Corporate America loves pre-dispute, binding, non-appealable, secret arbitration. They have carefully crafted this method of protecting their fortunes, and have criticized the primary force that could stop them: Trial Lawyers. How? They have resorted to name calling (Greedy Trial Lawyers) and media sensationalism (Frivolous Lawsuits)! These methods of propaganda have become so ingrained into the fabric of our society that many will think me a fanatic for taking issue with them. I’ll run that risk…
Corporations say that Trial Lawyers only want to end arbitration to line their pockets – that no other motive makes sense. They have sold that image, embraced it as a truism, and are trying to sell it to the American public as if it were an absolute. Why not? Americans hate the Trial Lawyer anyway – it’s an easy sell.
Trial Lawyer’s work on a contingency fee basis. How Greedy of us! We spend our own money up front to fund litigation that may – or may not – pan out. Many of my friends have had to mortgage their own homes to fund litigation for cases for other people. We are called “greedy,” yet I know of no other profession that truly “puts their money where their mouth is,” quite like these Trial Lawyer warriors.
Often, Trial Lawyers have to borrow money for cases at exorbitant interest rates (hedge funds typically charge us 21% or more) in order to help our clients fight for justice. Then, we get paid – only if we win. Our clients take no financial risk in the litigation – other than the prospect of losing. As a good friend of mine is fond of saying: Some lawyers get paid per hour; others per case; but Trial Lawyers get paid perhaps.
So, why don’t we just charge the client by the hour like the big business lawyers do? Well, show of hands: Who can afford $200.00 - $350.00 per hour, plus expenses, to bring a case against a large corporation. Those of you with your hands up, you are the ONLY people entitled to justice – unless of course, you can find an attorney foolish enough to take the risk for you. In this country, we have become fond of calling such people: GREEDY Trial Lawyers. This concept of only getting paid for winning certainly makes the frivolous lawsuit a stupid idea, doesn’t it?
What most people don’t realize is that if we take frivolous lawsuits, the courts will do 2 things: 1. Dismiss the case, and 2. Sanction the attorney for bringing it. This is not a new concept. It has been around for decades. Trial Lawyers, therefore, do not take frivolous lawsuits as a rule. On occasion, there is someone with a wild idea – that almost always ends in disaster for him/her or there is a media spin on an otherwise legitimate claim. “Hot Coffee wins $Millions” sounds horrible until you know the truth about the company policy that directed that the coffee be served at scalding temperatures so that there would be fewer free refills – and bigger corporate profits. When big business interests introduced “tort reform” they never told you that. They never told you the real facts of so many of the cases that they used to lead the charge. They never told you that real frivolous lawsuits were already being dismissed as a rule and almost never saw the light of day. Instead, you got spin. You were told that your insurance premiums were going up because of frivolous lawsuits and that you were not going to be able to get medical care. You bought the big lie. Have your premiums dropped? Yeah – mine either.
Since big business (and the 30 Senators who voted to continue doing business with companies that force rape victims into arbitration) continue to tell you that the only reason the “Greedy Trail Lawyers” don’t like arbitration is because we want to increase our own bottom line, let’s address that.
They say that we would get paid less in arbitration than if the case went to a jury – of fair-minded Americans like you. It’s true, I admit it. You see, as a trial lawyer, my fee is based upon a percentage of the amount awarded by a jury or arbitrator – or whoever. I will get paid less on a case resolved by an arbitrator BECAUSE the total will be less. What big business doesn’t tell you is that my client will be paid less in front of an arbitrator, too. A jury, on the other hand, is not bound to keep the big corporation happy – to garner repeat business. A jury is bound only by the instructions in the law as given by a judge. If the law is not followed, there is a right to an appeal. The case is open to the public, and the decisions can be scrutinized. The arbitrator knows who “butters his bread,” so to speak, he knows that the decision is not subject to appeal (even when he blatantly disregards the law), and he knows that his decisions will be secret – so that they are not even subject to public scrutiny. It is a recipe for one-sided “justice.”
Why are these arbitrations provisions signed “pre-dispute?” Well, when the conflict has not yet arisen, it is far easier to take advantage of an unsuspecting victim. The consumer, or the employee, will simply agree with the trusted, always honest (okay – that was tongue-in-cheek) corporate representative who tells them that this is the quickest, most efficient, easiest, and most confidential means of resolving conflict. Old England had such a system, too. They called it the Star Chamber, and doing away with the atrocities from that system was one of the driving forces behind our Founding Fathers drafting of the United States Constitution. They must have been greedy, too. You know that these “pre-dispute” arbitration provisions had to be written by someone. You suppose maybe that it was the lawyers for the very corporations who are trying to avoid payment for legitimate claims? I am just guessing that they worked real hard to make sure that the provisions prevent injured people from holding the corporations liable. I wonder why they don’t tell people that – pre-dispute?
Why are these decisions binding and non-appealable? This makes the final resolution quicker, right? I mean if you can’t appeal then the dispute is over – even if you are unhappy with it. Even when the arbitrator blatantly disregards the law, there is no appeal. But an arbitrator would not disregard the law, would they? I mean, it’s not like these large corporations keep track of who sides with the individual, then strikes them from every arbitration list from that point forward. Companies are not so interested in their bottom lines that they would circumvent justice, are they? Well, maybe the arbitrators don’t know this – perhaps they don’t talk to one another to realize that ruling for an individual over a corporation is career suicide. Or, perhaps they know, but they don’t need to work. Or perhaps they are courageous, stare poverty in the face, and rule for the individuals when it is deserved. Right? Why would they? Their decision is not appealable – or even public.
Why all the secrecy? Of course the individual must want their privacy in these matters, right? Nevermind that hundreds of claims (often very similar in nature) never see the light of day to bring public scrutiny on the company. This provision is just to help the people – or so they say. Secrecy was also a hallmark of the Star Chamber, and secret justice is one of the things that we definitely tried to end with our own Constitution. In fact, we went so far as to claim that we wanted to do away with such secret systems of justice in Iraq, did we not? We went to war over there to “liberate” the Iraqi people, and to shed light on their system of justice. Why are we shedding darkness on our own? Could it be that big business does not want you to see what they are doing behind closed doors?
Companies want arbitration because they want a playing field where the odds greatly favor them. As a “greedy” trial lawyer, I will continue to risk my time, my financial resources, my emotional energy, and anything else that I have to personally risk for one thing: Justice. I will do this because I believe in the words of Theodore Roosevelt that “no man is above the law and no man is below it. Nor do we ask any man’s permission when we require him to obey it.”
Call my clients and I greedy, call my cases frivolous, call us anything you wish, but please hear us in court – where you can rule with your own sense of justice. Do not allow every case to die at the hands of those with a stake in the outcome.
As a “greedy” trial lawyer, I advise every “greedy plaintiff” with a “frivolous lawsuit” that comes before me to avoid the injustices of arbitration – if they still can. Arbitration is fraught with bias and hidden agendas that cannot be brought so easily into an American courtroom. Proponents of arbitration tell us that juries are not capable of understanding the intricacies of many of the issues that are brought before them. As the party carrying the burden of proving those issues, I trust you – American people – to have the ability to know right from wrong; to come into the courtroom with a pure heart; to want justice to prevail; and to be able to carry out your duty without fear of repercussion.