. They do not always filter their own bias and prejudices. Unexposed and given our attention to other threats to our society, we forget to look at our courts history of bias. As a layman it is difficult to get to know the historical bias of a Judge or arbitrator. Your attorney will not be helpful. You’ll need professional help and its out there. See here.
Business is under attack. And the trial has not started. Be active in your community. Judges run for re-election in most of our states. It’s a political process and as business owners we need to support candidates that have business experience. We aren’t looking for our own version of bias, but rather looking for balance.
This blog is an ongoing, revised and edited account of an arbitration experience this author had over a period of seven years. The arbitrator referred the defendant to his former partner. Neither disclosed this. The arbitrator, then a partner with Schwabe, is a former Oregon State Bar President and former Chairman of the Ethics Committee. His former partner and the defendant’s attorney is Linda Marshall.
Although the defendant destroyed a number of computer programs resulting in the companies shutdown, and layoff of 175 employees a week before thanksgiving. he prevailed.
Although the defendant was terminated a month before he fabricated a complaint, and that evidence was validated through forensic evaluation and witness testimony, he prevailed.
Although the defendant’s fabricated claim was based on a spreadsheet he claimed to have received in an email, he did not provide the email. His evidence was not corroborated. He destroyed his email account. He destroyed his computer. He prevailed.
Although the defendant asked us to investigate the evidence, he would not identify who sent the email to him. No evidence was found. He prevailed.
Although the defendant reformatted a hard drive on which computer programs were maintained, destruction constituting a Computer Fraud and Abuse Act Crime, law enforcement was reticent to pursue because litigation was initiated by both parties. The statute expired before the litigation ended. The defendant prevailed.
Although the defendant committed 13 counts of perjury, destroyed thousands of documents and dozens of computer programs, he prevailed.
I have been sued for bringing this story to you. What’s wrong with you Portland?