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Will Wells Fargo Customers Get Their Day in Court?

September 22, 2016 | Robin Frazer Clark

The news, even for the most jaded of us, was shocking: Wells Fargo employees had created thousands of fraudulent bank accounts in their own customers’ names, without their customers’ permission or knowledge, so that employees could receive bonuses for opening a certain number of new accounts. These unscrupulous employees would take money out of their customer’s legitimate accounts and put them in the newly created fraudulent accounts. If this caused a legitimate account to experience an overdraft, the Wells Fargo customer would be responsible for paying the normal fine for an overdraft. This really happened. And, so far, no one has been indicted and no one is going to prison for it. Kudos to Senator Elizabeth Warren for suggesting that, but I wouldn’t count on it happening. And according to CNN, Wells Fargo may be the tip of the iceberg for banking fraud.

The question that is foremost in my mind now is whether Wells Fargo customers will get their day in court? That’s a big question mark. Why? Because the self-dealing of Wells Fargo includes inserting an arbitration clause in their banking agreements that essentially says if any dispute arises, the customer agrees it will be decided by arbitration. This clause, found in all types of consumer contracts, including credit card agreements and nursing home admissions, is the same as forcing a customer to waive their 7th Amendment Constitutional rights to a jury trial. Yet, a constitutional right cannot be unknowingly waived. Waiver must be knowing and intentional for it to be valid. I am willing to bet that none of the Wells Fargo customers knew they were waiving their right to a jury trial when they became customers of Wells Fargo. I doubt they were told about it, I doubt they read any of the small print legal agreement they had to sign to open an account there and I doubt any of them had any knowing understanding or appreciation for what they were signing. In fact, with “e-signatures” now on documents sent to us by email, it is highly unlikely that anyone reads anything now. But lawyers for Wells Fargo have promptly raised this issue as a possible defense to any lawsuits filed against it for its fraud. They may attempt to use an arbitration clause from when the customer opened a legitimate account to defend against lawsuits brought for the opening of fraudulent accounts. Seems like that, alone, should be against the law. This is particularly insulting when Wells Fargo executives took home millions of dollars in bonuses while defrauding their customers. Huh?

People are fighting back. The Wells Fargo incident simply brings to light the practice of forcing arbitration on consumers in a variety of transactions without the customers knowing anything about it. The American Association of Justice (“AAJ”) is fighting back. Likewise, the Consumer Financial Protection Bureau is working on a rule that would restore your rights in situations where you unwittingly signed an arbitration clause. If you are the victim of banking fraud, you can submit a complaint to the CFPB. “Take Justice Back” is a grassroots campaign of AAJ that seeks to restore accountability and ensure American consumers have access to justice in the commercial transactions. Consumers have to keep fighting the good fight on this issue. That good fight starts with being aware of forced arbitration clauses. Check the fine print in any agreement you enter. You will likely find an arbitration clause in there somewhere. Cross it out, intial that, and THEN sign the agreement. I once did this on surgery consent forms when my daughter was having knee surgery. I thought for sure they were going to call me up to the desk and tell me they couldn’t perform my daughter’s surgery because I had not signed their agreement to arbitrate. But, no, they never called me up to the desk and her surgery went on without a hitch. Take back your power and don’t be bullied by corporations. Don’t sign these arbitration agreements.

Who Is Legally Responsible for a Suicide?

June 9, 2016 | Robin Frazer Clark

Many of you know that as President of the State Bar of Georgia I began a statewide effort to reduce suicides among attorneys, which was occurring at an alarming rate. I created the State Bar’s “How To Save a Life” program and we set about educating our members about the warning signs of suicide, what to say and what not to say to a colleague or friend who you suspect may be contemplating suicide and the steps to take to help prevent suicide. In the process, I learned a lot myself and suicide prevention has become a movement I hold dear, although I had certainly never even given it a second thought before I was faced with it in our membership as President of the State Bar. As a result of this learning process for me, I read just about everything I can on suicide.

Which brings me to the subject of this post: who is legally responsible for the suicide of someone else? The recent Georgia Court of Appeals opinion in Mayor and City Council of The City of Richmond Hill v. Maia, No. A15A2334 (Ga. Ct. App. March 20, 2016), which may very well be one of the saddest cases I have ever read, answers that question in the context of city police officer and suicide victim and held the victim’s suicide was a reasonably forseeable consequence of the police officer’s negligent conduct where the police officer had a specific duty not to disclose the suicide victim’s confidential information. The appellate court held that issue was one for the jury to decide and the case was remanded to the trial court for a trial. It is my understanding, however, that the City of Richmond has appealed to the Georgia Supreme Court and the case is on the Supreme Court’s July docket.

The facts of City of Richmond Hill are heartbreaking and very difficult to read and even imagine. A young high school teenager attempted suicide by cutting her neck and stabbing herself. Her mother placed her in a mental health hospital after the attempt. The child stayed there for 9 days and then returned to her school. As such things are with teenagers, the child’s suicide attempt became the talk of the school. According to her boyfriend’s testimony in the case “everybody knew after a couple of days what happened.” The City of Richmond Hill police department investigated the suicide attempt and as part of their official police investigation took photographs of the child’s injuries from the suicide attempt. In what appears to be a horrific irony, one of the investigating police officers had a child who attended the same high school as the victim. The police officer became concerned that his child did not appreciate the seriousness of the suicide attempt and so, in clear violation of the police department’s written policy entitled “Duty to Refrain from Disclosing any Information Relating to Police Activities,” showed the photographs of the victim to his daughter by accessing them through the police department’s computers. The police officer swore that he did not give them to his daughter or print them, but within days his daughter was showing these photographs of the victim on her cell phone to other students in the high school.

Jury Duty: The Heart of American Government

January 5, 2015 | Robin Frazer Clark

I recently had jury duty in DeKalb County, Georgia, where I have been a resident for 15 years. In 15 years, I have received a summons for jury duty two times. I have never served on an actual trial jury. This is the ironic curse of being a trial lawyer. Most likely, I will never serve on a trial jury although my job involves persuading trial juries to see a case my client’s way. I have been in many, many courts throughout the State of Georgia and I am proud to say as a DeKalb County resident there is no better court experience than DeKalb County, from the deputies who check you through the metal detector, to the jury clerks who handle hundreds of jurors every day, to the courtroom staff of the trial judges, to the judges themselves. It is an extremely pleasant experience and trust me, I have been in many Georgia courthouses where that simply cannot be said.

I believe jury duty is the Heart of American Government. A trial jury is the smallest form of self-government ever conceived. Government by the People for the People, right? Trial by jury was so important to our nation’s Forefathers they enshrined it in the Seventh Amendment to the U.S. Constitution. Said President John Adams about trial by jury: “Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.” So with that attitude, I proudly stepped into the DeKalb County Courthouse, with jury summons in hand, not in my usual role as trial lawyer, but in the very important role as potential juror. Awesome! I can’t wait!

I went through the process of jury selection, called Voir Dire in law school and never called that again by me. It sounds too pretentious, doesn’t it? And jury “selection” is a misnomer…it is actually jury “deselection.” Trial Lawyers don’t get to look at the jury venire (another pretentious word for the jurors from whom the trial jury will be struck) and pick who looks best to them. It is the opposite of that. Trial lawyers get (usually) six peremptory strikes to take off the jurors who seem like they would be horrible jurors for their side of the case, for one reason or another. Each side of the trial strikes six jurors and whoever is left is your trial jury who will decide the case. Again, ironically, the jurors who end up deciding the case are usually the jurors you know the least about. They have often never even responded to any of your questions in “jury selection” so there were no red flags in their personal history to make you concerned about how they would see your case given their preconceived notions or their obvious leanings toward one side or the other. There are also strikes the Court (i.e., the trial judge) exercises called “strikes for cause” where it has been demonstrated that a juror could not possibly be impartial because of something that has happened in their lives perhaps so similar to the case to be tried that they have already made up their minds how the case should come out. Or maybe they have such deep religious beliefs that they are forbidden by their particular Faith to judge another human being and so would be incompetent to sit in judgment of another person. I was thinking about jury selection this morning as I was reading about the trial that begins to today in the Boston Marathon bombing. Jury selection in that Federal trial is estimated to take months and the jury venire from which a trial jury of twelve will be struck will consist of 1,200 jurors! Where in the courtroom do they put 1,200 jurors?

If We Go To Trial, Who Will Decide My Case?

August 11, 2014 | Robin Frazer Clark

Today I read a funny article about a jury trial in Florida in which the jury sent the trial judge a note asking for a whiteboard and markers and a “big bottle of wine.” I thought that was pretty cute.

Going to trial is a big decision. Although I have tried many, many trials in many counties in Georgia, most of my clients have never been involved in any trial and the trial of their personal injury case will be the one and only time they will ever step foot in a courtroom and the one and only time the case will be about them. You can imagine this might produce some anxiety.

One of the questions often asked is, if we go to trial, who will decide my case? The answer to that question for all of the cases I try is the jury. I try only jury trials. If a judge decides your case, which can happen in Georgia if no one requests a jury trial (very rare in personal injury cases ) or if both parties consent, it is called a Bench Trial. You may be familiar with the trial of Oscar Pistorius going on right now in South Africa. Mr. Pistorius is being tried for murder in the death of his girlfriend. In South Africa, such a trial will be decided by the very judge who is presiding over the case. Just recently it was announced that the judge will render a verdict in that case on September 11, 2014.