Our jury system is in trouble, big trouble, and that’s no small matter. It’s a Constitutional matter. The right to a civil jury trial is enshrined in our Constitution’s Seventh Amendment as part of the Bill of Rights.
But that right is under siege, as explained in a recent series of New York Times articles. Who is assaulting this important right? Corporate America. Corporations are tucking away arbitration clauses into the contracts their customers and employees are routinely required to sign. These arbitration clauses state something like this: “The company may elect to resolve any claim by individual arbitration”. With these simple words, corporations are depriving millions of Americans to their Seventh Amendment right to a jury trial.
Examples abound. Do you have a credit card, a cell phone, or internet service? Then you have given up your right to a jury trial in any dispute with those companies. In the fine print of your service contract lies a hidden a requirement that you “arbitrate” any disputes at a forum pre-selected by the corporation. The same is true in many employment contracts you might sign. Think your boss has discriminated against you? No jury. No Court. Arbitration.
What’s wrong with that? Lots. The arbitration forums chosen by corporations are generally heavily stacked with pro-corporate arbitrators who are afflicted by something called “repeat player bias”. What’s that? You might go up against a corporation in arbitration just one time in your lifetime. The arbitrator doesn’t know you from Adam. But the corporation you are up against appears repeatedly before those same arbitrators defending claims brought by all its customers. The corporation is a “repeat player”. Repeat players get cozy with the arbitrators. If the “repeat players” don’t like certain arbitrators “tendencies”, they refuse to select them or otherwise sideline them. The arbitrators know who butters their bread. If they want to stay in the arbitration business, they had better please the “repeat players”.
Another problem: The arbitration clauses are written to prohibit class actions. That’s why the language quoted in red above says “INDIVIDUAL arbitration” is required. You can’t go up against the corporation with a group of other consumers who were ripped off just like you were. Each consumer has to go it alone. Thus, companies like AT&T can rip off all their customers for small amounts – say $30 each – and the victims can’t ban together to bring a class action. And how many of them are going to bother going through the arbitration process on their own for a measly $30? None. And that’s one of the reasons corporations are forcing us into arbitration agreements.
These arbitration clauses have not yet had much impact on New York personal injury lawyers or the cases they bring on behalf of injured victims of corporate or medical negligence. Plaintiffs injured in New York by the negligence of others still have – in most cases – a right to a jury trial. But it is probably only a question of time before doctors and manufacturers try forcing arbitration clauses onto their patients and consumers. Not sure how all that will turn out. But for anyone who believes in an even playing field and in our Constitution, it is scary . . .
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Michael G. Bersani, Esq.
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.