Here’s the situation - I’m at an arbitration of a penny-ante little motor vehicle accident. I represent the defendant, and the arbitration is on damages only, and subject to a high-low agreement of $0-$20,000. This means that even if the arbitrator found for the plaintiff and decided to award $50,000, the most the defendant has to pay is $20K. (In fact, it would be paid by the defendant’s insurance company, in case you were wondering.)
(For those of you familiar with NY law, I refer to it as penny-ante because it would not have survived a threshold motion. This means that although the plaintiff was defintely injured in the accident, she didn’t suffer what the law describes as a “serious injury” and therefore was not entitled to bring a lawsuit. Hey, I don’t make up the law, the NY State Legislature does. They have seen fit to state that people should not be suing each other for car accidents with non-serious injuries; instead they have provided a No-Fault system for payment of medical expenses and treatment in such cases. But I digress.)
(Also, for those attorneys out there, I couldn’t make the threshold motion because it was a 100% liability case (rear-end) where the carrier wanted the case settled before incurring any significant expenses, so I couldn’t take the depositions to provide the factual background necessary to make the motion, etc.)
Anyway, the arbitration rules clearly say that each side is to provide the other side with the documents that they intend to introduce into evidence at the arbitration at least 15 days before the arbitration. In fact, I adjourned the arbitration once specifically so I could serve the plaintiff and be within the rules.
The day of the arbitration comes, and no package from plaintiff. First, I make a big faux pas. The arbitrator asks, “Is this liability and damages, or just damages?” I say, “It’s damages only, 0-20 high-low.” Oops. I didn’t realize that you’re not supposed to tell the arbitrator the amount - they could get it in their head that this is not a serious case, and reduce the amount accordingly. My bad.
Next, the plaintiff’s attorney wants to introduce photos, including photos of scarring to the plaintiff’s face and arm. (It, too, was really minor.) (Am I starting to sound heartless yet?) I object, because the plaintiff has never made any claim in the case for any scarring injuries. The arbitrator allows plaintiff to amend their claim on the spot, and allows the photos into evidence. I don’t like this decision.
After that, of course, as expected, plaintiff shows up with a stack of documents two inches thick (medical records) that she wants into evidence. Contrary to the rules, she has never served these on me, although I do have them from the insurance companies’ file. This is called sandbagging.
The arbitrator decides to admit them, and gives me 5 minutes to look at them. I am displeased. He steps out of the room. It’s just me and the plaintiff’s attorney.
Here it comes: 15 seconds after he leaves, while I’m looking through the stack, the plaintiff’s attorney says, in a bit of a pissy way, “You know, I could have this arbitration busted right now because you mentioned the high-low agreement.”
I say, “You’re the one serving the documents late, amending your documents at the last possible moment, and you want to bust this arbitration? **If you want to get into a pissing match, I’ll piss all over you.
**”
At first, I admired the beautiful symmetry of the remark. For about three seconds. Then I felt really badly that I had said it. She didn’t take it well, and told me it was unprofressional (whiich it was) and demeaning (which it was). It just came out, and I was sorry I said it.
However, being in litigator mode, I did not acknowledge her comments, as I felt it would be a sign of weakness on my part, that she could have pounced on or held over me during the arbitration. As it turned out, nothing more was said of this, and we left the arbitration without shaking hands.
Not that this matters much (or at all), but the plaintiff’s attorney was a short Irish woman (complete with brogue) in her late 40s. I am a 5’10" 200lb guy in my late 30s. So I would say that there is a gender issue here, too, and maybe intimidation, although we were both sitting down across a table, and I didn’t raise my voice or anything.
What should I do?
Here’s the rub: if I had said the first part of the sentence with a different second part of the sentence, it would have been OK: If you want a pissing match, I’ll be happy to provide you with one. Or something like that. While still a crude remark, it would have no recourse. It’s the pissing on someone part of it that was way over the line, and probably unethical (lawyers, help me out here).
I don’t think I should apologize for it in writing, as that would possibly provide the evidence necessary to leave me open for disciplinary action.
This happened a couple of weeks ago, and I have seen her in court once since then. (I don’t see her in court too often.) Should I apologize to her in person the next time I see her? Pull her aside and say “I’m sorry for the remark I made; it was crude and offensive, and I’m sorry if you were offended by it.” Something like that?
Or should I just let sleeping dogs lie?
Try not to point out how despicable this is too much; I’m looking for a course of action, or, if you recommend, no course of action.
Thanks.
