Our Seventh Amendment deserves protection along with the others

As a conservative trial lawyer, one of my favorite parlor games is to ask fellow conservatives: “What is the Seventh Amendment?” Not surprisingly, the vast majority of people, whether conservative, liberal or some other political orientation, cannot name this key provision of the Bill of Rights.

The Seventh Amendment provides: “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 reexamined in any court of the United States, than according to the rules of the common law.” Most, if not all, state constitutions provide a similar protection; The Maine State Constitution provides: “In all civil suits, and in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases where it has heretofore been otherwise practiced; the party claiming the right may be heard by himself or herself and with counsel, or either, at the election of the party.”

In contrast to the Second Amendment’s protection of the right to keep and bear arms, there is little hue and cry among conservatives when the right to a jury trial in civil cases is attacked. Somewhat surprisingly, assaults on the Seventh Amendment often come from conservatives who seek to impose “tort reform” at the behest of powerful interest groups such as the American Medical Association or the national Chamber of Commerce.

For example, a bill was passed recently by the Republican majority of the House of Representatives that purports to eliminate the ability of a jury to award more than $250,000 in medical malpractice cases even when the injuries at issue may far exceed the statutory cap. Putting aside the questions of whether tort reform is justified or effective, conservatives should be opposing any attempt by Congress to interfere with a jury’s ability to award damages to a party deserving of full and fair compensation.

Where is the outrage that we see whenever the Second Amendment is attacked? We all recall Charlton Heston coolly expressed his determination to vindicate his Second Amendment rights when he chided: “I’ll give you my gun when you pry it from my cold, dead hands.” In contrast, when Congress proposes a law to strip a citizen’s right to a jury determination of a jury award, there are cricket chirps.

As conservatives, we should not tolerate any intrusion on our Seventh Amendment rights. The right to a jury trial in civil cases has its roots in ancient Greece and Rome, and was confirmed in the Manga Carta. The deterioration of the right to a civil jury trial was a principle reason why persecuted individuals and groups fled Europe in the 17th century, why the colonists revolted against the King and why the Bill of Rights was deemed a necessary supplement to the U.S. Constitution.

Let us consider another example where the right to a civil jury trial is presently under attack. We all have credit cards and cell phones. Did you know that most of these contracts have clauses buried deep within the boilerplate of the terms and conditions of use (recall checking off the acceptance box without reading those terms and conditions) that waive your right to a jury trial and require you to arbitrate all of your claims? Worse yet, those terms and conditions require the arbitration in a far off location like California instead of a Maine courtroom. While arbitration can be a very effective form of dispute resolution, it should be the product of a negotiated contract, not the result of some take it or leave it provision deep inside the terms and conditions of your credit card or cell phone agreement.

So let’s suppose your credit card account has been hacked and your identity is stolen due to the negligence of your cell phone provider. Given the current state of the law, you would have “waived” your right to a jury trial here in Maine simply by checking off the box. Never mind the fact that the hackers have now stolen all of your hard earned savings and transferred your assets to an off shore location. Your only recourse now is to file an arbitration with filing fees in excess of $500 or more in a state selected by the credit card company or your cell phone provider. Because the case must be brought in another state, you can no longer rely on your local attorney and you will need to retain a lawyer elsewhere.

Someone might argue, well these types of cases did not exist at common law, therefore the Seventh Amendment does not apply. That would be akin to saying the Second Amendment should not apply to semi-automatic weapons because they did not exist at the time the Bill of Rights was adopted.

But contract cases did exist at common law. Imagine the response of the Founding Fathers if King George III had specified that the only way a colonist could have recourse against a British corporation was to designate a member of the King’s court to hear the case in London. Would the colonists demand a local trial before a jury of their peers or simply hope that the appointed judge would be a fair minded fellow?

From one conservative to another, please educate yourself on the Seventh Amendment right to a jury trial in civil cases and adamantly oppose any legislation or practice that intrudes on this fundamental right of American liberty.

Brett Baber is an attorney based in Bangor.