Locking the Courthouse Doors in Georgia

By Harry T. Widmann

In 1776 denial of the right to trial by jury in civil cases was one of the colonists’ grievances against the King of England that provoked the Declaration of Independence and triggered our Revolutionary War. In 1787 this right to a civil jury trial was so highly valued that it was guaranteed by the 7th Amendment to our Constitution.

The civil jury trial is an integral part of our unique American democracy. Citizen jurors directly provide justice to their fellow citizens in open court. They also serve as a check and balance on the power of the judiciary.

The right to a civil jury trial is a precious right which Americans have treasured and utilized throughout our history.

Now, in Georgia, a legislator has introduced a bill that would eradicate jury trials in medical malpractice cases. In fact, this bill would remove medical malpractice cases from the courts system entirely and entrust them to bureaucrats. Administrative hearings would replace open trials where verdicts are rendered by citizen juries.

The proposed legislation very likely violates Georgia’s constitutional guaranty of civil jury trials, and, quite simply, is un-American. Proponents of the bill argue that it would reduce so called “defensive medicine” practices where doctors allegedly order unnecessary medical tests to protect themselves from lawsuits.

This makes no sense. Nationwide physicians prevail in at least 75% of jury trials on medical malpractice cases, yet defensive medicine supposedly persists unabated. Are the proponents suggesting that turning these cases over to bureaucrats would stack the deck in favor of physicians to such a degree that they would abandon defensive medicine? Would the proponents pervert justice to avoid the risk of a fair trial? Surely sounder minds will prevail to preserve the precious right to a civil jury trial and not sacrifice it at the altar of tortured logic.

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The Seventh Amendment and Save Our Juries

Save Our Juries has a mission to “uphold the jury system provided by the Seventh Amendment to the U.S. Constitution by educating the American public about the current issues, the history, and the value of the right to trial by jury.”

The essential nature of the civil jury trial to our system of justice and to our free society cannot be overstated. Yet each year this fundamental, constitutional right is in slow but continuous decline—and is moving closer and closer to extinction should the trends of the last several decades continue.

The negative consequences are affecting Americans on a daily basis. Today a person can rarely open a bank account, accept a job offer, obtain a credit card, rent a car, or use a cell phone without contracting away the 7th Amendment right. Slowly but surely we are relinquishing equal bargaining power and chipping away at the fundamental freedoms upon which our nation was founded: the right to a trial by jury in civil cases.

This country’s founding fathers recognized that the civil jury trial is both a critical and integral part of a free society and a system of justice for all.

  • James Madison in 1789 noted that, “…trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”
  • Thomas Jefferson opined in 1789: “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
  • In 1787, Alexander Hamilton wrote in Federalist Paper No. 83: “The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.”
  • John Adams was even more blunt when he said in 1774: “Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.”

Save Our Juries is proud to call businessman Mark Cuban, U.S. Sen. Sheldon Whitehouse and former U.S. Sen. Fred Thompson official SOJ supporters. Each of these enthusiasts has filmed multiple public service announcements for our cause, and each is a valued partner in our efforts. Together we are elevating SOJ to the status of thought leaders in vital conversations about the state of our civil justice system.

Save Our Juries encourages Americans to help save the Seventh Amendment. The Save Our Juries website and social media channels offer landmark case studies, news reports, videos and information on how to contact legislators and the media demanding that attention be given to this important cause. All Americans need to get together to protect this right!

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.

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?

http://www.adrtoolbox.com/2014/07/new-executive-order-blocks-mandatory-employment-arbitration/

Write Congress to Save Our Juries

Does writing or calling your member of Congress help? The answer is yes. Contact makes legislators aware of a constituency interest, which has important consequences for future policymaking. Please send a letter to your local representative through our contact Congress system. The interactive map will connect you directly to the leaders in your state.

Contact is the single most consistent predictor of how legislators perceive issues in their districts. If there’s an issue you care about, be heard. Let Congress know that we cannot allow the civil jury trial, and the Seventh Amendment to vanish. Help us save this pure means of democracy.

http://saveourjuries.org/index.cfm?pg=CongressWeb#/7

 

“…the ancient trial by jury is preferable to any other, and ought to be held sacred”

From Blackstone, on the necessity of civil jury trials:
“Every tribunal (Judge), selected for the decision of facts, is a step towards establishing aristocracy—the most oppressive of all governments.”

From George Mason, Declaration of Rights (the preface to the Virginia Constitution), June, 1776:
” 11.  … in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.”

John Adams probably borrowed from this when he drafted the Massachusetts Constitution (that was defeated by the voters in 1778, but passed in 1780):

Part I, Article 15:  “In all controversies concerning property and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practiced, the parties have a right to a trial by jury; and this method of procedure shall be held sacred …”

Pretty strong stuff.  Mason was a key actor in the Constitutional Convention until he stormed out and refused to sign it.  The document that was ultimately signed was in large part based upon the Adams draft, which, in turn, borrowed from Mason’s Virginia draft and, going back further, relied heavily on Magna Carta as the source for limitation on governmental powers.

The irony, in some ways, is that leading Virginia lawyers like Mason and Jefferson, many of whom trained in the Inns of Court and were therefore devotees of Coke and his constitutionalism, adopted a Natural Rights philosophy more akin to Blackstone.

Massachusetts lawyers who had almost no training in the Inns, were often heard quoting Blackstone, but Adams based his government theory on Coke, constitutionalism and Magna Carta.  Personally, I think Adams had it right, but maybe I am biased a bit.

By Christopher A. Duggan