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Making the Law Work for You

Robert Ives, Attorney at Law

Making the Law Work for You

“ALTERNATIVES to TRIAL”

The courts have long struggled to keep pace with ever-increasing caseloads. In the mid-1980s, if civil litigants wanted to have a judge or jury decide their case, it was not unusual to wait five years to see the light of a trial courtroom. Many courts in California were in crisis and simply could not handle the burden.

The solution came in the form of a paradigm shift in the way we resolve legal disputes. The courts and lawyers began turning to trial alternatives, such as arbitration, mediation, special referees and judicial references. As a collective, these procedures are referred to as “Alternative Dispute Resolution” (ADR).

ADR’s sudden growth in popularity and acceptance, took tremendous pressure off the courts at a critical time. Now ADR is vigorously encouraged by the court system and is endorsed by both state and federal statutes. However, one should not believe that this endorsement means that ADR procedures are in all ways equal to a court trial. There are important differences that directly bear upon your constitutional rights, and the decision to proceed with ADR should not be taken lightly.

A full discussion of all ADR procedures is not possible here. Instead, this article focuses on what is perhaps the most common of these alternatives—arbitration. This is the procedure of presenting your legal dispute to an agreed-upon or appointed professional outside the courtroom. This arbitrator is typically not a sitting judge, but is a professional who possesses legal dispute resolution skills.

The arbitration can be either “binding” or “non-binding.” Binding arbitration means, most importantly, that the decision (in the form of an “arbitrator’s award”) is final in that there is no right to appeal. This is an important characteristic, since even an obvious mistake, misapplication of law or misinterpretation of fact by an arbitrator will not be overturned by court review, absent fraud or profound dysfunction in the arbitration process.

Arbitration is usually binding only if the parties have agreed in writing, in advance. Typically, such “arbitration clause” is included as but one provision in a larger contract for goods or services. However, it is very important to know that the contract arbitration clause does not have to specify that the arbitration is binding. Generally, if the parties agree to arbitrate, their arbitration will be deemed binding unless the contract language specifies that it is to be non-binding.

Another important thing to understand is that by agreeing to arbitrate, one gives up a fundamental and very valuable constitutional right—the right to a trial by jury. The jury is, in my personal opinion (and in the minds of our founding fathers and countless legal scholars), the single most powerful and effective engine of truth and justice that we as a society have ever devised. To give up the right to a jury should not be taken lightly.

The benefits of arbitration are also very weighty and profound. Arbitration is usually much faster and less expensive than the process of trial. The process does not typically require the parties to submit to the strict procedures of trial evidentiary presentation or admissibility. The arbitration process is not public. It is private and is structured and conducted as the parties agree.

Once completed, the arbitrator’s award is typically submitted to a judge in superior court to be affirmed and entered as an enforceable judgment under California state law. If it is non-binding, the arbitrator’s award may be accepted or rejected by either party by timely notice, with certain legal consequences not important for this brief discussion.

If faced with the decision of whether to proceed with or agree to accept ADR, one’s decision is always important. Unfortunately, the decision often must be made on the spot, forced upon us by a medical form or other small-print contract. The best one can do is to take the time to read the wording carefully. In some cases, these form contracts may specifically allow you to change your mind by giving notice within a specified time after signing. If you agree to arbitrate but have second thoughts when something goes wrong, such notice procedure may afford an opportunity to reconsider and rescind such agreement to arbitrate.

As with all legal matters, it is sometimes best to consult a legal professional when faced with the decision to elect or reject ADR. Likewise, whether to include or agree to an arbitration clause in your own business contracts is a complex decision with real fiscal and practical consequences. Look at the alternatives, consider the effects, and be mindful of your objectives. Seek professional advice to resolve doubt or uncertainty. If you do these things, you are “making the law work for you.” Best wishes.

Robert N. Ives, Esq., Ives & Associates
105 Avenida de la Estrella, Suite 2B, San Clemente, CA 92672

949.366-6677 | Email: Ives@IvesLegal.com

Joseph C. Rosenblt

joseph-rosenblit

Experience You
Can Trust

Fighting for Your Rights

In an age where we have seen the erosion of personal liberties and the rise of corporate wealth, it can seem difficult to carve out justice from our legal system. Joseph C. Rosenblit has always believed that the law can—and should—apply equally to the rich, poor and middle class alike. And he has made that belief the core of his legal practice.

In the 22 years Rosenblit has practiced law, he has taken hundreds of cases to trial, arbitration, mediation and judgment. Many of those cases were resolved well into the six- and seven-figures. What he has brought to the litigation arena every time is the tenacity to fight for every right and every dollar to which his clients are entitled. These results have been obtained in a number of forums including real estate, personal injury, elder abuse and fraud litigation. The battles have been fought in civil court, private arbitration and bankruptcy court. He has represented both plaintiffs and defendants.

Some of the outstanding results that Rosenblit has recently obtained: The driver of a garbage truck hung a left turn in front of Rosenblit’s client, who was on his way to work. The injuries sustained by that client necessitated two back surgeries and left him partially disabled for life. The jury awarded $2.1 million.

A 60-year-old widow was preyed upon by a couple who convinced her that they had an investment business, and talked her into borrowing $750,000 against her home to invest with them. It was a scam. They left her penniless and on the verge of foreclosure. When Rosenblit sued them, additional bank accounts were found in their name. The accounts were frozen immediately; a judgment against the defendants was obtained and Rosenblit recovered his client’s money.

A client’s elderly mother died at a nursing home under suspicious circumstances. A review of the medical records revealed that she had been malnourished. An elder abuse complaint resulted in a $1 million policy limits settlement.

A client required lumbar fusion surgery (with a titanium cage) when the cab of the truck he was driving was crushed by a 2-ton crane shovel that had been negligently swung by its operator. Rosenblit received an $875,000 jury verdict.

A family bought a home near the coast. The realtor and the sellers of the home knew, but did not disclose, that the soils had major erosion issues. They also knew that some foundational slipping had occurred as a result of it. Significant construction work needed to be performed in order to secure the home. The case resolved for sufficient monies to cover the costs of construction and attorney’s fees.

A woman crossed the street using a crosswalk when the signal gave her the go-ahead. She was hit by an uninsured motorist and required a hip replacement. In an ‘Uninsured Motorist’ arbitration, she was awarded $470,000.

A real estate agent defrauded a woman during a real estate deal. When Rosenblit sued in civil court, the broker filed for bankruptcy. He then filed against the broker in bankruptcy court and obtained a judgment for fraud. Rosenblit is now in the process of obtaining up to the $50,000—the amount available through the Department of Real Estate Victims fund.

An elderly couple re-financed a commercial property, and was defrauded by both the lender and the mortgage broker. Rosenblit brought an action for fraud and elder abuse against those companies and got the terms of the loan changed as well as a cash settlement for the couple (the amount of which must remain undisclosed due to a confidentiality agreement).

In addition to the types of litigation described above, Rosenblit’s office has been actively involved in helping people find relief from mortgages and other types of debt that have left them in financial ruin. He has achieved loan modifications, helped with short sales, gotten debt reductions, filed bankruptcies and successfully petitioned criminal courts to expunge misdemeanors (and certain felony convictions) on behalf of clients who needed a fresh start.

Besides the willingness to take up the battle, litigation calls for a certain skill in which the experienced attorney is able to size up all the various elements of the case, play the strengths, and lead the client to the most optimal result possible.

Rosenblit’s fee structure remains negotiable. He has hourly rates, contingency fees hourly/contingency blends and flat rates according to the type of case and the financial positions of his clients. He has litigated cases in every county of Southern California as well as Northern California, and is licensed to practice in every court in this state, including all California Federal District Courts.

Free consultations are available
. Law Offices of Joseph C. Rosenblit

31726 Rancho Viejo Road, Suite 121
, San Juan Capistrano, CA 92675

949.248.3763 | 
Email: rosenblitlawyer@gmail.com