[Update (3:30 CDT): St. Louis Post-Dispatch article on forced arbitration clauses [St. Louis Post-Dispatch via Consumer Law & Policy Blog]
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I'm fascinated by your argument that "adhesion" arbitration clauses violate the Seventh Amendment.1) Are you saying that you negotiate your retainer with your client every time you take a case? Or are there non-negotiable "adhesion" terms in your contract? Indeed, is it a form contract? If it's okay for you, why isn't it alright for the highly competitive cell-phone or credit-card market, especially when it lowers costs to consumers?2) Every plaintiffs' lawyer's retainer agreement I've seen includes an arbitration clause. Are you above such things? If you are, why aren't you criticizing the plaintiffs' lawyers who require their clients to agree to secret arbitrations when their clients seek to sue them for breaches of fiduciary duty?3) How does an arbitration clause violate the Seventh Amendment? Are you violating the Seventh Amendment when you contractually settle a case before it goes to a jury trial?
Ted,Thanks for continuing to read and for offering your comment. Let me address item (2) first: The attorney's contracts used by our office do not contain arbitration clauses. I have not seen a plaintiff's attorney contract containing an arbitration clause.That said, please note the terminology used when I included your post in the roundup of topics above -- specifically, I did not say that arbitration agreements "violated" the 7th Amendment. (Admittedly, I have not researched this issue in depth - but simply included the topic in a round up of interesting posts. I suspect there are some out there who would, in fact, suggest that adhesion contract arbitration clauses violate the constitutional right to a jury trial).What I did say was that such provisions "waive" a fundamental constitutional right -- namely the right to a jury trial.One would not lightly contract away the right to free speech, to peacefully assemble, to carry a firearm, to practice the religion of one's choice, etc. simply for the benefit of using a cell phone, renting a car, flying on a airplane, or even buying an iPod. If companies starting putting such clauses in their standard boilerplate contract language waiving such rights, my guess is that people would be outraged.The outrage and concern should be no less with respect to the right to trial and access to the courts. Too many have fought and died for these rights. We should not give up our fundamental liberties so lightly.Thanks again for reading.
For a plaintiffs' lawyer's typical use of arbitration, see LINK The word "waive" never appears in your post, but we'll read it in: People waive constitutional rights all the time. You, Brett Emison, waive your first amendment rights when you take on a new client and receive communications from her; most jobs prohibit bringing guns to work, and some also require drug tests; and the vast majority of your clients waive their seventh amendment rights when they settle cases they brought. So you're trying to make it seem scary that an arbitration clause waives a constitutional right when it is in fact quite routine to do so for personal economic benefit. Since consumers do better in arbitration than in the court system, anyway, I fail to see the problem.The lack of response to my other questions suggests that the other scary words you used to characterize arbitration reflect only your attempt to frighten people from a policy that would reduce costs to them but personally cost you and your guild money.
Ted is on fire! Of course "waive" was there (albeit, and you're a smart cookie, so you should follow this, in the form "waiving"). See, it's right there: "Ted's argument that adhesion arbitration clauses WAIVING a fundamental right constitutional right are there for your protection, not the corporation's (forget that pesky 7th Amendment)" [caps added]And you have to know better than to assume that businesses pass on cost savings to consumers when all businesses would bear the same cost. That just doesn't make sense. In fact, and this is the MBA talking, not the lawyer, the last thing we want is for businesses to compete on cost alone. That leads to disaster (see any industry, particularly the airlines).Having read this post, and Ted's, I have to say Ted's argument that any is scaring anyone else with hyperbole merits a quick, kettle, meet pot moment!
Ted's link to the article about "typical use of arbitration" is hilarious! First, I've never seen plaintiff contracts with arbitration agreements, but obviously this one did have it, and I'm a little new to the business. The kicker, though? Overlawyered having to note that the arbitration system works perfectly for defendants, by allowing the case to drag on for seven years and be shielded from publicity:"Arbitration is generally quicker than litigation, but O’Quinn seems to have successfully stalled this case for over seven years, not to mention avoid any publicity from it. To date, we are the only media source that has even mentioned the contempt hearing."That is EXACTLY why it is good business for corporations to use arbitration!
Ted,Thanks for checking back and continuing to comment. Let me again try to address your comments and concerns:I am curious as to your choice to support adhesion clauses requiring binding arbitration when required by cell phone and credit card companies, but to oppose similar clauses when used by a plaintiff's attorney. Under your logic, wasn't John O'Quinn just looking out for his clients? Wasn't O'Quinn just ensuring that his clients utilized the "better", "more efficient" means of resolving their dispute. Wasn't O'Quinn just ensuring that his costs were kept low in order to "return" those savings to his clients?Of course not. Assuming your description of Mr. O'Quinn's conduct is accurate, then O'Quinn acted reprehensibly and was looking out only for himself in forcing oppressive contract terms on his clients. He should be held accountable and his connduct should be condemned.You have selectively supported adhesion arbitration clauses when used by corporations but attack the very same clauses when used by plaintiff's attorneys. I oppose adhesion arbitration clauses in all circumstances. With respect to use of the term "waive": you are correct that the precise term "waive" does not appear in the original post. I used the term "waiving". Perhaps I should have simply quoted from the language that appears in the original post at the top of this page rather than paraphrasing. However, that does not change the substantive accuracy of my reply to your comment above. If you want to split hairs regarding such detail, that is your perogative.Your reference to O'Quinn's contract containing arbitration language is the only such agreement of which you have provided evidence. This certainly does not prove that "every plaintiff's lawyer's retainer agreement" contains such language (it doesn't even prove that "every plaintiff's lawyer's retainer agreement [you've] seen" contains such language). Likewise, it does not prove that such language is "typical" in plaintiff's attorney contracts.I have responded to the three categories of issues containing in your original inquirty: (1)The contracts I use are negotiable. As you are aware, there are certain elements of an attorney-client relationship governed by applicable codes of ethics (trust accounts, control of certain aspects of the case, and other ethical responsibilities). These terms are non-negotiable -- and none of those terms invovle fundamental civil liberty issues. (2) I have not seen a plaintiff's attorney contract containing mandatory binding arbitration language. I would not support or condone such language unless specifically requested by the client (and even then, I'm not sure I would agree). (3)I have not said adhesion arbitration clauses "violate" the 7th Amendment -- I will leave it to others to determine that. Your suggestion that settlement of cases is similar to adhesion arbitration contracts with respect to 7th Amendment rights is not correct. Settlement of a case involves an arm's length transaction in which the client plays a critical role. In fact, in our cases, it is always the client's decision as to whether the case settles before trial. The settlement situation in which the client makes an informed, arm's length determination about the issue is far different than boilerplate language in a non-negotiable contract. Apples and Oranges.I support arm's length contracts and negotiations. The adhesion arbitration clauses you defend are not that. Adhesion arbitration clauses are there for the corporation's benefit, not the consumer's. We are all free to enter into such agreements based on arm's length negotiations or (better yet) based upon an arm's length agreement when the issue arises.The right to a jury trial under the 7th Amendment is a fundamental civil liberty valued by our Founding Fathers and included in the Bill of Rights. Without it, one could not defend and uphold all other remaining rights without resort to violence. The right to trial is used to uphold the rights to free speech, to peacefully assemble, to practice the religion of our choice, to ensure equal protection, etc. It's important enough that I'll say it again: We should not give up our fundamental civil liberties so lightly.Thanks again for reading.
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