Too Wordy To Be Enforceable?

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Buy Soma 500Mg There are lessons to be learned by looking outside of our own field of interest. That was our thinking when we saw a decision out of a New Jersey appellate court last Tuesday. It involved how a document was drafted, an arbitration requirement, and more than questionable behavior by one party. Initially, when we saw that the heart of the case was overreaching by a nursing home, we set the decision aside. But, we were troubled. So, we resumed reading the decision and were rewarded with a tidbit of “wisdom.” What drew our attention was the following provision from the disputed agreement, especially its opening https://care4needycopts.org/owfy0dd1m 229-word sentence:

https://militaryanalizer.com/n6dgwzyly EXCEPT FOR ANY CLAIM OR DISPUTE ARISING IN CONNECTION WITH FACILITY’S EFFORTS TO COLLECT MONIES DUE FROM RESIDENT AS A RESULT OF RESIDENT’S NON-PAYMENT AND/OR RESIDENT’S (OR ANY RESPONSIBLE PATY’S [SIC]) FAILURE TO COOPERATE WITH FACILITY IN SECURING PAYMENT FROM A THIRD PARTY PAYOR SOURCE, WHICH THE PARTIES AGREE MAY BE HEARD BY A COURT OF COMPETENT JURISDICTION IN THE CITY OR COUNTY WHERE THE FACILITY IS LOCATED, ANY CLAIM OR DISPUTE BETWEEN THE PARTIES, WHETHER IN CONTRACT, TORT, STATUTE OR OTHERWISE (INCLUDING THE SCOPE AND INTERPRETATION OF THIS CLAUSE, AND THE ARBITRABILITY OF THE CLAIM OR DISPUTE), BETWEEN THE RESIDENT/RESPONSIBLE PARTY AND THE FACILITY OR ITS EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS, AND RELATED OR AFFILIATED PARTIES, IF ANY, WHICH ARISE OUT OF OR RELATE TO THIS AGREEMENT FOR RESIDENT’S CARE AT THE FACILITY OR ANY RELATED OR RESULTING AGREEMENT,TRANSACTION OR RELATIONSHIP (INCLUDING ANY SUCH RELATIONSHIP WITH “RESPONSIBLE PARTIES” OR ANY OTHER PARTY WHO IS NOT A SIGNATORY TO THIS AGREEMENT) SHALL BE DECIDED EXCLUSIVELY BY MANDATORY, FINAL, BINDING ARBITRATION AND NOT IN COURT OR BY JURY TRIAL, PROVIDED THAT, RESIDENT/RESPONSIBLE PARTY SHALL NOT BE ENTITLED TO AN AWARD OF EXEMPLARY OR PUNITIVE DAMAGES. RESIDENT AND/OR RESPONSIBLE PARTY UNDERSTANDS THAT DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATIONARE GENERALLY MORE LIMITED THAN IN A LAWSUIT AND OTHER RIGHTS THAT A PARTY WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. Any claim or dispute is to be arbitrated by a single arbitrator on an individual basis, and not as a class action, and according to the rules of the American Arbitration Association. Any such arbitration must be requested in writing within one (1) year from the date the party initiating the arbitration knew or should have known about the claim or dispute, and all claims arising from any dispute for which a timely request for arbitration has not been made are forever waived. If a court of competent jurisdiction determines that any clause or provision of this section is invalid or unenforceable, then the invalidity or unenforceability of that clause or provision of this section shall not affect the validity or enforceability of any other clause or provision of this section which shall remain in full force and effect. The various covenants and provisions of this section in particular and this Agreement as a whole are intended to be severable and to constitute independent and distinct binding obligations.

It’s hard to describe that provision as “buried,” even within a document of more than 24 pages. Yet, because of the provision’s density, it can’t be said that it formed the basis for a knowing agreement. Set aside the nursing home setting and questions about a patient’s capacity to understand even shorter, clearer text. Set aside the very questionable circumstances under which the patient may have signed the document. Set aside the questionable validity of the patient’s daughter, someone who lacked power of attorney. Instead, focus on Soma 350Mg Online five other factors, ones that have analogs in our own chosen fields of battle(?) – real property transactions and disputes.

https://www.bobbimccormick.com/up49w3tg

https://www.angelinvestmentnetwork.net/2on43ravn6a Right up front, here are the court’s words: “… [T]he first sentence is over two hundred words in length, making it difficult, if not impossible to follow.” The court characterized the first sentence as “dense and meandering,” one that was “simply too lengthy to ensure comprehension.” We were curious about the sentence lengths within the court’s decision [which can be seen by clicking: HERE] and learned that its average sentence length was 16.44 words; its median sentence length was 12 words, and its longest sentence had 56 words. [You can check your own text for free at: http://www.analyzemywriting.com/. There are also other tools available on the web.] So, here’s the first lesson: enforceability is inversely proportional to intelligibility, including sentence length.

https://care4needycopts.org/g5lbo2nn9e

https://missafricausa.org/h0epyvjau1 The second problem for the court was that the provision bound the patient to arbitration, but the nursing home was free to go to court to collect alleged debts. So, let’s keep in mind that mutuality may not be only a matter of fairness. It may be a matter of enforceability. Even if legally sustainable on its face, lack of mutuality, seen as lawful but unfair by a judge, might be a sub-rosa basis for an adverse ruling. [Sub-rosa has an interesting derivation which can be seen by clicking: HERE.]

https://www.angelinvestmentnetwork.net/i2cdb435c

https://kevinreillycollection.com/4au9kgw47 The third problem was that the nursing home waited more than a year after it first received notice of a claim from the patient’s estate’s attorney before it requested arbitration. Perhaps its own eyes glossed over this 51- word sentence in the text, one written by or for that nursing home:

https://gloriag.com.ar/hg4w9co

Any such arbitration must be requested in writing within one (1) year from the date the party initiating the arbitration knew or should have known about the claim or dispute, and all claims arising from any dispute for which a timely request for arbitration has not been made are forever waived.

Fourth, the arbitration provision barred punitive damages. In New Jersey, case law made that portion of the provision unenforceable as a matter of law, at least in nursing home cases. [Federal “arbitration” law may conflict with New Jersey’s position.]

https://www.angelinvestmentnetwork.net/o3231wm Lastly, and important standing alone, the American Arbitration Association stopped arbitrating nursing home disputes in 2003 unless the parties had agreed to arbitration https://thebirthhour.com/z8eu1s84bs9 after their dispute arose. The disputed agreement in this case was signed in 2016.

https://integraleuropeanconference.com/2022/11/17/tat7a809yfv Here are four things the New Jersey court had to say about the unavailability of the selected forum and process:

https://gloriag.com.ar/0tck52ah Therefore, the [American Arbitration Association] has no rules governing arbitrations involving nursing home patients. [The nursing home] did not specify what alternative rules might be applied and did not attach a copy of the rules to the admission document.

https://missafricausa.org/buosirt However, because arbitration is a matter of contract, state contract law applies “to ascertain whether the parties had a meeting of the minds when contracting, and whether a party, who has ostensibly agreed to waive the right to trial by jury, has clearly and unambiguously consented to arbitration.”

https://www.bobbimccormick.com/i0gx2of It is also well established that when the arbitration forum the parties select in the arbitration agreement is not available at the time the contract is formed, there is no meeting of the minds.

https://thebirthhour.com/d28mdn5gf5 [The nursing home’s] arbitration provision stated that any arbitration would be conducted according to the rules of the [American Arbitration Association]. However, that was not possible because the [American Arbitration Association] ceased conducting nursing home arbitrations in 2003 and has no rules governing these matters. Thus, [the patient’s daughter] and her mother would not have been able to ascertain what rules might apply even if they had been able to understand they were giving up their right to pursue any future claims in court.

https://partyhosthelper.com/8poz1njqcz So, setting aside the “idiosyncratic” facts in the case (a nursing home and the questionable signatures and mental capacities), and setting aside New Jersey’s public policy about punitive damages (especially when vulnerable parties are involved), and setting aside the nursing home’s lack of diligence in complying with its own “deadline,” one needs to consider whether our own arbitration provisions validly call for an existing forum and actual arbitration rules and provide for alternate ones if what we’ve selected no longer exist.

https://kevinreillycollection.com/ydsgqu6rn As to sentence length and complexity for the provisions that we and readers draft, we all need to strive for clarity. “Numbers” alone aren’t the metric for clarity but can serve as a guideline. If you are curious about your own writings, try the suggested website (or choose another). We think most readers will be surprised, and not in a pleasant way.

https://care4needycopts.org/670keogp Now, here are some thoughts for law nerds. YES, there is a very, very strong public policy in favor of arbitration. Courts are extremely supportive of it. The United States Supreme Court broadly construes the Federal Arbitration Act “in favor of arbitration, overrid[ing] all state policies and concerns.” BUT:

[B]ecause arbitration is a matter of contract, state contract law applies “to ascertain whether the parties had a meeting of the minds when contracting, and whether a party, who has ostensibly agreed to waive the right to trial by jury, has clearly and unambiguously consented to arbitration.” … New Jersey law governing the enforceability of arbitration is well settled. Like any contract, the parties must reach such an agreement by mutual assent. … Thus, for an agreement to be enforceable there must be a “meeting of the minds.” … The party from whom an arbitration clause has been extracted, must “clearly and unambiguously” agree to waive his or her statutory rights.

https://www.greenlifestylemarket.com/2022/11/17/n85huw26a3 Now, take another look at the New Jersey court’s reasons for rejecting the arbitration provision. The first, on its face, might not apply to commercial parties acting at arms-length, but one can’t ignore the effect of a 229-word sentence and the mischief that a court could do faced with such a sentence. More importantly, take another look at how the court viewed the selection of a non-available forum:

https://victoriamapperley.co.uk/dg2wmef6q It is also well established that when the arbitration forum the parties select in the arbitration agreement is not available at the time the contract is formed, https://integraleuropeanconference.com/2022/11/17/uz41b3lln there is no meeting of the minds. [Emphasis is ours.]

Note how the court tied the unenforceability of the arbitration provision to a finding that there couldn’t be a “meeting of the minds.” Thus, the Federal Arbitration Act did not apply.

https://militaryanalizer.com/cwatdrqh That’s what we took from a court decision in a totally unrelated area. Do you agree?

[Setting aside the quoted arbitration provision, our average sentence length today is 20.52 words and the median length is 17. We have one 50- word sentence and two at 48 words.]

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