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Arbitration consumer protection attorney here! Nice work, and nice write up. If nothing else, I hope folks will run with your first point. Far too many people

Arbitration consumer protection attorney here! Nice work, and nice write up. If nothing else, I hope folks will run with your first point. Far too many people are scared of arbitration, and it can be a really powerful tool for situations like this. It’s fairly accessible and straightforward, especially for folks in the HN crowd. One pointer for other folks in the future is to make sure you look into your state’s specific consumer protection law. (Sometimes called UDAP law or deceptive practices act.) Often times, these laws will allow you to recover more than just your out of pocket damages to punish companies that are deceptive. One other way to “enlarge the pie” in situations like this is to hire an attorney. I know, it sounds like I’m shilling for my peers, but hear me out. This same UDAP consumer protection laws let you recover attorneys’ fees as part of a judgment/win. If you’re not an attorney, you simply can’t seek those. So let’s say your claim is $2,000. Under those laws, maybe you can “treble” (triple) your damages if you win. So now your best day is $6,000. And the company knows it. But if that same law says you can get attorneys’ fees too, the company knows that they could be facing a 50k+ judgment at the end (almost entirely comprising attorneys’ fees), and then that often incentivizes earlier, higher settlements. My involvement in cases, and the threat of attorneys’ fees often results in higher settlements than my client would get on their “best day,” and even after paying out my portion. (I typically do these on contingency — I don’t get paid unless you get paid). Lastly, let’s just say I’ve done an arbitration or two with a home warranty company. They don’t make money by paying out claims!

oneoff786 4y ago
Do you not feel it’s a problem to be charging 48k to litigate a 2k issue regardless of the chance to recoup it?
- jacquesm 4y ago
  Do you not feel it's a problem to be charging $50k for a piece of software on a $.20 medium?
  - oneoff786 4y ago
    I don’t understand this question. What’s a 20 cent medium?
    - supermatt 4y ago
      https://www.youtube.com/watch?v=Q6RK4479XD8 https://www.youtube.com/watch?v=Q6RK4479XD8 ?
    - abstractbeliefs 4y ago
      The CD the software is sold on. It's like the old "why did I pay you $100 to turn a valve?" You're not paying for the CD, the valve turning, etc, you're paying off the time built for the expertise and background engineering.
      - unsupp0rted 4y ago
        The $100 valve-turning story never quite worked for me and I finally figured out why. It's not that you're paying him $100 for the expertise to know which valve to turn, it's that there's no one standing next to him who could reliably for $50 or even for $99 know which valve to turn. You're not paying for his expertise so much as for the scarcity of his expertise.
        kofejnik 4y ago
        Yes, the guild of valve-turners ensures it
        willcipriano 4y ago
        Also availability, he came running when you had a problem because he stands to make $100, offer him $10 and maybe he can pencil you in next month.
      - oneoff786 4y ago
        Do people still write software for discs outside of console games? I don’t think this comeback is very clever either way. Being paid $100 for a product worth $1000 in total sales is pretty reasonable. Being paid $50k to resolve a $2k seems to be a very unusual outcome. It just raises the stakes of the case by 25x. It seems very unreasonable that a losing party could need to cover so much from their opponents end especially as they get no say in the total stakes. If it was you paying $50k to your lawyer regardless of whether or not you won, sure, that’s just your choice. This is a $50k extra being thrown at your opponent and there’s no incentive to be reasonable about it because it sounds like your own client doesn’t get hit with it. Idk if it applies in this context but if it goes both ways then you’ve got a prisoners dilemma. Spending more on lawyers increases the probability of winning, but also increases the total pot of lawyer money. That’s so fucked up. I would vote for you’re liable for at mode the amount you spent on lawyers personally. If they do 50k on a 2k issue and you don’t even get a lawyer, you may lose 2k but they lose 50k. Incentives to escalate lawyer fees sounds stupid as shit to society.
- thathndude 4y ago
  This is the way the justice system is set up. I don’t really dig into whether this is a systemic problem. I’m not charging my client 48k. I’m recording my time spent working the case. If I have to spend 100 hours working on a case, and my hourly rate is $500 an hour, and we win, then the attorneys’ fee award should be $50,000, regardless of whether the claim is $100 or $100,000. This is an important component of civil rights litigation. Often times does claims have small value (in terms of damages). But we want to incentivize competent lawyering, and so, if you prevail, you get an award of attorneys’ fees. The same is true in this context. If you don’t have a provision like that, then consumers are left without recourse. As it is, there are very few lawyers who practice in this area as is.
  - oneoff786 4y ago
    Ok but if you lose, your client gets $0 and owes you $50k. No? And if you settle?
    - rocqua 4y ago
      He works on contigency. That is a 'no cure no pay' system.
    - thathndude 4y ago
      No. It’s a contingency fee. My client isn’t paying me hourly. If we lose, we both get $0. This is how lots and lots of plaintiff litigation works, if you’re not familiar. Those guys advertising for car accidents on billboards are not charging you an hourly rate. As plaintiff’s attorneys, we take cases we believe in, we spend our money to prosecute the case (I almost always pay that $200 AAA filing fee for my clients), and then we get paid out on the back end. In my personal opinion, it’s a much more appropriate compensation method, because it puts our interests firmly in line. Based on the very limited understanding I have of this case, if we settle, I’m targeting a 10k settlement and taking a percentage of that (a percentage smaller than the client), and so my client is getting 5k+.
      - oneoff786 4y ago
- zo1 4y ago
  Sounds fine an dandy when it's "stick it to the big evil corp that has revenues in the hundreds of millions", but a side-effect is that it'll make insurance and legal costs higher for smaller (and potentially very honest) companies.
  - ameister14 4y ago
    Except that if the company did what it was obligated to do under the contract there would be no lawsuit, and if there was one the company would win.
    - zo1 4y ago
      And in the case that they did do what was obligated and win the case with 100 hours worth of lawyer time spent? Will the small party pay the lawyer fees for the company?
      - ameister14 4y ago
        Their lawyer would spend some time regardless of whether the other party's lawyer was there or not. Sure, they may have to answer some filings or produce something (I don't really know the rules and procedures of arbitration) but again, a competent person without an attorney would come close to that anyway. If the lawyer loses on contingency after spending 100 hours, nobody pays them; that lawyer eats the loss.
        oneoff786 4y ago
        But it’s super shit that a lawyer can say “you can either give my client 2k or have a chance at giving my client 2k and me 50k” That’s just so fucked up.
        ameister14 4y ago
        I've been thinking about it, and I think it's mostly a balancing of the scales - the company sets the initial terms of the contract almost every time, and has a completely disproportionate amount of power in the relationship. This is a bit more of a spin the other direction, but it still doesn't quite get there. Yeah, it's fucked up, but it's a response to the company being able to do more things that are fucked up and doesn't come out of nowhere.
maccard 4y ago
> So let’s say your claim is $2,000. Under those laws, maybe you can “treble” (triple) your damages if you win. So now your best day is $6,000. And the company knows it. This is one of the most eye opening things I've read on here. I didn't know that about arbitration. When you threaten/enter into arbitration, it should be part of the law that the company must respond with the maximum amount of damage they're liable for. Anything else is information asymmetry towards the company and they know that too.
- thathndude 4y ago
  I like this suggestion. There is a substantial lack of attorneys in this area. If we are going to force consumers into these systems, they need to be designed more fairly.
  - maccard 4y ago
    Think of it like a mortgage - I got a 90 page legal document when I purchased my home (and I received multiple physical copies of it....) but on the first page of it was "here's how much you're borrowing, here's how much you will repay over the lifetime, and here's the fees if you pay it back early", and I had to sign that page individually with the rest of the agreement. It felt a bit silly, but it _forces_ the service provider to give you this information in an honest format, and not bury it in the small print 5 levels of indirection deep.
    - thathndude 4y ago
      And the only reason you get that information is because of federal consumer protection laws. If nothing else, an experienced consumer protection attorney brings that to the table—knowledge of these various laws (and how you can sue under them) that you might not even know exists.
      - toolz 4y ago
        I think that point is about as fair as saying the only reason it got so complicated in the first place is because of federal consumer protection laws that enable banks/lenders to get away with such complex agreements to begin with. Otherwise you'd have competition that exists solely to correct the complexity of our current financial system.
jfoster 4y ago
What do you think about the approach taken? ("I summarized the entire timeline into three sentences. I provided no evidence. I didn’t want to give my hand away before arbitration.")
- thathndude 4y ago
  Personally, I would’ve taken the exact opposite approach. I once had an attorney, a very successful attorney, tell me that he’s a big fan of laying cards on the table right away. The rationale is that he either wants to know why he’s going to lose early or show the other party why they are going to lose early. In a case like this, where it seems like OP has all the information to prove that these guys are simply in the wrong, I come out guns blazing. I Layout the whole timeline with screenshots and copies of emails, very detailed. Then I make the ask with some snarky closing line like, “if you’d like to avoid the inevitable judgment that will be rendered against you, please contact my office to facilitate payment.”
  - tiahura 4y ago
    I’ll disagree. My guess is that it wouldn’t have changed their initial offer, and then he wouldn’t have any ammo to negotiate with.
    - thathndude 4y ago
      But negotiation is not a game of gotcha. It’s not as though you get a number, and then pull a rabbit out of the hat to get a bigger number. “But see this.” You make a demand, and you justify it based on the facts and law, and then you stick to it or make minor concessions until you reach your end result.
      - sudden_dystopia 4y ago
        As someone that settles personal injury lawsuits, this is exactly how the process works. I receive medical records, review them, and make an offer. When we negotiate, very rarely do we talk about the actual case details, it’s just numbers back and forth. If they say it’s worth more than I have it evaluated, I simply ask for more records or indicate that I have reached my best offer. For what it is worth, it doesn’t affect me at all how much I pay out. It’s not part of my job objective to pay the least possible. If I can justify it, I can get it authorized.
spaniard89277 4y ago
Hmm anyone from Spain familiar with this? I've claimed stuff with my regional consumo agency a handful of times (successfully) but most of the times it was <1K, so It was only worth the hassle because I was almost angry about the situation. If I can punish companies for bad behaviour and harm their pocket this way, It would be much better.
projektfu 4y ago
Have you done any arbitrations with employee cases? Mandatory arbitration in low wage employment was the hot topic a few years ago.
- thathndude 4y ago
  Never got into the employment context. But wage and hour cases (FLSA) have made many a rich lawyer. I will say, while I am generally not anti-arbitration, I do think it has its limits, and when it is used as a tool to suppress information that should be out in the public, I am completely opposed to it. The Example I often use are cases where an individual is suffering severe sexual-harassment. If that person is forced into arbitration, unable to share their story (confidentiality required), and hamstrung in prosecuting their claims by the arbitration process, that’s a losing situation for the entirety of society.
sillysaurusx 4y ago
Hey, thanks for this. As someone who just went through this process in December, there’s a problem: my contract had a sneaky clause in it that said both parties are responsible for 50% of attorney fees. Meaning that $50k judgement would become a $25k bill. Yeah, I was sad to realize that. But! Your advice is absolutely worth taking anyway. I did, and the company paid me the moment I said I was starting the arbitration process. It was a bluff, and sometimes you need to be willing to bluff. On the other hand, I was so upset at them that I might’ve just gone through the process regardless. So I guess it helps if you yourself aren’t sure whether it’s a bluff, since they definitely won’t know either.
- thathndude 4y ago
  Edit: I may have misunderstood your comment, but it sounds like maybe you were saying your contract with the defendant company required that you pay 50% of attorneys fees. If that’s the case, it would depend on details, but there would be a lot of arguments to make that not applicable. Edit 2: Confirmed (see comment above)
- ascar 4y ago
  > my contract had a sneaky clause in it that said both parties are responsible for 50% of attorney fees. Which contract? The one you did the arbitration? If the consumer law says the winner has to pay the fees, how can such a clause be legal?
  - thathndude 4y ago
    I just re-read that comment, and had the same question. If the company is trying to include such a provision in its contract with you, such a provision, would be illegal, unconscionable, void against public policy, etc etc. I’ve never seen anything like that in all of my arbitrations. What you will see for B2B claims (not consumer claims) is an agreement that the parties will split the cost of arbitration. But that’s different than their respective attorneys please.
    - sillysaurusx 4y ago
dalbasal 4y ago
So... thanks for the advice and info. Good to get practical knowledge out there. That said: that same law says you can get attorneys’ fees too, the company knows that they could be facing a 50k+ judgment at the end (almost entirely comprising attorneys’ fees), and then that often incentivizes earlier, higher settlements. This is awful, in my opinion. We really should consider redesigning our legal systems once every century or so. This sort of thing is a result of lawyers making their own rules for too long.
windexh8er 4y ago
Thank you for the insight! I'm curious of your perspective around consumer success with data breach as of recent? Do you find companies liable for general negligence? As an example... When I was selecting a mortgage company a couple years ago one of the large providers who is newer, and started out in higher ed loans, seemed to have a very sloppy process. They did a lot of things via email that likely shouldn't be done which opened up the avenue for them to send my SO and I emails of PDFs that included our SSNs in them. Needless to say I stopped the mortgage process with them right there and, ended up using a local credit union. However, I threatened legal recourse in a state that doesn't have great privacy laws based on the obvious "leak". When they asked for proof I pointed out that the email headers contained 5 intermediaries that were out of their control between sending and receipt. The company sent us each a check for $4k and part of my stipulations were that we would not sign anything in exchange. I was surprised how easy it was and almost felt as though I left money on the table. But I'm curious if you see a particular area that consumers can push back on when companies are negligent with customer data?
- thathndude 4y ago
  Typically, breach litigation has not been very successful. I would describe your outcome at very out of the ordinary (although the behavior you describe is pretty egregious). The problem is that, generally, the law thinks in terms of damages. So this mortgage company was being reckless with private information, but were you harmed by it? If the answer is "no," oftentimes the claim is dead on arrival. Of course, we all know that a data breach might not yield harm for 12+ months (when the data is sold on a black market and then used nefariously). But the law isn't well equipped for these types of situations.
chrisjc 4y ago
So if they decide to settle once you get a lawyer involved, does the settlement include both the claim and the lawyer's fees thus far, or just the claim? I'm sure that the answer is "both of course", but just want to hear how these kinds of early settlements pan out in your experience. I imagine that the ~$50k judgement you used as an example might be for lawyer fees when it has gone to judgement, but is it even worth most lawyers' time if it doesn't go that far? Couple hundred bucks to send a letter vs hundreds of bucks an hour doing something more consistent? Or is all this pretty boilerplate stuff?
- hammock 4y ago
  Lawyer fees are not a fixed cost, they increase with time. And the longer a case goes the less boilerplate it becomes. A settlement is more likely to include a greater portion going to the consumer than a final arbitration
  - chrisjc 4y ago
    Right, I get that. I just wanted to make sure that the lawyer's fees are covered in the settlement, or would a settlement include a final FU you that you now have your claim, but you're potentially out of pocket paying the lawyer fees you now owe. Worse yet, could they string you along and wait till the last minute to settle, thus increasing your lawyer fees potentially beyond the value of the original claim?
    - thathndude 4y ago
      I'm not sure if I'm understanding all of the questions/concerns you raise in your comment, but generally, I don't apportion out attorneys' fees in a settlement. And, again, typically, you don't "owe" attorneys' fees. It's a contingency (percentage) agreement. So if you settle at the 11th hour for $10,000, you have agreed to pay the lawyer a percentage of that figure, not necessarily what they would have asked for as attorneys' fees at a trial/hearing.
- perpetualpatzer 4y ago
  >I'm sure that the answer is "both of course" IANAL, but my understanding is that the default rule in the US is "each party pays for their own lawyers, regardless of who wins"[0]. Of course, the specifics would depend on the actual terms of the settlement agreement. [0] https://en.wikipedia.org/wiki/American_rule_(attorney%27s_fees) https://en.wikipedia.org/wiki/American_rule_(attorney%27s_fe...
jerf 4y ago
Having done this once myself, I will also add this: I'm in my mid-40s now, and arbitration triggered long-dormant school-type psychological patterns of "ohmigosh I'm going to get in trouble if I don't do this perfectly", or "What if I get B-?". The attorneys on the other side may even try to deliberately trigger these, they know the deal. The reality is, if you bring an action, the worst case outcome is basically: You lose. Yup, losing sucks. But... that's it. It's not going to trash your credit record, cause your significant other to leave, get you held back a grade, result in being grounded, kill your job (barring bring arbitration against your employer, of course, even if law forbids it), etc. etc. Your brain may incorrectly assess the stakes as being far higher than they are because of the form of the matter. You may need to consciously control those patterns. But if you want to be able to hold companies accountable, this is a big tool in your belt and if more people used it we'd probably see companies being less bold in screwing their customers over. It's a losing proposition for them from the moment you file. I certainly don't encourage frivolous filings, but by all means, when it isn't frivolous, think of it as a pro-social, pro-consumer action that you can take to bring companies to task and in at least in some small way represent other consumers who they probably screwed over too, but don't have the wherewithal to file arbitrations of their own.
- encryptluks2 4y ago
  Let's not forget the bigger tool in the belt and the one that is more likely to be more fair and balanced and affordable, and that is not having forced arbitration clauses and rights waivers. Companies doing this are not doing it to do anyone a favor and to pretend otherwise is a con by the same people that want you to lose.
  - jerf 4y ago
    There is a certain amount of evidence that if enough people start using the arbitration clauses, companies start reconsidering them and returning to standard class-action clauses. Companies for a long time were using arbitration in no small part precisely because nobody knew how to do it. But every person who goes through the process learns how to do it, and even if they start with Company X, that makes it that much easier to go after Company Y later. So over time knowledge is diffusing out. If the arbitration clauses offend you, you can take concrete action to help getting them out of the contracts by using them yourself.
mchusma 4y ago
These one sided attorney fees provisions make a mockery of justice. The whole dialog becomes basically blackmail if you are a small business. Maybe it's ok to have these laws for giant corporations, but if you own a small business and are barely getting by, simply being accused of something you lose regardless of the outcome and your accuser loses nothing regardless of outcome.
- ghaff 4y ago
  What's the alternative though? I can sue you at any time for any reason. Well, I guess the alternative is to make it difficult for the average person to use the legal system at all.
  - encryptluks2 4y ago
    Which is unethical because the legal system is supposed to be fair and balanced. If someone is suing you frivolously then ask the court to declare them a vexatious litigant.
    - ghaff 4y ago
      Meanwhile, in the real world, you're probably advised to hire a lawyer to make that filing.
- alisonkisk 4y ago
- Spooky23 4y ago
  Only if you use. A better strategy is to not let customer issues turn into lawsuits.
- b3morales 4y ago
  Does your small business have forced arbitration clauses in your customer contracts? If so, why was that decision made?
vertis 4y ago
Having seen the other side (I sat next to and was friend with some corporate lawyers), customer service may have no power or latitude to deviate, but the legal team has enormous latitude to do so. They're risk averse. You don't have to threaten a lawyer and you shouldn't). Just letting a lawyer know you exist and have a legitimate problem that could blow up in their face, can often be enough to magically resolve issues. They almost always have a public email address. Maybe it's better to go after them with the parent posts laws, but sometimes you just want your issue resolved. I can tell you that very few teams will argue once they get an email from the General Counsel. See also, patio11's post about being a dangerous professional[0]. One of the best pieces of writing on the subject. [0]: https://www.kalzumeus.com/2017/09/09/identity-theft-credit-reports/ https://www.kalzumeus.com/2017/09/09/identity-theft-credit-r...
- thathndude 4y ago
  Absolutely this. Arbitration is a powerful "customer service" tool.
ransom1538 4y ago
"the company knows that they could be facing a 50k+ judgment" Wait. You could lose. Doesn't that mean YOU could be responsible for THEIR lawyer fees too? EG. If you lose, your lawyer shrugs their shoulders and walks, you are stuck paying the 50k?
- runnerup 4y ago
  It depends on the jurisdiction but in the USA, generally the plaintiff is not responsible for the defenses legal fees. You’re generally only responsible for the defendants legal fees if your suit was unfounded and purposefully used to disrupt or harm your legal opponent, rather than to seek remedy in good faith. The defendant can be made to be responsible for your legal fees because those fees were “caused” by their action/inaction which was the unlawful source of harm that you are suing about. Because the defendant “caused” the lawsuit as a direct result of their original actions against you. All costs that follow from their original harm are owed by them to make you whole. If you bring a lawsuit as a plaintiff and lose, as long as it was a reasonably well founded lawsuit, there’s nothing to point to and say “ah ha! You injured me with your lawsuit that I won”. Because everything that happened was perfectly within everyone’s right (to bring a reasonable lawsuit but fail to secure a win).
- thathndude 4y ago
  Generally no. American rule provides that everyone has to pay their own fees unless there is a fee provision. Those are almost always written in favor of the consumer (if you win, you get fees; if you lose, you don't, but neither does the business).
dahart 4y ago
> One other way to “enlarge the pie” in situations like this is to hire an attorney. Your comments here are incredibly enlightening, thank you for sharing! Can you speak to how to find a good attorney for this kind of thing, or really for any legal needs? Like where to go to find people willing to do arbitration and maybe how to determine if they’re good. I’ve hired a lawyer in the past for some employment contract work, and it was worth every penny, but found out it was rather difficult to find someone who could help. I had to cold call a lot of people who weren’t interested or said they weren’t qualified. It felt like the lawyers or firms I spoke to were mostly looking for a longer term relationship.
- thathndude 4y ago
  Happy to be of help. It's very challenging finding a lawyer in a lot of these consumer protection spaces, because, for a whole host of reasons, there's not a lot of money here. Having said that, one piece of advice I always like to give when looking for any professional is to use your network. If you have people in your network you trust, use them as a starting point. So, for example, I don't do criminal law. But, as a lawyer, I know lots of criminal lawyers (insert joke), and I also have a well-tuned BS detector when talking with other lawyers. So even though I can't help you, you'd be smart to reach out to me because I can help you find the right person much more effectively. And if I can't, then I reach out to a criminal law attorney I know, link you up, and let that person make a recommendation. In short, use your network to leverage experience and knowledge to zero in on a good attorney. It will probably take a few degrees of connection, but if the chain is solid, you should get a good end result. For example, I recently had a client who needed a criminal law attorney in a state where I don't practice. So you have two issues: one, I don't know that legal community, and two, I don't do criminal law. But, I reached out in my network to a prosecutor in New York. Now this prosecutor can't represent my client, but now I have a criminal law attorney in the right state, and so his network is going to help. My buddy (lawyer 2) reaches out to his network, and one of his trusted contacts says "call lawyer 3)." My buddy (lawyer 2) doesn't know lawyer 3, but he trusts his network and the referrer. Long story short, my client ends up represented by lawyer 3, and well taken care of.
arbitrationnote 4y ago
Thank you, this is incredibly enlightening. I am planning to go to AAA with a claim against an online ticket sales company that scammed my mother - I have screenshot evidence that they violated an FTC consent decree in the process. Amusingly the consent decree also mandates them to keep detailed logs on their behavior for 10 years so they should have excellent records as well. I already spoke to senior attorneys at the FTC about it, but they couldn't really say anything back, and my understanding is that arbitration is the best option for my family to seek relief. Would you be interested in this or have a recommendation for an attorney? I had planned to do it alone but your comment made me completely reconsider. My email is in my profile
throw1230 4y ago
are arbitration decisions part of public record? can someone request documents on it like one would for court documents?
- thathndude 4y ago
  Generally no. It’s all private and unreported. There are some statistics gathered, but they’re anonymized. So, for example the statistic will record that my firm represented an unnamed consumer against a named company.
snapetom 4y ago
Author here. Thank you for the tips, and thank you for the feedback!
- thathndude 4y ago
  Thanks for giving me a chance to accumulate tons of that sweet sweet HN karma.
kingcharles 4y ago
I'm not an attorney, but I've litigated almost a hundred cases without a lawyer. Question: sometimes I'll have attorneys approach me at court when I'm on a case that's an obvious winner (and has statutory legal fees, which I can't claim because I'm not represented) and offer to take the case on so they'll get the fees, and then split the fees with me (and let me keep the damages). Is there any reason why this would not be legal? I've not done it yet simply because I like to litigate everything myself to make a point that it's possible, but sometimes you get a judge that really hates unrepresented people and a lawyer would change the game.
- MockObject 4y ago
  > I'm not an attorney, but I've litigated almost a hundred cases without a lawyer. Fascinating! I've only ever seen this criticized as a horrible idea. Are you operating in a specific area that you're skilled in? I assume you must have a decent win ratio.
- thathndude 4y ago
  Fascinating. I would love to hear more about your experiences! I could probably learn a thing or two (email in profile). Ethics rules vary state to state. And, generally, a lawyer cannot split attorneys' fees with a non-lawyer. However, I'm aware of some jurisdictions that have exceptions to this rule, and perhaps, depending on the details, that might give them an out from the general prohibition. But what you're describing is exactly the point I'm making. Having an attorney can often be a way to uncap your upside potential. If you can make the numbers work with the lawyer, then it's a win-win.
iambateman 4y ago
Super helpful, thanks. If I ever need an arbitration attorney, do you recommend (1) focusing on finding someone local or (2) finding someone specific to arbitration regardless of location? Also, if I lose, am I on the hook for the attorney fee? Or do I ask the attorney to take the risk and only collect a fee if we win?
- thathndude 4y ago
  If you're optimizing between local versus experience arbitration attorney, I'd prioritize the latter. I've never felt like my geography was a major hindrance (maybe I had to put in some extra hours to learn local laws/rules/customs, but that's rather easy). Put differently, I feel much more like a fish out of water when I'm out of an arbitration context I have a lot of familiarity I'm with than when I'm under a different state's laws.
FireBeyond 4y ago
> Lastly, let’s just say I’ve done an arbitration or two with a home warranty company. They don’t make money by paying out claims! Thankfully we didn't (directly, I know it's our money in there somewhere) buy a warranty when we got our house last year. I knew the AC was on its last legs from inspection, and no problem, since it was an older 80% old refrigerant system, probably closing on 30 years old. Figured it could wait one summer, in between all the other purchases with a new home. Then last year Seattle decided to have a heat wave. Maybe not much for those in Phoenix, but four days in a row of 105F+. That's still hot. And it's even hotter when you have no AC, as ours died a couple of hours into day 1. So I call the HWC. They "are having trouble" finding someone for "emergency service". Their idea of "emergency service" is "we have a company that will be out there in four WEEKS". So I found someone who could come out that day, for a surcharge. Reasonable. And the AC was dead. But this company were nice - the tech said "no promises, no commitments" and he did some shifty magic and got it running for about six more hours before it was permanently to the graveyard. So we started getting quotes for a new HVAC system. Responses from the HWC company: - we won't pay if you don't use our suppliers - we won't pay if you don't choose from our list of models (which were all low end, 80%, 1 stage systems) - even if you use our supplier, we won't pay above an agreed amount - if you used another contractor for ANY maintenance work on the existing system, we won't pay - if the maintenance schedule wasn't followed (whether you owned the system/property at the time), we won't pay Three (and a half) words are common across each of those bullet points, as you can probably surmise.
TwoNineFive 4y ago
> Far too many people are scared of arbitration That's a mischaracterization about the problem with arbitration. People are not scared of it. People are not afraid. It's shameful that you use language like this accuse the people of being afraid and scared. You can't claim to be an attorney and then say you didn't understand the meaning behind the words you chose to use. Consumer arbitration is corruption. People correctly understand that when one side is paying money to the judge, that the system is corrupt. It's about buying the judge, the court room, and the whole system. The problems with consumer arbitration are well documented. Being scared is not one of those problems. People are angry. https://en.wikipedia.org/wiki/Consumer_arbitration https://en.wikipedia.org/wiki/Consumer_arbitration

oneoff786 4y ago

Do you not feel it’s a problem to be charging 48k to litigate a 2k issue regardless of the chance to recoup it?

jacquesm 4y ago
Do you not feel it's a problem to be charging $50k for a piece of software on a $.20 medium?
- oneoff786 4y ago
  I don’t understand this question. What’s a 20 cent medium?
  - supermatt 4y ago
    https://www.youtube.com/watch?v=Q6RK4479XD8 https://www.youtube.com/watch?v=Q6RK4479XD8 ?
  - abstractbeliefs 4y ago
    The CD the software is sold on. It's like the old "why did I pay you $100 to turn a valve?" You're not paying for the CD, the valve turning, etc, you're paying off the time built for the expertise and background engineering.
    - unsupp0rted 4y ago
      The $100 valve-turning story never quite worked for me and I finally figured out why. It's not that you're paying him $100 for the expertise to know which valve to turn, it's that there's no one standing next to him who could reliably for $50 or even for $99 know which valve to turn. You're not paying for his expertise so much as for the scarcity of his expertise.
      - kofejnik 4y ago
        Yes, the guild of valve-turners ensures it
      - willcipriano 4y ago
        Also availability, he came running when you had a problem because he stands to make $100, offer him $10 and maybe he can pencil you in next month.
    - oneoff786 4y ago
      Do people still write software for discs outside of console games? I don’t think this comeback is very clever either way. Being paid $100 for a product worth $1000 in total sales is pretty reasonable. Being paid $50k to resolve a $2k seems to be a very unusual outcome. It just raises the stakes of the case by 25x. It seems very unreasonable that a losing party could need to cover so much from their opponents end especially as they get no say in the total stakes. If it was you paying $50k to your lawyer regardless of whether or not you won, sure, that’s just your choice. This is a $50k extra being thrown at your opponent and there’s no incentive to be reasonable about it because it sounds like your own client doesn’t get hit with it. Idk if it applies in this context but if it goes both ways then you’ve got a prisoners dilemma. Spending more on lawyers increases the probability of winning, but also increases the total pot of lawyer money. That’s so fucked up. I would vote for you’re liable for at mode the amount you spent on lawyers personally. If they do 50k on a 2k issue and you don’t even get a lawyer, you may lose 2k but they lose 50k. Incentives to escalate lawyer fees sounds stupid as shit to society.
thathndude 4y ago
This is the way the justice system is set up. I don’t really dig into whether this is a systemic problem. I’m not charging my client 48k. I’m recording my time spent working the case. If I have to spend 100 hours working on a case, and my hourly rate is $500 an hour, and we win, then the attorneys’ fee award should be $50,000, regardless of whether the claim is $100 or $100,000. This is an important component of civil rights litigation. Often times does claims have small value (in terms of damages). But we want to incentivize competent lawyering, and so, if you prevail, you get an award of attorneys’ fees. The same is true in this context. If you don’t have a provision like that, then consumers are left without recourse. As it is, there are very few lawyers who practice in this area as is.
- oneoff786 4y ago
  Ok but if you lose, your client gets $0 and owes you $50k. No? And if you settle?
  - rocqua 4y ago
    He works on contigency. That is a 'no cure no pay' system.
  - thathndude 4y ago
    No. It’s a contingency fee. My client isn’t paying me hourly. If we lose, we both get $0. This is how lots and lots of plaintiff litigation works, if you’re not familiar. Those guys advertising for car accidents on billboards are not charging you an hourly rate. As plaintiff’s attorneys, we take cases we believe in, we spend our money to prosecute the case (I almost always pay that $200 AAA filing fee for my clients), and then we get paid out on the back end. In my personal opinion, it’s a much more appropriate compensation method, because it puts our interests firmly in line. Based on the very limited understanding I have of this case, if we settle, I’m targeting a 10k settlement and taking a percentage of that (a percentage smaller than the client), and so my client is getting 5k+.
    - oneoff786 4y ago
zo1 4y ago
Sounds fine an dandy when it's "stick it to the big evil corp that has revenues in the hundreds of millions", but a side-effect is that it'll make insurance and legal costs higher for smaller (and potentially very honest) companies.
- ameister14 4y ago
  Except that if the company did what it was obligated to do under the contract there would be no lawsuit, and if there was one the company would win.
  - zo1 4y ago
    And in the case that they did do what was obligated and win the case with 100 hours worth of lawyer time spent? Will the small party pay the lawyer fees for the company?
    - ameister14 4y ago
      Their lawyer would spend some time regardless of whether the other party's lawyer was there or not. Sure, they may have to answer some filings or produce something (I don't really know the rules and procedures of arbitration) but again, a competent person without an attorney would come close to that anyway. If the lawyer loses on contingency after spending 100 hours, nobody pays them; that lawyer eats the loss.
      - oneoff786 4y ago
        But it’s super shit that a lawyer can say “you can either give my client 2k or have a chance at giving my client 2k and me 50k” That’s just so fucked up.
        ameister14 4y ago
        I've been thinking about it, and I think it's mostly a balancing of the scales - the company sets the initial terms of the contract almost every time, and has a completely disproportionate amount of power in the relationship. This is a bit more of a spin the other direction, but it still doesn't quite get there. Yeah, it's fucked up, but it's a response to the company being able to do more things that are fucked up and doesn't come out of nowhere.

maccard 4y ago

> So let’s say your claim is $2,000. Under those laws, maybe you can “treble” (triple) your damages if you win. So now your best day is $6,000. And the company knows it. This is one of the most eye opening things I've read on here. I didn't know that about arbitration. When you threaten/enter into arbitration, it should be part of the law that the company must respond with the maximum amount of damage they're liable for. Anything else is information asymmetry towards the company and they know that too.

thathndude 4y ago
I like this suggestion. There is a substantial lack of attorneys in this area. If we are going to force consumers into these systems, they need to be designed more fairly.
- maccard 4y ago
  Think of it like a mortgage - I got a 90 page legal document when I purchased my home (and I received multiple physical copies of it....) but on the first page of it was "here's how much you're borrowing, here's how much you will repay over the lifetime, and here's the fees if you pay it back early", and I had to sign that page individually with the rest of the agreement. It felt a bit silly, but it _forces_ the service provider to give you this information in an honest format, and not bury it in the small print 5 levels of indirection deep.
  - thathndude 4y ago
    And the only reason you get that information is because of federal consumer protection laws. If nothing else, an experienced consumer protection attorney brings that to the table—knowledge of these various laws (and how you can sue under them) that you might not even know exists.
    - toolz 4y ago
      I think that point is about as fair as saying the only reason it got so complicated in the first place is because of federal consumer protection laws that enable banks/lenders to get away with such complex agreements to begin with. Otherwise you'd have competition that exists solely to correct the complexity of our current financial system.

jfoster 4y ago

What do you think about the approach taken? ("I summarized the entire timeline into three sentences. I provided no evidence. I didn’t want to give my hand away before arbitration.")

thathndude 4y ago
Personally, I would’ve taken the exact opposite approach. I once had an attorney, a very successful attorney, tell me that he’s a big fan of laying cards on the table right away. The rationale is that he either wants to know why he’s going to lose early or show the other party why they are going to lose early. In a case like this, where it seems like OP has all the information to prove that these guys are simply in the wrong, I come out guns blazing. I Layout the whole timeline with screenshots and copies of emails, very detailed. Then I make the ask with some snarky closing line like, “if you’d like to avoid the inevitable judgment that will be rendered against you, please contact my office to facilitate payment.”
- tiahura 4y ago
  I’ll disagree. My guess is that it wouldn’t have changed their initial offer, and then he wouldn’t have any ammo to negotiate with.
  - thathndude 4y ago
    But negotiation is not a game of gotcha. It’s not as though you get a number, and then pull a rabbit out of the hat to get a bigger number. “But see this.” You make a demand, and you justify it based on the facts and law, and then you stick to it or make minor concessions until you reach your end result.
    - sudden_dystopia 4y ago
      As someone that settles personal injury lawsuits, this is exactly how the process works. I receive medical records, review them, and make an offer. When we negotiate, very rarely do we talk about the actual case details, it’s just numbers back and forth. If they say it’s worth more than I have it evaluated, I simply ask for more records or indicate that I have reached my best offer. For what it is worth, it doesn’t affect me at all how much I pay out. It’s not part of my job objective to pay the least possible. If I can justify it, I can get it authorized.

spaniard89277 4y ago

Hmm anyone from Spain familiar with this? I've claimed stuff with my regional consumo agency a handful of times (successfully) but most of the times it was <1K, so It was only worth the hassle because I was almost angry about the situation. If I can punish companies for bad behaviour and harm their pocket this way, It would be much better.

projektfu 4y ago

Have you done any arbitrations with employee cases? Mandatory arbitration in low wage employment was the hot topic a few years ago.

thathndude 4y ago
Never got into the employment context. But wage and hour cases (FLSA) have made many a rich lawyer. I will say, while I am generally not anti-arbitration, I do think it has its limits, and when it is used as a tool to suppress information that should be out in the public, I am completely opposed to it. The Example I often use are cases where an individual is suffering severe sexual-harassment. If that person is forced into arbitration, unable to share their story (confidentiality required), and hamstrung in prosecuting their claims by the arbitration process, that’s a losing situation for the entirety of society.

sillysaurusx 4y ago

Hey, thanks for this. As someone who just went through this process in December, there’s a problem: my contract had a sneaky clause in it that said both parties are responsible for 50% of attorney fees. Meaning that $50k judgement would become a $25k bill. Yeah, I was sad to realize that. But! Your advice is absolutely worth taking anyway. I did, and the company paid me the moment I said I was starting the arbitration process. It was a bluff, and sometimes you need to be willing to bluff. On the other hand, I was so upset at them that I might’ve just gone through the process regardless. So I guess it helps if you yourself aren’t sure whether it’s a bluff, since they definitely won’t know either.

thathndude 4y ago
Edit: I may have misunderstood your comment, but it sounds like maybe you were saying your contract with the defendant company required that you pay 50% of attorneys fees. If that’s the case, it would depend on details, but there would be a lot of arguments to make that not applicable. Edit 2: Confirmed (see comment above)
ascar 4y ago
> my contract had a sneaky clause in it that said both parties are responsible for 50% of attorney fees. Which contract? The one you did the arbitration? If the consumer law says the winner has to pay the fees, how can such a clause be legal?
- thathndude 4y ago
  I just re-read that comment, and had the same question. If the company is trying to include such a provision in its contract with you, such a provision, would be illegal, unconscionable, void against public policy, etc etc. I’ve never seen anything like that in all of my arbitrations. What you will see for B2B claims (not consumer claims) is an agreement that the parties will split the cost of arbitration. But that’s different than their respective attorneys please.
  - sillysaurusx 4y ago

dalbasal 4y ago

So... thanks for the advice and info. Good to get practical knowledge out there. That said: that same law says you can get attorneys’ fees too, the company knows that they could be facing a 50k+ judgment at the end (almost entirely comprising attorneys’ fees), and then that often incentivizes earlier, higher settlements. This is awful, in my opinion. We really should consider redesigning our legal systems once every century or so. This sort of thing is a result of lawyers making their own rules for too long.

windexh8er 4y ago

Thank you for the insight! I'm curious of your perspective around consumer success with data breach as of recent? Do you find companies liable for general negligence? As an example... When I was selecting a mortgage company a couple years ago one of the large providers who is newer, and started out in higher ed loans, seemed to have a very sloppy process. They did a lot of things via email that likely shouldn't be done which opened up the avenue for them to send my SO and I emails of PDFs that included our SSNs in them. Needless to say I stopped the mortgage process with them right there and, ended up using a local credit union. However, I threatened legal recourse in a state that doesn't have great privacy laws based on the obvious "leak". When they asked for proof I pointed out that the email headers contained 5 intermediaries that were out of their control between sending and receipt. The company sent us each a check for $4k and part of my stipulations were that we would not sign anything in exchange. I was surprised how easy it was and almost felt as though I left money on the table. But I'm curious if you see a particular area that consumers can push back on when companies are negligent with customer data?

thathndude 4y ago
Typically, breach litigation has not been very successful. I would describe your outcome at very out of the ordinary (although the behavior you describe is pretty egregious). The problem is that, generally, the law thinks in terms of damages. So this mortgage company was being reckless with private information, but were you harmed by it? If the answer is "no," oftentimes the claim is dead on arrival. Of course, we all know that a data breach might not yield harm for 12+ months (when the data is sold on a black market and then used nefariously). But the law isn't well equipped for these types of situations.

chrisjc 4y ago

So if they decide to settle once you get a lawyer involved, does the settlement include both the claim and the lawyer's fees thus far, or just the claim? I'm sure that the answer is "both of course", but just want to hear how these kinds of early settlements pan out in your experience. I imagine that the ~$50k judgement you used as an example might be for lawyer fees when it has gone to judgement, but is it even worth most lawyers' time if it doesn't go that far? Couple hundred bucks to send a letter vs hundreds of bucks an hour doing something more consistent? Or is all this pretty boilerplate stuff?

hammock 4y ago
Lawyer fees are not a fixed cost, they increase with time. And the longer a case goes the less boilerplate it becomes. A settlement is more likely to include a greater portion going to the consumer than a final arbitration
- chrisjc 4y ago
  Right, I get that. I just wanted to make sure that the lawyer's fees are covered in the settlement, or would a settlement include a final FU you that you now have your claim, but you're potentially out of pocket paying the lawyer fees you now owe. Worse yet, could they string you along and wait till the last minute to settle, thus increasing your lawyer fees potentially beyond the value of the original claim?
  - thathndude 4y ago
    I'm not sure if I'm understanding all of the questions/concerns you raise in your comment, but generally, I don't apportion out attorneys' fees in a settlement. And, again, typically, you don't "owe" attorneys' fees. It's a contingency (percentage) agreement. So if you settle at the 11th hour for $10,000, you have agreed to pay the lawyer a percentage of that figure, not necessarily what they would have asked for as attorneys' fees at a trial/hearing.
perpetualpatzer 4y ago
>I'm sure that the answer is "both of course" IANAL, but my understanding is that the default rule in the US is "each party pays for their own lawyers, regardless of who wins"[0]. Of course, the specifics would depend on the actual terms of the settlement agreement. [0] https://en.wikipedia.org/wiki/American_rule_(attorney%27s_fees) https://en.wikipedia.org/wiki/American_rule_(attorney%27s_fe...

jerf 4y ago

Having done this once myself, I will also add this: I'm in my mid-40s now, and arbitration triggered long-dormant school-type psychological patterns of "ohmigosh I'm going to get in trouble if I don't do this perfectly", or "What if I get B-?". The attorneys on the other side may even try to deliberately trigger these, they know the deal. The reality is, if you bring an action, the worst case outcome is basically: You lose. Yup, losing sucks. But... that's it. It's not going to trash your credit record, cause your significant other to leave, get you held back a grade, result in being grounded, kill your job (barring bring arbitration against your employer, of course, even if law forbids it), etc. etc. Your brain may incorrectly assess the stakes as being far higher than they are because of the form of the matter. You may need to consciously control those patterns. But if you want to be able to hold companies accountable, this is a big tool in your belt and if more people used it we'd probably see companies being less bold in screwing their customers over. It's a losing proposition for them from the moment you file. I certainly don't encourage frivolous filings, but by all means, when it isn't frivolous, think of it as a pro-social, pro-consumer action that you can take to bring companies to task and in at least in some small way represent other consumers who they probably screwed over too, but don't have the wherewithal to file arbitrations of their own.

encryptluks2 4y ago
Let's not forget the bigger tool in the belt and the one that is more likely to be more fair and balanced and affordable, and that is not having forced arbitration clauses and rights waivers. Companies doing this are not doing it to do anyone a favor and to pretend otherwise is a con by the same people that want you to lose.
- jerf 4y ago
  There is a certain amount of evidence that if enough people start using the arbitration clauses, companies start reconsidering them and returning to standard class-action clauses. Companies for a long time were using arbitration in no small part precisely because nobody knew how to do it. But every person who goes through the process learns how to do it, and even if they start with Company X, that makes it that much easier to go after Company Y later. So over time knowledge is diffusing out. If the arbitration clauses offend you, you can take concrete action to help getting them out of the contracts by using them yourself.

mchusma 4y ago

These one sided attorney fees provisions make a mockery of justice. The whole dialog becomes basically blackmail if you are a small business. Maybe it's ok to have these laws for giant corporations, but if you own a small business and are barely getting by, simply being accused of something you lose regardless of the outcome and your accuser loses nothing regardless of outcome.

ghaff 4y ago
What's the alternative though? I can sue you at any time for any reason. Well, I guess the alternative is to make it difficult for the average person to use the legal system at all.
- encryptluks2 4y ago
  Which is unethical because the legal system is supposed to be fair and balanced. If someone is suing you frivolously then ask the court to declare them a vexatious litigant.
  - ghaff 4y ago
    Meanwhile, in the real world, you're probably advised to hire a lawyer to make that filing.
alisonkisk 4y ago
Spooky23 4y ago
Only if you use. A better strategy is to not let customer issues turn into lawsuits.
b3morales 4y ago
Does your small business have forced arbitration clauses in your customer contracts? If so, why was that decision made?

vertis 4y ago

Having seen the other side (I sat next to and was friend with some corporate lawyers), customer service may have no power or latitude to deviate, but the legal team has enormous latitude to do so. They're risk averse. You don't have to threaten a lawyer and you shouldn't). Just letting a lawyer know you exist and have a legitimate problem that could blow up in their face, can often be enough to magically resolve issues. They almost always have a public email address. Maybe it's better to go after them with the parent posts laws, but sometimes you just want your issue resolved. I can tell you that very few teams will argue once they get an email from the General Counsel. See also, patio11's post about being a dangerous professional[0]. One of the best pieces of writing on the subject. [0]: https://www.kalzumeus.com/2017/09/09/identity-theft-credit-reports/ https://www.kalzumeus.com/2017/09/09/identity-theft-credit-r...

thathndude 4y ago
Absolutely this. Arbitration is a powerful "customer service" tool.

ransom1538 4y ago

"the company knows that they could be facing a 50k+ judgment" Wait. You could lose. Doesn't that mean YOU could be responsible for THEIR lawyer fees too? EG. If you lose, your lawyer shrugs their shoulders and walks, you are stuck paying the 50k?

runnerup 4y ago
It depends on the jurisdiction but in the USA, generally the plaintiff is not responsible for the defenses legal fees. You’re generally only responsible for the defendants legal fees if your suit was unfounded and purposefully used to disrupt or harm your legal opponent, rather than to seek remedy in good faith. The defendant can be made to be responsible for your legal fees because those fees were “caused” by their action/inaction which was the unlawful source of harm that you are suing about. Because the defendant “caused” the lawsuit as a direct result of their original actions against you. All costs that follow from their original harm are owed by them to make you whole. If you bring a lawsuit as a plaintiff and lose, as long as it was a reasonably well founded lawsuit, there’s nothing to point to and say “ah ha! You injured me with your lawsuit that I won”. Because everything that happened was perfectly within everyone’s right (to bring a reasonable lawsuit but fail to secure a win).
thathndude 4y ago
Generally no. American rule provides that everyone has to pay their own fees unless there is a fee provision. Those are almost always written in favor of the consumer (if you win, you get fees; if you lose, you don't, but neither does the business).

dahart 4y ago

> One other way to “enlarge the pie” in situations like this is to hire an attorney. Your comments here are incredibly enlightening, thank you for sharing! Can you speak to how to find a good attorney for this kind of thing, or really for any legal needs? Like where to go to find people willing to do arbitration and maybe how to determine if they’re good. I’ve hired a lawyer in the past for some employment contract work, and it was worth every penny, but found out it was rather difficult to find someone who could help. I had to cold call a lot of people who weren’t interested or said they weren’t qualified. It felt like the lawyers or firms I spoke to were mostly looking for a longer term relationship.

thathndude 4y ago
Happy to be of help. It's very challenging finding a lawyer in a lot of these consumer protection spaces, because, for a whole host of reasons, there's not a lot of money here. Having said that, one piece of advice I always like to give when looking for any professional is to use your network. If you have people in your network you trust, use them as a starting point. So, for example, I don't do criminal law. But, as a lawyer, I know lots of criminal lawyers (insert joke), and I also have a well-tuned BS detector when talking with other lawyers. So even though I can't help you, you'd be smart to reach out to me because I can help you find the right person much more effectively. And if I can't, then I reach out to a criminal law attorney I know, link you up, and let that person make a recommendation. In short, use your network to leverage experience and knowledge to zero in on a good attorney. It will probably take a few degrees of connection, but if the chain is solid, you should get a good end result. For example, I recently had a client who needed a criminal law attorney in a state where I don't practice. So you have two issues: one, I don't know that legal community, and two, I don't do criminal law. But, I reached out in my network to a prosecutor in New York. Now this prosecutor can't represent my client, but now I have a criminal law attorney in the right state, and so his network is going to help. My buddy (lawyer 2) reaches out to his network, and one of his trusted contacts says "call lawyer 3)." My buddy (lawyer 2) doesn't know lawyer 3, but he trusts his network and the referrer. Long story short, my client ends up represented by lawyer 3, and well taken care of.

arbitrationnote 4y ago

Thank you, this is incredibly enlightening. I am planning to go to AAA with a claim against an online ticket sales company that scammed my mother - I have screenshot evidence that they violated an FTC consent decree in the process. Amusingly the consent decree also mandates them to keep detailed logs on their behavior for 10 years so they should have excellent records as well. I already spoke to senior attorneys at the FTC about it, but they couldn't really say anything back, and my understanding is that arbitration is the best option for my family to seek relief. Would you be interested in this or have a recommendation for an attorney? I had planned to do it alone but your comment made me completely reconsider. My email is in my profile

throw1230 4y ago

are arbitration decisions part of public record? can someone request documents on it like one would for court documents?

thathndude 4y ago
Generally no. It’s all private and unreported. There are some statistics gathered, but they’re anonymized. So, for example the statistic will record that my firm represented an unnamed consumer against a named company.

snapetom 4y ago

Author here. Thank you for the tips, and thank you for the feedback!

thathndude 4y ago
Thanks for giving me a chance to accumulate tons of that sweet sweet HN karma.

kingcharles 4y ago

I'm not an attorney, but I've litigated almost a hundred cases without a lawyer. Question: sometimes I'll have attorneys approach me at court when I'm on a case that's an obvious winner (and has statutory legal fees, which I can't claim because I'm not represented) and offer to take the case on so they'll get the fees, and then split the fees with me (and let me keep the damages). Is there any reason why this would not be legal? I've not done it yet simply because I like to litigate everything myself to make a point that it's possible, but sometimes you get a judge that really hates unrepresented people and a lawyer would change the game.

MockObject 4y ago
> I'm not an attorney, but I've litigated almost a hundred cases without a lawyer. Fascinating! I've only ever seen this criticized as a horrible idea. Are you operating in a specific area that you're skilled in? I assume you must have a decent win ratio.
thathndude 4y ago
Fascinating. I would love to hear more about your experiences! I could probably learn a thing or two (email in profile). Ethics rules vary state to state. And, generally, a lawyer cannot split attorneys' fees with a non-lawyer. However, I'm aware of some jurisdictions that have exceptions to this rule, and perhaps, depending on the details, that might give them an out from the general prohibition. But what you're describing is exactly the point I'm making. Having an attorney can often be a way to uncap your upside potential. If you can make the numbers work with the lawyer, then it's a win-win.

iambateman 4y ago

Super helpful, thanks. If I ever need an arbitration attorney, do you recommend (1) focusing on finding someone local or (2) finding someone specific to arbitration regardless of location? Also, if I lose, am I on the hook for the attorney fee? Or do I ask the attorney to take the risk and only collect a fee if we win?

thathndude 4y ago
If you're optimizing between local versus experience arbitration attorney, I'd prioritize the latter. I've never felt like my geography was a major hindrance (maybe I had to put in some extra hours to learn local laws/rules/customs, but that's rather easy). Put differently, I feel much more like a fish out of water when I'm out of an arbitration context I have a lot of familiarity I'm with than when I'm under a different state's laws.

FireBeyond 4y ago

> Lastly, let’s just say I’ve done an arbitration or two with a home warranty company. They don’t make money by paying out claims! Thankfully we didn't (directly, I know it's our money in there somewhere) buy a warranty when we got our house last year. I knew the AC was on its last legs from inspection, and no problem, since it was an older 80% old refrigerant system, probably closing on 30 years old. Figured it could wait one summer, in between all the other purchases with a new home. Then last year Seattle decided to have a heat wave. Maybe not much for those in Phoenix, but four days in a row of 105F+. That's still hot. And it's even hotter when you have no AC, as ours died a couple of hours into day 1. So I call the HWC. They "are having trouble" finding someone for "emergency service". Their idea of "emergency service" is "we have a company that will be out there in four WEEKS". So I found someone who could come out that day, for a surcharge. Reasonable. And the AC was dead. But this company were nice - the tech said "no promises, no commitments" and he did some shifty magic and got it running for about six more hours before it was permanently to the graveyard. So we started getting quotes for a new HVAC system. Responses from the HWC company: - we won't pay if you don't use our suppliers - we won't pay if you don't choose from our list of models (which were all low end, 80%, 1 stage systems) - even if you use our supplier, we won't pay above an agreed amount - if you used another contractor for ANY maintenance work on the existing system, we won't pay - if the maintenance schedule wasn't followed (whether you owned the system/property at the time), we won't pay Three (and a half) words are common across each of those bullet points, as you can probably surmise.

TwoNineFive 4y ago

> Far too many people are scared of arbitration That's a mischaracterization about the problem with arbitration. People are not scared of it. People are not afraid. It's shameful that you use language like this accuse the people of being afraid and scared. You can't claim to be an attorney and then say you didn't understand the meaning behind the words you chose to use. Consumer arbitration is corruption. People correctly understand that when one side is paying money to the judge, that the system is corrupt. It's about buying the judge, the court room, and the whole system. The problems with consumer arbitration are well documented. Being scared is not one of those problems. People are angry. https://en.wikipedia.org/wiki/Consumer_arbitration https://en.wikipedia.org/wiki/Consumer_arbitration