Today when a potential nursing home resident or his or her family seeks a nursing facility to provide the resident 24-hour nursing care, the resident or family is faced with more than the question of which facility to choose or how the resident will pay; the resident or family must also make the choice to waive the resident’s right to a jury trial arising from any future negligent acts of the nursing home.

As we all know and acknowledge, Alabama law has consistently disfavored arbitration clauses. Why? Because mandatory arbitration favors large corporations, and because ordinary citizens by submitting to arbitration unknowingly give up their Constitutional right to a trial by jury. This cherished right is one of the few leveling factors between the powerful and the powerless. It is generally recognized that the insurance industry in this country has been the most powerful force insofar as control of government is concerned. Some now say the tobacco industry has become stronger. That claim is subject to serious debate. In any event, insurance bosses exercise tremendous influence over the affairs of government. The present battle over arbitration is a prime example of how an abuse of their power can be detrimental to citizens.

Today when a potential nursing home resident or his or her family seeks a nursing facility to provide the resident 24-hour nursing care, the resident or family is sometimes faced with more than the question of which facility to choose or how the resident will pay; the resident or family must also make the choice to waive the resident’s right to a jury trial arising from any future negligent acts of the nursing home. Faced with the choice between immediate medical care and retaining the resident’s right to a jury trial, of course the resident and family are more than eager to do everything necessary to ensure that the resident receives immediate medical care. However, once a resident has been injured by the negligent conduct of a nursing facility, the resident and his or her family are often astonished to find that a clause buried within the resident’s admission agreement will forever prevent the resident from seeking redress in a court of law for any claims against the nursing home, including the wrongful death of a resident.

Arbitration agreements are routinely enforced, and should be, when the parties to the agreement have equal bargaining power and an equal level of sophistication. This is typically the case in commercial transactions among merchants. Such transactions were the ones Congress had in mind when it enacted the Federal Arbitration Act. However, when arbitration clauses are buried in fine print, presented on a “take it or leave it” basis in transactions where bargaining power and sophistication are one-sided, as is typically the case in consumer transactions, then general contract principles require closer scrutiny of the fairness.

With perhaps the exception of medical malpractice, no tort action consistently requires as much pre-suit investigation and screening as a potential bad faith case. Most people would never-consider investing their savings in a stock without knowing something about the background of the company. Yet, many lawyers think nothing of investing their scarce time and resources into bad faith cases that have no hope of being successful. In most instances, problems can be avoided by simply conducting an adequate pre-suit investigation into the client's claims. Adequate pre-suit investigation also serves as the cornerstone of any highly successful bad faith case.