Let’s all admit and accept the truth – within the next 10 years THE primary disputing system for most civil matters will be arbitration. Trial courts, juries and appellate courts will continue to dominate criminal and family matters and some personal injury cases. Who knows what will happen with cases involving Information Law. Whine about it, complain, tilt at windmills, but get over it – and quickly. Staying out of arbitration or challenging an arbitrator’s award are now virtually impossible in either state or federal courts in Texas (the archives on this blog for the Law of Arbitration are littered with posts about recent cases supporting this proposition). Thus, let’s now start looking at discovery and evidence in arbitration proceedings. The implicit deal is supposed to be easy introduction of all sorts of evidence that would not come in at trial, in return for much more limited discovery. But wait. How do I know if thousands of unrelated arbitrators all over the world are keeping the deal? There’s no body of rules common to each jurisdiction and no reporter system so I can read cases reviewing what happened on these points and learn what’s discoverable or how to get it into evidence before the arbitrator. Over the next several months, we will be exploring these issues. We invite your comments and hope we can get a conversation started. Technorati Tags: arbitration, law, ADR, dispute resolution

This morning, the Texas Supreme Court reversed trial court and Tenth Court of Appeals findings that Kroger was liable for injuries one of its employees sustained while helping a customer load grocery bags into her car. The employee in question had placed one hand on the customer’s car door jamb while steadying the cart with his foot when the customer slammed her car door on his hand (the parking lot was on a slope, hence the foot-steadying). Kroger is a non-subscriber to workers’ compensation insurance, which means that injured employees must establish that some negligence on their employer’s behalf cause their injuries to recover damages; in other words, “[nonsubscribing] employers are not insurers of their employees.” In this case, the Supreme Court found that since grocery customers throughout the nation seem competent to load groceries into cars, Kroger had no obligation to provide its clerks with specialized training in the art. Using an unusual grocery-loading methodology like the one described here constitutes “a danger known to all,” so Kroger had no duty to warn its employees not to attempt such maneuvers. The Court therefore reversed decisions by both the trial court and court of appeals, based on its no-duty finding. Kroger v. Elwood, Cause No. 04-1133 Technorati Tags: litigation, Texas Supreme Court, law

On January 12, 2006, we blogged about the Fifth Circuit decision in the Positive Software case to vacate an arbitral award on the basis of an undisclosed conflict of interest. Today, the Circuit decided to rehear the case(link is to .pdf file) en banc. We will keep you posted on this and other exciting developments as they unfold. As yet, neither the new briefing schedule nor the oral argument had been set. Technorati Tags: arbitration, ADR, Fifth Circuit, law

This morning, the Third Court of Appeals released an opinion reviewing a Travis County trial court decision to dismiss certain claims against an Oak Hill church for lack of subject matter jurisdiction, based on the ecclesiastical abstention doctrine, which in turn stems from the First Amendment to the U.S. Constitution. The Third Court of Appeals, after presenting a fairly detailed discussion of the doctrine (and, in turn, of the historical relationship between religious and secular decision making in this country), found that the trial court properly dismissed some claims but that some did in fact survive the First Amendment challenge. Ken Patton was the Director of Youth Ministries for the Oak Hill United Methodist Church in the greater Austin area. His was a strictly lay ministry; that is, he “did not participate in worship services or ceremonies, had no responsibility for the music or liturgy, did not assist with the confirmation of youth, and was not required to teach religious classes or have religious training.” According to the Court, in response to some complaints from members of the congregation, the clergy at the church conducted an investigation which resulted in Patton’s termination. Subsequent to the termination, the church’s leadership wrote an explanatory letter to two members of the church and discussed the situation with several others. Patton sued the church, alleging tortious interference with his employment contract and defamation, both pursuant to the investigation and subsequent to the investigation. The church filed a motion to dismiss for lack of subject matter jurisdiction, citing the First Amendment-based doctrine of ecclesiastical abstention. The First Amendment states, among other things, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free speech thereof.” In 1872, the U.S. Supreme Court explained that this means secular courts are to stay out of purely religious disputes: civil courts exercise no jurisdiction . . . where a subject-matter of dispute is strictly and purely ecclesiastical in character, [such as disputes] concerning theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required. Instead, civil courts are to accept “as final, and as binding on them” the decisions of an ecclesiastical institution on mush matters. It would be of vain consent if anyone aggrieved by one of an ecclesiastical institution’s decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising amongst themselves, that those decisions should be binding in all cases of ecclesiastical cognizance. In part, this is because ecclesiastical institutions are the best judges of what constitutes an offense against the word of God and of matters of faith, discipline and doctrine; and civil courts, if they should be so unwise to attempt to decide such matters, would only involve themselves in a sea of uncertainty and doubt. Watson v. Jones, 80 U.S. 679, 728-33 (1872) (as selectively quoted by the Third Court of Appeals). So what does this mean, at least in terms of Texas employment law jurisprudence? It means that a church can make hiring and firing decisions which are protected from review by the secular courts, which have no subject matter jurisdiction to review those decisions, assuming they are ecclesiastical in nature. The doctrine applies not only to the church’s decision to fire clergy; it applies to the hiring or firing of anyone who serves in a ministerial capacity. In this morning’s opinion, the Third Court of Appeals set forth the test used in Texas to determine if a non-clergy church employee’s work is of a ministerial nature, and in Mr. Patton’s context, the church found that indeed, a youth minister’s work was ministerial. That being the case, any decisions of an ecclesiastical nature with respect to Mr. Patton’s employment were immune from civil court review. Therefore, according to the Court, the district court properly dismissed Patton’s claims of tortious interference with an employment contract and defamation, at least to the extent that the alleged defamation was related to the termination proceeding. The ecclesiastical abstention doctrine did not apply, however, to Patton’s claims that the church defamed him subsequent to his termination. Since the ecclesiastical decision to terminate had already been made at that point, explains the Court, the allegedly defamatory comments could not have been made in furtherance of that ecclesiastical decisionmaking. Therefore, the civil courts of Travis county retained jurisdiction to hear those claims. Patton v. Jones, et al., Cause No. 03-04-00389 Technorati Tags: litigation, Third Court of Appeals, law, religion