Bobby N. Harmon, CPCU, ARM
Louisville, Kentucky 40229-1655
November 19, 2003
VIA fax only @ (559) 490-1919
Ms. Julie A. Schermerhorn, Supervisor, and
Mr. Justin W. Schuck, Case Manager
American Arbitration Association
6795 North Palm Avenue, 2nd Ave.
Fresno, California 93704
RE: Mary Lou Woo, Trustee v. Bobby N. Harmon - Case No. 74 166 00491 03 JUSC
Dear Ms. Schermerhorn and Mr. Schuck:
This responds to Steven Guttman’s second letter dated November 17, 2003, in which he states:
“At this time, the Trustee will not further advance Mr. Harmon’s portion of the arbitration fees. While we understand that the Trustee’s unwillingness to further advance these fees will impact on our ability to proceed with the arbitration on December 2 and 3, 2003, we have concluded that these dates have not afforded the parties a realistic time frame. Furthermore, whatever date is assigned needs to be a date that will allow Mr. Harmon to be physically present at the arbitration session; we firmly believe this arbitration cannot proceed in a meaningful manner via a multiple day presentation by telephone.
“The credibility of witnesses, including Mr. Harmon, is an important factor in the disposition of this case. Without the arbitrator being physically present to view the witnesses, including Mr. Harmon, as they provide testimony, we believe the arbitrator will not be able to fully weigh the evidence being presented. We have looked into having the arbitration done via video conferencing but, given the potential length of the arbitration and the cost of the video conferencing equipment, we believe Mr. Harmon should be required to be physically present in Honolulu for the session.
“A further reason in support of continuing the arbitration is the lengthy witness list presented by Mr. Harmon. If he is allowed to present a significant percentage of the individuals identified in his list, it will be impossible to conclude the arbitration in a two day period. For the arbitrator to determine whether most of these individuals have relevant testimony, we will need to take Mr. Harmon’s deposition to determine why he is listing these people. I am prepared to travel to Kentucky to take Mr. Harmon’s deposition but the deposition needs to take place after the first of the year. Upon obtaining Mr. Harmon’s testimony, we can then follow up with the witnesses. To accommodate Mr. Harmon, witness depositions could be done by way of telephone conferences.
“The arbitrator wanted the parties to present a stipulated set of facts. Based upon the presentation that Mr. Harmon has been making, I’m not certain we have a stipulation as to what the issues are, let alone the stipulated facts. Certainly, at the time we take Mr. Harmon’s deposition and determine the reason for the lengthy witness list, Mr. Harmon and I can have a discussion as to the relevant facts that are not disputed.”
I am somewhat puzzled by Mr. Guttman’s statements and his reasoning for the proposed sequence of how the arbitration should proceed. Based upon his remarks, however, I would suggest the following alternative sequence for going forward with this case:
First, if the Claimant is not certain that we know what the issues are, then I believe she needs to amend her Demand for Arbitration in order that all parties, including the Arbitrator, may have a clear understanding of the basic issues before proceeding with any other matters.
Second, after the issues are clearly understood, I believe the Claimant should take the lead in working with the Respondent to develop a stipulated set of facts to be presented to the Arbitrator prior to commencement of the arbitration hearings.
Third, I would suggest that the exhibits be completed and copies given to all parties, including the Arbitrator, for review prior to commencement of the hearings.
Fourth, once the issues and facts have been stipulated and the Exhibits distributed, then both parties should be able to present shorter and more realistic witness lists for consideration by the Arbitrator.
Fifth, once the issues, facts, exhibits, and revised witness lists have been established, then the Claimant and Respondent should be able to more realistically assess what might be needed in the way of required time periods, depositions, physical presence, etc.
Not knowing if the above suggested sequence will be acceptable to the Complainant and the Arbitrator, however, I will also comment on other points in Mr. Guttman’s letter at this time.
Physical presence.
I do not, at the present time, believe it would be practical or cost-effective for me to be physically present at the arbitration sessions. With the current uncertainty regarding the health condition of my mother, and other day-to-day obligations, I would not wish to take an extended trip away from Kentucky at this time. Also, Mr. Guttman has previously advised that any such travel and lodging would be at my expense. As I am currently not employed, my limited income does not allow for such expenses.
I agree with the Complainant that it would be difficult for the arbitration, as proposed, to proceed via telephone conferencing. What I would hope, however, is that if we follow the five steps that I have outlined above, the Issues might be trimmed from five to one or two, the Exhibits reduced from thousands of pages to dozens, and the Witnesses reduced to a reasonable few. Then, conferencing by phone should be a viable option.
Mr. Guttman gives my “lengthy witness list,” as a reason for taking my deposition in Kentucky to determine why I am listing these people. I believe this would be an unnecessary and imprudent use of trust assets. I would point out again that Trustee Mary Lou Woo is the Claimant in this case, and I am only responding to her Complaint and to her list of witnesses. If the issues contained in the Demand had been clear, and if the Claimant had presented a short list of relevant, non-conflicted witnesses, my list probably would have consisted of one or two individuals, or perhaps none at all.
If you take a look at Claimant’s Witness List, for example, you will find that, with the exception of Claimant and myself, it consists entirely of the attorneys for various parties to the Agreement – not the actual signatories. Also, some of these attorneys may, themselves, be conflicted in this case, e.g. Matt Tsukazaki’s purported conflicting roles as the attorney for Kamehameha Schools and P&C Insurance Company, and as the Claims Adjuster for P&C and other unnamed insurance companies.
I also question how I am expected to obtain critical testimony from these attorneys when they can refuse to respond to questions simply by claiming attorney-client privilege. I believe that the witnesses listed by the Claimant properly should have been the actual parties to the Agreement. These would include many of those whom I have named in my Witness List, including the Kamehameha Schools Trustees, Hamilton McCubbin, Terry Mullen, Rocco Sansone and Clyde Mark. If the Complainant would be agreeable to switching these over to her list, then I can immediately eliminate about seventeen witnesses from mine. Furthermore, if the Complainant would simply provide copies of Attorney of Record letters, or similar documentation, proving that some of the attorneys I have named in my list were actually authorized to act on behalf of their purported clients, then I could probably eliminate three more witnesses.
Regarding Mr. Guttman’s statement about his need to travel to Kentucky to take my deposition in order to determine why I have named these Witnesses, perhaps I am wrong, but I would have thought that it would be the Arbitrator – not the Complainant – who would decide whether or not a such a deposition was necessary in order to determine the appropriateness of a witness. I would also think that I could adequately explain my reasons for these witnesses through correspondence rather than having to be deposed.
If Mr. Guttman is correct, however, and he is preparing to come to Kentucky for my deposition, then I believe I should advise him at this time that I am considering the submission of a revised Witness List to include additional parties that I now believe are relevant to this case. These witnesses include Paul Alston; Susan Tius; Judge Samuel King; former Chief Justice William Richardson; Dr. Randall Roth; Hawaii Insurance Commissioner J.P. Schmidt; reporters James Dooley, Sally Apgar, Rick Daysog, Ian Lind and Bruce Dunsford, among others. I should be able to reach a decision on whether or not to submit this revised list within the next few days.
Please feel free to contact me if you have any questions. Your assistance is greatly appreciated.
Sincerely yours,
Bobby N. Harmon
cc: Mary Lou Woo, Trustee, c/o Steven Guttman, Esq.
Kessner, Duca, Umebayashi, Bain & Matsunaga (via fax @ 808-529-7177)