# Right to a Civil Jury Trial **URL:** \ **Category:** Great Debates\ **Created:** [June 15, 2002, 2:28am UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151 "2002-06-15T02:28:57Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Philosophocles](https://avatars.discourse-cdn.com/v4/letter/p/b38774/32.png) [@Philosophocles](https://boards.straightdope.com/u/Philosophocles)\ **Post date:** [June 15, 2002, 2:28am UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/1 "2002-06-15T02:28:57Z")
Proposed amendment to the U.S. Constitution: “Whereas, the people of the United States recognize that the true intent of the Seventh Amendment has been thwarted by artful reasoning of unjust magistrates and that mandatory arbitration agreements are inherently unconscionable and signify the moral turpitude of those who insist upon such exploitative clauses, We the People of the United States, in defense of our civil rights and in the name of all that is good, just, and true, declare that prior to the existence of a live case or controversy, all contractual agreements to waive or limit the right to a civil jury trial shall be null and void.” The Seventh Amendment clearly states: “In suits at common law, where the value in controversy exceeds twenty dollars, the right to trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the common law.” Thomas Jefferson, the author of the Declaration, considered trial by jury to be “the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.” 🙂 James Madison, who drafted the Constitution, said, “Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” 🆒 Predatory subprime lenders, HMOs, and various other financial institutions said, “Civil rights? So what?” ☹ :eek: :rolleyes: :smack: 😕 ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [June 15, 2002, 12:04pm UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/2 "2002-06-15T12:04:33Z")
Theoretical objection: I don’t the the 7th Amendment was intended to address the right to enter into contract. It looks to me as if it says that if it comes to a civil trial, one is entitled to a jury. Practical objection: Lawsuits have reached a level where they are hurtings the economy and well-being of the people. E.g., it’s hard for some children to get vaccines because of them. Deterring tort reform efforts will result in a worse quality of life for Americans. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [June 15, 2002, 12:20pm UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/3 "2002-06-15T12:20:41Z")
Judging from runaway civil awards and the willingness to start a lawsuit at the drop of a hat (“your hat caused pain and suffering on my foot!”) tort reform should be a very high priority for the Americans. I’d have to see some examples of “Predatory subprime lenders, HMOs, and various other financial institutions” abusing the system as it stands before deciding the civil jury system has to be reinforced, as opposed to reformed. ---
**Author:** ![lucwarm](https://avatars.discourse-cdn.com/v4/letter/l/e19adc/32.png) [@lucwarm](https://boards.straightdope.com/u/lucwarm)\ **Post date:** [June 15, 2002, 12:32pm UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/4 "2002-06-15T12:32:00Z")
A great example of an abusive arbitration agreement was that used by Gateway Computers in the past. The agreement required arbitration before the International Chamber of Commerce. This meant that if you had a problem with your Gateway PC that you couldn’t resolve with Gateway, all you had to do was put up a non-refundable deposit of $2000-$4000, and, IIRC, arbitrate your claim in Paris!! Even AAA arbitration requires that you front something like $500. IMHO, the main problem with arbitration is not that you lose your right to a jury trial, but that you lose the right to take discovery and the right to bring a class action. In addition, the large filing fees discourage small claims. I realize that Gateway is not a financial institution, but I think it’s still a good example of an company that abuses arbitration agreements. Ok, now how about some cites for “runaway civil awards and the willingness to start a lawsuit at the drop of a hat (‘your hat caused pain and suffering on my foot!’)” ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [June 15, 2002, 1:19pm UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/5 "2002-06-15T13:19:17Z")
I think the woman who burned herself while holding a McDonald’s coffee cup on her lap in a moving car and collected a multi-million dollar settlement proves familiar enough. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [June 15, 2002, 2:08pm UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/6 "2002-06-15T14:08:19Z")
_sigh_ Here you go, **Bryan** : [Educate yourself.](http://boards.straightdope.com/sdmb/showthread.php?threadid=22459&highlight=liebeck) ---
**Author:** ![pldennison](https://avatars.discourse-cdn.com/v4/letter/p/9fc29f/32.png) [@pldennison](https://boards.straightdope.com/u/pldennison)\ **Post date:** [June 15, 2002, 2:36pm UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/7 "2002-06-15T14:36:03Z")
Gad, I think we should make that into a sticky. It certainly comes up enough. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [June 15, 2002, 3:39pm UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/8 "2002-06-15T15:39:23Z")
Granted, I pulled the hot coffee story out of the air as an example of the need for tort reform, but [this](http://www.atra.org/display/13) page lists nutty lawsuits by the dozen. Of course, the whole page is sponsored by a tort reform organization, so do with it what you will. It’s still more evidence in favour of civil jury reform than the OP provided. I’ll just quote from a 1996 [Congressional Study](http://www.house.gov/jec/tort/tort/tort.htm) on the subject: > [@](#): > > The economic consequences of such heavy tort costs are considerable. First, individuals suffer directly by having less disposable income than they would otherwise due to higher premiums for automobile and other forms of insurance. Second, individuals suffer indirectly when businesses, forced to pay higher premiums for product liability and other forms of insurance, raise their prices on goods and services. Third, when businesses have to charge higher prices, they do less business than they would otherwise, which in turn slows down job expansion and economic growth. Individuals bear the brunt of this economic slowdown in the form of lower wages and fewer jobs. Finally, increasing litigiousness discourages businesses and individuals from taking risks, which means that fewer new products are brought to market and new technologies are either delayed or forgone altogether. The system has grown in complexity and cost to the point where a citizen that wants a fair judgement can’t get one without significant cost, encouraging the demand for ridiculous claims as well as jacking up prices and insurance premiums, discouraging innovation. Sure, the 7th amendment should be amended. Raise the amount from $20 to $20,000 or so, to get smaller claims out the door in a hurry and save the court’s time for more complex litigation and reduce overall costs. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [June 15, 2002, 6:04pm UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/9 "2002-06-15T18:04:56Z")
About “willingness to start a lawsuit at the drop of a hat”: [Americans filed more civil lawsuits per capita in the early 1800s than they do today](http://slate.msn.com//?id=2064804&entry=2065157). ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [June 15, 2002, 7:23pm UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/10 "2002-06-15T19:23:57Z")
Which is not to say, of course, that **lucwarm’s** points about the coerciveness of certain arbitration agreements is not well-taken. He’s exactly right, especially insofar as it has little to do with the right to a jury trial. (There are a number of good reasons that the Seventh Amendment’s guarantee of a jury is not extended to civil litigants; I’ll be happy to get into it if someone wants.) And **Phil** : Word. ---
**Author:** ![lucwarm](https://avatars.discourse-cdn.com/v4/letter/l/e19adc/32.png) [@lucwarm](https://boards.straightdope.com/u/lucwarm)\ **Post date:** [June 15, 2002, 8:11pm UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/11 "2002-06-15T20:11:09Z")
> [@](#): > > \*Originally posted by Max Torque \* > \*\*About “willingness to start a lawsuit at the drop of a hat”: [Americans filed more civil lawsuits per capita in the early 1800s than they do today](http://slate.msn.com//?id=2064804&entry=2065157). \*\* Interesting article. It also argues that tort costs average $5 per $1000 in sales. If this is true, then it suggests that “runaway lawsuit verdicts” are far less of a problem than the proponents of tort reform would have believe. Especially when you consider that much of that $5 is legitimate compensation for legitimately injured persons. It’s also worth considering the reverse of the “runaway verdict” problem. For various reasons, many injured parties go totally uncompensated for wrongs against them by corporate america. For starters, juries (and judges) are only human and make mistakes in BOTH directions. Second, in many types of lawsuits, corporate defendants frequently conceal, alter, or falsify evidence, making it difficult for plaintiffs to succeed with meritorious claims. Third, many corporate defendants have the resources to litigate claims for years, putting tremendous pressure on plaintiffs to settle low and discouraging plaintiff’s lawyers from taking claims in the first place. Fourth, as suggested earlier in this thread, many corporations abuse arbitration agreements to discourage smaller claims and class actions. Honestly, I wouldn’t be surprised to learn that underpayments on legitimate claims is a greater problem, in total dollars, than excessive verdicts. ---
**Author:** ![RexDart](https://avatars.discourse-cdn.com/v4/letter/r/b77776/32.png) [@RexDart](https://boards.straightdope.com/u/RexDart)\ **Post date:** [June 15, 2002, 8:12pm UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/12 "2002-06-15T20:12:48Z")
First issue, 7th Amendment: The amendment says that the right to a jury trial shall be _preserved_. Note that it does not say “extended” or “granted”. This distinction is acknowledged universally in cases dealing with the 7th Amendment. If there was a right to a jury trial in the action when the Amendment was adopted, that right is preserved. So unless the action was one which allowed a jury at common law as of that date, the Amendment has no power to extend that right. It just prevents the Congress from making a law that would eliminate that right where it existed prior to the adoption of the Bill of Rights. Second issue, Arbitration agreements: Courts are VERY hesitant to use “unconscionability” to destroy a contract or provisions thereof. There have been challenges to arbitration clauses on those grounds, and they have failed. My Civil Procedure professor is one of the leading minds in the fight against these clauses, and she concedes that most of these clauses are not unconscionable. Carnival Cruise Lines was involved in one of the more widely known cases on choice of forum clauses, and their winning argument was that so many suits are brought against them and other corporate entities every year that it is more efficient for the courts to allow these clauses, and that it would be almost impossible for Carnival to send agents to the large number of courts across the country that might have personal jurisdiction over the company. So they consolidate all the cases against them into one jurisdiction in Florida, and purchasers of cruise line tickets were held to agree to this by buying the ticket with the clause printed on the back of the ticket. Forum selection clauses are not the same as arbitration clauses, but the reasoning used by the court indicates that they would be likely to extend that reasoning to arbitration. Third issue, Jury trials and Contracts: A contract dispute involves far more matters of law than matters of fact. Juries only determine matters of fact, they don’t decide what will be allowed or excluded under the parol evidence rule, they don’t apply the statute of frauds, and most haven’t even heard of the word “estoppel.” Often the judge, already making most of the important decisions, is the fact-finder as well. There was no right to demand a jury trial in all contract actions at common law, so the 7th Amendment provides no protection As a personal preference, though I disagree with _some_ arbitration clauses (specifically, those included in software EULAs, which are a matter for a whole thread on their own someday), I don’t think that an Amendment granting a right to jury trial in those cases would be appropriate. The best way to try a contract action is with a bench trial. The factual considerations are interwoven with the issues of law, and as such the judge is the best person to make those determinations. That being said, as these clauses become increasingly egregious (see **lucwarm** ’s example) public opinion will turn against them. I just hope we don’t do something so rash as alter the Constitution to put juries where they don’t belong. ---
**Author:** ![lucwarm](https://avatars.discourse-cdn.com/v4/letter/l/e19adc/32.png) [@lucwarm](https://boards.straightdope.com/u/lucwarm)\ **Post date:** [June 15, 2002, 8:20pm UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/13 "2002-06-15T20:20:07Z")
> [@](#): > > \*Originally posted by Bryan Ekers \* > \*\* > > Sure, the 7th amendment should be amended. Raise the amount from $20 to $20,000 or so, to get smaller claims out the door in a hurry and save the court’s time for more complex litigation and reduce overall costs. \*\* Honestly, I think that the vast majority of claims under U.S. $20,000 are not heard by juries. See, most small claims are brought at the state level; I believe that many (most?) states have special courts for smaller claims where ya don’t get a jury. As I recall from law school, the 7th Amendment is one of the few federal rights that hasn’t been applied to states. Anyone who is familiar with Constitutional Law or small claims procedure, please feel free to correct me!! ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [June 15, 2002, 10:30pm UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/14 "2002-06-15T22:30:36Z")
Really nice post, **RexDart**. ---
**Author:** ![Enderw24](https://avatars.discourse-cdn.com/v4/letter/e/ba9def/32.png) [@Enderw24](https://boards.straightdope.com/u/Enderw24)\ **Post date:** [June 16, 2002, 1:09am UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/15 "2002-06-16T01:09:03Z")
**lucwarm** , we studied a case similar to what you described in your first post but not exactly like it. Hill v Gateway 2000 (105 F.3d 1147) dealt with the question of whether an arbitration clause that’s “hard to see” in the contract or warranty is still enforceable. It is. The case made no mention of Paris, though. **Gadarene** , not to hijack this thread, but I don’t agree with the McD’s decision. Yes, they were serious injuries. Yes, she didn’t know how hot the coffee was. Nevertheless, she knew that the coffee was significantly above her body temperature and willingly took the lid off the cup, placing the cup between her legs. She knew that spilled coffee=pain yet she took no precautions to ensure that didn’t happen. OTOH, it was truly foolish of McDonald’s not to pay for her medical treatment. To the OP, I’m not trying to be flippant, I just don’t understand. **Philosophocles** , what is your point? ---
**Author:** ![Rhum\_Runner](https://avatars.discourse-cdn.com/v4/letter/r/2bfe46/32.png) [@Rhum\_Runner](https://boards.straightdope.com/u/Rhum_Runner)\ **Post date:** [June 16, 2002, 1:25am UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/16 "2002-06-16T01:25:47Z")
> [@](#): > > \*Originally posted by Philosophocles \* > \*\*Proposed amendment to the U.S. Constitution: > > “Whereas, the people of the United States recognize that the true intent of the Seventh Amendment has been thwarted by artful reasoning of unjust magistrates and that mandatory arbitration agreements are inherently unconscionable and signify the moral turpitude of those who insist upon such exploitative clauses, We the People of the United States, in defense of our civil rights and in the name of all that is good, just, and true, declare that prior to the existence of a live case or controversy, all contractual agreements to waive or limit the right to a civil jury trial shall be null and void.” > \*\* I don’t think you can say all mandatory arbitration agreements are bad. For example, many employment contracts contain arbitration clauses, as do many severance agreements. What is wrong with that? It seems a simple contract to me. Company says, here are our terms, one of which is a mandatory arbitration clause, take it or leave it. Person takes, or leaves as they wish. (I think there are some states that prohibit such clauses, CA I think for one) Second, I would object to your language about the “intent” of the 7th amendment. It is for the judiciary to decide what the 7th amendment means, not for another amendment to state what it means. The 7th amendment speaks for itself. So if you want to get rid of arbitration clauses, I think you should just say “No arbitration clause shall be enforceable.” What about a simple statute to require that more proper notice of such clauses be give? (Require that the type on tickets be of a larger font or something?) Fundamentally I am skeptical of any movement to restrict peoples’ rights to enter into contracts, no matter how inprudent those contracts might be, and I am esp. wary of enshrining such restrictions into the Constitution. ---
**Author:** ![RexDart](https://avatars.discourse-cdn.com/v4/letter/r/b77776/32.png) [@RexDart](https://boards.straightdope.com/u/RexDart)\ **Post date:** [June 16, 2002, 1:35am UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/17 "2002-06-16T01:35:39Z")
> [@](#): > > \*Originally posted by Enderw24 \* > \*\* > **Gadarene** , not to hijack this thread, but I don’t agree with the McD’s decision. Yes, they were serious injuries. Yes, she didn’t know how hot the coffee was. Nevertheless, she knew that the coffee was significantly above her body temperature and willingly took the lid off the cup, placing the cup between her legs. She knew that spilled coffee=pain yet she took no precautions to ensure that didn’t happen. > OTOH, it was truly foolish of McDonald’s not to pay for her medical treatment. > > \*\* Clearly the lady was contributorily negligent, and was surely at least 51% responsible through her negligence. In a contributory negligence jurisdiction, she would have gotten nothing. I can only surmise that the jurisdiction where this was tried was a pure comparative negligence jurisdiction (I can’t find my text with the list state-by-state.) In those jurisdictions, the ridiculous rule is that even if she caused something like 90% of the injury through her own negligence, the defendant would pay for 10% of the injury. I’m not sure what type of damages she asked for, but whatever she would have been awarded should have been reduced by her percentage of fault. Of course, sometimes juries are REALLY BAD at allocating a percentage of fault, especially when they know that the defendant is a rich, faceless corporation with deep pockets. They aren’t _supposed_ to consider the wealth of the parties in determining a value for judgment, but they do anyways. Hmmmm…as this discussion goes on I find myself increasingly in favor of eliminating juries as fact-finders in civil actions. They are necessary in criminal actions to prevent abuse of the populace by the government and its agents. I might support a proposition that eliminated juries in civil cases unless one of the parties was a government agency or other body. Jurors are supposed to limit themselves to finding facts, but they are clearly influenced by their opinions on how the law should be applied, an area in which their opinions are so ill-informed as to be considered irrelevant. If juries are to be kept part of the legal system in civil actions, I believe that tort reform must include a mandate to the states to enact uniform jury instructions (as some states already have) that limit jury findings to very clearly defined elements of fact. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [June 16, 2002, 1:44am UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/18 "2002-06-16T01:44:36Z")
> [@](#): > > - > > Sure, the 7th amendment should be amended. Raise the amount from $20 to $20,000 or so, to get smaller claims out the door in a hurry and save the court’s time for more complex litigation and reduce overall costs. \*\* They’ve done this, by statute. Diversity claims have to involve amounts greater than $75,000 to get into federal court. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [June 16, 2002, 2:01am UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/19 "2002-06-16T02:01:08Z")
Disregard my previous post, I misread your statement and thoughtyou were talking about Article III diversity jurisdiction for some reason (also with an original $20 limit). ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [June 16, 2002, 2:07am UTC](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151/20 "2002-06-16T02:07:23Z")
**Ender:** > [@](#): > > Nevertheless, she knew that the coffee was significantly above her body temperature and willingly took the lid off the cup, placing the cup between her legs. Not to quibble, but **Phil’s** post on the other thread indicates that she was _attempting_ to take the lid off, when it, being poorly designed, jerked off, causing the coffee to spill all over her lap. Which, as **Phil** says: > [@](#): > > could lead to a whole separate discussion on poor product design, as any container designed to hold hot or volatile liquids should not have a lid which causes said container to jerk when removed. [Next page](https://boards.straightdope.com/t/right-to-a-civil-jury-trial/114151.md?page=2)