Chief Justice Answerable to Arbitration Subpoena.

The Chief Justice of the California Supreme Court  can be made to testify in deposition?  The answer is “yes,” for up to two hours.  The reason is that she knows what she said or did not say to the former Executive Director of the California State Bar, Joe Dunn.  That itself is important because it is relevant to whether Dunn lied to the State Bar Board of Directors to say the Chief Justice approved the sale of the San Francisco State Bar headquarters.  The Board approved Dunn’s proposed termination in part because he allegedly lied (“misinformed”) the Board on this this subject.  We can be confident that if there is a lie, it was not by the Chief Justice, and especially not while under oath.  As of this writing, it’s not clear what she said under oath, as all are mum.  But the testimony will be revealed because it will be introduced as evidence in the arbitration scheduled for February 1, 2017.  The hearing will be open to the public.

Employment Law Cases Reach New Celebrity Heights.

All this drama comes about in the context of a whistleblower case.  Who would have thought that employment law would reach to the highest levels of both the judiciary and the state bar?  Employment law was like a sleepy suburb at the far edges of the legal metropolis 25 years ago when I first practiced employment law.  Now it dominates the skyline, all the way to the penthouse.  Was it inevitable?  The doors to big wrongful termination damages have been shown open by published case decisions in the last decades.  As everyone sooner or later seems to get fired (or forced to resign), celebrity and high-ranking employees will join the litigation frenzy.  In 2016, Gretchen Carlson, former CNN reporter, settled for $20 million against 21 Century Fox for alleged sexual harassment by her boss, Roger Ailes, effectively ending Ailes CNN career.  Gretchen Carlson Settlement.  But will Dunn be so rewarded in his fight for justice?  He needs a victory after placing sixth in a ten-candidate primary field for U.S. Congress for the 46th District [Orange County CA] in June 2016.  Dunn Loses in Primary

The Chief Justice’s Involvement Highlights Whistleblower Cases.

Dunn’s case against the State Bar illustrates some useful tips for employees and their attorneys.  First, arbitration is only as good as the arbitrator and the integrity of the arbitration service that supports him or her.  The arbitrator had the courage to issue the order to require the Chief Justice to appear for Arbitration.  Second, be careful what you ask for.  We don’t know the outcome of the deposition testimony quite yet.  It may not be the clincher Dunn hoped for.  Thirdly, the monster “causation” always stands at the gate.  The plaintiff’s attorney must tame that monster to expose the stated official stated reason for termination to be a lie.  In Dunn’s case, showing that the Bar Director’s lied as in telling Dunn he was fired for misstating the Chief Justice’s position on selling the headquarters is evidence of “pretext.” This evidence is indirect and circumstantial.  Ultimately, the burden is on Dunn to prove the “substantial motivating factor” for termination was that that he “blew the whistle” on the Bar’s cover-up of misreported success in clearing a backlog of attorney-discipline cases.

While “whistleblower retaliation” cases are comparatively one of the easier employment law cases to prove, they are still technically complex, and a qualified employment lawyer will state the elements in clear direct terms to an arbitrator or jury.  The key for the decision maker in these cases is to follow a legally sufficient statement of the law for each element to be proven, not more, and not less.

 

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