I think that, in light of my career choice, the appropriate first entry on my legal blog should address the importance of the right to trial by jury. Thomas Jefferson, himself a lawyer, said: “I consider trial by jury as the only anchor ever yet imagined by man by which a government can be held to the principles of its Constitution.” The Right to Trial by Jury is guaranteed in the 7th Amendment, where it states: “the right of 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 rules of the common law.” In my state, there are also two guarantees in the Texas Constitution. Those are found thusly:
Article I, section 15 is a part of our Bill of Rights.. It provides in pertinent part:
The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.
Article V of the Texas Constitution governs the judiciary. See TEX. CONST. art. V. Section 10 provides:
In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; but no jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature.
I like to speak my mind, so of course I value the First Amendment; and I own hundreds if not thousands of guns, so, I also hold dear the Second Amendment. But the one “right” I treasure most in the Bill of Rights is the right to trial by jury. I must admit I have made good use of it. I have represented School Districts, Counties, Cities, the Port of Galveston, The State of Louisiana, The State of Veracruz in Mexico, and even the Autonamous Basque State in Spain. I have represented the homeless, farm workers, refinery workers, offshore workers, as well as famous rappers, renowned horse trainer Bob Baffert, singer/songwriter Jimmy Buffet, and even our former Governor and current Secretary of the Energy Rick Perry.
Early in my career, I tried fourteen cases to verdict in very short time span. Those cases, on average, lasted four days each. Fortunately, I won each of them, with verdicts ranging from $650k to about $1 million. In 2015, I tried seven cases to verdict. Those cases lasted, on average, three weeks each. Those verdicts ranged from $11 million to $159 million. I have tried cases against some largest corporations in the U.S. (Remember, our US supreme court says corporations are, to a large extent, persons. Of course, we all know corporations are born in a lawyer’s office, only exist on paper, have no soul and can never die.)
When you sue a large corporation, despite its wealth and power, and its ability to employ dozens of attorneys in its defense, the corporation’s responsibility and culpability ultimately rests in the hands of twelve “ordinary” citizens. Robert Frost once said, “A jury consists of twelve persons chosen to decide who has the better lawyer.” There may some truth to that statement, but I believe that most times, despite failings by individual jurors, the jury as a group almost always gets it right. But, why is the jury trial important?
We know the jury trial is a constitutional right. And, we know that it serves as a part of the checks and balances as part of the judicial branch. We also know that jury trials are unique to our country.
I believe jury trials and the process educate citizens about the justice system. I believe jury trials provide a peaceful mechanism for dispute resolution. And I believe jury trials give the people a voice in disputes in their communities involving their citizens. Jury trials allow citizens to participate in their government. In voir dire, the process whereby I get to explore the thoughts and feelings of potential jurors, I always say that second only to military service, it is the best way to serve your state and community. I strongly believe that to be true.
In civics class we were taught that jury trials prevent tyranny, certainly when the jury is given the absolute power to have the last word. The last word?
Everyone knows about the trend towards arbitration that has occurred in the US over the last 20 years. And, I think it clear now that there is an even more unfortunate trend in this state, where the judge’s role, and the appellate court’s role, have become much more important than that of the jury. A few statistics from the state of Texas back me up:
Of the 12 direct appeal death penalty cases filed at the court of criminal appeals in 2014, 10 were affirmed; meaning, the court affirmed the verdict of death to the accused. Now, contrast that statistic with the following:
The statewide reversal rate in civil cases in Texas is 36%. In fact, at least one appeals court in Texas has a reversal rate of 50%. Think about that. Our courts overturn civil verdicts much more frequently than they overturn a judgment of DEATH to the accused.
For personal injury and consumer cases, when a plaintiff wins and gets a judgment, the state wide reversal is almost 50%. “Insufficiency of the evidence” is often the reason given. But, is that really the reason?I ask that only because, when a defendant wins, the reversal rate is barely 20%. Seem fair to you?
These stats, taken from several years back—because it isn’t studied near enough–have been mostly consistent over the last ten years, even in the wake of tort reform where fewer cases are being filed, fewer cases make it to trial, and plaintiff lawyers are being more selective about their cases.
The Texas Constitution states that the right to trial by jury shall be “inviolate.” What does that mean? According to the dictionary, “inviolate” means “safe from injury or violation.”
It’s interesting to me that we lawyers lament the fact that more persons don’t show up for jury duty; or that people are always trying to avoid jury duty. One of the first questions I always ask when I am choosing a jury is “who wants to serve on the jury?” If the potential jurors knew these stats I’ve set forth above, why would they ever want to serve? The worse thing for a democracy is apathy or outright distrust/mistrust of our government and its institutions. When a jury does its duty, decides in favor of an injured plaintiff, but more than half the time an appellate court wipes out that decision, why would anyone have faith in such a system? What a colossal waste of time for all involved!!!
Worse yet, what do you tell a victim who wants his day in court? Even if an injured victim or cheated consumer overcomes the various dispositive motions that are always filed by well-funded corporations or insurance companies, and after prevailing with the jury, there is a fifty percent chance more than two years from the verdict being entered that the plaintiff will still lose and have to do it again—or worse, the appellate court will snuff out the case altogether. That doesn’t sound like a system that upholds the right to trial by jury. It’s an unfortunate fact in our state that judges have to spend a large part of their four year terms raising money and looking for votes. I have always said actions speak louder than words. The next time a judicial candidate asks for your donation and vote, and tells you that they hold the right to trial by jury dear, you should ask yourself—do they really? Because the statistics don’t bear that out, at all. As the Titanic sank, violinist Wallace Hartley, continued to play. Hartley was a good Methodist, and as the ship went down his song of choice was “Nearer, My God, to Thee” I worry deeply about the right to trial by jury, we all should. I think we are losing this very important right. Our ship is going down. I am going to keep singing this song and banging this drum—even as the ship sinks.
By the way: the picture is the verdict form from a case I won back in 2009. The case was brought on behalf of ten workers who were exposed to toxic substances at a BP plant in Texas City, Texas. The total verdict exceeded $100 million. Want to guess what the appellate court did?