Our founding fathers did not foresee subprime mortgages, credit swaps, collateralized debt obligations, and the housing bubble, but they did foresee the need to preserve the rights of citizens to have jury trials in civil cases. The Seventh Amendment to the U.S. Constitution reads as follows:
Amendment VII: Rights in Civil Cases
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.
In today’s legal community are citizens getting their day in court in front of a jury of their peers? The answer is generally no. There are several reasons for the lack of use of the jury trial as a means to resolve dispute is civil cases.
- Rise of contractually mandated arbitration clauses. For example, take a look at the typical automobile insurance policy. It usually contains a clause to the effect that in uninsured or underinsured motorist cases, each party will choose an arbitrator, and the two arbitrators will select a neutral. (In Pennsylvania, since the holding in Insurance Federation vs. Koken, auto carriers are no longer required to have arbitration clauses in their policies. The implications of Koken, and whether the ruling was more favorable to claimants or to insurance carriers will be left for another article.)
- Greater use of Alternative Dispute Resolution (ADR) as a means of resolving claims for damages.
- Court mandated settlement conferences.
- Impossible time requirements and notice of trial imposed on litigants by the Courts. For instance, it is not uncommon in Philadelphia and Montgomery County to be on twenty four hour notice, or less, of an upcoming trial. So while litigants are made aware that their case may be called for trial in any particular month, the litigants are not given anything close to a date certain for trial. This can place severe constraints on parties, witnesses and expert witnesses. It is no surprise, therefore, that some counties impose these constraints on parties as a method of clearing their dockets of cases by forcing the parties to settle.
- Lack of trial experience of counsel. ADR is a good way to resolve some personal injury cases. But, with the increase of the use of ADR, and mandated arbitration, fewer and fewer personal injury lawyers are gaining actual jury trial experience.
Trial lawyers represent people who can least afford lawyers, which is why the contingent fee system in personal injury cases is so important to ensuring access to the court system. It evens the playing field. While alternative means of resolving disputes is useful, helpful and appropriate in some cases, other cases require a hearing in front of a jury as a means of maximizing a client’s claim. As long as the client is informed of the trial risks and related expenses, counsel must be ready to utilize the jury system.
