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Prominent entrepreneur sues prominent judge
The system doesn't care about misjudgments. Misjudgments are in the eye of the beholder (or loser). Our legal system was not created as a way to determine truth or "correct" judgments. It was created to be a system, founded in due process, to bring finality to disputes when people are unable to achieve a final resolution on their own. Anyone who thinks it is more than that, does not understand the system. It aims to be fair, and to apply the law equally to all people - with a blindfold on. That is why the key to due process is an impartial adjudicator. We have no "right" to a smart judge (or justice) or a correct one. There is no "correct." We get one shot at a judge who is free of bias, a shot specially designed by a lawyer for a client, hopefully a talented lawyer who persuades that particular judge to his side's thinking. A higher, appellate court will weigh-in, of course, and may change things, depending on the power of argument and persuasion, and interpretation of the law. Good, honest, sincere judges (which is probably most of them) look at the law and struggle with the "right" legal decision (knowing, with certainty, that the loser will think they are wrong). But this effort by judges to reach the "right" decision depends - and constitutionally so - upon their being unbiased. Once one suspects the judge/justice is biased, all expectations of due process, and a judicial ruling based on the proper influences, fly out the window, and the system is corrupted thereby.— July 21, 2016 7:03 p.m.
Prominent entrepreneur sues prominent judge
Of course, it isn't just stamina. A lot of elements have to come together to create an opportunity to make a dent in the way our "leaders" - in all phases and roles of influence over the lives of "ordinary" people - conduct their positions of trusted power. Abraham Lincoln famously said, "Nearly all men can stand adversity, but if you want to test a man's character, give him power." Sadly, what many of our leaders do with power is shameful. Sometimes, like with Mr. Kinsella and the behavior of the Fourth District's appellate panel that accepted JAMS' request against Mr. Kinsella to review JAMS' trial court loss. It just doesn't look good when public judges give private judges a lift. Especially when public appeals' judges, through the issuance of appellate opinions, have rendered the ADR private judging industry probably among the most lucrative second-careers in our country. Not bad to make a nice living for twenty-five years and then make an obscene living from the reputation you got from that earlier nice living. Published opinions have cemented "arbitration" as a way (maybe "the best way") to resolve huge numbers of consumer disputes, leaving arbitrators in demand and companies like JAMS full of business. Of course, those arbitration clauses also favor the interests of big business in this country, giving them a forum of private judges who are always happy to get an assignment from some high-priced, big-firm lawyers. Published opinions have also given solid immunity protection to private judges, just like it gives to public judges. Thus, the post-retirement, private judging career is both lucrative and essentially liability-free. Such a deal. When a consumer like Mr. Kinsella is allowed under the law to sue JAMS without immunity protection, no appeal's court should come to its aid, especially not one that puts out information on its own website that promotes the business and reputation of JAMS. I mean, honestly.— July 20, 2016 7:20 a.m.
Prominent entrepreneur sues prominent judge
ADR private judges can possibly be hired as arbitrators, judges, discovery masters, mediators - in other words, a broad range of roles requiring specialized talents. Whatever "reputation" brought an ADR retired judge or justice to that second career, he or she may have collected high marks in legal knowledge, temperament, and an understanding of what causes and/or settles disputes. Or, maybe not. Many excellent jurists make lousy mediators, but maybe good arbitrators. There is no "accepted" training that is required of retired jurists to earn upwards of $1 million doing things they may be ill-suited to do. All lawyers (who have been practicing more than 5 years) know that mediation is often the location of brow-beating and intimidation to get a case settled, which for ADR professionals are like notches in the cowboy's belt. Mediators know where their repeat business comes from. Some cater to those who are looking for a mediated resolution that benefits all parties, and they - thankfully - have a reputation for conscionable dealings. Others are part of a game that plays out in the mediation, one that may totally escape the attention of a key participant. Under the law in almost every state, the mediation is a "no holds barred" event, where tight and broad immunity protects every participant from their lies, badgering, and comments - including such behaviors from the mediators or even from the litigant's own lawyers. The California Supreme Court decided a case of huge importance in January 2011. In that case, California's highest court declared, much to the celebration of ADR professionals and lawyers who like to settle cases, that nothing short of a crime can justify allow litigants to complain about whatever is done to them in connection with a mediation. The bottom line of that legal reality is that whatever the "professionals" do in or at the mediation is okay, even if it amounts to taking a wrongful advantage of a litigant (who is supposed to be the reason for the litigation and the mediation). The litigant, more often than not, gets the short end of the mediation stick. The litigant also gets the short end of every stick inside the legal/judicial system because here's the truth: The legal system is almost always about money, and the litigants are the pawns of that money game. Although the law is what law school is all about, feeding everyone at the legal system's trough is what litigation is all about. As we learned from Watergate, "Follow the money." As long as that is true about our legal system, the voices demanding justice according to the law are few and far between. It will be interesting to see what the appellate court does with Mr. Kinsella's state court writ in light of the federal court complaint. Hopefully, the outcome of JAMS' and Sonenshine's writ will be according to the law. That is the only thing, and the right thing, that should matter when it comes to the lawsuit against JAMS and Sonenshine.— July 18, 2016 7:23 a.m.