There a Radiohead lyric that goes “Let down and hanging around; Crushed like a bug in the ground.” I know there are a lot of ways to describe what happened to the civil jury system this past year but for some reason, squishing a fallen insect comes to mind.
As many have written, insects are an incredibly important part of our ecosystem. The “the lever pullers of the world,” some say. Hardly a nuisance, and we’d be dead without them.
Similarly, civil jury trials – especially those deciding cases by people who have been wrongfully harmed - are a crucial part of our justice system. The U.S. Constitution was nearly defeated over its failure to guarantee the right to civil jury trial. (The Seventh Amendment eventually resolved the problem.) The right to jury trial has been secured not only by the U.S. Constitution, but by every state as well.
But over life of the nation, the number of civil jury trials dropped precipitously. Even before the pandemic hit, for example, juries resolved, on average, less than 1 percent of state civil cases as well as state tort cases. The reasons for this, as described by Shari Seidman Diamond and Jessica M. Salerno in their 2020 law article, “Reasons for the Disappearing Jury Trial: Perspectives from Attorneys and Judges,” include both enactment of “tort reform” laws that limit the power and authority of juries, and forced arbitration clauses that demolish juries altogether:
For civil cases, 61.6% of respondents who practiced in jurisdictions with damage caps… said they played a medium or large role in making jury trials less appealing.…
Fifty-two percent of judges and attorneys also pointed to mandatory arbitration as having helped drive down the frequency of jury trials.
Many courts offer voluntary arbitration, overseen by a neutral mediator who is an expert in the pertinent legal issue. A growing number of companies have begun making this process mandatory for employees and consumers by including binding arbitration clauses in contracts.
“On average, workers who pursue legal claims through arbitration are less likely to prevail, and they receive smaller awards than those who pursue employment claims in court,” wrote Diamond and Salerno.
Already at a low point before COVID, now they’ve nearly or completely disappeared in many places. In an op ed in Maine’s Press Herald, Benjamin Gideon recently wrote:
When the pandemic struck last spring, Maine courts abruptly stopped conducting jury trials. It was an understandable measure to protect judges, litigants and jurors. At that time, no one yet knew how to adapt to the pandemic.
Less understandably, more than a year later, our civil justice system remains shuttered.…
Not only has our judiciary failed to implement strategies to resume civil (and for the most part, criminal) jury trials, our Supreme Judicial Court issued an order prohibiting trial judges from using their own ingenuity to find a way to conduct civil jury trials.
Now, as our courts are finally attempting to reopen, they face a dizzying backlog of criminal cases, which, the judiciary says, prevents them from holding civil jury trials. …
What’s more, insurance companies have done nothing but take advantage of this situation by refusing to settle cases. In New York, for example,
Because there are no trials — except for a select few cases that went to trial last fall — insurance companies and defendants have little reason to settle beforehand, a common way to avoid juries awarding more money, lawyers say.
Insurance companies and defendants have instead dragged their feet and refused to pay out in some cases, which could force people to settle for less if they’re desperate for cash, according to lawyers in the field.
“The delay of jury trials brought on by COVID-19 has exacerbated what was already an untenable situation for New Yorkers seeking to exercise their right to civil justice,” said state Democratic Sen. Brian Benjamin.
As Mr. Gideon writes, “I am concerned that we will come to accept the misguided notion that the right to a civil jury trial is a luxury rather than a basic right established by our constitution.” Yep, James Madison would be seriously bugged by that.
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