Personal injury lawyers spend a lot of time talking about the importance of the civil justice system.
We tell injured people they have the right to hold powerful companies accountable. We tell them juries matter. We argue that ordinary people should have access to the courthouse when an insurance company, corporation, nursing home, trucking company, or other defendant causes serious harm.
I believe all of that.
Which is why I have a real problem with personal injury law firms that require their own clients to sign mandatory arbitration agreements. The contradiction is hard to ignore.
A personal injury firm may spend many millions of dollars advertising that it fights “For The People.” Morgan & Morgan, for example, prominently describes its mission as fighting “for the people, not the powerful.”
Yet its client representation agreements have included provisions requiring clients to arbitrate disputes with the firm. Those agreements specifically tell clients they are giving up the right to bring a court action, the right to a jury trial, the right to broad discovery, and the right to an appeal.
I find that troubling. Very troubling.
If personal injury lawyers believe in the right to a jury when we represent injured people, we should believe in that same right when the allegation is that we caused the harm.
The Recent $4.3 Million Morgan & Morgan Arbitration
This issue caught my attention because of a recent case involving Morgan & Morgan.
A Georgia man hired the firm following a 2023 rear-end car collision. He later alleged that his injury lawsuit was settled for $45,000 without his permission. Morgan & Morgan disputed that allegation and maintained that the client had verbally authorized the settlement. No law firm should settle a case without the client’s permission.
The dispute did not go before a jury.
It went to arbitration.
In August 2026, an arbitrator awarded the former client approximately $4.3 million, including $3.15 million in punitive damages.
We recently wrote about one aspect of that case: the importance of a lawyer actually consulting with the client before settling a personal injury claim.
But the case raises another question.
Why was a dispute between an injured consumer and his personal injury lawyer required to go to arbitration in the first place?
The fact that this particular client obtained a substantial arbitration award does not answer that question.
He did well. But, the next consumer might not. No consumer seeking justice should be burdened with the additional unfair hurdles and biases of forced arbitration.
The issue is not whether an arbitrator can reach a fair result. Of course one can.
The issue is whether the consumer should have been forced to give up the courthouse before any dispute ever arose.
Choosing Arbitration Is Different From Being Forced Into It
I am not opposed to arbitration in every circumstance.
Arbitration can make sense in a dispute between two sophisticated businesses with relatively equal bargaining power.
Imagine two engineering companies entering a complicated contract involving highly technical work. Each company has experienced lawyers. They negotiate the terms. Both sides decide that any future dispute should be decided by an arbitrator with specialized engineering or construction experience.
That can be a rational choice. I get it.
The parties are making an informed business decision from relatively equal positions.
That bears little resemblance to a typical personal injury client hiring a lawyer.
The injured person may have just left the hospital.
He may be unable to work.
He may be worried about medical bills.
The family may be dealing with a catastrophic injury or death.
The client may never have hired a lawyer before. But, he is looking to that lawyer for legal advice.
Then the lawyer—the person being hired precisely because the lawyer understands the legal system better than the client—presents a prewritten representation agreement containing mandatory arbitration language.
Technically, the client can read it.
Technically, the client can refuse to sign.
But let’s be realistic about the bargaining dynamic. And, let’s be realistic about the issue of trust.
The client is not sitting across a conference table negotiating individual provisions of the lawyer’s contract.
There is an enormous difference between choosing arbitration and having arbitration chosen for you by the more powerful party before a dispute ever exists.
Giving Up a Jury Is Not a Small Thing
Personal injury lawyers know better than most people why the Seventh Amendment tradition and the right to trial by jury matter.
Juries bring ordinary citizens into the justice system.
They hear witnesses.
They evaluate credibility.
They consider evidence.
And they decide what happened and what accountability requires.
Those are not abstract principles to plaintiff lawyers. We rely on them every day.
That is why I find it difficult to reconcile a plaintiff lawyer’s public defense of jury trials with a private contract requiring the lawyer’s own clients to surrender that right.
If we believe juries provide an important safeguard when an insurance company injures our client, why should that safeguard disappear when the alleged wrongdoer is the client’s law firm?
Arbitration Can Change More Than Who Decides the Case
The jury is not the only thing a consumer may lose.
Arbitration can fundamentally change how a dispute is litigated.
In court, the consumer is protected by rules allowing discovery of relevant documents and information. In arbitration, discovery rights can be severely limited.
Limiting the right to discovery can matter enormously in any case, especially a legal malpractice case.
Suppose a former client believes a bad result did not arise merely from one lawyer making one mistake. After all, mistakes happen.
Suppose the allegation involves the way the firm operates.
The client may want to discover internal emails, staffing information, supervision practices, training materials, case-handling procedures, communications between lawyers and paralegals, or other evidence explaining how decisions were made.
Discovery is often how an individual learns what happened inside an organization.
Limiting discovery may limit the individual’s ability to prove it.
The same concern arises with appellate review. Court decisions are ordinarily subject to an established appellate system. Arbitration awards are generally subject to much, much narrower review.
These are significant procedural rights developed by our law to provide fairness and justice. They are rights typically removed by arbitration clauses.
Personal injury lawyers should understand their importance better than almost anyone.
There Is Also the Repeat-Player Problem
Another concern involves who participates repeatedly in the system. I don’t think people talk about this enough. But, they should.
We have seen this issue for years in nursing home litigation. Our firm routinely helps families litigate injuries cause by nursing home neglect or abuse.
Most nursing homes regularly force new residents or their families to sign arbitration agreements. In addition to requiring families to waive their rights to a jury trial in cases of neglect, these clauses typically also require all disputes to be heard by a specific arbitration group. That is, the same arbitrators will now hear all the nursing home’s disputes.
A resident or family member may encounter arbitration once in a lifetime.
The nursing home company may encounter it repeatedly.
That does not mean an arbitrator is biased. Many arbitrators are skilled, conscientious, and completely fair.
But the institutional party understands the process.
It knows how arbitrators are selected.
It knows the rules.
It understands the forum.
It may deal repeatedly with the same arbitration organizations and participants. It certainly knows which arbitrators may be biased in its favor or not.
The consumer knows none of this. While the consumer hopefully hires experienced counsel. No experience adds up to the data a group of nursing homes can collect using the same arbitrators or the institutional knowledge a group of nursing homes can pool through repeated encounters.
That imbalance has always bothered me in mandatory consumer arbitration.
A large law firm can occupy much the same position.
The law firm is the repeat player.
The former client almost certainly is not.
That alone does not prove unfairness in any particular case. But it is another reason the consumer deserves access to the public court system and its procedural rules.
“For The People” Should Mean Something
Morgan & Morgan has built perhaps the best-known consumer legal brand in America around the words “For The People.”
Its own website describes its mission as fighting “for the people, not the powerful.”
I actually agree with that principle.
Personal injury law exists largely because individuals often need help when dealing with institutions that possess far more money, far more information, and far more power than they do.
That is exactly why mandatory arbitration clauses in personal injury representation agreements strike me as so inconsistent.
A law firm should not champion access to juries when suing somebody else and then restrict that access when the potential claim is against the firm itself.
You cannot argue all day that corporations should answer to juries and then decide that your own law firm should answer only to an arbitrator.
The Civil Justice System Has to Apply to Us Too
Plaintiff lawyers ask jurors to hold other people accountable.
We ask trucking companies to answer for unsafe practices.
We ask nursing homes to answer for neglect.
We ask manufacturers to answer for dangerous products.
We ask insurance companies to honor their obligations.
And when lawyers themselves cause harm, we should be willing to operate under the same basic principle.
Accountability cannot mean accountability only for the other side.
I understand why businesses like arbitration.
It can be private.
It can limit discovery.
It can avoid juries.
It can restrict appellate review.
Those may be attractive features if you are the defendant.
But plaintiff lawyers should ask themselves why those very features suddenly become desirable when we might be the defendant.
For me, the answer is straightforward.
Personal injury lawyers defend the right of injured people to have their claims heard in court. We should never ask our own clients to surrender that right simply to hire us.
If we really believe in the civil justice system for our clients, we should be willing to trust it for ourselves.
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