Tort Reform Propaganda and Arbitraitor Repeat Player Bias
How would you feel if you were sentenced to two years in prison for speeding because murder has gotten out of hand? Chances are you wouldn't like it, since a petty offense like speeding doesn't have anything to do with serious crimes. But the U.S. Chamber of Commerce and tort reform supporters commit a similar bait-and-switch when pushing the tort reform agenda.
An April 28 Bloomberg article discusses the Chamber's renewed push for tort reform and cites shocking statistics about the unfairness of arbitration proceedings for employees and consumers. The Chamber's tort reform advertisements are pure propaganda. The Chamber cites lawsuits that sound frivolous. But the Chamber does not seek remedies that hold filers of frivolous lawsuits accountable. Instead, it seeks to put caps on recoveries in all cases, including for victims in legitimate cases with large damages. It's like arguing that you should be put in jail for speeding because there is a murder problem. The public does not understand this distinction, which is how the Chamber wants it.
Tort reform passed in Mississippi years ago. The public does not understand what legislation passed or what it means. I have yet to meet a client or potential client who understood that tort reform caps damages for meritorious cases. Everyone just assumes that it only affects frivolous lawsuits, since that's what the Chamber and other tort reformers talk about. Unfortunately, there has been no organization with the funding or marketing acumen to educate the public on the Chamber's propaganda.
The Bloomberg article also cites a study that found what many lawyers have long suspected, that arbitrators favor business interests in the hopes of getting hired in future cases:
Alexander Colvin, a labor professor at Cornell University, published a study in January that examined employment dispute statistics from the American Arbitration Association. Employees won 31.6 percent of the time if the employer had no other case with AAA; 16.9 percent of the time if the employer had more than one case with AAA; and 12 percent of cases where an employer and a particular arbitrator were involved in cases more than once.
Colvin worries that “repeat player bias” is at work, with arbitrators favoring employers in hopes of being selected for future hearings
Of course, the Chamber argues for arbitration with claims that it is quicker, cheaper and just as fair as a court proceeding. In a previous post I criticized the costs of arbitration, but now there is solid evidence that arbitration is unfair in addition to being expensive. There is currently an arbitration fairness act pending in Congress that would ban pre-dispute arbitration agreements in some consumer agreements, such as nursing home admission agreements. Look for the Chamber's propaganda push to fight this legislation. You can bank on the fact that the Chamber's ads will be based on its frivolous lawsuit bait and switch tactics.
I have been a volunteer for a consumer org for about 8 years. Arbitration clauses strip consumers of their right under the U.S. Constitution (7th amendment)to use the courts. Loss of this right leads to severe loss of LEVERAGE to motivate wrong-doers to settle a case before it has to go as far as litigation.
Also, consumers have been unaware of what arbitration really is, so even if they read contracts and think they understand them, they find out too late that arbitration privately run by an industry is rigged against consumers.
Gag orders in arbitration agreements can further silence people. This means when you research a company before buying, you could be deprived of numerous records of complaints that might make you choose another business if you knew the truth.
One way consumers can be forced to arbitrate is in warranties they only get to see after purchase. Home warranties are a big offender in this category in my opinion.
While a few courts have thrown out especially terrible arbitration clauses, most courts enforce them. Even some lawyers do not understand what a trap arbitration is until too late.
There is so much about tort reform and the 'business friendly' agenda that is just plain wrong that it would fill volumes. It should be changed to 'fraud friendly.'
Sadly, mainstream media has chosen to cater to business advertisers, or fears them, and most "news" about the legal system is just tort reform propaganda repackaged as truthful news. Fabricated "cases" are just one example of how the news can be wrong. The public is left clueless, unless they have formal legal education or have personal experience w/the justice system. Therefore even if the Arbitration Fairness Act passes--and I support it!--consumers need education on how the legal system works and what arbitration really is, before this problem will go away. Passing this bill will be a huge step in the right direction and will send a message to corporate America that Americans are sick of this unlevel playing field, and wising up to tort reform nonsense.