Lunch-time bites of civil justice rulings

Kia Franklin

Lunch-time bites of civil justice rulings

While reading over recent court rulings, these two cases struck me. One says that it's not okay for a company to switch up the terms of a contract without notifying customers who are subject to that contract. That way the sneaky company can't quietly slip in a mandatory binding arbitration clause (that's what the company in this case did) or other harmful provision without the customer's knowledge and consent. This ruling seems to make intuitive sense, but it had to go all the way up to the Ninth Circuit. Who knew?

The other case says that it is okay for a judge to refuse to ask questions to potential jurors about their beliefs about tort reform, lawsuits, plaintiffs, etc., even if those beliefs will influence their ability to be impartial jurors. This makes intuitive nonsense. Again, who knew?

Okay, so in the spirit of lunchtime (for East Coasters, anyway), here's the nice taste of justice that comes from the 9th Circuit court. Check out this Consumer Law and Policy blog, or read this excerpt:

Ninth Circuit Says Company Can't Change Contract Terms Without Notice

It may seem obvious to any first-year law student that one party to a contract can't change the terms of that contract without notifying the other. But the Ninth Circuit in Douglas v. US District Court ex rel Talk America, No. 06-75424 (9th Cir. July 18, 2007), had to remind the district court of this basic principle. In Douglas, Talk America had posted revised contract terms on its website, which included a mandatory arbitration clause for its customers. When Douglas, a Talk America customer, filed a class action lawsuit against the company, the company moved to compel arbitration based on the revised contract, and the district court granted the motion. Douglas petitioned the Ninth Circuit for mandamus. In granting the petition, the Ninth Circuit held that "[p]arties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side." The district court's decision, according to the Ninth Circuit, "reflect[ed] fundamental misapplications of contract law"...

An unfortunately large number of companies try to get around this principle of contract law by requiring their customers to agree in advance that they will periodically review their contracts on the company's website for possible changes... When pasted into Microsoft Word, the agreement is 102 pages of single-spaced legalese.

...The Ninth Circuit's decision does not seem to resolve the question whether parties can agree in advance to bind themselves to unilateral changes to the contract without notice, as Network Solutions requires. But in a contract of adhesion like this, it is difficult to believe that a court would enforce this term. The Ninth Circuit in Douglas noted how cumbersome such a requirement would be, forcing customers to "check the contract every day for possible changes" and "compare every word of the posted contract with [the] existing contract in order to detect whether it had changed." With a 102-page contract, that could be tricky. Read Full Article

And here's the not-so-tasty bit of caselaw that impacts the jury selection process. According to this blog, the recent Seventh Circuit case established that in the jury selection process (voir dire) a judge can refuse to ask questions related to jurors' beliefs about the court system, even if those beliefs create an anti-plaintiff bias that compromises their ability to be an impartial judge.

From the case opinion itself (legal database nerds, the case is online but not on a free database yet):

The judge [asked] potential jurors about their experiences with injuries from machinery, injuries at work, and if there were any lawsuits that resulted from those injuries. The district court also asked the jury pool whether any of their close friends or family members had suffered injuries at work and whether litigation resulted from those injuries. Additionally, the district court asked the jury pool whether any of them held "any beliefs--philosophical, moral, religious or otherwise--that would make it difficult for [them] to sit in judgment in this case." The court further asked if the potential jurors could be impartial to both sides.

The district court... refused to ask prospective jurors the following additional questions requested by Alcala:

25. What are your opinions regarding personal injury lawsuits?

26. What are your opinions concerning product liability lawsuits?

27. Have you or someone you know actively advocated tort reform?

28. Have you or someone you know actively campaigned for or against legislation concerning personal injury lawsuits?

29. Do you believe that personal injury lawsuits increase your cost of living?

32. Do you agree or disagree with the rule of law that allows a person to recover monetary damages for pain, suffering, or disability proximately resulting from the negligence of another? If you disagree with such a law, please explain whether or not you would follow such a law in this case if it is given to you.

Just some lunchtime food for thought on what's happening in our civil justice system. Comments welcome.

Kia Franklin: Author Bio | Other Posts
Posted at 11:38 AM, Jul 26, 2007 in
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Comments

An inquiry into a persons beliefs on tort reform is an asinine area of inquiry for any attorney to engage. Does this also mean that opposition to tort reform is grounds to exclude a juror from jury duty ? Or are only those who support tort refort ineligible for jury duty. That hardly seems fair. The likely upshot of all this is that the only people who could ever serve an a jury are those who have given the matter no thought at all. Actually this would result the perfect jury from the perspective of most personal injury attorneys: ignorant and unthinking

I have long supported tort reform, but I was foreman of a jury that awarded damages to an injured plaintiff. His injuries were legitimate (no chiropractic treatment, faith healers or acupuncturists), and his share of fault less than half (we found him 25% comparatively at fault), so we awarded damages accordingly

Knowing the extent to which someone is inherently biased against the court system is important because it speaks to whether or not this bias would impair the person's judgment. The questioning proposed looked to biases on either end of the spectrum--asking whether a potential juror has either supported or opposed tort reform. This doesn't mean automatically scratching off any potential juror who believes a certain thing--it simply means unveiling some of the factors that could interfere with his or her ability to judge fairly and examining those factors head on.

Also, it is unfair to categorize people who haven't thought about tort "reform" as unthinking and ignorant. Some haven't thought about it because it's a topic that mainly circulates in legal/political/professional circles--everyone doesn't sit around talking about it. Given all the misinformation out there about tort "reform" and it's so-called benefits, everyone probably should. Still, this doesn't make them unthinking or ignorant.

You are truly naive if you think there are any plaintiff counsel around that wouldn't bust a gut trying to find an excuse to bounce a potential juror who acknowledged that they support tort reform. The truth is that if one doesn't support tort reform of some sort or another, in effect they are saying that the system is perfect "as is" and anyone who takes that position is either dishonest or too dumb to matter

Of course the system isn't perfect, but tort "reform" measures--to restrict access to the court system, to limit recovery through the civil justice system, and to loosen restraints on corporate control--these are not the sort of reforms necessary to improve the system. These reforms actually create more problems than they solve. The beauty and trick of calling it "tort reform" is that it implies a focus on improvement, but when you look at the end results of these policies you see that the "little people" are getting the short end of the stick.

I assume that you don't consider small business owners and individuals who have had the value of their retirement investments gutted by class action lawsuits as "little people". The Communist Party would label anyone who owned anything as enemies of the proletariet and would exterminate them ruthlessly. I feel quite sure that you would feel quite at home with them

Did you just expose me as a Communist? Just checking.

Well, I feel quite sure that those little guys are NOT who tort "reformers" are primarily concerned with, and that their interests more often than not fall on the side against tort "reform."