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The Brethren
by John Davis Collins.....© 2000 by John F. Clennan, All Rights Reserved
a Committee is a group empowered to avoid a decision.
"I adhere to my vote. I vote with the majority," Sam Johnson declared. The scholarly elder sporting a black bow tie with his tweed suit seemed resolute.
The air in the office's library, a converted farm house kitchen, was a stifling hell of a pressure cooker. I looked out at the gentle snow falling. I studied the rounded face of my elder who today was junior arbitrator. I was tempted to laugh or cry.
This case had been a headache since the first light snow squalls blew in early this morning. The plaintiff a Bank had sent a representative from out of town and the defendant a dowdy housewife whose husband ran off leaving her with charges trudged through the snows to reach my office. My two colleagues, Mr. Reinhardt and Mr. Johnson dapper in his tweed suit were ready in the library. Where was the defendant's lawyer?
We arbitrators waited in a sullen silence. Professional courtesy required us to assume the absent lawyer to be on her way. Sam Johnson the elderly gentlemen proved to be taciturn. Beyond involuntary grunts acknowledging that he had been retired for quite some time, Sam stared transfixed at the old ceramic ashtray on the table.
When we thought we waited long enough, I called Jenny Gearson the defendant's lawyer. "I thought you guys would have called it off - on account of the snow," she said.
Mr. Reinhardt, the senior arbitrator swiped the phone from my hands and yelled, "Jenny, you do this all the time. There ain't enough white stuff to fill the treads of your tires." Reinhardt's retreating hairline showed a scalp beat red.
Before I could react, the phone rang again. It was Jenny Gearson. I clutched the phone in my hands and announced to my colleagues her formal request for a continuance. "We have to vote on this," I commented. "I'm reluctant to - inconvenience - eh a brother lawyer Mr. Johnson?" I asked the elderly gentleman who sat next to me as junior arbitrator.
Johnson muttered, as he reached into an ashtray converted to store paper clips, "I'll go with the majority." I nodded. I had, yet, no idea where that position was headed.
Reinhardt angrily granted. "Let Ms. Gearson make the request in person."
"Fair enough," I remarked. Returning to the phone, I advised Jenny Gearson, "The panel had determined to take your request in person."
It may have been an hour later when a gust of wind and sparkle of snowflakes exploding in the heat of the office announced Ms. Gearson.
She stormed into the office with a rage, which evaporated the wet from her dark overcoat and frizzy hair. "I asked for an ordinary professional courtesy, you guys would give any man."
"Request denied," growled Reinhardt. "Oops - Mr. Chairman?"
I smiled. "We know your vote, Mr. Reinhardt. I believe protocol requires the junior member to vote first. Mr. Johnson?"
I must have chuckled as I said 'junior.' I was the youngest attorney present. Seniority depended upon length of service on the Court's arbitration panel.
"I vote with the majority," Johnson muttered as he toyed with paper clips collected in that old ceramic ashtray.
"Let's excuse the parties," I signaled the attorneys to return to the waiting room. When the arbitrators were alone, I asked Johnson, "We have a choice. We can hear the case or adjourn it. What is your pleasure?"
"I vote with the majority," Johnson responded. Was Johnson looping together the ends of paper clips?
"Sam, you may be the majority."
"I adhere to my position. I vote with the majority." Sam sifted the ashtray for more paper clips to examine.
"Sam," I looked to Reinhardt and then to Johnson, "I vote last. I will vote to grant the application." I looked Johnson straight in the eyes. "Do you vote with me to adjourn or Reinhardt to order the case on?"
"I still vote with the majority." Sam lined the paper clips on the table in a size order as he spoke and carefully selected the longest paper clips to begin his chain.
"Listen, Sam," Reinhardt struggled to keep his tone polite. Reinhardt leaned forward, his voice was superficially pleasant, but containing anger.
"Jenny pulls this all the time. She's afraid to lose. So if the case don't settle, she punts and - heck then someone else gets suckered by a judge to try the case - after Jenny got the fee! So join me and show Jenny losing ain't so bad."
"I vote with the majority." Sam muttered as she stretched the chain of paper clips into a string.
"Is this Jenny Gearson going to end up with another adjournment because you Mr. Johnson can't say Yeah or Ney?" Reinhardt demanded with a file in his hand ready to strike the light wooden table or, I was afraid, Mr. Johnson.
"I vote with the majority," Johnson held firm. That string of paper clips he was stringing together was about a foot long.
I signed. I reached onto my shelves for Roberts Rules of Order. "Arbitration," I declared aloud, "of minor claims by a panel was created to allow both sides the opportunity to vent, without the folderah of technical Court procedures."
I looked up the rule. In a tie, the existing situation stood.
"Reassemble the parties," I ordered as Reinhardt snickered in disgust.
As soon as Ms. Gearson returned with the bank's representative I began, "On the motion to adjourn," I turned to Mr. Johnson, "Mr. Johnson, publish your vote."
"Mr. Chairman," Johnson declared in a firm, "I vote with the majority!" Sam stretched his little string of paper clips out and tested it for strength.
"I vote to deny," Reinhardt growled, wrinkling his nose in disgust.
"And," I added, "The chair votes to grant. One for. One against. One vote with the majority counted as invalid." I leafed through a copy of Roberts Rules. "A tie vote, existing situation remains. The motion is denied."
The plaintiff's case was simple: a computer reading of the balance due on the bank credit card.
Ms. Gearson looked at the credit card balance and showed it to her client, a small homebody in her early 60's .
"Did you bring," I asked the banks representative, "any evidence that the defendant applied for the credit card or authorized these particular charges," I looked at the defendant who wore a frilly apron over her print dress, "for electric power tools?"
"No," the banks representative shook her head, "is it important?"
"Defendant can," I replied, "only be responsible in contract if she agreed to the charges. Standard motion to dismiss?" I asked Ms. Gearson.
The grandmotherly looking defendant prompted Ms. Gearson with a poke. "Yes," Gearson hesitated "I guess so."
"Mr. Johnson, your vote" I looked to Sam on my right arm. That string of paper clips could have easily stretched across the tabletop.
"I vote with the majority," Sam added more clips to the chain he wove.
"Mr. Reinhardt?" I asked.
"I find it sufficient proof all these bills were rendered" Reinhardt went through the list of charged, "and defendant did not protest them. Denied."
"I vote to grant," I declared, "the motion thus is denied 1 - 1 with one vote counted as 'Present'."
Was arbitration by panel a punishment to advocates to force them to realize how tough it was to reach a consensus for decision?
The defendant raised her right arm and denied knowing about the credit card or the charges on it. "Probably something my ex done before he run off with sweet young thing."
The bank's lawyer objected and moved to strike the testimony.
"The defendant in this jurisdiction must specifically deny the signature on an instrument," the bank noted.
"True, interesting fine point, but the bank as plaintiff bears burden of proof that there was a contract in the first place," I replied. The panel once again split with Mr. Reinhardt in disagreement and Mr. Johnson in confusion, still stretching the chain.
In summation, Ms. Gearson argued that "it was apparent that the defendant was in a traditional marriage. Defendant's ex-husband ran finances and ran up the bills before he ran off."
The bank objected. "Defendant's lawyer transcended the bounds of the evidence. Ms. Gearson relies on facts that might indeed be true, but were not the subject of proof."
"I could," I shook my head in reply, "Submit the question of whether fair comment has been exceeded to the panel, but suffice to say I suspect that might be somewhat unproductive." I glanced at Sam still adding new ringlets to his great chain of paper clips. "The theory of group psychotherapy is that a group will fight to rise above individual abnormalities to reach a level of rationality" I pondered out loud, "we may have disproven that entire discipline's foundations today."
After the parties shuffled away, I paused before I explained the issue to the panel. "Bank has charges. It wants defendant to pay." I nodded to Mr. Reinhardt. "Mr. Reinhardt, I take it, sides with the bank." Bills were rendered; defendant should have protested them."
"Correct, Mr. Chairman," Reinhardt remarked much calmed, "The chair's view," Reinhardt leaned toward Johnson, "is more generous to defendant than I can accept. The chair wants to direct proof that defendant authorized the charge card or made these purchases."
"The choice," I forced a smile, "is now yours, Sam: by whatever standard you use: flip a coin, toss pennies, turn cards, play eenie-meine-miney-moe" I looked at the chain which I was sure could now reach the front door. "Or count the links in your little chain."
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