The last post, Should appraisers be prevented from speaking with parties to the appraisal? noted Jonathan Held’s 2nd Edition of “The judging process: An overview to make awards useful and final.“ The newspaper promotes the following protocol regarding ex parte messages from a judge:
Neither the insurer, the insured nor their respective agents shall have any ex parte communication with the judge or with the opposing party’s appraiser. The appraisers should not have any ex parte communication with the referee.
The issue of judges̵7; contact with other appraisers ex parte must occur in every assessment. John Robison of The Property Loss Appraisal Network (PLAN) teaches it ex parte communication between judges and appraisers should, with few exceptions, not take place except when it is strictly administrative.
Still a case in Louisiana1 has motivated ex parte communication:
It further alleges that Carpenter relied on O’Leary’s opinions with respect to a number of the decisions in the award and that the final figures were calculated personally by O’Leary and Carpenter without Provencher’s participation or input. Defendant points out that O’Leary explained Provencher’s absence from the last meeting with Carpenter by noting that “[i]n the final deliberations when an appraiser is the apparent heir apparent to the victory, these conversations take place all the time between a judge and an appraiser as they try to finalize an award.”… Defendants argue that this statement is evidence of O’Leary’s bias.
This evidence does not demonstrate a lack of impartiality on either O’Leary’s or Carpenter’s behalf. Mere agreement between the two is hardly misconduct; in fact, that is the whole purpose of the judge’s involvement in the process. As to Carpenter’s reliance on O’Leary’s numbers, the Court finds no evidence of bias. Carpenter testified that, after reviewing the submissions of both appraisers, O’Leary’s numbers made more sense to me than [Jerry Provencher]’s did.’… Nothing in the policy language requires the judge to conduct a de novo inquiry into the damages, and defendant has pointed to no legal authority suggesting that a judge’s reliance on an appraiser’s figures is evidence of impropriety.
Defendant’s second suggestion, that Carpenter and O’Leary’s failure to include Provencher in the discussions that finalized the award is evidence of collusion or impropriety, likewise lacks merit. The depositions of both Carpenter and O’Leary explain at length why Provencher was not included in the final discussions. By this time, Carpenter had already received and read the reports and rejoinders of both appraisers. When repeatedly asked about Provencher’s absence from the discussion, O’Leary testified that it was clear that Provencher would not agree to the numbers he and Carpenter were leaning on, and that including Provencher in the discussion “wouldn’t accomplish anything.”
In addition, Carpenter testified that, in his view, Provencher had ceased to participate in the process. He stated that Provencher had missed deadlines, stopped sending emails and had nothing else to submit in rebuttal. Id. at 40, 51–52. ‘[Provencher] took himself out of the loop, pretty much. Preserved
asked him for more rebuttals, more input, and he had none.’…
Finally, Carpenter testified that Provencher had lost credibility in his eyes when the award was finalized and that he doubted Provencher’s numbers. Carpenter specifically testified that ‘Jerry had made some mistakes and actually lied to me and Lewis [O’Leary]’ and ‘actually went the opposite way from what his own engineers recommended and lost some credibility with me on it.’ ….
In sum, the deposition testimony provides extensive, impartial reasons why Provencher was not included in the final discussions. The testimony establishes that O’Leary and Carpenter excluded Provencher not because of bias, but because they knew Provencher would not agree to their number and because Provencher had no more material to submit that would have affected the outcome.
I suggest it is best for judges to avoid ex parte communication. Perhaps these communications can be justified. But why create a controversy when one can be avoided?
I think unconscious bias is one of the hardest things to get at.
—Ruth Bader Ginsburg
1 St. Charles Parish Hospital Service Dist. No. 1 v United Fire & Cas. Co.681 F.Supp.2d 748 (ED La. 2010).