recession finish up for the day we begin with why age incorporated versus ashcroft smashed mr higgins after the argument but before the submission he had you know his affidavit submitted to the trial court and submitted the objection was also raised in a post arbitration motion to step to vacate the award filed with the h b a and what happened is as soon as dr heller found out that the non lawyer arbitrator was a full employed full time employee of the law firm he contacted the chair of the committee and registered that concern and that was before the that was before the  award would be issued what he testified to in his affidavit is that he did not he detected something awful about the non lawyer arbitrator he cared a lack impartiality and conduct of some research now there were e mails containing the name of the non lawyer arbitrator and the name of the law for jackson walker that employed but that but that those emails did not say attorney it did not say law for he did not know that and he believed that it was an accounting for him so he probably did get a problem that you've got i think is that  the burden are to be on everybody participates in this thing to raise an objection like that right at the outset and to and that means that you've got to do your homework before the home dance get started and he didn't do that here well i would submit that there is no duty to conduct an inquiry where the rules say no financial interest direct or indirect in the practice of law a member of the public who agrees to submit a seed to speak to arbitration should be able to rely on that representation in the rules can interpret the rules but again that comes back to whether there is an this is an arguable construction of the rules and this is not this cannot be agreed the committee could interpret its own rules that seems well they have tell me why that isn't game over well they need to be some balance what if if the committee is good if the if an arguable construction is not required what is to prevent the h b a from appointing in this would be absurd but it would be permitted appointing a course to sit as the non lawyer arbitrator the rules do not say that or for that matter a focus point because the rules do not say that the non lawyer arbitrator needs to be a human after all it doesn't even say that the you know on one or arbitrator needs to be a sentient being and so there needs to be  and there is some review it must be an arguable construction and an arguable construction of the h b a rule does not allow a non lawyer who is a full time employee to set as an arbitrator the arbitrator with not qualified and we can talk about why that is the district court considered the meaning of the district court in fact look you in attempted to construe or look to the meaning of the term financial no financial interest that the non lawyer arbitrator did not have a financial interest soley under the second prong of the definition she wrote that the non lawyer arbitrator is not an owner of a law firm and for that reason has no financial interest well settled that that contract that agreements and statutes are construed according to their plain language and so that and so that no term is rendered meaningless every term is given effect the construction applied by the h b a in this case and by the lower court renders the words direct or indirect financial interest in the practice of law meaningless and the reason is is that a non lawyer under the texas rules of disciplinary procedures and the model code lawyer cannot own an interest in the practice of law the lawyer cannot own in law for a novel or by definition is someone who does to include employment so we would submit that there is no arguable construction under which a full time employee of a law firm is a would conferred the h b a encourages attorney fee arbitration the parties agreed to the rules those rules advertise a degree of impartiality and at least one of the arbitrators objection issues that the panel asked about about when did light age of jact zero is the objections in the record before or i should say in the months following  i guess it said that the decision was issued on february twenty second of the of two thousand and sixteen and the first objection came in the month following that which is march there are no other objections before that so i think that's a huge problem that record as well one of my sworn declarations to confirm to i guess the district court when i had to go through the litigation process that i had never been made aware of this issue that they suddenly had after the fact and i think it comports with i guess the classic kind of after the fact trying to go back and rewrite you know everything that you did wrong to try and have another i guess second bite at the apple if you will as far as arbitration goes and they they have a second  i guess affidavit that they try and come in with in december of two thousand and sixteen in the district court to try and then further clarify the fact that they had forgotten about the fact that anna davis who was a non lawyer arbitrator had exchanged i think it was a total of twenty two e mails over the course of about four months from october two thousand and fifteen to the issuance of the award which is in february of two thousand and sixteen and i think it's on page forty five and forty six of my brief i went to great lengths to show the huge giant bold letters that say and davis payroll manager jackson walker that was a correspondence of e mails that was exchanged between the parties at the very outset and we tried to do a favor my opponent a favor and rescheduling arbitration do accommodate their schedule and so the parties in the panel exchanged e mails and that's exactly where the e mail came from that kind of set out where she  works as far as that goes as far as a judge will you had asked about the game over issue the h b a interpreting its own rules and i absolutely agree with you it's plainly obvious and it's showers are mandatory term issues consistently throughout that i guess rule and the sub provisions two point zero three d and c d is you know that the f t c are basically in this case the houston bar associ have the following powers and duties to interpret the rules and to appoint the arbitrators there's nobody else in the world that does that that was something that both parties looked at they said they read the rules and understood the rules and they agreed to this process there's no i guess the ability for other outside interpretations to come in here light age goes to a lot of great lengths to set out all these different things in their brief about a texas attorney general lottery statute hearing aid statute the federal statute the short circuiting answer to that i guess long explanation that they give is that the parties didn't agree to interpretation based on those other things we only agreed to the houston bar t association interpretation of their own rules that's it and it really is that simple and it's it's frustrating at times to figure out why i respectfully that we're here because it should be plainly obvious that the rules make pretty plainly clear that the too liberally construe their own provisions really to go up the fundamental purpose of trying to resolve a dispute and this case is the exact opposite of what arbitration is really all about which is that an efficient and cost effective method or an alternative to is my opponent i think it one part of his group tries to talk and explain that perhaps that there is a property interest in her salary if she had one and we don't even know if she had a salary don't know exactly if she was full time or not but we do know is that one she wasn't a lawyer t o that if she wasn't was compensated by jackson walker which is a reasonable construction of the you know the record that an at will employee in texas does not have a property interest that's protected and the two decision and bilko is applicable and should guide the court's analysis and book over first directly to the u s supreme court's decision and how some of the dean witter whether that says that the procedural nature of this type of an issue something that i think the parties would reasonably expect a form based local energy to make a decision on in place at the court and it's not really  which would go to like subset of our but ability issues likewise it's not a case where you have a method challenge there's nothing like these string of cases if you look at the court's reasoning in both pro and a lot of other cases they talk about well if that the method sat out said that they're supposed to be three arbitrators and they only appointed two we don't have that here what we have here is two lawyers and one non lawyer appointed by the h p a rules according to their own interpretation which the rules say that they plainly be able to interpret and there's no one else in the world's no no no notion of anybody else that should be deciding that except the houston bar association well the point is the point is that  all about what the parties agreed to nobody has to agree to arbitration once they agree to it then we look to what did they agree to have decided by arbitration and then to hear of it the that they decided that this is the sort of issue would be decided in the arbitration bench that's the end of it all has to do with agreement yes or i don't i want to i don't know if there's any there is no one there is no argument here today mr ashcroft smith did not make an argument that a reasonable can that an arguable construction of no financial interest other than as a consumer direct or indirect in the practice of law can include a and individual who is a full time employee of a law firm but the argument still to justin's is is that the word to interpret these rules gives the h b a regardless of the parties agreement regardless of what is stated in the h b a rules carte blanche carte blanche to determine the to determine the qualifications of the arbitrator's it renders the language meaningless and there needs to be an arguable interpretation i would arbitration agreement there's no evidence until after the arbitration occurred in late age registered its objection after arbitration but before the award of the registered its objection again following the a party is not required to object to the qualifications of an arbitrator's it would does not have actual notice this is not any impartiality shall this is  qualifications power to decide the case challenge and constructive knowledge is not the test for that challenge