FINRA allows for special procedures for big cases.

FINRA announced this week the establishment of a pilot program for cases involving $10 million dollars or more. If your claim is $9.5 million, you’re not out of luck. The “pilot program” is available to any case, but they are targeting $10 Million dollar cases and above.

Basically, the new procedures will give the parties (inmates) the ability to make their own rules (keys to the asylum). FINRA is making a large assumption — that lawyers on opposite sides can mutually agree on anything other than the other lawyer is a nitwit. If lawyers are so agreeable, why did FINRA have to amend its arbitrator selection procedures to make sure that at least two arbitrators remained on the list after the parties exercised their strikes? Because most lawyers in “litigation mode” are disagreeable and uncooperative.

I know I’ve mentioned this before, but there was a time when an arbitration over $250,000 warranted five arbitrators. It was like being in front of an appellate bench (although most in Florida are 3 judges). Now FINRA is allowing the parties to change almost any rule.

And FINRA will allow all those discovery vehicles that courtroom-oriented lawyers love so much — interrogatories, admissions and depositions. I can hear the slobber drooling off of the faces onto the desks of hourly lawyers all across the country. Now lawyers can’t be sanctioned for outrageous discovery conduct (because arbitrators don’t have that authority), so they can act like spoiled children in a sandbox with impunity. Cynic? Me? No.

The good news – parties can only enter into the pilot program upon consent of all parties. The bad news – once there is agreement, and it looks like it was a bad idea, a party can’t back out. All or nothing folks.

So who will sign up for this? My guess is it will be large institutional claimants and respondents who are represented by large institutional law firms. Let’s face it, most of those firms aren’t really comfortable in arbitration anyway. Now they can assign the squadron of young, under-utilized, lawyers to all the menial tasks that they were missing out on when a case was in arbitration.

Basically, it appears that the only the thing that may end up missing from this is a judge and jury. It will be interesting to see how this program plays out.

That’s the view of one lawyer from Jupiter, Palm Beach County, Florida. I’m Marc Dobin.

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