Is this unethical on the part of the arbitrator?

[Jr113]

Plaintiff filed his complaint with Arbitrator. Defendant filed his counter complaint. Arbitrator issued a preliminary ruling in favor of the defendant. Shortly after the ruling, the arbitrator suggested that the plaintiff amend his complaint in his answer to the cross complaint to include a specific ground to support the plaintiff's argument. Eventually the arbitrator finds for the plaintiff. Asked on the suggested ground.

 

[quincy]

Plaintiff filed his complaint with Arbitrator. Defendant filed his counter complaint. Arbitrator issued a preliminary ruling in favor of the defendant. Shortly after the ruling, the arbitrator suggested that the plaintiff amend his complaint in his answer to the cross complaint to include a specific ground to support the plaintiff's argument. Eventually the arbitrator finds for the plaintiff. Asked on the suggested ground.

What is the name of your state?

Are you the defendant in this scenario?

 

[latigo]

What is the name of your state? Are you the defendant in this scenario?

Rather shocking if Jr113 is the plaintiff.
________________________

(More worthless trivia.)

Here's one Q. Personal injury action - major injuries - jury trial. (Circa l980) At end of plaintiff's initial closing argument counsel tells the jury: "When I return to close I will discuss with you the matter of the awarding of compensatory damages."

As the attorney (a seasoned trial lawyer mind you) is returning to counsel table to listen to the defendant's closing argument the judge interrupts:

"May I remind you Mr. B that if the defense does not raise the issue of damages in its closing argument that you cannot explore that subject in your rebuttal?"

"Thank you your Honor", said the attorney sheepishly and continued his opening remarks with a lengthy prepared address on the issue of damages.

________________

Did the trial judge act improperly in saving Mr. B's skin? Was he justified in doing so.

In considering the answer one might bear in mind that had B not mentioned the issue of damages until his rebuttal and the defendant were to object the judge seemed to feel duty bound to sustain that objection which would have resulted in a major injustice to the plaintiff. Which could be true in the case at hand had the arbiter not done as he did. And isn't the system all about serving justice, ideally at least.

 

[FlyingRon]

An arbitration isn't a trial (jury or otherwise). Arbitrators are given a little more latitude than judges often are. Still arbitrators are generally ill-advised to make legal recommendations to one of the parties. However, chances are if such recommendations were not made ex parte, it was imcumbant on you objecting to the action at the time.


Depending on what the agreements for the arbitration are will mandate what the follow-up appeals might be.

 

[quincy]

Rather shocking if Jr113 is the plaintiff ...

Yes. It would be unlikely for a successful plaintiff to come here questioning the actions of an arbiter who might have contributed to this success.

My question was actually asked to see why Jr113 was asking his question. Was he a party to the case? Is this homework? A hypothetical? Curiosity?

It would be nice to have Jr113's state name, too.

I always appreciate your thought-provoking "trivia," latigo.

 

[latigo]

Yes. It would be unlikely for a successful plaintiff to come here questioning the actions of an arbiter who might have contributed to this success.

My question was actually asked to see why Jr113 was asking his question. Was he a party to the case? Is this homework? A hypothetical? Curiosity?

It would be nice to have Jr113's state name, too.

Yes, I understood the purpose of your question. Yet genuine or hypothetical I'd be interested in hearing informed comments on the propriety of an arbiter acting in that helpful manner.

What I don't like are judges that try the goddam lawsuit! Thankfully few and far between, BUT we had one in our district, a Naval Academy graduate that had never practice law in his life, and would have starved if he had, that constantly would take more time interrogating a witness than either side. Thank heavens I retired before he was elevated from magistrate to district.

 

[quincy]

Yes, I understood the purpose of your question. Yet genuine or hypothetical I'd be interested in hearing informed comments on the propriety of an arbiter acting in that helpful manner.

What I don't like are judges that try the goddam lawsuit! Thankfully few and far between, BUT we had one in our district, a Naval Academy graduate that had never practice law in his life, and would have starved if he had, that constantly would take more time interrogating a witness than either side. Thank heavens I retired before he was elevated from magistrate to district.

I have seen judges guide the course of an action to avoid flotsam and jetsam, and I can understand a judge who doesn't want a good case jettisoned solely because a litigant is inexperienced or a bit confused on the law.

Whether an arbiter or judge should let a litigant flounder without tossing a lifeline that can help save a case with merit, though, is not an easy call. Most judges prefer that cases are decided on their merits rather than on the knowledge and skill of those presenting the cases ... but it is often knowledge and skill and outmaneuvering one's opponent that wins cases, justice be damned.

 

[FlyingRon]

We are not talking about a judge nor a "god damn" or anything other sort of lawsuit.

This is an arbitration. There are some allowances given.

Believe me. I am an arbitrator. One of the few our organization employs who is NOT an attorney.

 

[quincy]

We are not talking about a judge nor a "god damn" or anything other sort of lawsuit.

This is an arbitration. There are some allowances given.

Believe me. I am an arbitrator. One of the few our organization employs who is NOT an attorney.

Interesting. A man of many many hidden talents.

There are different types of arbitrations. Some are legally binding on the parties and some are not.

Allowances or not, is it ethical for an arbiter to act the role of personal attorney for one of the parties in a dispute? I don't see this as an easy question to answer - especially without knowing more (including the name of the state or country involved).

 

[FlyingRon]

We have no indication that he did this. THe suggestion that the complaint be amended is not necessarily improper.

 

[quincy]

We have no indication that he did this. THe suggestion that the complaint be amended is not necessarily improper.

The arbiter apparently gave the plaintiff the proper grounds to support the plaintiff's amended complaint.

I wonder if Jr113 plans to return to this thread.

 

[FlyingRon]

You don't know that. Often in resposne to a counter-complaint, new issues come up. All you can do is to tell them if they want to press those issues, they need to amend the complaint. No harm, no foul.

 

[quincy]

You don't know that. Often in resposne to a counter-complaint, new issues come up. All you can do is to tell them if they want to press those issues, they need to amend the complaint. No harm, no foul.

Well actually, we have been told very little here.

The defendant in this arbitration might see foul and harm and, because we don't know much about the arbitration or the arbiter, there might in fact be foul and harm.

More needs to be known, starting with the state name.

 

[latigo]

You don't know that. Often in response to a counter-complaint, new issues come up. All you can do is to tell them if they want to press those issues, they need to amend the complaint. No harm, no foul.

No, offering advice as to how to plead legal issues to meet the arbiter's predisposition as here is NOT "all you can do"! Another choice is to avoid the perception, real or imagined, of partiality.

 

[quincy]

No, offering advice as to how to plead legal issues to meet the arbiter's predisposition as here is NOT "all you can do"! Another choice is to avoid the perception, real or imagined, of partiality.

An arbiter is, by definition, a NEUTRAL third party. Whether guidance of the sort apparently provided the plaintiff here shows partiality or not is a question mark without additional details. If I were the defendant, though, I too would be questioning the decision.