The 7th Amendment: A Gift from our Nation’s Founders

By Benjamin S. Wagner, President of the Wisconsin Association for Justice

Last December marked the 225th anniversary of the Bill of Rights. The first ten amendments, added to our Constitution to protect individual rights and liberties, were ratified on December 15, 1791.

Among the provisions included in the Bill of Rights is the right to a civil jury trial afforded by the 7th Amendment. The key promise of the 7th Amendment is that “the right of trial by jury shall be preserved.”  We must heed these wise words today.

The 7th Amendment guarantee of the right to a civil jury trial is mirrored, and indeed expanded by Wisconsin’s Constitution, article I, § 5. A similar guarantee is found in most other state constitutions. Though once widespread throughout the world, the United States is one of the few nations that continues to protect the civil jury trial as a legal right available to citizens. We should be proud of the role the civil jury plays in resolving disputes democratically, with as little government as possible.

Despite the exaltation of the civil jury trial throughout our foundational governing documents, the 7th Amendment is one with which few lawyers, and even fewer citizens, have direct experience. Moreover, its preservation is rarely subject to extended political debate.

Today, less than one percent of civil cases are resolved by jury trial. This trend is not new. There are many reasons why the jury trial is increasingly rare. It is also unlikely that this trend will reverse. Regardless of these trends, the civil jury trial was enacted for important reasons which continue to the present day. We should be proud of the fact that this option endures more than two centuries after it was established in the United States.

The rarity with which 7th Amendment rights are invoked, however, does not diminish its role in shaping our justice system, improving the skills and knowledge of lawyers; and forever refining our democratic experiment. We must continue fighting to ensure that the civil jury trial remains in the arsenal of our democratic institutions.

The right to a civil jury trial is firmly rooted in the vision of our state and our nation’s founders. The 7th Amendment emerged from the demands of small government advocates who, even at the founding of our country, were weary of granting the government be it legislators, bureaucrats or judges; too much power.

The 7th Amendment was included in the Bill of Rights to ensure local voices would have a role in shaping the laws that governed their lives. Pre-revolution, colonists were obligated to follow British laws, which they had no voice in making. Colonists, however, could serve on juries. The ability to serve on a jury provided a powerful platform from which early Americans established their voice in governance. From this experience, it should be no surprise that the civil jury trial was among the rights that a powerful faction insisted be added to the Constitution. Scholars believe that James Madison drafted the 7th Amendment at the behest of a group that many feared would demand a second Constitutional Convention had it not been included.

The civil jury trial continues to be valuable today. At a time when our state and our nation is divided over the size and scope of government, few can dispute that effective, efficient local action is an ideal way to settle disputes. The jury trial is unique and nonpartisan that does its job without getting caught up in partisan or ideological divides.  Through a trial, the community settles disputes in a way that reflects common values while also being thorough, open, and which requires minimal government support.

Trials give citizens a voice long after a verdict is reached. Civil jury trials gather important facts, examine important and often ambiguous questions of law and fact. Establish important guideposts about conduct between citizens and how to resolve disputes. Every case tried allows for the resolution of countless others more efficiently and at lower cost, most often without need for trial. The jury’s voice speaks as loudly in these settlements as it does through its verdicts.

The civil jury trial improves our civil justice system and educate citizens and lawyers alike. As lawyers, we learn from every jury trial; making us better advocates for our existing and future clients.  This is true for lawyers on each side of a case. The winner of a case often celebrates the result as justice being delivered. A case lost may be cause for frustration, but it is also an occasion for examination and improvement. Both sides benefit from the community’s role in reaching the outcome.

Jurors often find the experience similarly fulfilling. Citizens who serve on juries often enter the process irritated and inconvenienced, but conclude their service enlightened and fulfilled. Jurors are often grateful for their opportunity to serve. The drafters of the Bill of Rights would have been pleased to see this outcome.

The 7th amendment is among the most powerful tools available to citizens and lawyers alike and yet it is often ignored.  It is a pillar of our democracy. We must protect this vital Constitutional right and not allow it to atrophy.   Lawyers, Judges, and citizens all benefit from trial experience. And—importantly—our democracy is strengthened with every case tried to a verdict.


Wagner, WAJ President and a shareholder at Habush Habush & Rottier, is certified as a Trial Specialist by the National Board of Trial Advocacy. In 2016, he was named to the “40 Under 40” list by Milwaukee Business Journal and as a “Leader in the Law,” by the Wisconsin Law Journal.

Wagner’s practice focuses on plaintiff’s tort law. The father of two is active in the community and serves on the boards of Discovery World, Jewish Family Services, Sojourner Family Peace Center, Safe & Sound Inc., a non-profit organization committed to reducing violent crime in Milwaukee, and the Medical College of Wisconsin Neuroscience Center Advisory Board.

 

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