Arbitration and Money is a Big Secret

One of the more frustrating episodes in Law School occurred when the topic of arbitration came up. I had that uneasy feeling again of looking around the packed lecture hall and knowing that none of these young colleagues, or even the bloviating professor, had gone through arbitration themselves (like I have).

At least one aggressive credit card company in America has stuck into the fine print of their customer agreement a clause that states that all disputes should be resolved in an arbitration court—of their choosing, of course. In other words, when a dispute occurs, this credit card company has set up its own arbitration court, hired its own judge (a retired judge), and set up shop in the middle of upstate New York, where there is no access to public transportation. One set of reported statistics show that the credit card company wins 94% of the cases brought before this arbitration court—I suspect this isn’t entirely true, since the number is probably more like 100%.

Arbitration is presented in Law School as a new, innovative alternative to the traditional litigation process. In the Civil Procedure book used in my class, there was one reference to a critic of arbitration who points out that if one of the litigants is paying for the court, wouldn’t the court then be biased? Am I the only law student in the world who finds this ridiculously understated? Hasn’t one of the major concerns in the history of law been bribing the judges? Now, the bribe to the judge is completely visible in the form of a paycheck.

If my view appears cynical, it’s probably because we have entered an era where cynicism no longer means anything. In my legal writing class, the same topic came up in its text book, and the author (who happened to also be my professor) defended the situation by saying that judges are paid to be professionals, so they won’t be swayed by the money. Al Capone would have been so proud.

Keep in mind that arbitration is the same method depicted in the movie Erin Brockovich as bringing a huge corporation like PG&E to its knees. That might be true when both litigants get to agree on the arbitration court. In my case, there was no notice served of the arbitration itself. Once the credit card company deems the customer is too far behind on payments, the matter goes before their arbitration court. The customer is not served with notice of the arbitration. The default decision then comes in the mail, resembling a piece of junk mail that you might throw out if you are not careful. If you then don’t pay the amount of this default decision, which is usually the full sum of your debt plus a hefty penalty that almost doubles the amount, the matter is brought before a “real” court. I did receive notice of that.

So I went to the “real” court. I called the courthouse clerk the night before and asked if they had record of the hearing. Guess what? They did not. I asked the clerk if I should then stay home, and the clerk said, probably not—come anyway. I did go and, sure enough, there were “hearings” scheduled that day for enforcement of this credit card’s arbitration court: about 50 of them. I think only one other person beside myself showed up for this. The judge might as well have been carrying on these “hearings” out of a broom closet. When my turn came and I explained to the judge (a T14 alumnus—I looked it up) that I was never served for this arbitration court, he looked at the credit card company’s lawyer, and she reached into a briefcase saying “yes he was,” attempting to pull out her “evidence.” The judge simply waved his hand, as if it wouldn’t be necessary to see the “evidence.” I don’t know what “evidence” they had that I was served, but I know I never signed anything, nothing was ever “posted” on my apartment door, and I certainly was never served “in person.” The judge sent his “order” to me in the mail six weeks later, essentially finding that I had been served and the arbitration default judgment against me had his stamp of approval.

OK, this is a whopper of a tale that cannot be fully related during my law school’s “semi-Socratic” method of mulling through basic legal principals. Let’s face another burning fact: I owed the credit card company the money, even though I believe the arbitration method is a corruption of justice. Still, not once in the class discussion was the arbitration process questioned, even though there was that hint in the case book that this system could be corrupted by money. The class had already thoroughly discussed cases that involve improper service for a court appearance under the rubric "due process of law." In arbitration, due process can be completely avoided, and yet it is still called an innovation of justice.

My Civil Procedure professor kept a tight rein on discussion of arbitration and refused to call on me when I had my hand up. This “semi-Socratic” method is supposed to be for everyone, and please believe me, I’m not the spitting, spouting Socialist that would disrupt a class of budding young American lawyers. This is simply law-school censorship. I did send this professor an important case on the topic: MBNA America Bank, N.A. v. Credit, which relates almost verbatim the same circumstances of my story, with the court ruling against the credit card company.

But that’s not the point. The point is, law schools are supposed to let everyone talk and express their views. At least that’s the way this law school presented its “semi-Socratic” method to us during orientation. Ah yes! Those wonderful warm-feelings we got from the school before our tuition was paid! More on that later. For now, allow me to say that the only method in law school that resembles anything Socratic is that if you let them, they eventually induce you to drink hemlock.

Debunking Lawyer Logic

One of my favorite examples of idiocy on the practice LSAT exams I took was the following question (which I am paraphrasing, since I didn't keep the original--any one out there have the originial?): Because of the advent of electronic amplification of musical instruments in the 1950s, it became normal for musical ensembles to consist of four musicians. Before that time, musical ensembles normally consisted of 20 musicians. What does this tell you about musical ensembles after the 1950s?

There was a multiple choice selection of answers, but the correct answer was: there will be more musical ensembles after the 1950s.

Very logical, right? Read it again. You have this big pool of musicians out there. Draw hundreds of little "m"s on a piece of paper, and circle them into groups of 20. That represents the world of musical ensembles before the advent of electronic amplification. Now take the same piece of paper and start circling the groups of "m"s into groups of 4. That represents the world of musical ensembles after the advent of electronic amplification. There are obviously more groups of 4 than there are groups of 20, so the correct answer is very logical, right?

Come on folks. Am I the only one in the world that wadded that practice exam into a ball and threw it against the wall and started cursing? And yes, after my first year of law school, this is the type of lawyer logic that absolutely frustrated me. It really does remind me of throwing witches into the river to see if they'll float.

If I must debunk this obviously idiotic question, here goes: musical ensembles before the 1950s that consisted of 20 players were big band jazz ensembles. There were trumpets, saxophones, trombones, and a rhythm section. Musical ensembles after the 1950s were rock ensembles, yes, consisting of the same instruments in a big band rhythm ensemble (guitar, bass, drums, possibly keyboards), but that is all. If you are a living, breathing musician happily playing a trumpet in a big band ensemble, there is no way you are going to switch gear mid-career, grow your hair long, and start wailing on an electric guitar. Is there? Big band musicians could read music. They were notoriously purist. Once their trend dried up, they went down with the ship. Young rock musicians of the 1950s and beyond typically couldn't read music and picked up and learned their electric guitars by themselves.

I could go on and on until I'm blue in the face, but must say that this is the type of thinking that lawyers expect you to "master" in law school. It is also the type of logic that lawyers and judges use to send people to the lethal injection.

How about doing me a favor? Let's start throwing lawyers in the river to see if they float.

Let's Get Things Straight

I would like to introduce myself as someone who extended much time and effort to get through my first year of law school. Now I have been culled, that is, my grade point average is about 1.8, which is well under the 2.2 requirement of this law school to prevent "academic disqualification." The law school took my money, then told me "so sorry." I would like to speak to all the problems that law students go through, especially finding jobs after receiving the JD, but there are even more issues to those of us who have been "culled," thereby tainting our law school record forever.

I won't reveal which law school I atteneded, but will say that it is now in the top 100 rankings of law schools in America (although not in the top 25). I will also say that I have a PhD in a humanities field and, as a professional writer, have over 300 publications, mostly from major newspapers.

That the money you are expected to pay for law school is outrageous and, yes, brings to mind a new era of sharecropping, skirts around another major issue: what exactly is being taught in these schools? Must we assume that the content of these legal theories is sound? Must we assume that law teachers are competent if they have JDs from schools like Harvard or Stanford?

My answers to the last two questions at least is a resounding "no"! Not only are these law schools acting as confidence men in stroking our vanities and pumping us up with false claims of jobs and graduates' passage of the bar, but these teachers are incompetent to begin with.

My favorite story turns out to be in my legal writing class, where I used the word "charlatan," and the teacher not only didn't know what that meant, but scolded me for several minutes for using such an obscure word (which I found 20 minutes later in my Contracts assignment: Sullivan v. O'Connor, 363 Mass. 579, 296 N.E.2d 183 (Mass.1973)). The same writing teacher couldn't even do her own assignments teaching us the ALWD manual (which I understood better than anyone else in the class, thanks to my experience with my PhD and editing for newspapers, even though I also got the worst grade in the class).

I had fancy Criminal Law professor from Harvard who took after John Houseman on "the Paper Chase." On his final exam about the insanity defense, his reasoning was made all too clear on his model answer: if a paranoid schizophrenic commits a crime based on specific instructions from the voices in his or her head, they can use an insanity defense, but if the voices are not specific, the insanity defense won't work. As someone with a family member who suffers from paranoid schizophrenia, and just as someone who still has some common sense left, I find this absurd. Anyone out there ready to take down transcripts of the voices inside a paranoid schizophrenic's head and submit them as evidence in a court of law?

In addition to my work as a journalist, I have also been in court probably more than many of these teachers who don't even know the procedures involved. My Civil Procedure professor didn't know that non-American citizens can sue and be sued in American courts (I even sued my landlady once in Germany). My Criminal Procedure teacher didn't know how to pronounced "petit jury" (and wondered aloud if there were any French scholars among us who might be able to pronounce it).

We must also take pot luck as to simply the character of some of these professors, although I think there are limits. I wouldn't be surprised if some of these professors suffered from some serious personality disorders that kept them from more lucrative positions in law firms or corporations. My Contracts professor had a serious snarling problem that manifested itself similar to some sort of sinister, dark possession. My Torts professor skirted with anorexia. The chairman of the legal writing department was so crazy that I almost called 911 after the first 10 mintutes of his first lecture to us.

I believe my finals were graded poorly, and the only problem was that my writing style was unusual to these professors. I did not lack legal knowledge. There are some serious issues here, and law schools are also embracing bizarre popular interpretations of history and what modern economics is. They try to be a Mensa society, but don't know the first thing about measuring IQs. They are not a meritocracy, but a dysfunctional utopian wannabee system motivated at its root by the corruption of getting your money every year for tuition. Being culled is their way of manipulating the "first pass of bar exam" statistic, although I would challenge if it even does that.

Please weigh in, even if you haven't been culled. Don't let incompetent professors taint your law career before it even begins!