September 18th, 2007

Jury Duty Stamps — Get ‘Em While They’re Hot!!

Credit New York Chief Judge Judith Kaye for the idea. Last week the United States Postal Service unveiled, at the New York County Courthouse where I picked my first jury and tried my first case, Jury Duty stamps.

Now it’s been a few years since I’ve used stamps in the office, finally buckling to using the utterly boring Pitney Bowes stamping machine. But mine is a small practice and I get to make the rules, so now the stamps will be coming back for some uses.

I feel pretty strongly about the jury system. After all, other than the draft it is the only time the government asks you to drop what you are doing and check in for mandatory civil service. In New York, everyone is called for jury duty, no exceptions. The idea of empowering a select group of robed politicians to make decisions that affect liberty, or to decide who was right or wrong in a civil dispute, was too much for our nation’s founders. Anyone who read about the crying Anna Nicole Smith judge and the very deliberative Scooter Libby jury can appreciate this concept.

So we have not one, but two parts of the Bill of Rights that guarantee those rights: The Sixth Amendment to protect those charged with crimes and the Seventh Amendment to guarantee juries in civil trials:

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.

And this is important because there is no shortage of big business type folks looking for ways to strip that right away, either by forcing arbitration without jurors, or creating some kind of “health courts” or other devices to let the biased decide matters instead of the unbiased.

Of course, there are always some who want to avoid jury duty at all costs. (No doubt they would feel differently if they were the ones in the middle of it all.) But sticking in my brain is a story of one of the greatest juries of all time: The one that tried William Penn in the 1600s, which I recounted back in February while pulling together some quotes on jury nullification.

Perhaps these stamps, if widely used, will be one tiny way to remind recipients of one of the cornerstones of our country’s liberty: Power shall not rest with the few but with the many. And that is what jury duty is all about.

You can buy the stamps here. And attorneys, more so than anyone else, should be using them.

(Eric Turkewitz is a personal injury attorney in New York)


May 29th, 2007

Health Court Legislation Again Introduced To Congress

Legislation that would provide federal funding for experimental “health courts” for medical malpractice cases has once again been introduced in both houses of Congress.

The bill calls for the federal government to fund experimental programs, yet to be devised, in numerous states. If the current version is like the last version from two years ago, several different models of courts are proposed, each of which raises various issues:

  1. The first “Purpose” of the act is to “to restore fairness and reliability to the medical justice system.” Given that research shows the current system works remarkably well, starting with a false premise probably doesn’t help. (See, The Myth of Frivolous Litigation)
  2. The Seventh Amendment to the U.S. Constitution guarantees jury trials, and at least some of these models clearly look to do away with the jury.
  3. While details are lacking there are a few that appear, and this includes the effort to limit non-economic loss (pain and suffering). Instead of a jury doing what is fair and reasonable under the unique circumstances of a case, the government will create “a defined payment schedule.” This is an inherently unworkable and unfair system for it is silly to assume that all injuries can be neatly placed into categories. It will, of course, adversely affect those most seriously injured who do not fit into the neat little government boxes that are created.
  4. One of the other rules provides for, “payment for the net economic loss of the patient, on a periodic basis.” But if a person lost something today, why should they be forced to wait for their compensation? This statement looks like it was drafted by the insurance lobby so that they could write annuity policies for the future payments.
  5. A least one of the models discourages fair offers of settlement. How? By this provision: “provide immunity from tort liability to any health care provider or health care organization that offers in good faith to pay compensation.” Good faith is a malleable concept. By merely making a token offer — not one of fair value but just good enough to get past “good faith” — they are rewarded with immunity from suit.
  6. And finally a political question: Why is the federal government extending its powers even more into matters that are almost always strictly state issues?

See also frm this blog, Medical Malpractice – Vetting the Case and Medical Malpractice Economics)
(hat tip to Sui Generis)

Addendum, 5/30/07: Why Health Courts Are Unconstitutional (Center for Justice and Democracy); Health Courts: Bad for Patients and Unconstitutional (Center for Justice and Democracy, via TortDeform)