Attorney Marion Munley’s Article on the Vanishing Jury Trial in The Scranton Times

As seen in The Scranton Times. America’s long and proud history has been shaped by lawyers and judges who made lasting contributions to the preservation of individual liberties guaranteed by the Constitution. To the Founders, the right to jury trial, secured by the Seventh Amendment, was on par with the right to vote and the right to free speech. In the initial draft of the Declaration of Independence, Thomas Jefferson’s litany of abuses by the king included, prominently, “depriving us of the benefits of trial by jury.”

Jefferson considered “trial by jury as the only anchor ever yet imagined by man that holds the government to the principles of its Constitution.” Jurors are true public servants who commit their time, critical thinking and impartiality to their fellow Americans. Jurors serve as checks and balances on our judicial system, and a jury trial is a fundamental right critical to our democracy.

Unfortunately, this fundamental and historic right is under attack from those who would prefer a less democratic and equitable system of justice.

A number of studies over the last 10 years have remarked on the “vanishing civil jury trial,” detailing the decline of jury trials in state and federal courts over the last 50 years.

Today’s jury system is under attack from organizations, think tanks, and others who want to privatize our court system, and who describe the system itself as the problem. Many commentators charge that juries frequently reach irresponsible verdicts on both liability and damages, or cases are too complex to be heard by ordinary citizens. These complaints ignore the fact that most jury verdicts are reasonable on the facts of the case, and that appeals are available for cases where juries clearly get it wrong. Those advocating the demise of the jury system argue litigants are best served by bringing their disputes to mediation or binding arbitration in place of jury trial.

In mediation cases, lawyers for both sides agree to go before a neutral party in an effort to settle their dispute before trial. Arbitration, by contrast, is often compulsory, a requirement in contracts covering a variety of consumer transactions, from credit cards to insurance, as well as employment agreements.

Consumers are often unaware that they have signed away their right to go to court, but such agreements are usually enforced.

Mediation and arbitration decide cases without the input of either a judge or jury. These methods privatize our system of justice and undermine the role of juries, placing outcomes in the hands of people who do not need to be transparent. Cases terminate in a private, closed-door setting. In mediations and other “alternative” settings, the voice of the people, in the form of a jury, is never heard.

While mediation and arbitration are certainly useful and have a place in the legal system, many advocates of these methods push them for the purpose of undermining the jury trial. These private court systems lack transparency, can ignore precedent, and operate in secrecy. The opinions of the mediator, a person who may have his or her own agenda, are pivotal.

The decline of jury trials has undermined the practice of law, leaving both lawyers and judges unprepared to handle cases that actually go to trial. The number of lawyers between 1973 and 2013 has quadrupled, but the number of trials has shrunk. Not enough attorneys are taking cases to trial. Young lawyers are often encouraged not to try cases, but instead to settle or mediate them.

Lawyers are told that a jury won’t understand complicated legal issues, that the cost involved in taking the case is too high, that it will take too long to get before a jury, and that mediation provides the fastest and most efficient solution. Lawyers, who have an obligation to improve the profession, should be concerned about these disappearing skills.

The disappearance of jury trials and a transition towards private litigation threatens to make the administration of justice in America a series of back-room deals instead of an act of citizenship. Lawyers, who as guardians of the administration of justice are charged with promoting equality of access to the courts, cannot acquiesce to this change.

As former U.S. District Court Judge William Dwyer has said: “The jury trial is the canary in the mineshaft of our democracy. If it goes, our people lose their inherited right to do justice in the courts and other democratic institutions will lose breath too.” Civil trials, like democracy, should be conducted in public.