Harrumph! Harrumph! Harrumph!
“We’ve got to protect our phony-baloney jobs, gentlemen! We must do something about this immediately! Immediately! Immediately! Harrumph! Harrumph! Harrumph!”
I sat in a room full of accomplished lawyers recently and listened to a distinguished speaker (the man has a resume the size of a Buick) lament “The Vanishing Jury Trial.” He gave many statistics about the demise of the jury trial and the threat this posed to our way of life. He did not just mean our “phony-baloney jobs,” as memorialized in Mel Brooks’ unforgettable turn as Governor William J. LePetomane in “Blazing Saddles.” He meant the underlying truth that we face the decline and fall of one freedom unique to Americans – the right to be judged by a jury of our peers, rather than autocratic judges imposing an arbitrary set of rules, or worse, government bureaucrats.
This was the second meeting of this group I have attended recently. The last one featured a discussion by another distinguished who also bemoaned the fact that fewer and fewer disputes are being aired out in our courts. All the big firm lawyers are talking about this. At least they are now.
What infuriates me is how late these lawyers have come to the defense of tort law, and how much their work contributed to its increasing irrelevance in the lives of ordinary people. Over the past 20 years, it has become increasingly difficult and expensive to try a lawsuit. Smart defense lawyers figured out myriad ways to block the pathway to judgment in favor of victims with legitimate claims, and to take that judgment away on appeal. Discovery (pre-trial procedures designed to allow the parties to learn about their opponents’ claims and defenses) has become a behemoth that takes months or years, costs thousands (sometimes millions) of dollars, and provides a series of procedural traps for the lawyer trying to represent a client.
These same lawyers sat on their hands as anti-jury-trial judges and appellate court justices were elected, and as an increasingly hostile legislature passed “reform” after “reform” designed to gut our jury system.
And now that the horse is out of the barn, these guys are sitting around wondering how to close the barn door. The “harrumphs” were echoed throughout the room. I fully expected the speaker to point at me (I was too appalled to “harrumph”) and say, “I didn’t get a ‘harrumph’ outta that guy!”
A few of us in the room raised our hands with the hope of pointing out the fact that the plight of lawyers who represent giant corporations that have grown tired of bloated legal spending had everything to do with the problem but nothing to do with the solution. One of my brethren (another plaintiff lawyer) was called on, and he excoriated those in the room (most of whom were defense lawyers) for failing to understand that restoring the ability of the average person to bring a case to court was the key to saving our jury system.
The “great silent majority” goes along with tort reform because they see the courthouse as a place where the rich go to protect their riches or get richer. After spending too much time explaining to people with legitimate yet moderate-sized (from a damages perspective) medical malpractice or product liability claims that the laws make it too difficult or expensive to prosecute their cases, I understand why these people “opt out” of the jury system. They avoid jury service like the plague, and do not care when legislators and judges take away their right to sue in court.
The only solution offered by the distinguished speaker was to find a “spokesperson” for the right of trial by jury. That person should be a non-lawyer, he suggested. The crowd, at least those of us not choking on our dismay, thought it to be an excellent idea. One lawyer suggested that things would change when one of the tort-reformers suffered a personal loss due to negligence. Someone even brought up the “pendulum,” that mythical political force that swings back and forth, which would hopefully move back toward increased access to the courts.
I am sorry, but these lawyers are delusional if they think we can hire someone to speak out for the jury system, await a conversion by anyone in the anti-jury crowd or expect a pendulum to swing back, and that any of these will undo all the damage done to our tort law.
Until we elect legislators and judges – particularly justices of the Supreme Court of Texas – who believe in the jury system and the right of regular people with everyday concerns to have their day in court, we will continue to see our way of life threatened. Our Founding Fathers included a right to a trial by jury in the Bill of Rights for a reason. As Thomas Jefferson explained, “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.”
That is something to “harrumph” about.