We know some Constitutional rights by heart. Almost every citizen can recite exactly what right is protected by the Second amendment. Beyond that, it becomes a little more murky. Most Americans also understand that they have a right to a trial by jury when charged in a criminal matter, but fewer people realize that the United States Constitution also grants citizens a right to a jury trial in a civil case – a case in which one party alleges that they have been wronged in some non-criminal way by another citizen or by a company. However, we increasingly sign away this Constitutional right multiple times every year — oftentimes without even realizing we’ve done so.
The right to a jury trial in civil cases was brought up twice during the Constitutional Convention but ultimately left out of the original text. Civil juries played an essential role in colonial societies, and the missing provision gave some states pause when deciding to ratify the Constitution. Fortunately, the Bill of Rights’ Seventh Amendment later established this freedom.
But the right has been jeopardized in modern times. Arbitration was introduced to federal courts in 1925 to resolve business disputes more efficiently. By the 1980s, however, many companies began forcing consumers into arbitration agreements, a practice condoned by the Supreme Court in 2011. The approach places businesses and citizens on unequal footing.
Arbitration is a process in which both the judge and the jury in a civil proceeding is replaced by a single or a small panel of private lawyers. Arbitration can be effective in certain situations, but it comes with many downfalls for the individual or small business owner. Unlike a trial which is open to the public and captured permanently by a stenographer, arbitration is private and happens behind closed doors. This can result in some truly reprehensible conduct being shielded from public view. Arbitrators who regularly work for the same business are not always objective and aren’t required to follow legal precedent. In addition, most arbitration agreements severely restrict the ability of the party who is forced into arbitration to have meaningful choice in choosing the arbitrator who will serve as both the judge and the jury.
Whether or not you know it, you’re probably subject to many arbitration agreements. You don’t necessarily need to sign something to give up your right to a jury trial. Forced arbitration is buried in countless websites’ terms and conditions and many product manuals. According to Consumer-Rights.org, they’re found on common brands of refrigerators, TVs, laptops, washing machines, mattresses, and other everyday household products. In our practice, we often encounter arbitration agreements in nursing home and assisted living facility’s admission paperwork.
While you’ll likely never escape all arbitration agreements, you can take action to avoid them as much as possible. Do your research about which companies have hidden arbitration clauses and check for such language in website terms and conditions. Remember that while you won’t always be successful, you still have the right to negotiate any “boilerplate” contracts handed to you by car rental, telecom, or credit card companies. Most important of all, never sign a document without reading it thoroughly. Its one thing to give up the right to demand a jury trial if you have a dispute about your cell phone contract, its entirely another thing to voluntarily waive your Seventh Amendment right to a jury trial if your loved one is killed due to the gross negligence of a nursing home.
This article appears in the December 2022/January 2023 issue of our newsletter.