Three card monte
5 April 2007Have you ever watched a monte artist moving three cards at just this side of the speed of light. The money goes down, each thinking they know which card is the jack. A slight variation of this game is hiding the pea under one of three walnut shells. The shells are shuffled around deftly until its time to pick the shell with the pea under it.
I see a similar game played by lawyers with the contracts they draft, except instead of hiding the pea, it might be called hiding the risk. You can almost envision the patter of a monte dealer saying, “Risk, risk, who’s got the risk”. This might be a fun game for corporate clients who have teams of attorneys on both sides playing the boardroom equivalent of football. What about the consumer contract though? The atypical, boilerplate, obnoxiously unbalanced adhesion contract. Do you find it offensive that a typical consumer contract disclaims everything since Noah and shifts the burden of every conceivable risk to the consumer? Aside from the issue of which provisions may not be enforceable in court and the provisions that are decidedly unenforceable; what about the cases that never make it to court. What effect does the language of such a contract have on consumers who never even call an attorney because they have read the contract and form the opinion that they have signed away their rights?
Is it the consumer’s fault for not seeking counsel? Perhaps, but it is the implicit intention of the attorneys who draft those contracts to create that false impression. It is not only the unsophisticated consumer who falls prey to this deceptive tactic. In fact, it is more likely to be the well-educated consumer who takes the time to read such a contract. Of course, they didn’t read it until a problem developed, but at least they read it. I find the imbalance in legal representation and unequal bargaining power to be personally and professionally offensive. If you agree this is a problem, what would you propose as a solution? New legislation supporting stronger consumer friendly laws? Lawsuits? If a lawsuit, under what cause of action?
I believe we may already have the necessary legislation if your state has adopted a version of the Uniform Unfair or Deceptive Trade Practices Act. This act has a very broad scope and a good selection of remedies, including attorney’s fees. I’d be interested in hearing from any of you who knows of unpublished or published cases where this approach has been used to discourage the use of unfair contracts. I’d also be interested to know whether you see this as a problem or just someone tilting at windmills. Please take the time to post your thoughts and comments.
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