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naraburns  nihil supernum  2yr ago (text post)   32434 thread views

Culture War Roundup for the week of October 31, 2022

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Because of the 6th amendment, criminal defense is very likely the most lawyered practice area possible. And because that's the realm I'm familiar with, I have a very skewed perspective of the "typical" case. I've seen a fair share of pro se petitions scrawled out in prison stationery, but those are extremely rare outliers.

Reading your post and being reminded of "Beware Trivial Inconveniences" makes me realize how much of a blind spot I have about the paperwork filing capabilities of the average person. Yeah, it's no surprise at all that they'd get clobbered. But the problems you're describing seem to be irrelevant to the choice between arbitration and traditional courts though. In either arena, having a dedicated professional is going to be an advantage. I'm not sure how you'd even begin to address that imbalance unless you significantly expand the public defender corps to cover more areas. Or maybe ban all lawyers.

I was specifically meaning to respond to the idea that people without lawyers or legal training should just start yolo-ing arbitration demands to orgs like PayPal doing shady stuff to them, which I don't regard as terribly helpful advice in light of my experience. Still, ymmv, and I'd love to be wrong. I generally regard arbitration as a bad patch on the unwillingness of the political system to acknowledge and respond to the volume of litigation that the laws (and the proliferation of procedural protections which extend the lifespan of lawsuits) are creating, and staff adequate judicial offices to dispose of those cases cleanly and quickly. Arbitration systematically favors repeat litigants, suppresses plaintiff awards in the face of tortious conduct, and encourages people to attempt to negotiate quasi-legal procedures without an attorney, which results in potentially meritorious cases getting dumpstered.

I was specifically meaning to respond to the idea that people without lawyers or legal training should just start yolo-ing arbitration demands to orgs like PayPal doing shady stuff to them, which I don't regard as terribly helpful advice in light of my experience.

I understand your point, but what's the alternative? and what do they have to lose?

I'm not sure there is an alternative, sad to say. And regarding their losses, well, depending on the arbitration rules at issue they could get stuck with costs (though excessive costs can lead to making an arbitration agreement unconscionable, particularly in CA, which is the only jurisdiction I'm barred in...), on top of whatever else they're dealing with.

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