Kinsella accuses JAMS and Sonenshine, a retired appellate justice, of misrepresenting her accomplishments in the business world to attract people like Kinsella. JAMS and Sonenshine argue that Kinsella is upset Sonenshine ordered him to pay more spousal support when acting as a temporary judge in his divorce case, and is looking for any excuse to lash out.
Closing arguments begin Wednesday in the three-week trial. In the meantime, here are six things we’ve learned about JAMS, its attorneys and its strategy over the course of the proceedings.
JAMS and Sonenshine made sure women played leading roles in their trial. Sonenshine was a pioneer for women in the Orange County bench and bar, and empowering women was the subtext of much of its case.
JAMS designated chief operating officer Kimberly Taylor Gold its person most knowledgeable, and she prefaced her testimony by describing her journey from business manager of JAMS’ tiny Ventura branch in 1999, to associate general counsel, to chief legal and operational officer.
JAMS also called three business women with connections to Sonenshine, including one whom Sonenshine had backed with a $300,000 investment. JAMS general counsel Sheri Eisner supervised proceedings from the audience, and Long & Levit partner Jessica MacGregor was an active second chair.
JAMS even called Sharon Blanchet, the attorney who represents Kinsella’s ex-wife, who testified about earning her law degree at age 40 after her children had become teenagers. By contrast, Kinsella’s counsel’s table was all male, though San Diego attorney Janet Sobel played a supporting role from the audience. As a parting shot, JAMS elicited on the last day of evidence that Sobel and Kinsella’s current divorce attorney have teamed up on gender bias class actions on behalf of men.
JAMS management doesn’t want to get involved in customer complaints. JAMS handles 14,000 cases a year, so complaints are inevitable. Gold indicated that most have to do with billing or operations.
When complaints are about legal outcomes, JAMS administrators stay out. “It’s not our role to make any sort of factual determination about the merits of the case,” Gold testified. JAMS’ role is to provide the facility, make the neutral available, and handle scheduling and paperwork. “We don’t get involved in the merits of the case at all,” she said. “We don’t take sides.”
JAMS admits it intends for its customers to rely on its neutrals’ online bios. “I can’t speculate how much they would rely on the website, but that is why we put it out there,” CEO Christopher Poole testified.
Gold acknowledged that the resumes help sell JAMS’ services. “People are coming to us for a service. We are selling that service,” she said. Even though Kinsella has limited his claim to the Consumer[s] Legal Remedies Act, which has a lower standard of reliance, he will still have to prove that the resumes were “a substantial factor” in his decision to stipulate to Sonenshine as his privately compensated temporary judge.
JAMS plays a long game. Throughout the trial, JAMS attorneys and witnesses made much of the fact that Sonenshine’s character has been vetted and approved by the California State Bar’s Commission on Judicial Nominees Evaluation. It seemed barely relevant, given that those vettings occurred more than 30 years ago—as Kinsella’s attorneys pointed out.
For its last witness, JAMS called Kinsella’s private investigator David Walker, and elicited testimony from him that Sonenshine also served on the Judicial Nominees Evaluation Commission herself, reviewing the qualifications of new judicial nominees during the last several years.
Based on very preliminary jury reaction, JAMS could be in trouble. After wrapping up evidence Monday, Judge John Meyer asked the jurors if they had any questions. Yes, said one: How much evidence will the jury be allowed to see while deliberating? Would jurors have access to exhibits, emails and video depositions? Plaintiff attorney Bryan Vess said in court Tuesday that the juror had asked specifically about a binder of material on the Sonenshine family compiled by Kinsella’s private investigators. But JAMS attorney Joseph McMonigle said the juror was referring to a different exhibit containing Sonenshine’s resume.
After wrapping up evidence Monday, Meyer asked if the jury if it had any questions. Yes, said one, would the jury be allowed to consider written evidence? Specifically, might it be allowed to see exhibits such as No. 1068? Exhibit No. 1068 is the binder.
JAMS would prefer that the case be handled more like arbitration than a jury trial. In the end, the jury’s verdict may not be decisive. Kinsella is bringing his fraud claim under the Consumers Legal Remedies Act, which does not require him to prove his reliance on JAMS’ representations was reasonable.
JAMS has countered that damages under CLRA are equitable in nature and therefore must be decided by the judge – not the jury. Meyer has made a lot of noise during the trial that JAMS’ position has merit, but on Tuesday he rendered a final decision: “I’m going to let it go to the jury,” he said. But he made clear he might reconsider the issue posttrial. “I can have an advisory jury, maybe,” Meyer said.