Changes on the horizon in consumers’ attitudes

Consumers’ perception of forced arbitration is finally changing – will the perception of trial lawyers be next?

2016 May

I’ve been with CAALA for nearly 12 years, and no issue has been more frustrating for trial lawyers than the challenge of changing how the public perceives them. Changing public perception is hard. Just ask a trial lawyer.

Instead of being thanked for standing up for people who have been harmed through no fault of their own, you are demonized.

Cognitive scientist George Lakoff has written extensively about this. He talks about frames that are established in our brains and that when we are given facts that don’t fit the frame, the frame stays and the facts go.

Unfortunately, the frames put out by those opposed to trial lawyers and against consumers have been long established. You know them all too well, and I won’t repeat them here.

Lakoff says that in order to argue against those frames you have to put another set of general frames in people’s brains, and that takes a while. It doesn’t happen overnight.

Most trial lawyers have opinions about what those frames should be, and those opinions aren’t always the same.

Trial lawyers protect people

One frame that most agree on, however, is that trial lawyers protect people. Every day, you protect people from unsafe products, unsafe medicine and unfair business practices. That frame has been established in the past few years.

More than 5,000 years ago some words were written that also describe who you are and what you do.

I don’t usually quote the Bible in this column, but the words come from the Old Testament. Isaiah 1:17 describes what you do in just seven words: “Do right, seek justice, defend the wronged.”

The best way to change public perception is one trial lawyer at a time. I know that requires patience, which is one characteristic most trial lawyers are short on.

The Public Affairs Committee

CAALA has a newly formed Public Affairs Committee that is developing programs to help members change public perception about them.

Some of the ideas have been around a long time, like bringing back our Speaker’s Bureau. Some of the programs are new, like using social media to change public perception in a hip, contemporary way that reaches a younger, techno-savvy audience. We’ll let you know how you can help.

Forced arbitration

On another important consumer issue, however, public perception is beginning to change. The issue is forced arbitration.

For years, anti-consumer corporate interests have worked to force consumers into mandatory arbitration agreements that take away their legal rights. Although trial lawyers knew and understood what was happening, it took a long time for the public to figure it out.

Finally, the public perception of mandatory binding arbitration is beginning to change. More and more people are questioning the arbitration clauses hidden in the fine print of their agreements with everything from doctors to cable TV providers and phone companies.

It’s happening as a result of dozens of mainstream media articles and thousands of tweets and blog posts that have made people realize that, in the event of a dispute, they have opted for legal remedies that bear little resemblance to a court of law.

The New York Times is one of those mainstream media outlets. Last November the Times printed a three-part series called “A Privatization of the Justice System.”

The Times wrote that “Thousands of businesses across the country − from big corporations to storefront shops − have used arbitration to create an alternate system of justice. There, rules tend to favor businesses, and judges and juries have been replaced by arbitrators who commonly consider the companies their clients.”

The Times isn’t the only media outlet to sound an alarm about forced arbitration.

The politically neutral Consumer Reports recently ran a full-page article with the headline “The Consumer Rights You’re Giving Away.”

The article reported “many businesses tuck forced arbitration clauses into their terms and conditions. Once you click ‘I Agree’ on a website, if you eventually have a complaint against one of those companies, you will be obligated to take your dispute to an arbitration firm.”

Consumer Reports then stated “We believe that consumers should not be forced into arbitration.”

In addition to media outlets, elected officials have also begun to speak up against forced arbitration.

In Washington, the U.S. Senate Judiciary Committee held a hearing called “The Federal Arbitration Act and Access to Justice: Will Recent Supreme Court Decisions Undermine the Rights of Consumers, Workers and Small Businesses?”

Linda Lipsen, CEO of the American Association for Justice (AAJ) wrote that “Several senators on the committee both attended and offered meaningful contributions to the hearing.”

In Sacramento, Senate Judiciary Committee Chair Hannah-Beth Jackson held a hearing that highlighted how forced arbitration of consumer disputes is the biggest threat to our legal system and to the enforcement of the rights of consumers.

Nancy Peverini, CAOC’s Legislative Director writes that “As we tell the legislators we meet, all of the proactive and wonderful employee and consumer rights laws they enact don’t mean a thing if those laws cannot be enforced in a public court of law.”

George Lakoff is right, there is a way to change public perception of trial lawyers and forced arbitration: “It’s about getting ideas out there that define common sense. It’s about changing people’s brains and saying things and having a lot of people saying the same things over and over again.”

Don’t stop now. It’s working.