Fake whistle blowing destroys a small business’ reputation, at least for a time. Defending against it in a socially liberal community is costly and exploited. This is one of my stories designed to shine a light on one of my prolonged litigation experiences. In fact it still is going on, some 13 years now.
My first draft of this blog, a product of more than 70 chapters and 70,000 words, was an analysis of an arbitration that went terribly wrong. The evidence was presented and I offered my analysis of its meaning and credibility. The why it went wrong focused on collusion and corruption, supplemented by a heavy dose of interference by a senior federal Judge. I held opposing counsel, the arbitrator and the Judge responsible for the travesty.
Over time however I realized the how and why was decidedly more complicated. There was still interference. Opposing counsel knowingly put on false evidence. The former employee and defendant, against whom we were litigating, destroyed key evidence and offered up false testimony. But the story, while sad and tragic, has become less about the failure of evidence and more about attorneys unethically exploiting those around them.
The arbitrator, the triar of the case, may have been as much a victim of this arbitration as was my company (the plaintiff), minus the hundreds of thousands of dollars of legal fees we paid of course. In my first draft of the blog I identified the arbitrator by first and last name. I will not this time.
At the time of the arbitration the arbitrator was approaching 80 years of age. That was six years ago. Mandatory retirement age for State Judges in this state is 75. There is a reason for that. A case or arbitration that takes a day or so is probably not much of an issue, but it takes a lot of intellectual effort, organization and stamina to arbitrate a case taking ten days. There are no law clerks to help you. There are no other judges down the hall, with whom to discuss legal issues. An arbitrator essentially lives on a metaphorical island.
I believe our arbitrator in this case was and is a real gentlemen and a genuinely good man. He and I have lived in the same small bedroom community for 25 years. He is older than my father. Our children went to the same schools and unbeknownst to me we even attended the same church for a while. He is the former president of the Oregon State Bar and I’m sure that during his tenure brought much-needed moral guidance to an organization that sorely needed it then and needs it now. He was for years on the State Bar’s disciplinary board responsible for evaluating, suspending and disbarring those attorneys committing ethical violations. He has provided a lot of services pro bono and volunteered for the benefit of his profession and fraternity. Let me therefore give him the credit that he deserves.
However, the arbitrator was astute enough at the filing of the post hearing briefs to easily identify facts not in evidence. Clearly he considered unexamined evidence including a transcript of Judge Jones recusing himself post judgment, a CD not in evidence but provided to the arbitrator and a video also not in evidence but provided to the arbitrator. So the arbitrator passed the test of consciousness of evidence to be considered. But he abandoned our properly admitted evidence and considered all of the defendants evidence, even that which should not be considered. So clearly cognitive deterioration effected the outcome, but so did anger, pride and abuse of discretion.
The attorney and former partner who assessed an opportunity to exploit the arbitrator’s cognitive changes will be getting more of my attention. My own attorneys who exploited and prolonged the arbitration into a seven (7) year event will also get a fair dose of review. The subsequent attacks to me for writing the blog, book and screenplay will be addressed.
The first duty of society is justice. Those words were penned by Alexander Hamilton. Those very words adorn the entry wall of our majestic federal courthouse. This is not a story of justice. Quite the opposite. Even in light of empathy for the arbitrator, it remains a story of corruption. Read on.