Fred Schultz Torts Law Blog on Lawyers.com

Here’s a conversation starter at your next social gathering: “Which Constitutional Amendment best protects the rights of the average citizen?”  You’ll probably hear lots of Firsts, (Freedoms of Speech, Press, Religion, Assembly) Seconds (Right to Bear Arms) and Fifths, (Due Process/ right against self-incrimination) and some smart aleck will probably throw in a 21^st, (Repeal of Prohibition) but what about the Seventh? 

The Seventh Amendment is a very short, plainly worded Amendment which simply says:

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

The Seventh Amendment has a long history dating back to the Glorious Revolution of 1688 , and even further back to the Magna Carta, in 1215, where the concept of due process under the law and the right to trial by one’s peers has its roots. How so?  As it turns out, prior to that date, judges were beholden to the monarchy and their rulings were generally in favor of the monarch’s position.  Imagine a peasant who has purchased a piece of property.  Now imagine that the king wants that property, and, as kings are wont to do, takes it.  In 1687, the peasant may sue the crown to enforce his right of ownership, but the judge, wanting to remain a judge, will almost certainly rule in favor of the king.  However, in 1689, a jury of twelve peers may be seated to determine who owns the property.  And this is a powerful check on the authority of the monarch.

Around the time of the American Revolution, Colonial judges still served at the pleasure of the King. In fact, King George III of Great Britain abolished trial by jury in the Colonies, one of the main grievances precipitating the American Revolution and specifically mentioned in our Declaration of Independence. America's Founders shared a perfect horror at the concept of arbitrary courts of justice, such as those of the Kings of England and other European countries. 

And yet, today, we again find our right to trial by jury in civil cases under extreme attack. However, the ruling elite changed from a traditional King to the U.S. Chamber of Commerce.  Between the U.S. Chamber and their many allies, many laws have been pushed through that limit an individual person’s right to trial by jury in a civil case, or cap the amount of money they can seek when they have been harmed by corporations and insurance companies.  No surprise, a look at the largest political contributions will show that U.S. Chamber, Big Pharma, and the American Medical Association, are among the largest contributors. 

This vast amount of influence peddling occurs on both the national and statehouse levels. These business interests also get heavily involve in states that have direct elections of their state Supreme Court justices.  In fact, the U.S. Chamber has a specific program for electing business friendly/anti-consumer State Supreme Court Justices and for lobbying at both the state and federal level.  

Because of this vast amount of money that is being spent by Corporate America, we now have assorted statutes that limit the power of the jury to decide civil matters based on the facts they see and hear and their collective verdict.  Instead, we have arbitrary damages caps that may seem ample enough when enacted, yet may be grossly insufficient in a particular matter.  For example, $250,000 might seem like a lot of money, until you find out that is the most a negligent actor will be held responsible for in the death of your child or your elderly parent or grandmother. 

Likewise, we have stat utory immunities for local, state, and federal governments, when in fact it is our government that should be most accountable to the people.  And we have the legal doctrine of federal preemption, which generally equates to immunity for corporate misconduct. 

The right to a jury trial is premised on the notion that all members of society are equal before the law.  Under the Constitution, one little old lady has as much right to a jury trial over an injury at a Wal-Mart store as a large corporate interest does over a $1 billion dollar contract dispute.  And yet, we continue to see mandatory arbitration clauses enforced to strip away that right. 

There is a great movie I encourage everyone to check out called, “Hot Coffee.”    It is a documentary so good that it made it into the Sundance Film Festival.  It starts by exposing the truth behind the McDonald’s lawsuit that everyone has heard about wherein an elderly woman spilled a cup of scalding coffee on her lap.  This case became the poster child for “Tort Reform.”  Everyone knows about it, but nobody knows the truth.  The premise of Hot Coffee is that this was no accident, and that large corporations spent millions of dollars in a Public Relations campaign to whip the public into a frenzy, thereby creating an environment wherein legislatures at the state and federal level couldn’t help but enact arbitrary laws that stripped the average American of their legal rights.  Hot Coffee also examines how arbitrary caps on damages do nothing but transfer the cost of the harm in real cases to tax payers, instead of the liability insurance industry.  Finally, it looks at the amount of money involved in State Supreme Court races, and the push for mandatory arbitration clauses in consumer contracts. 

Just as the citizens of England did in 1215 with the King, or the Citizens of American Colonies did in 1776, we find ourselves fighting with the powerful elite over our individual rights again today.  This time, it’s not the King but the Corporation who seeks to take our rights away.  Their arguments are always compelling and well-crafted, but likewise misleading and full of incorrect facts and/or assumptions.  It is up to us to sift the truth from the lies, and to vigilantly guard our fundamental rights.    

Additional research compiled by Lori M. Craig, R.P.