In Defense of Trial Lawyers …. Or?

In politics, as in life, there are usually two sides to every story. And sometimes, it’s useful when looking at news or opinion pieces to try to figure out what is known as the subtweet on Twitter: making a comment about one thing that is actually directed at another.

With that in mind, take a look at this piece in the Huffington Post. On the surface, it’s a defense of the Seventh Amendment to the constitution–the one that guarantees a trial by jury in civil cases. It’s an important issue, since in modern life we often sign away that right in favor of binding arbitration. Good luck suing your bank or stockbroker, for instance.

But, buried inside the piece, there’s this:

A chief function of the jury system is to provide a check on official or arbitrary power. It was the colonists’ experience that the civil jury system could be vulnerable to political attacks by those in power. The framers could hardly have imagined that such attacks would still be a problem 223 years after the Amendment was ratified. Unfortunately, many lawmakers in recent times have allowed the civil jury system to be weakened or, in some cases, completely shattered.

Consider all the ways this has happened. Many states have enacted “caps on damages,” or limits on compensation to injured victims after they have won their case. The determination of damages is one of the jury’s most important functions. As the Georgia Supreme Court said in its 2010 decision striking down caps in that state, “the determination of damages rests ‘peculiarly within the province of the jury.'” Caps undermine a jury’s fundamental purpose. Even worse, they transfer the jury’s job to cash-greased politicians, who force courts to apply “one-size-fits-all” limits irrespective of the evidence that a jury sees.

Does that second paragraph ring a bell with you? Perhaps this will serve as a reminder. It’s a post I did almost a year ago about Richard Jackson, CEO of Jackson Healthcare, and his efforts to pass a bill known as the Patient Injury Act. In his effort to get the Patient Injury Act passed, Jackson accused trial lawyers of being greedy and opposing the legislation. The bill died a quiet death after the way it was being advocated for became known.

Will the Patient Injury Act be back for another round this session? Maybe. And maybe the HuffPo piece is a bit of a preemptive strike to oppose it and similar legislation that might be introduced in other states.

8 comments

  1. Max Power says:

    Save your breath, no one, especially no conservatives care about the 7th Amendment. Even if they did it hasn’t been incorporated to the states.

  2. mgump says:

    Max — not so fast. I’m a trial lawyer and a conservative. Politics aside, when explained properly, those who support “small government” are usually quick to support trial lawyers and jury trials once they realize the alternative is centralized decision making. The jury is “we the people” and anything less should be seen by conservatives as less liberty & big government.

    • Max Power says:

      mgump you’re right I should have qualified that statement to “Republican politicians” who complain about the deep pockets of the trial bar and then get boat loads of money from corporations and the AMA. There are plenty small c conservatives for whom the right to a trial by jury in both criminal and civil matters is one of the most cherished rights we have.

  3. saltycracker says:

    Favorite on the road Sirius CNBC legal ad today;

    “We can make your broker pay for your losses…call 1-800-xxxx”

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