In December 2015, the Supreme Court upheld an arbitration condition that prevented DirecTV customers from pursuing class actions against the cable television provider. Over the following 12 months, many such cases emerged and more often than not, customers of companies that provide popular services were required to pursue individual arbitration instead of joining in a class action lawsuit.¹ This practice of placing mandatory arbitration clauses in consumer contracts has also become prevalent in employment contracts.

Consumer advocate agencies like the Consumer Financial Protection Bureau (CFPB) and some employment attorneys say that mandatory arbitration eliminates a powerful recourse to govern the behaviors and practices of powerful corporate entities. On the other hand, employers and service providers argue that arbitration resolves disputes more quickly and requires the use of fewer resources than traditional employment or class action litigation.

Since the 2015 Supreme Court ruling, consumers and employees have brought cases seeking to invalidate the mandatory arbitration clauses that are said to govern their relationship with the defendant litigants. Although the Supreme Court ruled in favor of upholding the mandatory arbitration clause in the DirecTV case, three justices — Ginsberg, Thomas, and Sotomayor — dissented. Justice Ginsberg stated that these mandatory arbitration clauses left consumers “without effective access to justice.” Justice Ginsberg drew this opinion after reviewing an investigation by The New York Times which found that consumers are less likely to pursue individual arbitration when class action claims are blocked. Essentially, arbitration is an alternative to class action lawsuits but consumers and employee classes are not likely to pursue any form of legal action related to their complaints when they cannot join as a class to do so.

Of course, even for arbitration, attorneys must still prepare their case narrative, themes, arguments, evidence, and witnesses for the cases that do proceed into arbitration. This is why some of our stalwart services are still quite useful for our clients who are preparing to enter arbitration. For instance, witness preparation, including mock depositions with our team of specialized consultants, is perfect for identifying the strengths and weaknesses of our clients’ key witnesses. We work to enhance the ideal characteristics of the witnesses and uncover the vulnerabilities within the witnesses opposing counsel are likely to exploit.

In addition to witness preparation, case analysis and theme development can help you prepare the most compelling case narrative for your prospective neutral. For case analysis, our consultants will review your most relevant evidence and help you draft statements that make the most persuasive connections for your case. Theme development involves a broader overview using tried and true themes that connect your narrative with your and your opponent’s evidence. View these and our other consulting services on our website.

As the dynamics in the world of litigation change, the ways to prepare stay roughly the same. Our consultants are here to assist you in preparing your cases, regardless of whether you’re preparing for a jury trial, mediation, or arbitration.

¹ See Gregory Selden, et al., v Airbnb, Inc.; Abdul Kadir Mohamed, et al., v Uber Technologies Inc., et al.; Wells Fargo;