Are We Losing Our Right to Jury Trials?

Are We Losing Our Right to Jury Trials?

Dale G. Larrimore, Esquire

Larrimore & Farnish, LLP

            Jury trials are a unique part of America’s democracy. Most countries do not have jury trials and it is one of the rights that makes us unique — something we should justifiably be proud of.  Some of the Founding Fathers objected to the Constitution because this right was not included and, in fact, the first thing that the First Congress did in 1789 was to pass a Judiciary Act that provided that the trial of civil issues in federal courts shall be by jury. At the behest of James Madison and others, that same Congress then drafted the Bill of Rights and the Seventh Amendment passed with no debate, guaranteeing the right to trial by jury in all civil suits at common law in all federal court trials.

            The Constitution of the Commonwealth of Pennsylvania, adopted in 1776, even before the United States Constitution, contains a similar guarantee that in suits between citizens “the parties have a right to trial by jury which ought to be held sacred.” Many other states followed Pennsylvania’s lead, enacting state constitutions with similar guarantees.

           Unfortunately, we have seen a recent whittling away of this fundamental right through the actions of corporations that have forced mandatory arbitration on many of our consumer transactions.  Far too often I have found my clients unwittingly trapped by mandatory arbitration provisions contained in nursing home admission papers, online “click-through” agreements, amateur athletic activities or in lengthy contract documents for what would seem to be innocuous purchases and transactions with all types of companies. As a recent New York Times article noted:

Arbitration clauses have proliferated over the last 10 years as companies have added them to tens of millions of contracts for things as diverse as cell phone service, credit cards and student loans. Nursing homes in particular have embraced the clauses, which are often buried in complex contracts that are difficult to navigate, especially for elderly people with dwindling mental acuity or their relatives, who can be emotionally vulnerable when admitting a parent to a home.

            In September, the Centers for Medicare and Medicaid Services (CMS) issued regulations that would prohibit facilities that receive Medicare funding from using binding arbitration clauses in long-term care contracts, noting “predispute arbitration clauses are by their very nature unconscionable.” Unfortunately, industry trade associations sued to block the rule and a federal court judge in Mississippi granted the nursing home industry’s request for an injunction to prevent CMS from implementing the rule.

            Earlier in 2016, the Consumer Financial Protection Bureau (CFPB) issued a proposal that would have prohibited banks and financial service providers from requiring consumers to waive their jury trial rights in mandatory arbitration agreements, concluding that “individual dispute resolution mechanisms are an insufficient means of ensuring that consumer financial protection laws and consumer financial contracts are enforced.” But the Republican controlled U.S. House of Representatives passed an appropriations bill that would strip the CFPB of power to regulate banks’ ability to force arbitration agreements on their customers.

            Our system of government is based on checks and balances and the judicial branch is co-equal to the executive and legislative branches. Courts have the power to overturn laws or acts that violate constitutional rights. This system is dependent on a strong independent judicial branch and this requires a healthy jury trial option. Jury service gives each of us a chance to have a voice in determining what is right, and what is wrong, in our society. Jury trials provide the voice of the people in our civil justice system and, in a civil lawsuit, a jury of citizens will determine community standards and expectations in accordance with the law. Juries provide the voice of common sense and the perspective of all of us, as citizens, in our changing society.

            Many if not most contracts that we now sign for major purchases, such as cars or appliances, have a compulsory arbitration clause that precludes recourse to civil suit and jury determination. When we travel, our rights may be limited by forced arbitration clauses in agreements with cruise lines, tour companies or professional travel agencies. Far too often we are giving up our fundamental right to a jury trial when we sign a contract that is handed to us as part of some transaction or event that we are participating in.

            We have come a long way from our Founding Fathers’ defense of the “inestimable right of trial by jury.” We need to fight this trend. Be careful when signing contracts. Cross out the forced arbitration clauses. Tell your elected representatives that the right to a jury trial is important to you. We must act to preserve our fundamental rights guaranteed to us in our Constitution.