Statement by ABOTA National President: American consumers deserve access to justice

Mandatory arbitration clauses rob Americans of their constitutional right to a trial by jury and banish them from the courthouse 

Through the use of fine print often found buried in consumer agreements that contain individual mandatory arbitration clauses, financial institutions have locked Americans out of the courthouse, denied them freedom of association with other similarly affected consumers through class actions and forced them to pursue their claims through a secretive arbitration process devoid of oversight, where consumers prevail a mere 9% of the time. Not surprisingly, only about 400 consumers file for arbitration against financial institutions per year, according to a report by USA Today.

Through the enforcement of its arbitration clauses, Wells Fargo almost escaped accountability for burdening its customers with roughly two million unauthorized accounts. If the Senate were to overrule the Consumer Financial Protection Bureau (CFPB) rule, consumers of financial products would once again join the forgotten Americans President Trump pledged to protect in his inaugural address.

The American Board of Trial Advocates strongly urges the United States Senate not to overturn the rule adopted by the CFPB prohibiting forced individual arbitration clauses in consumer financial agreements. These clauses erode Americans’ precious right to trial by jury guaranteed by the 7th Amendment to the United States Constitution.

ABOTA is not a trade organization. It is an association of 7,600 highly experienced trial practitioners evenly divided between the plaintiff and defense bars. ABOTA’s mission is to preserve and promote the right to trial by jury in civil cases, protect the fair and impartial administration of justice through support for an independent judiciary and to champion civility, professionalism and high ethical standards among attorneys.

F. Dulin Kelly
2017 ABOTA National President

The American Board of Trial Advocates is the founding sponsor of Save Our Juries. To learn more, visit ABOTA.org

 

Contact your U.S. Senator and tell them not to overturn the CFPB rule. Find their contact information here.

Another Response to “The Uncivil Jury”

Last week, washingtonpost.com published a series of 5 articles written by By Prof. Renee Lettow Lerner on “the uncivil jury.”  The fifth installment–The uncivil jury, part 5: What to do now — repeal and redesign advocates “repealing constitutional rights to civil jury trial, including the Seventh Amendment, and reforming adjudication by judges.”

In reponse to Professor Lettow Lerner’s propositions:

“Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties”
~ Abraham Lincoln, August 27, 1856

“Don’t it always seem to go that you don’t know what you’ve got ’till it’s gone.”
~ Joni Mitchell, 1970

“The simplest and best thing to do is to repeal the state and federal constitutional provisions requiring the civil jury.” This ultimate conclusion to Professor Lerner’s polemic sounds hauntingly reminiscent of the words of anarchist Dick the Butcher in Shakespeare’s Henry The Sixth: “The first thing we do, let’s kill all the lawyers.” As Justice John Paul Stevens once noted about that frequently misunderstood statement, “a careful reading of that text will reveal, Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.” Walters v. National Ass’n of Radiation Survivors (1985) 473 U.S. 305, 371, n.24. Eliminating the constitutional guarantee of a jury trial in civil actions would be another step in that direction as well.

It isn’t every day that one hears someone advocating for repeal of a constitutional right (in the United States anyway), but Professor Lerner essentially argues that we might as well repeal the right to a civil jury trial because we have “in effect done it already.”  Actually, we haven’t. The declining number of civil jury trials, as a percentage of cases filed, is only a reflection of the escalating cost of going to trial, the increasing scarcity of judicial resources, and other factors over which litigants have no control. It is in no way a barometer of ordinary citizens’ desire to retain their right to a jury trial. Nor is it in any way a measure of the jury trial’s significance to the civil justice system. In the real world, parties to civil litigation rarely waive their right to a jury trial voluntarily, and when they sometimes inadvertently do so, they are quick to seek relief.

Talk to lawyers who represent clients in civil litigation, from either side of the courtroom— plaintiff or defense—and ask how many of their clients are willing to waive their right to a jury trial before knowing the judge to whom they have been randomly assigned. Very few on either side are willing to do so even after knowing who the judge is. And while the percentage of cases actually tried has dropped dramatically, the number of parties going on the record as demanding a jury trial, when failure to do so will result in a waiver, is probably close to 100%. Why?  Because people who are unfortunate enough to be involved in a civil action want to do everything they can to preserve their right to a jury should alternative dispute resolution not succeed.

Of course, repeal of a constitutional amendment is not without precedent. The 18^thAmendment was repealed in 1933. However, unlike the notoriously misguided attempt to legislate consumption of alcohol, the fundamental guarantee of a trial by jury lies at the heart of our civil justice system. It has been with us for centuries, and is not confined to the 7^thAmendment to the federal constitution. It has been independently adopted and incorporated into the constitutions of almost every state, and the few that have not done so have enacted statutory provisions recognizing the right to a civil jury trial.

Professor Lerner says she supports “lay participation in serious criminal cases,” but “private disputes are another matter.”  Yet the only distinction she draws between the two is that “[c]oncerns about limiting the government or providing community representation are not as strong in private disputes.” She offers no elaboration or reasoning beyond these conclusory statements. However, those involved in the civil justice system, including parties to civil disputes, would vehemently disagree with her. Not all civil disputes involve minor injuries to person and property. In many instances, people’s lives and livelihoods are at stake, as is the continued viability of businesses small and large. And many times one of the parties is a government entity.

It’s easy to understand why she would attempt to distinguish the criminal from civil juries, as virtually all of Professor Lerner’s arguments for doing away with the civil jury trial could be applied to other constitutional rights. Why not do away with jury trials in criminal cases because of the prevalence of plea bargaining?  Why “block proper development of adjudication by judges” in criminal cases? Certainly there are more efficient methods of dispensing justice in criminal cases than to burden judges with lengthy voir dire and jury selection. And certainly a judge or group of judges is better suited to adjudication of fact issues involving complex expert testimony on issues such as DNA analysis and criminal forensics.

While we are at it, shouldn’t we also think about repealing some of those other pesky amendments that slow the wheels of justice to a crawl and hamper the development of adjudication by judges? For example, cases are rarely dismissed these days due to preclusion of evidence from warrantless searches. Do we really need the 4^th Amendment being applied to criminal prosecutions? The same is true of coerced confessions and the 5^th Amendment. Aren’t there enough protections built into the modern system of justice? After all, this is not the 18^thcentury anymore. And certainly with today’s modern sentencing guidelines, judges can be trusted to avoid imposing any cruel or unusual punishment. Do we really need the equal protection clauses of the 14^th amendment? Hasn’t enough time gone by where our society can trust our government to make sure everyone is treated fairly and equally?

Perhaps her suggestion to do away with the civil jury trial is merely tongue-in-cheek, and is simply meant to be a provocative means of stimulating discussion about the increasingly diminishing use of the jury trial in civil cases. But assuming she is serious, Professor Lerner’s thesis seems to be throw out the baby with the bathwater. In the final analysis, she is correct that the use of the jury trial has severely declined, and that alternative means have been successfully employed by litigants to resolve their disputes. But this has been by necessity, and is symptomatic of problems with the civil justice system effectively denying a basic constitutional guarantee. Alternative measures and infrequency of use are simply not valid rationales for abandoning the fundamental right to a trial by jury in civil cases, any more than they are for extinguishing any of the other rights guaranteed by our state and federal constitutions.

A Response to “The Uncivil Jury”

Last week, washingtonpost.com published a series of 5 articles written by By Prof. Renee Lettow Lerner on “the uncivil jury.”  The first installment–The uncivil jury, part 1: Americans’ misplaced sentiment about the civil jury addresses a “misplaced” loyalty in the American jury system, judge’s dislike in presiding over civil jury trials, the allure of arbirtation, and the necessity to find alternative methods for dispute resolution.

In reponse to Professor Lettow Lerner’s Seventh Amendment positions:

The civil jury system is a trademark of democracy and an important defense of freedom. Civil juries are the conscience and the voice of communities—crucial safeguards over dishonesty, corruption and neglect. With the exception of military service, juries are the one arena where average citizens can participate directly in government and democracy and have an impact on the future.

When a right is exercised or invoked less frequently due to social and economic forces, should we follow the trend downward, take the path of least resistance, find an alternative, and eliminate the right altogether? England, Australia, New Zealand, and Canada prohibit jury trial, and hold bench trials in almost all civil cases; these countries found bench trials to be much more efficient and “were not hampered by constitutional rights to jury trial.”

What if we applied such logic to the rest of the Bill of Rights? Wouldn’t criminal prosecutions be much more efficient if law enforcement were not hampered by the Fourth Amendment? Wouldn’t it be much easier for the government to discourage dissent if only it were not hindered by the First Amendment?

“Judges don’t like presiding over civil jury trials.”  Not all judges, however, share this sentiment.

• Former Supreme Court chief justice William Rehnquist once noted, “The founders of our nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a ‘safeguard too precious to be left to the whim of the sovereign.’”

• Jeffrey Colbath, chief judge of the 15th Judicial Circuit recently wrote, “Our jury system is the foundation of our democracy. Our parents, grandparents, and great-grandparents — all the way back nearly 239 years to the birth of our great nation—have been called to courthouses in every county and state across our country to serve as jurors. Without the jury system, disputes would still get resolved. But we might not like the method that could evolve, for example, bureaucrats, behind closed doors, making decisions subject to personal agendas, subject to suspicion, subject to abuse.”

• Retired Superior Court Judge Michael I. Jeffery penned, “I have seen the great dedication of jurors, examining the issues for a considerable time and staying into the night if they feel it is necessary. When the jury’s decision is announced, one can see how the citizens have carefully evaluated all the information they received and how they have reached a reasonable result based on the facts and the law. When this happens, our 800-year-old principles still shine brightly today.”

Let’s assume for the sake of argument that judges are not content with jury trials—is that really a reason to eliminate this fundamental constitutional protection? Some judges may not be fond of defendants who invoke their right against compulsory, testimonial self-incrimination, but does that mean should we reconsider the Fifth Amendment and search for alternative means to obtain testimony from criminal defendants?

Infringing on constitutional protections because they are not popular with some judges is a lot like raising blood alcohol limits because they are not popular with drunk drivers.  It sounds like a quick fix, but it’s a patently erroneous solution to a significant problem.

Save Our Juries Co-Chairs

Mark P. Robinson, Jr.
Gilbert A. Dickinson
Lewis R. Sifford
Steven D. Susman
Harry T. Widmann

In arbitration, there is no judge, jury or right to an appeal.

“The civil jury is a valuable safeguard to liberty.”

– Alexander Hamilton

More and more of everyday American life is controlled by contracts that must be signed in order to receive a product or service. What’s the big deal? Isn’t this just doing business?  Largely glossed over by consumers who quickly “click” in agreement; some assert that these contracts help to make  consumer transactions and the handling of any disputes more efficient. Consumers, however, need to take a closer look. Embedded in the fine print is a sustained attack upon consumer rights and access to justice.

Buried in everyday agreements for products, services, and employment is fine print saying if you are harmed, you can’t go before an impartial jury. Instead, these forced arbitration clauses send you to a decision-maker picked by the company that wronged you.

Arbitration is a private system. There is no public review of decisions and there is not right to appeal. This forced, or mandatory arbitration means giving up our most fundamental legal protection: the right to equal justice under the law.

We need to send a clear message that it’s unacceptable for corporations to use forced arbitration to avoid accountability for their actions and exempt themselves from the civil rights and consumer laws that are the foundation of United States society.

Take action! Don’t allow the fine print to forfeit or severely limit your Seventh Amendment right.

Visit saveourjuries.org for more information on what is in the fine print.

Save Our Juries-Save Our Constitution

Today, on Constitution Day, we should reflect on the central place juries fit within our constitutional system. The right to a trial by criminal jury is the only right to make a repeat appearance in the text of the Constitution (Article III) and the Bill of Rights (Sixth Amendment). Civil juries are protected by the Seventh Amendment. Grand juries guaranteed by the Fifth Amendment. And, of course, at the time of the Founding, the First Amendment’s protection against prior restraints of speech and the Fourth Amendment’s protection against unreasonable searches and seizures were protected by civil jury actions. Thus, half the Bill of Rights reflects the central role juries were to play in our constitutional order.

Yet, this constitutional linkage between juries and the Constitution has been lost for many citizens. When jurors receive that summons in the mail, they believe the court commanded them to attend, not the Constitution. Such a reality inverts role that juries were expected to play. Instead of holding judges, governments, and other powers accountable, juries are now seen as an arm of the court. Citizens have lost the sense that jury duty is constitution duty, and that “we the people” are responsible for our government.

In jurisdictions as diverse as Washington D.C. and West Texas, 80% of summoned jurors do not show up when summoned. Four out of every five people are excused or fail to respond to the summons. This is not simply a failure of courts, but a failure of citizens to embrace the rights and responsibilities of citizenship. Such a crisis level of apathy requires immediate action. Only those committed to the cause of jury service can save the jury for future generations. Lawyers, judges, and good citizens must begin the process of reclaiming juries and the Constitution.

While there are many positive steps those committed to saving the jury trial can take, including improving the juror experience, stream-lining jury trials, and easing the financial burden on jurors, I advocate for a more basic first step – personally reclaiming the constitutional identity of being a juror.

What do I mean by “constitutional identity”? Just as we consider “being a voter” as part of our identity as Americans, before, during, and after the actual act of voting, so we should consider “being a juror” as part of that identity.   Jury service should be seen as an on-going status not a task to be completed. Being a juror does not mean simply showing up on irregular occasion to the local courthouse. It means identifying as a juror before and after the actual summons. This identity was embraced by the Founders who linked political citizenship to jury service. This identity was advocated for by women’s rights advocates who fought for Suffrage and the Nineteenth Amendment. This identity was demanded by civil rights advocates seeking equal treatment in courts in the South during the Civil Rights Movement. In each case, full citizenship meant sharing the political and civil rights of voting and jury service. To be clear, these historic, generations-long fights were not simply to get the opportunity for the occasional jury summons, but to claim a full constitutional identity that jury service was part of being an American citizen.

Being a juror must be seen as part of a constitutional identity. But, how do we get citizens to see this link, and learn about the foundational role of juries in society?

For the past year since writing my book, Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action (NYU Press), I have been advocating a very simple approach to educating citizens about juries. It involves three easy steps I ask every lawyer, judge, and citizen to take.

First, educate yourself about the constitutional significance of the jury. ABOTA’s Save Our Juries website provides a wealth of material to do so, but if you are reading this you probably know that fact. Other books, videos, and web sources exist that can explain why jury duty is constitution duty. The history of jury equality remains a fascinating, if less known, chapter in American history. We forget that people fought, protested, and risked their liberty for the right to serve. By learning about this history we honor those who sacrificed for it.

Second, educate a jury of your friends about why jury service matters. Pick twelve people from your family, colleagues, or friends and explain in simple terms why they should learn about the jury. I regularly ask people (including lawyers, law professors, and judges) what they teach their children about the importance of the jury? And, the answers are usually underwhelming. As a society, we do a terrible job explaining the role of the jury to citizens. Young high school graduates become eligible to serve on a jury with almost no education, exposure, or explanation of why this role is important. Recently naturalized citizens are given no more than a cursory explanation. Most citizens do more preparation to buy a car than to be in a position to decide another person’s liberty or future. Then, after failing to explain the jury’s importance, we wonder why citizens do not take the responsibility seriously. So, on Constitution Day find a jury of people you care about and teach them why jury duty matters.

Finally, share stories of jury duty. The Juror Voices Project on Twitter (#JurorVoices) exists to share positive stories about jury service. Jury duty is generally a dreaded activity, not a time for civic enthusiasm, but it doesn’t have to be that way. Most jurors have positive experiences on jury duty. We need to collect and share those voices. It’s a tweet away – share a link, a story, a thought, and spread the word.

For the past year, I have been challenging all those who claim “they would die to protect the Constitution” to take the more modest step to live the Constitution. Show up for jury service. Vote. Teach your children why juries matter. Educate yourself about the link between juries and the Constitution. Today, and every day, proclaim that jury duty is constitution duty.

Professor Andrew Guthrie Ferguson teaches at the UDC David A. Clarke School of Law. He is the author of Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action

New Executive Order and Mandatory Arbitration

Whether they know it or not, and many do not, Americans go about their daily lives and conduct important and personal business while tied to forced arbitration contracts. Corporations routinely oblige individuals to sign away their rights by inserting just a few sentences in the fine print of contracts for cell phones; credit card applications; payday and car loans; job applications and employee handbooks; gym memberships and coupon offers.

Forced, or privatized arbitration makes it extremely difficult for everyday Americans to prevail against a corporation and obtain justice for injury or loss.

A new executive order has been signed, blocking mandatory arbitration clauses in employment agreements. What does this mean for employees?

New Executive Order Blocks Mandatory Employment Arbitration