While the commissioners at the Oxnard Harbor District are awaiting their arbitration date with the city of Port Hueneme, now postponed by their Los Angeles firm (Best, Best & Krieger) until Nov. 17, I'm recommending a second book for their reading pleasure — namely "Bleak House."
I suspect principled lawyers chuckle as they page through Charles Dickens' satirical examination of the mind-numbing Chancery Court case of Jarndyce v. Jarndyce. I suspect unprincipled lawyers just take notes.
Although Dickens' novel was initially published during the mid-19th century as a magazine serial, the commissioners may discover parallels — re: their 21st century dispute with the city of Port Hueneme. (In the interest of full disclosure, I am married to Port Hueneme Mayor Jonathan Sharkey.)
While arguably every novel is autobiographical, Dickens' skewering of the British judicial system was prompted by his own experience; first, as a law clerk and second, as a Chancery litigant seeking copyright enforcement.
Dickens' readers readily responded to what Stephen Colbert calls the "truthiness" inherent in "Bleak House." In fact, British legal historians credit the novel with substantially shaping legal reforms during the 1870s.
So what should the commissioners be looking for in the novel? As "Deep Throat" once sagely advised, "Follow the money."
According to Dickens, the Jarndyce barristers and solicitors, who could be considered, in modern terms, "limbo lawyers" (How low can you go?) remained in business by convincing clients to stay the course — dangling the possibility (operative word) of a payday that would soon (nonoperative word) be coming their way.
The Jarndyce legal eagles were aided and abetted by the considerable confusion caused by the existence of five distinctly different wills. Keep that in mind with the distinctly different 1983, 1987 and 1995 revenue-sharing agreements between the OHD and the city of Port Hueneme.
Chancery lawyers, whose financial interests were best served by dragging their Stafford and Stone heels, kept their clients in a frenzied adversarial state by promising that each legal ploy (read: delay tactic) would turn the tide in their favor.
What the prospective heirs should have realized is while their legal representatives were getting paid, they still hadn't seen a farthing. Ultimately, attorneys' fees consumed the entire Jarndyce estate of £70,000 (or $3 million in 2014).
The only Jarndyce who escaped heartache, bankruptcy and/or stress-induced illness was John. He refused to get involved and referred to Jarndyce v. Jarndyce as "the family curse." There's a lesson in there somewhere.
On Aug. 22, 2013, nearly a year ago, the city of Port Hueneme filed a petition to compel arbitration (as spelled out in the 1995 revenue-sharing agreement) over the $8 million the city believed it was still owed by the OHD.
These days, business contracts routinely include compulsory arbitration clauses because arbitration is (usually) quicker, less adversarial, less damaging to future financial relationships and less costly than litigation.
An arbitrator, you see, is not as inclined "as a judge to entertain extensive discovery and motions practice," writes Inside Counsel's Alan Freeman, "both of which frequently drive the fees and costs of litigation."
The OHD, desiring to limit the arbitration solely to the 1995 joint-revenue agreement, took the city of Port Hueneme to court on Aug. 23, 2013, and won.
However, the city also took a victory lap on May 23, 2014, when the arbitrator ruled that the meaning of gross revenues — the key to the city's $8 million claim — would also remain on the table come November.
So how much in public funds (OHD) and taxpayer dollars (city of Port Hueneme) have been expended so far?
From invoices obtained through public records requests, OHD was billed more than $96,000 from February 2013 through June 2014 by Best, Best & Krieger. (Note: OHD's staff attorney's arbitration-related hours are not included.) The city was billed around $79,000 during the same time period by two firms — the Hensley Law Group and Jenkins & Hogin.
Not exactly chump change, you say? But, don't forget, these fees are only the beginning.
There are two reasons for either party "to go for broke" — the $8 million, of course, and this arbitration's stipulated "English rule" in which the loser reimburses the winner for "reasonable" legal fees.
As the British see it, a litigant (whether bringing or defending a claim) is entitled to legal representation and, if successful, should not be penalized by having to pay for the privilege of being right — as is customary in U.S. courts.
Interestingly, the "loser-pays-all" proviso arose out of the late 19th century British legal reforms inspired by "Bleak House."
Unfortunately, if there was ever a tempting reason to drag out the arbitration process at any cost, the prospect of losing a ton of money has got to be it. You see, as long as the arbitrator's decision resides in the "pending" column, the piper doesn't have to be paid.
Just the lawyers.
Beverly Kelley, of Port Hueneme, writes a biweekly column for The Star. Email her at email@example.com.
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