The deaths of Eric Garner and Michael Brown have brought several topics to the forefront of public discussion in recent weeks. Questions of racial profiling, discrimination and the threat of an increasing police state have bubbled up into the public consciousness, sparking much debate and protest. Spurring the public debate has been the decision not to indict two different law enforcement officials by two different grand juries. I am not here to debate the merits of either of these decisions but rather to call to question the secretive nature of the proceedings that lead to these decisions.
A grand jury hearing is conducted behind closed doors. Unlike a jury trial, there is no judge, defense lawyers are not present, jurors are not screened for bias and prosecutors and jurors do not reveal what happened in the grand jury room. No transcripts are available. This image flies in the face of what most Americans think of when they hear the word “trial.” We picture grand mahogany courtrooms, evidence being presented with regard to both sides of the dispute, lawyers vigorously presenting opposing viewpoints, and a judge, jury and court reporter bearing witness to the proceedings. That’s why peppered among the debate about the deaths of Garner and Brown have been questions of why these officers were not and will not be tried in a public proceeding taking place in a court of law.
As a public, we can be mad and question why this secretive process continues in light of the right to a public trial. Many have called for a thorough reexamination and reformation of the grand jury system, with good reason. But I’m not here to debate this either. The reason I bring up Michael Brown, Eric Garner and the grand jury process is to draw your attention to a similarly unjust judicial process which directly affects you.
If the grand jury process angers you, then as a consumer, you should at the very least be concerned about mandatory arbitration agreements.
You most likely will not be the subject of a grand jury investigation in your life, but more than likely you already have been subjected to a mandatory arbitration agreement. If you do business with AT& T, Comcast, Dropbox or dozens of other online companies, you have waived your right to appear in court and have agreed instead to arbitrate any future claims. Like grand jury proceedings, arbitrations take place in private. And while they are adversarial, most consumers can’t afford to hire a lawyer, the arbitrator need not apply the law or facts correctly, and, barring the most egregious and unusual of circumstances, the decision is not reviewable by a real judge in a real courtroom.
Didn’t know that? Don’t worry. You’re not alone. A recent study by St. Johns University found that confusion about consumer rights and arbitration clauses abounds:
“While 43% of the respondents recognized that the sample (consumer) contract included an arbitration clause, 61% of those believed that consumers would, nevertheless, have a right to have a court decide a dispute too large for a small claims court. Less than 9% realized both that the contract had an arbitration clause and that it would prevent consumers from proceeding in court.”
Just as grand juries conduct their business behind closed doors, decisions made by arbitrators are confidential and shielded from public scrutiny. Mandatory arbitration agreements mean that as a consumer, if you have a complaint with a company, you must arbitrate your claim. You cannot take your claim to court. It will never be heard by a judge or a jury of your peers. Arbitration is not a judicial proceeding, and by the nature of its design, it never will be. The companies that draft these agreements like to argue that arbitration is a fair alternative to the court system for all parties involved. We at Wexler Wallace disagree and have on this blog on many occasions.
Let’s for a moment though, for the sake of argument, agree that the companies are right. Imagine arbitration provides you, an individual, a level playing field when facing a company with some of the nation’s costliest and most ruthless defense firms on retainer. Forget that arbitrators have been found to regularly find in favor of corporations, not consumers. Forget that you cannot pick the location in which you must arbitrate your claim. Forget that the potentially small amount you may receive is cost prohibitive when compared to the amount you may spend to arbitrate your claim. Forget that there may be hundreds or thousands of other consumers with your same claim and that you cannot join with them to collectively sue, thereby lessening your individual costs. Yes, forget all that, and simply focus on the fact that even if you do arbitrate your claim, there will never be a public record of it. Your case will not see the light of day and any decision that is reached by your arbitrator will not be public knowledge. What’s worse is that anyone else with a similar claim as yours will never know the arbitrator’s decision or how he or she came to it. Case law, which governs our judicial system, is built on precedent. In arbitration, precedent is not relevant, because the arbitrator has free reign to decide whatever he or she wants on virtually any basis, without fear of an appeal.
The Judicial Branch of our government, when it works, can bring truth to the public eye and allow a wronged individual their day in court. There is power in facts, evidence and the ability for both sides to present their side of the story. But when we as a public are subjected to decisions that take place behind closed doors without the benefit of public viewership and commentary, it becomes painfully obvious that our judicial system is fundamentally flawed and, in many respects, does not even exist.
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