‘We, the jury…’

Jun 10, 2013, 6:05am EDT Updated: Jan 15, 2014, 6:40am EST
Editor for The Buffalo Law Journal- Buffalo Business First


Those of you who managed to make it out of bed in time to attend your Con Law class during law school will recognize that paragraph as the seventh amendment to the U.S. Constitution and the one that protects your right to a jury trial. Proponents of the jury trial system say it is under attack in America. Indeed, some see it as one of their core constitutional rights in danger of being sucked away.

While it isn’t as sexy as the First and Second amendments, or even the Fifth Amendment made so famous thanks to cop dramas on TV, the Seventh Amendment protects you and I and makes sure that, in strictly legal terminology, if someone screws us out of money, we have a chance to let a jury decide if we should get paid.

The first — and some say the most dominant — threat to the Seventh Amendment comes via the rapid increase in the number of cases being directed to mediation and arbitration, collectively known as alternative dispute resolution. While mediation may be a perfectly acceptable route to go if both parties opt to enter voluntarily, it is the increase in “mandatory mediation” being ordered by courts that has people up in arms.

On the surface, the idea sounds reasonable enough: The courts are ridiculously backlogged and cases can take an insane amount of time to be heard. If there is a faster, some say cheaper and certainly more efficient way to resolve legal disputes, who would object? Well, for starters, those pesky folks who believe the Founding Fathers took the time to give us rights for a reason and aren’t too keen on seeing any of them ripped away.

By forcing parties into a mediation session rather than a courtroom, the question is: Are you, in fact, depriving them of their Seventh Amendment right to a jury trial? In the strictest sense, I suppose not, given that you can simply hold your ground in mediation, refuse to settle and eventually make your way into court.

But suppose, for example, that you are in front of a federal judge who orders you to mediation with a strongly worded suggestion that you reach a resolution. You are determined to have your case heard by a jury, and you plan to hold out and stubbornly force your way back into court for a jury trial. That may work in the case of a big corporation, but for the average person, the legal process is enormously intimidating so there is a fair chance that once the judge issues the mediation order, you will cave in and settle in mediation, rather than push for your trial.

For proponents, ADR is seen as a critical component of the justice system, but for groups such as the American Board of Trial Advocates, or ABOTA, it is an all-out assault on your constitutionally guaranteed right to a jury trial.

The other threat to the Seventh Amendment is a bit more subtle.

In these days of multimillion-dollar personal injury claims and seven-figure dog-bite settlements, the law is big money. So what happens if you have a relatively minor civil case?

What might be big money to you can often be difficult to attract an attorney. When the next million-dollar verdict is just one T-bone accident away, your $15,000 civil suit may be harder to draw the attention of a good attorney than you might think. The cash just isn’t there.

So does that mean your legal rights should be nullified and you should be forced into ADR as your only means of resolution? Probably not, though this one may be a bit more difficult to resolve.

How does one force an attorney to take a case? How does the system ensure that everyone gets their day in court, regardless of how small the financial stake? Tough questions that will likely face more intense scrutiny as a growing number of plaintiffs across the country find it increasingly difficult to secure legal representation for what are deemed “small potatoes cases.”

In the end, I like my Seventh Amendment right to a jury trial and you should, too. The First Amendment is overrated and grossly misunderstood (if you really think you have absolute free speech, try yelling “bomb!” on an airplane and then tell me about free speech). The Second amendment is grossly underused (a recent New York Times article noted 66 percent of American households do not own a gun) and the Fifth Amendment is nothing more than a shield for guilty people.

So where does that leave us? Back to our old friend, the Seventh Amendment. It may not be flashy, it may not be sexy, but like your hair or your wife, it is something you should love and cherish, and worse yet, you may not miss it until it’s gone.

Matt Chandler covers the legal industry



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