Without a doubt, the hot-button issues for this election are the economy and jobs followed strongly by the healthcare/medicare/medicaid/social security debate and maybe taxes. For some, social policy and entitlements weigh heavily on their election decisions. For others, foreign policy, war-mongering, military strength and national security will carry the day. A less touted, but strongly republican sentiment rallies behind states rights (which to those of us in the deep South still gives us nightmares) and many might possibly fight their grandmas if the government starts talking about taking away their guns. But for all these issues, one remains in complete and total danger with a Romney election. And the discourse on it is deafeningly silent. It isn't the kind of dinner table issue that keeps middle class Americans up at night, but it is hugely important. After all, it's a constitutional right. You have it now, but 4 years from now, you either might not have it, or you will be effectively foreclosed from seeking redress within it. What is this issue you may ask? Keep on reading...
The right I am referring to is your right to a trial by jury. Your 7th amendment right to be exact. Here's what it says:
Amendment VIIThe right of trial by jury shall be preserved....Now, before you stop reading and say, "I thought D W was going to talk about something important", please resist the urge. This is extremely important. It is not an issue that affects everyone on an everyday basis and I totally get that. But in the midst of the pressure to effectively deal with our crisis issues (and there are plenty of pressures and crises to go around), candidates in this election are able to skate by issues like this one due to its seeming insignificance, but have views or records that signify that this constitutional right could be cut right out from under you. And only after its cut out from under you, and you find yourself in the position of needing it, will it become something that you will ask yourself why you didn't care about it in the first place. And then you will be upset with yourself because you didn't.
In Suits at common law, where the value in controversy shall exceed twenty dollars, 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.
So let's dig into how far this rabbit hole really goes. How many of you remember the story about the woman who burned herself with too hot McDonald's coffee? That happened back in 1992. I was still in high school but I remember it very clearly. I still remember what they said about her - that she was money-hungry, that coffee couldn't possibly burn anyone that bad, that it was her fault that it happened, that the lawyers who filed her case were vile, corrupt, greedy, and unethical, and that her lawsuit was "frivolous". Some credited this case with being the poster-child of legal frivolity and the digs never stopped coming. Conservative judges in the south started to add this line to their campaigns - "I will crack down on frivolous lawsuits!" Trial lawyers who had done a lot of good really started to feel the weight of public distrust. John Edwards, before his fall from glory, had the stink of trial lawyerism to contend with during his presidential runs. The traction on this issue continued to build and build and for some, even the words "trial lawyer" leave a nasty taste in their mouths. It led to a trend of meritorious cases being kicked out of court by judges who had overstepped their authority. It has led to more money being funneled into judicial campaigns. And it is leaving many people with cognizable claims without a judicial remedy.
The flipside to all this of course, is that in the framing of our US Constitution, our forefathers intended by and large for the newly constructed US Court system to protect the rights delinated within it. And it was clear that this protection was needed from other influential powers, including state governments and courts. The First Chief Justice of the United States Supreme Court, John Jay, said this:
[N]othing but a strong government of laws irresistibly bearing down [upon] arbitraryIn today's capitalistic and free market society, power comes in the form of Wall St. and all its buddies, including big pharma and big insurance. No one can dispute the power and influence these folks have on our government. When we hear talk of "special interest groups", these are the kinds of entities that comprise them. If the big corporation had existed in John Jay's time, I like to imagine he would have had to include this third enemy to the mix. But what this enemy has that the others don't is unlimited piles of money. They say money can't buy love, but we know it can buy elections, including the elections of judges around this country who decide what justice is. And before you say, "Wait, isn't that what juries are for?", let me say you are absolutely right about that, but you have to actually get to the jury first.
power and licentiousness can defend [liberty] against those two formidable enemies.
There are efforts in this country to prevent your access to a court of law. Whatever the taste in your mouth is about lawsuits, many of us can agree on the principle that he who does one harm must bear the responsibility for that harm. Take this example - suppose we've time traveled back to the 1980s. You own a farm and you are out working the land on your tractor. All of a sudden, the tractor hits an uneven patch of ground sending the tractor tumbling over and you get pinned underneath. You are too far away from anyone to hear you screaming for help, and no one is expecting you back at the house for hours, because it takes a long time to work the land for the day. While you are pinned underneath that tractor, fire ants have a little picnic on your flesh. You're there so long you die from all the ant bites. Now imagine that back then, the company knew that their tractor had the propensity to roll over. Imagine that they looked into adding a roll bar to every tractor, but that after being told that adding them to every tractor wouldn't be cost effective, they scrapped the research and instead decided how much they would have to self-insure with to pay off the people who would ultimately be harmed by the rollover (apparently, that was cheaper). In short, they did a cost benefit analysis on people's lives and the people lost.
This story is not a hypothetical - it actually happened. The family sued and was offered a ton of money (several million dollars) if they would settle quietly and not go to the press. It didn't take a second for them to turn it down. Because of this family's courage, this tractor company now touts itself as a leader in safety and you and your family don't have to worry about rolling over to your death while working your land. When it gets right down to it, lawsuits really do matter. In the end, they protect us all. It was a prime example of what Atticus Finch told us all in To Kill A Mockingbird:
Now, gentlemen, in this country our courts are the great levelers. In our courts, all men are created equal.Since according to Mitt Romney, corporations are people too, the courts allow real people to get on the same level as corporation people. Behind the courthouse doors, money and influence shouldn't matter - only the facts of the case should. But suppose the tractor case never made it to court? Suppose the judge in that case decided that a jury would never hear the evidence and decided to grant summary judgment to the defendants? Suppose the laws prevent your right to bring a certain kind of lawsuit? Suppose the law in the state said that injury damages must be capped at some arbitary figure that doesn't even begin to compensate for the amount of economic and noneconomic loss that was incurred? Things like this are happening every day, to people just like you and me. There is a bill that has passed the House of Representives called the Protecting Access to Healthcare Act (otherwise known as H.R. 5 or the Medical Malpractice Liability Bill). I went to Washington D.C. last March along with some other legal colleagues to lobby congressmen to defeat this bill. What this bill does (among other things) is cap non-economic damages to $250,000, overrides state laws which declare damages caps unconstitutional, and shields healthcare providers who have committed intentional harms. Why is this bad? Well consider the following:
1. Suppose you are severely injured by a product, pharmaceutical drug or medical device. You are unemployed, disabled, elderly, or not otherwise bringing in an income for whatever reason. The damages related to your economic losses would be zero - no lost past wages if you weren't earning them to begin with, or no lost future wages if you have no future earning income potential.
2. If you have no economic losses, that only leaves non-economic damages - pain and suffering, emotional distress, disfigurement, loss of enjoyment of life, etc. Some people don't like these kinds of damages because they can be hard to quantify, but ask yourself what the value is of losing a limb and never being able to pick up your child again, or never being able to make love to your spouse again, or living in pain so chronic even the best of pain medications don't begin to help? Under this bill, your non-economic damages would be capped at $250,000. So if you have no economic damages to help supplement what your medical costs are, this $250,000 will be eaten by those costs. What do you have left at the end of the day to pay for any extra care, medical equipment, rehabilitation, or whatever you may need? Potentially nothing...
3. Federal caps on damages would trump state law on the matter. Many states have decided (and rightfully so) that placing caps on damages is unconstitutional. For all those state's rights lovers (a lot of whom are republican) this bill should be perceived as the ultimate in federal overreaching and another unnecessary expansion of government power.
4. Under the malpractice portion, it doesn't recognize malpractice for intentional torts. Remember hearing the stories about the doctors who have molested and/or raped female patients while under anesthesia? That's about as intentional as it gets, but may not be actionable as a civil claim. So you can send that pervert to jail, but you can't punish him civilly for what he has done.
The day I was in D.C. lobbying against this bill, the house was voting on it. It passed. And Paul Ryan, the GOP vice-presidential candidate, voted for it. This bill is wildly popular with the republicans in the house, and the only thing that is keeping it from becoming law is that it will never pass the democratically controlled senate. But if Romney somehow eeks out a win and if we lose our senate control???? I shudder to think...
I also shudder to think what a Romney win would do to our Supreme Court. We are only ONE conservative justice away from a conservative majority. ONLY ONE. The next president might get the opportunity in the next four years to add that one. We managed to get Citizens United and some other pretty funky decisions from the court as it stands now. If conservatives get that majority in the next 4 years, we need to be very very afraid.
In this election, there are so many important issues to think about. The issues that affect our daily lives will matter to us most in this election. Because guaranteed access to the court system for all affects my livelihood, this issue is a dinner table conversation for me. My ability to ensure that my clients get their day in court affects my ability to put food on my own table so I'm tuned into this more than most. And I would love it if somewhere between now and election day, someone would ask the candidates where they stand on preserving our right to a trial by jury, whether money injected into judicial campaigns infringes upon judges' ability to be impartial, and whether juries are still the great deciders of what constitutes a person's damages, not lawmakers. But something tells me that where Mitt Romney is concerned, I already know the answer.