TO : Captain xxxxx xxxxxx
FROM :
RE : Status of “MidAtlantic Airwaysâ€
DATE : December 17, 2007
The pilot committee has requested a memo be prepared and delivered to you that will help to outline that "MidAtlantic Airways" and US Airways were one and the same. This should not be a complicated task, inasmuch as both ALPA and US Airways have already acknowledged that this is so. It is the intent of this memo to provide sufficient detail to meet your request without compromising sensitive data. To that end, this memo is not confidential.
BACKGROUND
Before addressing the substance, we briefly deal with the arbitration award, which is replete with mistakes, poor assumptions, and absurd standards and priorities. First, arbitrator George Nicolau found that the 1,691 furloughees on US Airways’ seniority list included the MDA pilots. Building one mistake upon another, he next determined that “merging active pilots with furloughees†would be unfair. Thus, the arbitration award does not credit “MDA†pilots with the time during which they flew MidAtlantic equipment for US Airways.
The attorney is basically saying that the arbitrator's decision is flawed, that Nicolau erred as a matter of law. Well Mr. Attorney, that's the problem for you right there and as a NY attorney, I would expect that you would understand why and stop your letter there. Arbitrators are not bound by the same review as are judges. An arbitrator can only be reversed in the very narrow situations as set out in the U.S. Code. Period. Even if what you say is true, it's meaningless. Nicolau cannot error as a matter of law. No arbitrator can. That's one of the risks of arbitration. However, the overwhelming consensus is that the Nic Award was a good award, well written and supported by the facts of the case.
I also can't let this letter pass muster as some sort of authority because after reading it, I see what the attorney is up to. His letter is poorly written and should not be allowed to pass as good lawyering without the facts. First, notice how he does not follow an Issue, Rule, Application, Conclusion format. This is known by the acronym IRAC and it's the gospel format for all lawyers in all jurisdictions. For example, take his first paragraph. The first sentence is more of a conclusion than an issue statement (that the Nic award is replete with mistakes etc.) but I'm ok with that. One of my writing professors insisted that is a preferable way to start, but others disagree. Personally, I like starting with a conclusion because you can color the issue with your argument. Beware, however, that some judges won't let an attorney get with that sort of sneaky writing and will come down hard on the counsel who doesn't get the judge's drift. But for a letter to client, it's ok.
The attorney next needs to follow with a rule, but he provides none. Rather, sentence number two is an application (that Nic found the 1691 furloughees....) Where's the rule? The answer is that there isn't a rule. If one existed, it would surely be inserted at this point (see my rewrite below of the way the first paragraph should have been written). Without a rule, a lawyer is merely pissing in the wind.
Third sentence: ("Building one mistake upon the other...") you haven't shown where there are any mistakes, if it even mattered...your unsupported claim is weaking rather than bolstering your argument...get rid of it... ("he next found that....would be unfair.") Again, application of facts with no rule. Might as well say there is suspected water on Mars. Without a rule, what's your point, counselor?
Fourth sentence: ("Thus the arbitration award does not credit the MDA pilots with the time that they flew at MAA.") A conclusion, but unsupported. He never once in that paragraph explains why MDA pilots were entitled to their time in their arbitration. Again I ask, where's the rule?
Here's the proper way it SHOULD have been written.
"This arbitration did not credit the MDA pilots with their time in service accrued while flying at MDA. Under ALPA agreement XXXX, the rule was that XXXXX, such that MDA pilots would receive credit at mainline while flying at MAA. Here, Arbitrator Nicolau clearly ignored the ALPA rule/policy because he concluded that **** and this had the effect of not crediting MDA pilots with their time at MAA. Therefore, the MDA pilots were unfairly and inequitably burdened in the arbitration whose guideline were to treat all parties fairly and equitably."
That's the proper way to write. Although this is just a letter to a client (I'm guess the Capt XXX is a client), I would only advise The Attorney to be careful with what he's doing - he's playing with fire. Every letter that a lawyer writes to a client, he or she needs to understand that they are writing the letter for two readers: the client and potentially the Disciplinary Committee of the state bar. Client's ususally take the lawyer's word as gospel and that's understandable. But heaven forbid some issue arises between the attorney and the client, and then the Disciplinary Committee gets involved, then they will be reviewing the lawyer's work as committee of senior attorneys and former judges. That's why a lawyer's correspondence must at all times be air tight and written as if other lawyers will be picking it apart. The problem here is that it's impossible to write a legally legitimate letter because he cannot support his conclusions with rules of law or even ALPA rules. Rather, it is my understanding that the entire MDA agreement expressly addressed the issue of longevity and stated that there would not be mainline accrual, but I could be wrong. I don't know the exact answer but I do know that from The Attorney's letter, had there been a rule in favor of the MDA pilots, then it surely would have been included in a comprehendible IRAC format.
Heck..given a nudge now...you folks might even admit that your preconceptions of future court rulings aren't exactly built upon any seriously solid ground.
