Arguments To Challenge Forced Arbitration
In some personal injury cases, the defendant may try to force you to go to arbitration. This is likely because you signed an agreement saying that you waive your right to a trial, and instead, agree that if there is a dispute (or in your case, a claim for an injury) that you will submit to arbitration.
Why Arbitration Should be Avoided
Arbitration clauses are generally enforceable. But arbitration often works against the victim or consumer. That’s because arbitration takes away your right to a jury. Additionally, arbitration can make it easier for defendants and companies to hide evidence as the discovery process is shortened in many arbitration cases.
Although enforceable, because arbitration clauses take away so many rights, courts are careful to make sure that arbitration clauses are clearly and legally drafted.
If you find that you signed an agreement to arbitrate, how can you get out of that agreement, allowing you to have your case heard in court, with a judge and jury? Here are some general guidelines on how to attack or challenge an arbitration clause.
Clarity – An arbitration clause is never something that should be buried at the bottom of a contract. Arbitration means waiving rights to a court, and to a jury. The law will require that arbitration clauses be bolder, larger, or that they stand out from the other content in your agreement. For anything that you may have signed online, you would have had to have marked off a separate box, or agreed on a separate page, to the arbitration.
Fairness – Both sides should be treated fairly. If only one party has to pay all the arbitration costs, and travel to go to arbitration, that may be a problem. If A Defendant makes arbitration unfairly difficult for the injured consumer even to get–like saying arbitration has to be in a city that’s 100 miles away, or the consumer pays all arbitration costs even if the consumer wins the case—that could be a sign of unfairness.
Rights – Arbitration of a personal injury case shouldn’t take away any party’s rights under the law or alter existing law. In other words, if the law allows for attorney’s fees, arbitration shouldn’t take those fees away. If the laws that you have to prove X, Y and Z to win your case, your arbitration clause shouldn’t say “no, you only have to prove X and Y.”
Picking the Arbitrator
You or your lawyer can interview arbitrators before arbitration to see who you want to serve as the arbitrator. This is much different than a judge, who is assigned to your case randomly. Still, problems can arise—the arbitrator likely knows the Defendant and/or the Defendant’s attorneys, as they likely give the arbitrator a lot of business through all the lawsuits that they handle.
Call the Knoxville personal injury lawyers at Fox Farley Willis & Burnette, PLLC, today for help in your mass tort or personal injury case.