As former Minneapolis mayor, R. T. Rybak, persuasively has argued, police unions frequently undermine efforts to reform policing here and elsewhere.
Now a dispute has emerged about arbitrators decisions about police officers who had been terminated for misconduct.
A StarTribune journalist examined the record of terminated Minnesota police officers getting their jobs back in arbitration. “More than 80 police officers across Minnesota were fired and fought their discharge in arbitration over the past 20 years. About half got their jobs back,” and “the true figure could be slightly higher” because “Minnesota’s public records laws prohibit releasing any information at all when arbitrators overturn a decision to fire a cop without imposing any type of discipline. Such total exonerations, while uncommon, are erased from public record.”
The current Minneapolis Police Chief, Medaria Arradondo, shares this view of arbitration. He said, ““There is nothing more debilitating to a chief from an employment matter perspective, than when you have grounds to terminate an officer for misconduct, and you’re dealing with a third-party mechanism that allows for that employee to not only be back on your department, but to be patrolling in your communities.” This is why he has withdrawn from further contract negotiations with the union and why he wants the Minnesota Legislature to pass legislation to reduce the scope for arbitration of terminated officers.
This harsh judgment of such arbitrations needs qualification, said the StarTribune journalist. “Some [termination] cases never go to arbitration, and some are negotiated and classified as resignations or retirements.”
A stronger defense of labor arbitration was provided by Stephen F. Befort, a professor at the University of Minnesota Law School and a part-time labor arbitrator. He starts by explaining that labor arbitration is “a due process review of discipline and discharge decisions. The process entails an informal evidentiary hearing before a neutral decision maker. Minnesota law currently requires that all public sector collective bargaining agreements provide for the binding arbitration of disciplinary disputes. The arbitrator’s task is to determine whether the employer had just cause to support the discipline or discharge decision.”
In this process arbitrators “are individuals who have developed expertise in labor relations and personnel matters. Federal and state agencies maintain rosters of arbitrators who meet certain qualifications. Arbitrators are not appointed by these agencies, but instead the parties to the dispute (i.e. municipalities and unions) mutually select one or three arbitrators from a roster to hear and resolve the dispute.”
Befort then reports that Minnesota arbitrators upheld discharge decisions by all kinds of employers (not just police) in 52 percent of over 2,000 such cases over 20 years while employees won reinstatement and full back pay in only 20 percent of the cases. The other 28 percent of the cases were “’split’ decisions in which discharges were reduced to some lesser form of discipline such as suspension without pay.” These statistics came from a 2015 book by Befort and two faculty colleagues which was “the largest empirical study of arbitration outcomes ever undertaken.”
Moreover, Befort claims that the above statistics are similar to those for police arbitration over a four-year period according to an article by one of his University of Minnesota Law School students that was published in an American Bar Association journal. These statistics were upholding police officers terminations, 53%; overturning such terminations, 23%; and split outcomes, 24%.
Finally Befort points out that if there were no labor arbitrations, the alternatives are leaving the employers’ decisions unreviewable or the more expensive and slower court litigation, neither of which is desirable.
As a retired attorney who specialized in business litigation, I was intimately familiar with the costs (beneficial to law firms and lawyers) and delays in resolution in such court litigation. Moreover, I became aware of the frequent adverse psychological impact of such litigation on the parties to the disputes. Therefore, I became an advocate for alternative dispute resolution (ADR), especially mediation but also arbitration, and served as Chair of the Minnesota State Bar Association’s Alternative Dispute Resolution Section.
I am amazed by the broad variety of his experience–insurance defense work in personal injury cases as he was starting out and then plaintiff’s personal injury and other types of cases over the rest of his career. Most were in state and federal courts in his home state of Minnesota, but he also has handled cases in the courts in 14 other states. Moreover, he has been a lawyer in over 175 completed jury trials or an average of about four per year.
In an era when most civil cases are settled, that is a truly remarkable accomplishment. This is shown by the statistics for all civil cases for all the federal district courts for Fiscal 2013 (10/01/12–09/30/13):
Pending at 09/30/12
Filed FY 2013
Terminated by trials FY 2013
Terminated by other means FY 2013
Terminated subtotal FY 2013
Pending at 09/30/13
In other words, only 4.3% (11,306/255,260) of all the federal court civil cases that were terminated in FY 2013 were terminated by trial. I believe similar statistics exist for other years for the federal courts. The same is true, I believe, for most state courts.
Becoming a Capable Trial Lawyer
Stageberg starts by saying that finishing law school and passing a bar exam do not by themselves make anyone ready to conduct a civil trial (p. 20-21). Instead, it takes actually trying cases and learning from experience. This would be aided by having an experienced mentor, something he did not have (p. 27).
As a retired lawyer reflecting on my first years of practice nearly 50 years ago, I wholeheartedly agree.
Like almost all law students in my first year I had civil procedure, an essential tool of a trial lawyer and litigator, but it was book-learning, and it seemed like ancient history three years later when I was starting to practice and trying to learn how civil procedure worked in the “real world.”
Moreover, there is not a general overarching set of procedural rules that apply in all courts in the U.S. There is the Federal Rules of Civil Procedure that govern all civil cases in all the federal district courts plus local rules for each of the 94 such courts. The local rules with which I am most familiar is the set for the District of Minnesota. In addition, each federal district judge often has his or her own additional rules or practices.
Each state in turn has its own set of civil procedural rules. Thankfully for the trial lawyer, most states have adopted rules modeled on the Federal Rules of Civil Procedure, but there are usually some differences between the two. Here I reference the Minnesota Rules of Civil Procedure. The states also frequently have an additional set of rules; in Minnesota it is called the General Rules of Practice. Again the lawyer also needs to be aware if the individual trial court judge has other rules or practices.
Trial lawyers also need to be intimately familiar with the jurisdiction’s law of evidence. Now there is the Federal Rules of Evidence for trials in the federal district courts, and there are separate evidentiary rules in each state. Again the trial lawyer is thankful that today they are modeled on the Federal Rules of Evidence; an example is the Minnesota Rules of Evidence.
Another body of law needs to be in the trial lawyer’s tool kit: conflict of laws. Because many cases involve facts in different states or different countries, there has to be a set of rules or principles to determine which jurisdiction’s substantive law applies. Each state has its own body of such law, and the rules applicable in federal court cases are even more complex.
All of these areas of law—procedure, evidence and conflicts—are in addition to the substantive law that determines whether or not there is liability and the appropriate remedy. Frequently the trial lawyer will look for guidance on these substantive issues to other lawyers in his or her law firm with appropriate expertise. For example, I handled a case raising issues under the complex federal Employee Retirement Income Security Act (ERISA), for which other lawyers in the firm who specialized in that area provided the substantive legal analysis.
For all of these areas of law the trial lawyer needs to keep abreast of any amendments to the rules and statutes and their interpretations by the courts.
As a result, if the lawyer is handling or trying a case outside his or her home state, the lawyer is required by court rule to associate with an attorney of the bar of that jurisdiction, and such co-counsel needs to be knowledgeable about all these issues in that jurisdiction. Stageberg learned this lesson when his local counsel was not so qualified (p. 188).
Another requirement for the trial lawyer is developing the skills of using the courts’ discovery rules plus independent investigations to discover the facts relevant to the case and to assemble the evidence for the case, including the retention of expert witnesses when appropriate.
All of the foregoing knowledge is necessary before you enter the more complex and challenging trial courtroom. There the lawyer needs to develop the skills of oral advocacy, of asking non-objectionable questions, of making appropriate objections, and of making tactical and strategic decisions, all in the pressure cooker of a trial courtroom when there is an opposing lawyer who is trying to counter whatever you do and defeat you in the courtroom battle.
Yes, indeed, learning how to be an effective trial lawyer takes a lot of learning by doing.
The Stress of Being a Trial Lawyer
Stageberg tells us, “Trying lawsuits is very strenuous, high-pressure occupation. Working thirteen or fourteen hour days for the duration of the trial is . . . very hard work” (p. 382).
Amen! From my much more limited experience of actually trying cases, I concur, and a prior post discussed some of the aspects of this stress.
Indeed, the mere foregoing recital of the things that have to be learned by a trial lawyer should make it self-evident that trial work is very stressful and very hard work. But wait, there is more.
When you are in the courtroom itself, even though that may “only” be three or so hours in the morning and another three or so in the afternoon, your mind is continuously multitasking. Here are a few of the questions that are running through your mind when you are examining your own witnesses. What did the witness say? How do you respond to any objection? What is the next question? Are you covering the essential points for the plaintiff’s claim or the defendant’s defense? Have you covered all you wanted to do with this witness? Have you introduced and offered into evidence all the exhibits you planned? How is the judge reacting to the testimony? The jury? Who is the next witness? Do your plans for that witness have to be changed in light of what this witness is saying?
The opposing lawyer has all these questions running through his or her mind plus others. Is the question objectionable, based upon the law of evidence? If so, what objection and whether and how to state it? Is the witness’ testimony consistent with what he or she said in a deposition or an affidavit, both under oath, or in a letter, memo or email or other document? How should I cross-examine this witness? Then conducting the cross-examination puts you in the shoes of the lawyer described in the prior paragraph.
Moreover, before you start in the courtroom in the morning, you are also multitasking. Preparing the witnesses who will be testifying that day. Anticipating what the opposing counsel will do or say. Changing and adjusting the plans you had made before the trial started. Checking in with your assistants on current and new assignments. This process continues during any breaks during the day in court and after you leave the court to prepare for the next day. Thus, it is easy to have 14 or more billable hours for each day of trial. (This shows why trial is so expensive and why the cost of continuing litigation is a frequent factor in settling cases, before, during or after trial.)
You also have to find time during trial for bathroom breaks, meals and sleep. Sleep does not come easily as your mind races over all of the decisions you made that day and those you will have to make the next day. As a result, your sleep suffers and you get exhausted. You need to eliminate all other demands on your time, including commuting. For example, in my last trial in state court in downtown Minneapolis in January 2001, I stayed in a hotel close to the courthouse in order to eliminate the daily seven-mile commute from my home and the risk of winter storms and traffic making such commutes even more difficult and time-consuming.
Practical Tips for the Trial Lawyer
Stageberg emphasizes that the attorney should never believe everything a prospective or actual client says and that a new client should not be accepted before the attorney has done some independent research about the prospective client (p. 327). I recall a case for a regular client of the law firm when I should have followed this precept. The client’s distributorship had been terminated by the manufacturer, and after obtaining the client’s file for the distributorship, I commenced a lawsuit for breach of contract and other alleged wrongs only to have the manufacturer’s lawyer provide me with a copy of the written contract (which I had never seen) that torpedoed the lawsuit.
Stageberg frequently tells us of lessons learned about trial practice as he tried more and more civil cases. Here are some of them:
“Don’t take loser cases to trial. Settle them.” (p. 23)
Evaluating pre-trial settlement offers is difficult. It requires evaluation of the strength of all the witnesses and other evidence as well as the lawyers involved. (p. 43)
Juries can go off on tangents so try to provide careful explanations of photographs and other exhibits (pp. 21-22). Be honest with the jury. Do not downplay the problems with your case (p. 306).
Trying to “read” a jury’s reaction to the testimony and to you as attorney is very difficult and easy to mistake (p. 23). Also avoid prejudging a jury based on stereotypes (p. 45).
An expert’s testimony about his or her opinions requires the prior establishment of foundation for that testimony (P. 22).
The lawyer needs to know how to pronounce the unusual names of witnesses and places (p. 51). The lawyer should also be careful about what vehicle he or she drives to court, not wanting to offend U.S. workers by driving a foreign vehicle (p. 50).
The lawyer needs to make a trial court record for anything that might become an appellate issue, including the judge’s inattentiveness (pp. 91-92).
Always try to anticipate the unexpected and maximize your control of the situation (p. 126).
Eyewitness testimony is not always reliable (p. 129). In certain cases, the lawyer should make his or her own inspection of the accident or other important scene in the case (p. 133). Having a jury inspect such scenes can also be a very effective tool for the lawyer (p. 210).
Especially in personal injury cases, the plaintiff and his or her attorney needs to be aware that insurance companies frequently conduct surveillance of the plaintiff (p.142).
The attorney’s presentation of the essentials of a case to a focus group or mock jury can greatly assist the attorney in revising the case to make it more effective in the court (150-57).
The attorney needs to counsel the client to be careful on what he or she says and their appearance in the presence of the jury or individual jurors in and out of court (p. 214).
Stageberg has harsh words about some lawyers from large law firms who represented clients in litigation, but did not have much actual trial experience (pp. 245-50). In at least one instance Mark, known as an experienced trial lawyer, bluffed about his eagerness to go to trial and thereby induced the defense counsel to make a substantially better settlement offer (248-50).
When I encountered Stageberg in a case, I was a “litigator” from a large law firm with much less actual trial experience than him. I do not recall if he tried this “trick” with me, but I know we did not accept any of his pretrial settlement demands or substantially change our counteroffers. As a result, we went to trial and only settled after the trial of the liability issues and before the damage phase of the trial. Moreover, although Mark is critical of pretrial motions (p. 245), the dismissal and summary judgment motions that I made were granted and his motion to add punitive damages was denied, all substantially reducing the ad terrorem nature of his case. (A prior post discussed my disagreement with some of the things Stageberg said about this case.)
Trials by the Court
Trial by jury, or course, is not the only way U.S. courts try civil cases. In the federal system, parties may waive their constitutional right to jury trial under the Seventh Amendment and have a single judge hear all the evidence and render a decision in that case.
This is another tactical and strategic decision for the client with the lawyer’s advice. For a lawyer like Stageberg with extensive jury trial experience facing other lawyers who probably have less jury experience, Stageberg would favor trial by jury.
I, however, tended to favor trial by the judge unless there was some reason to doubt the ability or fairness of the judge. In addition, the lawyer usually knows a lot about the judge’s record and manner whereas nothing is known about the abilities and skills of an unknown jury. Finally I often believed that a judge can better understand the complexities of a case than a jury.
In 2013 (long after my retirement from lawyering), I was called for jury duty in Minneapolis and was on two panels of prospective juries, but as anticipated, I was stricken from both by preemptory challenges. Trial lawyers generally do not want other lawyers to serve as jurors on suspicion that they will be too dominating in the jury’s deliberations. But it was an educational experience to see the process from a different angle and to appreciate and respect the seriousness of the prospective jurors and the trial judges.
I did not find a discussion of this issue for the trial lawyer in the Stageberg book. This is merely an observation, not a criticism.
Alternative Dispute Resolution (ADR)
The foregoing discussion by itself should demonstrate the high cost of litigation through trial. Given the legitimate public interest in resolving disputes as quickly and as cheaply as possible, many of our courts have adopted what is often called court-annexed ADR (Alternative Dispute Resolution).
For example, in Minnesota state court cases, pursuant to General Rules of Practice 114.04, the parties are required to confer promptly after the commencement of a case on various matters, including “the selection and timing of the ADR process,” and if the parties do not so agree, “the court, at its discretion, may order the parties to utilize one of the non-binding processes, or may find that ADR is not appropriate.”
A similar rule exists in Minnesota’s federal district court. Its Local Rule 16.5(b) provides that with certain stated exceptions, “the court must schedule a mediated settlement conference before a magistrate judge. The court, at a party’s request or on its own, may require additional mediated settlement conferences. Each party’s trial counsel, as well as a party representative having full settlement authority, must attend each mediated settlement conference. If insurance coverage may be applicable, an insurer’s representative having full settlement authority must also attend.” In addition, Local Rule 16.5(c) states that the court may order the parties to participate in other ADR procedures.
Independent of these court measures, the parties to contracts often agree to submit their disputes to arbitration or another form of ADR under the rules of a private agency that will administer the process such as the American Arbitration Association. These rules are similar in many ways, but not identical, to the relevant court rules of civil procedure, so the lawyer needs to be knowledgeable about these rules too. These proceedings are private and hopefully shorter than court trials. But the arbitrators or other neutrals are paid by the parties, which adds another expense to the cost of dispute resolution.
I spent a lot of time promoting ADR in the Minnesota State Bar Association and elsewhere. One of my motivations was to reduce the estrangement of parties that is often a by-product of litigation. I also acted as an arbitrator, drafted contractual arbitration and other dispute resolution provisions for other lawyers in the firm and was a lawyer for parties in arbitration.
I did not see a discussion of this aspect of the life of a trial lawyer in Stageberg’s book. Again, this is merely an observation.
This book is entertaining and educational for anyone interested in the contemporary American civil justice system. It also is most useful for someone who is thinking about becoming a trial lawyer or just starting down that long winding road. I thank Mark for sharing his career with the rest of us.
The words and music about vocation at the January 26th and February 9th worship services at Minneapolis’ Westminster Presbyterian Church have inspired my general thoughts about vocation set forth in a prior post. Now I reflect on my own vocations.
Until I was in my early 40’s, I had no religious beliefs after high school and no sense of vocation.
That started to change in 1981 when I joined Westminster and embraced what I now see as my first vocation: serving the church as a ruling elder (1985-1991) and over time as an active member of several of its committees (Spiritual Growth, Communications and Global Partnerships). More recently I joined its Global Choir. After all, a new member covenants to find “a definite place of usefulness” in the church.
For 10 years (2003-2013) I served as chair of Global Partnerships, which supervises the church’s partnerships with churches and other organizations in Cuba, Cameroon, Palestine and for a time in Brazil. This lead to my going on three mission trips to Cuba, one to Cameroon and another to Brazil. As a result, I established personal friendships with people in those countries as part of our collective, and my personal, vocation of being present with our brothers and sisters in other parts of the world and standing in solidarity with them. I also learned about the history, culture and current issues of those countries. This in turn lead to a strong interest in promoting reconciliation between the U.S. and Cuba and Cuban religious freedom, and as a U.S. citizen I have endeavored to do just that.
This sense of religious institutional vocation also encompassed my serving on the Board of Trustees of United Theological Seminary of the Twin Cities for another 10-year period (1988-1998). In my small way, I helped nurture future ministers of the church. In the process I got to know interesting members of the faculty, administration and board and about the life of U.S. seminaries.
I, however, initially struggled with how to integrate my newly reclaimed religious beliefs and my life as a practicing lawyer, and over the years found ways to share this struggle with others, especially with my fellow lawyers.
One way I discovered a vocation in the practice of law resulted from experiencing the bitterness and lack of reconciliation between opposing parties in litigation and, too often, as well between their lawyers, including myself. This experience lead in the late 1980’s through the 1990’s to a personal interest in, and writing and speaking about, alternative dispute resolution (ADR), one of whose objectives is resolution of such disputes more amicably, and to my active participation in the ADR Section of the Minnesota State Bar Association.
Another and more powerful vocation involving my professional life emerged when a senior partner of my law firm in the mid-1980’s asked me to provide legal counsel to the firm’s client, the American Lutheran Church (“ALC” and now the Evangelical Lutheran Church in America). The problem: how should the ALC respond to information that the U.S. immigration agency (INS) had sent undercover agents into worship services and Bible-study meetings at ALC and Presbyterian churches in Arizona that provided sanctuary or safe places to Salvadorans and Guatemalans fleeing their civil wars.
The conclusion of this engagement was the ALC and the Presbyterian Church (USA)—my own denomination—jointly suing the U.S. government to challenge the constitutionality of such spying. Eventually the U.S. district court in Arizona held that the U.S. Constitution’s First Amendment “free exercise” of religion clause protected churches from unreasonable government investigations.
U.S. immigration law was in the background of this case, but I did not know anything about that law. I, therefore, sought to remedy that deficiency by taking a training course in asylum law from the Minnesota-based Advocates for Human Rights.
I then volunteered to be a pro bono lawyer for a Salvadoran seeking asylum in the U.S. because of his claim to a well-founded fear of persecution in his home country because of his political opinions and actions opposing its government. Again, my initial motivation for this action was to be a better lawyer for the ALC.
I discovered, however, that being a pro bono asylum lawyer was my passionate vocation while I was still practicing law and continued doing so until I retired from the practice in the summer of 2001. In addition to El Salvador, my other clients came from Somalia, Afghanistan, Burma and Colombia. I was able to assist them in obtaining asylum and thereby escape persecution. In the process, I learned more about asylum law and other aspects of immigration law as well as the horrible things that were happening in many parts of the world. I was able to use my experience and gifts in investigating and presenting facts and legal arguments to courts and officials and came to see this as one of the most important and rewarding vocations I have ever had.
In the process of this asylum work, I also learned for the first time about the humbling and courageous ministry and vocation of Salvadoran Archbishop Oscar Romero, who was assassinated in March 1980 because he repeatedly spoke out against human rights violations in his country. He now is my personal saint. I also learned about the important and courageous work in that country by the Jesuit priests and professors at the University of Central America, six of whom were murdered in November 1989 for the same reason, and they too have become heroes for me.
Another Salvadoran I met on my first trip to that country enriched my sense of the potential for vocation in practicing law. He was Salvador Ibarra, a lawyer for the Lutheran Church’s human rights office, who spoke about the joy he experienced in his work.
After retiring from the full-time practice of law in 2001, I served as an Adjunct Professor at the University of Minnesota Law School (2002 through 2010) to co-teach international human rights law. I thereby hoped to encourage law students to become interested in the field and to include such work in their future professional lives. Thus, this became another vocation with the side benefit of enabling me to learn more about the broader field of international human rights.
I chose another retirement in 2011, this time from part-time teaching, in order to start this blog about law, politics, history and religion. I came to see it as yet another vocation. I think it important to share my religious experiences and beliefs in the midst of active consideration of legal and political issues and demonstrate that it is possible for an educated, intelligent individual to have such beliefs.
In 2011 as a member of the planning committee for my Grinnell College class’ 50th reunion. I thought we should do more to remember our deceased classmates than merely list their names in our reunion booklet. I, therefore, suggested that if each committee member wrote five or six obituaries, we would have written memorials for all of our departed classmates. However, no one else volunteered to participate in this project so I did it all myself except for a few written by spouses. After the reunion, I continued to do this when the need arises.
Although this project required a lot of work, I came to see it as pastoral work and rewarding as I learned about the lives of people, many of whom I had not really known when we were together as students. I drew special satisfaction when I learned that a classmate who had died in his 30’s had two sons who had never seen the College annuals that had a lot of photographs of their father as a physics student and co-captain of the football team, and I managed to find a set of those annuals which were sent to the sons. I thus came to see this as a vocation.
Many of these vocations resulted from invitations from others to do something, which I accepted. Initially the invitations did not seem to be calls for a vocation, and it was only after doing these things and reflecting upon them that I saw them as such.
The concept of vocation often seems like doing something for others without any personal rewards other than feeling good about helping others. I, therefore, am amazed by the many ways I have been enriched by these endeavors. I have learned about different areas of the law, different countries and the lives of interesting people, living and dead.
I feel blessed that I have discovered at least some of the work that God has called me to do, in Frederick Buechner’s words, “the work that I need most to do and that the world most needs to have done.”
Or as Rev. Hart-Andersen said on February 9th, “When Jesus calls we get up and go, stepping forward in the direction of the one calling us. Being a follower of Jesus is not a destination . . . . Being called to follow Jesus is a way of life, a pilgrimage on which we embark together.”
As previously noted, I have a strong professional preference for mediation and arbitration as methods for resolving disputes between manufacturers and distributors or dealers. This assumes that the parties have tried and failed to resolve their disputes through direct negotiation, which is the least expensive and least time-consuming method and which enhances the possibility of amiable future relationships.
The reasons for preferring negotiation, mediation and arbitration hold as well for commercial disputes between entities in different countries.
Mediation (or conciliation as it is called in the international arena) where a neutral third-party assists the disputants in trying to settle their disputes is the first option after negotiation. This was my preferred dispute resolution method because it empowered the parties themselves to settle their disputes, because it opened the way for creative solutions that were not possible in court or in arbitration and because it was the least expensive option.
Only if mediation (or conciliation) failed, would such a contractual provision call for submitting the dispute to arbitration under one of several general sets of arbitration rules where the arbitrator resolves the dispute. Arbitration was preferred to court litigation because the former eliminated the expensive pre-trial discovery and other processes of the court and because the parties participated in selecting the arbitrator who was seen as a safer decider than an unknown judge or jury. On the other hand, the costs of international arbitration are significant, especially with three arbitrators from different countries and international travel.
Moreover, there are additional reasons why arbitration is a preferred method for international commercial dispute resolution. First, there is fear of prejudice against the foreigner by a court or jury of another country. But such fear is less with an arbitrator or arbitrators that the sides help to choose. Second, there is a multilateral treaty that makes arbitration awards (the final decision in an arbitration) easier to enforce in other countries. In contrast, it is more difficult to enforce one country’s courts’ final judgments in other countries. This is very important. For example, an arbitration award or a court judgment might hold the defending corporation (the respondent or defendant) liable to the complaining corporation (claimant or plaintiff) for $1 million for breach of contract, and most of the respondent or defendant’s assets might be in a different country than where the arbitration or litigation took place.
At Faegre & Benson, I frequently drafted dispute resolution provisions for international contracts prepared by other lawyers in the firm. In addition, I was counsel for two foreign companies in international arbitration proceedings under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL). Each of these cases illustrated interesting facets of such proceedings.
Turkish distributor vs. U.S. (Minnesota) manufacturer.
In the first case, I represented the Turkish terminated distributor of medical devices that were manufactured by a Minnesota company. Their written agreement, written by Minnesota lawyers, called for Minnesota law as the governing law and arbitration in Minnesota under the UNCITRAL Arbitration Rules with three arbitrators and with English as the language of the arbitration.
Under Article 5 of the UNCITRAL Rules there are three arbitrators unless the parties agree to have only one arbitrator. When there are three arbitrators, the claimant (here, the Turkish company) selects the first arbitrator; the respondent (here, the Minnesota company) picks the second; and then these two arbitrators select the third and presiding arbitrator. Although the first two arbitrators are selected by the two parties, the arbitrators are to be independent, not representatives or advocates for the parties that selected them.
My Turkish client and I thus had to go first in selecting an arbitrator. My ideal candidate was a Minnesota lawyer from Turkey who was bilingual in English and Turkish and who knew Turkish business customs and circumstances, but not surprisingly I could not find such a person. I then called the Turkish consulate in Chicago and Embassy in Washington, D.C. for recommendations for such an arbitrator. I eventually found a U.S. (and Turkish) lawyer in New York City who was born in Turkey, who was bilingual and who knew its business customs and circumstances, and the Turkish company appointed him as arbitrator. The Minnesota company then appointed a professor from a Minnesota law school as the second arbitrator. The two of them then appointed a retired chief justice of the Minnesota Supreme Court as the third and presiding arbitrator.
The hearings were held in a conference room of the Minneapolis office of the presiding arbitrator in the IDS Tower and lasted several days. The Minnesota company was represented by its in-house lawyer and two lawyers from its outside law firm while I was by myself for the Turkish company. (This was a role reversal for me.) The atmosphere was tense in the conference room. The husband of the couple who owned the Turkish company had been an arbitrator in his own country where things were handled much differently, and yet he enjoyed the battle in the Minneapolis conference room. His wife who was also involved in the business and was a witness, however, was appalled by the hostile questioning of the other side’s lawyer.
Several weeks after the hearing, I received in the mail the two-page award of the arbitrators requiring the manufacturer to pay a sum of money to the Turkish company. Thereafter the money was paid, and the case was over. My client and I were very pleased.
Under Article 32(3) of the UNCITRAL Arbitration Rules, the arbitrators are required to provide a statement of the reasons for their award unless the parties waive this requirement. In this case, the requirement was waived because a relatively small amount money was claimed and because both sides wanted to avoid the expense of paying for the time of the arbitrators to prepare such a statement of reasons.
U.S. (Minnesota) Buyer vs. Asian manufacturer
In the second case, I was counsel for an Asian manufacturer responding to an arbitration claim for over $26 million for breach of contract and other alleged wrongs. The contract at issue had been prepared by a non-lawyer employee of a Minneapolis foreign-trade consulting firm. It had what I regarded as a very inartful arbitration provision. It called for arbitration under the rules of “the United Nations Uniform Commercial Codes,” which do not exist. Nor did it specify where the arbitration should be held or the number of arbitrators or the language of the arbitration.
The Minnesota company first suggested there be only one arbitrator and that a specified retired Minnesota state trial court judge be that sole arbitrator. Although I had experience before that individual when he was a judge and had full confidence in his ability to be a fair arbitrator in this case, my Asian client did not want to have the case decided by one person from Minnesota. Therefore, I told opposing counsel that we did not agree to only one arbitrator.
Nothing more was heard from opposing counsel, and I thought the case had died on the vine. I was greatly surprised, therefore, when I received a letter from the Permanent Court of Arbitration at The Hague, Netherlands. The letter said that under Article 7 (2)(b) of the UNCITRAL Arbitration Rules, it was the designating authority for appointment of arbitrators when a party defaults in so doing and that the Asian company had defaulted in appointing the second arbitrator. In response, I recited the above history and stated that the Minnesota company had never appointed the first arbitrator and that, therefore, the Asian company had not defaulted. An official at the Permanent Court said I should tell that to the person it was designating as the appointing authority, a barrister in Melbourne, Australia. I reiterated my argument to the barrister to no avail when he appointed the head of an Asian international arbitration center and a former attorney general of that country as the second arbitrator.
Thereafter, these two arbitrators appointed a Danish lawyer from Copenhagen with extensive experience in international commercial arbitration as the third and presiding arbitrator.
On behalf of the Asian company, I filed a motion to dismiss the arbitration as it had never agreed to arbitration under the UNCITRAL Arbitration Rules, and the panel set a hearing in Minneapolis on this motion. Several weeks before the hearing, I was startled to receive a letter announcing the resignation of the second arbitrator (the Asian lawyer). My Asian co-counsel and I then immediately appointed a Queen’s Counsel barrister from London as the second arbitrator. (Later I found out that the Asian arbitrator had resigned because his fellow arbitrators refused to authorize him to fly first class (at substantial expense) to Minneapolis for the hearing.)
The hearing on the dismissal motion was held in Minneapolis, and the panel denied the motion. They did so even though their decision recognized that the “United Nations Uniform Commercial Codes” did not exist and under a strict interpretation, the arbitration clause had no effect. Nevertheless, the order concluded that the clause must be understood as referring to the UNCITRAL Arbitration Rules.
At the same time we also had a dispute as to the venue (or “seat”) of the arbitration due to the inartful arbitration clause’s not specifying such; my side argued for Hong Kong; the other side, London; and the arbitrators decided on London. The arbitrators also decided that the language of the arbitration would be English, which was not specified in the clause, but all agreed to English.)
In U.S. trials and arbitrations, witnesses are cross-examined on inconsistencies, real or apparent, between their testimony at the trial or hearing and prior testimony or statements. However, in this arbitration, the panel told the attorneys it was “not necessary during examination or cross-examination of witnesses for them to examine the witnesses on matters already in the written materials.” This was a surprise for me and a problem in preparing good cross-examination questions.
In the Fall of 1997, the hearings on the merits (or the trial) were held in three different cities. Minneapolis was first for the testimony of certain witnesses. I then flew to the Asian city where my client was located for hearings for the testimony of other witnesses. I then returned to Minneapolis for a brief stay, and then it was on to London.
London was the city for closing arguments. They were held in a conference room of an arbitration center in “legal London,” on the Strand near the Law Courts and the Inns of Court. The attorneys for the Minnesota company went first. Then my Asian co-counsel and I made our arguments.
I prepared for the closing arguments in Faegre & Benson’s London office, which is just several blocks from St. Paul’s Cathedral. Working on a Sunday morning, I could hear the pealing of the Cathedral’s bells and wished that I were in the church, rather than in the office.
Approximately four months later I received the 27-page Award that dismissed all of Claimant’s claims and all of my client’s counterclaims. One of the key points was the conclusion that the Claimant’s predecessor-in-interest and assignor had waived all claims for breach of contract and that its conduct did not fall within the wording of a non-waiver clause in the contract.
Thereafter Claimant submitted a motion for correction and interpretation of that key point, which my client resisted. On the basis of the papers the panel decided, 2 to 1, that there was no need for any interpretation or correction of the Award. At last, the case was over.
Not surprisingly this was not an inexpensive arbitration. In addition to the fees and expenses of each side’s attorneys, the bill of the three arbitrators for their fees and expenses was $302,000 to be split equally by the two parties.
 Post: Resolving Disputes between Manufacturers and Distributors/Dealers (Aug. 9, 2011).
 One example of rules for this method of dispute resolution is the UNCITRAL Conciliation Rules, which cover all aspects of the conciliation process, providing a model conciliation clause, defining when conciliation is deemed to have commenced and terminated and addressing procedural aspects relating to the appointment and role of conciliators and the general conduct of proceedings. The Rules also address issues such as confidentiality, admissibility of evidence in other proceedings and limits to the right of parties to undertake judicial or arbitral proceedings while the conciliation is in progress. (UNCITRAL, 1980–UNCITRAL Conciliation Rules, http://www.uncitral.org.)
 Post: Resolving Disputes between Manufacturers and Distributors/Dealers (Aug. 9, 2011).
 The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also called “the New York Convention” or treaty) now has 146 of the 192 U.N. member states as parties, including China, Korea, Japan, India, Indonesia and other major trading partners of the U.S. The treaty requires courts of contracting States to give effect to an agreement to arbitrate when seized of an action in a matter covered by an arbitration agreement and also to recognize and enforce arbitration awards made in other States, subject to specific limited exceptions. (UNCITRAL, 1958–Convention on the Recognition and Enforcement of Foreign Arbitral Awards, http://www.uncitral.org.)
 The UNCITRAL Arbitration Rules cover all aspects of the arbitral process, providing a model arbitration clause, setting out procedural rules regarding the appointment of arbitrators and the conduct of arbitral proceedings and establishing rules in relation to the form, effect and interpretation of the award. (UNCITRAL, 1976–UNCITRAL Arbitration Rules, http://www.uncitral.org.)
Since at least the last half of the 20th century, manufacturers of consumer goods typically have gotten their products to the end user in the U.S. via independent distributors and dealers or franchisees. Usually the manufacturers are larger companies while the others are smaller entities. They all have a community of interest in promoting the sales of the products at the highest prices with the greatest profits. But there also is a constant tension and friction between them and the potential for disputes. This is at its worst when the manufacturer terminates the distributor or dealer or franchisee.
I frequently was the attorney for the manufacturer in such termination cases. I successfully represented Chrysler Motors Corporation against a terminated Duluth dealer and Benjamin Moore & Company against a terminated St. Paul distributor. I also was able to obtain judicial reduction of adverse results against a manufacturer and a franchisor that had been represented by other counsel. Three of these four cases started in Minnesota’s federal court (Post: Minnesota’s Federal Court (June 28, 2011).
In addition, I helped to settle other such cases. One was for a Canadian manufacturer of snowmobiles. Another, for a U.S. manufacturer of farm equipment. Both of these cases were in Minnesota’s federal court.
Another type of dispute erupted between Chrysler and its Dodge dealer in St. Paul over the planned relocation of another Dodge dealer from East Lake Street in Minneapolis (the automobile row of the early 20th century) to Roseville, a suburb between the Twin Cities. Under a Minnesota statute that sought to protect existing dealers, the St. Paul dealer sued to block the relocation. The trial court, however, decided in favor of Chrysler, and the appellate court affirmed that result.
Because of the costs and risks of such litigation and because of my interest in Alternative Dispute Resolution, I helped other lawyers in the firm draft dispute resolution provisions for various agreements, including distribution agreements.
Often such provisions would first call for mediation where a neutral third-party assists the disputants in trying to settle their disputes. This was my preferred dispute resolution method because it empowered the parties themselves to settle their disputes, because it opened the way for creative solutions that were not possible in court or in arbitration and because it was the least expensive option. Only if mediation failed, would such a contractual provision call for submitting the dispute to arbitration under one of several general sets of arbitration rules where the arbitrator resolves the dispute. Arbitration was preferred to court litigation because the former eliminated the expensive pre-trial discovery and other processes of the latter and because the parties participated in selecting the arbitrator who was seen as a safer decider than an unknown judge or jury.
From the outside these disputes took the form of a large corporation versus a small corporation. But human beings were involved on both sides. The executives of the manufacturer had made decisions they thought were fully justified, and their careers and compensation conceivably could be affected by the resolution of the conflict. The same was true of those on the other side. Moreover, emotions often were intense in such quasi-divorce situations. In one case, the owner of the dealership sued his own lawyer over the settlement of his case against the manufacturer. Later that owner killed his girl friend and was acquitted on the grounds of insanity. I was worried because he might view me as part of the conspiracy against him.
Piccard Motor Co. v. Chrysler Motors Corp., 940 F.2d 1163 (8th Cir. 1991)(held Minnesota statute requiring manufacturer to pay terminated dealer one-year’s fair rental value of facilities did not apply to dealer that owned the facilities); Elvgren Paint Supply Co. v. Benjamin Moore & Co., 948 F.2d 1082 (8th Cir. 1991)(affirmance of summary judgment for manufacturer’s termination of an at-will distributor).
W.K.T. Distributing Co. v. Sharp Electronics Corp., 746 F.2d 1333 (8th Cir. 1984)(remand to trial court to reconsider award of $300,000 damages); W.K.T. Distributing Co. v. Sharp Electronics Corp., 786 F.2d 898 (8th Cir. 1986)(noting trial court’s reduction of damages from $300,000 to $85,000 after remand, but refusing to make further reduction); Team Central, Inc. v. Teamco, Inc., 271 N.W.2d 914 (Iowa Sup. Ct. 1978)(en banc reduction of adverse judgment from $2,550,000 to $1,500,000).
Wilkins Dodge, Inc. v. Chrysler Corp., 426 N.W.2d 903 (Minn. Ct. App.), pet. for review denied (Minn. Sup. Ct. 1988).
Practicing law, especially litigation, had many rewards.
It was challenging. Tactics and strategy had to be developed and implemented. You had to know or quickly learn many different areas of the law. You had to learn about new business practices and industries. You had to become skilled at investigating factual issues through the formal litigation discovery processes and otherwise. This includes the skill of asking questions, especially on cross-examination.
You had to pull all the factual and legal pieces together into an effective and persuasive story and argument. You had to be able to present these arguments, in writing and orally, to your adversaries and the courts. You had to be able to persuade others–judges, juries, other lawyers, clients, witnesses and opponents. You had to be able to think on your feet. You had to organize and manage a team working on the case.
In all of this you needed to develop and maintain the trust and confidence of your clients as you guided them through the very stressful litigation process. It was like a multi-dimensional chess game.
Nor can I forget that this work was financially remunerative.
Such legal practice, however, has its negative side.
In order to be an effective advocate, you needed to understand and empathize with your client and have some emotional identification with the client. At the same time, you needed to have emotional separation from the client so that you could be the analytical professional counselor who could point out weaknesses in the case to your client and develop an overall assessment of the case. This balancing act is not easy and is very stressful.
There was always the fear at least in the back of your mind: did I forget or overlook something important or just get it wrong? (If you did, you can be sure your opponent or the court will point it out.)
When a case has not settled and the time for trial approaches, you shift into a higher gear where preparation for trial becomes nearly an all-consuming endeavor. When the trial actually starts, you shift into an even higher gear. During a full day in the courtroom, you are an actor in a drama that you also are co-directing: you are asking questions, making objections and arguing issues with opposing counsel to the judge while in the back of your mind you are trying to digest what has been happening and thinking about what is coming next. When the day in court is over, you retreat to your office or hotel room to start preparing for the next day: doing additional preparation of witnesses, supplementing your own preparation and revising tactics and strategy for the rest of the trial in light of what happened at trial that day. Early the next morning before going to court, you continue this preparation, often over new ideas that kept you from sleeping during the night. Somehow you also try to sleep and eat enough food to keep going. Need I say, this is stressful.
Most cases settle, and when they settle while you are in the trial preparation or actual trial mode, there is both relief and disappointment. Relief that you do not have to go through the remaining agony of a trial. Disappointment that you are not able to use all of the work that you have done to get ready for trial and to test yourself in the crucible of the trial.
Moreover, increasingly over my years of practice, some opposing lawyers in cases were exceptionally difficult people. Some, I thought, developed a modus operandi of trying to get under their opponents’ skin and thereby distract them from the case at hand and to intimidate them. Some were dishonest. Moreover, you could not get away from this other person; by the necessities of the case, you had to have continuous dealings with the person. In one case, I had dreams (nightmares?) of pushing an opposing lawyer off a cliff.
Judges could also be thorns in your side, especially when setting deadlines or dates for hearings or trials that interfered with your previously arranged personal plans.
I came to understand that the U.S. litigation process usually drives the opposing parties further apart, rather than produce reconciliation. In addition, when a case was finally over, even when you had obtained a favorable result for your client, you understood that the client was at least privately thinking that he or she hoped they would never have to see you again because if they did that would mean they were involved in another stressful and expensive lawsuit. Who needs or wants a headache?
In reaction to these negatives of the litigation process, I became interested in alternative dispute resolution. I studied ADR and became a mediator and arbitrator. I also served as an officer of the ADR Section of the Minnesota State Bar Association. I wrote articles about ADR, especially its ethical issues. Eventually, however, I concluded that it was too easy to become an ADR “true believer” focused on the processes of resolving disputes and that did not provide personal satisfaction.
After 20 years of practicing law, by happenstance or the will of God, I was presented with a case for the American Lutheran Church that opened the door for me to international human rights law. That case and my further work in this area of the law will be subjects of future posts.
In my 70-plus years I have developed strong interests in U.S. and international law, politics, economics and history.
This is due to an excellent education at Grinnell College and the Universities of Oxford and Chicago, 35 years of practicing law in New York City and Minneapolis, being a pro bono lawyer for asylum seekers, teaching international human rights law, international travel and wide reading. These activities by themselves provide additional subjects for commentaries.
These interests also have been furthered by a renewed Christian faith and an active membership in Minneapolis’ Westminster Presbyterian Church. This faith and learning about other religious traditions are other major interests of mine.
As will become apparent in subsequent postings, I have particular interests in certain legal topics–refugee and asylum law; litigation in U.S. federal courts under the Alien Tort Statute that covers lawsuits by foreigners for human rights abuses; U.S. constitutional law; and alternative dispute resolution– and in certain countries–Great Britain, El Salvador, Ecuador, Cuba, Brazil and Cameroon.
I already have written a lot on these subjects and have decided to share these writings on this blog. I also will comment on other issues as they arise. Many of these writings will be longer than a typical blog. In subsequent postings I will describe my political philosophy and Christian faith that I hope is evident in my writings.