A Clever Picture in a Legal Proceeding is Worth a Thousand Words

Our “distinct” professions often have a lot in common and that recently came to life. I’m a trial lawyer and my girlfriend, Renée Kennison, works in marketing as a creative concept developer. Among other things, both of us shape and distill ideas for maximum impact. There is a science, but also an art, to doing this well. We often look over each other’s shoulders as we work. Two days ago, it was Renée's turn to play lawyer.

I had been struggling to think of a good way to make an argument in an arbitration. I represented a married couple who had been the victim of fraud committed by a time share resort. One of the many issues of the case is that the resort was obligated by Missouri law to disclose in writing at the time of the sale that the couple had five business days from the date of the sale to rescind the deal. Missouri law allows time share purchasers to do this by merely sending a letter to the resort. Missouri law requires the resort to make this written disclosure in a precise way. The written disclosure needs to be 18-point type and it needs to have precise wording. Here’s the law:

Instead of simply printing this language as-is on a piece of paper and handing it to the couple, the resort played cute. First of all, the timeshare closing involves 50 pages of documents, many of them filled with with fluff and others with legalese. It's comparable to attending a real estate closing for a residence. Second, the resort camouflaged the disclosure by sandwiching the disclosure between two irrelevant paragraphs of fluff. It also made the entire disclosure document 18-point bold type to hide the important part of the notice, the part that gives the purchasers 5 days to cancel the deal, no questions asked. Also, instead of putting the word “Notice” at the top of the sheet as a warning to pay special attention to the notice, the resort tucked the word “Notice” into the text as though it were a verb. I can’t disclose the actual facts of this case because the resort contract forces this case to be in confidential arbitration, but the resort printed something comparable to this as its “cancellation notice”:

DEAR NEW OWNERS!

WELCOME TO OUR JOYOUS FAMILY OF RESORT OWNERS. IT IS GREAT TO HAVE YOU IN OUR FAMILY AND WE HOPE YOU ARE SO HAPPY BEING PART OF OUR COMMUNITY. PLEASE REFER YOUR FRIENDS AND FAMILY TO US, SO THAT THEY CAN BUY TIMESHARES TOO.

NOTICE YOU HAVE THE RIGHT TO CANCEL THIS AGREEMENT WITHIN FIVE DAYS AFTER THE DATE OF THIS AGREEMENT. CANCELLATION MUST BE IN WRITING AND IF SENT BY MAIL, ADDRESSED TO THE OTHER CONTRACTING PARTY AS SHOWN ON THIS AGREEMENT, CANCELLATION WILL BE ACCOMPLISHED AT THE MOMENT THE LETTER IS POSTMARKED. IF SENT BY MAIL, THE LETTER MAY BE CERTIFIED WITH A RETURN RECEIPT REQUESTED. YOUR RIGHT TO CANCEL CANNOT BE WAIVED.

AGAIN, IT’S GREAT TO HAVE YOU IN OUR COMMUNITY. ENJOY HIKING, BIKING AND ALL OF THE OTHER AMENITIES. NEVER HESITATE TO REACH OUT TO US IF WE CAN BE OF ASSISTANCE TO YOU. YOU ARE IMPORTANT TO US. NOW GO ENJOY YOUR RESORT.

The resort is claiming that it followed the law simply because all the statutorily-required words appear in their written notice.   I was looking for a way to make a high-impact argument that the resort’s method of disclosing the 5-day right to cancel violated both the terms and the spirit of Missouri Law. After hearing my concern, Renée said, “What the resort has done is like creating a highway sign that hides the important warning in between two unimportant things. Perfect! Renée offered to create an image for me, and I used her image today in my closing argument:

I argued the case today. In a few weeks, we'll see whether my clients prevail.

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New Podcast for Trial Lawyers: “The Jury is Out” Featuring John Simon and Erich Vieth

For ten years I had the privilege of working as a trial attorney with John Simon. I learned firsthand why John and his team so often won substantial verdicts for their clients on high profile cases. The “secrets” turned out to be nonstop hard work and a recognition that law school is only the beginning of one’s legal education.

About five years ago, I branched off into my own law practice, but I continued working with John on a variety of projects. A few months ago, John invited me to be his co-host on a podcast to teach trial law skills to lawyers and law students. Both John and I teach law students at Saint Louis University School of Law and we both present at legal seminars. Offering a podcast was thus a natural extension of our interests in legal education. We named our new podcast “The Jury is Out” and we released the first five episodes to the public a few days ago. We record our podcasts at a dedicated recording studio at the Simon Law Firm in downtown St. Louis.

John and I will be passing on what we've learned over the years, including lessons we’ve learned from hard experience. Our trial law episodes are geared to particular skills, including multiple episodes on the topics of “Opening Statement,” “Voir Dire” and “Expert Witnesses.” We will also offer interviews with prominent attorneys from St. Louis and beyond. Our guests on upcoming episodes include Hon. Mike Wolff (persuasion), Yvette Liebesman (intellectual property issues of concern to artists), Amy Gunn (efficiencies in the practice of law) and Hon. Glenn Norton (mediation).

You’ll quickly see that our approach for each episode is to roll up our sleeves and get right to it. After you listen to a podcast or two, we would appreciate if you would take a moment to rate this new podcast. And feel free to send us an email with suggestions you might have for future episodes.

You can find “The Jury is Out” wherever you get your podcasts. We’d be honored to have you join us.

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Public Justice: CFPB should ban mandatory arbitration

Arthur Bryant of Public Justice argues that the CFPB should ban mandatory arbitration.

Recent decisions by the U.S. Supreme Court have given banks, credit card companies, and all other lenders a license to steal billions from consumers and small businesses. The U.S. Consumer Financial Protection Bureau (CFPB) has the power to rescind that license. On Tuesday, at a hearing in Newark, the CFPB is expected to announce whether it will do so. If it does what the facts and law require, it must. In two cases in the past four years, the Supreme Court allowed corporations to charge allegedly illegal fees to millions of consumers and small businesses, net billions, and walk away with the money. The corporations' form "agreements" barred all lawsuits against the companies, required consumers and small businesses to pursue their claims individually in arbitration, and banned class actions. The court enforced these agreements, even though that meant the companies would never be held accountable. Sadly, these two cases weren't anomalies. Far too many lenders cheat and mislead consumers, charging inflated and illegal fees or interest. But the court has given them near-total immunity. Thankfully, that can be changed - and should be soon. When Congress passed the Dodd-Frank Act in 2010, it created the CFPB and required the new agency to study the use of arbitration clauses by lenders. Congress said that the CFPB should prohibit or limit their use if it found that they harm consumers. The evidence proves that forced-arbitration clauses hurt consumers badly. This issue affects everyone in America. Here's the bottom line: The primary effect of mandatory-arbitration clauses is to suppress claims by consumers, allow corporations to break the law, and prevent our civil justice system from providing injunctive relief (like having debts forgiven or credit records cleared) and compensation to millions of consumers; , , , The CFPB should ban mandatory arbitration clauses and rescind the lenders' license to steal. Consumers are entitled to what is engraved on the front of the Supreme Court - "Equal Justice Under Law" - not what the Supreme Court has given them:

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