Thursday, November 10, 2011
Page 11
REMINISCING (Column)
Wilson Selected to Officiate at ‘Freak Trial’
By ROGER M. GRACE
It happened several decades before retired Los Angeles Superior Court Judge Joseph Wapner began presiding in 1981 over televised binding arbitrations in a forum called “People’s Court,” before ex-jurists assumed a role popularly denominated in the 1980s as that of “rent-a-judges,” and before the term “alternate dispute resolution” came into use. There was a submission of a dispute to arbitration in Los Angeles on Nov. 21, 1907…and so uncommon was that procedure that there was a Page One story in the Los Angeles Times the following day reporting the submission.
The story bears this headline:
It’s not that arbitration was anything new. Far from it. It had been utilized for centuries as a means of settling disputes between nations or between individuals. It existed in California, under U.S. rule, before statehood.
Contrary to the Times article, reprinted below, statutory authorization for recording arbitration awards as judgments did not come into existence in 1872. What took place then was merely a re-codification of arbitration provisions enacted on April 29, 1851, as part of the “Act to Regulate Proceedings in Civil Cases in the Courts of Justice in this State.”
The pertinence to this series on attorneys who were the original tenants of the Wilcox Building is that the arbitrator was one of those attorneys, Percy R. Wilson.
Here’s the Times story:
Frank F. Pratt and John Jay Nestell, between whom there is a difference of opinion which represents no less a sum than $20,000, yesterday took their disagreement into the Superior Court, though there is no intention on the part of either parties of having its merits tried there.
Testimony may be presented, under oath, and counsel will argue, but not before a judge elected to the bench.
There will be one who will sit as judge, however, with powers far exceeding any ever imposed in any judge elected by the people in any land. The judge, created a judge for this one case, may ignore all the testimony presented, discard all the evidence introduced in the private trial which will be held outside the courts, and decide the case solely according to his own convictions, no matter how they may have been reached.
And all the power of the Superior Court will be behind him, and his decision will be as binding under the law as any judgment rendered there.
UNDER ANCIENT LAW..
The law under which this unusual action is brought has been in existence in this State since March 12, 1872, and is found in Section 1281 of the Code of Civil Procedure of California, as follows:
“Persons capable of contracting may submit to arbitration any controversy which might be the subject of a civil action between them, except a question of title to real property in fee or for life. This qualification does not include questions relating merely to the partition or boundaries of real property.”
In following sections it is provided that the agreement for arbitration may be filed In the office of the County Clerk, and made an order of the court. When this is done, the decision of the arbitrator cannot be revoked without the consent of both parties to the dispute. The award of the arbitrator, whatever it may be, can be enforced just as in the case of a judgment of the court.
The claim of Frank Pratt is that the law firm of Walter and Pratt, between September 1, 1906, and July 1, 1907, rendered legal and business services to John Jay Nestell, to the value of $15,000. Mr. Nestell, on the contrary, declares that the firm of Walter and Pratt is indebted to him in the sum of $5000, secured by two notes of $2500 each, executed October 15, 1906, and January 14, 1907.
WILSON AS ARBITRATOR.
There would seem to be a very serious difference of opinion here, yet the parties to the dispute have agreed to submit the whole matter to Attorney Percy Wilson as arbitrator, and Percy Wilson has dared to accept the task.
“It being impracticable, if not impossible to submit disinterested expert testimony or evidence upon the value of the services in question,” runs the agreement filed, “which would aid the arbitrator in making a finding thereon, no such testimony shall be required, and the finding thereon may be made by him upon the remaining facts in the case....He shall not be bound by testimony, but shall be at liberty to take into consideration, and apply to the facts of the case, his own experience and judgment.”
Rarely in the history of the Superior Court of this county has this old arbitration law been invoked. Should the holidays continue long, affecting the court, it might become popular.
Copyright 2011, Metropolitan News Company