Judges have the power of remittitur where the amount of damages is excessive and judgment notwithstanding the verdict where the judgment of liability itself is wrong.
Appellate courts can find the amount of damages excessive. (Note that when the jury awards some outrageous amount, it is often front page news. When an appellate court orders a modification of the damages, it is rarely highly publicized.)
In some cases, very large damages may actually be appropriate, such as when a child is severely injured and needs a lifetime of care.
Yes, there are some “ambulance chasers”, but the Model Rules of Professional Conduct do prohibit and provide sanctions for this kind of behavior. If you know of a specific instance where an attorney has stepped over the line, notify the Attorney Grievance Commission in the state(s) where that attorney is licensed to practice.
The only thing worse than giving tort lawyers a big upper hand in litigation is giving insurance companies a big upper hand–a balance of power between these interests is necessary to maintain integrity in the court system.
Regarding arbitration clauses:
These clauses are often forced on unsophisticated consumers who have no idea what rights they are giving up:
a. the right to a jury trial
b. the right to discovery according to the rules that would apply in a court case
c. the rules of evidence that would apply in a court case (such as hearsay and the authentication of documents)
d. detailed findings of fact and law and a right to appeal, with de novo review of findings of law and clearly erroneous review of findings of fact
e. the right to participate in a class action lawsuit (which would allow for a more efficient adjudication of disputes…ostensibly what the Federal Arbitration Act is aimed at :rolleyes: )
In the case of mortgage loans, the consumer might not see the arbitration rider prior to settlement, and when they do see it, it is only as a blur of legalese boilerplate language. They also may not be informed about the up-front costs that arbitration would impose on them–nor do they need to be informed, according to the Greentree Financial case. Typically, these consumers do not have the assistance of legal counsel at any point in the process. Often, the arbitration rider is just the tip of the iceberg. When a predatory lending company knows they’ve got a sucker on the hook, they pack their loans with all sorts of ripoffs–like credit life and disability insurance, excessive origination fees and points, and APRs that are higher than the consumer’s credit history would support. But I digress, as detailed discussion of those sorts of things belong in the BBQ Pit
Predatory lenders who insert mandatory arbitration clauses into mortgage agreements know that they are putting the consumer at a sharp disadvantage should a dispute arise. Moreover, they know that even if the arbitrator finds in favor of the consumer, the decision has no precedential value that would help other consumers who have been harmed by the same illegal and unethical business practices.
I looked it up, and the case is Brower v. Gateway, 676 N.Y.S.2d 569 (A.D. 1998).
I had the facts a little confused. The arbitration clause requires the consumer to contact the ICC in Paris and arrange for arbitration in Chicago. The consumer must pay an up-front fee of $4000.00, $2000.00 of which is non-refundable (even if the consumer wins). Note that consumers did not learn of the arbitration clause until they received the computer. They then had 30 days to return the computer, at their own expense to avoid the contract. Further, in such situations, Gateway does not refund shipping fees (which are a little more than $100).
In fairness, the Brower court invalidated the more abusive aspects of the arbitration agreement.
After having been burned by an arbitration clause a few years ago, I avoid buying products or services that require arbitration. There is only one reason why a corporation would include such a clause - they want to make it more difficult for people to sue them. Thus, the corporation knows that it is engaging in conduct that is likely to get it sued on a regular basis.
Finally, on judges versus juries, it’s a tough question as to which is better, but you need to keep in mind that many judges have serious agendas that they bring into the courtroom. Having a jury at least spreads the decision-making power around a little.
FYI: CA favors arbitration agreements. There is a strong public policy in favor of enforcing them as an alternate form of dispute resolution. Basically, you have to have a damn good reason to get out of one.
The “take-it-or-leave-it” contract where there is unequal bargaining power and no meaningful negotiation between the parties is called a contract of adhesion. Just because a contract is one of adhesion does not make it unconscionable.
Further, even if the contract is unconscionable or invalid because it was induced by fraud, for example, the courts are likely to sever the arbitration provision from the remainder of the otherwise unenforceable contract and enforce the agreement to arbitrate, unless the agreement to arbitrate is itself unconscionable or induced by fraud.
To my knowledge, an arbitraton provision must be reasonably conspicuous in a written contract.
Thanks for the correction, I think I had my arbitrations and non-competes confused! More information on CA employment arbitration law can be found here. Maybe prohibit was not the right word to use.
Its easy to say “if you don’t like arbitration clauses, don’t sign them”, but an individual often lacks the negotiating clout to gain favorable terms.
Try buying car insurance that doesn’t include an arbitration agreement.
I was in a car accident that was clearly not my fault. I stated the facts of the case to my insurance company, and they later confirmed that it had gone to arbitration and I had been found to be not at fault.
Half a year later, I received notice that the arbitration had been appealed to another arbitration board, and I had been found 100% at fault. I had not been given notice that there was an appeal, had not been give the chance to be present at the appeal, and had not been given the chance to present evidence (of which there was plenty in my favor). Furthermore, I appealing the appeal was not allowed.
I’m not against all arbitration agreements. I just don’t really know what to do about “unfair” arbitration agreements that are forced upon individuals with little choice in the mater.
I have been “forced” to agree to arbitration when renting a car, purchasing health insurance, accepting a job, renting my apartment, opening a brokerage account and renting a wedding-hall, among others.