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Law Rules

How we resolve our disputes

Sunday
May312009

To mediate or to arbitrate?

A few weeks ago, I served as the arbitrator for the Better Business Bureau’s Autoline program, which helps to resolve Lemon Law claims.  Both parties  (the consumer and the manufacturer’s representative) arrived with appropriate documents and exhibits, gave relevant testimony, and made coherent arguments.  It was an interesting case, but ultimately I had to rule for one party or the other.  Finding that the alleged defect did not materially affect the safety, value or operation of the vehicle, I ruled for the manufacturer.  So the manufacturer won and the consumer lost, right?  Not really.  The manufacturer had offered no compensation, services or replacement, so the consumer had nothing to lose.  On the other hand, the consumer is now unlikely to purchase a car manufactured by this automaker ever again.  Seems like a Pyrrhic victory to me.  If the parties had been amenable to mediation, a win-win situation might have been found.  The BBB does offer such services.  Too bad the parties went for the win-lose alternative.

Thursday
May282009

To settle or not to settle?

The story about the woman who died in a King’s County (New York City) Hospital psychiatric emergency room after waiting a day for service or treatment has raised some interesting questions about both our health care system and our legal system.  The woman’s family settled their wrongful death case with the hospital for $2 million yesterday.  Yet, more than half of the people voting in response to an online story about the case said the family shouldn’t have settled for that amount.  The story mentioned that the family still wanted a criminal investigation to proceed, apparently because there was some evidence that some hospital personnel falsified some records of the incident, which had been recorded on a security video camera.  The City accepted full responsibility for the incident, and the hospital fired several people and made changes to reduce waiting times.  My question is this: if the parties to the civil lawsuit are satisfied with the settlement, and there are other avenues available for addressing potential criminal issues, who cares whether anyone else thinks the settlement is not enough (or too much)?  The civil justice system succeeded in resolving the dispute to the apparent satisfaction of the parties.  Isn’t that what it is for?  This case does raise legitimate issues about how we place a monetary value on a life.  It also raises questions about how our healthcare system can and should deal with pyschiatric patients.  But those are issues for another forum.  As long as neglect and intentionally wrongful conduct can be addressed in the courts, let’s get on with improving our healthcare system by other means.

Monday
May252009

Welcome to Law Rules!

A few days ago, I received an e-mail from a friend of mine with the following link: http://www.thesmokinggun.com/archive/years/2009/0430091jury1.html

The e-mail contained the comment that this link showed a guy who really didn’t want to do his jury duty.  My comment is: guys like this should be prosecuted criminally.  Then, when they plead not guilty and are asked whether or not they want a trial to the court or to a jury, we’ll see what they really think of jury duty.

My point is not that I take offense to a joke about our legal system.  Many websites have collected and published lawyer jokes, some of which are funny.  In fact, the person who sent me the e-mail with the above link is himself a lawyer.  Professor Galanter notes that lawyer bashing has been around since the beginning of U.S. history.  But my experience is that our system of justice is what keeps our society civil and livable.  At a minimum, it sure beats the law of the jungle or street justice.

Having practiced law for more than 30 years, it is time that I started to share some of my observations about how we settle disputes in our system of justice (and the other two branches of government).  Since the government has (or is supposed to have) a monopoly on the legitimate use of physical force, I can think of no more worthy topic for my first foray into the blogosphere.  I do not think our judicial system needs me to be its apologist and I will not try to do that.  Rather, I will try to highlight how and when it works and doesn’t work.  I may even explore ways to improve it, including alternate means of dispute resolution, such as mediation and arbitration.

In any event, I will try to keep my posts timely and relevant.  I invite your comments and I’ll publish the most worthy and coherent.

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