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Not So Neutral?

September 8, 2016
Attorney At Law Magazine - Twin Cities Edition
Author: Amelia R. Selvig

Imagine the last hearing you attended where you were confronted with a misrepresentation of fact. The source of the misrepresentation was most certainly “the other side,” and your time was then spent setting the record straight by educating the neutral party in the room about what actually happened.

This scenario is familiar to all litigators and one that all litigators must be prepared to face in any adversarial proceeding. For at least one litigant in California, however, the scenario was completely unexpected because the source of the alleged misrepresentation was the neutral herself.

Kevin Kinsella sued JAMS and retired Judge Sheila Prell Sonenshine for violations of the Consumer Legal Remedies Act, fraud, negligent misrepresentation and false advertising in California state court. California allows judges the discretion to appoint a neutral (i.e., a temporary judge) in lieu of formal judicial proceedings. Kinsella alleged that he relied on misrepresentations and omissions on the JAMS website about Judge Sonenshine’s background when he hired Judge Sonenshine as a temporary judge for his marital dissolution case.

Kinsella’s dissolution proceedings involved assets worth approximately eight figures, which included assets from venture capital partnerships. Kinsella, therefore, sought a temporary judge who understood the principles of business ventures and private equity funding. Kinsella reviewed Judge Sonenshine’s biography on the JAMS website and agreed to hire her because of the representations on the website regarding her business experience. Aft er Judge Sonenshine began making rulings, however, Kinsella began to question Judge Sonenshine’s background and found information that suggested that her biography on the JAMS website misrepresented her qualifications. Kinsella claimed that Judge Sonenshine’s biography omitted key information regarding allegedly adverse details about her business experience. Kinsella also claimed that the statements on the JAMS website about the integrity of its neutrals were deceptive. Read more.