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On August 08 2017 01:07 xDaunt wrote:No, this is an overly simplistic and incorrect way of looking at the issue. Yes, arbitration clauses prevent class actions (which I already said). What's omitted from the analysis is what arbitration does in terms of cheapening access to justice for plaintiffs. Take it from someone who routinely represents personal injury plaintiffs: the formalities of modern civil litigation -- especially in professional malpractice cases (like the nursing home cases at issue here) -- are incredibly overbearing. Any case with a value that is under $50,000 in value is cost prohibitive to litigate through trial. Frankly, I think it is foolish to litigate cases with a value of under $100,000. For professional malpractice cases (like nursing home cases), you generally should be over $200,000 given the additional standard of care expert costs. Arbitration allows the parties to closely tailor the proceedings to the need of the case by many of the formalities of civil court, thereby reducing the cost of litigation, and expanding plaintiffs' access to justice and relief for claims. Given that the vast majority of claims are not resolved in class action lawsuits, these are good tradeoffs for most plaintiffs.
You're basically parroting the Chamber of Commerce's position mixed in with some state law-dependent ROI intuitions. There's certainly merit there, but you're taking a position contrary to pretty much every consumer advocacy group, groups full of attorneys who can also claim to routinely represent personal injury plaintiffs.
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rather than pushing people into arbitration; I'd rather reform the civil justice system to have more lower cost options for litigation.
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On August 08 2017 01:31 farvacola wrote:Show nested quote +On August 08 2017 01:07 xDaunt wrote:No, this is an overly simplistic and incorrect way of looking at the issue. Yes, arbitration clauses prevent class actions (which I already said). What's omitted from the analysis is what arbitration does in terms of cheapening access to justice for plaintiffs. Take it from someone who routinely represents personal injury plaintiffs: the formalities of modern civil litigation -- especially in professional malpractice cases (like the nursing home cases at issue here) -- are incredibly overbearing. Any case with a value that is under $50,000 in value is cost prohibitive to litigate through trial. Frankly, I think it is foolish to litigate cases with a value of under $100,000. For professional malpractice cases (like nursing home cases), you generally should be over $200,000 given the additional standard of care expert costs. Arbitration allows the parties to closely tailor the proceedings to the need of the case by many of the formalities of civil court, thereby reducing the cost of litigation, and expanding plaintiffs' access to justice and relief for claims. Given that the vast majority of claims are not resolved in class action lawsuits, these are good tradeoffs for most plaintiffs. You're basically parroting the Chamber of Commerce's position mixed in with some state law-dependent ROI intuitions. There's certainly merit there, but you're taking a position contrary to pretty much every consumer advocacy group, groups full of attorneys who can also claim to routinely represent personal injury plaintiffs.
These aren't state-law dependent ROI intuitions. Every bar association is well aware of the problems of the cost of litigation and the consequences that these costs have upon judicial access. There have been a ton of studies showing what these cases cost. Here's one that I have cited to before, and even I think that the numbers in there are high. But even if you cut them in half, you still would get a very good sense of how cost prohibitive civil litigation generally is.
And as far as I am concerned, the plaintiff's bar has a huge conflict of interest here. They're the real winners in class action litigation -- not the claimants.
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They are state law dependent because some states have arbitration-like processes folded into the med mal/professional negligence complaint bringing mechanism that are precluded by arbitration clauses. Here in Michigan, for example, the case evaluation system avails plaintiffs of what amounts to a pre-trial arbitration through which a panel provides the parties with its estimate as to the value of plaintiff's claim, giving the parties a chance to settle before trial starts. Out of state arbitration agreements cut right into that scheme and many others like it depending on the state.
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On August 08 2017 01:53 farvacola wrote:
They are state law dependent because some states have arbitration-like processes folded into the med mal/professional negligence complaint bringing mechanism that are precluded by arbitration clauses. Here in Michigan, for example, the case evaluation system avails plaintiffs of what amounts to a pre-trial arbitration through which a panel provides the parties with its estimate as to the value of plaintiff's claim, giving the parties a chance to settle before trial starts. Out of state arbitration agreements cut right into that scheme and many others like it depending on the state.
All you're doing is proving my point: that arbitration is not necessarily a bad thing because of how it cuts through the expenses of civil litigation. That Michigan has created this early claims evaluation process to push parties towards settlement shows that the powers that be there clearly understand that these claims are costly motherfuckers to litigate. If the parties settle early, great. If not, then they're back to spending upwards of $100k on costs litigating the case. The whole point is that arbitration provides an alternative avenue for dispute resolution that can be favorable to plaintiffs -- particularly those with lower value claims.
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Your argument would make sense if arbritation was an alternative avenue instead of being forced, which it would not be if it came to pass.
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Arbitration isn't necessarily a bad thing, but forced arbitration is, particularly when full discovery arbitration-like state processes with the threat of a superseding trial verdict are available. Personally, I see arbitration making the most sense when you've got two or more parties with relatively equal bargaining power and a dispute that looks more like a negotiation as to terms.
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On August 08 2017 02:07 Dangermousecatdog wrote:
Your argument would make sense if arbritation was an alternative avenue, which it would not be if it came to pass.
What do you mean?
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On August 08 2017 02:07 farvacola wrote:
Arbitration isn't necessarily a bad thing, but forced arbitration is, particularly when full discovery arbitration-like state processes with the threat of a superseding trial verdict are available. Personally, I see arbitration making the most sense when you've got two or more parties with relatively equal bargaining power and a dispute that looks more like a negotiation as to terms.
This is naive. If you have a big catastrophic injury claim, you can do whatever you want, wherever you want. But what about the plaintiff with $50k in damages? Or even $25k in damages? What then? The vast majority of claims fall into these smaller damages categories.
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Here in Michigan, those plaintiffs get settlements because the penalties for rejecting case evaluation and going to trial give plaintiffs with small but definite claims far more leverage than they'd ever get in forced arbitration.
That is, only with the Obamacare rule in place.
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On August 08 2017 02:14 xDaunt wrote:Show nested quote +On August 08 2017 02:07 farvacola wrote:
Arbitration isn't necessarily a bad thing, but forced arbitration is, particularly when full discovery arbitration-like state processes with the threat of a superseding trial verdict are available. Personally, I see arbitration making the most sense when you've got two or more parties with relatively equal bargaining power and a dispute that looks more like a negotiation as to terms. This is naive. If you have a big catastrophic injury claim, you can do whatever you want, wherever you want. But what about the plaintiff with $50k in damages? Or even $25k in damages? What then? The vast majority of claims fall into these smaller damages categories.
i dont know, i am just asking, but does your position assume that defendants will avoid arbitration under the previous law where class actions and single suits were possible to get out of paying smaller damage claims to plaintiffs for whom the cost of litigation outweighs the potential reward? like cant you just write a law where its a one-sided option: plaintiffs get to refuse arbitration but corporate defendants cannot refuse it?
woth penalties built in like farva talks about it for bad faith negotiation by defendants
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On August 08 2017 02:08 xDaunt wrote:Show nested quote +On August 08 2017 02:07 Dangermousecatdog wrote:
Your argument would make sense if arbritation was an alternative avenue, which it would not be if it came to pass. What do you mean?
What do you mean what do you mean? You say that "The whole point is that arbitration provides an alternative avenue for dispute resolution that can be favorable to plaintiffs", but forcing is the opposite of an alternative.
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On August 08 2017 02:23 IgnE wrote:Show nested quote +On August 08 2017 02:14 xDaunt wrote:On August 08 2017 02:07 farvacola wrote:
Arbitration isn't necessarily a bad thing, but forced arbitration is, particularly when full discovery arbitration-like state processes with the threat of a superseding trial verdict are available. Personally, I see arbitration making the most sense when you've got two or more parties with relatively equal bargaining power and a dispute that looks more like a negotiation as to terms. This is naive. If you have a big catastrophic injury claim, you can do whatever you want, wherever you want. But what about the plaintiff with $50k in damages? Or even $25k in damages? What then? The vast majority of claims fall into these smaller damages categories. i dont know, i am just asking, but does your position assume that defendants will avoid arbitration under the previous law where class actions and single suits were possible to get out of paying smaller damage claims to plaintiffs for whom the cost of litigation outweighs the potential reward? like cant you just write a law where its a one-sided option: plaintiffs get to refuse arbitration but corporate defendants cannot refuse it? woth penalties built in like farva talks about it for bad faith negotiation by defendants
Defendants will do whatever they can to game the system in their favor. On the whole, they are more adept at gaming the system than plaintiffs.
You can legislate whatever system that you want subject to constitutional limitations, and states are actively experimenting with the civil court system to find solutions to the judicial access problem. And I'm not even necessarily advocating in favor of forced arbitration so much as I am pointing out that all of this rote shitting on it in the context of nursing home cases belies a terrible understanding of the economics and realities of civil litigation.
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On August 08 2017 02:31 Dangermousecatdog wrote:Show nested quote +On August 08 2017 02:08 xDaunt wrote:On August 08 2017 02:07 Dangermousecatdog wrote:
Your argument would make sense if arbritation was an alternative avenue, which it would not be if it came to pass. What do you mean? What do you mean what do you mean? You say that "The whole point is that arbitration provides an alternative avenue for dispute resolution that can be favorable to plaintiffs", but forcing is the opposite of an alternative.
You should really take a few minutes to think about how inane this point is.
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Right back at you. The point I am making is self explanatory by itself.
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United States43990 Posts
What's your point xDaunt? Because arbitration being the right option in some cases doesn't justify a mandatory arbitration clause, it only justifies the existence of arbitration.
What problem do you think is being fixed by the enforcement of mandatory arbitration?
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On August 08 2017 02:48 KwarK wrote:
What's your point xDaunt? Because arbitration being the right option in some cases doesn't justify a mandatory arbitration clause, it only justifies the existence of arbitration.
What problem do you think is being fixed by the enforcement of mandatory arbitration?
You have to protect the corporations from the proletariat.
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My understanding of xDaunt's point thus far is that "arbitration as an option" leads to arbitration being underutilized in practice due to the inherent conflict of interest for a plaintiff's trial lawyers (since they make more $$$ if the case goes to trial, and it takes less effort to pursue litigation rather than arbitration). Forced arbitration is therefore potentially a net gain via removing the option for bad-faith decisions made by trial lawyers for their own personal gain.
I'm not knowledgeable enough on the subject in question to assess the truthfulness of the claims made, but from an outside perspective, forced arbitration doesn't seem like the best solution to this problem. But it is *a* solution.
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On August 08 2017 02:43 Dangermousecatdog wrote:
Right back at you.
Well, let me help you. At best, your argument is an exercise in semantics in which you have demonstrated an inability to properly follow the conversation by conflating my discussions of arbitration generally with an argument that forced arbitration still presents a "choice" for claimants. That's not looking particularly profound to me.
Please spare the thread an attempt at summarizing my argument.
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EPT
