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The
Right to A Jury Trial: A Fundamental Protection for
the People
by Charles Abourezk
After thirty years of insurance corporations and
large manufacturers essentially taking control of
the public narrative about the meaning of the civil
justice system and the trial lawyers who work within
it, it is important for us to remember the
fundamental role that jury trials and trial lawyers
play in our constitutional democracy.
This is particularly important right now, as the
average American can now see in their daily lives
the tangible results of thirty years of dismantling
essential governmental regulation in banking,
finance, insurance, and other powerful institutions
and industries.
The right to a jury trial is a fundamental
protection built into our constitution and laws as a
“last line of protection for the public against
unscrupulous or irresponsible corporations,”
as well as the citizens’ last means of defense
against the natural tendency of all governments
toward authoritarianism.
The “civil justice system . . . is like the criminal
justice system except that the only punishment is
monetary and that the detectives and the prosecuting
attorneys are not government employees paid by the
taxpayers but are instead civil justice attorneys –
trial lawyers paid out of damages assigned by the
courts.”
Put another way, when government regulation fails to
protect the public, trial lawyers step in to slow
down or halt corporate or governmental behavior that
harms the public good or our individual citizens.
Trial lawyers are also the enforcers of community
safety standards by bringing cases under our civil
laws regarding negligence.
In our free market economic system, trial lawyers
act as the free market’s version of regulators, and
unless government intervenes to limit the power of
the citizenry, the “market” or jurors from our
communities ultimately decide the appropriate amount
of punishment necessary to limit and shape the
behavior of corporations that, by their very nature
as nonhuman entities, do not have a conscience or
any sense of social obligation.
As Milton Friedman once said, “the social
responsibility of business is to increase its
profits.” This is often at odds with the people’s
desire for safety, reliability of products, and
protection, and it is trial lawyers, able to proceed
because of the possibility of being paid from the
damages determined by jurors who, along with their
counterpart civil defense attorneys, present and
test the evidence in front of a jury, in order to
assist the jury in reaching a fair result that will
protect our communities from corporate and
individual excesses. Ultimately, it is juries who
play the role of the final arbiters of community
standards of fairness and decency.
If business tells us to trust the markets, then they
must also trust the “market” of juries made up of
our community members who can decide if there is too
little or too much punishment at any given time in
our society. Ironically, it was activist justices
on the United States Supreme Court, constitutionally
charged with preserving the rights of political
minorities and the average citizen against
governmental intervention, in the Campbell v.
State Farm Insurance case, who acted to wrest
the power from jurors to determine the amount of
sufficient punitive damages in order to contain or
halt egregious corporate and private conduct.
The Court limited punitive damage awards to a single
multiplier of nine times or less of the actual
damages, which is little or no threat at all to
large national and multinational corporations who
engage in a pattern of willful and wanton behavior
against consumers. This kind of pro-corporate
judicial activism has raised the ire of many state
supreme courts and appellate courts across the
country who see in their courts the injury wrought
by flagrant corporate conduct, and they have been
pushing back against the United States Supreme Court
in cases such as the recent case in the Oregon
Supreme Court, Williams v. Phillip Morris USA.,
which the US Supreme Court finally left alone after
several appeals.
This trend in judicial activism and deprivation of
the constitutional power of juries on the US Supreme
Court shall eventually pass, once the balance of
power shifts in the highest court, and one must hope
that the full constitutional power of jurors will be
restored to them, as envisioned by the founders.
The right to a jury trial and the role of trial
lawyers in the civil justice system remains one of
the core protections built into the US
Constitution. All trial lawyers, regardless of
whether we do civil plaintiffs or defense work, have
to make our voices heard in our communities about
the importance of the right to a jury trial. We are
in an honorable profession that plays an integral
part in our constitutional democracy – and we must
begin to redefine our important role in the public’s
eye.
Thankfully, the South Dakota Trial Lawyers
Association - our trial lawyers group - has led the
way in informing the public about the important role
of trial attorneys and the jury system. We hope you
will participate September 30-October 1 in our Fall
Seminar which will proudly celebrate the right to a
jury trial and the importance of legal counsel, and
hopefully it will help South Dakota trial lawyers
renew their enthusiasm about whatever sized case
they might have that is working its way through our
civil justice system in South Dakota.
George
Lakoff, The Political Mind, New York: Penguin
Books, 2008, 2009.
Id.
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