Kevin Greenlee (3:06)

Back in March, we chatted with Norris about his childhood love of Perry Mason, his pivot from the military to law, his legal work around the state of modern day health care, and of course, the ins and outs of arbitration. He will also share why any of us could end up in arbitration thanks to something almost all of us do on a regular basis.

Anya Cain (3:27)

My name is Anya Cain. I'm a journalist.

Kevin Greenlee (3:29)

And I'm Kevin Greenlee. I'm an attorney.

Anya Cain (3:32)

And this is the Murder Sheet.

Kevin Greenlee (3:34)

We're a true crime podcast focused on original reporting, interviews, and deep dives into murder cases.

Anya Cain (3:40)

We're the Murder Sheet.

Kevin Greenlee (3:42)

And this is Anatomy of a Trial Arbitration, A conversation with attorney Norris Cunningham.

Norris Cunningham (4:04)

It.

Interviewer (4:33)

To start off with, can you just tell us a little bit about yourself and just how you went into law?

Norris Cunningham (4:40)

Yeah. I decided I wanted to be a lawyer when I was six years old. And I know that sounds crazy, but it. It really is true. When I was a child, my bed was right next to the common wall between my brothers and I. The room that we shared, and my parents and their television was right on the other side of the wall. And they would always watch Perry Mason at night when it was my bedtime and I should have been asleep and instead I had my ear glued to the. To the wall listening to this show like it was like. Like it was a radio broadcast or something, right? For me, I mean, I was probably 10 years old before I knew what Perry Mason looked like. Because then my bedtime changed and I was actually able to watch it. But, I mean, almost every night in reruns, I listened to Perry Mason and I thought it was the coolest job in the world. So, yeah. So I decided early on that that's what I wanted to do. I had no idea how it was actually going to be pulled off or how it was going to work. But, you know, a little bit of fortitude and some blind luck and I Found myself in college and still sort of had that dream and that focus on the law, but was just really unsure about how I was going to pay for law school and those kinds of things. So I did what poor kids do all the time. I joined the military, and I'm glad I did. I joined the Air Force, and the Air Force paid for a master's degree in healthcare administration because I had started to really sort of lean in college in the direction of healthcare policy as just something I was interested in. I was a. I was a political science major and sociology double major political science and sociology and undergrad. And so anyway, healthcare was a big deal from a policy standpoint. And so that turned into a master's degree in healthcare administration that the Air Force got for me. And. And then I got off of active duty to pursue going to law school. But because I had the GI Bill at that point, the Air Force was able to kick in for law school and I got a scholarship for iu. And so law school didn't cost me anything, thank God. I was really fortunate to be in a situation where I was able to take advantage of the educational opportunities that being in the military afforded. And so the undergraduate degree, I had to hustle on that one. But grad school and law school were a function of my military career. And by the way, I stayed. I was on. I was on active duty for five years, but then I stayed in the Air National Guard for 17 years after that. I had a commitment left when I went to law school and. And so I served that in the Guard. I think that was about a four year commitment that I had remaining. And I spent another 13, so, 22 years total in the military. And none of it actually as an Air Force lawyer, though, none of it. I was on the healthcare side. I was on the medical side the entire time that I was in the military.

Co-Host (7:18)

So I read an interview you did with the Indianapolis Recorder, and you said that the military is like one of the last true meritocracies. And.

Norris Cunningham (7:28)

Yes.

Co-Host (7:29)

What did you mean by that?

Norris Cunningham (7:30)

Well, that's a great question to ask, particularly given our political environment.

Kevin Greenlee (7:35)

Right.

Norris Cunningham (7:35)

Right now. But the military in my mind really was the place where if you were sharp and you were smart, your commanding officers, the leaders, they paid attention to that because success is. Success in the military is always based on getting the job done. I mean, that's the only measure at the end of the day if your job is to go take a hill. It's easy to decide at the end whether you want or lost that Right. I mean, it really is. And so in that respect, it is that place where, well, it was working on becoming that place where all you needed to do was to apply yourself, show those traits that are important in the context of being a leader and show that you're smart, that you're interested right. In whatever your area happens to be and being a thought leader there. And if you do that, success can find you. It found me in the military. I was really amazed at the fact that as a young officer, I got more and more responsibility. And then even on top of that, being in a position to be the commander of a medical unit for a period, for a period of time and have command responsibility, it is a place where, if you are good people, take notice. That was my experience, at east broadly, after 22 years spent in the military, I can say that it is that place where, yeah, if you have merit, it works, hopefully it stays that way. But we were in tough times.

Co-Host (9:06)

So you mentioned you worked in the healthcare area in the military. And I'm curious what drove you into that area?

Norris Cunningham (9:15)

When I was an undergrad, I started focusing a lot as a political science major on healthcare policy, just as an area that I was interested in. In the late 80s, there was this really, really smart governor in Arkansas and his wife who were doing a lot in the healthcare space. And so I was following, talking about Bill and Hillary Clinton, but I was following a lot of what they were doing. I was 26, 27, I think, when Clinton got elected. So I was that sort of fired up healthcare policy person who was really interested in what we could do to solve what I think was the. One of the biggest atrocities, and I use that word deliberately, that our society commits on a regular basis on the rest of us, right. This idea that healthcare is somehow a privilege and not what it really needs to be a human right. You cannot be here without it.

Kevin Greenlee (10:12)

Right.

Norris Cunningham (10:12)

And in the sense that people get sick all the time, and in America, when you get sick, the chances of going bankrupt are not just, you know, real, they're probable. And that's a scary thing to think about. So anyway, so healthcare policy was a big deal for me. And I knew I wanted to go into military, as I said, because I wanted to pursue a legal career and I needed them for law school. And so I wanted to be in a space where I could continue to grow from a policy standpoint, from a healthcare policy standpoint. And so I went, I joined the military, got commissioned as a medical service corps officer, who are like the healthcare administrators basically, in the military. And so I had a dual role. I was, as we call them, a medical resource management officer who's literally in charge of medical resources. Right. Policy for my particular base. And then from there I started doing more work in the medical readiness planning space, which was sort of the military war planning aspect of what medical administrators do in the, in the military. So if you have a. When I say that I was a medical commander, I would explain it this way. If you remember the show MASH as a medical commander, I would be Colonel Potter.

Kevin Greenlee (11:25)

Right.

Norris Cunningham (11:26)

Everybody remembers Colonel Potter. And so that's. That is how I would explain the typical role of healthcare administrators. Healthcare commanders would be like those folks who are, who are, from a military standpoint, Colonel Potter. So I did that for the entire time that I was on active duty and then really transitioned into a very similar role in the Indiana Air Guard as a medical service corps officer and healthcare administrator on a part time basis for a guard unit up in Fort Wayne. So the healthcare aspect just sort of bled over into the work that I did in law school. When I was in law school, I was research assistant for Professor Eleanor Kenney, who founded the. What is called the William S. Hall center for Law and Health at McKinney at IU McKinney Law School in Indianapolis. Worked with her as a research assistant. She's passed away, but I worked with her as a research assistant. She was the one who got me my scholarship to law school, as a matter of fact. And I served as a research assistant for her, was focused on doing research for her and writing in the healthcare space when I was in law school. And then after that transitioned to working at Hall, Render, Killian, Heath and Lyman, which is the foremost health law firm in this state. I would argue in the, in the country, I mean, very, very well known as a health law firm. And I was there for 22 years representing healthcare providers and then went from there to founding my own firm with another group of lawyers, Katz, Korn, Cunningham. That was in 2017. And we were KKC up until two years ago when another firm, Stoking and Ogden, came along and, and asked if we would be willing to join them. And we said no. And then they asked again and we said no. And then they asked a third time and we said yes. So the third time was a charm. I always joke with my wife. It sort of reminds me of us when we were dating. I asked her to, I think the first time I asked her to marry me, she said no. Or asked her out on a date, rather not to marry, but asked her on a date. First time I asked her on a date, she said no, turn me down, Cole. So persistence is everything and just about everything you do, right? So anyway, Stoking and Ogden kept after us and we said yes and it's been great. Wonderful firm. Founded originally in Louisville, Kentucky, but with offices in Lexington. We have offices in Lexington, Louisville, Jeffersonville, Indiana and Evansville, and then our office here in Indianapolis as well. So very regional. My practice is national. I've been representing healthcare providers really sort of on a national scale over the last, well, 30 years almost. Now that I've been practicing mainly in the, in the trial space. My representation of clients has been as a trial lawyer in medical malpractice actions and negligence actions brought against long term care facilities, nursing homes, but then also representing healthcare providers and regulatory disputes with the government, vendor disputes that healthcare providers have with, you know, it vendors and food vendors and contractors and so on. So I, I've spent my entire career really basically being focused on trying to help what I believe is the most important industry in our country, the, the healthcare industry. And, and just it's, you know, it's 18% of our GDP now. It continues to grow. And so I, I want to be able to have impacted that aspect of our society as much as possible. By the time I'm when we started

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Interviewer (18:34)

before we get into talking a bit about arbitration, I did want to ask you just because you have such experience in this space and have just seen it evolve over time. And honestly, it's like weirdly intersects with something that's being talked a lot about in true crime right now, which is, of course, the Luigi Mangioni case in, in New York. You know, anger over health care is sort of spilling over in health, health insurance specifically in that case. But as someone who's working in that space, I'm just curious, like, where do you see healthcare right now as far as, you know, some of the inequities and what you mentioned about, you know, human rights? And I know that's a big question, but what are some of the things that are top of mind for you right now?

Norris Cunningham (19:15)

Yeah, so, and that's a, it's a, it's a, that's a great question. I do think that there needs to be a focus from a policy standpoint on trying to hold on to some of the gains that have been made. Right. I mean, we're, we're in a, in a place now, I think in health care in particular, where John McCain's famous thumbs down back in 2017 saved Obamacare then and it's much more popular now even than it was then. But at the same time, it's going to continue to be under threat. And so I do think that there's got to be, to the extent possible, some, some work done really at the state level to try and, and protect a lot of the gains that you're going to hear. I'm hopefully not segueing too quickly here, but you're going to hear a lot of people in the coming years on the left talk about states rights a lot more and sounding an awful lot like people on the other side of the political spectrum sounded in the 1950s and 1960s.

Kevin Greenlee (20:15)

Right.

Norris Cunningham (20:15)

Because our, our federal system does protect states sovereignty and their ability to do what they believe is best within their, their state borders. And so I think there's going to be, I'm hopeful that there's going to be a lot of, particularly in blue states, a lot of folks stepping in to bridge some of the gaps that are going to be created by an awful lot of things that we're going, you know, this attack on the Social Security Administration and the cutting of jobs is about trying to cripple the system long term. Right. And it's the same thing now with the 10,000 jobs announced for HHS. So there's going to be more and more of those things happening and going on. I think it's going to be critical as much as possible to just hold on to a lot of the gains that have been made. You know, we still have upwards of 30/4 million people in the US who are on it, who are uninsured. Even with all of the advantages that many people have gained from Obamacare, in particular the expansion of Medicaid.

Kevin Greenlee (21:12)

Right.

Norris Cunningham (21:12)

That's where most of the growth has been. But you know, I'm concerned about a lot of issues there that, that I think, well, where we're going to have to protect the gains that we've gotten. Birth control and the availability of it is something that we're going to see challenged over and over again. I think now one of the major things coming out of Obamacare, don't be shocked, as popular as it is, if they're going to try and executive order away the requirement or the ability of children to stay on their parents insurance until they're 26, I think we're going to see a lot of erosion and attempts that are eroding the efficacy of Obamacare through executive orders and through administrative action. So that's where the fight is going to be, long term. And in the short term, what can we do to protect the gains that we have? And then waiting hopefully for a time when our political environment looks very different than the way it looks right now.

Co-Host (22:08)

Well, of course we're here to talk

Norris Cunningham (22:09)

about arbitration and I've wasted 30 minutes of it. But go ahead. I'm going to ask a very big question.

Co-Host (22:17)

What is arbitration?

Norris Cunningham (22:20)

Great question, actually. Yeah. And I would say that it is, it's the way in which our society can resolve disputes without those disputes having to go to court, to state court. And to be clear, when I talk about arbitration, we're talking about in the context of civil cases only, not criminal cases. Right. So the justice system is basically split into two huge sort of paths, if you will. On the one side is criminal, which is obviously people commit crimes and, and that's handled completely differently. The other is, is civil cases. Those are cases the government may bring against individuals in a civil context where it may be, you know, you and I get in an auto accident and you sue me, that's a civil case. You decide to get a divorce. I hope that doesn't happen with you guys. But if you did, that's a civil case.

Kevin Greenlee (23:13)

Right.

Norris Cunningham (23:14)

It's all the stuff that is not criminal, basically, is how I would describe it. And arbitration can apply in those contexts. And disputes between parties. Now, cases against the government don't go to arbitration. Those have to go even if they're civil, those have to go to court. But arbitration is available to parties as a way of resolving disputes. So you don't have to go to court. Court takes a long time. I always think that the funniest thing to happen in any courtroom drama, whether it's a criminal case or where it's a civil case, is how quickly they get to trial. Right. It's always. It always amazes me. And of course, people know that it's in the context of the plot and to move the show along, but at the same time, it would at least be nice if they were to say, just drop a little note that says six months later or six years later. Right. In the case of civil cases, criminal cases, maybe it is six months, but in civil cases, it can be six years before a case goes to trial. So there's a lot of time that gets expended when cases go to court to resolve civil cases that way. Arbitration is really a much faster way of being able to get those kinds of disputes resolved because it doesn't involve the court system. You're using a private party, and it's an opportunity to get through the process. A lot of arbitration agreements, that's the agreement that people enter into in order to. For arbitration to be on the table basically as an option. When they enter into those agreements, it usually says they're going to be these rules that get followed, which are different than the court rules. And so it's a process that can be much faster and much less costly. I do a lot of medical malpractice work in the state of Indiana. A medical malpractice case, because it has a part of the process that has to happen first, the medical review panel process, before the case can proceed to state court in trial. A medical malpractice case in Indiana can take seven, eight years to get resolved. That's a long time. I mean, most people don't have that kind of time and don't want to have to wait. And so arbitration is a way of being able to do that much more economically, but also much more quickly. And of course, the quickly part also helps with the economics of it as well. You're spending more money if it takes more time. So that's how I would describe what arbitration is. And at the end of the day, it is a situation that has some real important similarities with the court system. The areas where it's the same are really important. Number one of a party brings a dispute in arbitration. You have to tell the the party that you're suing exactly what the nature of the dispute Is right. So there has to be a complaint or a claim made, just like there has to be one in court. The responding party gets the opportunity to respond and say nuh, right, or whatever they have to say in response to the claim that is being made. And then there is an arbitrator appointed, a private individual who will hear the dispute at some point within whatever rules are set as part of the arbitration agreement, will hear the dispute and make a decision about who's right is the claimant, the person who's bringing the case, are they correct and should they be awarded money? Because civil cases are almost always about money.

Kevin Greenlee (26:30)

Right?

Norris Cunningham (26:30)

That's what the end result of them ends up being, is almost always about money. And so the arbitrator decides who wins and who loses. And then the folks can go about their business knowing that that situation is now resolved in whatever way it is. And then the process of getting that arbitration award, that's what you call the decision of the arbitrator. It's typically referred to as an award. Getting that arbitration award certified by a court so that it's actually enforceable. That's the one big difference. There are some other ones that we're going to talk about, but that's one big difference between a case that proceeds through arbitration and one that goes to a court. If it goes to civil court and there is a trial and there is a verdict in that case, whether it's for the plaintiff, the person bringing it, or the defendant, the judge is going to sign a judgment that says this is what happened in this case. And plaintiff, if the plaintiff loses, you are ordered to pay whatever the amount is, right? And that award by that judge, that's enforceable. You can go back to court again and bring whoever the individual is, the defendant who got hit with that verdict, and have them speak to all the property that they have that would be used to satisfy that. Those are called proceedings, supplemental or supplemental proceedings after a judgment has been entered. And that's how people actually get these things enforced. If the person is supposed to turn over their house to satisfy the judgment, then you're probably going to have a sheriff who's going to show up because the court's going to order that to do a sheriff sale or whatever so that the. So that the house can be sold to satisfy the judgment. That judgment by the court has that force of law. It can be enforced by the sheriff, it can be enforced by the court, whatever it takes, so that whatever the outcome of the trial happens, arbitrators don't have our awards don't admit immediately because I do serve as an arbitrator, have that force, but they can be taken by the party who is victorious to the court, and the court can certify the award. And then you have all of the weapons, if you will, available to you that you would typically have if it were a civil judgment in court. Those are available to the arbitration party. At that point, the winning.

Interviewer (28:39)

I want to ask you more about some of the differences. First, is there an appeals process? If I really don't like what the arbitrator decided, can I. Can I appeal it?

Norris Cunningham (28:47)

Yeah. And so there's one of, one of the major differences that exist now. There's an appeals process on the civil side that we see all the time, right. If a, if a, if you lose a judgment, if you and I are in an auto accident, you sue me and you win and they give you a million dollars. And my attorney thinks that it's a really bad decision by the judge or bad decision by the jury, we can appeal that.

Kevin Greenlee (29:12)

Right.

Norris Cunningham (29:13)

And the court of appeals might look at it and say, well, we agree with Mr. Cunningham, and so we're going to reverse it. And. And then you get an opportunity to appeal it again to the Indiana Supreme Court to, to appeal the court of Appeals decision until there is a decision that's made, right. That's going to be final. And it's typically going to be final when it hits our Supreme Court if it's a state law. So that part of the process happens, and we get to sort of see it as it goes along. Arbitration is meant to be very, very quick, and so you get through the process very quickly. And then they want the appeals process to kind of go quickly, too. And the appellate process is actually to the court, but there are very, very strict rules that apply. A better way of saying it is very strict standard that applies when it happens. So if an arbitrator were to settle our traffic accident dispute, and the arbitrator decided, jury wanted to give you a million dollars, but the arbitrator says, nope, you only get $10,000. Okay? Now, whether it's $10,000 or even whether it's a million, but let's say the arbitrator says, you're going to get $10,000, and I decide that I'm going to appeal that because I don't even want to give you the $10,000 right at this point. So I decide to appeal it. I can't go to a court of appeals because the case was not originally in the trial court the way that it, it would have been with a civil case. Right? So where, where does it have to go? It has to go to the trial court first. And there the standard that's going to be applied is really, really high. And the standard is basically, I would have to show that that award was procured by fraud or some kind of undue influence or some sort of corruption on the part of the. Really, on the part of the arbitrator. That's a really high standard.

Kevin Greenlee (31:04)

Right.

Norris Cunningham (31:05)

And the courts take that position because the idea is, look, you, you decided that you were going to be in arbitration. You knew it was going to be quick, you knew it was going to be decided by this one person. You knew that there are going to be different rules that apply than the, than the rules of the court. And so now you're really going to have to live with those unless these people have done something that's just egregiously wrong. Right. There is an appeals process, but it is so uniquely different in large part because the standard is really high to get an arbitrator's award overturned. Arbitrators typically don't even see the parties enough to procure something via fraud that way. You know what I mean? There's just not that much interaction. The process is much, much faster than that.

Co-Host (31:45)

You say you don't see much of the parties. What is the process like?

Norris Cunningham (31:50)

That's a great question. And I would say the best way to answer that is it depends. And I mean that by it depends on what entity or organization's rules may apply. The interesting thing about arbitration is there are a number of platforms, if you will, companies that administer what we refer to as alternative dispute resolution. So when we talk about arbitration, that is a form of alternative dispute resolution. It is an alternative to taking your case to court.

Kevin Greenlee (32:22)

Right.

Norris Cunningham (32:23)

Which is what typically happens. The most typical alternative dispute resolution that we see used in our country is mediation, right? So two parties have a dispute and the court orders them to go to a neutral third party whose job it is to try and work out an agreement between the two of them so the case doesn't have to proceed to try. So mediation is a form of alternative dispute resolution. Arbitration is another form. Mediation is one where they're both winners and losers when it's all said and done, right? Because the, the case gets resolved out of court, meaning the, the person who's bringing it, who's typically asking for money, probably getting less money than they could have maybe gotten if the case had gone to trial, but they're also not going to Lose right where they would have gotten zero. And the same thing can be said on the defendant side. You may have to pay money, but it doesn't mean you're going to get hit with a huge, huge verdict that's going to cost you a lot more.

Interviewer (33:19)

Everyone can picture what a trial looks like, right? We've all seen it. The courtroom dramas, arbitration, people like in a conference room, like, what does it look like?

Norris Cunningham (33:27)

Great question. So one of the other major differences is courts. Trials are very public. They have to be. Right? I mean, that's literally part of our justice system, is that they are public, right? The courthouses are public. You can walk in any day you want to and sit in on a case that's going to trial. Unless there's a good reason for the judge to bar the public from the courtroom. The expectation is that the courtrooms are always going to be open for public, regardless of what the dispute is that's going on on the other side of the bar. You are, as a member of the public, allowed to go in there and sit and listen to it. Because we want the system to be that open. Right. Arbitration is uniquely different in that it is private. So it doesn't happen in an open forum like that. It typically takes place, an arbitration hearing in a conference room. Typically the only ones present are the parties and the arbitrator. Well, the parties, their lawyers and the arbitrator, or if there's a panel of arbitrators, then there would be. You know, typically cases are either a sold single arbitrator, one, or a panel of three with a decision then being made by at least two of them agreeing. That aspect is uniquely different because nobody knows, other than the parties and the arbitrator, what has gone on in that process. If they're using a particular organization, organizational platform for the arbitration. For example, there's the American Arbitration Association. It's one of the best known arbitration associations. They actually have their own rules. And so if you have an arbitration case that's governed by the AAA rules, that means that you have an entitlement to motion practice. So if you think that there's something that the arbitrator needs to rule on in advance, you would be able. The arbitrator might be able to do that, basically depending on what your agreement says. Your arbitration agreement says arbitrations happen because the parties agree to arbitrate. You have a right to take a case to court. The defendant doesn't have a right to bring that case to arbitration unless there is an agreement after the case was brought to court. To arbitrate it. We call those post dispute. So there's a post, there's a, there's a lawsuit that's filed in court. But then after that the parties decide, okay, we're going to have a single arbitrator decide this. We're going to go through the process a lot faster that way. Those things happen. They happen rarely, but they do happen. The most likely way that a case ends up in arbitration are pre dispute arbitration provisions. That is, before the dispute arose, even the party, typically the one bringing the lawsuit, signed an agreement with the defendant. That said, if we have a dispute related to whatever our relationship is, if we have a dispute, that dispute is going to be resolved via arbitration, not by bringing the case in state court. And oh, by the way, we want the arbitration entity to be the American Arbitration association or jams in dispute, which is another one. There are a number of different organizations out there that administer alternative dispute resolution and there are a number of agreements that list these particular entities as the ones whose rules will apply if the case has to go to arbitration. So those pre dispute agreements are typically the way I think that we see folks in arbitration these days. So they sort of knew in advance, if you will, that if there was a dispute, this is how it's going to be happen, that this is how it was going to happen. And let me add that most of us don't know it, but we are probably, we have probably agreed to pre dispute arbitration agreements in any number of user agreements that we have signed for social media, with credit card companies, with software companies, financial institutions. A lot of them have pre dispute arbitration provisions in them that require that any dispute between, you know, the individual and that company has to get resolved in that particular way via the arbitration route versus the case going to court. So all of us right now are potential arbitration litigants at some point if we have a dispute with any of these entities that we do business with every day.

Interviewer (37:51)

I have a question about that because I'm sure a lot of people might be thinking like, whoa, like yeah, like this could be something I could experience. Because whenever you sign an agreement, that's what you're getting. Is there any way around that in modern society if I decide no, I hate the idea of arbitration. I never want to do that. I always want to preserve my right to go to court with this. I mean, I can't really just, I mean, is there anything you can do? Can you just not sign some of these things? I imagine then you wouldn't get the services you want.

Norris Cunningham (38:22)

Yeah, that's exactly right. You always have the option to not sign off on any of these end user agreements or any of these agreements that have pre dispute arbitration clauses in them. But then you're probably not going to get the product or the service right that you want. So it sort of goes with the territory in that context and in the consumer context that has been allowed a bit more. I think there are situations where it starts to get further and further away from what the courts will feel comfortable with. And I'll give you two quick examples. One would be in the context of loan agreements, particularly loan agreements that have these really ridiculously high interest rates and things like that. And then they have a provision in there that forces the person to go to arbitration if they're going to sue over anything that may be related to, you know, for example, the interest rates or some of those things. Courts start to apply a standard with regard to these things that are. That's a bit more knowing, right, that you know what you've done in waiving this right before. They're going to enforce arbitration agreement sometimes in those contexts. Now that can vary from state to state in a lot of different ways. But generally speaking, you're going to find those situations where the court is going to look at, you know, what are the terms of the agreement. Where was this information, the arbitration information contained in the agreement, Was it something a person could see right away? They're going to look at issues perhaps related to the individual in particular and their level of competence that'll transition to sort of the next example I will give you. There is a period of time there is still a lot of healthcare providers who have arbitration agreements, pre dispute arbitration agreements built into their patient agreements. Long term care providers have them in the admission agreements when a patient is admitted to the nursing home, some assisted living facilities and places like that. To be fair, they're a business like any other business that exists. And so if businesses generally can have these provisions, then they ought to be able to have them too. But because of the population that they're dealing with, court's going to be a little bit more careful, right, about enforcing those agreements. Because if it's an elderly person who signed the agreement, were they competent on the day that they did so that they understand that they were waiving their right, which is a constitutional right that you have to bring a case in court, right? That's a constitutional right. We were talking about human rights. That's a constitutional right that we have in this country. If I am aggrieved by Somebody, if somebody does something to me or against me, I have the right to take that dispute to the courts. And we want that to be a constitutional right because we don't want people settling disputes in other ways.

Kevin Greenlee (41:04)

Right.

Norris Cunningham (41:05)

In violent ways, for example. And so we make that a constitutional right. If you're going to waive that right, the court wants to know and wants to feel that that is the system should want to know that that was a knowing waiver, that you understood that you were waiving your right to a trial, that you understood that this was going to be a process outside of the court system.

Kevin Greenlee (41:23)

Right.

Norris Cunningham (41:23)

And so there, there are a lot of rules then that can get, that get applied in those contexts. So people do have the ability. And there have been many situations where pre dispute arbitration agreements have been set aside, that is, they've been deemed by the court to be unenforceable because there was some issue with the way in which the signature may have been procured. You know, was the person competent to do so, those kinds of things. Or maybe there was something incredibly onerous about the provisions of it. There was a pre dispute arbitration agreement, for example, that I think was in some sort of consumer provision that required that any arbitrations needed to occur in the home office of the company or in the county where the home office of the company was located and the company was located in Taiwan. It's things like that that can make these things very onerous. And so the courts are really paying attention and should be paying attention to what these agreements say and how they were procured as a way of being able to protect people from ones that are just unfair. Right. For whatever reason you talk about big

Co-Host (42:32)

businesses and corporations having these sorts of clauses in agreements people sign, I assume these businesses are acting in their self interest, which is rational and reasonable. So I guess my question is why do businesses find it to be in their interest to have people go to arbitration?

Norris Cunningham (42:53)

Because it really is a faster process. I mean, I will absolutely say that as somebody who has been a lawyer representing litigants in arbitration and actually serving as an arbitrator, you get decisions faster. A trial of a long term care case that involved a resident that was there for one year, if that case goes to court, could last two weeks, probably will last two weeks. That same case can probably be arbitrated in three days. And you say how is that possible? Right. Why is it so fast? Well, because if it's in court and it's in trial, there are going to be 12 people there. Or if you're in Indiana in a civil case, six people who are going to be in that courtroom as the jury, who know nothing about the parties, don't know anything about health care, don't know anything about long term care. And so every question is coming from the lawyers. Is the question to help educate these folks so that they make the best decision possible? At the end of the day, that takes a long time to do. If you're in an arbitration, whether it's an arbitration panel or a sole arbitrator, you're dealing with somebody who kind of knows the process a little bit and probably in the context of particular types of arbitration, might actually be someone who actually knows the industry really well. Construction disputes are resolved all the time via arbitration. The AAA I think administers probably 90 plus percent of construction disputes that don't go to court because that's just a really good way to do it. And a lot of the arbitrators are folks who are not just lawyers, but folks who are actually have background in construction. So these are smart people who know the area so you don't have to educate them on everything. The process can go a lot faster because they know so much more than your typical person in the public knows who has to get educated by lawyers over a two week period in order to make the best decision possible. That takes a long time.

Interviewer (44:44)

How do people get to become arbitrators? What's the process for that? What was that process for you?

Norris Cunningham (44:49)

Arbitrators tend to be lawyers who are seasoned, have a number of years of experience, typically as trial lawyers. A lot of them are retired judges, judges who have retired from the bench but want to be able to have this, call it a hobby or a way of earning some extra cash doing private arbitrations. They're typically folks who are very experienced in the law. I came a certified arbitrator by the American Health Lawyers association in 2014, so that would have been in my 18th year of practice. I was certified by the, by the American arbitration association in 2016, you know, right at my 20th year of practice. And it's pretty typical that I've seen arbitrators who are similarly situated in terms of, in terms of experience. Now do you have to be? Not necessarily. I mean, I think somebody who's been practicing for three or four years and is interested can certainly put their name out there. The difference is though, arbitration is a private process. So the parties are typically selecting the arbitrator themselves, trying to agree on someone. And you, you typically going to want someone who's got a lot of Experience, right? No. No matter which side you're on, you, you really do probably want someone who has a lot of experience in the area because that's going to be helpful in resolving the dispute. So typically you're going to see people with a lot of experience serving as, as, as arbitrators. The typical path that I've seen is being certified or accredited by one of the bodies, one of the organizations that administers arbitration like the AAA or like jams in dispute. Those types of companies typically have rules, have lists of neutral individuals, folks who are willing to serve as arbitrators. And so when the parties contact them, they can normally say, well, here are the arbitrators, here are the folks that are in your jurisdiction from whom you can choose. And they've got bios and information on us that lets the parties know what our background is. As you can imagine, I get brought into a lot of healthcare disputes in the AAA because of my background. So if there's a dispute between a healthcare provider and an insurance, health insurance payor, for example, in those instances I get asked to be an arbitrator and resolve the dispute or even mediate those disputes to try and come up with a resolution that both sides can live with. Those numbers can be in situations like that can be very high. You know, a hospital is waiting on, you know, 16 denied claims by the insurance carrier for, for care that they provided and the total amount of those 16 claims is say $8 million. That's, you know, that's not uncommon. And so, so these disputes have a, have an urgency to them. And most of the agreements between payors and payees, between the hospitals, the insurance carriers, have arbitration provisions for exactly that reason. They want a resolution as quickly as possible in those situations.

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Co-Host (49:19)

You've been doing this for a while. You obviously have a lot of experience. I'm just curious, are there any moments or cases from your career that really

Norris Cunningham (49:27)

stand out to you on the arbitration side? I do a lot of work in Florida as an arbitrator and in Florida, most of the healthcare cases that are arbitrated and they have a number of them that are right. So that's a situation I was telling you about where there's this pre dispute arbitration agreement that's in the admission agreement when a person gets admitted to the facility. And so these typically involve a three person panel, the plaintiff, the person bringing the case, they, they will select an arbitrator and then the defendant, the facility is being sued, they will select an arbitrator and then those two arbitrators will select the third person who is deemed the, let's call them the neutral arbitrator. And in Florida, I find it interesting that they really mean that when they say neutral arbitrator versus those other two because the one who's selected by the plaintiff and the one who's selected by the defendant, they never have to worry about really being fair. They're considered partisan arbitrators. They're in that room for the purpose of swaying the neutral arbitrator to one party's side. What I found interesting about about this situation is it is based on a case in Florida where there was this three person arbitration, right? And the plaintiff selected as an arbitrator, as the plaintiff's arbitrator, an attorney who shared law space, law office space with that very attorney who was acting on, on behalf of the plaintiff and did not disclose this. As a matter of fact, they went out of their way to keep that information from the other side. And when the arbitration award Came down and it was, as you can imagine, ended up being in favor, just happened to be in favor of the, of the plaintiff. The defendant sued on the basis that hey, well this was a fraud. I mean these, they were keeping this information from us and this person was somebody who literally shared space with them. I mean this is just not a fair process. And the court said, yeah, it's not supposed to be. When it comes to that person, that partisan arbitrator, it doesn't matter that they didn't disclose that. It didn't matter. He could have chosen his brother in law and it would have been okay. That's not a quote. But, but, but that does give you the gist of, of the court's ruling that essentially these things can be very, very partisan. And so I always act in those cases down in Florida as the defense elected arbitrator. And we actually had a case where the company that for many of the cases where I act as the defendant's arbitrator, that company also had me act as a defense attorney in a case against that company that went to trial just last year. We got a defense verdict. We won that case, by the way. So I was really happy about that. But the, as you can imagine, the lawyers in that case actually brought a motion to try and have me excluded on the basis that, well, but he acts as an arbitrator for this very same company. He can't do it. And the court said yeah, no, that whole partisan thing, it's perfectly okay. And, and as I always kind of joke, I don't think the plaintiff should ever expect that I'm going to agree with them unless it's a basic. If, if you ask me, does the sun rise in east and set in the west? I will almost certainly agree agree with that. But generally speaking, I am hostile to their position. Right. And the same can be said for the arbitrator that they select vis a vis the, the, the defendant. I, I just did that thing the lawyers aren't supposed to do. Right. Use big words like vis a vis. But, but, but, but, but, but I think you get the point. It really is important, I think to have the, the folks in Florida believe, to have a process that is what the, what the parties expect. And if you're the one selecting the arbitrator, you ex. You can expect that arbitrator is on your side and that's perfectly okay. Ultimately, it's the neutral that you have to convince anyway. Right. Not the two partisans. Each side has one. The question is, can you get the guy in the Middle. So in that respect it's still decided by one party, just as the single arbitrator cases are. I think the third, the panel process is actually a better one though because I think that single ar, that neutral arbitrator and the three person panel is going to be better informed probably than that single arbitrator alone. It goes back to what we were talking about, about how you get information and how valuable that information can be in resolving a dispute. Right. With jurors, it takes two weeks to get them to the point where they, they know enough to be able to make a good decision. And that's why arbitrations can be faster because you're dealing with people who know more already and so you don't have to teach as much. But a three person panel, I think you're going to have a better informed decision than if you have a single person doing it alone. It's that really, that, that same process, that they same same thought process.

Interviewer (54:37)

It makes a lot of sense between that process in Florida and between that wild Disney plus arbitration agreement and that tragic case of a woman dying and then. But it seems like Florida's got some interesting arbitration stories going on.

Norris Cunningham (54:50)

Yeah, well, and it's true, I think nationally, you know, this area of the law, whether you're talking about from a legal perspective, the validity and the enforcement of arbitration provisions. Right. Because people are fighting those all the time. They don't want to be in arbitration, they want to be in open court. They want people to be able to see what this company did or didn't do and so on. Right. So there's something real to that, to that focus. But at the end of the day, you are trying to build a process that is going to be fast and is going to be expedient and allows people to get disputes resolved and something that resembles a timely manner. Nobody wants to wait seven years to get their case to trial.

Kevin Greenlee (55:30)

Right.

Norris Cunningham (55:31)

And that happens a lot. Arbitration really is a way of preventing that.

Interviewer (55:35)

So I'm curious, what would your advice be to, you know, law students or new lawyers who might be interested in this kind of side of the law and getting involved?

Norris Cunningham (55:46)

Focus on whatever area of the law is important to you right now and becoming a good lawyer because this is a job that you really don't start preparing for until you're probably four or five years into practice. And I say that in large part because it really does, I think, take that long to just sort of understand the process enough. You know, a first year law student can't walk out and be a Judge.

Kevin Greenlee (56:10)

Right.

Norris Cunningham (56:11)

Nor should they be able to. And so it's really sort of the same situation there. It does take some seasoning and I think some knowledge. When you are eligible to be certified by the various organizations, that's when your timing is right. And in advance of that, I would say learn as much as you can about the civil process and about all aspects of civil cases, not just cases going to trial, but how, how cases get resolved. Short of that, whether it's mediation or arbitration or private judges, which is another aspect, there are a number of different types of sort of alternative dispute resolution platforms out there and learn them early. As a law student, take advantage of them early on in your career so that you know the process. If you're, if you're working for a law firm and they have a case that involves an arbitration, see if you can get on there. And so that you're in a room while an arbitration is going on, because again, they're private. Right. So the only way you're really going to get in to see it is to be either a litigant or an attorney representing a litigant. And if you are, you know, part of a law firm that has a case like that, seeing if you can get yourself in the room so you can watch that process, I think is really one of the most helpful things that you can do to start understanding the way in which it is different from court.

Co-Host (57:31)

So we first met you a couple of months ago over at Arsenal Tech when you were working with some very bright kids in their mock trial program. And I just remember watching you working with these very smart kids and helping them improve their performances in court and how receptive they were. That, and I really wish there was someone like you in some of the real life trials I've been. But I'm wondering if you could tell us why you think it's important for to go out and work with kids like that.

Norris Cunningham (58:09)

So that program, Kevin, that you're talking about is, we call it classrooms to courtrooms. And my law firm, my first firm, kkc, we started the program in partnership with Arsenal Tech High School because I, I wanted a way to be able to bring the law to high school students to high school kids to get them focused on and thinking about the legal field. But in terms of being attorneys or any other aspects of the law, because I want more attorneys who, frankly, who look like me. When I became a lawyer in 1996, there weren't nearly as many as there are now, and there are still too few of us. And Arsenal Tech high school is 80 plus percent black and brown. And those are exactly from my perspective, our target audience. And so I went where the pond was really full and worked with the folks there. Don Walker Sirely, who is the head of the social studies department at Arsenal Tech and an incredible teacher, an incredible human being, is our partner in the project. We teach, help her teach the law education class that they have at the school. There are five different sections of that class. Now. We started in 2021, it was a half year course and there were two classes with about 16 kids each. Fast forward now to 2025. We're in our fourth year, heading into our fifth year. Now there are five different classes, something like 150 plus kids enrolled in those five classes and it's a full year course. And we also, in addition to teaching this law education class, we coach the mock trial team for Arsenal Tech that enters the annual Indiana High school mock trial competition. And you guys saw us practice last month when we were getting ready for I think the week of or the week before our competition. Our kids did great, by the way. I was so incredibly proud of them. We had a number of our kids who won best attorney awards or best Witness. The kids just get such a thrill from the program and we get a thrill teaching them as well. So many of them now are interested in pursuing a legal career. We've got one student now who was one of our first kids in 2021 who is a sophomore. She's completing her sophomore year at Northwestern University. She's on a full ride scholarship. All she talks about, Gabby Contreras, all she talks about is practicing law at some point. And so I'm really excited for her. And we have some other kids who are on their way to college now. This year we had a number of seniors who participated in the program for two or three years who are graduating, going to college, interested in pursuing a legal career as well. So classrooms to courtrooms is a great program. We hope to export it to other Indianapolis public schools and to other schools in the state.

Interviewer (61:05)

So that's terrific. And yeah, it was really an honor to watch everybody. And congrats to Arsenal for doing so well in that competition.

Norris Cunningham (61:13)

Thanks guys. I appreciate it. I appreciate your time.

Kevin Greenlee (61:16)

Thank you so much to Norris for taking the time to speak with us. We really appreciate it. Thanks so much for listening to the Murder Sheet. If you have a tip concerning one of the cases we cover, please email us@murdersheetmail.com if you have actionable information about an unsolved crime, please report it to the appropriate authorities.

Anya Cain (61:40)

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Kevin Greenlee (62:03)

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Anya Cain (62:15)

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