Protection of the law or from the law

To serve and to protect is the acknowledged mission of all the police departments who display it on their police cars. Frankly, it should be the mission of all the branches of government, including the judicial branch. Sadly for us in Georgia, consumer protection is a priority for neither our legislators nor, it seems, our judges.

I was reminded of that recently when my research led me to the case of a small Toccoa, Ga., businessman who ended up losing big in our courts [Carter’s Royal Dispos-All v. Caterpillar Financial Services, Inc., 271 Ga. App. 159 (2004)].

Everything started innocently enough when a salesman for Pioneer Machinery paid a sales call on Carter, the owner of the business, to show him a wood grinder. After Carter agreed to buy it, the salesman came to Carter’s office without an appointment to present him an installment sales contract and guarantee agreement.

Carter signed both. He later told the court that (1) the writing was small and difficult to read, (2) he didn’t have time to read the documents, and (3) he was unaware the contract had additional terms on the back.

Unfortunately for Carter, the agreement had, on the back, one of these trick provisions that stated the purchaser “hereby consents to the jurisdiction of any state or federal court located within the State of Tennessee.” That’s known as a forum selection clause.

As (bad) luck would have it, the grinder broke down repeatedly, and though Pioneer tried to fix it, it kept breaking down. So Carter stopped making payments on it.

Meanwhile, the contract was transferred to Caterpillar Financial Services (CAT Financial) who decided to bring a lawsuit against Carter in, of course, the State of Tennessee.

Carter didn’t go to Tennessee to fight this lawsuit. Thus the Tennessee court entered a default judgment against him.

Then CAT Financial went before a Georgia court, in Toccoa, to enforce the judgment of the Tennessee court under the “full faith and credit” clause of the U.S. Constitution.

This time, Carter decided to fight, but it was too late. He pointed out to the Georgia court that under Tennessee law this forum selection clause is invalid. The problem there is that this clause is valid in Georgia and the contract was written in Georgia.

If the situation had been reversed, a Tennessee citizen could have won. But the Georgia citizen loses. It seems Tennessee protects its citizens better than Georgia does.

It is easy to think that Carter was at fault in this case. His crime, according to the Georgia Court of Appeals, was not reading his contract. We had seven judges of that court agree on that.

I think they were all wrong and I’ll tell you why.

We, the public, are faced almost daily with people who stick printed sheets of paper under our nose and who say, sign here. Many of these pieces of paper seem to have been put together with the complicity of lawyers whose ethics I would describe as loose at best. Their idea is to squeeze the customer as hard as they think they can get away with, knowing that the more they give him to read the less opportunity he has to actually read that material and to understand it.

We do have laws that try to give a fighting chance to the consumer, such as Uniform Commercial Code section 2-302, on the sale of goods, which allows a court to limit the application of any unconscionable clause so as to avoid an unconscionable result. Another section (1-105) provides that the parties may agree that the law of another state will apply when a transaction bears a reasonable relation to that other state.

Our Georgia Court of Appeals snickered that Carter had not appreciated the significance of the forum selection clause, and it faulted him for not reading his contract. Had he sat down for half an hour to read it, it’s most likely he still would not have appreciated the significance of consenting to the jurisdiction of Tennessee courts.

Just about every time a repairman fixes anything within our homes, we are presented with lengthy forms to sign, and only at the end of the job. We are also not given a real choice to sign or not.

Whenever we install software on our computers, we are presented with screen after screen of fine print that we are in no position to analyze or really decline. Is that really consent?

To give you an example of how far along we are on the road to legal madness, the Peachtree City Recreation Department currently has an online registration website which forces us to agree that “exclusive jurisdiction for any dispute ... resides in the courts of the State of California and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of the State of California.”

Piedmont Fayette Hospital has an online payment facility where, for many months, it has shown, “This Agreement is governed and shall be construed in accordance with the laws of the State of STATE, excluding its choice of laws rules.” The lawyer who wrote this intended that the name of the appropriate state would be inserted where the word STATE appears, but the hospital people haven’t yet figured this out. So, how important could it be?

In recent years, much has been made about electing judges who are strict constructionists. That’s supposed to mean judges who enforce the laws the way they are written. But I believe we’ve got this all wrong.

What we need most is judges who love justice and who don’t elevate form over substance. We need judges who understand that most pre-printed agreements people sign today are not agreements at all. I have seen people flat on their back in the emergency room of the local hospital being made to sign forms. Do these things have meaning?

I had an opportunity last year to read the contract proposed to me by a local gym. The printed form stated I consented to the exclusive jurisdiction of the courts of Arkansas. I refused to sign and explained why, and wonder of wonders the gym eventually changed its form to show Georgia instead of Arkansas. I have been told thousands of people have signed that form without complaining.

Sometimes you win some. But it is a harsh world out there. We do have unreasonable judges. We also have legislators who are not looking out for us, their constituents. If states like Tennessee and Michigan can enact legislation invalidating forum selection clauses in pre-printed contracts, Georgia could do it too.

Above all, we need to sensitize our judges to what justice really is. When we are given a choice of candidates among judges, we should seek people who have an understanding of the practical realities of our world and a bit of empathy for the citizens who seek and rightfully expect justice.

To serve and to protect is a noble objective. Our legislators should make it their objective, and so should our judges.

[Claude Y. Paquin, a Fayette resident, is a retired lawyer and actuary.]