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Victoria Pynchon

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The Right to Trial By Jury and Mediation as Its Alternative

There is no principle I hold more dear than the rule of law.  I've written before about some critics' contention that our own government has turned away from the rule of law here.  Some of those  critics go so far as to accuse our government of waging war on the rule of law -- calling its strategy "lawfare."

I've also written before about critcisms levelled against ADR practices as threats to the principle that all men, women, and institutions will be judged by the same gender-blind, color-blind, nationality-blind, disability-blind (etc.) rules of law

There are those who believe that mediation -- which is practiced without rules, best practices or even a common theoretical basis --  permits mediators -- who are primarily over-40 white men -- to unfairly pressure litigants to settle their lawsuits against their better judgment.  There are further charges that mediation re-injects favortism and prejudice back into a system that spent most of the latter half of the 20th century ridding itself of.  

I take these criticisms very very seriously, repeating throughout any mediation session my opening assertion that my role is to present the parties with choices and to faciliate a settlement if they believe it may be better alternative to continued litigation, not to hustle them away from their right to a jury trial.  

I would be far more successful in being "neutral" about proceeding to a jury trial if there were an easier, less costly, and speedier way to bring a dispute before a jury.  We have, lamentably, permitted our cherished rule of law to become so procedurally encrusted that it sometimes seems like no option at all -- at least not an option available to all but the wealthy or those represented by lawyers willing to accept a contingent fee.

All of this troubles me.  I invite comment at the same time that I provide the thoughts of some of our greatest statesmen and jurists about the right to trial by jury.      

George Washington

"There was not a member of the Constitutional Convention who had the least objection to what is contended for by the advocates for a Bill of Rights and trial by jury." (1788)

John Adams 

"Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds." (1774)

Thomas Jefferson 

"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." (1788)

"Trial by jury is part of that bright constellation which has gone before us and guided our steps through an age of revolution and reformation." (1801)

"The wisdom of our sages and the blood of our heroes has been devoted to the attainment of trial by jury. It should be the creed of our political faith." (1801)

James Madison 
"Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature." (1789)

John Quincy Adams 

"The struggle for American independence was for chartered rights, for English liberties, for trial by jury, habeas corpus and Magna Carta." (1839)

Patrick Henry of Virginia [Patriot who said "Give me liberty or give me death!"]
"Trial by jury is the best appendage of freedom by which our ancestors have secured their lives and property. I hope we shall never be induced to part with that excellent mode of trial." (1788)

Alexander Hamilton 

"The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government." (1788)

Daniel Webster

"The protection of life and property, habeas corpus, trial by jury, the right of an open trial, these are principles of public liberty existing in the best form in the republican institutions of this country." (1848)

Judge Stephen Reinhardt 

"Our constitutional right to trial by jury does not turn on the political mood of the moment, the outcome of cost/benefit analyses or the results of economic or fiscal calculations. There is no price tag on the continued existence of the civil jury system, or any other constitutionally-provided right." (1986)

David Hume 

"Trial by jury is the best institution calculated for the preservation of liberty and the administration of justice that was ever devised by the wit of man." (1762)

Judge William Bryant [First African-American federal district court judge in D.C]

"If it weren't for lawyers, I'd still be three-fifths of a man." (2004)

Justice William O. Douglas

"The Massachusetts Body of Liberties was a new Magna Carta. It contained many of the seeds of the civil liberties which today distinguish us from the totalitarian systems, including the right to trial by jury." (1954)

Justice Hugo Black

"Our duty to preserve the Seventh Amendment is a matter of high Constitutional importance. The founders of our country thought that trial by civil jury was an essential bulwark of civil liberty and it must be scrupulously safeguarded." (1939, 1943)

Justice Ward Hunt

"Twelve jurors know more of the common affairs of life than does one man, and they can draw wiser and safer conclusions than a single judge." (1873)

Quotations excerpted from In Defense of Trial by Jury: Vols. I and II by the American Jury Trial Foundation (1993) and copied verbatim and in their entirety from the web site of the American Association of Justice (i.e., the American Trial Lawyers Association).

Comments (7)

Read through and enter the discussion by using the form at the end
Michael Webster - June 19, 2008 10:54 PM

Vickie, none of the critics you have pointed to actually litigate.

Litigation can be a rough game, with little regard to substantive fairness or justice.

If the parties are offered a way out of our civil system which meets their needs, who are are to push them back into the civil system?

Vickie - June 20, 2008 12:22 AM


The point is not to "push" the parties either way. I recall judicial strong arm tactics at mandatory settlement conferences early in my practice. Those strong arm tactics are still in use by mediators today, undercutting the principle of self-determination that is at the heart of sound mediation practice. That is, at any rate, the principle that guides my own practice and that I would hope mediation "best practices" would include and encourage.

Litigation is VERY rough & I take your point about academics opining without real world experience.

Thanks, as always, for dropping by to add your thoughts!

Renee - June 30, 2008 6:27 PM

Throughout history, people have sacrificed their freedom and their lives for their children. However, if one's freedom is at risk, one is entitled to an attorney and a jury trial; but if one's children are at risk, one is entitled to neither.

Your thoughts?

Vickie - June 30, 2008 7:39 PM


Renee - June 30, 2008 7:55 PM


If I understand correctly, in matters of "common law" (where one is seeking money as remedy), one is entitled to a jury trial; and in matters of "equity" (where one is seeking fairness as remedy), one is not entitled to a jury trial.




Thank you so much.

Vickie - June 30, 2008 8:23 PM

Frankly, not being a family law attorney, I don't know the rules on jury trials in family law matters.

As to the remainder of your questions, take a look at the American Judicature Society:http://www.ajs.org/jc/juries/jc_right_overview.asp. The following is from that site:

"In civil cases in federal court, the right to a jury trial is governed by the Seventh Amendment:

"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 to a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the Common Law.

". . . . . as of the time of the Amendment’s adoption in 1791 there were several kinds of cases that were not “Suits at Common Law,” like suits in equity or admiralty; those suits were not entitled to jury trials in 1791, and still are not.

"But subsequently many kinds of suits have come into being that did not exist at all in 1791, and the law/equity distinction was abolished in 1938.

"In this drastically changed legal landscape, it is sometimes difficult to decide what jury trial rights “shall be preserved” under the Seventh Amendment.

"One rule of thumb is that if the suit seeks money damages—the traditional remedy under the common law—there is almost surely a right to a jury trial, while if the suit seeks only equitable relief—like an injunction—there almost surely is no right to a jury trial.

"In civil cases in state court, the right to a jury trial is governed by the state’s constitution and statutes. The Supreme Court has repeatedly held that the Seventh Amendment right to a jury trial applies only to federal courts, not to state courts.

"As a practical matter, though, most states make jury trials widely available for many kinds of civil cases above the level of small claims court.

"The governing law for criminal cases in both federal and state courts is the Sixth Amendment, which provides in part:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .

Renee - June 30, 2008 9:56 PM

My final questions.

1. If I understand correctly, per the US Constitution, the right to a jury trial is afforded in all criminal cases per the Sixth Amendment and in federal civil cases per the Seventh Amendment, and that the right to a jury trial in a state civil case is dependent upon the state. Please confirm.

2. Juries provide protection. How can it be justified that one is entitled to a jury trial for matters of money but not child custody, the latter obviously being of far more importance? Did child custody cases exist in 1791?

3. Are child custody cases matters of "common law" or "equity?"

I sincerely thank you for your time and consideration.


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