Al Smith - December 18, 2012
Montana Trial Lawyers Association
Corporate Assault on Our Constitutional Rights
The basic premise of our civil justice system is that if you are physically injured, if your property is damaged or if your rights are violated, by the wrong doing or negligence of another, you have the right to seek to have the wrong doer held responsible and accountable in a court of law. The constitutions of the United States and Montana guarantee our rights of access to our courts and to have our cases heard by a jury of our peers.
The jury was an important aspect of English law that was very much a topic at the time of our nation’s birth. Juries in England and in the colonies were during that time restricting the power of government and powerful commercial interests to run roughshod over ordinary citizens. One of the colonists’ grievances in the Declaration of Independence was depriving colonists in many cases of "the benefits of trial by jury."
Our U.S. Constitution did not originally include the right to a trial by jury, and that omission very nearly prevented the ratification of the Constitution. The anti-federalist arguments for the civil jury resonated with a broad segment of society. Juries meant direct citizen participation in government. Speakers during the ratification debates often proclaimed that the jury box was at least as important to true democracy as the ballot. Thomas Jefferson was of the opinion that citizen participation in the judicial branch as jurors was more important than citizen participation in the legislative branch.
It was only upon the promise that the first Congress would adopt a Bill of Rights, including the right to trial by jury in civil actions, the Seventh Amendment, that the Constitution was ratified.
Over the past several decades the public has been deluged with misleading rhetoric that portrays trial lawyers, juries and the civil justice system as the scourge of the land. An un-American scourge that, if unchecked, will lead to the destruction of the country itself. This rhetoric flows from so-called tort "reformers," groups and individuals that are almost always fronts for corporations. The same corporations that trial lawyers hold legally responsible for the injuries their actions or products cause.
Such rhetoric is not new. The powerful elite of the industrial revolution and Gilded Age periods also attacked the civil justice system and juries. The attacks came because the powerful were being held legally responsible for the injuries their actions or products caused. While those powerful interests succeeded in severely limiting the power of juries, they could not eliminate them. And, populist and progressive pressures were successful in assuring jury trials for injured railroad workers and seamen.
One of the present day tort "de-formers" more successful disinformation campaigns focuses upon jury awards, hammering home the message that jury awards of punitive damages in personal injury cases are out of control. The facts, however, show just the opposite. A RAND Institute study of jury verdicts found that "despite the attention they have received from policy makers and from the media, punitive damages are rarely awarded." Another study based on data from the National Center for State Courts, found that punitive damages were awarded in just 3 percent of all jury trial verdicts.
In sharp contrast to the "out of control" juries lampooned in anecdotes, the RAND study and other studies overwhelmingly have found that real juries perform their duties remarkably well. Juries follow the court's instructions conscientiously and base their decisions on evidence rather than emotion. Their decisions are generally in line with what judges or professional arbitrators would have decided, even in complex cases.
Here in Montana, there are already several bill drafts for the upcoming legislative session that will limit or take away our constitutional rights to a trial by jury. Many of these are the product of ALEC – the corporate front group that produces model bills for the states that limit or eliminate corporate accountability, and promotes corporate cronyism paid for by state taxpayers. You can go to alecexposed.org to see how ALEC works.
When you hear the tort "de-formers" message inspired by groups like ALEC, remember where it is coming from. The "de-formers" are the same people who denied for decades that there was any connection between smoking cigarettes and lung cancer. The same people who sold vehicles with defective fuel systems that they knew could explode upon impact in an accident. The same people who sold children’s pajamas made with materials that they knew could burst into flames. The same people who knowingly exposed their workers and the public to asbestos.
Can we people fight the power of commercial interests to influence our governments and obtain special protections against accountability and responsibility? Do we still value the direct participation of ordinary citizens in our government?
If we do, we need to take the time to learn the facts before falling to the siren sound of tort "reform" and its elimination of jury trials. Otherwise, the next sound we may hear will be the court house doors slamming in our faces.
Wishing you a safe and happy holiday season, this is Al Smith for the Montana Trial Lawyers Association.