The Bias Against Real People in Arbitration

A heavy-hitter SF Bay-area attorney who works more for the defense than the plaintiffs' side notes the pervasive bias for the defendants and the cost to the civil justice system of the US Supreme Court's decision to abandon the Constitution and the 7th Amendment, which allows defendants to privatize and starve the justice system through the use of private forced arbitration.

Forced arbitration of consumer and employment cases robs the system of legitimacy and promotes abuses by corporate defendants, who are encouraged by being allowed to operate under a shield of pre-emptive cover for wrongdoing. And it destroys the foundation of the common law, the basis for the American civil justice.

Are you seeing a significant drop in the amount of jury trial work that's coming your way at the firm? No. We're not seeing a slowdown. We're recognizing a long, 10-year problem of a lack of civil jury trials in anything but product liability and personal injury cases. And that's not a slowdown. That's just the way it's been for a while.

How much of that do you attribute to the move towards more arbitration in the sorts of cases that used to produce civil jury trials? I think it's huge. I think the big cases that used to be tried to a jury are now going to arbitration because of the contractual terms usually imposed by one big party on the other side—whether it's an employment agreement, a merger agreement or certainly a consumer agreement. The defendants are successful at pushing cases to arbitration which is a forum that's favorable to defendants.

Do you do much arbitration yourself? Yes.

And how do you like it? I hate it. It lacks the formality of the court system and it lacks review of the court system. There's no discipline in it.

What about that lack of formality benefits defendants? You can be a conference room lawyer and make your way through an arbitration. You know you don't have to worry about punitive damages in virtually all arbitrations. You don't have to worry about the rules of evidence. And there are often limits on discovery that make it better for defendants than it is for plaintiffs. It's trial for the one percenters is the way that I think about it.

Just because of the odds being in the defense's favor? No. [It's because] of arbitrators. Not all [of them]. Some arbitrators are wonderful and as former judges still try to act like judges. But quite often they act like people who are there to kind of keep everybody happy. . . .

What might we be losing in terms of lawyering skills? It's not just lawyering skills. What we lose is law. When people go to trial and those trials are appealed and appellate courts write opinions, law develops and law changes and law evolves. When all of that happens in an arbitration context, nothing happens. The other things that obviously atrophy are jury trial skills. Judges don't get enough of them, so judges don't like civil jury trials—some judges, not all. The lawyers don't get enough of them, so they're scared of civil jury trials. Right now my understanding is that 1.2 percent of all federal civil filings end up in a jury trial. That means the jury trial is almost extinct and in England they are extinct.

Read more: http://www.therecorder.com/id=1202745461876/A-Litigators-Take-on-Arbitration-and-the-Demise-of-the-Jury-Trial#ixzz3wPQRz6kQ