Oregon State Bar Bulletin — APRIL 2005

Parting Thoughts
Trial by Jury:
Democracy’s Cornerstone

By Richard J. Vangelisti

The Seventh Amendment to the U.S. Constitution provides: "In Suits at common law . . . 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 … ." Similarly, Article I, section 17, part of the Bill of Rights of the Oregon Constitution adopted in 1857, provides: "In all civil cases the right of Trial by Jury shall remain inviolate."

The right to trial by jury, a cornerstone of our democracy, appears to be eroding. From time to time, interest groups lobby various state legislatures and the U.S. Congress to set a predetermined limit on the amount of damages a jury may award to an aggrieved party in particular cases.

These interest groups employ the rhetoric of "frivolous lawsuits." But a predetermined limit, by definition, has nothing to do with non-meritorious cases. Non-meritorious lawsuits do not result in awards that would ever be affected by a predetermined limit. A predetermined limit, however, does affect meritorious claims in which a jury awards damages.

Interest groups often seek to apply a predetermined limit against tort victims. But consider application of a predetermined limit against a small business in the following hypothetical. An Oregon organic vineyard brings claims against a trucking company that negligently spilled pesticide into the irrigation system. The vineyard claims past lost profits for the destruction of its harvest for one growing season and loss of goodwill. The loss of goodwill is caused by wine consumers’ awareness of the chemical spill and their concern that the wine is no longer organic even after an extensive clean up.

Based on financial history, the vineyard could prove its lost profits for the year of the ruined harvest. It also could prove its loss of goodwill in the amount of $500,000 based on: length of time in the business, character of the business, its relative success, its average profits, its continuance under the same name, or any circumstance that would tend to make the business less valuable (e.g., negative customer perception of the vineyard’s brand after the chemical spill). See Rock v. Francis, 133 Or.App. 80, 86, 889 P.2d 1337 (1995).

If there were a predetermined limit of $250,000 imposed on the damages for loss of goodwill in such cases, however, the vineyard could not recover its full measure of damages for loss of goodwill for the damages exceeding $250,000.

The predetermined limit would probably violate the vineyard’s right to trial by jury. Under Oregon and federal law, the amount of damages is a fact to be found by the jury. See, e.g., Lakin v. Senco Products, Inc., 329 Or. 62, 73-74, 987 P.2d 463 (1999) (concluding that Article I, section 17, prohibits the legislature from interfering with the full effect of a jury’s assessment of non-economic damages, at least as to civil cases in which the right to jury trial was customary in 1857, or in cases of like nature), clarified on recons., 329 Or. 369, 987 P.2d 476.

There are at least three problems with a predetermined limit on what a jury could award to the vineyard. First, it is a political process that determines the damages — not a jury. Second, the vineyard’s damages will have been determined months or years before the trial without any consideration of the unique circumstances of the dispute and the losses actually suffered. Third, the citizens who make up the jury are denied perhaps their only opportunity to participate directly in our democracy.

Arguing that a jury should be the decision maker in a civil dispute begs the question as to why the jury’s role is so critical. A jury is in a better position to judge the unique circumstances of a case, rather than the political process having made an arbitrary predetermination years earlier.

The most compelling justification for the jury, however, has been the maintenance of the balance of power between the people and their government. In 1776, the Declaration of Independence cited the English colonial administrators’ elimination of the right to trial by jury as a basis for independence. Thomas Jefferson also stated: "I consider (trial by jury) as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution." 3 The Writings of Thomas Jefferson 71 (Washington ed. 1861).

Two centuries later Chief Justice Rehnquist, arguing to preserve the right to trial by jury of the Seventh Amendment, observed: "The founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign . . . ." Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 657-58 (1979) (Rehnquist, J., dissenting).

In this era of "war on terror" many of our constitutional rights are under constant threat. Lawyers should be vigilant, even in the civil context, to protect our right to trial by jury in the courts, the political process and the forum of public discourse.

© 2005 Richard Vangelisti

Richard Vangelisti is the founder of Northwest Nursing Home Law Center, a branch of Vangelisti Law Offices P.C.

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