Earlier this morning, the Florida Arbitration Blog, a blog we read regularly and think highly of, posted a fairly critical review of an article in the Defense Research Institute’s magazine that apparently laments the pervasive use of mandatory arbitration as an assault on the jury system. Since the DRI does not allow non-members access to its magazine, Florida Arbitration Blog could not share a link to the article itself. Since we are not members of DRI, we have not read the article but instead rely on FAB’s summary. At any rate, this interests us because the offending article was written by “the Texas representative to the [DRI]” (who was un-named in the review). The Florida review was more critical of the article’s tone than its content: In the April 2008 of the publication, “For the Defense,” the Texas representative to the Defense Research Institute claims that arbitation and ADR “meant simply ambush your adversary and steal his cattle, wife and daughters, and be done with it.” This anachronistic sentence is probably meant to be more Texan than misogenistic, but it is an interesting viewpoint coming from a DRI representative. Taken out of context, it is impossible for us to evaluate whether or not the quoted language was fairly reflective of the piece as a whole, but we do take some issue with FAB’s critique of the DRI article. The Florida Blog acknowledged that the concerns at the root of the article are in fact widespread (if, in their opinion, overstated); the blog seemed more worried about the forum for the discussion than the substance. According to the Florida Blog, the article in question was apparently out of line because it raised concerns about the pervasiveness of binding arbitration in a publication aimed at lawyers who are often hired by clients who put this system in place in the first place, who are often charged with enforcing arbitration clauses, and who simultaneously offer advice on how to enforce arbitration clauses. I actually find it refreshing that DRI has vocal representative members interested in the long-term affects of a policy which, arguably, implicates the jury system as a whole, a system which is in fact fundamental to American representative democracy. The Florida Blog, while acknowledging an increasing criticism of over-use of the arbitration process, says that “I am unaware of any serious suggestion that arbitration was intended ‘curtail or do away with the jury system.’” This seems to me to be a bit of a dodge. Any given arbitration clause is, of course, specifically designed to do away with the possibility of a jury trial with respect to the transaction to which the clause relates. Every case that is arbitrated curtails the jury system to some extent. Here in Texas, as this blog has tried to objectively report, the caselaw has been overwhelmingly pro-arbitration. That being the case, it does seem important to carefully consider the implications. In other words, whether or not arbitration as a construct was “intended” to curtail the jury system, it is in fact curtailing the jury system to some degree. We ought to be curious to what degree, and we ought to discuss whether or not, and to what extent, this is a big deal. Again, I have not had the opportunity to read the article in question, so I do not know if the Texas DRI representative’s language was over the top, as suggested by the Florida Arbitration Blog. I do know, though, that a discussion among the bar (even the defense bar) about the long-term ramifications of commonplace binding arbitration is something we consider to be of vital importance. To that end, we hate to see an involved lawyer get criticized for raising the issue, even if the manner in which Texans sometimes write ruffles some feathers for its apparent “anachronism.”
Continue reading...Karl recently presented a new paper on discovery in arbitration proceedings at the State Bar’s Advanced Evidence and Discovery Course in Houston and San Antonio. Since we get lots of requests for these papers, we’ve now created a permanent page for all of them on our main website. Help yourself. Remember, though, that the law changes quickly, and parts of even the most recent papers are outdated and, in some cases, flat out wrong. By way of example, Hall Street vs. Mattel makes an entire section of our main arbitration paper exactly wrong. Even so, though, we hope these are helpful.
Continue reading...Lately, we’ve been getting some requests to add a feature to the blog that allows for email subscription. So, you now ought to see a link in the sidebar which claims to provide just that service. If it works as promised, subscribers ought to get an email each day delivering content, if and to the extent new content has been generated that day. Hope this helps. As always, please do not hesitate to email or call us directly with any questions, or if this does not work for some reason.
Continue reading...Well, it took a couple weeks, but the Texas Supreme Court has reverted to its pre-Perry Homes stance on the circumstances in which a party may or may not waive its right to compel arbitration. On Friday, while we were otherwise indisposed and unable to blog, the Texas Supreme Court found that a party’s decision to remove a case to federal court (and then agree to a remand back to state court) did not “substantially invoke the judicial process” and thus did not waive that party’s right to later invoke an arbitration clause. The per curiam opinion adds little to what, before Perry Homes, we would have said was the clearly established position of a Supreme Court that had never, to our knowledge, stepped in to find waiver. The opinion is in fact quite similar to the Bank One opinion we blogged about last February. In both cases, the Supreme Court overruled trial courts and courts of appeals that had found that something other than sheer quantity of activity can be a gauge of substantial invocation of the litigation process. In both Bank One and Friday’s Citigroup case, in other words, it was the nature of the party’s action that had caused waiver, not the sheer bulk of action that had taken place; in Bank One, it was a motion for new trial, while in Citigroup it was a removal, both actions that specifically invoked a court’s jurisdiction. For the second time now, the Supreme Court has sent a clear signal that it frankly does not care what type of activity a putative waivor takes when considering whether that activity invokes the judicial process. In other words, according to the Court, requesting a court to assume jurisdiction over the case somehow does not “invoke the judicial process”. The only factor that the Supreme Court has considered in these cases is the question of how many depositions had been taken, how many motions had been filed and how close to trial were the parties when the motion to compel arbitration is filed. In re: Citigroup, ___ S.W.3d ___ (Tex. 2008) (Cause No. 06-0886). Technorati Tags: arbitration, ADR, Texas Supreme Court, law
Continue reading...Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.
Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.