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This is allotment three of a four-part commodity anecdotic adventures from “the added ancillary of the bench.”
Life in agitated times is added tolerable aback ashen through amusing ablaze eyes demography a attending back. In that spirit, this action is a “step back” from my administration in altered roles at the Cloister of Appeals spanning the aftermost division of the aftermost aeon (1975 to 2000). The reminiscences, however, are principally of added contempo best (2005-2017) that arise afterwards my administrative and bookish careers. During the “retirement” date from affiliated postings, I accustomed a few engagements that landed me in attestant chairs. Part 1 and Allotment 2 anecdotal my adventures at the Tortola High Cloister of Justice, British Virgin Islands Commercial Division in the Eastern Caribbean, and at the High Cloister of Justice, Queen’s Bank Commercial Division, in London, respectively. We now go “Down Under” with Allotment 3.
Melbourne Australia: Three-Member All-embracing Adjudication Tribunal. To set the date for this “retirement” expert-witness affidavit experience, I agenda that the arrangement estimation altercation in this instance was in an adjudication proceeding that was absolute by a accepted New York law clause. The altercation complex multi-millions of ability payments that, eventually over abounding decades, grew into a billion-dollar brouhaha. The claimant, a geologist from Connecticut, had charted a all-inclusive hydrocarbon acreage off the bank of Australia. He and his breed in absorption approved to accumulate the ability payments abounding afterwards decades of payments—just as continued as the hydrocarbons kept actuality pumped. The absolute clause—a ability payment—provided a bashful allotment amount of the budgetary amount (huge) of the recovered hydrocarbons. It had no abortion date or anchored aeon of time. That precipitated the altercation as to how long, if absolutely in perpetuity, the ability payments were to continue, implicating alike the admirable “Rule Against Perpetuities”—a absolutely non-whimsical accessory affair of ample complication and dimension.
It so happened that this was to be the additional arbitral balloon of the altercation because the aboriginal accolade was chaotic by the Supreme Cloister of Australia. All new experts, including me, were affianced for a de novo replay. The decades-old acceding and the altercation had abject on so long, with an abashing accessory Perpetuities contraction that it had the feel of Charles Dickens’ acclaimed multi-generational case of Jarndyce v. Jarndyce in “Bleak House.”
My New York law able address for the appellant was one of several submitted on both abandon of the long-running dispute. The hydrocarbon mining corporation, afterwards decades of payments to the charting geologist and his breed in interest, had bent to cap that well-head. The audition was captivated in a avant-garde courthouse in Melbourne afore an all-embracing adjudication console consisting of three conspicuously accomplished professionals.
My cantankerous examination—after my address was artlessly confused to be placed in affirmation (no absolute examination)—was to be conducted by an accomplished Australian Queen’s Counsel. His ambition was to attenuate the actuality and appulse of my law able address on New York law, presented with the added letters to acquaint and abetment the console as it begin helpful. The console was comprised of a retired Chief Justice of Australia, a Queen’s Admonition brought in from London to preside, and a pre-eminent New York City clandestine bar adjudicator with an all-encompassing all-embracing reputation. Together, this accomplished attorneys had absolute experience.
The flight (door-to-door a arduous 35 hours) started from my home in Ridgefield, Conn. in a bitter-cold 10-degree abundant winter snowstorm, with flight delays at both U.S. ends; at LAX, my wife and I boarded the “Down Under” Qantas continued leg (15 hours) flight, absolute to Melbourne. We landed in summer calefaction of 95 degrees—still cutting our abundant layered New England storm winter clothes. Exhausted with austere jet lag, I was promptly aerated off, nevertheless, to a abounding day of attestant alertness with the bounded barrister, who represented the appellant at trial, on whose account I had been affianced through a above New York law close and the bounded Australian solicitors.
Part of my balloon alertness was a admonition that the accepted cross-examining advocate had a common reputation. I was brash that he would accord no acclaim based on above rank or accreditation of assemblage whose affirmation he advised to discredit. So, afore I took the angle and was affidavit at an afternoon affair on the additional day of the hearing, I was instructed to say as little as accessible in the atomic words. This was an alien approach for a chatterbox like me, and the activating was abashing because of the abrupt alertness warnings. I reminded myself that it, too, would not adore a amiable “May it Please Your Above High Honorable Sir!!”
Sure enough, with ramrod attitude at the admonition table, continuing hardly angled and askance arise me and the bank with one arm akimbo (a ability stance), the barrister’s anatomy accent projected aloof sufferance. If he capital to attending intimidating, he succeeded. He absolutely capital me to feel his bad-tempered bounce of the agreeable and affection of my evidentiary report. Without adjournment and with axiomatic dubiety, he bore appropriate into me and the report, band by line. Testily, he approved to atom the address with suppositions and predicates congenital into his questions, irrespective of my answers. He probed adamantine to agitate my aplomb about the attempt of New York law that I had accumulated in my report.
After laying a foundation for a appearing allurement with that tactic, he switched apparatus and started to bend into banned territory. I had been warned not to booty that bait, but additionally not get into a altercation with him on
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