Articles Posted in Miscellaneous

On the 4th of July, of all days, the following topic should be considered one of utmost importance.

The 7th Amendment to the United States Constitution guarantees the right to a trial by jury in civil cases.

Seventh Amendment of the US Constitution
“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 reexamined in any court of the United States, than according to the rules of the common law.”

Our Founding Fathers considered the right essential to the preservation of liberty in America:

James Madison: “In suits at common law, 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.”

Thomas Jefferson called civil jury trials, “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

In fact, the right to a trial by jury of civil suits dates back nearly 800 years, to the signing of the Magna Carta of 1215. Article 39 of the Magna Carta specifically guaranteed the right in both civil and criminal cases.

Pretty serious stuff.

Sadly, the 7th Amendment right it teetering on the brink of collapse under years of unrelenting political and legal warfare funded by Corporate America and fought by its groundtroops composed of lobbyists and so-called “conservative” politicians – in my view, the word “radical” more accurately describes the mentality of these politicians.

In the name of “economic efficiency,” the drug industry, financial institutions, manufacturers, and other entities for years have pushed “tort reform” – the enactment of laws specifically designed to provide immunity to wrongdoers at the expense of the 7th Amendment. Unfortunately, their propoganda, lies, and distortions have been accepted as truth by the very same people the 7th Amendment is designed to protect. A classic example of “We the People” being fooled into supporting measures that are against our own best interests.
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Jury trials are at the very foundation of American participatory democracy. According to Alexis de Tocqueville, in Democracy in America, “The jury contributes powerfully to form the judgment and to increase the natural intelligence of a people; and this, in my opinion, is its greatest advantage. It may be regarded as a gratuitous public school, ever open, in which every juror learns his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even the passions of the parties. I think that the practical intelligence and political good sense of Americans are mainly attributable to the long use that they have made of the jury in civil cases.”

The foundation is at risk.

This point was brought home by U.S. District Judge Gregory Presnell at a recent Federal Court Practice Committee’s meeting in Orlando, Florida. Judge Presnell expressed alarm at the precipitous decline in Federal jury trials. He noted that in the late 1960s, 11 percent of federal civil filings wound up in jury trials, while in 2009, that number had dipped to 1.2 percent. (In the U.S. Middle District of Florida, only 0.8 percent of civil filings were resolved by a jury in 2009.)

Expressing strong feelings about the importance of jury trials, Judge Pressner asked his audience, “Where in a government this complex – and with the difficulties and issues and problems – do you have a system where six or 12 people make a critical decision affecting people’s lives and fortunes?”

The reasons for the decline in civil jury trials at the federal – and the state level – include unfair arbitrary damage caps, mandatory binding arbitration, the creation of causes of action without the right to a jury trial, overly stringent gatekeeping on the part of judges to weed out cases perceived as being weak, and mandatory (although not binding) mediation.
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There is much discussion taking place today concerning whether or not Medicare Set Asides are required in personal injury cases. The answer seems to be No, but the consequences of being wrong have many in the personal injury business, lawyers and insurance companies alike, greatly concerned.

The Medicare Secondary Payer Act of 1980 (“MSP”) was enacted to keep taxpayers from footing past and future medical expenses through Medicare that were provided through primary sources such as workers’ compensation insurance. Congress learned that Medicare was covering these expenses even though those receiving the benefits were also receiving compensation for the same benefits from primary sources.

Until 2010, the MSP’s main focus was on workers’ compensation cases. Injured workers were expected to reimburse Medicare and pay for future medical care related to their accidents from money received through workers’ compensation settlements. Although liability claimants were expected to reimburse Medicare for benefits paid, no issue was made with regard to future benefits.

In 2010, representatives from The Centers for Medicare and Medicaid Services (“CMS”), the federal agency responsible for administering Medicare and Medicaid (as well as a host of other federal programs ) within the Department of Health and Human Services, began suggesting that the MSP applied to future medical services in liability cases. It was pointed out that statutory language with regard to workers’ compensation and liability cases was the same. Speaking about liability cases, Barbara Wright of CMS stated: “So where future medicals are a consideration in arriving at the settlement, appropriate arrangements should be made for appropriate exhaustion of the settlement before Medicare is billed for related services.”

Although the statement was made at a town hall meeting, instead of by formal agency rule making like the Code of Federal Regulations, many concerned parties began to believe that MSA’s were now required in liability cases. Whether this statement and others that have followed have the same force of law as formally issued regulations is creating tremendous confusion and may well be a subject of future litigation.
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Don Johnson, known as “Sonny Crockett” in the 1980s (84-89) blockbuster television show “Miami Vice,” was awarded $23.2 million by a Los Angeles jury. Johnson sued production company Rysher Entertainment for a share of the profits from the television series, “Nash Bridges” (1996-2001) (co-star: Cheech Marin, of Cheech & Chong fame), in which he played the role of a fictional San Francisco police detective. The award was based on profits accrued to date from the show, which is still being shown in more than 40 countries around the world.
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In the 2011 legislative session, the Republican-dominated Legislature approved $1,000,000 in funding for 25 legal aid organizations that reached into all 67 Florida counties. On May 26, Gov. Rick Scott vetoed the funding.

It will be only the second time in 10 years that Florida will not be providing any state funds to help poor families with their civil difficulties.

According to data, in fiscal year 2009-2010 $1,000,000 in state funding to the 25 legal agencies was used to assist with 3,848 cases, including 1,435 family law cases, 1,111 cases seeking access to federal benefits, 191 domestic violence cases, and 33 elder abuse cases. In addition, the grant money paid for educational programs that reached 5,979 people.
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In Rent-A-Center, West, Inc. v. Jackson, 130 S. Ct. 2772 (2010), the U.S. Supreme Court considered whether, under the Federal Arbitration Act (FAA or Act), 9 U.S.C. §§ 1-16, a district court may decide a claim that an arbitration agreement is unconscionable where the agreement explicitly assigns that decision to the arbitrator.

In a 5-4 split decision, the Court answered the question in the negative.

Antonio Jackson had filed a discrimination action against his employer. The employer moved to dismiss the complaint and compel arbitration, arguing that Mr. Jackson, in pre-employment documents, had agreed to arbitrate all “past, present or future” disputes arising out of Jackson’s employment with Rent-A-Center, including “claims for discrimination” and “claims for violation of any federal… law.”

Jackson opposed the motion on the ground that “the arbitration agreement in question is clearly unenforceable in that it is unconscionable” under Nevada law. Rent-A-Center responded that because Jackson had agreed to let the arbitrator make that decision, in a clause referred to as a “delegation provision,” the District Court was not authorized to make the decision. The provision reads as follows:

“[t]he Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable.”

The District Court agreed with the employer. That decision was appealed to the Court of Appeal for the Ninth Circuit, which ruled in favor of Jackson. In turn, the employer petitioned the U.S. Supreme Court to accept the case on certiorari, which it did.
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