First, let me make it clear from the outset that this blog is my product, using documents that are both public and licensed from my now defunct corporation. I will use “I” a lot to describe my experiences. I will also use “we” or “us” to generally refer to the team of people that helped my company, as well as my company “NDT”.
What happens when an arbitrator fails to disclose a prior working relationship with one of the attorneys in a case, a conflict that most reasonable people would be concerned with? When the attorney also does not disclose the past relationship, one that spanned a 14 year period, it is reasonable to become suspicious. I did. I was. And my fears were realized.
What happens when an employee files a complaint alleging wrongdoing by his employer followed by a retaliation act by that very employee, the act designed to destroy the employer’s business? For symbolic purposes lets say that the employee complained of unsafe equipment being used by him in the performance of his employee duties and in his last day set the barn housing the equipment on fire. There were lots of witnesses.
So now we have a whistle blowing claim made by an employee and he is entitled to protections. Those protections we want and do respect. But we also have criminal conduct by that employee and have 200 jobs to protect. This blog is not intended to embarrass that employee or anyone else.
I cannot begin to address the arbitrator’s failure to execute his duty to the group without first outlining the evidence. That will require outlining the employee’s bad acts. Periodically, I’ll summarize the evidence the arbitrator chose to ignore and layer in the rules of conduct for the arbitrator, attorneys and judges.
My first draft of this blog, a product of 20 chapters and 20,000 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 perceived 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 no evidence of interference by a Judge, although that question was explored. 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 do so sparingly 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. I remain critical of his decisions and most of all his decision to remain an arbitrator in a case he was not prepared to discharge with fairness.
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 a Judge recusing himself post judgment in an unrelated case 10 years earlier, 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.
And now more than 96 chapters later, so little of this blog is dedicated to the arbitration itself but rather has evolved to be a broader real life reciting of the consistent, predictable, irreverent and unethical behavior of the attorneys who entered the series of cases, 5 in all, spawned first from the arbitration.
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.