By Eric Roper

Al Franken used to write books slamming his foes for allegedly manipulating statistics. And as one witness before the Judiciary Committee learned on Wednesday, old habits die hard.

Franken's target was Mark de Bernardo, executive director of the Council for Employment Law Equity, who clashed with the senator on his top issue this week: arbitration. It is a technique to keep legal disputes out of court and the topic of Franken's recent amendment, which passed the Senate on Tuesday night. His bill bars funding from defense contractors who prevent employees from suing over sexual assault and other charges.

Despite the major legislative victory, an unusually terse and irritated Franken emerged on Wednesday as he questioned de Bernardo, who was singing the praises of arbitration before the committee.

The senator spent the bulk of his time attempting to debunk the witness, particularly a statistic in his testimony that employees have a 63 percent chance of "prevailing" in arbitration compared to 43 percent in litigation.

During the argument Franken repeatedly cited the inspiration for his bill, Jamie Leigh Jones, who was raped while working for a defense contractor in Iraq and allegedly imprisoned temporarily and prevented from legal retaliation because of an arbitration clause in her contract. Jones was also a witness at the hearing.

F: "Would you consider if Jamie Leigh had gotten a settlement of $50 that she would have 'prevailed' under this definition?"

B: "Senator Franken --"

F: "Please answer yes or no, sir."

B: "No, let me just say --"

F: "Please answer yes or no sir. Do you say no?"

B: "I say no"

F: "So in other words the statistics on who prevailed and who didn’t prevail – what would she have needed to have gotten, $100? Would she have prevailed if she had gotten $100?"

B: "I think it’s a distinction … what we’re talking about --"

F: "Answer yes or no, please sir."

De Bernardo eventually conceded that he did not know whether $50 would be considered "prevailing" in the statistic, leading to this exchange several minutes later:

F: "You told me that you don’t know if $50 to Ms. Jones would be considered in your statistic – whether that would be her prevailing. So you don’t really know too much about your statistic."

B: "There are two studies --"

F: "Here’s another statistic, sir, from the National Workrights Institute."

B: "Senator can I --"

F: "No. Give me a second. [They] found that the mean damages awarded by arbitrations was $49,000, the mean damages awarded by district courts was $530,000. That seems to be more beneficial to the employee, doesn’t it?"

B: (Inaudible)

F: "So thank you, sir. Thank you Mr. Chairman."

After appealing to committee chairman Pat Leahy to respond, de Bernardo said he hadn't seen Franken's statistic but had seen other statistics indicating that the average settlement in arbitration was more than or equal to litigation.

You can see the first portion of the questioning below, beggining at about 2:51.

Update: Jamie Leigh Jones' name was misspelled in the original verison of this post.

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