THE BACK PAGE continued from page16 Why would they want to do that? Prosecutors present the waiver to defendants during the plea bargain process, when the defendant is over a barrel. The message is clear: If you want a favorable deal, you must sign away your rights. But, as the Texas Criminal Defense Lawyers Association points out, there are many reasons a defendant may falsely plead guilty. Often, it is because prosecutors threaten to push for stiffer jail time or the death penalty if they don’t plead out. The new waiver will help ensure that those coerced into plea bargains never get a second chance. CAVEAT EMPTOR In not one but two June decisions, the Texas Supreme Court ruled against consumers in favor of big business, rubber-stamping a company’s ability to get consumers to sign away their right to sue at time of sale-even if the company later breaches the sales contract through fraud and deceit. In both cases, In Re: American Homestar of Lancaster, Inc. and Nationwide Housing Systems, Inc., and In Re: First Merit Bank, mobile home buyers filed suit against the manufacturers and, in the second case, against the seller. The defendants all argued that the plaintiffs had no right to sue, since they had signed binding arbitration agreements-effectively giving up their right to take the companies to court-as part of their original contract. And in both cases, the court chose to side with the businesses, citing a 1925 federal law allowing for arbitration and ignoring more recent rules designed to protect consumers from just such unfair business practices. The 1925 arbitration law was meant to provide a faster, cheaper alternative to the court process, but according to Reggie James of the Consumers Union Southwest Regional Office, the old law “assumes equal bargaining positions?’ not the clearly unequal matchup between a lone buyer and a corporate behemoth. Arbitrators will not take cases on contingency as trial lawyers do; consumers have to pay for the service whether they win or lose. Nor are they prone to award headline-making damages for gross misconduct. This makes arbitration prohibitively expensive to consumers while posing a relatively toothless threat to business. Dan Lambe of the Austin-based consumer organization Texas Watch said the Texas Supreme Court “effectively slammed the civil courtroom door in the face of Texas consumers, locked it, and threw away the key when it rendered these decisions?’ CAVEAT GRANDMA In other arbitration news, some Texas nursing homes have begun pressing their residents to sign arbitration agreements waiving their right to sue for malpractice, negligence, abuse and the like. Attorney Roger Curme of the Nursing Home Advocacy Project says his office has been receiving complaints since the beginning of the year. The home usually asks only that a resident “sign or decline” such agreements, but recently one administrator actually packed up a resident’s belongings and threatened discharge if the resident’s daughter refused to sign. Confronted by Curme, the administrator insisted it was corporate policy for Medicare patients. Only after the Texas Department of Human Services’ long-term care hotline informed the administrator that his actions were illegal did the administrator back down. “Residents cannot be forced to sign away their rights?’ Curme said. “The push for these agreements comes from insurance companies?’ Medicare and Medicaid, together the nation’s largest providers of funds for longterm care, also lose out under such agreements, since when court damages are awarded to plaintiffs receiving benefits from one of these agencies, the agency has the right to recover funds paid for care found to be substandard. Under arbitration, those monies are likely to be reduced-good for nursing homes and their insurance companies, bad for mistreated residents and the taxpayers supporting Medicare and Medicaid. Tim Graves, president of the Texas Health Care Association, says while “arbitration and alternative dispute resolution are part of the landscape, discussed in terms of finding effective ways to settle out of court?’ he’s not aware of “folks being pressured” into signing anything. Thus far no agreement has been tested in court, and although Curme believes they would not hold up, he worries that having a signed agreement in hand might still prejudice any jury award. Editorial, continued from page 3 lacking in Genoa, as news reports about widespread brutality are now beginning to confirm. But confrontation is inevitable. Indeed, it is the whole point:When the state realizes that 20,000 cops will be required each time such a meeting is held, the situation will become untenable and decisions will have to be made. The authorities can continue to build higher fences, or move to more remote locations, like Qatar, the site of the next round of World Trade Organization talks, or they can begin to address the concerns of their constituents. The next major demonstration will be in Washington, D.C. from September 28 to October 3, to protest the annual meeting of two international lending agencies, the International Monetary Fund and the World Bank. Information about how to participate can be found at www.september30.org . More information about the anti-globalization movement, including issue briefs, can be found at www.global exchange.org . See you in Washington! N.B.
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