Outside Counsel

We should be on trial right now, but last week, at the eleventh hour, the trial judge brokered a deal: rather than try the matter before a jury, the parties agreed to submit the case to an arbitrator. When you arbritrate, you essentially waive any right to appeal, and the rules of evidence are relaxed somewhat, so that you can use affidavits instead of live testimony, for example. There are advantages and disadvantages to arbitration, and I wouldn't use it in every case, but in this case it felt like a good fit. Part of the deal in this case was that the parties agreed that the upper end of the amount recoverable would be fixed at a particular figure; in exchange, the lower end was also fixed, so that the possibility of an outcome where the plaintiff recovered nothing was eliminated. We agreed to use a single arbitrator, and we agreed that counsel for the defendant would propose three names. If the names proposed were unacceptable to us, we could counter-propose; if none of those names were acceptable to our adversary, then the judge would assign someone.

I had never had any prior dealings with this attorney, but in our conversations leading up to this point he had impressed me as being somewhat unpleasant, and kinda arrogant. These are not unusual personality traits in our glamour profession, so I just took him at face value. He sent a letter proposing potential neutrals two days ago, and we found ourselves rather taken aback at the names on his list. Usually one will try to suggest arbitrators that do both plaintiff's and defense work; but sometimes the proposed individuals are more associated with one side of the fence than the other, and when that happens usually the leanings of the people proposed are along the lines of the leanings of the proposer. These names were (a) a very respected woman who I principally think of as a defense lawyer, and (b) two guys from one firm who I think of as being entirely oriented towards the plaintiff's side. I have had dealings with both of them, I have always found them to be honorable, and we couldn't for the life of us imagine why our opponent had proposed them.

To her everlasting credit, my partner was made very uneasy by this. She came in today and said that she'd tossed and turned all night over it, and wanted to find out why these two lawyers had been nominated, notwithstanding their well known bias towards our side of this sort of case. I told her she was over-thinking it, but eventually agreed to make a phone call to do a little scouting. While I was doing this, she was Googling. It took two calls, actually. The first guy I talked to basically recommended that I count my change after any dealing with our adversary. I almost didn't make the second call. "PBJ would never do anything to hurt BLT," I was told when I had explained what I was calling about. "They are very good friends." My informant was less clear about the relationship between the other lawyer and our adversary, but advised that they were certainly friendly, and that the nature of the relationship between our opponent and his partner was probably enough to shade him away from his usual inclinations. Meanwhile Kate's Googling turned up a photograph in an old Bar Journal showing the three of them together, holding drinks at some bar event. It was a honeypot-- a trap. Just like they say, if it seems too good to be true, it probably is.

Funny how these things go. I don't know if either of the two lawyers that were proposed would have taken the assignment-- they might have more going on in the scruples department than that. The man who taught me this work used to tell me "lawyers are lazy," and my lazy assumptions could have badly compromised our case. Uncovering this information wasn't hard, but I very nearly didn't bother to make the two phone calls that changed things. I think this is pretty close to sharp practice, but calling him on it is probably not worth it: he was within the rules, and it fell to us to make, or not make the appropriate inquiries. That's what the adversary system is all about, on some level. Sure, it's cheating a little, trying to gain an advantage, but is it so much worse than anything else anybody else does to get the best result they can for their client?

I'm uncomfortable with that sort of thinking. "Keep it fair" is how we try to do this sort of work, and although I am not above working hard to cast my client's case in the best possible light (and cast my opponent's case in the worst), I don't think I'd ask a friend to do what was proposed here. Sleazy, but now we have the measure of him, and that shifts the advantage back to us.