Right to a Jury Trial

Dear Readers, Show of hands ... How many of you out there know what the 7th Amendment is all about? Oh,we know the 1st Amendment (free speech), 2nd Amendment (right to bear arms), 4th Amendment (search and seizure) ..., but, the 7th Amendment???

Here's the precise text, "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." So, there is a constitutional right to a jury trial in all civil cases made out at "common law," which includes most personal injury lawsuits. And, courts cannot undo a jury verdict by reaching a different result. Pretty powerful stuff.

The reason this right exists is because of King George's penchant to dictate a straight-jacketed Colonial America's civil judicial system. He did this by appointing judges beholden to the Crown and having laws and judicial opinions passed undermining or eliminating the right to a jury trial.

The 7th Amendment, as one of the original Bill of Rights, made sure the new federal government could never take away a basic civil right. Interestingly, the United States Supreme Court has never declared the right to a jury is also binding on the states through the "incorporation" of the Bill of Rights. However, Federal Courts contemplating the 7th Amendment's application to the states strongly imply that it eventually would be so incorporated.

Despite the right to a jury trial being central to our Revolutionary War, the right to a jury trial is under constant attack from several fronts. "Tort Reform" is championed as reducing health care expenses and as a salve for our economic difficulties. When "Big Business" loses large jury verdicts, the national office of the Chamber of Commerce, through the Institute for Legal Reform (ILR), puts out press releases about how the civil justice system retards economic growth.

But, this is double-talk, as Big Business makes use of this same jury system when it is in its interest to do so. Recently, Caterpillar sued Disney because bulldozers in a Disney animated movie were badly portrayed. And, Federal Express sued a man for making a chair out of FedEx boxes. On the face of what I have just described, both of these lawsuits seem pretty "out there," and the type of lawsuits opponents of jury trials hold up for public ridicule.

The "dirty little secret" is that the number of commercial lawsuits, such as one business suing another business, is increasing, while other types are decreasing. This makes sense, as businesses can more easily afford to risk the money, time, and aggravation that comes with litigation than the rest of us. So, for instance, Johnson & Johnson has sued the Red Cross to try and stop it from allegedly infringing on Johnson & Johnson's own "red cross" symbol.

Yet, despite using the jury system when it serves their purposes, businesses do not like the uncertainty of being sued. Hence, Honeywell does not want to have to game-plan its economic future for lawsuits accusing it of supplying our military with defective Kevlar vests.

The argument that economic growth is inhibited by our constitutional right to a jury trial is a dangerous one. While the threat of a lawsuit can be more than just a little annoying, the right to a jury trial levels the playing field between us and larger interests – be it government or Big Business. Isn't this ironic then ... The 7th Amendment exists so that ordinary people have the power to contest the will of the "Crown"; yet, in modern times, the commercially powerful are employing King George's playbook in trying to shrink our rights.

Going forward, then, it will be interesting to see if we are willing to compromise a basic constitutional right for the theory that doing so could possibly improve the economy.

Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston Co. Chief Assistant District Attorney, and a former Miami Prosecutor.