OTLA Trial Lawyer Fall 2021

23 Trial Lawyer • Fall 2021 Young Walgenkim By Young Walgenkim OTLA Guardian M any of youmay remember the days of Michael Baxter receiving mil- lion-dollar verdicts against deceptive car dealers. ( See, e.g., Parrott v. Carr Chevro- let, Inc. , Or App 257, 965 P.2d 440, 156 (Or App, 1998)). Due to private arbitra- tion agreements, the days of substantial verdicts for auto fraud cases are long gone. Although private arbitration agree- ments are an abhorrence to our justice system and an assault on our 7th Amend- ment right to a jury trial, the courts have continued to uphold these abusive arbi- tration agreements against consumers. What resulted was a mass exodus of auto dealer fraud lawyers in Oregon leaving that practice for greener pastures else- where. The few of us who remain practic- ing in this area are forced to deal with finding remedies in private arbitration. Benefits of private arbitration A typical client I get is generally low income with little to no education. Let’s call him Dave. Dave has not read the terms of the voluminous documents he signed during the purchase of his auto- mobile, and, even if he had, he would not have understood what he was sign- ing. Dave purchased a 15-year-old ve- hicle, signed the as-is disclosure and on his drive home, noticed the check engine light come on. By the time he pulled over, the white smoke coming from under the hood was so thick Dave could barely see out the windshield. Without looking at his paperwork, I already know he signed an arbitration clause. I can either fight the arbitration clause, pretend it doesn’t exist and hope the dealer doesn’t invoke it, or I can choose to voluntarily go to private arbi- tration. But why would I voluntarily choose private arbitration? Believe it or not, private arbitration does have some advantages, which may prove to be more beneficial than a jury trial for Dave: Rules of evidence do not apply. We trial lawyers love evidence rules. We love to maneuver them, figure out how to get evidence in and how to keep evidence out. However, in my experience, the plaintiff generally benefits from getting evidence in, and the defendant generally benefits from keeping evidence out. My cases often involve some evidence that inevitably gets excluded due to hearsay. For Dave, he has a report from a dealer- ship service department that shows the vehicle has a blown head gasket that caused the vehicle to overheat. Since we are in the business of suing car dealers, this dealership is likely not going to be cooperative in authenticating these documents or acting as an expert in our case. In arbitration, we don’t have to worry, because rules of evidence do not apply. Even though technically hearsay, the inspection report is likely to be ad- mitted in arbitration because it appears reasonably reliable. Arbitration is informal. Dave has a straightforward claim, and the dollar value of his claim is relatively low. A case like that is not conducive to formal litiga- tion in court, but may benefit from private arbitration. For example, because there are no pleading requirements in arbitration, I can submit a short para- graph in story form as my initiating document (“arbitration demand”), rather than filing an official complaint. I had a case once in private arbitration where I provided an arbitration demand in a complaint format for the benefit of the opposing counsel and the arbitrator. The opposing counsel filed a motion to make more definitely and certain on my “complaint.” I responded to the motion in an email simply stating there are no pleading requirements in arbitration. The arbitrator denied the motion within a See Driver’s Seat p 24 IN THE DRIVER’s SEAT of PRIVATE ARBITRATION